Aboody v Ryan
[2012] NSWCA 395
•04 December 2012
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 646Texts 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): 2012/93184 Decision under appeal
- Jurisdiction:
- 9111
- Citation:
- [2012] NSWSC 136
- Date of Decision:
- 2012-02-27 00:00:00
- Before:
- Slattery J
- File Number(s):
- 2010/393166
Judgment
BATHURST CJ: I agree that the appeal should be dismissed for the reasons given by Allsop P.
ALLSOP P: The respondent, Mr Leonard Ryan, was born in 1917. He saw active service in World War II. In 1979, he was granted a war veteran's disability pension. At the time of the events in question in late 2006 and early 2007, his wife had died. He lived in a home owned by him in Iluka, a small town on the New South Wales north coast. He had three children - two daughters, Jennifer and Lorraine, and a son, John. His daughter Jennifer, the first appellant, was married to Mr Anthony Aboody, the second appellant. In the years prior to 2007, after her mother died, Mrs Aboody had spent time and effort caring for and assisting her father, and her father was fond of her. At this time, Mr Ryan had fallen out with John and Lorraine. John was a builder and had constructed his parents' house on the land at Iluka, the purchase of which was funded through the Defence Services Corporation.
On 30 January 2007, Mr Ryan transferred the interest in remainder in his land at Iluka to Mr and Mrs Aboody for no consideration. Two years later, he changed his mind and asked for a reconveyance. They refused. Mr Ryan commenced proceedings to set aside the gift alleging undue influence and unconscionable conduct and also seeking relief under the Contracts Review Act 1980 (NSW). The allegations of undue influence and the claim for relief under the Contracts Review Act were abandoned below. The primary judge set aside the transfer as procured by unconscionable conduct. Mr and Mrs Aboody appeal. The appeal should be dismissed for the following reasons.
The factual history and the primary judge's approach
The following factual history is taken principally from the primary judge's reasons. It was accepted in argument by the appellant that several central factual findings made by the primary judge must be found to be wrong for the appeal to succeed.
The primary judge concluded at [1] of his reasons that in early 2007, Mr Ryan suffered from an abiding fear or obsession:
"that if the Australian Labor Party were elected to Federal government in 2007 and the then Liberal government defeated, that he would lose both his pension and [his home]."
Mr Ryan's solution to this fear was to transfer the property to Jennifer and her husband: [2] of the reasons.
Mr Ryan had a number of ailments and physical disabilities, some due to his war service: [25] of the reasons.
In late 2006, when crucial discussions took place between Mr Ryan and Mrs Aboody, his health was poor. A neighbour, Ms Stanford, gave evidence that was accepted (see [35] of the reasons):
"She noticed a 'definite change and deterioration' in Mr Ryan's 'health and mental well-being' following his 90th birthday in January 2007. She noticed that his behaviour was becoming erratic; he was involved in minor accidents and seemed to become inappropriately angry with children in the street. I accept all her evidence as to these matters."
One of the reasons Mr Ryan wished to proceed with the gift was a fear that because of his various medical conditions he did not have long to live: [37] of the reasons. The varied nature and extent of these health problems were described by the primary judge at [36] of his reasons, as follows:
"The plaintiff himself speaks of his poor health at this time and put in evidence his medical records from the Union Street Family Medical Practice he consulted between April 2006 and August 2010. The plaintiff's evidence, which I accept, and the objective medical materials support the findings about the plaintiff's medical condition made in the balance of this paragraph. The plaintiff suffered from recurrent painful and severe skin rashes and swelling of the feet. Whether this was from his malaria or shingles seems to be open on the medical evidence but he undoubtedly suffered these symptoms. These and his other medical problems caused him constant stress and irritability. He suffered cramps, headaches, chest pain and chest swelling from time to time. Mr Ryan also suffered from constipation, a need to struggle for his breath, depression (not a clinical diagnosis), insomnia, a propensity to fatigue after physical activity and anxiety. He had suffered a condition involving massive swelling of his testicles for which he had some treatment but he was left with fluid and constant aching in that part of his body. Associated with this condition he had a fear of suffering from prostate cancer. A number of his friends had died from prostate cancer and he was afraid that he would die from it too. The plaintiff had impaired hearing. Although he was able to give evidence without any special amplification in the courtroom, it was clear that it was always necessary to speak very loudly and clearly for him to hear others."
The primary judge succinctly described the relationship between Mr Ryan and Mr and Mrs Aboody, and between Mr Ryan and John and Lorraine, in the years leading up to 2007 in [28]-[29] of his reasons as follows:
"[28] The relationship with Mr and Mrs Aboody in that three-year period, 2004-2006, was close. They would often come to the Iluka property to visit him and stay for a few days. Mrs Aboody would assist her father, cleaning around the house and tidying it up and undertaking those various tasks that the plaintiff himself found difficult to manage. Mrs Aboody would also take the plaintiff to dental and medical appointments. The plaintiff reciprocated by giving them baskets of food, vegetables that he had grown in his garden, and fish that he had caught. This closeness led to the conversations about giving the Iluka property to Mr and Mrs Aboody. But there was nothing feigned or artificial about this relationship. Mr John Ryan suggested in evidence that Mr and Mrs Aboody were deliberately getting close to the plaintiff so that he would prefer them over the other two children in his will or by gift. But I do not accept this contention. Mr and Mrs Aboody seemed to the Court to be solely motivated by the need to ensure that Mr Ryan was looked after, in circumstances where he was not having regular contact with his other two children, Mr John Ryan and Mrs Lorraine Serone. Ms Stanford did not think the defendants visited the plaintiff for very long but I do not believe she was in a sufficiently good position to observe exactly how long they stayed.
[29] In the period 2004-2006 and up until the hearing, the plaintiff and Mrs Serone continued their previous estrangement. The plaintiff hardly spoke to his son John Ryan in the three years 2004-2006. He and John had had a 'difference of opinion over the phone and that was it', according to Mr John Ryan. The minor nature of that misunderstanding led to a complete rift between father and son for many years, which reveals a mercurial yet stubborn aspect of the plaintiff's personality. But this rift did resolve by about mid-2007."
The development of the fear of the Labor Party coming to power and taking his pension and his house was described by the primary judge at [30] of his reasons, as follows:
"The plaintiff is a member of the Returned Services League and a regular reader of its magazine Reveille. It was articles that he read in Reveille and discussions he held with other returned servicemen that led by early 2007 to him holding what he himself describes as 'deeply held fears that if the Labor Party was elected to government they would take my war pension off me because I owned the [Iluka] property and had some money in the bank or they would take the property when I died'. The plaintiff says, and I accept, he would often discuss those views with other returned soldiers who told him that they shared similar views. He wore his political allegiances quite openly, 'because of this I have never liked or trusted the Labor Party. I don't and never could'."
