Ah Sam v Mortimer

1. [1]

   BASTEN JA: I agree with Brereton JA.

2. [2]

   PAYNE JA: I agree with Brereton JA.

3. [3]

   BRERETON JA: In January 2019, the respondent Christopher John Mortimer, a 72 year old man who since about 1989 or 1990 has been the sole registered proprietor of a rural property including two dwelling houses at Stokers Siding, not far from Coolangatta and Byron Bay (“the property”), placed an advertisement on “Gumtree” in the following terms:

4. [4]

   On 21 February 2019, the appellant Julius Iulai Ah Sam (aged 71) as purchaser and Mr Mortimer as vendor executed a one page document entitled “Real Estate Sale and Purchase Agreement” which provided for the sale to Mr Ah Sam of a 50% interest in the property for a price of $250,000. Relevantly, the agreement contained the following provisions:

5. [5]

   On 23 February 2019, amendments were made, and initialled by both parties, acknowledging the payment on that day of the initial deposit of $100, and changing the date from which Mr Ah Sam would reside on the property to 18 April 2019. Mr Ah Sam commenced to reside in a caravan on the property on or about 4 March 2019, and, after a tenant had vacated, moved into the two-bedroom house on or about 10 March 2019.

6. [6]

   Before long, relations between the parties soured. On 26 June 2019, Mr Ah Sam obtained interim apprehended violence orders against Mr Mortimer and his wife. On the same day, Mr Mortimer commenced proceedings in the Equity Division, seeking a declaration that the agreement was void and of no effect, and alternatively an order that it be rescinded. The Statement of Claim pleaded that Mr Mortimer had executed the agreement in reliance on representations as to its contents and effect which were false and fraudulent; that Mr Mortimer did not know the contents of the agreement and executed it involuntarily; and that he was mistaken as to its true terms. It claimed that Mr Mortimer had suffered damage from selling for $250,000 rather than $300,000, from loss of rental income, and from damage to the property caused by Mr Ah Sam’s occupation.

7. [7]

   31 January 2020 came and passed without payment of the further deposit of $12,400, which under the agreement was payable “within 30 days before settlement”, which was due on 1 March 2020. In turn, 1 March 2020 came and passed without tender of the balance of the purchase price. On 16 March 2020, Mr Mortimer’s solicitors sent an email to Mr Ah Sam, asserting that he had breached a fundamental term of the contract by not paying the deposit and not endeavouring to arrange completion, and foreshadowing that these would be relied on in the proceedings in addition to the claim of unconscionability. However, the email also alleged that Mr Ah Sam had not complied with the contract because he was impecunious, and sought information as to the source of his funds if he disputed this.

8. [8]

   An Amended Statement of Claim dated 12 June 2020 was filed on 16 June 2020. In lieu of the relief previously claimed, it claimed a declaration that the agreement was validly terminated by notice of 16 March 2020, that by reason of Mr Ah Sam’s breaches of the agreement it was terminated, cancelled, and of no effect, and judgment for possession and for “damages for continuing trespass after 16 March 2020”. Added to the pleading, under the new heading “Termination of Agreement”, were allegations that, in breach of the agreement, Mr Ah Sam did not pay the further deposit of $12,400 on 30 January 2020, [1] nor the balance of the purchase price on 1 March 2020, and that an email of 16 March 2020 to Mr Ah Sam from Mr Mortimer’s solicitor “confirmed the defendant’s repudiation” and terminated the agreement. Also added to the pleading was a paragraph headed “Possession”, and under the heading “Trespass” allegations that Mr Ah Sam had been a trespasser since the date of the email notice given on 16 March 2020.

9. [9]

   Before the primary judge, Mr Mortimer contended primarily for orders setting aside the agreement for unconscionability, and alternatively a declaration that it had been validly terminated, ejectment of Mr Ah Sam from the property, and damages for trespass and lost rental income. Mr Ah Sam cross-claimed for specific performance of the agreement, compensation for works performed by him on the property, and damages for physical and psychological injury and defamation. Following an expedited hearing (essentially on grounds of the difficulties arising from the parties occupying the one property, in the context of Mr Mortimer’s health), conducted remotely by audio-visual link due to COVID‑19 constraints, Sackar J held that the agreement should be avoided for unconscionability, and that Mr Ah Sam was not entitled to any compensation other than repayment of the deposit of $100. On 12 February 2021, orders were made declaring the agreement void and of no effect, and requiring its delivery up to the Court for cancellation; for repayment to Mr Ah Sam of the $100 deposit; dismissing the cross-claim; requiring Mr Ah Sam to give up vacant possession of the property and issuing a writ of possession; and that Mr Ah Sam pay Mr Mortimer’s costs. From those orders, Mr Ah Sam appeals to this Court. Execution of the writ of possession has been stayed in the meantime.

10. [10]

    At first instance and before us, Mr Ah Sam was self-represented. From his Notice of Appeal and his written submissions, it appears that the grounds of appeal on which he relies are that:

    1. (1)

       the primary judge erred in finding unconscionability;

    2. (2)

       the primary judge erred in declining specific performance;

    3. (3)

       the primary judge erred in finding that Mr Ah Sam was not entitled to compensation for his work on the property;

    4. (4)

       the primary judge erred in granting leave, after the evidence was complete, for the further amendment of the Statement of Claim, in order to plead unconscionability in more explicit and complete terms;

    5. (5)

       Mr Ah Sam was prejudicially disadvantaged in the conduct of his case by its having been conducted by audio-visual link and not conventionally;

    6. (6)

       the primary judge was biased; and

    7. (7)

       the primary judge erred in declining an adjournment on the first day of the trial.

11. [11]

    It is convenient to deal first with what might be called the procedural grounds, and then the allegation of bias, before turning to the substantive issues of unconscionability, specific performance, and compensation.

The procedural complaints

1. [12]

   Under this rubric are addressed the appellant’s complaints that the primary judge erred in declining an adjournment on the first day of the trial; that Mr Ah Sam was prejudicially disadvantaged by the conduct of the case remotely by audio-visual link; and that the primary judge erred in granting leave for the further amendment of the Statement of Claim to plead unconscionability more explicitly and completely, after the evidence was closed.

2. [13]

   The hearing commenced on Monday 14 September 2020. As has been mentioned, it was conducted remotely, by audio-visual link. Mr Ah Sam was located at the Murwillumbah Courthouse. At the outset, Mr Ah Sam raised his “really deep concerns” arising from his receipt over the preceding three days of a quantity of material from the respondent’s lawyers, and proposed that the case be adjourned. It was ascertained that the material in question included the plaintiff’s submissions, a list of affidavits, a list of objections, and a chronology. Mr Ah Sam submitted, in effect, that he needed time to consider the submissions, and the authorities referred to in them.

3. [14]

   His Honour responded to the effect that Mr Ah Sam could agree or disagree with the chronology; that the notice of objections was entirely conventional in that objections were usually not taken in advance of the evidence being read; and that he proposed to deal with the evidence on that and the following day, as the affidavit evidence had been served quite some time earlier, but would be inclined not to require Mr Ah Sam to address without allowing a reasonable opportunity to research the cases and make submissions at some time in the very near future. Mr Ah Sam confirmed that he had received, shortly after the dates they bear, the plaintiff’s evidence, namely affidavits of Mr Mortimer sworn on 9 August 2019 and 30 August 2019, an affidavit of his solicitor Mr Baxter of 15 August 2019, an affidavit of Colin Richard Lay of 30 August 2019, and an affidavit of Dr Walker of 25 March 2020. His Honour said that if Mr Ah Sam was disadvantaged and wanted time to research the law and put on further submissions, he would give consideration to that, but that he wanted to proceed with the evidence.

4. [15]

   Counsel for the respondent said that the respondent could not afford to consent to an adjournment, given Mr Mortimer’s age and health, which was why the matter was in the expedition list.

5. [16]

   The hearing proceeded on 14 September 2020, when Mr Mortimer gave evidence and was cross-examined; followed by Mr Lay. On 15 September 2020, Dr Walker gave evidence and was cross-examined. That concluded the plaintiff’s case. Mr Ah Sam then gave evidence and was cross-examined. The proceedings were then adjourned to 25 September 2020, for submissions.

