Archer v Archer

HANDLEY JA: In this appeal I have had the benefit of reading the reasons for judgment of Beazley JA and Fitzgerald JA in draft form. The basic facts and the history of these proceedings have been set out by Beazley JA. I agree that Mrs Archer’s appeal against the dismissal of her undue influence claim fails and I agree with the reasons of Beazley and Fitzgerald JJA for coming to this conclusion.
Unfortunately I am unable to agree with the conclusion of Beazley JA that the transfer of two thirds of Mrs Archer’s undivided interest in “Sussex” should be set aside because of the unconscionable conduct of Trevor Archer.
The principles which the Court is bound to apply in determining whether this particular head of equitable fraud has been established are derived from decisions of the High Court. The transaction was in form a sale of “Sussex” by Mr and Mrs Archer to Trevor for a price of $436,500 which approximated the full market value of the property. Trevor has never paid any part of this price to his parents and both trials were conducted on the common assumption that the transaction was, and was intended, as a gift and that its validity should be determined on that basis. It is now far too late to question this assumption but it does cause certain difficulties.
The first consequence of this assumption which calls for comment is that the equitable principles which are relevant to the disposition of this part of the appeal are not those applicable to unconscionable bargains but those applicable to unconscionable voluntary dispositions. The leading decisions therefore are Wilton v Farnworth (1948) 76 CLR 646; Commercial Bank of Australia v Amadio (1983) 151 CLR 447; and Garcia v National Australia Bank Ltd (1998) 194 CLR 395.
The contract of sale (6/1323), which was dated 20 March 1990, was on the standard Real Estate Institute and Law Society form and provided for the full purchase price to be paid by the purchaser on completion. This took place on 9 April 1990 (6/1424-5) when the executed stamped transfer was sent by Cheney & Wilson to the Commonwealth Bank, Canowindra to enable Trevor’s mortgage to that Bank to be registered. The certificates of title and discharges of the old mortgages had been sent to the Bank by Cheney & Wilson on 21 March 1990 (6/1414).
If the contract of sale had taken effect in accordance with its terms, completion without payment of the purchase price would have created a legally enforceable debt payable by Trevor to his parents (McDonald vDennys Lascelles Limited (1933) 48 CLR 457, 475-8) secured by an unpaid vendors’ lien.
The original statement of claim filed on 22 April 1995 did not include any claim to recover the debt, but the amended statement of claim filed on 4 May 1995, and all later versions, sought judgment for the unpaid purchase price. The defence filed on behalf of Trevor pleaded that the transaction had been intended to be, and was, a gift (pars 9-17, 1/22-5). The plaintiffs did not press their claim to recover the unpaid purchase price.
The defence of non est factum raised by Mrs Archer before Simos J (that is her defence that there was a radical or fundamental difference between the documents she thought she was signing and the documents she did sign) was rejected by Simos J (7/1573), and has been abandoned.
Early in the argument on this appeal (T 3-4) Mr Coles QC said, in answer to a question from the Bench, that the parties had conducted the case on the basis that the transfer of “Sussex” to Trevor was a gift of the property. After some further discussion, Fitzgerald JA said that the promise to pay the purchase price in the contract was a sham “because it was never intended that it should operate”. Mr Coles agreed and Fitzgerald JA added: “The parties have acted on that basis”. Mr Coles then said “It was never Mrs Archer’s case she expected to receive any money from the transaction”.
The full implications of this common assumption may not have been recognised. In Hawke v Edwards (1947) 48 SR (NSW) 21 at 23 Jordan CJ said:
“Oral evidence may … be given that the document is a sham - that it was never intended by the parties to be operative according to its tenor at all, but was meant to cloak another and different transaction”.
In Snook v London and West Riding Investments Ltd [1967] 2 QB 786, 802 Diplock LJ said:
“… if ‘sham’ has any meaning in law it means acts done or documents executed by the parties … which are intended by them to give to third parties or to the court the appearance of creating … legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create. The one thing, I think, is clear … that for acts or documents to be a ‘sham’ … all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they have the appearance of creating”. (emphasis supplied)
See also ICT Pty Limited v Sea Containers Ltd (1995) 39 NSWLR 640 at 655-6.