It was important for the appellants' submissions to recognise that Mr Ryan had, and had had since the war, deeply felt and entrenched anti-Labor Party views. The fear or obsession of the taking of his pension and house was of recent character, and a particular manifestation of that long held dislike.
The primary judge described the relationship between the fear for his pension and house and the transaction in [31]-[33] of his reasons. In these paragraphs his Honour finds the temporal and causal link between the fear or obsession and the transaction, as follows:
"[31] Mr Ryan says, and I accept, that in his discussions with his daughter Mrs Aboody about his concerns he began to outline a plan to her to defeat the threat from the Labor Party. He said to her words to the effect:
'Jenny, I'm thinking of giving the house to you so that if Labour's elected they can't take my war pension or the house off me if it's in your name.'
[32] Mr Ryan also recalls, and I accept, that he had another discussion with Mrs Aboody in December 2006 in which he said to her:
'Look, I'm worried that if the Labour Party's elected they're going to cut my war pension right back if my house is worth too much. I don't know what this mob will do. I don't trust them. They might even take my house when I go. I don't know what to do but I don't want to lose everything I've worked for. Maybe, I could just give the place to you?'
[33] This soon led to the instructions to Mr Dakin. But one curious aspect of Mr Ryan turning to Mr and Mrs Aboody to deal with his fears of the Labor Party taking his property, was that often in the past Mr Ryan had disagreed with Mr and Mrs Aboody about politics. Their views were considerably less conservative than were his, to the point that politics were a permanent 'no go on' area in family discussions. Mr Ryan turned to Mr and Mrs Aboody, because his perception was that there was no one else close to him, who could help with his perceived need to protect the Iluka property from the Australian Labor Party."
I will come to the role of the solicitor Mr Dakin in due course, but central to these findings which are the subject of challenge is the submission by the appellants of the lack of operative influence of the fear or obsession by the time of the attendance by Mr Ryan upon Mr Dakin.
The primary judge also found that Mr Ryan's poor health and his fear or obsession were related, finding at [34] of his reasons as follows:
"The extent to which Mr Ryan's health problems contributed to his holding the single-minded opinions that he did was not explored in evidence. But his poor health was connected, I infer, in his mind with the urgent need to protect his pension from external interference. His health and his opinions were, in my view, directly connected in this way. His poor health also made him more dependent upon carers for his daily needs."
The position of Mrs and Mr Aboody and their knowledge of the operation of the fear or obsession on Mr Ryan's decision is found in [38]-[41] of the reasons, as follows:
"[38] I accept Mrs Aboody's evidence that at first she resisted her father's wishes to gift the Iluka property to her. I accept that she arranged for her husband to check with Centrelink whether there was any possibility that Mr Ryan might lose his pension. I accept that as a result of those enquiries she explained to her father the result of Mr Aboody's enquiries, 'dad Tony had spoken with Centrelink. They assured him in no uncertain terms that nobody would be taking away your war pension. They also said that you could have your own home to any value and have assets including a car, boat and cash up to around $700,000. They also explained that the War part of your pension was not means tested.'
[39] I accept Mrs Aboody's evidence that after explaining the result of her husband's enquiries to her father, she said to him, 'you can now put that to rest now, you do not need to worry. You have nothing to worry about if the Labor government is elected.' But despite her saying this, in my view, she could not have been reassured that her father's mind was put at rest about this threat to his property. He continued to hold his fear of the Labor Party. I find that Mr Ryan did not at any stage clearly affirm that he accepted that there was, as a result of the Aboodys' enquiries, no reason for him to fear on account of the election of a federal Labor government in 2007. Indeed, the timing of this gift is significant. As Australia prepared for a federal election at some stage in 2007 Mr Ryan's views never wavered. As Mrs Aboody herself said, 'Dad was adamant what he wanted to do, and we went along with it.' And again, when it was suggested by cross-examining counsel to Mrs Aboody that she did not have to go along with her father's wishes, she said 'I did. I felt I did, for dad. It was what he wanted to do. It was his home. He was very adamant, very adamant.' Mrs Aboody says that her father expressed other reasons to her for wanting to make the gift, such as the alleged ingratitude to him of Mr John Ryan and his lack of a relationship with Mr John Ryan. I accept that the plaintiff did say these things to Mrs Aboody. But the plaintiff was never freed of his fear of the election of a federal Labor government in 2007. And in my view Mrs Aboody was aware of that and of the fact that this fear was an important actuating force in the plaintiff's decision to gift the Iluka property to her.
[40] Mrs Aboody professed that she did not realise that Mr Ryan's fears were 'something driven by the Labor Party' and therefore may not be cured by an inquiry of Centrelink. Although she denies the suggestion that she thought her father was still driven by these concerns, in my view she knew of his continuing fear of the Labor Party, and what he thought its election might do to him. Politics remained a point of no discussions between them, '... we didn't talk about it a lot, like I said'.
[41] Mr Aboody's evidence supports the same conclusion. Mr Aboody told the plaintiff the result of his enquries with Centrelink. Mr Aboody said that he did not consider that the plaintiff might not have believed what Mr Aboody (and his wife) was telling the plaintiff. Mr Aboody denied believing that the proposed gift was 'mixed up with [the plaintiff's] concerns' that the federal Labor Party was going to act directly against the plaintiff's property interests. I do not accept this part of Mr Aboody's evidence. The persistent and adamant nature of the plaintiff's opinions on the subject did not change. Mr Aboody could not in my view have believed this fear had somehow left the plaintiff's mind."
These findings are challenged. The challenge is related to the challenge to [31]-[33] referred to above.
Before identifying what Mr Dakin did (and did not do) it is necessary to appreciate the limits of legal advice on the above findings. On the primary judge's findings, an operative consideration moving a sick 90 year old man to give the remainder in his only substantial asset to his daughter and son-in-law was a plainly irrational fear or obsession about what a possible future government would do. Legal advice only about the effect of the transaction would be irrelevant to counteracting the impingement of such a fear. The only likely operative dissuasive effect of a solicitor's advice would be from advice given by a solicitor who knew of the impinging of the obsession and who sought strongly to dissuade any apparent act of improvidence influenced by obsession. For someone in the position of Mrs and Mr Aboody, if they appreciated, as the primary judge found, that the fear or obsession was apparently motivating Mr Ryan up to the point of attending upon the solicitor, they could only be confident that considerations of natural love and affection (not irrational fear or obsession) were informing the gift if they could be confident that the solicitor was aware of the hitherto operative fear or obsession and that he would seek to dissuade Mr Ryan from acting upon such irrational fears. It was never part of Mr and Mrs Aboody's case that they told Mr Dakin of Mr Ryan's irrational fear or obsession and sought to have him as an independent adviser dissuade Mr Ryan from acting as he apparently wanted to do.
