Australia, Sept. 1 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 1:

1. WARD P: This appeal arises out of the failed attempt by the first appellant, Mr Bernard Fussell, to purchase an industrial site at Camellia (the Property). Mr Fussell entered into a contract for sale of land dated 10 May 2012 with the owner, Mr James Lockrey, to acquire the Property for $1.7 million with a 5-year deferred settlement date (the sale contract). Mr Fussell did not settle on the completion date (10 May 2017). Two days later, Mr Lockrey died. Mr Lockrey's legal representative, Ms Carolyn Deigan (the solicitor who had acted for him on the sale transaction), subsequently rescinded the sale contract pursuant to a clause which provided that, if a party died before settlement, either party could rescind by notice in writing (cl 33.2).

2. After an unsuccessful attempt by Mr Fussell to obtain an order for specific performance of the sale contract (see Carolyn Deigan as executrix for the estate of the late James Boyd Lockrey v Barnard James Fussell [2019] NSWCA 299), Mr Fussell brought proceedings against the respective solicitors who had acted for him in connection with the sale transaction. First, Mr Bruce Hanrahan and his partner in the firm Dignan and Hanrahan Solicitors (the first and second respondents to this appeal), who acted for Mr Fussell at the time of entry into the sale contract. Second, Mr Steven Brown of Etienne Lawyers (the third respondent), who acted for Mr Fussell in the time leading up to the deferred settlement date (and who first identified an issue with the proposed transfer of a life estate to Mr Lockrey on completion of the sale - see s 23F(2) of the Conveyancing Act 1919 (NSW) (Conveyancing Act) since the contemplated life estate was over only a portion of unsubdivided land). Nothing here turns on the claim unsuccessfully made against Mr Brown, as the appeal against the decision by the primary judge in favour of Mr Brown was dismissed by consent prior to the hearing of the appeal. When I refer to the respondents in these reasons I refer only to the first and second respondents.

3. The second appellant, Blue Star Trading Corporation Pty Ltd, is a company associated with Mr Fussell for whom Mr Hanrahan and his firm also acted at the time of the sale contract. The second appellant was granted a lease of the Property during the period of the deferred settlement and conducted its business from the Property.

4. Relevantly, the sale contract provided for the grant to Mr Lockrey, in consideration for him entering into the sale contract, of a life estate on completion of the sale contract "for the home built on top of the six garages on the property", in the terms set out in a Deed of Life Estate (the Deed) annexed to the sale contract (cl 49). The sale contract provided that the Deed, once signed, would be held in escrow pending stamping of that document and completion. The Deed provided for the grant of "a life estate in the House" (defined as meaning the house constructed on the Property as at the date of the sale contract together with all inclusions contained in the house).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1985e9eda394f86ad6f90767)

Disclaimer: Curated by HT Syndication.