Kennedy v Fenton [2016] NZHC 2927 (5 December 2016)

Last Updated: 16 December 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-986 [2016] NZHC 2927

BETWEEN	JOHN KENNEDY AND CHRISTINE KENNEDY AS TRUSTEES OF THE KYLIE KENNEDY TRUST Plaintiffs
AND	COLIN FRANCIS FENTON Defendant

Hearing:	26 September 2016
Appearances:	N W Woods & L Johnson for Plaintiffs R P Webber for Defendant
Judgment:	5 December 2016

_{JUDGMENT OF PAUL DAVISON J}

This judgment was delivered by me on 5 December 2016 at 3.30pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Rob Webber & Associates, Auckland

Rice Craig, Auckland

KENNEDY v FENTON [2016] NZHC 2927 [5 December 2016]

[1] This is a summary judgment application. John and Christine Kennedy (the Kennedys), as trustees of the purchaser, seek specific performance of an agreement for sale and purchase of a residential property in Waiuku.

[2] The vendor of the property, Mr Fenton, says summary judgment should not be granted because he has an arguable defence. He denies having entered into the sale and purchase agreement and says that, even if he did, the agreement is voidable because he lacked contractual capacity or, alternatively, the agreement should be set aside as it was an unconscionable bargain.

Background

[3] Mr Fenton is 81 years old.

[4] He listed his residential property for sale with the real estate agents Barfoot & Thompson Ltd (Barfoots) in November 2015. Ms Lethbridge was the salesperson responsible for the marketing and proposed sale of the property.

[5] The Kennedys viewed the property at an open home held on 16 and 17

January 2016. As trustees of the Kylie Kennedy Trust, both John and Christine Kennedy initialled an offer to purchase for $485,000 (conditional upon finance) in a sale and purchase agreement (the Agreement) which Ms Lethbridge drew up.

[6] There followed a series of offers and counter-offers made by both parties. The Kennedys say that on Monday 18 January 2016, they accepted Mr Fenton’s already initialled counter offer to sell the property for $510,000. Noting the dispute as to whether the Agreement was in fact entered into, I will return to this point later.

[7] Settlement, according to the terms of the Agreement, was due to take place on

7 March 2016.

[8] The following day, Tuesday 19 January, the Kennedys arranged for a builder to inspect the property. Mrs Kennedy says in her affidavit of 4 May 2016, that Mr Fenton was at the property at the time of the builder’s visit “and was quite happy for the builder to do an inspection.” A LIM report was also obtained that day from Mr

Fenton’s solicitors, and Ms Lethbridge says that Mr Fenton had contacted his

solicitors to arrange for the report to be made available.

[9] On 21 January, Mr Fenton telephoned Ms Lethbridge and told her that he had just remembered that he had to pay for the log fire. He asked her if there was any way he could make the Kennedys pay for it. Ms Lethbridge says she told him that she did not think he could make the Kennedys pay, as the log fire was a fixture and he had already mentioned to Mr Kennedy that a new log fire had been installed.

[10] Then, on 22 January, Mr Fenton’s solicitors, Martelli McKegg, wrote to the

Kennedys’ solicitors saying:

We are in receipt of the above agreement for sale and purchase and confirm we act for the vendor. We note you act for the purchaser.

The agreement is conditional upon your client obtaining finance by 25

January 2016.

Although the agreement remains conditional we believe it is prudent to put you on notice that our client is of the view that the agreement should not be enforceable. Our client is recovering from surgery and is under heavy medication which affects his mental capacity and decision making. Our client has advised us that he was coerced by the agent into signing the agreement without first having the opportunity to seek legal advice. If he had had the time to consider the offer and seek advice he would not have signed it.

Our client will make a formal complaint to the Real Estate Institute of New Zealand regarding the agent’s conduct. In the meantime we seek your advice as to whether or not your client will agree to the cancellation of the agreement on the basis that the vendor had diminished capacity at the time of signing.

[11] The Kennedys’ finance application for the purchase was approved by their bank on Friday 22 January, and the Agreement thereupon became unconditional. The Kennedys paid the purchaser’s deposit of $25,500 to Barfoots, as the vendor’s agent, on 25 January.