The parties must accept this common assumption and the consequences which flow from it. See VACC Insurance Ltd v BP Australia Ltd (1999) 47 NSWLR 716 at 722-5. This appeal must therefore be determined on the basis that “all the parties” to the Contract of Sale had a common intention that “Sussex” would be transferred to Trevor as a gift, and understood that the documents signed in Mr Cheney’s office on 24 November 1989 would achieve this result.
A claim that Trevor had been guilty of unconscionable conduct in procuring the transfer to himself of the whole of “Sussex” did not become part of the plaintiffs’ case until the tenth day of the first trial (7 December 1995), which was the last day on which evidence was taken (4/942).
Paragraphs 24-26A of the Statement of Claim, then added in substitution for earlier paragraphs by leave granted by Simos J, alleged (par 25) that the plaintiffs were in a position of special disadvantage when dealing with the defendant by reason of the illness of the first plaintiff, inexperience, inequality of bargaining power and inability to protect their interests, and that (par 16) the defendant took unconscionable advantage of the plaintiffs’ disabilities.
These paragraphs were added on the limited basis recorded by Simos J (4/942), who stated that counsel for the plaintiffs had informed him:
“… that it is not intended that those proposed new paragraphs should raise any new cause of action but [they] are in elaboration of … his clients’ current claim related to undue influence”.
Counsel for the defendant informed Simos J that on that basis he was not prejudiced and did not need to adduce further evidence or undertake further cross-examination.
This Court, differently constituted, gave judgment on 23 February 1999 allowing Trevor’s appeal from the decision of Simos J setting aside, to the extent of a two thirds share, Mrs Archer’s transfer of her half interest in “Sussex”. The principal judgment was delivered by Priestley JA, who noted that the case before Simos J had been conducted throughout as an undue influence case, and that it wasn’t open to counsel for Mrs Archer to rely in that appeal on an independent case based on unconscionability.
On the first day of the new trial before Windeyer J, a further amendment was allowed to make the claim of unconscionability an independent claim (red 65). This amendment was allowed only because counsel for Mrs Archer said he would call no additional evidence. The defendant elected not to seek an adjournment and the trial was able to proceed. In his reserved judgment Windeyer J indicated that he had begun to doubt whether he acted appropriately in allowing the amendment, but the question was not pursued in this Court.
It is important to bear in mind that the evidence at the first trial was never directed to this cause of action and Trevor was never called upon to deal with it as an independent claim. The second trial proceeded on the evidence at the first trial, supplemented by fresh cross-examination of the principal witnesses. There was no additional evidence-in-chief on the new cause of action. This Court should therefore hesitate before concluding that the state of the evidence imposed any evidentiary burden on Trevor, and it should be cautious in drawing inferences in favour of Mrs Archer.
Unconscionable conduct, as a ground for equitable relief, focuses on the conduct of the defendant. Equitable relief is available on this ground “whenever one party by reason of some condition or circumstance is placed at a special disadvantage vis a vis another, and unfair or unconscionable advantage is then taken of the opportunity thereby created” (Bridgewater v Leahy (1998) 194 CLR 457 at 478-9 per Gaudron, Gummow and Kirby JJ citing from the judgment of Mason J in Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447 at 462). The majority in Bridgewater v Leahy referred at 479 with approval to the judgment of the Privy Council in Hart v O’Connor [1985] AC 1000 at 1024, where unconscionable conduct as a basis for equitable relief was described as “victimisation which can consist either of the active extortion of a benefit, or the passive acceptance of a benefit in unconscionable circumstances”. In Commercial Bank of Australia Ltd v Amadio (above) Mason J added at 461:
“Relief on the ground of unconscionable conduct … will be granted when … [unconscientious] advantage is taken of an innocent party who, though not deprived of an independent and voluntary will, is unable to make a worthwhile judgment as to what is in his best interest”.
Mrs Archer’s case essentially depends on the events at the offices of Cheney & Wilson, solicitors, in Orange on Friday 24 November 1989. Of course these events must be set in their context but it was not and could not be alleged that Trevor had been guilty of unconscionable conduct prior to making the relevant appointment to see Mr Cheney, or that he had been guilty of such conduct in what he did, or failed to do, afterwards.
