Aboody v Ryan

Case [2012] NSWCA 395


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Aboody v Ryan [2012] NSWCA 395
Hearing dates:22 August 2012
Decision date: 04 December 2012
Before: Bathurst CJ at [1]
Allsop P at [2]
Campbell JA at [82]
Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: UNCONSCIONABLE CONDUCT - special disadvantage - independence and adequacy of advice - transfer of house from elderly father to daughter - transfer motivated by poor health and irrational political fears - father advised by solicitor obtained by daughter - solicitor explained transaction but did not know of father's irrational motivations - advice neither independent nor adequate - transfer set aside
Cases Cited: Archer v Archer [2000] NSWCA 314
Banco Exterior Internacional v Mann [1995] 1 All ER 936
Bank of Baroda v Shah [1988] 3 All ER 24
Black v S Freedman & Co [1910] HCA 58; 12 CLR 105
Blomley v Ryan [1956] HCA 81; 99 CLR 362
Bridgewater v Leahy [1998] HCA 66; 194 CLR 457
Burrawong Investments Pty Ltd v Lindsay [2002] QSC 82
Citibank Savings Ltd v Nicholson (1997) 70 SASR 206
Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; 151 CLR 447
Earl of Aylesford v Morris (1873) LR 8 Ch App 484
Fox v Percy [2003] HCA 22; 214 CLR 118
Gett v Tabet [2009] NSWCA 76
Heperu Pty Ltd v Belle [2009] NSWCA 252; 76 NSWLR 230
Johnson v Smith [2010] NSWCA 306
Louth v Diprose [1992] HCA 61; 175 CLR 621
Massey v Midland Bank plc [1995] 1 All ER 929
Micarone v Perpetual Trustees Australia Ltd [1999] SASC 265; 75 SASR 1
Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; 41 WAR 353
Powell v Powell [1900] 1 Ch 243
Redgrave v Hurd (1881) 20 Ch D 1
Royal Bank of Scotland v Etridge (No 2) [2002] 2 AC 773
Seiwa Australia Pty Ltd v Beard [2009] NSWCA 240
Smith v Smith [2004] NSWSC 663
Turner v Windever [2003] NSWSC 1147
Wilton v Farnsworth [1948] HCA 20; 76 CLR 646
Texts Cited: R P Meagher, J D Heydon and M J Leeming, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies, 4th ed (Butterworths LexisNexis, 2002)
I C F Spry, Equitable Remedies, 8th ed (Law Book Co, 2010)
J Story, Commentaries on Equity Jurisprudence (Boston, 1836)
Category:Principal judgment
Parties: Jennifer Anne Aboody (First Appellant)
Anthony Warren Aboody (Second Appellant)
Leonard Gordon Ryan (Respondent)
Representation: H K Insall SC and H Altan (Appellants)
M A McCall (Respondent)
Richard Harris (Appellants)
Walters Solicitors (Respondent)
File Number(s):

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Aboody v Ryan [2012] NSWCA 395
Case
[2012] NSWCA 395
Decision Date

CaseChat Overview and Summary

In *Aboody v Ryan*, the New South Wales Court of Appeal considered an appeal concerning the unconscionable conduct of a daughter in procuring the transfer of her elderly father's home. The father, motivated by poor health and irrational political fears, transferred his house to his daughter. The daughter had arranged for a solicitor to advise the father on the transaction.

The central legal issue before the Court of Appeal was whether the transfer of the property was procured by unconscionable conduct. This required the court to determine whether the father suffered from a special disadvantage, and if so, whether the daughter unconscionably took advantage of that disadvantage. A key aspect of this determination was whether the advice provided by the solicitor, who was engaged by the daughter, was sufficiently independent and adequate to negate any unconscionable conduct.

The Court of Appeal found that the father did suffer from a special disadvantage due to his age, ill health, and irrational fears, which impaired his ability to make a rational decision about his property. While the solicitor explained the transaction to the father, the court held that the advice was neither independent nor adequate because the solicitor was unaware of the father's irrational motivations for the transfer. Consequently, the daughter's conduct in procuring the transfer was deemed unconscionable.

The appeal was dismissed, and the Court of Appeal upheld the decision to set aside the transfer of the property.

Orders

Orders of the court

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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