Skip to content

Mental Illness as a Basis to Rescind a Contract for the Sale of Land


In Brennan v O’Meara, Mr Brennan, the vendor, and Mr O’Meara, the buyer had negotiated a settlement of about 13 months.  Mr O’Meara had early possession of the land.  Various mishaps occurred, including an altercation with a neighbour, the rejection of his finance application and the global financial crisis loomed large.  These, and other matters, aggravated his exiting mental health issues.  Mr O’Meara served a notice to rescind pursuant to a special condition on the basis that he had “become mentally ill”.

The special condition provided:

“…should either party….prior to completion… die or become mentally ill, then either party may rescind this Contract by notice… thereupon this Contract shall be at an end…”  (emphasis added)

Mr Brennan disputed the validity of the notice.  The Court identified that the issue to determine was whether O’Meara had satisfied the special condition; namely, whether Mr O’Meara had satisfied the special condition.  The contract did not contain a definition of ‘mentally ill’.  But the Court considered section 14 of the Mental Health Act 2007 (NSW) (‘MHA“).
It provided:

“a person is a mentally ill person if the person is suffering from mental illness, and owing to that illness,
there are reasonable grounds for believing that care, treatment or control of the person is necessary
(a) for the person’s own protection from serious harm, or
(b) for the protection of others from serious harm.”

Section 4 of the MHA defined ‘Mental Illness’ as:

“A condition that seriously impairs, either temporarily or permanently, the mental functioning of a
person and is characterised by the presence in the person by any one of more of the following

(a) Delusions;
(b) Hallucinations;
(c) Serious disorder of thought form;
(d) A severe disturbance of mood;
(e) Sustained or repeated irrational behaviours indicating the presence of any one or more
symptoms referred to in paragraph (a)-(d).”

The Court approached the construction of the special condition from two perspectives.  First, the special condition required Mr O’Meara to have ‘become’ mentally ill (i.e. it was not sufficient if he had a pre-existing medical illness).  Secondly, the purpose of the special condition was directed at events which caused an impediment to the fulfilment of contractual obligations.
Davis J observed that it would not be sufficient for a person wishing to take advantage of such a provision to merely point to a diagnosis of mental illness because it may be more of a ‘nature or magnitude that does not cause any impediment to the fulfilment of the contractual obligations’.

In Brennan v O’Meara, the evidence did not show that Mr O’Meara was unable to function or deal with his affairs.  As such, the Court held his notice of recission was invalid because he was not mentally ill within the meaning of the special condition, i.e. his diagnosed mental illness did not cause an ‘impediment’ to the fulfilment of his contractual obligations.

Since Brennan v O’Meara, if a contract for the sale of land has an incapacity provision, it will now often provide a definition of ‘mental illness’ in order to promote greater contractual certainty.

The information in this article is general in nature. 
For specific advice relating to your circumstances, please contact your legal practitioner.


View as PDF
(Opens in new window)