[12] The Kennedys’ solicitors, Blackwood Hawkins Law (Blackwood Hawkins),

responded to Martelli McKegg, by letter dated 25 January:

... [the Kennedys] confirm that they have on no less than three occasions had discussions with Mr Fenton during the course of visiting the property and he appeared to have excellent mental capacity. The agent has also

confirmed to our clients that there appeared to be no issue regarding your client’s mental capacity during the negotiation of the contract, and accordingly our clients are not agreeable to releasing your client from the contract. We are also pleased to confirm that the finance condition is satisfied and the contract is unconditional.

[13] Thereafter, although the respective solicitors subsequently exchanged correspondence in anticipation of settlement taking place, nothing more was said by either Mr Fenton or his solicitors about whether the Agreement was enforceable or not, until after the settlement date had passed.

[14] Ms Lethbridge says that on 1 February 2016, Mr Fenton telephoned her saying he wished to delay the settlement date because he could not find a suitable property to relocate himself to. Accordingly, Ms Lethbridge prepared a variation of the Agreement, amending the date for settlement from 7 March 2016 to 24 March

2016, and presented it to Mr Fenton who signed it. She adds:

When Mr Fenton signed the extension request he produced a list of debts and expenses that he was going to pay from the $510,000.00 purchase price of the Property. This included the abovementioned log fire. Until that point Mr Fenton appeared very happy with everything we had done. It was on producing his list of debts that his attitude began to change and he became disappointed with the purchase price.

[15] On 3 February, the Kennedys advised that as their daughter had already given notice to terminate her rented premises, they would not agree to an extension of the settlement date. Then, as Ms Lethbridge describes:

I phoned Mr Fenton and told him the Kennedys would not agree to the variation. Mr Fenton immediately shouted down the phone that all hell would break lose [sic] and slammed down the phone.

[16] On 18 February, Martelli McKegg wrote to Blackwood Hawkins saying:

In anticipation of settlement on 7 March 2016, we attach:

1. Our settlement statement; and

2. A note of our settlement requirements (for settlement by facsimile) by bank cheque or using the Same Day Cleared Payment Service offered by your bank.

...

Please forward your notices of sale and advise the e-dealing number.

[17] The attached settlement statement was addressed to “J & C Kennedy”, and described Mr Fenton as the “vendor”. The settlement statement set out the amount required from the Kennedys to settle, as at 7 March 2016, accounted for receipt of the deposit of $25,000, and included an adjustment for rates already paid by the “vendor”. The settlement requirements referred to in Martelli McKegg’s letter dated

18 February 2016, were set out in a document attached to their letter which specified, the required “methods of settlement”; the procedure if a bank cheque was to be tendered in settlement; and the vendor’s requirements if the same-day cleared funds payment system was to be employed to pay the purchase price. This document also included a paragraph entitled “Failure to settle”, which stated that, should the purchaser fail to effect settlement by 4 pm on the settlement day, strictly in accordance with the requirements set out in the document, they reserved the right, in addition to other remedies available, to charge interest for late settlement.

[18] Clearly, the preparation and sending of the settlement statement was consistent with Mr Fenton treating the Agreement as a binding and enforceable contract.

[19] The Kennedys prepared for settlement on 7 March. They completed loan documentation from their bank for the finance required to pay the purchase price; executed the necessary client authority and instruction documentation authorising their solicitors to attend to settlement and registration of a transfer of the property into their names as trustees; arranged insurance cover on the property to commence from 7 March 2016; and drew down the loan funds from their bank into their solicitor’s trust account.

[20] On 7 March, Barfoots contacted Mr Fenton to request his approval for a pre- settlement inspection of the property as provided for in the Agreement. Mr Fenton declined the request.

[21] Also on 7 March, Blackwood Hawkins forwarded a facsimile to Martelli McKegg, advising that the Kennedys were ready, able, and willing to settle as per the Agreement. Mr Fenton failed to settle on 7 March, and on 8 March 2016, Blackwood Hawkins wrote to Martelli McKegg enclosing a notice recording the

vendor’s failure to settle, and requiring the vendor to settle the sale within 12 working days after the date of the service of the notice, time being of the essence. The notice further stated that if settlement was not effected in accordance with the terms of the notice, the purchaser may exercise the remedies under the Agreement, “including suing the Vendor for specific performance or cancelling the Agreement.”