The primary judge described the retention of Mr Dakin, the solicitor, at [45]-[46] of his reasons, as follows:
"[45] I accept Mrs Aboody's account that in about September or October 2006 Mr Ryan said to her, 'I want to go ahead with the house. Who's that solicitor of yours?' She mentioned the name of Mr Richard Harris and said '... are you sure you want do this?' He declared he had 'given this a lot of thought' and encouraged her to initiate contact with a solicitor. She spoke with Mr Harris who wisely emphasised the need for an independent solicitor for her father. He was not involved after this. A referral from a friend took Mrs Aboody to Mr Dakin.
[46] I further accept Mrs Aboody's account that she arranged an appointment to see Mr Dakin in December 2006. Mr Ryan does not recall this appointment but it must have taken place, on the basis of this contact, as Mr Dakin took instructions for Mr Ryan which Mr Ryan executed when he visited Mr Dakin's office on 22 January 2007. On this first December visit I accept Mrs Aboody's account: that a conversation involving herself, her husband and Mr [Ryan] occurred; that Mr Ryan expressed a view that Mrs Aboody was the one who had looked after him and that he wanted to benefit her by will and with a gift of the Iluka property. Mr Dakin then took some instructions from Mr Ryan on his own. These instructions were for a will, which gave the whole of his estate to Mr and Mrs Aboody and a statutory declaration explaining why Mr John Ryan and Mrs Serone were not included in the will. This was the will executed on 22 January 2007. A further consultation on 30 January 2011 [sic: 2007] completed the execution of documents for the transfer of the Iluka property. The final conveyancing for the transfer was completed in the first half of February 2007."
The primary judge then, at [47]-[64] of his reasons, dealt with the execution by Mr Dakin of his retainer and whether he was acting only for Mr Ryan, or for Mr Ryan and the Aboodys, and at [73]-[85] of his reasons the primary judge dealt with the independence and adequacy of Mr Dakin's advice.
The fact of the retainer was important to the Aboodys' arguments on appeal. Its significance, however, as was recognised by Mr Insall SC (who, with Mr Altan, appeared for the Aboodys on the appeal), depended upon the correct factual context in which Mr Dakin was consulted. If, as the primary judge found, Mrs and Mr Aboody were aware, at the time of Mr Ryan going to Mr Dakin, that Mr Ryan was effectively driven by his fear or obsession, then the apparent value of the advice would be limited. If, on the other hand, as was contended on appeal, the correct factual context was that they thought his fear and obsession had been eliminated by the advice from Centrelink obtained through Mr Aboody (referred to in [38]-[39] of the reasons) and that Mr Ryan was acting only out of natural love and affection, the apparent utility of the advice would be considerably greater.
Also, the contest before the primary judge focused, to a considerable degree, upon the question whether Mr Dakin acted only for Mr Ryan or for both sides to the transaction. The answer to this question was seen as important as a matter of law to the resolution of the controversy. The importance of that question can be seen in [47] of the primary judge's reasons, as follows:
"This history led to the principal contest in the proceedings as to whether Mr Dakin acted just for Mr Ryan as transferor, or whether he also acted for Mr and Mrs Aboody as transferees; if the latter his advice was not independent: Powell v Powell [1900] 1 Ch 243. Although there were many indications that Mr Dakin acted for Mr Ryan alone, and indeed that is what he tried to do in Mr Ryan's interests, in my view, the way that he took and then executed his instructions meant that he did act for both parties to the transfer. As a result his advice was not independent."
In summary terms, the primary judge concluded that, although Mr Dakin went a long way towards providing independent advice, he was not independent. Further, the primary judge concluded that Mr Dakin's advice and execution of his retainer were not adequate.
The finding as to the lack of true independence in acting for Mr Ryan was founded upon a number of matters. Mr Dakin signed the transfer as the transferees' (that is, the Aboodys') solicitor, saying that he did this "for convenience". The Aboodys paid his bill and he described his work in the memorandum of fees as "... further conference to ensure Mr Ryan was aware of effects of the transaction and reporting to you at the outcome of the proceedings" (emphasis added). This reflected a function consistent with his acting for them in the transaction. Mr Dakin attended to a number of aspects of the transaction that were relevant to the Aboodys - the obtaining of a valuation, the paying of stamp duty, preparing the transfer, conferring with the Aboodys, including obtaining instructions that Mr Aboody would be a transferee and whether they would take as joint tenants or tenants in common, and the registration of the transfer.
The issue as to lack of adequacy of the performance of the retainer was raised by particulars provided at the trial. No adjournment was sought based on lack of notice or prejudice. Complaint was made on appeal about the unfairness of the primary judge permitting the issue to be ventilated. I do not think the complaint is legitimate. First, without a contemporaneous application based on irretrievable prejudice it is difficult to conclude that counsel could not deal with the matter. If an expert witness was required an adjournment could have been sought. Secondly, for the reasons to which I will come the adequacy of the advice was part of the onus of the defendant.
Mr Dakin had since the events in question sold his practice and become a Local Court Magistrate. His former file that was produced on subpoena lacked file notes. He had no independent recollection of the events. He did not see either side before giving evidence under subpoena. The primary judge was not, however, critical of Mr Dakin's evidence, saying at [17]-[18] of his reasons:
"[17] Despite those limitations, in my view Mr Dakin attempted to give the very best evidence he could of his dealings with Mr Ryan and Mr and Mrs Aboody. He frankly explained that he had no memory of the transaction or the parties. He could not summon up any mental picture of Mr Ryan or Mr and Mrs Aboody. He confessed that he had not even recognised the parties to the proceedings outside Court. With the apparently busy practice that he ran at the time, this is perhaps not entirely surprising. So he was left to draw inferences about what he was likely to have done in late 2006 and early 2007 from his extant file notes and his general practice. Because of his efforts in inferring from his usual practice, he was able to give a reasonably good account of what he expected that he did do in advising Mr Ryan in December 2006 -January 2007, an account I largely accept.
[18] I found Mr Dakin to be a witness who was clearly attempting to assist the Court to the extent that his memory and contemporaneous documents permitted. Much about what did and did not happen in his dealings with Mr Ryan can be determined from his evidence. He was quite candid in explaining what he did and did not say to Mr Ryan, when advising him. I have ultimately found that his advice was not adequate, in a demanding environment, but I was much assisted in this by his candour."