Trevor was in partnership with his parents in a grazing business conducted on “Sussex” and “Glenroy”. He had a half interest in the partnership and each of his parents had a quarter interest. These proceedings have been conducted on the basis that this was a stock and plant partnership only, and the properties were not partnership assets. It may be noted however that for many years, up to and including 1994, the annual accounts of the partnership showed the properties as partnership assets, and clause 12 of the Partnership Agreement made the accounts binding on the partners after 3 months (5/1114).
Windeyer J found that in 1979 the partners had intended to purchase “Sussex” in their joint names, giving Trevor a one third interest, but the Rural Assistance Board (RAB) loan required the title to be taken in the names of Mr and Mrs Archer (red 59). However Trevor was a joint borrower under the loan and the partnership made the payments of principal and interest under that mortgage and the first mortgage to the Commercial Banking Company of Sydney, which helped to fund the purchase of “Sussex”.
Trevor and his wife Sue lived on “Sussex” with her children from a previous marriage, and they had devoted much time and effort to improving the homestead and its surroundings. Trevor and Sue were concerned about their future and their lack of security at “Sussex”. From time to time Trevor raised the question of “Sussex” with his parents, but was told that nothing could be done until the RAB loan was paid off. However on 7 January 1988 the RAB wrote to Mr & Mrs Archer requiring the balance of its loan to be paid off by 30 September 1989, and this was confirmed by a follow-up letter on 21 August 1989 (6/1305-6).
Trevor had left “Glenroy” as a young man to make his way in the world, but in 1976, when he was working in Canberra, his father asked him to return to “Glenroy” and he did so (1/103). His two other brothers had left at different times, Neville for the second time in 1987, and they were not expected to return. “Sussex” was purchased in 1979.
In 1988 Mrs Archer told Trevor that one day “Sussex” would be owned by he and his brothers. Trevor protested saying “that’s a bit rough” because he had stayed on at “Sussex” and helped to get the loans to buy it and pay them off and Mrs Archer had said:
“I suppose that’s right. I’ll have to think about that. Anyway we can’t do anything until we have paid out the Rural Assistance Board”. (1/108)
Mrs Archer agreed that such a conversation may have occurred in November or December 1988 (2/468).
In March 1989 Mr and Mrs Archer made mirror wills, each in favour of the other if he or she were the survivor, but if that spouse did not survive “Sussex” was given to Trevor, and the residue, which presumptively included “Glenroy”, was given to the three sons in equal shares. Windeyer J accepted Trevor’s evidence that about that time Mrs Archer gave him copies of both wills and the following conversation took place. Mrs Archer said: “Dad and I have just made new wills and we have appointed you co-executor. Is that all right with you?” He replied “Yes that’s fine”. She said “Here is a copy of each of our wills”. He looked quickly at the wills and said “You’re leaving “Sussex” to me?” She said “Yes we’ve agreed to that”. He said “Thanks”. (1/108-9) Mrs Archer’s evidence that she had not given Trevor copies, and there had been no such conversation, was rejected by Windeyer J.
Mrs Archer said in evidence that as she was younger than her husband she expected to survive him, and that her intention in that event was to make a new will leaving “Sussex” to all three of her sons (1/67, 2/418, 472-3). It had been in her family for several generations, and she wanted all her sons to have a share in it. This underlying intention, which seems to have driven this litigation, remained concealed from Trevor who thought that he would be protected by his parents’ wills.
Matters may have remained there for some years at least, if not indefinitely, but for a further conversation between Mrs Archer and Trevor in August 1989 when she said that if Mr Archer died before her she would have to sell up “Sussex” as well as “Glenroy” to provide for her old age. Trevor said “but if Dad dies you’ll get “Glenroy”. Won’t that be enough?” Mrs Archer replied, “I don’t really know” (1/109-10).