[22] On 13 March, Mr Fenton made a visit to the Kennedys at their residence. He had not made any prior arrangement to visit them. He provided them with a code compliance certificate, issued by the Auckland Council on 19 November 2015, relating to the wood burner fireplace which had been installed at the property. This certificate was one of the Kennedys’ solicitors’ requirements on settlement, and had been referred to in their letter of 8 March. In his affidavit, Mr Kennedy states that when handing them the certificate, Mr Fenton told them that the fireplace was now legally theirs, and acknowledged that the property now belonged to them. Mr Kennedy’s account of this meeting is described by him in his affidavits sworn on 1

August 2016, and is not disputed or addressed in the second or third affidavits of Mr

Fenton sworn on 9 August 2016 and 19 September 2016.

[23] The Kennedys’ position is clear. They wish to enforce the Agreement, and

seek an order for specific performance. These proceedings were filed on 4 May

2016.¹

Mr Fenton’s position

[24] Mr Fenton, in opposition, says the Agreement is not enforceable because he did not initial the Agreement at $510,000 and, in any event:

(a) the Agreement is voidable because:

(i) the effect of the medication he was taking at the time meant that he lacked contractual capacity, and the Kennedys had

_{actual or constructive knowledge of his incapacity; and}

¹ An amended statement of claim was filed on 9 September 2016.

(ii) he had no opportunity to receive independent legal advice.

(b) Alternatively, the Agreement should be set aside because it was entered into as a result of an unconscionable bargain.

[25] Mr Fenton says that originally he had no intention to sell his property, but had agreed to list it with Barfoots for sale as a result of having been “pursued” or “targeted” by the real estate agents, and being told that they could get him “a very good price for it”. He says that when he signed the agency agreement with Barfoots in early November 2015, the listing price was $575,000.

[26] He says he does not recall agreeing to the purchase price of $510,000 on 18

January because:

(a) “All of the signing and countersigning of the agreement of which I am

aware occurred on Sunday 17 January”; and

(b) “The contract as now presented shows the purchase price as $510,000, being the only one of five prices which is not crossed out. It is also the only figure which does not have my initials alongside it.”

[27] In his affidavits of 15 July and 9 August 2016, Mr Fenton explains that he has suffered from chronic pain syndrome, peripheral neuropathy, and severe chronic depression for many years. He further explains that he had suffered a back injury many years ago which led to him having a lengthy battle with ACC to secure accident compensation, which had been enormously stressful. He says that to alleviate the pain he had suffered for many years, he underwent spinal surgery on 8

December 2015, and was discharged from hospital several days prior to Christmas Day 2015. Following his operation, he says he was on large doses of pain killing medication which affected his mental capacity. He says the real estate agents were well aware of all of this. He says his memory now is “patchy” but that:

I can confirm that I have experienced all of the described effects. In the days around 17 and 18 January I was in a state of extreme anxiety. I was unable to sleep for very long. If I went to sleep I experienced hallucinations

including flash backs to the 1986 attempted suicide event. I told the real estate agents about this.

I believe it is more than likely the purchasers were actually aware that I had a number of medical and psychological problems, that I was taking very strong opiate drugs which at times drastically affected my level of awareness and ability to comprehend. I had told John Kennedy about the drugs and the severely reduced awareness caused.

...

One of the effects of the drugs is that at times I feel childlike and will accept direction or instruction from anyone who appears to be in authority. I think the agents exploited this. I also believe the [Kennedys] would have been aware, not necessarily of the full detail given to the agents, but in general terms, that I was not at all times fully competent.

[28] In response to Mr Fenton’s claim that he had told Mr Kennedy about his medical condition and the heavy medication he was taking, Mr Kennedy says that he and Mrs Kennedy had no knowledge of Mr Fenton’s medication or mental problems at any stage of the negotiations. He confirms that they knew that Mr Fenton had had a back operation, but says that Mr Fenton never told him anything about his medication or mental state, and that Mr Fenton had never given any indication of psychological or pain relief problems.

Principles for giving summary judgment

[29] Rule 12.2(1) of the High Court Rules provides:

12.2 Judgment when there is no defence or when no cause of action can succeed

(1) The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.

[30] The principles are well settled, and are summarised in this way:²

The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1NZLR at 3 (CA). The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: Maclean v Stewart (1997) 11

² See Krukziener v Hanover Finance Ltd [2008] NZCA 187 at [26].

PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331 at 341(PC). In the end the Court's assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).

Have the Kennedys satisfied the Court that Mr Fenton has no defence?

Defence: there is no enforceable agreement

[31] Mr Fenton says the Agreement is unenforceable because he has no recollection of signing (or initialling) the Agreement to sell his property at a price of

$510,000 and further, that the figure of $510,000 written into the Agreement, is the only figure that does not have his initials.

[32] The first point can be dealt with briefly. The fact that he has, or may have, no recollection of signing the Agreement does not mean that he did not in fact sign it at the time. That is particularly so in circumstances where Mr Fenton says that his memory is “patchy”.

[33] The second point is also without factual foundation, in my view, as Mr Fenton’s initials are written three times on that part of the Agreement headed “Payment of Purchase Price”, sufficiently adjacent to the handwritten figure of

$510,000. The placement by Mr Fenton of his initials on the Agreement three times is consistent with the sequence of offer and counter-offers that preceded the final figure of $510,000 being reached.

[34] As well as the fact that his initials appear on the Agreement in a place that corresponds with the figure of $510,000, there is the evidence of Ms Lethbridge describing Mr Fenton’s counter-signing of the Agreement to sell the property for

$510,000.

[35] Ms Lethbridge says that as of Monday 18 January 2016, in response to Mr

Fenton’s signed counter-offer of $525,000, the Kennedys had made what they said

would be their highest offer of $505,000. This had resulted in the $525,000 figure being crossed out and replaced with the handwritten figure of $505,000 which both Mr and Mrs Kennedy had initialled. Ms Lethbridge says she informed Mr Fenton of this offer by way of a telephone message she left for him. Then, at around 3 pm that afternoon, she visited Mr Fenton at his home and had a lengthy conversation with him about the house and several concerns that had been expressed by the Kennedys that affected the amount they were prepared to offer. After discussions, they had advised Ms Lethbridge that if Mr Fenton was to sign the Agreement at $510,000 then they would sign. Ms Lethbridge says that on that basis, she returned to see Mr Fenton, and explained that the Kennedys would not go higher, but would purchase and sign the Agreement at $510,000 if Mr Fenton had himself already signed at that price.

[36] Ms Lethbridge states:

I returned to see Mr Fenton at 4:30 pm with Peter and explained that the buyer was not going any higher. Mr Fenton said he really wanted the property sold and signed the Agreement at $510,000. At no stage did Peter or myself ever pressure Mr Fenton into selling the Property.

[37] Furthermore, Mr Fenton’s conduct following the date of the Agreement is entirely consistent with him proceeding on the basis of having knowingly signed the Agreement at $510,000. For example, in an attempt to cancel the Agreement, his solicitors wrote to the Kennedys’ solicitors, where they raised allegations of mental incapacity and a lack of opportunity to obtain independent legal advice. Not only was there no mention of Mr Fenton not having signed the Agreement, but there was an assertion that “he would not have signed” the Agreement if he had time to consider the offer. Furthermore, his request to cancel on the grounds that he had been taking medication that affected his mental capacity at the time he entered into the agreement, must be taken as an acknowledgment on Mr Fenton’s part that the Agreement was otherwise to be considered valid and binding. Other examples of affirmation, include:

(a) After being notified that the Kennedys would not cancel the

Agreement and that the Agreement became unconditional, Mr

Fenton’s solicitors proceeded to prepare and send a settlement statement to the Kennedys’ solicitors on 18 February 2016.

(b) Mr Fenton visited the Kennedys’ address on 13 March 2016 and

handed to them the code compliance certificate, dated 19 November

2015, authorising the installation of the fireplace.

(c) Mr Fenton’s solicitors requested that the settlement date be deferred.

[38] Having regard to the presence of Mr Fenton’s handwritten initials on the Agreement, and the evidence of Ms Lethbridge, coupled with his subsequent conduct by which he effectively affirmed the Agreement being signed by him at $510,000, I consider that Mr Fenton’s claim not to have signed or initialled the Agreement to sell at $510,000 cannot be seriously or credibly argued.

[39] It appears that it was only after it became apparent to Mr Fenton that he was not able to find a new property to live in before the settlement date was due to take place, that he changed his mind about the sale or the sale price. It was only then, that his claim not to have signed the Agreement was raised for the first time.