Nevertheless, the primary judge was critical of the execution of the retainer in the following respects. First, Mr Dakin was not independent and thus his advice was not of an independent solicitor. Relying on Powell v Powell [1900] 1 Ch 243 at 246-247 (an undue influence case) and Bridgewater v Leahy [1998] HCA 66; 194 CLR 457 at 485-486 (an unconscionable dealing case), the primary judge concluded that therefore the Aboodys had not demonstrated that Mr Ryan had independent legal advice. The primary judge drew the relevant standard from Powell v Powell and stated at [76] of the reasons, as follows:
"The reason that a solicitor acting for both parties cannot discharge the burden of showing that a donee has received independent advice, follows from the demanding standard of the advice that a solicitor must give to a donee in order for the gift to be effective. Farwell LJ explained this standard in Powell v Powell (1900) 1 Ch 243, at 247: 'the solicitor does not discharge his duty by satisfying himself simply that the donor understands and wishes to carry out the particular transaction. He must also satisfy himself that the gift is one that it is right and proper for the donor to make under all the circumstances; and if he is not so satisfied, his duty is to advise his client not to go on with the transaction, and to refuse to act further for him if he persists'."
The primary judge considered that the failure to meet this standard arose from the following:
(a) the failure to advise Mr Ryan to have a truly independent solicitor;
(b) the failure to analyse with Mr Ryan his reasons for the transfer and to satisfy himself that the gift was "right and proper": Powell v Powell at 247;
(c) the lack of objective consideration whether the transaction was justified by Mr Ryan's expressed reasons or whether it was improvident;
(d) the limiting of his consideration to whether Mr Ryan understood "the nature and effects of the documents" and that he "wants to proceed";
(e) the lack of any challenge to an improvident transaction by an old man;
(f) the failure to ensure, once distorted thinking of Mr Ryan was exposed, that no element of his irrational views was acting on him or to advise not to go with the transaction;
(g) the transaction was improvident and in those circumstances advice should have included advice that he did not have to make it, that he would have to seek Mr and Mrs Aboody's permission to raise funds for his own needs, including hospitalisation or aged care, and that other structures were available;
(h) the failure to discuss alternative ideas or structures;
(i) the failure to give or urge receipt of financial advice.
It should be noted in relation to (f) above, that Mr Dakin was not told or aware of the irrational fear. It is to be presumed that the primary judge was referring to what Mr Dakin would have found if he had "teased out" the reasons for the transaction.
The finding of special disadvantage
The primary judge expressed Mr Ryan's special disadvantage at [88] in a way not limited to (though including) the irrational obsession, as follows:
"The plaintiff's age, poor health, dependence on the defendants and his irrational obsessions about losing the Iluka property to a newly elected federal Labor government combined to incapacitate him from making a worthwhile judgment as to what was in his own best interests at the time of the transaction. And as a result, he was in my view, a person under a special disability in relation to this transfer."
The findings of unconscionable advantage
Based on the findings at [31]-[33] and [38]-[41] the primary judge concluded at [89]-[96] that unconscientious advantage had been taken by the Aboodys of Mr Ryan's special disadvantage:
"[89] The defendants took unconscientious advantage of the plaintiff's special disability because the defendants were aware of the plaintiff's special disability and yet facilitated the gift to themselves. I have found that the plaintiff was not separately and independently advised and that the defendants are not able to rely upon the fact of independent advice as overcoming the plaintiff's special disability. But this is an unusual case, as my reasoning below shows. Even if it were to be demonstrated (contrary to my findings) that Mr Dakin's advice was independent, the defendants were in my view aware that the legal advice to the plaintiff was unlikely to have made any difference in one important respect, namely the plaintiff's irrational political fears that underlay the gift. The plaintiff had not even recanted these fears at the time of the hearing. The defendants were continuously aware of them.
[90] The plaintiff was 90 years of age. Although he had quite an active mind for a 90 year old, he certainly had developed a number of very fixed ideas that he expressed in the course of his evidence. By the time of the hearing the plaintiff seemed as determined to undo the transfer as he had been in late 2006 to make it happen. Age had made him very rigid in thinking. Perhaps he was always someone who had trouble absorbing the ideas of others. But at 90 this was a pronounced feature of his personality. Age had impaired his sound thinking about his own best interests. Firm advice was needed to ensure that any important idea that conflicted with his pre-conceived preferences actually got through to him. It is not clear that Mr Dakin ever recognised this aspect of the plaintiff's personality or took any steps to deal with it. In any event Mr Dakin's advice was not independent.
[91] The plaintiff's health was very poor at the time of this transaction. He had suffered indifferent health for a number of years, as my findings above record. At [the] hearing he appeared to be extremely frail. It is not difficult to infer that he was in a somewhat similar condition four years before, at the time of the transaction. The medical evidence at the time supports this inference. This in my view had a tendency to make him dependent upon anyone to whom he looked to sustain his health and daily living. But as I have also found above, his poor health also exacerbated his irrational fear of losing his pension and his property.
[92] The plaintiff was heavily dependent upon the defendants. Due to the plaintiff's estrangement from his other children he became heavily reliant upon the defendants for assistance, for company, and to look after his daily needs. This meant, in my view, that when he wanted to give effect to a plan, as he did here, it was natural that he would turn to the people upon whom he was so dependent. I am not of the view that the defendants deliberately misused that dependence. They did not appear to the Court to deal with the plaintiff with that approach. On the other hand, in my view, apart from Mr Dakin the plaintiff did place complete reliance upon Mr and Mrs Aboody at the time of this gift and they were well aware of that reliance.
[93] The plaintiff was obsessed by the prospect that if the Australian Labor Party were elected to federal government in 2007 he would lose his pension and the Iluka property. The plaintiff continued to express this fear in the witness box during the hearing. He swore to this fear in his affidavit evidence. I accept his affidavit and oral evidence as to this. The idea was plainly irrational. The defendants admitted as much. No one adduced evidence in the proceedings that [the] then incoming Labor Government had such a policy. This belief was clearly the product of distorted thinking. I have no doubt that the plaintiff firmly believed in late 2006 and early 2007 that this is what a federal Labor Government would do if elected to government in 2007. He believed it so firmly that the idea was almost unshakeable by ordinary persuasion. It was not only a distorted idea but it was an idea that seemed to form the top of a hierarchy of ideas, subordinating all competing notions and governing his thoughts and actions. As a result, in my view the plaintiff was incapable of thinking rationally in his own best interests about subject matters related to this fear. All of this, in my view, remained obvious to Mr and Mrs Aboody, despite even Mr Dakin's advice. It was clear to the Court at the time the plaintiff gave evidence.
[94] The defendants sought to answer the implications of this influence on the plaintiff's mind by pointing out, correctly in my view, that the defendants had tried to disabuse the plaintiff of his fears about the 2007 election. But the weakness of this submission, in my view, was that the defendants failed in their endeavour.
[95] The plaintiff was, in my view, a person under a special disability of which the defendants were aware when they facilitated and accepted this gift. The defendants' conduct was legally unconscionable and the gift should be set aside.
[96] The circumstances of Mr Ryan's special disability were compounded by his lack of independent legal advice and the improvidence of the gift and the other matters identified above under the heading 'Independence and adequacy of Mr Dakin's Advice'."