Trevor was concerned and a few days later, when his wife Sue was present, he told his father about the conversation and said: “That would be very difficult for me. For a start I would not have a house. I’ve put a lot of time into “Sussex”. I know that you and Mum have already put it in your wills but what are the chances of having “Sussex” transferred into my name now?” His father replied:
“Yes, I suppose it’s time that we transferred it to you. You’d better make some enquiries with a solicitor to see what’s involved and let me know”. (1/109-10)
It has not been suggested that Trevor acted unconscionably in making this request. Beazley JA states in her reasons (12): “The making of a filial claim, inconsistent with either the wishes of a parent or the potential claims of other siblings, does not of itself constitute the exertion of undue influence”, and I would add that it does not constitute unconscionable conduct either. Fitzgerald JA in his reasons states (16) that Trevor’s attitude was “understandable”. I agree and would add that he also had a duty to his wife and stepsons to provide for their future. Trevor’s claim was inherently meritorious, bearing in mind that he had returned to “Glenroy” at his father’s request in 1976, that he had been working with them on that property and “Sussex” for some 13 years, and but for difficulties created by the RAB loan, he would already have been a one third owner of “Sussex”. Mrs Archer agrees that her husband told her about this conversation (2/413-4).
On 21 September Trevor and Sue saw Mr Cheney. They were given general advice about their position and the cost, particularly for stamp duty, that would be incurred in taking a transfer of “Sussex”. Trevor disclosed to Mr Cheney his mother’s attitude to such a transfer, in so far as this was known to him. Mr Cheney’s diary note records (6/1382):
“She apparently takes the view that the property should be divided among all three sons notwithstanding that the others haven’t worked on the property, and Trevor is concerned to protect his interests in this regard. She is also reluctant to transfer her interest in the property during her lifetime as apparently it was a property originally held in her family and she is concerned that in the event that she transfer her assets she will be left without assets in her old age. They are going to discuss the matter further with Mr and Mrs Archer Senior with a view to try to establish a basis on which the transfer can be entered into”.
Trevor spoke to his father and told him that the stamp duty would be about $27,000 and there would be some legal costs, both of which he would be happy to pay. He said his father told him to “go ahead with it” (black 76).
Mr Archer said that he did not tell his wife about all of his conversations with Trevor (1/43), but the findings of Windeyer J establish the contrary. He found that on 26 September there was a conversation between Trevor and his parents at “Sussex” to this effect:
Trevor said: “I am relieved that you and Dad have agreed to transfer “Sussex” to me”.
Mrs Archer said: “I’m prepared to give it to you but not to Sue. I won’t have her name on the papers. We will give it to you but not to her”.
At this stage Sue came into the kitchen and said: “Put it in Trevor’s name. It doesn’t worry me at all”.
Trevor said: “I understand the papers will be drawn up in my name only”. (1/112)
Mr and Mrs Archer must have discussed the transfer of “Sussex” to Trevor and reached agreement among themselves, even if agreement had not been reached after Mr Archer’s conversation with Trevor referred to in para 32.
Trevor fixed the date of this conversation with his parents because they then went to the State Bank, Canowindra to arrange to pay out the outstanding debt to the RAB. The State Bank agreed to make a loan for this purpose, and the partners returned the following day to sign the documents (1/149-156). The RAB mortgage had been secured over “Sussex” and “Glenroy” (5/1082) but the new loan was secured only over “Glenroy” (1/151, 155).
Trevor gave evidence, which was accepted, that his father told the Bank Manager that if the Bank required security it should be over “Glenroy” “because we’re going to transfer “Sussex” to Trevor” (1/114). Mrs Archer was present and was present the following day when the partners signed the loan documents and Mr Archer signed the mortgage over “Glenroy”. The events of 26 September, and the conversation about the transfer of “Sussex”, are referred to in Trevor’s farm diary (1/157), and the two visits of the Bank are noted in Mr Archer’s diary (6/1336).
On 16 October Trevor and Sue saw Mr Cheney again and told him that Mr and Mrs Archer had agreed to transfer “Sussex” to Trevor, but not to Sue. Mr Cheney was instructed to prepare the necessary documents.
This summary is based on matters which are not in dispute and on the findings of Windeyer J which have not been challenged. On these uncontested facts and findings Trevor was justified in informing Mr Cheney that his parents had agreed to transfer “Sussex” to him by way of gift because this was the truth. Mr Cheney had no reason for disbelieving Trevor, particularly in the light of his frank disclosure of his mother’s attitude at their first meeting.
After two conversations with Trevor in August and September 1989, Mr Archer had agreed to the transfer of “Sussex” to Trevor by way of gift. He kept Mrs Archer informed and she had also agreed that the transfer should take place. She confirmed her agreement in the presence of her husband, Trevor and Sue at “Sussex” on 26 September, and was present when her husband arranged for the State Bank loan to be secured on “Glenroy” because “Sussex” was to be transferred to Trevor.