[40] I note that Mr Fenton himself, in his affidavit evidence, appears to accept that he signed the Agreement at $510,000; his complaint being that he was unfit to do so. For example, he says:

(a) “I did not intend to sell the Waiuku property” (the focus being, that he

lacked capacity);

(b) “At the time the contract was signed... I was still taking considerable regular quantities of medication”;

(c) “On 17 January 2016, the day before the contract was signed, the

agent collected from Waiuku pharmacy my prescription...”

[41] Accordingly, I consider that there is no real question to be tried in respect of the Kennedys’ claim that Mr Fenton had entered into the Agreement for the sale price of $510,000.

Defence: the agreement is voidable because of mental incapacity

[42] To establish mental capacity, Mr Fenton would have to show that:³

(a) he was of unsound mind;

(b) the Kennedys knew of the unsoundness of mind when the Agreement was entered into.

[43] Mr Fenton does not say exactly what he is relying on to support his submission that he is or was of unsound mind. As I understand it, he is relying on the effects of the medication he was taking either at the time of the surgery or as “a consequence of the drugs I have been taking for several years”. If that is correct, then reference to his “psychological problems”, going back to the 1980s, is irrelevant.

[44] Mr Fenton has exhibited a number of documents to his first affidavit listing “some possible side effects” of the medication he is taking, without particularising or identifying the ones he has experienced (though he has underlined some). They include dizziness, insomnia and blurred vision. Other than through his own assertions that “I can confirm that I have experienced all of the described effects”, Mr Fenton has not provided any independent evidence to establish and identify the side-effects he claims to have experienced. He has exhibited a letter from a Dr March, dated 4 July 2016, wherein she confirms that the medication he is taking “can cause memory impairment and confusion, especially in the elderly. He also has depression and is on an antidepressant.” Despite being his doctor for twelve years, Ms March did not express any opinion as to whether he was actually suffering from memory loss or “confusion” at the time when the agreement was negotiated and

_{entered into.}

³ O’Connor v Hart [1985] 1 NZLR 159 (PC).

[45] However, assuming it could be shown that Mr Fenton did suffer from any or all of the side-effects listed in the exhibits and/or those described by Dr March, this would not necessarily mean that he was of unsound mind at the time of entering into the Agreement.

[46] The test for determining whether a person is of unsound mind was set out by the Court of Appeal in Scott v Wise, wherein it was held that:⁴

The law requires in a case such as this that a person entering into it is able to understand the nature of the transaction when it is explained to them. It follows that the capacity required is related to the transaction...

[47] I am not satisfied that the side-effects of Mr Fenton’s medication operate at such a level so as to exclude him from understanding the nature of the transaction or what was explained to him. For example, the medication warnings include: “Driving/Using machines: Take care – may make you drowsy”. If, notwithstanding taking the medication, he was nevertheless considered fit to drive, then the side- effects of the medication on their own could not support his contention that taking the medication interfered with his ability to make decisions and interact with his surroundings.

[48] In any event, the side-effects as described appear to be fleeting in nature (for example, blurred vision or drowsiness). Whereas the evidence here, is that Mr Fenton had time to reflect and decide on making the offer over the course of the weekend prior to entering into the Agreement.

[49] Mr Fenton’s contention that he was experiencing “child-like behaviour”, such as following directions without question, at the time of entering into the Agreement, is not supported by the description of side-effects in any of the exhibits he has provided. Apart from Mr Fenton’s assertion that he was experiencing child-like behaviour, he has not described any specific instance of this occurring in the course of his dealings over the sale of his property or more generally.

[50] Even if it could be shown that Mr Fenton was suffering from the side-effects of medication that affected his mental capacity to some degree, I am not satisfied it is

⁴ Scott v Wise [1986] 2 NZLR 484 (CA) at 499.

seriously arguable that the Kennedys knew that at any stage, and certainly not at the time when the Agreement was entered into.

[51] Mr Fenton relies on two factors to say that the Kennedys had notice. First, he says he spoke directly to Mr Kennedy and had told him “about the drugs and the severely reduced awareness caused.” Against that assertion, is Mr Kennedy’s evidence that:

[Mr Fenton] also said that he told me he was taking strong opiate drugs for pain relief and that sometimes he didn’t know what day it is. That is a lie. Nothing of this sort was ever mentioned by [him] or discussed in any way. As mentioned, [Mr Fenton] never gave any indications of psychological or pain relief problems in the time I spent with him.