The complaints on appeal and their disposition
Central and fundamental to the appeal was the submission that the primary judge erred in making the findings that there was a special disadvantage, that the appellants were aware of any such disadvantage and that they unconscientiously took advantage of it.
For the first finding challenged (that there was a special disadvantage) to be successful, it would be necessary for this Court to conclude that the primary judge's view that the irrational obsession that the Labor Party would take his pension or his house was not operative as a motivating factor because of the influence of other factors such as love, affection and gratitude.
The finding by the primary judge involved weighing and assessing the evidence of Mr Ryan, including by reference to his character and behaviour. Inevitably this involved a degree of impression. Further, although the primary judge considered Mrs Aboody a "good witness" ([19] of the reasons), he did not accept limited, but important, parts of her evidence in relation to her perception of aspects of her father's opinions and behaviour. These considerations led to the findings at [31]-[33] and [38]-[41]. The findings at [31]-[33] were clearly founded on paragraphs 13 to 15 of Mr Ryan's affidavit of 11 March, which were denied by Mrs Aboody. These considerations also led to the express rejection of Mrs Aboody's (and Mr Aboody's) evidence that she (and he) did not appreciate the influence of the irrational obsession.
Review of these critical findings is to be undertaken in accordance with the well-known principles in Fox v Percy [2003] HCA 22; 214 CLR 118, as to which see Gett v Tabet [2009] NSWCA 76 at [10]-[23] and Seiwa Australia Pty Ltd v Beard [2009] NSWCA 240 at [2] and [140]-[154]. The appellants pointed to a number of considerations that were said to be inconsistent with the findings and to be sufficient to undermine them. First, there was the evidence of Mrs Aboody that during 2005 and 2006, before any manifestation of the irrational fear about a future Labor government, Mr Ryan had spoken of giving the house to her out of love and gratitude and to deny the house to John. The primary judge, however, took these conversations into account (see [39] and [45] of his reasons). Further, Mr Ryan's evidence was that for some months prior to January 2007 he had been discussing with Mrs Aboody his fears of the Labor Party (paragraph 9 of his affidavit). Also, he said he had been discussing his poor health with her (paragraphs 10-12 of his affidavit). It was in that context of an old, sick man talking of his frailties, his impending death and of his fears of the Labor Party that the discussions in [31]-[33] of the reasons are found.
Secondly, emphasis was placed on Mrs Aboody's evidence at paragraphs 6 and 9 of her affidavit of 14 April 2011 where she described the conversation between her and her husband and Mr Ryan about what Centrelink officers had told Mr Aboody - that he had been assured that no one would take Mr Ryan's pension. In his own evidence, in reply to this, Mr Ryan himself referred to this conversation. He said it did not quell his fears, but he said that he did not say anything to her. Thus, it was submitted that Mrs Aboody and Mr Aboody would consider that fear at an end.
The difficulty with this part of the argument is that the judge accepted that the conversations took place ([38] of the reasons) but drew from his assessment of the witnesses that Mrs Aboody knew of her father's continuing fear. That conclusion was one based on the primary judge's assessment of Mrs Aboody and of her knowledge of Mr Ryan's stubborn and irascible character. He had expressed this fear, which Mrs Aboody accepted was irrational. It was rooted in his long-standing hatred of the Labor Party. He was a stubborn man, not easily persuaded out of views, and he was ill and fearing death. The fact that he said nothing after the Centrelink assurances was not sufficient for the primary judge to conclude that he had been disabused of his fear. That conclusion was plainly open to his Honour, as was the conclusion that Mrs Aboody must have known that.
There may be grounds to think that the Centrelink conversation took place after the conversation referred to in [32] of the reasons and before the parties visited Mr Dakin. This is assisted by the recognition that the first visit to Mr Dakin was in December 2006, not January 2007 as Mr Ryan said in his evidence. It was put that it was inherently unlikely that the conversation about the irrational fear occurred after the Centrelink discussion. So much can be accepted. The sequence recounted by the primary judge at [32]-[33] of the reasons can be reconciled with the Centrelink conversation between the conversation in [32] and seeing Mr Dakin. The primary judge effectively did so at [39] of the reasons. Mrs Aboody's awareness of the operative effect of Mr Ryan's obsession was able to be drawn from what he had said, his failure to say anything reassuring after the Centrelink discussion, her knowledge of his character and the assessment of Mr Ryan's and Mrs Aboody's evidence.
I am unpersuaded that the findings in [39] and [40] of the reasons were incorrect. In particular, I am unpersuaded that it is inconceivable that the Aboodys would have proceeded had the conversations recounted at [30]-[31] occurred or been seen to remain operative, given their reluctance to enter the transaction. Yet, as was said in argument, there is a degree of speculation in that, in particular if they were to take the transfer to put his mind at ease, intending to give it back to him if he asked for it (a sentiment later expressed by Mrs Aboody).
Other factual matters were referred to in submissions as considerations that militated against any conclusion that Labor Party concerns were motivating Mr Ryan.
It was submitted that the primary judge paid insufficient regard to a statutory declaration dated 22 January 2006 (sic: 2007) prepared by Mr Dakin and signed by Mr Ryan before Mr Dakin. It contained twelve paragraphs in which Mr Ryan explained the circumstances of the gift of the house to the Aboodys. It explained first why he was not providing for Lorraine and John; it explained the estrangement with these adult children and their independence. It concluded in paragraphs 11 and 12 as follows:
"I have decided to gift my house at 14 Hickey Street, Iluka to my daughter Jenny and her husband Tony. They have been great companions and friends to me over many years. Jenny was constantly by my wife's side after my wife was admitted to the Caroona Nursing Home when she was diagnosed with rapid onset dementia. They visit me regularly. They mow the lawn at my home. They paint and maintain my home and do most things for me. I know that they do these things for me because they love me and not because they want anything in return.
No pressure or influence has been brought to bear on me to make this decision. I do so of my own free will. I will continue to live in the house at Iluka after I have transferred the title to my daughter and son in law for as long as I am able."
The respondent submitted that this was a document requested by Mrs Aboody to protect herself and should be given little weight. I do not agree. It appears to reflect the background factual context that Mr Dakin received. One would not conclude that he would leave out any relevant explanation, such as, for instance, any expression of the irrational fear of the Labor Party. Thus one can conclude that the matters covered in the declaration reflected the scope of relevant explanation of the gift by Mr Ryan. The evidence revealed that the Aboodys did not see this document until the litigation.
Giving proper weight to the declaration does not, however, undermine the conclusions of the primary judge at [31]-[33] and [38]-[41] of the reasons. The favour enjoyed by the Aboodys in Mr Ryan's trust and affection at this time is evident from this and other evidence. That Mr Ryan did not speak to a stranger of his fears of the Labor Party does not detract from a conclusion that he maintained it, as appreciated by those who knew him well.