6. [17]

   As to the objections, as his Honour recorded in the substantive judgment: [2]

7. [18]

   As it transpired, therefore, the notice of objections received by Mr Ah Sam shortly before the hearing resulted in no detriment to him. After the evidence was taken, the proceedings were adjourned for submissions, so that he was afforded a reasonable opportunity to research the law and respond to the plaintiff’s submissions. All that occurred on 14 and 15 September 2020 was the taking of evidence, in circumstances where the affidavits relied on by the plaintiff were served well beforehand, and Mr Ah Sam knew that the matter was fixed for hearing commencing on 14 September 2020.

8. [19]

   In those circumstances, there was no error or injustice in the primary judge’s discretionary decision to decline to adjourn a hearing which had been fixed for some time, and to proceed to take the evidence as his Honour did on 14 and 15 September 2020.

9. [20]

   The appellant complains that the conduct of the hearing remotely by audio-visual link was prejudicial to him. He elaborates his submission to say that the format and technology used was “inefficient [and] unreliable”, resulting in poor quality audio-visual presentation with frequent dropouts, and submits that the proceedings ought to have been conducted in a traditional courtroom format, or at least with professional audio-visual equipment and a competent operator, so as not to prejudice him. He submitted that his own iPhone had to be used for the audio connection, that he could not hear the judge and the respondent’s barrister several times, especially during cross-examination, and that questions were often misheard or misinterpreted, causing him to give incorrect answers. He referred to the following passage in the transcript: [3]

10. [21]

    He submitted that the transcript, when received, included several mistakes and problems, including occasional “not transcribable” notations, misspellings, incorrect words, and gaps where there was no audio link.

11. [22]

    The problems with the audio-visual link described by Mr Ah Sam are, regrettably, not unfamiliar. They are borne out by the transcript available to this Court. It may readily be accepted that the conduct of proceedings remotely, using imperfect technology, presents additional difficulties for all parties. However, what the appellant has conspicuously failed to do is to identify how those problems caused him any practical injustice. He had the opportunity to make submissions after receiving the transcript, and, if he wished, to correct any errors in it. In particular, he has not identified any material matter which influenced the primary judge’s judgment which he was precluded from addressing, nor any matter which he wished to place before the Court that he was unable to adduce. Nor has he shown how any finding of the primary judge adverse to him was affected by any shortcoming of the audio-visual link. It does not appear that the conduct of these proceedings remotely operated in any practical way prejudicially to the appellant, nor that it resulted in any injustice to him.

12. [23]

    As has been noted, the hearing commenced on 14 September 2020, and continued on 15 September 2020, when the evidence was concluded. At the end of the day on 15 September 2020, the proceedings were adjourned to 25 September 2020, for submissions. On that day, for reasons that are not entirely clear but which may have been associated with difficulties in establishing a satisfactory audio-visual link, submissions did not proceed, although some additional documentary evidence was tendered, and the matter was adjourned to 8 October 2020 for submissions.

13. [24]

    When the matter resumed on 8 October 2020, his Honour raised with counsel for Mr Mortimer that although the case had been opened and conducted on the basis of unconscionability, it was not pleaded, and that the primary relief claimed in the pleading was that the agreement had been terminated pursuant to notice given and dated 16 March 2020. His Honour continued: [4]

14. [25]

    After some further discussion, counsel applied for leave to amend: [5]

15. [26]

    His Honour then explained the position to Mr Ah Sam, in detail and with clarity, and sought Mr Ah Sam’s consent to the course proposed, which was not entirely forthcoming: [6]

16. [27]

    In due course, although formal directions do not appear to have been made, counsel for Mr Mortimer agreed to provide an amended pleading by 16 October 2020, and the judge asked Mr Ah Sam to provide any amended defence by 23 October 2020. His Honour made clear that there was to be no further evidence: [7]

17. [28]

    The proceedings were then adjourned to 26 October 2020.

18. [29]

    The draft Further Amended Statement of Claim sought a “declaration that [the agreement] be set aside for unconscionability; alternatively, a declaration that by reason of Mr Ah Sam’s breaches it was validly terminated, cancelled and of no effect, judgment for possession; and “damages for continuing trespass”. It inserted allegations that Mr Ah Sam knew and was aware of Mr Mortimer’s special disability by way of visual impairment, and of the disadvantaged status of Mr Mortimer’s personal life, financial status, and physical health, and “knowingly, dishonestly and unconscientiously” exploited that incapacity by procuring Mr Mortimer’s signature to the agreement.

19. [30]

    Mr Ah Sam lodged an updated “Defense to Amended Statement of Claim” on 2 November 2020 which responded to and traversed the allegations in the Further Amended Statement of Claim.

20. [31]

    In the substantive judgment, the primary judge recorded: [8]

21. [32]

    In his Notice of Appeal, the appellant relevantly complains:

22. [33]

    It is most regrettable that the case presented at trial was not one which was reflected in the pleadings, and that it was not until after the evidence had closed that attention was given to this matter. However, there is also no doubt that the case was opened by the respondent and conducted on the basis that it was primarily a claim of unconscionability, and Mr Ah Sam’s “Defense Affidavit” of 27 September 2019, which served as his pleading, evidence, and cross-claim, addressed the factual circumstances which underlaid the claim of unconscionability, including in particular Mr Mortimer’s physical fitness, the inspection of the property, the negotiation of the terms, his “can’t see, couldn’t read excuse”, the alleged reading over of the agreement to him, and his alleged use of glasses to read it. The amendments essentially brought the respondent’s pleading into conformity with the evidence.

23. [34]

    The critical question is whether allowing the late amendment occasioned unfair prejudice to Mr Ah Sam. Mr Ah Sam was invited to state his opposition, if any, to the course proposed; he did so, stating that he was “feeling confused … because … it sounds like the plaintiff does not really have a case”, and his Honour explained that that view was misconceived, making clear that the purpose of the amendment was not to raise a new case, but to bring the pleadings into conformity with the case that had been conducted. That is not of itself productive of substantive injustice. It is not correct that Mr Ah Sam was not permitted to respond; the arrangements made on 8 October 2020 envisaged that he would have that opportunity, which he availed himself of by his updated “Defense to Amended Statement of Claim” of 2 November 2020.

24. [35]

    It is, however, correct that Mr Ah Sam was precluded from adducing further evidence in response to the amended claim. While it was entirely appropriate that the plaintiff, being permitted to amend only to bring the pleadings into conformity with the case conducted, should have been precluded from adducing further evidence, the same does not apply to the defendant: it is quite conceivable that in the light of the reformulated claim, based on unconscionability, he might have recognised a need to adduce additional evidence addressed to that issue. This might well have been a telling point, had he been able to identify any evidence not already adduced which he would have adduced given that opportunity. However, he did not seek to do so at first instance, and in this Court, when asked what further evidence he might have adduced given that opportunity, he referred only to further research of the law of unconscionability.

25. [36]

    In those circumstances, the late further amendment of the Statement of Claim, to bring it into conformity with the case that had been conducted, occasioned Mr Ah Sam no material prejudice.

Bias

1. [37]

   Mr Ah Sam complained that the primary judge was biased, his contentions including that his Honour made “constant objections and interruptions of the Appellant’s questioning of Dr Walker” (when the Respondent’s counsel did not raise a single objection), “was fighting the appellant all the way”, and “abused his power and authority”. It was not entirely clear whether the appellant was complaining of actual bias or of apprehended bias. Though many of his submissions are redolent of the former, his reference to the judgment of Deane J in Webb v The Queen [9] suggests the latter, and as it involves a lower threshold I shall proceed on that basis. In that context, the test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to bear on the resolution of the proceedings. [10] Such an observer’s reasonable apprehension is to be evaluated on the basis of an appreciation of the standards of ordinary judicial practice. [11]

2. [38]

   Many of the matters relied on by Mr Ah Sam as evidence of bias were findings adverse to him in his Honour’s final judgment. These included “hostility towards the appellant”, said to be manifested by conclusions of dishonesty contained in the following passages of the judgment: [12]

3. [39]

   Other complaints which are derived from the adverse findings in the judgment include that bias was exhibited by the judge “ignoring important facts, evidence and common sense”, by “discounting [the appellant’s] valuable costly digital assets as worthless”, and by ignoring that the respondent has (allegedly) a history of taking advantage of others.