[52] Mrs Kennedy’s evidence is that they had discussions with Mr Fenton “on no less than three occasions whilst visiting the property” and that “on each occasion, [he] appeared normal”. Elsewhere, she says, “we never had any concerns regarding his mental capacity”.

[53] Added to that, are the circumstances in which the Agreement was entered into. The Kennedys’ dealings with Mr Fenton were all undertaken indirectly and through his agent. Ms Lethbridge, in her affidavit, maintains that “Mr Fenton never told us that he was taking medication that affected his mental capacity...”

[54] Ordinarily, this Court will not attempt to resolve genuine conflicts of evidence on a summary judgment application but, in saying that:⁵

... the Judge is not bound: to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be.

[55] In all the circumstances, I consider that Mr Fenton’s opinion evidence that the Kennedys had notice is inherently improbable and not seriously arguable. His contention, on the face of the evidence, appears to be too far-fetched and inconsistent

_{with the other evidence to call for further investigation.}

⁵ See Attorney-General v Rakiura Holdings Ltd (1986) 1 PRNZ 12 (HC) at 14, citing Eng Mee

Yong v Letchumanan[1980] AC 331, at 341 E.

[56] The second factor Mr Fenton relies upon is the property listing or advertising material which is said to have appeared on the internet and upon a sign Barfoots placed at the front of the property. Mr Fenton says that both contained a statement saying that “the vendor is having an operation and need [sic] recovery.” Mr Fenton has exhibited this document in his first affidavit (Exhibit “G”) but the content is illegible, so little weight can be attached to it.

[57] But assuming there was information regarding his ill-health contained within the advertising material, I am not satisfied that any conclusion could be drawn from it that potential buyers (such as the Kennedys) would or should have been alerted to the possibility of Mr Fenton being of unsound mind. All that the advertising material said, on Mr Fenton’s account, was that he was having surgery and would require time for recovery. This information appears to have been included as it would possibly affect the timing of any settlement, as Mr Fenton would necessarily need to remain living in his house for a period during his recuperation. This says nothing about the type of surgery he was to undergo, that would inform any prospective purchaser as to the seriousness of his surgery or the strength of the medication he might be taking, let alone the side-effects of any such medication and how this may affect his mental capacity.

[58] To the contrary, any prospective purchaser (specifically, the Kennedys) would be entitled to believe that Mr Fenton, in listing his property through a real estate agent, was able and willing to sell despite having to undergo surgery. Therefore reliance on the advertising material does not, and could not, assist Mr Fenton’s defence.

[59] For these reasons, the Court is left without any real doubt or uncertainty that Mr Fenton’s ground of mental incapacity could provide a defence to the Kennedys’ claim.

Defence: the agreement is voidable because of an unconscionable bargain

[60] Having already determined that Mr Fenton’s defence of mental incapacity

lacks any adequate foundation, the submission that he was subject to a special

disadvantage that the Kennedys exploited and took advantage of, falls away.

[61] The other point raised by Mr Fenton’s counsel, Mr Webber, is that there was procedural impropriety by virtue of Mr Fenton not having had legal advice prior to signing the Agreement. Mr Fenton, in his affidavit, also complains that Ms Lethbridge breached the code of conduct, for example, by putting the Kennedys’ interests ahead of his.

[62] These allegations all relate to Ms Lethbridge’s conduct, and are not a defence to the Kennedys’ claim, and it is appropriate to note that Ms Lethbridge firmly denies these allegations.

Conclusion

[63] Having concluded that Mr Fenton has no seriously arguable defence, I find that the Kennedys are entitled to summary judgment and, further, that it is appropriate for the Court to exercise its discretion to grant relief by way of specific performance in the terms of the draft order of 8 July 2016, but only to the extent of that set out at paragraph [A](i) to (ix).

[64] I decline to grant judgment for $460, being the liquidated sum for the cost of boarding Kylie Kennedy’s cats in a cattery.

[65] Mr Fenton is to pay the Kennedys costs on a 2B scale together with disbursements as set by the Registrar.

Paul Davison J