It was also submitted that inadequate regard was paid by the primary judge to aspects of Mr Ryan's own evidence. In his evidence in cross-examination, Mr Ryan said that he was concerned that Lorraine and John not receive anything from him in his will or receive any part of his property. He accepted that Mr and Mrs Aboody did not encourage him to make the gift. He then said (black appeal book, vol 2, pp 77-78):
"Q. And the situation is that it was only when you reconciled with John, and it was only after you saw John's reaction to the news that you had given the house to Jenny and Tony, that you had a change of mind about the gift of the house to them, isn't it?
A. True.
Q. Do you agree with that?A. Yep."
I would not conclude that the primary judge was not aware of this evidence. It is plain that Mr Ryan changed his mind after a turn in his affections. Two aspects of his character found by the primary judge (and well-known to the members of his family) were his fixed views and somewhat difficult personality. That he had views, and that they were rigid, does not undermine the factual conclusion of the influence of the irrational obsession.
It was submitted that greater weight should have been given to the poor recollection of Mr Ryan. The primary judge did not accept all of Mr Ryan's evidence and he weighed and assessed it against the family background. I do not consider that any error is displayed in how his Honour approached Mr Ryan's evidence.
It was submitted that the letter sent by solicitors for Mr Ryan in November 2010 demanding retransfer of the property made no mention of the Labor Party obsession. The letter was not comprehensive and little can be taken from what was not said in it. It is certainly inadequate to undermine the crucial factual conclusion at [31]-[33] and [38]-[41] of the reasons.
It was submitted that the findings should be viewed (and reviewed) in the light of the failure of counsel at the trial to cross-examine the Aboodys about their appreciation of the operative effect of the Labor Party obsession. The trial was conducted on affidavits, which from their content displayed the contest about the Labor Party obsession. Further, before the Aboodys gave evidence the primary judge said as counsel for Mr Ryan was to put some "Browne v Dunn type matters" to Mr Dakin (black appeal book, vol 2, p 131):
"The view I take of Browne v Dunn - firstly, you have put, it seems to me, what you were going to put in your final submissions, you put material arising out of these particulars. I don't require anyone to put Browne v Dunn points arising out of the affidavits. The proper interpretation of the rule, parties are at issue on the affidavits, and that applies both ways. Mr Altan doesn't have to put things to your client or you to the defendants' witnesses, simply because it's in the affidavits. It seems to me to be a complete waste of time."
Having examined the affidavits and trial record I find no unfairness towards the Aboodys in the approach of the primary judge.
It was also submitted that the primary judge was wrong to call the fears of Mr Ryan about the Labor Party an "obsession". It was submitted that the medical records available did not support that conclusion. I do not read the primary judge as having drawn a medical conclusion; rather, he was expressing in legitimate encapsulated terms the conclusion about the conduct of Mr Ryan that was fixed and irrational. The evidence of Mr Ryan and of his character and health supported that conclusion and that language.
Without the findings in [31]-[33] and [38]-[41] being overturned, it is not possible to say that the only motivating or substantially operative reason for the gift was love and affection for Mrs Aboody. It is certainly the case that love and affection existed, and that Mrs Aboody's loving conduct towards her father in the prior years gave ample foundation for such paternal emotion. To the extent, however, that she recognised that "her father was still driven by these concerns [about the Labor Party]" ([40] of the reasons) the conclusion that she took the transfer with knowledge of that aspect of his disability stands.
One must then assess the attendance upon Mr Dakin in that light. If Mrs and Mr Aboody knew of the operation of this fear on Mr Ryan they could have no confidence that even an independent solicitor would be sufficient to eliminate the influence working on him. This is especially so if the concerns about the Labor Party and his pension and house were not made known to Mr Dakin.
I will come to Mr Dakin and the place of his advice in due course. At this point it is necessary to deal with the challenge to the primary judge's finding that this was an improvident transaction.
There were two bases for the attack on the finding: that it was not pleaded or the subject of particulars; and that it was factually wrong.
The pleading did not expressly enunciate the notion of improvidence. It did, however, expressly identify the lack of financial advice. Further, in the evidence filed before the trial, Mr Ryan had stated the following in paragraphs 47 and 48 of his affidavit of 11 March 2011:
"My only assets are the Property, my car, my household furniture and what I have in the bank. I wish to continue to own my own home outright in my own name and when I die to distribute it in my Will as I see fit. If members of my family want to argue about who should receive the Property then they can do so after I die. At the moment I feel like Jenny and Tony have taken the Property and I cannot deal with it as I want to upon my death. I have made a new Will but in real terms without the Property I have very few assets to distribute on my death.
Even though I am currently 94 years of age, I could live for another 5 or 10 years longer and I may need to go into some sort of hospital or old aged care. As things are at the moment I cannot sell the Property to fund this. I wish to retain the right to do this if I need to."
This evidence was not objected to. There was no suggestion in the evidence that Mr Ryan had any real wealth beyond his house and pension. Further, it was part of the Aboodys' case that during the Centrelink discussion Mr Ryan had indicated that he was well within the means testing level to retain his pension.
In written submissions exchanged at the beginning of the trial, counsel for Mr Ryan put the following at paragraph 40:
"The plaintiff did not receive any independent financial advice. The Transfer was a transaction on which he should have received financial advice. The transaction was a grossly improvident transaction for the plaintiff to make. He was giving away his only significant asset while he [was] still alive. By giving the Property to the defendants, the plaintiff was paying no regard to his future financial needs such as for hospitalisation or aged care, nor was he properly considering the possibility of changing his mind about the conduct of his estate. He had misconceptions as to the financial needs to conduct the transaction. An independent financial advisor could have fully and properly discussed all of these matters with the plaintiff." (emphasis added)
There was no assertion by counsel for the Aboodys that this went beyond the scope of the legitimate contest in the litigation. This was in circumstances where issue was taken with the scope of the submissions as being beyond the pleadings in another respect - the adequacy of Mr Dakin's advice.
In all these circumstances, it is tolerably plain that the question of the improvidence of the transaction was an issue in the litigation. The issue of improvidence raised by a sick old man putting his only asset out of his hands as a source of future capital was obvious. He could remain in the house for life. But what if he needed aged care or hospitalisation? The house could only be used for such at the discretion and with the consent of the Aboodys. He was submitting himself to their charity in the event of such contingencies. This was obvious.
Thus the procedural attack on the finding fails.
It was submitted that the transaction was not improvident, but fair and reasonable in the circumstances. This reasonableness was to be considered, it was submitted, in the real context of the parties: the close and loving relationship between Mrs Aboody and Mr Ryan and the deteriorated and estranged relationships between Mr Ryan and Lorraine and John. The reasonableness was said to stem from the source of the reason for the gift - gratitude and affection. The reasonableness was said to be also supported by Mr Ryan's wish to avoid his property going to his other children. Further, he was relieved of the obligation to pay rates and to maintain the property.