4. [40]

   The complaints to which I have so far referred do not rise above complaints that the primary judge rejected Mr Ah Sam’s evidence and made strong adverse findings about him, he says erroneously. However, the making of findings of fact or credit adverse to a party, or the rejection of a party’s case, does not demonstrate bias. The mere fact that parties or witnesses are the subject of criticism in a judgment, even harsh criticism, is without more, insufficient to establish apprehended bias. [13] Even the adoption of illogical, irrational or perverse reasoning does not of itself suffice to establish bias. [14] It may be otherwise if such findings serve to confirm apprehensions otherwise created during the proceedings. [15]

5. [41]

   Mr Ah Sam’s submission “that the trial judge showed bias by lying” might be in a different category, because if it appears that a judge has included deliberate falsehoods in a judgment, that might be the “something more” necessary to establish bias. However, the allegation is entirely misconceived. Two particulars of it were provided. The first was:

6. [42]

   What his Honour in fact said has been set out above. [16] The actual course of events has also been described above. It was not at all inaccurate to describe 8 October 2020 as the fourth day, in the context in which his Honour explained it. Final submissions were not made until 5 November 2020. There was never any contemplation that judgment would be delivered on 8 October 2020. There is no inaccuracy in what the primary judge stated, let alone one that could remotely be considered deliberate. Mr Ah Sam’s submission is baseless, and unbecoming.

7. [43]

   The second particular was:

8. [44]

   In this respect, what his Honour said was: [17]

9. [45]

   The judge did not state that Mr Ah Sam took out an AVO only against the plaintiff’s wife, and the statement in the judgment was not literally inaccurate. It is true that it did not mention that there was also an AVO against the plaintiff, but that was immaterial. There is absolutely no reason for a reasonable person to suppose that this was anything other than an inadvertent omission of an immaterial detail. Mr Ah Sam’s submission is, again, baseless and unbecoming.

10. [46]

    Of matters that, having occurred during the hearing, might found an apprehension of bias, Mr Ah Sam pointed to the granting of leave to amend after the hearing was concluded, including the giving of advice to the plaintiff’s counsel as to how to amend, and the denial of a proper opportunity to object to it; unreasonable interference with the cross-examination of witnesses; and coaching the respondent’s barrister by pointing out issues for cross-examination.

11. [47]

    The circumstances surrounding the grant of leave to amend on 8 October 2020 have been described above. It is necessary to bear in mind that, from the opening written submissions, it was plain that the case on behalf of Mr Mortimer was primarily one of unconscionability. The original Statement of Claim included a reference to “unconscionability”, [18] pleaded the circumstances of the plaintiff’s disadvantage (at [4]), and that he was unaware of the terms of the written agreement (at [12]), so that unconscionability was not an entirely novel notion. The judge recognised, after the evidence was completed, that the pleadings did not conform with the manner in which the case had been conducted. Civil Procedure Act 2005 (NSW) (“CPA”), s 64, relevantly provides that at any stage of the proceedings, the Court may order that any document in the proceedings be amended, or grant leave to any party to amend any such document, and that (subject to compliance with s 58, including the dictates of justice in ss 56-57), “all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings”. This power to amend is conferred primarily to ensure that the pleadings accurately reflect the substance of the matters that are really in dispute, including in circumstances where the real issues emerge from the conduct of the proceedings and from the evidence, though they are not explicit or even implicit in the extant pleading. [19] That is exactly what his Honour did by requiring the plaintiff to amend. A judge is not in those circumstances required to remain silent and allow a case to proceed on a false basis, with all the subsequent complications that might ensue. To the contrary, the dictates of CPA, ss 56-58 and 64 authorise, if not require, judicial intervention to ensure that the real issues are determined, and that the pleadings reflect them. While it is understandable that, as a self-represented litigant, Mr Ah Sam might have perceived the exchanges between his Honour and the plaintiff’s counsel as advice as to how to amend, his Honour was in reality pointing out that the pleading did not conform with the case that counsel was conducting. Armed with an appreciation of ordinary judicial practice in those circumstances, a fair-minded lay observer would not entertain a reasonable apprehension of bias.

12. [48]

    As to interference with his cross-examination of witnesses, Mr Ah Sam submitted that of 52 “objections” taken in the course of Dr Walker’s evidence, every one was taken by the judge; of sixteen during Mr Mortimer’s evidence, all but one were taken by the judge; and of fourteen during Mr Lay’s evidence, every one was taken by the judge. Thus, it was said, of a total of 82 objections, 81 were taken by the judge. Mr Ah Sam’s complaint, founded on the frequency of the trial judge’s interventions, reflects a complaint he made to the trial judge, that he understood it was for opposing counsel to object and the judge to rule, to which his Honour appropriately responded to the effect that the trial judge was in control of the proceedings and could disallow questions of his own motion. [20]

13. [49]

    Mr Ah Sam’s count of the number of “objections” taken in the course of cross-examination appears to treat each time the words “HIS HONOUR:” appear in the transcript prior to a statement as a separate individual objection. As a result, it gives a misleading impression of the number and frequency of his Honour’s interventions, most of which involved multiple exchanges. In fact, Mr Ah Sam’s cross-examination of Mr Mortimer was largely uninterrupted, and such interventions as occurred were in response to plainly impermissible questions.

14. [50]

    While his Honour did reject a number of “questions” in the course of Mr Ah Sam’s cross-examination of Dr Walker, that was because the cross-examiner was either not engaging with the real issues – in particular Dr Walker’s opinion, based on the material available to him, that Mr Mortimer’s vision would have been compromised on the day he signed the agreement – or not framing permissible questions, or engaging in commentary. Some illustrations are:

15. [51]

    His Honour disallowed the following question: [21]

16. [52]

    That question impermissibly asked the witness to speculate about another entity’s reasons, and involved the insertion of the questioner’s commentary.

17. [53]

    His Honour disallowed the following question: [22]

18. [54]

    As his Honour said, that was not a question, but a multitude of questions mixed with submissions, and it was rightly disallowed.

19. [55]

    His Honour disallowed the following question: [23]

20. [56]

    As his Honour said, that was unhelpful and impermissible commentary, not a permissible question.

21. [57]

    His Honour disallowed the following question: [24]

22. [58]

    His Honour said that he would not allow that question, the analogy with Coronavirus being “silly” and “unhelpful”, but that he would not stop Mr Ah Sam asking questions about the doctor’s statement to which the question referred.

23. [59]

    His Honour correctly disallowed, as irrelevant, questions about Mr Mortimer’s current vision (as at the date of trial), as distinct from his vision at the time of the transaction. Notably, however, the critical relevant questions were unimpeded: Mr Ah Sam was permitted, without interruption, to ask whether, in the doctor’s opinion, Mr Mortimer could have read the one page document on 21 February 2019; to put that he would have been able to do so; to ask whether it was possible that he could have done so; and to put that the witness could not really say because he was not there. [25]

24. [60]

    Thus, when seen in context, his Honour was not “fighting the appellant”, but appropriately controlling the trial, in the context of an expedited hearing, with a self-represented litigant who was having difficulty in formulating legally permissible questions.

25. [61]

    The suggestion that his Honour engaged in “coaching the respondent’s barrister by pointing out issues for cross-examination (T45, 47 and 48)” is also baseless. His Honour simply pointed out to Mr Ah Sam that the course of a witness’ evidence would include cross-examination (at 45), [26] rejected a question asked by the plaintiff’s counsel as leading (at 47), [27] and another as impermissible in re-examination (at T47-8). [28]

26. [62]

    Accordingly, the matters referred to by Mr Ah Sam are not such that a fair-minded lay observer might reasonably have apprehended that the primary judge might not bring an impartial mind to bear on the resolution of the proceedings. The complaints of bias fail.

Unconscionability

1. [63]

   The central issue in the case, and in the appeal, is whether the agreement was procured by unconscionable conduct.