Mr Archer, as Simos J held, was not subject to Trevor’s undue influence. His discussions with his wife about the transfer were in private. Mrs Archer was not subject to Trevor’s undue influence either, as Windeyer J has held, and this Court will affirm. Mr Archer was apparently in good health and had not yet had his first heart attack. The discussions had proceeded over a number of weeks without any pressure or manipulation from Trevor. In between Mr and Mrs Archer had been away on holidays in Western Australia from 26 August to 16 September (2/403).
Mr Archer was the managing partner as a matter of contract under the partnership agreement (1/59), and also in fact as Priestley JA held (red 8). Mrs Archer had the fullest opportunity to discuss the pros and cons of the proposed gift over many weeks with her husband, its effect on her financial security after his death, and any need she might have in that event for both “Sussex” and “Glenroy”. She did not need legal advice to know that the immediate gift of “Sussex” to Trevor spelt the end of her wish that all her sons should share in that property after her death.
There was no reason for Mr Archer to agree to a transfer of the whole of “Sussex” if he had any doubts about the sufficiency of “Glenroy” and its proceeds of sale to provide for his wife and himself after he retired and to provide for Mrs Archer after his death. There was no evidence that Mr or Mrs Archer suggested to Trevor at this time that he should be content with something less than the whole of “Sussex” because they needed something more than “Glenroy”.
Trevor received a letter from Cheney & Wilson dated 17 October 1989 (1/163) informing him that the documents had been prepared and that an appointment should be made for his parents to call and sign them. Trevor did not follow up this letter with any haste, and before an appointment could be arranged Mr Archer, on 6 November, suffered his first heart attack and was admitted to Orange Base Hospital. He remained there until 17 November.
Soon after his father’s discharge from hospital Trevor had a conversation with his parents at “Glenroy” when he told them: “The papers are ready to sign “Sussex” over. When will it suit you to go in and sign the papers?” He said that one of his parents, he did not remember which, said that they could go in on 24 November as Mr Archer had an appointment to see Dr Winkworth (1/118). Trevor made an appointment with Mr Cheney for 12.30 pm that day and told Mrs Archer that he had done so. She said that this was OK (1/119). On the morning in question he went to “Glenroy” to milk the cows and then called at the house to remind his parents of the appointment. He spoke to one or other of them and arranged to call for them at 11.30 to drive them into Orange for the appointment.
Windeyer J rejected the evidence of Mr and Mrs Archer that they had no idea on 24 November 1989 that they were going to see a solicitor in Orange to sign documents transferring “Sussex” to Trevor and he accepted Trevor’s evidence to the contrary. It was not suggested to Trevor that either of his parents had objected to an early appointment, or asked for it to be put off until Mr Archer was better. If Mrs Archer was starting to have second thoughts she had the better part of a week to raise them with Mr Archer in private. On the findings of Windeyer J Mr and Mrs Archer acted as if they had made their decision and had no second thoughts, and it was just a question of signing the necessary documents to carry their decision into effect. There can be no question of Mrs Archer being taken by surprise either when she was called for at “Glenroy”, or when she was taken to Mr Cheney’s office and asked to sign documents transferring “Sussex” to Trevor.
The events in the solicitor’s office were the culmination of a process which had begun more than three months before. Mrs Archer had had the fullest opportunity to discuss the matter with Mr Archer and obtain his advice both before and after his heart attacks. She had confirmed her willingness to proceed with the transaction more than once over the period of two months since 26 September. She may have harboured doubts and some resentment that her wishes for “Sussex” were being frustrated, but she gave no hint of this to Trevor, and could not have given any hint of it to Mr Archer either. He could so easily have put off signing the documents by pleading indisposition following his heart attacks.
Mrs Archer was no shrinking violet. She did not hesitate to make known her wish that “Sussex” should not be transferred to Trevor and his wife but only to Trevor alone. Although her note dated 1 December 1989 (Ex 18) has been rejected as a fabrication, her willingness to create and back-date it, and support it with sworn evidence over two trials, demonstrates exceptional determination. Windeyer J, who saw her in the witness box, said: “It is perfectly clear that Mrs Archer was not a person who could be dominated” (red 143).