Reliance was placed on Archer v Archer [2000] NSWCA 314. In that case a mother and father gave one of their three sons their country property. After some reluctance of the mother the gift was made. Later the parents sought the return of the property claiming undue influence and unconscionable bargain. The case is of little assistance. The primary judge found no disability - certainly none of the kind suffered by Mr Ryan (age, ill health and irrational fear), indeed at [51] of his reasons Handley JA described Mrs Archer as "no shrinking violet". At [68] of his reasons, Handley JA said there was no evidence that she had no other assets. Further, at [69] he said that Mrs Archer did not even attempt to establish the precise effect of the gift on her disposable property and that her case was not that the gift was improvident but that she did not want to part with the property (and had been overborne). The case is of no assistance in any expression of principle relevant to the disposition of this appeal.
The gift here had all the hallmarks of apparent unwisdom and improvidence, even if, contrary to the primary judge's findings, the only apparent reasons for it were love and gratitude to one daughter, and irascible estrangement of the father from the daughter's two siblings. The gift was being made by a man whose health was poor, whose temper was irascible and uncompromising and whose reasons included estrangement of family. The clear consequences were to put out of his hands the only capital asset that he had to ensure any degree of financial security that he had, and thus to consign him to the charity of family and the support of the social service system.
The primary judge was correct to characterise the transaction as improvident.
Before turning to the role of Mr Dakin it is appropriate to say something of the proper legal framework for its analysis. The governing general principles in respect of relief against unconscionable dealings are to be found in Blomley v Ryan [1956] HCA 81; 99 CLR 362, especially at 405 (per Fullagar J) and 415 and 428-429 (per Kitto J); Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; 151 CLR 447, especially at 461-62 (per Mason J) and 474-75 (per Deane J); Louth v Diprose [1992] HCA 61; 175 CLR 621 at 626-627 (per Brennan J), at 637 (per Deane J) and at 650 (per Toohey J); and Bridgewater v Leahy [1998] HCA 66; 194 CLR 457 at 485-486 (per Gaudron, Gummow and Kirby JJ), in which passage Deane J in Amadio is cited.
A number of considerations are important to recognise. First, as Fullagar J in Blomley v Ryan at 405 and Mason J in Amadio at 461-462 said, there is an underlying general principle, the applications or exemplifications of which are impossible to describe fully. Thus, one should always be careful not to dwell over-technically or textually on individual expressions of general principle of normative values rooted in the remedying of injustice. It is general principle, not a precisely expressed rule, that operates. The principle is wide, and the danger in further textual definition (as opposed to exemplification or illumination) is that inaccuracy or undue restriction may be brought about: I C F Spry, Equitable Remedies, 8th ed (Law Book Co, 2010) at 188. Equity's norms and values can be expressed as by Mason J in Amadio at 461-462, or by Deane J in Amadio at 474-475, or by Dawson J in Amadio at 489, or by Lord Selborne in Earl of Aylesford v Morris (1873) LR 8 Ch App 484 at 490-491.
The exemplifications given by Fullagar J in Blomley v Ryan of the circumstances adversely affecting a party included need of any kind, sickness, age, infirmity of body or mind, and lack of assistance or explanation where such is necessary.
It can be seen from the expression of the general principle by Deane J in Amadio and by Lord Selborne in Earl of Aylesford that once the disability or weakness is sufficiently evident such that it is prima facie unfair to procure, accept or retain the benefit from the weaker party's assent to the transaction in the circumstances in which it was procured, accepted or retained, the onus is upon the stronger party to show the transaction to be fair, just and reasonable. The focus is upon the conduct of the stronger party in the assessment of unconscionability in the procurement, acceptance or retention of the benefit. Equity's fixing upon the conscience of the stronger party is not strictly limited by the need to find moral obloquy or reprehensible conduct, either generally, or at any particular point of time, although it is often present. At the heart of the doctrine is the taking or retaining of the benefit in a transaction in which advantage was taken of weakness or disability in a manner that in all the circumstances is unjust or unfair: Johnson v Smith [2010] NSWCA 306 at [5].
The obtaining by the weaker party of the advice of a solicitor may be relevant to the application of the general principle from at least two perspectives. The appreciation of its occurrence, and perhaps (as here) the place in its arrangement, by the stronger party might be seen as part of the circumstances in which he or she procures or accepts the benefit. It is an element of the stronger party's conduct to be assessed. From that perspective, the precise quality of what was done by the legal adviser may be seen not to be as relevant as what an honest and reasonable person in the position of the stronger party would have understood its effect to be on the justice and fairness of the transaction.
The second perspective is that if the circumstances, including the known special disadvantage, the nature of the transaction and the existence of advice, remain sufficient to make it prima facie unfair or unconscionable to procure, accept or retain the benefit, the independence and adequacy of the advice will be relevant, but as part of the discharge by the stronger party of his or her onus of proving the transaction to be fair, just and reasonable.
Looking at the circumstances here, the Aboodys knew, on the findings, not only of Mr Ryan's age, ill health, financial position, and dependence on Mrs Aboody, but also of the irrational obsession which was operating upon him to make a gift which would leave him financially exposed to their charity or the support of the state. By taking the property in those circumstances, they were sufficiently aware of the operation of the special disability and to take the improvident gift was to take advantage of the known weakness. The obtaining of a solicitor to advise him, at least without that adviser knowing of the irrational fear, would not remove the appreciation of the likely continued operation of the irrational fear. Thus, it was for them to demonstrate that the transaction was fair, just and reasonable. Proof of independent and adequate legal advice was part of their onus.
From this perspective, the effect of Mr Dakin's advice can be assessed without too much complication. Mr Dakin obtained what he understood to be the reasons for the transaction. No mention was made by Mr Ryan of the fear of the Labor government. No enquiry was made about Mr Ryan's financial position and the risk that the disposal of his capital asset posed to him. Mr Dakin satisfied himself that Mr Ryan knew what he was doing and wanted to go ahead. There was no discussion or advice about mechanisms that might bind Mr and Mrs Aboody to deal with the capital asset for his benefit or to retransfer it. If such steps had been taken, the fairness and reasonableness of the transaction and its attendant transaction costs could have been evident and advised upon. The advice of Mr Dakin did not transform the transaction into one that was fair, just and reasonable.
The above is sufficient for the resolution of the appeal, which should be dismissed.
If one removes from the factual circumstances the found knowledge of Mr and Mrs Aboody of the operative irrational obsession, they were still aware of an unwell, irascible father's wishes to benefit one daughter (whom he loved and upon whom he depended) and to ensure the two other children's non-participation in his estate, by making a clearly improvident gift. To do this he was, plainly to their appreciation, placing himself at financial risk, and dependent upon their charity. They knew it was improvident, that was obvious; they, to a degree, resisted it; but subject to legal advice, they were prepared to take the gift. It cannot be said that their conduct involved actively promoting the weakness, but they were prepared to accept the gift and thereafter retain it.
