Carolyn Deigan as executrix for the estate of the late James Boyd Lockrey v Barnard James Fussell [2019] NSWCA 299 (10 December 2019) (Bathurst CJ at [1], Macfarlan JA at [7], White JA at [8])


Catchwords:


SUCCESSION — executors and administrators — rights, powers and duties — executrix exercised deceased’s right to rescind contract for sale of land before obtaining probate — consideration of ss 44 and 61 of the Probate and Administration Act 1898 (NSW) — whether rescission valid when given — whether rescission retrospectively validated on obtaining probate

LAND LAW — conveyancing — contract for sale — rescission — construction of clause providing right to rescind — whether right available only to surviving party to contract — whether solicitor named in contract able to exercise right notwithstanding vendor’s death

LAND LAW — conveyancing — contract for sale — breach — five-year completion period — where neither party took steps to complete — whether contract breached — where purchaser subsequently attempted to bring about completion — whether estate took advantage of its own wrong in serving second rescission notice