2. [64]

   Equity intervenes to avoid a transaction which has been brought about by one party knowingly taking advantage of a special disadvantage to which the other party was subject which affected that party’s ability to safeguard his or her own interests. In Commercial Bank of Australia Ltd v Amadio, [29] Mason J (as he then was) emphasised the distinction between the doctrines of unconscionable dealing and undue influence, and explained in particular that for the purpose of attracting the former – unlike the latter – it was not necessary that the plaintiff’s will have been overborne: [30]

3. [65]

   The doctrine was summarised by Kitto J in Blomley v Ryan in the following terms (emphasis added): [31]

4. [66]

   In Amadio, Deane J, with whom Mason J and Wilson J agreed, described the elements that would attract relief as follows (emphasis added): [32]

5. [67]

   Thus, where a party impugns a transaction on the ground that it is an unconscionable dealing: (1) the plaintiff must establish that there was a relevant relationship of “special disadvantage”; (2) the plaintiff must establish that the defendant understood that the plaintiff was at a special disadvantage; and (3) the defendant then bears the onus of establishing that the transaction was “fair, just and reasonable”, [33] which involves showing either that the plaintiff received full value or was independently advised. [34]

6. [68]

   In this context, “special disadvantage” is usually associated with conditions that make people vulnerable to exploitation and less able to conserve their own interests. In Amadio, Mason J explained the concept in the following terms (emphasis added): [35]

7. [69]

   In Bridgewater v Leahy, Gaudron, Gummow and Kirby JJ said (citations omitted): [36]

8. [70]

   In Thorne v Kennedy, Kiefel CJ, Bell, Gageler, Keane and Edelman JJ confirmed (citations omitted): [37]

9. [71]

   Thus not every case of illness, impairment, or emotional dependence is a case of special disadvantage. It is insufficient to attract the doctrine merely that there be an inequality of bargaining power, or that the plaintiff be affected by one or more of the relevant conditions; it is critical that the condition be such as to impact on the plaintiff’s ability to conserve his or her own interests and render him or her vulnerable to exploitation. At the heart of the doctrine is the avoidance of unfair exploitation of a disadvantage or vulnerability.

10. [72]

    Mr Mortimer moved to Stokers Siding with his then wife and their three children in about 1990. They were divorced in about 2000. In about 2010 he remarried; his current wife is aged 44, and they have two children, aged nine and eight.

11. [73]

    An electrician by trade, Mr Mortimer had been a company manager and chief engineer. He had been employed in Sydney as a Manager for Metro Environmental Services. When he first moved to the Northern Rivers, he worked for Holiday Inn at Surfers Paradise, and then for Dreamworld, before returning to sub-contracting electrical and air-conditioning work. He agreed, in cross-examination, that in the course of his career, he had been required to sign contracts, [38] although he said that he had only ever been involved in one real estate transaction, 30 years previously. [39]

12. [74]

    By the time of the 2019 transaction with Mr Ah Sam, Mr Mortimer had retired. His wife was employed as a kitchen hand. He was not eligible for a pension, and was accessing his superannuation to meet expenses, including to service the mortgage on the property, which secured $230,000. He had a number of health issues: he is an insulin-dependent diabetic; he had suffered a heart attack in December 2017; and his eyesight was deteriorating. According to Mr Mortimer, he could not read; he had been told that he was blind in the right eye; if he shut his left eye, his vision was “totally blurry”; his left eye was better, but he could not read a newspaper; he could read a computer screen by enlarging the font, but not a laptop; and his glasses did not help.

13. [75]

    Following his heart attack, Mr Mortimer became concerned and stressed about his financial situation, including the circumstances of his young family, but he did not want to sell the property. He conceived, as a solution, the proposal which he advertised on Gumtree, which would enable him to pay off the mortgage. In response to the Gumtree advertisement, he had received 37 emails and twenty telephone enquiries. There had been a number of inspections, but only one offer, at a price of $250,000, which he said he rejected because he wanted $300,000. [40]

14. [76]

    Mr Ah Sam – who described himself as an investor, a successful businessman who had bought and sold properties internationally (in Australia, New Zealand, and the USA), [41] and a trained teacher (with both Bachelor’s and Master’s degrees in Science from the University of Auckland) [42] – saw the Gumtree advertisement and contacted Mr Mortimer by telephone in January 2019, asking a number of questions to ascertain whether an inspection was worthwhile. They arranged an inspection for 17 February 2019.

15. [77]

    On 17 February 2019, Mr Ah Sam attended the property, and Mr Mortimer accompanied him on an inspection, which occupied some hours. According to Mr Ah Sam, he and Mr Mortimer, and possibly one of Mr Mortimer’s children, walked all over the property.

16. [78]

    According to Mr Mortimer, in the course of the inspection, Mr Ah Sam asked, “Why are you doing this?”, and Mr Mortimer responded, “I’m running out of money and I can’t get the pension, I am getting desperate and need to do something to raise money, I still have a mortgage”. Mr Ah Sam asked, “How much is the mortgage?”, and Mr Mortimer replied, “$220,000”.

17. [79]

    Also according to Mr Mortimer, he told Mr Ah Sam, “I’ve had some legal advice and I want to form a company with each owner having one share in the company and for the company to lease the land from the owners. I was told it would be a set-up fee of about $40,000”. This referred to advice which Mr Mortimer said he had received from a solicitor in Murwillumbah. He also told Mr Ah Sam that he was having eye surgery on 21 February 2019, and had had a heart attack the previous year. He said that the surgery was important because he could not really see properly, and could not read anything. Mr Ah Sam asked, “How bad is your eyesight”, and Mr Mortimer responded, “I can’t read and I have bleeding behind the eyes”. Mr Ah Sam asked if he could still drive, and Mr Mortimer told him he was concerned because he had to have a test in March to renew his licence.

18. [80]

    Mr Ah Sam does not deny that these things might have been said, but says that he was not taking particular notice, as his focus was on the possibility of doing a deal, rather than on Mr Mortimer’s issues. [43] He agreed that at some time – possibly during the inspection on 17 February 2019 – Mr Mortimer said something to the effect that he was running out of money and had to do something. [44] He also agreed that Mr Mortimer mentioned something about his eyesight, although he maintained that he understood that the appointment on 21 February 2019 was for a check-up, not for a procedure. [45] And Mr Mortimer undoubtedly referred to transferring the property to a jointly held company, as Mr Ah Sam included such a provision in the agreement when he drafted it.

19. [81]

    According to Mr Mortimer, in the course of the inspection Mr Ah Sam noticed the second house, and Mr Mortimer said he could not show him through it because there was a tenant, who was troublesome; he said he had received advice that he had to give the tenant a 90-day notice to eject her. Mr Ah Sam agrees that Mr Mortimer referred to having problems with the tenant. [46]

20. [82]

    Also according to Mr Mortimer, he showed Mr Ah Sam an area where taro had been planted; Mr Ah Sam said he knew about that, as he had a farm in Hawaii where he grew taro, bananas, and mangoes. Mr Ah Sam also told Mr Mortimer that he had been a film producer and worked for the Gold Coast Council. Mr Mortimer gained the impression he was well off, observing that he drove a Mercedes Benz motor vehicle (according to Mr Ah Sam, a 1987 model). Mr Ah Sam said: “I’m an investor and a cash buyer and I want to talk to you further about some of your ideas and the property. What you must ensure you do is not take on a partner who has to borrow to become your business partner because they will need a mortgage and you will be back in the same position you are in now. I am a cash buyer. I would like to meet with you again to work out some details, do you get up the Coast?”. They arranged to meet for lunch at the casino at Broadbeach on 21 February 2019, before Mr Mortimer’s eye appointment that afternoon. [47]

21. [83]

    Between 17 and 20 February 2019, Mr Ah Sam prepared a written agreement. Indeed, Mr Ah Sam says that he prepared two versions which were identical, except that in one the price was $200,000 and in the other it was $250,000. In addition to the price, the agreement contained a number of other terms which were not mentioned in the Gumtree advertisement, and which were prima facie disadvantageous to Mr Mortimer – in particular that settlement was deferred for twelve months, and the price was payable as to $100 on the signing of the agreement, as to $12,400 within 30 days before settlement, and the balance on settlement, while Mr Ah Sam would be entitled to occupy the second house on the property from 1 October 2019.

