Judgment for plaintiff. Orders to be made for performance by first defendant of obligations under Deed of Settlement and Release.
Catchwords:
CAPACITY - presumption of sanity - test of capacity is 'issue specific' - relevant issue was whether there was capacity to enter into March Deed - HELD - onus of proof to displace presumption not satisfied on balance of probabilities - EVIDENCE - whether Court bound to accept expert evidence where the expert is not called for and hence challenged in cross-examination - HELD - general principle that Court is not bound to accept such evidence although it may be given more weight depending on the balance of the evidence before the Court - uncontradicted evidence is still be to assessed in light of all other lay and expert evidence - UNCONSCIONABLE CONDUCT - two allegations of unconscionable conduct - first, that plaintiff took advantage of her position vis-Ã -vis the second defendant to induce him to enter the deed - second, that plaintiff took advantage of first defendant's concern that she would be denied access to the second defendant to induce her to enter the deed - HELD - unconscionable conduct not established in relation to either allegation - UNDUE INFLUENCE - no presumption of influence between husband and wife - evidence of increasing dependence of second defendant on plaintiff giving rise to a presumption of influence - relevant consideration is the quality of consent by the donee - second defendant had independent legal advice - context in which gift is given is also relevant, including any benefits which are obtained by the donee - HELD - benefit to plaintiff was not procured by undue influence over the second defendant - DURESS - conduct alleged to amount to duress being alleged threats made against the person of the first defendant and an alleged threat to deny first defendant access to the second defendant - consideration of Karam and whether the alleged conduct must be unlawful to establish duress - alleged threats against person made two years before the deed entered into - no evidence aside from the first defendant's testimony that alleged threats to deny access to second defendant were made - HELD - duress not established by first defendant - DEED - non est factum defence not pleaded - even if first defendant succeeded in making out a vitiating factor the deed was only voidable and not void - whether deed would have been set aside in the circumstances of the case - OBITER - deed would not have been set aside - CONTRACTS REVIEW ACT - whether deed was 'unjust' - whether first defendant had standing to plead 'unjustness' insofar as the injustice pleaded was not suffered by the first defendant - HELD - first defendant had standing under the Contracts Review…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
A v N [2012] NSWSC 354
Case
[2012] NSWSC 354
Decision Date
CaseChat Overview and Summary
The case of A v N involved a dispute concerning the validity of a deed executed between the parties. The first defendant sought to have the deed set aside on the basis of various vitiating factors, including lack of capacity, unconscionable conduct, undue influence, duress, and the presence of an unjust contract under the Contracts Review Act 1980 (NSW). The second defendant and the first defendant were parties to the deed, and the first defendant's wife was also involved. The first defendant claimed that the deed should be set aside as it was executed under duress and lacked the capacity of the second defendant. The second defendant argued that the first defendant's claims were without merit and that the deed should be upheld.
The court was required to determine whether the first defendant could successfully argue that the deed was invalid due to various vitiating factors. The legal issues included the standard of proof for capacity, the weight to be given to unchallenged expert evidence, the existence of unconscionable conduct, the presence of undue influence, the existence of duress, and the standing of the first defendant to plead 'unjustness' under the Contracts Review Act 1980 (NSW). Additionally, the court had to consider whether the plaintiff was disentitled to relief due to 'unclean hands' and whether the deed would have been set aside in the circumstances of the case.
The court found that the first defendant had not discharged the onus of proof to displace the presumption of sanity on the balance of probabilities. The court noted that it was not bound to accept unchallenged expert evidence but could give it more weight depending on the balance of the evidence before it. The court found that there was no evidence of unconscionable conduct or undue influence, as the second defendant had independent legal advice and the context in which the gift was given did not indicate undue influence. The court also found that the alleged conduct did not amount to duress as it did not meet the legal requirements. The court further held that the first defendant had standing to plead 'unjustness' under the Contracts Review Act 1980 (NSW), but none of the allegations of injustice made out. Finally, the court found that the plaintiff was not disentitled to relief due to 'unclean hands' as the relief sought would affect the interests of the second defendant as another party to the deed.
The court ultimately held that the first defendant's claims were without merit and that the deed should be upheld. The court found that even if the first defendant had succeeded in making out a vitiating factor, the deed would not have been set aside in the circumstances of the case. The court also noted that the plaintiff's conduct did not amount to 'unclean hands' and that the relief sought would affect the interests of the second defendant as another party to the deed.