How one assesses the place and effect of Mr Dakin's role and advice in this context is more subtle. The special disadvantage is a combination of factors that, on this hypothesis, were age, poor health and dependence on Mrs Aboody (see [88] of the reasons). In that context, Mr Ryan wanted to make a gift that could be explained by love, as well as by the factors constituting the special disadvantage, but which was plainly improvident in the way I have described.
The appellants submitted that it is sufficient for them to assume that the solicitor would do his job; and that in those circumstances they could reasonably assume that Mr Dakin had attended to his task by addressing all aspects of the reasons for, and disadvantages of, the transaction. Thus, if there was any aspect of Mr Dakin's retainer that compromised his independence or that revealed inadequacy of advice, that could not be sheeted home to them. The focus was on their conduct. As honest lay people, they could not have been expected to do more than arrange someone who was independent to advise Mr Ryan.
There is a well-established body of cases to the effect that in certain circumstances (whether in undue influence or unconscionable transaction cases) a party to the transaction (such as a bank) may rely upon the apparent existence or availability of independent advice as part of the circumstances that reveal either no special disadvantage or no taking advantage of any special disability: Bank of Baroda v Shah [1988] 3 All ER 24 at 28-29; Massey v Midland Bank plc [1995] 1 All ER 929 at 933-934; Banco Exterior Internacional v Mann [1995] 1 All ER 936 at 940-941 and 949; Royal Bank of Scotland v Etridge (No 2) [2002] 2 AC 773; Citibank Savings Ltd v Nicholson (1997) 70 SASR 206 at 228-229 (Perry J); Micarone v Perpetual Trustees Australia Ltd [1999] SASC 265; 75 SASR 1 at 43-44 [228]-[236] (Olssen J) and 130 [655] (Debelle J and Wicks J); Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; 41 WAR 353 at 420-21 [344] (Murphy J); Burrawong Investments Pty Ltd v Lindsay [2002] QSC 82 at [93] (Muir J).
Here, however, the Aboodys knew of Mr Ryan's age, health, dependence (in the sense of emotional dependence) on and love for Mrs Aboody and of the improvidence of the gift. Thus, the stronger party knew of the aspects of character of the weaker party and the character of the transaction that revealed improvidence and real disadvantage that affected Mr Ryan's judgment. At this point, in the circumstances here, the onus shifted to the Aboodys to show the legal advice and any other relevant factor made the transaction fair, just and reasonable. The solicitor's advice here should be viewed as part of that process: Smith v Smith [2004] NSWSC 663 at [60] (Barrett J); Turner v Windever [2003] NSWSC 1147 at [105] (Austin J); and R P Meagher, J D Heydon and M J Leeming, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies, 4th ed (Butterworths LexisNexis, 2002) at 530 [16-035]; and see Micarone at 41 [215]. The place of asserted independent advice and its assessment will depend upon all the circumstances, including in particular what else is known by the party taking the benefit.
It is unnecessary, however, to resolve this alternative hypothesis in the disposition of this appeal. Nevertheless, some further considerations may be seen as relevant.
First, it is to be recognised that there is within the general principle an element of Equity's public normative role in the protection of the weak from the strong in appropriate circumstances. See J Story, Commentaries on Equity Jurisprudence (Boston, 1836) at 261.
Secondly, one aspect of the unconscionable advantage dealt with by the general principle is the retention of the benefit of the transaction: Deane J in Amadio at 474 and Rich J in Wilton v Farnsworth [1948] HCA 20; 76 CLR 646 at 655. In the circumstances here, the solicitor did not in fact address the question of improvidence, and acted in part for the Aboodys. From a perusal of the bill of Mr Dakin dated 2 March 2007, it was apparent that he had "ensure[d] Mr Ryan [was] aware of the effects of the transaction". He also reported to the Aboodys "at the outcome of the proceedings". The primary judge's conclusion about lack of independence was correct. The signature as transferee's solicitor is not to be put to one side as mere convenience. He did act for Mr and Mrs Aboody. He took instructions from them about the transaction and he reported to them. Further, Mr Dakin did not attempt to make any assessment of the financial consequences of the transaction for Mr Ryan or to see that Mr Ryan obtain advice about that. The fundamental inadequacy was the failure to address with Mr Ryan the financial and practical consequences of what he was doing. Of course, Mr Dakin was a lawyer, not a financial adviser. But he was dealing with an old man who was giving away the capital in his home. The potential consequences and risks of that were clear, unless he had other assets. This was not complex finance. It was the interaction of law and life. It was part of Mr Dakin's duty to see that Mr Ryan understood fully the legal and practical consequences of what he was doing. In drawing these conclusions, I should not be taken to make any personal criticism of Mr Dakin.
Thirdly, Equity does not fix upon the instant of a transaction and ignore what later arises in the assessment of the conscionability of behaviour that includes the retention of benefit obtained from a weaker party. That is why Deane J referred to "retain" in Amadio at 474. An illustration of such an approach of Equity in another context is the origin of the equitable rule for rescission for innocent misrepresentation. As Sir George Jessel MR said in Redgrave v Hurd (1881) 20 Ch D 1 at 12-13:
"One way of putting the case was, 'A man is not to be allowed to get a benefit from a statement which he now admits to be false. He is not to be allowed to say, for the purpose of civil jurisdiction, that when he made it he did not know it to be false; he ought to have found that out before he made it.' The other way of putting it was this: 'Even assuming that moral fraud must be shewn in order to set aside a contract, you have it where a man, having obtained a beneficial contract by a statement which he now knows to be false, insists upon keeping that contract. To do so is a moral delinquency: no man ought to seek to take advantage of his own false statements.' The rule in equity was settled, and it does not matter on which of the two grounds it was rested."
Another illustration is the learning by an innocent donee of the wrongful source of moneys given to him or her. The donee who seeks to retain funds in those circumstances becomes tainted by the underlying wrong: Black v S Freedman & Co [1910] HCA 58; 12 CLR 105 at 109; Heperu Pty Ltd v Belle [2009] NSWCA 252; 76 NSWLR 230 at 260-268 [130]-[164]. Even if one cannot draw a conclusion about unconscionability at the date of the transaction, once the limits of Mr Dakin's advice to Mr Ryan were evident and it was clear that Mr Ryan was not adequately advised, absent other countervailing factors, in circumstances where the Aboodys were otherwise aware of Mr Ryan's disadvantage and the improvidence of the gift, it might be seen to be unconscionable to seek to retain the benefit of the transaction. Further exploration of this possibility and of the limits of such unconscionability later arising, is and are, however, unnecessary.
I would dismiss the appeal with costs.
CAMPBELL JA: I agree with Allsop P.
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Decision last updated: 04 December 2012
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