22. [84]

    According to Mr Ah Sam, these terms of the agreement (including that he would occupy the second [two-bedroom] house, that the property would be transferred to a company in which they had equal shareholdings, that settlement would be in cash without a mortgage in about a year to enable him to realise assets, and that the initial deposit would be $100) were “agreed to during our discussions over several days in person and by phone”. More specifically, he says that he read the agreement – omitting the price – over the phone to Mr Mortimer on 20 February 2019, and that Mr Mortimer approved it; [48] and that on the morning of 21 February 2019 he again rang Mr Mortimer to confirm that he was happy with the agreement. [49]

23. [85]

    Mr Mortimer denied that the agreement had been read to him over the phone, [50] or that they had discussed the terms to which reference has been made. Although he agreed that he had been advised by a solicitor before he advertised the property for sale to set up a company in which each owner would have one share – a provision which was reflected in the agreement prepared by Mr Ah Sam – he denied that Mr Ah Sam had said that he would draw up an agreement. [51]

24. [86]

    On the morning of 21 February 2019, Mr Mortimer drove himself from Stokers Siding to the casino at Broadbeach, and arrived early at the rear entrance to the casino. Mr Mortimer says he was stressed about his imminent eye procedure, and that he was also worrying about a meeting he had arranged for the following day with Centrelink to see if he was eligible for a pension. He said that Mr Ah Sam arrived late. They found a place to eat at a restaurant in the casino. According to Mr Mortimer, they chatted about the eye procedure, and Mr Ah Sam asked if he would be able to see after the operation, to which Mr Mortimer responded that it could only help because of how poor his vision was, as he could not read anything. Mr Ah Sam suggested that he would be better off selling the whole property and buying a unit on the coast; Mr Mortimer acknowledged the advantages of that course, but said that he liked living on the land, as did his children. Mr Ah Sam also asked about the tenant, and said he would be able to help get her out of the house quickly, in less than the 90-day notice period.

25. [87]

    According to Mr Mortimer, he was becoming anxious about getting to the hospital in time, when Mr Ah Sam “pulled out his papers”, said there was no need to go to solicitors “at this point” because if they were going to work as partners they had to trust each other, and said “I am putting my trust in you that we will work together and be able to work things out and then we need to go to a solicitor”. He continued, “I’ve done up this agreement and if you sign it you can get her [the tenant] out in 14 days”. Mr Mortimer said, “I can’t read anything”, to which Mr Ah Sam responded, “It’s what you want and what you advertised”. Mr Mortimer said, “I’m not sure, I’ve got this operation today”, and Mr Ah Sam replied, “Trust me, I won’t cheat you, this will get rid of the tenant and it’s what you want. If you let me stay in the caravan I will work with you to get the tenant out. I won’t be able to go to the beach each day for my swim but it will be worth it for you and your family. I know how to do this, I’ve done it before”.

26. [88]

    According to Mr Mortimer, he asked “Can you read it to me, I can’t see or read anything”. Mr Ah Sam appeared to read the agreement, and said “It’s an agreement between you and me, the price for the property is $300,000 as you have advertised, we are going to form a company and work together to improve the property and make this beautiful for your children” (in cross examination, Mr Mortimer maintained that Mr Ah Sam told him the price was $300,000, and that he trusted Mr Ah Sam when he told him that). [52] Mr Mortimer did not respond. Mr Ah Sam continued “It’s just an agreement for us to work things out. It’s just between you and me. I really want to work with you on this and I don’t want you to lose this opportunity. This will help get the tenant out and it will help you get the pension, this will get you out of debt”. Again, Mr Mortimer says that he did not respond. Mr Ah Sam said “You can take off the ad now and you only deal with me and you won’t have other people pestering you and it will just be us working together. I really want to work with you on this project”, and “I don’t want you to make the mistake of getting a buyer that has to have a loan, then you are back where you are now. I am a cash buyer”.

27. [89]

    According to Mr Mortimer, he had only an old pair of glasses, which helped him read large notices, but he could not read a paper without a magnifying glass and torch. The agreement looked to him like straight black lines on the paper. [53] He needed to get to the hospital. He believed that it was just a commitment to continue to negotiate and deal exclusively with Mr Ah Sam, to work out a plan (in cross-examination, Mr Mortimer insisted that Mr Ah Sam said they were signing the agreement to keep negotiating, and that he believed Mr Ah Sam when he told him that). [54]

28. [90]

    According to Mr Mortimer, Mr Ah Sam put a pen in his hand and said, “Just sign, it will be OK and it will all work out”. Mr Ah Sam “put his finger on the paper and put [Mr Mortimer’s] hand with the pen next to his finger so I signed in the right spot. He then directed my hand and said can you date it today, 21 February. I dated it. We did this to two documents” (in cross-examination, Mr Mortimer maintained that Mr Ah Sam had to take his hand and put the pen where he was to sign). [55] Mr Ah Sam said “This is going to make you feel a lot better knowing you can get your tenant out and can get the pension”. Mr Mortimer says that his mind was on getting to the hospital; he thought the document was a statement of intention and that they would have to go to a solicitor to get it formalised (in cross-examination, Mr Mortimer agreed that Mr Ah Sam did not force him to sign the agreement, and that he did so voluntarily, believing what Mr Ah Sam was telling him). [56]

29. [91]

    Mr Ah Sam agreed that the first time he showed Mr Mortimer anything in writing was at the lunch on 21 February 2019, although he maintained that he had previously read the agreement to him, without referring to price, over the telephone. [57] Mr Ah Sam says he brought with him two versions of a proposed contract, and two copies of each version; the only difference between the versions being the price, it being $200,000 in one and $250,000 in the other. Mr Ah Sam says that he first produced the $200,000 document, and that Mr Mortimer said that he needed his glasses to read and took them out, read the document, and said “This is not going to be enough”. He then asked, “So what would you accept?”, and Mr Mortimer said, “I’ll accept 250”, so he then produced the second document (although Mr Mortimer’s counsel put to Mr Ah Sam that he produced two versions of the contract on the day, to which Mr Ah Sam agreed, [58] Mr Mortimer denied that there were two documents with different prices, or that there was any reference to a price other than $300,000. [59] No copy or other objective evidence of the existence of the $200,000 document was ever produced). Mr Ah Sam said, “Are you happy with all that, do you need to see your lawyer”, and Mr Mortimer responded that he had already seen a lawyer. Mr Ah Sam said, “Well, you know, I’m happy to sign it too, and, you know, we can involve lawyers later when we’re ready to settle”.

30. [92]

    Mr Ah Sam says that he signed first and then pushed the document over to Mr Mortimer on the other side of the table, who signed it himself, unaided. [60] Mr Ah Sam denied saying that everything in the document was what Mr Mortimer wanted, [61] agreed that they discussed that he would work on the land, denied that the possibility of him living in the caravan was discussed at that stage, denied saying (at that stage) that he would assist in removing the troublesome tenant, and denied saying to Mr Mortimer that signing the agreement would assist him to get the pension. [62] Mr Ah Sam agreed that he knew that Mr Mortimer did not show the agreement to any lawyer before signing it. [63] He denied pointing to where Mr Mortimer was to sign the agreement, or guiding his hand to that place. [64] In cross-examination, Mr Ah Sam agreed that Mr Mortimer may well have asked him to read the document over to him on 21 February 2019, [65] although elsewhere he said that he was almost sure that he did not, “because I have already. To me why would he ask me again, I’ve already read it to him before we met or I did or gave it to him, he read it himself”. [66] This concession significantly undermines Mr Ah Sam’s evidence that Mr Mortimer read the document himself.

31. [93]

    In his submissions to this Court, Mr Ah Sam repeatedly referred to Mr Mortimer having been able to read the menu at the restaurant. However, before the primary judge the only reference to this was in Mr Ah Sam’s “Defense to Amended Statement of Claim” of 2 November 2020, in which he stated, for the first time (emphasis added):

32. [94]

    The suggestion that Mr Mortimer had read the menu had not been advanced at any earlier point in Mr Ah Sam’s accounts; nor had it been raised with Mr Mortimer in cross-examination, although the cross-examination did challenge his evidence that he was unable to read the agreement on 21 February 2019.

