12 April 2018; 24 and 30 May 2018; 7 June 2018; 12-14 June 2018; 22 June 2018
Date of orders:
03 October 2018
Decision date:
03 October 2018
Jurisdiction:
Equity
Before:
Ward CJ in Eq
Decision:
1. Plaintiff’s further amended statement of claim be dismissed with costs. 2. Declare that the execution by the deceased of one or more copies of the document entitled Macedonian Power of Attorney (a notarised copy of which is Exhibit B in these proceedings) in favour of the plaintiff was procured by the undue influence and unconscionable conduct of the plaintiff and is of no effect. 3. Order the plaintiff to pay the cross-claimant’s costs of the cross-claim and otherwise make no order in relation to the costs of the cross-claim.
Catchwords:
ESTOPPEL – Promissory estoppel – Plaintiff claimed to have relied upon expectation or assumption created by representations by the deceased that upon sale of her property at Granville the plaintiff would be entitled to use of the proceeds and that the deceased would leave her entire assets as a gift to the plaintiff – Representations allegedly contained in a Macedonian Power of Attorney and Contract for a Gift allegedly executed by the deceased in October 2009 – Whether the documents, if authentic, contained the pleaded representations – Whether the plaintiff relied on the representations as pleaded such that detriment would now be suffered if the expectation or assumption not fulfilled – Held plaintiff had not established that the representations as pleaded were made or that he had detrimentally relied on the representations as pleaded – Claim for relief on basis of promissory estoppel dismissed
EQUITY – Undue influence – Presumption of undue influence where documents executed by grandparent in favour of grandchild – Held presumption had not been rebutted in relation to Macedonian Power of Attorney – Declaration made that execution of Macedonian Power of Attorney by the deceased was procured by undue influence and of no effect
EQUITY – Unconscionable conduct – Whether execution by the deceased of the Macedonian Power of Attorney was affected by unconscionable conduct – Declaration made that execution of Macedonian Power of Attorney by the deceased was procured by unconscionable conduct and of no effect
[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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AGLC
Antov v Bokan [2018] NSWSC 1474
Case
[2018] NSWSC 1474
Decision Date
CaseChat Overview and Summary
The case of Antov v Bokan involved a dispute between the plaintiff, Antov, and the defendant, Bokan, regarding the validity of certain documents and the existence of certain representations made by the deceased. Antov claimed that he had relied on the expectation or assumption created by the deceased's representations that he would be entitled to the proceeds from the sale of her property and that the deceased would leave her entire assets as a gift to him. These representations were allegedly contained in a Macedonian Power of Attorney and a Contract for a Gift executed by the deceased in October 2009.
The court was required to decide whether the documents, if authentic, contained the representations as pleaded, and whether the plaintiff had relied on these representations such that he would suffer detriment if the expectation or assumption was not fulfilled. The court also needed to determine whether the presumption of undue influence had been rebutted and whether the execution of the Macedonian Power of Attorney was affected by unconscionable conduct.
The court found that the plaintiff had not established that the representations as pleaded were made or that he had detrimentally relied on the representations as pleaded. As a result, the claim for relief on the basis of promissory estoppel was dismissed. The court also found that the presumption of undue influence had not been rebutted in relation to the Macedonian Power of Attorney, and that the execution of the Macedonian Power of Attorney by the deceased was procured by undue influence and of no effect. Additionally, the court found that the execution of the Macedonian Power of Attorney by the deceased was procured by unconscionable conduct and of no effect.