Anderson v Anderson

Case [2013] QSC 8

SUPREME COURT OF QUEENSLAND

CITATION:

Anderson v Anderson [2013] QSC 008

PARTIES:

JOHN GORDON ANDERSON
(plaintiff)
v
MALCOLM STUART ANDERSON
(defendant)

FILE NO/S:

4984/10

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

22 February 2013

DELIVERED AT:

Brisbane

HEARING DATE:

25 and 26 October, 2012

JUDGE:

Dalton J

ORDERS:

1.    Declare the transfer executed by Roma Margaret Anderson dated 26 September 2008 was not the voluntary act of Roma Margaret Anderson, but was executed because of the undue influence of the defendant Malcolm Stewart Anderson.

2.    Set aside the transfer executed by Roma Margaret Anderson, dated 26 September 2008.

3.    Declare that at all times until her death on 29 December 2009, Roma Margaret Anderson was the sole legal and beneficial owner of the land described as Lot 339 on RP138740, County of Ward, Parish of Nerang, Title Reference 15199199.

4.    Order caveat number 712056712 be removed from land described as Lot 339 on RP138740, County of Ward, Parish of Nerang, Title Reference 15199199.

CATCHWORDS:

EQUITY – GENERAL PRINCIPLES – UNDUE INFLUENCE AND DURESS – where the deceased executed a transfer of her home to the defendant by way of gift – where the deceased was frail, isolated and dependent upon the defendant for day‑to-day care – where the deceased was experiencing some symptoms of memory loss, confusion and dementia – whether the defendant was in a position of dominance over the deceased such as to raise the presumption of undue influence – whether the transfer was the result of a free and voluntary exercise of the deceased’s independent will

CAPACITY – DISPOSITIONS OF PROPERTY – where the deceased executed a transfer of her home to the defendant by way of gift – where there was some evidence of dementia, memory loss and confusion – whether the plaintiff proved that the deceased lacked the relevant capacity at the time of the transfer

UNCONSCIONABLE CONDUCT – NON EST FACTUM

Powers of Attorney Act 1998 (Qld)

Blomley v Ryan (1956) 99 CLR 362 cited
Bridgewater v Leahy (1998) 194 CLR 457, cited
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, cited
Collins v May [2000] WASC 29, cited
Crago v McIntyre [1976] 1 NSWLR 729, cited
Elliot v Ince (1857) 7 De G.M. & G. 475; 44 E.R. 186, cited
Gibbons v Wright (1954) 91 CLR 423, considered
Inche Noriah v Shaik Allie Bin Omar [1929] AC 127, cited
Johnson v Buttress (1936) 56 CLR 113, considered
Stone v Registrar of Titles [2012] WASC 21, cited
Tabtill Pty Ltd v Creswick [2011] QCA 381, cited

COUNSEL:

AP Collins for the plaintiff
G Coveney for the defendant

SOLICITORS:

Quinn and Scattini for the plaintiff
Radcliff Taylor Lawyers for the defendant

  1. The plaintiff and defendant are the only children of Roma and Ian Anderson.  Ian Anderson died on 12 December 2007.  His share of their main asset, the family home, passed by survivorship to Roma Anderson, who died on 29…

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Details
AGLC
Anderson v Anderson [2013] QSC 008
Case
[2013] QSC 8
Decision Date

CaseChat Overview and Summary

The case of Anderson v Anderson involved a dispute over a transfer of property by way of gift from Roma Margaret Anderson to her husband, Malcolm Stewart Anderson. Roma, who was experiencing symptoms of memory loss, confusion, and dementia, executed the transfer while she was frail, isolated, and dependent on Malcolm for day-to-day care. The plaintiffs sought to have the transfer set aside on the grounds that it was not the result of Roma's free and voluntary exercise of her independent will. The court was required to determine whether Malcolm was in a position of dominance over Roma such that a presumption of undue influence arose and whether Roma had the requisite capacity to execute the transfer.

The court considered the evidence of Roma's frailty, isolation, and dependence on Malcolm, as well as the symptoms of memory loss, confusion, and dementia. It found that these circumstances did give rise to a presumption of undue influence. The court also examined whether the plaintiffs had rebutted the presumption. The court held that the evidence showed that Malcolm had exerted significant influence over Roma and that she had not acted independently in executing the transfer. The court further found that there was insufficient evidence to establish that Roma lacked the requisite capacity at the time of the transfer.

The court ordered that the transfer executed by Roma on 26 September 2008 be set aside and that Roma was the sole legal and beneficial owner of the property until her death. The court also ordered that a caveat placed on the property by Malcolm be removed.

Orders

Orders of the court

1. Declare the transfer executed by Roma Margaret Anderson dated 26 September 2008 was not the voluntary act of Roma Margaret Anderson, but was executed because of the undue influence of the defendant Malcolm Stewart Anderson.

2. Set aside the transfer executed by Roma Margaret Anderson, dated 26 September 2008.

3. Declare that at all times until her death on 29 December 2009, Roma Margaret Anderson was the sole legal and beneficial owner of the land described as Lot 339 on RP138740, County of Ward, Parish of Nerang, Title Reference 15199199.

4. Order caveat number 712056712 be removed from land described as Lot 339 on RP138740, County of Ward, Parish of Nerang, Title Reference 15199199.

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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