33. [95]

    Mr Mortimer then departed for the hospital, by tram, for his procedure, which was laser surgery, not just a check-up. [67] He stayed in a motel that night, and drove himself home the following day. [68] Mr Mortimer said that although he could not read during their meeting, he could drive “okay”, and although he could not drive immediately after the procedure on 21 February 2019, he rested his eyes that night and drove the next day. He agreed that he had been advised by the hospital not to drive. [69]

34. [96]

    Dr Nathan Walker is an eye specialist, and a Visiting Medical Officer at Gold Coast Hospital. [70] He reported that he had examined Mr Mortimer on 15 February 2019, after Mr Mortimer had been seen by other technicians. Although he has not seen him since, he had access to Mr Mortimer’s medical records. Mr Mortimer suffered from diabetic retinopathy, his retina was bleeding, and he also had cataracts. After some procedures, his vision had improved by November 2019. [71] Based on the various measurements that had been taken, he was of opinion that as at 21 February 2019, Mr Mortimer could well have had difficulty reading. He said, “But certainly in February, certainly on the 21st his vision in his right eye was only 1 line below the top line on an eye chart, that is very poor vision in anyone’s language”. Dr Walker could not say categorically whether Mr Mortimer could read documents on 21 February 2019, but said that there was a correlation between distance vision (which was measured) and reading ability; that typically someone with his level of distance vision would have a moderate reading vision impairment; that Mr Mortimer certainly had reduced vision in both eyes, and would have had patchy vision, with blood in the back of his eyes obscuring some of his vision; and that there was no question his vision would have been impaired. [72]

35. [97]

    The evidence is confusing as to Mr Ah Sam’s attendances at the property after 21 February 2019, and in particular whether he did so on one or more occasions prior to moving into a caravan there on or about 4 March 2019. It seems likely that he did so on two occasions: one when he paid the deposit and made amendments to the contract, and a second when he moved some of his personal property into a container and shed.

36. [98]

    According to Mr Mortimer, it was not until some days after his eye procedure that he was able, with the aid of a magnifying glass, to read the document, and realised that the price in it was not $300,000 but $250,000, that the document also wrongly described the property as 84,000 acres when it was 86 acres, and that it was also incorrect in some other less significant respects. [73] He was angry, and telephoned Mr Ah Sam to tell him he was not happy and that the document was not as he had represented it. In particular, he did not want to wait twelve months to get his money. Mr Ah Sam assured Mr Mortimer that he would get his money, said his money was tied up in investments, and said that he would come out so they could talk. Mr Mortimer told him not to. Mr Ah Sam called back, and when Mr Mortimer said that he did not want to deal with him anymore, he became aggressive and said they had a contract, that he would put a caveat on the property, and that Mr Mortimer would never be able to sell it. Mr Mortimer says that he panicked and allowed Mr Ah Sam to come to the property that afternoon. Mr Mortimer said he felt scared, and that he had been an “idiot” and a “failure”. Whenever Mr Mortimer raised his concerns about the agreement, Mr Ah Sam would forcefully say “You’ve signed it. I’ll sue you and you will lose everything”. However, Mr Mortimer says that Mr Ah Sam then said, pleasantly, “Listen, I’ve got to pay my deposit and just do all the right things so get your agreement out and we will fix it up”. Mr Mortimer complied, and Mr Ah Sam gave him an envelope, which he did not open. Mr Ah Sam wrote “PAID” on the agreement, and Mr Mortimer initialled it. Mr Ah Sam then wrote something else on the agreement, which he could not read, and asked that Mr Mortimer initial it too, which he did. By this time, it was fairly dark. Mr Mortimer’s solicitor later opened the envelope, and found it to contain two $50 notes.

37. [99]

    According to Mr Ah Sam, on 23 February 2019 he telephoned Mr Mortimer to say that he was coming to pay the deposit, and then went to the property and did so, which was recorded and initialled as received on the agreement; and the date for him to occupy in Special Condition 1 was changed from 1 October 2019 to 15 April 2019. [74]

38. [100]

    Mr Mortimer agreed that on about 25 February 2019, Mr Ah Sam telephoned him and said he wanted to bring some things out to the property, and that Mr Mortimer said that he could put them in a container and the shed. [75] Mr Ah Sam arrived at the property with two associates and placed his goods in a shed. He says that Mr Mortimer, who was upset because of a dispute with the tenant, mentioned that Mr Ah Sam might not be able to move into the house as agreed, but said he could move into the caravan earlier. [76]

39. [101]

    Mr Ah Sam returned to the property on or about 4 March 2019, and stayed in the caravan. [77] Mr Mortimer agreed that he allowed Mr Ah Sam to use some dishes, pans, and his bathroom and toilet when he was staying in the caravan. [78] The tenant vacated on 6 March 2019. After the mess she left behind was cleaned up, by Mr Ah Sam with assistance from Mr Mortimer, [79] on 10 March 2019 Mr Ah Sam moved into the second house, where he has continued to reside until now.

40. [102]

    Mr Mortimer says that Mr Ah Sam bullied and threatened him to let him onto the property. [80] Mr Ah Sam denies that, to this point, Mr Mortimer had ever told him not to come onto the property, [81] or expressed any disagreement with the document he had signed, [82] or that he ever threatened to sue Mr Mortimer. [83]

41. [103]

    Mr Ah Sam says that after 15 March 2019, Mr Mortimer started calling him names and assaulting him, which Mr Mortimer denies. [84] Mr Mortimer also denies Mr Ah Sam’s allegation that he hired a “hit man” to run Mr Ah Sam down. [85] According to Mr Mortimer, Mr Ah Sam has taunted him and his family, and refuses to leave. Mr Mortimer says that Mr Ah Sam has made a complete nuisance of himself, and that he has no clue what he is doing on the property: “he is doing lots of stuff but just making a mess”. Mr Ah Sam maintains that his ongoing occupation of the property has been in accordance with his rights and responsibilities under the agreement, and that he has undertaken a large amount of work on the property, especially the second house, by way of improvements. [86]

42. [104]

    At his wife’s insistence, Mr Mortimer consulted a solicitor on 24 April 2019, who said that he would probably seek an apprehended violence order. Meanwhile, Mr Ah Sam made an application for apprehended violence orders against the Mortimers, which were returnable on 29 May 2019. While disputing any need for them, the Mortimers, on advice, consented to interim orders.

43. [105]

    As has been foreshadowed, these proceedings were instituted on 26 June 2019. Relevantly, the Statement of Claim included the assertion that at the meeting at the casino on 21 February 2019, Mr Mortimer could not see clearly, that Mr Ah Sam falsely represented that the price stated in writing was $300,000, as in the Gumtree advertisement, and that Mr Mortimer was unaware of that provision, which was not read to him.

44. [106]

    On 9 August 2019, Mr Mortimer’s solicitor wrote to Mr Ah Sam, asserting that he had a bare licence to occupy and no entitlement to any recompense for any work purportedly done on the property, and that he was required to vacate by 12 August 2019, and also making an offer to attempt to resolve the matter. Mr Ah Sam responded by email on 12 August 2019, indicating he was prepared to engage in discussions, but that he would not vacate the property as it was his home, and that in the event of a court hearing he would represent himself.

45. [107]

    On 13 August 2019, Mr Ah Sam wrote to Mr Mortimer’s solicitor, indicating that he would proceed to court if a solution could not be found, as “God was on his side”, he was in the right, and he had had successes in litigation against the US Government and the “Hawaii State”. He warned that Mr Mortimer would be well advised to withdraw his Supreme Court action, and that he would be seeking compensation of $50,000 for his time and money in making the improvements to the property. He also suggested that he might buy Mr Mortimer’s 50% interest, observing that “With his health problems, may be best to sell now before it is too late”. Discussions between the parties followed, but no resolution could be found. On 15 August 2019, Mr Mortimer’s solicitor reiterated that Mr Ah Sam was there under a bare licence and that he was not entitled to any compensation.

46. [108]

    The primary judge summarised Mr Mortimer’s case on the issue of unconscionability as follows: [87]

47. [109]

    His Honour summarised Mr Ah Sam’s case relevantly as follows: [88]

48. [110]

    His Honour expressed himself to be satisfied that the agreement was procured by unconscionable conduct on the part of Mr Ah Sam. [89] His Honour elaborated (emphasis added): [90]

49. [111]

    As his Honour found, [91] the terms of the agreement were improvident from Mr Mortimer’s perspective: in effect, for a deposit of only $100, Mr Ah Sam was allowed a year to pay the purchase price, and enjoyment of the property, including rent-free occupation of the second house, in the meantime. That improvidence must have been apparent to Mr Ah Sam, as a not inexperienced businessman. [92] This was of considerable significance in circumstances where it is common ground that Mr Mortimer’s purpose was to relieve financial pressure – a purpose which would hardly be achieved if he were not to be paid for another year. These disadvantageous (to Mr Mortimer) terms were not included in the Gumtree advertisement. The only evidence that they were ever discussed is Mr Ah Sam’s disputed account, and even his account does not attribute to Mr Mortimer any question of comment about them.

50. [112]

    However, while the improvidence of a transaction may operate as a red flag, it does not of itself make a case of unconscionability. In my view, the critical question is whether, to Mr Ah Sam’s knowledge on 21 February 2019, Mr Mortimer’s vision was materially impaired, with the consequence that he did not know that the price stated in the document he signed was not $300,000, that settlement was deferred for twelve months, that the deposit was merely nominal, but that Mr Ah Sam would be entitled to occupation in the meantime, free of any occupation fee or interest. Otherwise, I doubt that the combination of Mr Mortimer’s health and financial circumstances amounted to a sufficient “special disadvantage”. However, if by reason of impairment of vision, to Mr Ah Sam’s knowledge, Mr Mortimer could not ascertain that the price stated was not $300,000 as he believed, and was unaware of the other disadvantageous terms, then that would amply suffice to constitute a special disadvantage which affected his ability to safeguard his own interests.

51. [113]

    His Honour’s findings, set out above, include findings that:

    1. (1)

       Mr Mortimer had poor eyesight, and his vision was compromised at the meeting at the casino on 21 February 2019. [93] This involved acceptance of Mr Mortimer’s evidence, supported by Dr Walker’s evidence;

    2. (2)

       Mr Ah Sam knew that Mr Mortimer was having eye surgery because he could not see properly or read anything and had bleeding behind the eyes. [94] This involved acceptance of Mr Mortimer’s account of their conversations during the inspection on 17 February 2019, and rejection of Mr Ah Sam’s evidence that if these things were said, he was not paying attention; and

    3. (3)

       The relevant terms of the agreement had not been discussed or negotiated before the meeting at the casino. [95]

52. [114]

    His Honour did not expressly find that Mr Ah Sam represented that the price in the contract was $300,000. However, in light of his Honour’s reference to the plaintiff’s submission that “the defendant knew of his weaknesses in health and financial status and gained an advantageous transaction as a result, having purported to read the agreement to the plaintiff but in terms that did not resemble the original Gumtree advertisement or the document the plaintiff actually signed”, the general acceptance of Mr Mortimer’s evidence, the credit findings adverse to Mr Ah Sam, and most importantly the fact that impaired vision was relevant only if Mr Mortimer did not know what was in the agreement, it should be accepted that his Honour’s findings include that Mr Mortimer did not know that the document did not state the price to be $250,000 and contained the other disadvantageous terms.

53. [115]

    On these questions the evidence was largely, though not entirely, the word of Mr Mortimer against that of Mr Ah Sam, and his Honour plainly preferred the former. His Honour’s rejection of Mr Ah Sam’s evidence was substantially based on demeanour: his Honour expressly referred, in this context, to “having observed him give his evidence”. [96] These are therefore findings of fact made by a trial judge after hearing and seeing the witnesses, and expressly based in part on the judge’s observations of Mr Ah Sam. In those circumstances, the task facing the appellant is a heavy one: it must appear that those findings are “glaringly improbable”, “contrary to compelling inferences”, or inconsistent with “incontrovertible facts or uncontested testimony”. The principles were summarised by the High Court in Queensland v Masson: [97]

54. [116]

    Mr Ah Sam submitted that the crucial findings were contradicted by:

    1. (1)

       the fact that Mr Mortimer was able to accompany him on an extensive physical inspection of the property on 17 February 2019;

    2. (2)

       the consistent and accurate positioning of Mr Mortimer’s signatures and dates on each copy of the agreement document;

    3. (3)

       the (asserted) fact that Mr Mortimer could read a menu at the restaurant on 21 February 2019; and

    4. (4)

       the fact that Mr Mortimer was able to drive himself from his home to the Gold Coast on the morning of 21 February 2019, and home the following day, and later obtain a renewal of his driving licence.

55. [117]

    However, Mr Mortimer’s ability to walk around the property on an inspection and point out its features says little about his ability to read print on paper. As to the positioning of his signatures, Mr Mortimer’s evidence was that he was guided as to where to sign and date the two copies of the document. Examination of both copies reveals a slightly different position and slant of Mr Mortimer’s signature, but in both cases an apparently close relationship with the line on which he was supposed to sign. This is not glaringly improbable if, as he says, he was guided where to sign and date the documents, and he could see the appearance of black lines. Mr Ah Sam’s repeated submission that Mr Mortimer was able to read the menu at the restaurant was supported only by the assertion to that effect in his updated “Defense to Amended Statement of Claim” of 2 November 2020, to which Mr Mortimer had had no opportunity to respond, and which had not been put to him in cross-examination. And notwithstanding Dr Walker’s explanation that there is a relationship between distant vision and reading vision, it does not follow from the circumstance that he was able to drive (if imprudently), that he was also able to read up close. Dr Walker said that Mr Mortimer’s vision as at 21 February 2019 was below the criteria for a driving licence, though it improved subsequently with treatment. In those circumstances, Mr Mortimer’s reckless decision to drive himself is not inconsistent with his being unable to read the document with which he was presented on 21 February 2019; nor is the subsequent improvement in his vision following treatment.

56. [118]

    His Honour’s findings derive some support from Dr Walker’s evidence, which while inconclusive, points to Mr Mortimer’s reading vision being compromised as at 21 February 2019. They also derive support from the undisputed fact that Mr Ah Sam knew, from the conversation in the course of the inspection on 17 February 2019, that Mr Mortimer’s eyesight was poor, and that he was that day coming to the Gold Coast for a medical appointment in connection with his eye; while Mr Ah Sam claimed that he understood it merely to be a check-up, that is contradicted by the hospital records, which show that it was for laser surgery. Further support is provided by Mr Ah Sam’s concession that at the casino, Mr Mortimer may well have asked him to read out the agreement. And they are supported also by the circumstance that Mr Mortimer did not point out or correct the erroneous descriptions in the agreement (including as to area), which he subsequently noticed once he was able to read it.

57. [119]

    It might be said that, even accepting that Mr Ah Sam knew that Mr Mortimer’s vision was compromised, it was a large risk to prepare documentation on the assumption that he would be entirely unable to read it and discern the provisions that had been included in it. However, that may not have been his original plan, but an opportunity that presented when it became apparent, at the casino, just how defective Mr Mortimer’s vision was.

58. [120]

    Moreover, it seems incredible that a vendor such as Mr Mortimer would express himself to be happy with an agreement when he did not know the price, as Mr Ah Sam suggests was the case when he allegedly read the agreement over to him on the telephone. And given that Mr Mortimer’s motive for the transaction was to provide funds which he could apply to relieve the financial pressure he was experiencing, it would be remarkable – if he was aware of the amount of the deposit and the timeframe for settlement – that he would not at least have questioned those terms; yet not even Mr Ah Sam suggests that he did so. It also seems extraordinary that of the two documents allegedly prepared in advance by Mr Ah Sam, neither of which reflected the advertised asking price, one happened to coincide with the price which Mr Mortimer allegedly said he would accept after rejecting the amount in the first.

59. [121]

    For those reasons, in my view it cannot be said that his Honour’s essential findings were “glaringly improbable”, “contrary to compelling inferences”, or inconsistent with “incontrovertible facts or uncontested testimony”. Indeed, more glaring improbabilities were associated with Mr Ah Sam’s version, including that Mr Mortimer without question expressed himself to be happy with an agreement, when he did not know the price, and when settlement was to be deferred for a year, with a deposit of only $100.

60. [122]

    It follows that in my opinion it has not been established that his Honour was in error in concluding that the agreement was procured by unconscionable conduct on the part of Mr Ah Sam, and was therefore voidable in equity.

Specific performance

1. [123]

   Mr Mortimer’s alternative case was that if there was a binding agreement, then Mr Ah Sam was in breach of essential terms of the agreement because he had not paid the amounts due under it (being the “further deposit” of $12,400 payable within 30 days before settlement, and the balance purchase money payable on settlement), and had thereby repudiated the contract, which Mr Mortimer terminated by an email sent by his solicitor to Mr Ah Sam on 16 March 2020. Having concluded that the agreement was void for unconscionability, his Honour did not have to, and did not, resolve this issue. However, the status of the contract is relevant to Mr Ah Sam’s appeal from his Honour’s dismissal of his cross-claim for specific performance.

2. [124]

   It is not in dispute that Mr Ah Sam did not pay the “further deposit” by 30 January 2020 or at all, nor the balance of the purchase price by 1 March 2020. The email sent to the defendant by the plaintiff’s solicitor on 16 March 2020 was relevantly as follows:

3. [125]

   The plaintiff’s Amended Statement of Claim, of 12 June 2020 (filed 16 June 2020), relevantly inserted the following claims for relief:

4. [126]

   In the pleading, the following relevant paragraphs were inserted:

5. [127]

   The email of 16 March 2020 was equivocal, and somewhat disingenuous. At that time, Mr Mortimer was disputing that there was a binding agreement, and was seeking to have it avoided for unconscionability. If, contrary to his position, there was a binding and enforceable agreement, then from the moment the Statement of Claim was filed on 26 June 2019, he was evincing an intention not to be bound by it. The institution of proceedings for its avoidance was, on that hypothesis, repudiatory conduct on his part.

6. [128]

   The 16 March 2020 email did not call on Mr Ah Sam to perform. No Notice to Complete was given. Mr Mortimer had no intention of settling on 1 March 2020, and on the hypothesis that there was a binding contract, the purchaser’s obligation to pay the balance purchase price was interdependent with the vendor’s obligation to transfer title; in circumstances where Mr Mortimer was contending that he was not bound to do so, he could not insist upon payment of the balance purchase price and could not have therefore given a valid Notice to Complete. Even if, ordinarily, non-payment of a deposit entitles the vendor to rescind out of hand without notice, [98] it is not self-evident that such a principle applies where, as here, an initial, albeit nominal, contractual deposit has been paid, time for payment of the “further deposit” was fixed by reference to the time for settlement, and the vendor was not prepared to settle.

7. [129]

   In any event, the email did not even purport to terminate the contract. It alleged breach, but did not convey acceptance of a repudiation, let alone state that the plaintiff elected to terminate the contract. In my judgment, on the hypothesis that the agreement was not affected by unconscionability, it remained on foot following 16 March 2020. There being no evidence of any other purported termination or discharge, it remained on foot and unperformed at the time of the hearing before the primary judge.

8. [130]

   The primary judge held that Mr Ah Sam was not, at the date of the trial, able to pay the $12,400, or the balance of the purchase money. His Honour relied on answers given by Mr Ah Sam to questions posed by his Honour during his cross-examination: [99]

9. [131]

   His Honour pointed out that there was no evidence to show what, if any, assets Mr Ah Sam owned or controlled. Subsequently, Mr Ah Sam forwarded material said to evidence his assets, of which his Honour said: [100]

10. [132]

    Mr Ah Sam complained that his Honour disregarded evidence of his ownership of real property in Hawaii. Mr Ah Sam provided to this Court, by email, a number of images, which he described as “photos of Hawaii farm and some USA properties, I owned”. It is entirely unclear as to whether that is an assertion of current or past ownership, and of all or any of the properties. No document evidencing his title to any real property, let alone its value, was provided, nor does any appear to have been provided to the primary judge. It is not apparent that there was any material error in his Honour’s statement that “there is no real property disclosed as such”.

11. [133]

    In any event, whether Mr Ah Sam has some interest in real property in Hawaii, Florida, or elsewhere is not material. What is clear is that on his own evidence, Mr Ah Sam was not, at the time of the hearing at first instance, ready, willing, and able to complete the contract. At the very least, he required a considerable period of time to realise assets if he were to be in a position to complete the purchase. In those circumstances, he was not entitled to a decree for specific performance.

12. [134]

    On the relevant hypothesis – that the contract was not voidable for unconscionability – then, as at the hearing at first instance, it remained on foot. Mr Mortimer had not terminated it, but Mr Ah Sam was not entitled to specific performance. It remained open for Mr Mortimer to bring matters to a head, if he wished to do so, by giving a Notice to Complete – but for him to do so would have involved electing to affirm a contract which he was impugning in equity for unconscionability.

Compensation

1. [135]

   The question of compensation arises only if Mr Ah Sam fails on unconscionability: if the agreement stands, then he was performing work on a property of which he was a purchaser, as the agreement contemplated he would, and no question of compensation would arise. If, however, the agreement is held void for unconscionability, as in my view it rightly was, then there is a question as to whether he is entitled to compensation for his time, labour, and expenditure on the property in the interim.

2. [136]

   As the primary judge recognised, [101] referring to what had been said by Deane J in Amadio, [102] an order setting aside a transaction on the ground of unconscionability will, in an appropriate case, be made conditional upon the party obtaining relief doing equity. In this case, Mr Ah Sam claimed that he had expended time, money, and labour on the property. As to this, his Honour said:

3. [137]

   I would be prepared to accept that, in principle, “doing equity” required Mr Mortimer, as a condition of relief, to compensate Mr Ah Sam for any benefit which Mr Mortimer had gained under the impugned transaction. That is not necessarily the same as compensating Mr Ah Sam for all his expenditure; in the context of an unconscionable transaction, equity does not require that the defendant be compensated for all expenditure referable to the transaction, though it might require compensation to the extent that the plaintiff has benefitted from it.

4. [138]

   There was, as the primary judge said, scant evidence of Mr Ah Sam’s expenditure. Before us he referred to images, at least some of which he had provided to the primary judge, showing improvements he said he had made to the house which he occupies, the nursery, and the gardens, as well as the removal of farm rubbish. However, unexplained by further evidence, the images are of very limited evidentiary value. Moreover, there was no evidence of the critical matter, which was the extent to which his labour and expenditure had enhanced the value of the property, so as to confer a benefit on Mr Mortimer.

5. [139]

   Further, as the primary judge observed, there is the offsetting factor that Mr Ah Sam has since March 2019 had, and continues to enjoy, use of the property and occupation of the second house on it, rent free. In a somewhat similar context in Beaton v McDivitt, [103] Young J (as the later Chief Judge and Judge of Appeal then was) said, “In this case, of course, there would be a lot to be said for the proposition that rent and rate free occupation of this land for seven years has already satisfied any equity that the plaintiff may have had”.

6. [140]

   In my view there was no error in his Honour’s conclusion that Mr Ah Sam had not shown that any amount should be payable to him by way of compensation in the context of the agreement being avoided for unconscionability.

Conclusion

1. [141]

   My conclusions may be summarised as follows:

2. [142]

   The primary judge did not err in declining an adjournment and proceeding to take the evidence on 14 and 15 September 2020.

3. [143]

   The primary judge did not err in requiring and permitting the plaintiff to further amend the Statement of Claim to bring it into conformity with the case that had been conducted, after the evidence had closed, and the amendment occasioned Mr Ah Sam no material prejudice.

4. [144]

   Although the conduct of proceedings remotely, using imperfect technology, presented challenges for all parties, it is not apparent that it operated prejudicially to the appellant, nor that it resulted in any injustice to him.

5. [145]

   The matters referred to by Mr Ah Sam that amount to complaints that in his Honour’s final judgment the primary judge rejected Mr Ah Sam’s evidence and made strong adverse findings about him do not suffice to demonstrate bias, while the complaints relating to matters that occurred during the hearing are not such that a fair-minded lay observer might reasonably have apprehended that the primary judge might not bring an impartial mind to bear on the resolution of the proceedings.

6. [146]

   It has not been established that the primary judge was in error in concluding that the agreement was procured by unconscionable conduct on the part of Mr Ah Sam and was therefore voidable in equity. His Honour’s conclusions depended on findings of disputed facts, expressly based at least in part on demeanour, where the evidence was largely word against word, given by witnesses whom his Honour heard and saw.

7. [147]

   There was no error in his Honour’s conclusion that Mr Ah Sam had not shown that any amount should be payable to him by way of compensation in the context of the agreement being avoided for unconscionability.

8. [148]

   It follows that in my opinion the appeal should be dismissed, with costs. With that, the stay of execution of the writ for possession will lapse.