Windeyer J accepted (red 72) the evidence of Mr Cheney about what took place during the appointment on 24 November (1/207-211). His evidence included the following:
“I said to Mr and Mrs Archer senior:
I have had discussions with Trevor about the transfer of the property “Sussex” into his name. He tells me that he has discussed the transfer with you. Is that correct?
Mrs Archer looked at her husband as if waiting for him to answer. I asked Mr Archer senior:
Is that correct?
He said: Yes.
I then said to them:
You understand that by signing the documents I have prepared the property will be in Trevor’s name and will no longer be your property. You will remain the owners of “Glenroy” and these documents have nothing to do with the property, “Glenroy”?
One of them (I cannot remember which) said:
Yes, that’s right. We continue to own “Glenroy”.
I then said to them:
I have prepared a contract and a transfer and I have made enquiries about the mortgages which have to be discharged. The amount shown on the contract as the price is an estimate only based on figures supplied to me by Trevor but this figure will have to be supported by a valuation to calculate stamp duty.
…
I then said:Trevor tells me you have paid out the private mortgage. Is that correct?
One or both of them answered:
Yes.
I said:Trevor also tells me the Rural Assistance Board loan has been refinanced and he will take over the National Bank debt and will pay legal costs and stamp duty. Are you prepared to sign the documents and transfer the property to him on that basis without any further payment?
Mr Archer Snr answered:
Yes.
Mrs Archer nodded her head …
I then showed them the front page of the contract and where they were described as the vendors. I pointed out to them that Trevor alone was shown as the purchaser.
I said:This has got nothing to do with Sue … You will see that the contract refers to “Sussex” only on the front of this contract and that the description of the titles inside the contract has nothing to do with “Glenroy”. The contract includes all of the improvements erected on the land.
…
I then said:You will see the sum of $436,500 on the front of the contract. That has been calculated by reference to a figure of $500 per acre which Trevor regarded as a realistic value for stamp duty purposes and which we believed should be confirmed by the valuer. Do you understand those matters?
Both of them said or indicated “yes”. I then turned the contract over and I said to them:
Would you each like to sign the contract here.
They each said or indicated “yes” and both of them signed the contract in my presence”.
Mr Cheney then explained the transfer and they executed it. Finally he told them that he needed their authority to collect the title deeds from the State Bank at Canowindra and they signed a document for this purpose (6/1332).
Mr and Mrs Archer understood the explanations given by Mr Cheney and knew they were making a gift of “Sussex” to Trevor. If Mrs Archer had second thoughts when she was faced with these documents and asked to sign she kept them to herself. Mr Cheney understood that he was documenting a gift which Mr and Mrs Archer had willingly agreed to make. He was entitled to assume that they had discussed the implications of the gift before agreeing to proceed.
Mrs Archer said that she did not want to sign the documents but was worried about Mr Archer’s health and thought that he might have another heart attack if she refused. I agree with Beazley JA that Windeyer J had no proper basis for rejecting her evidence that she was worried about her husband’s health. However this does not establish that these concerns were operating on her mind in Mr Cheney’s office and caused her to sign the documents against her will.
Mrs Archer’s concerns arose after her husband’s first heart attack on 6 November, but she had agreed to the transfer of “Sussex” some six weeks before.
After Mr Archer was discharged from hospital, he and Mrs Archer agreed to the making of an appointment with the solicitor to sign the documents, were told that it had been made, were reminded of it, and were then called for and driven into Orange. Mrs Archer did not say that she had acquiesced in these arrangements because of her concerns about Mr Archer’s health. Her case was that she had no prior knowledge of the appointment or its purpose, and that she was suddenly confronted in Mr Cheney’s office with the choice between acquiescence or refusal, and only acquiesced because she feared that her refusal might provoke another heart attack.
Mrs Archer’s evidence of these events has been rejected. Her case that her will was not independent and voluntary because it was overborne has failed, and the decision by Windeyer J that she knew what she was doing and did it freely (red 82) is to be affirmed.
The result in my opinion is that the substratum of fact to support a finding that she only executed these documents because she was concerned about her husband’s health does not exist.
Such a finding would require acceptance of Mrs Archer’s evidence about her thought processes which was inextricably linked with her evidence about earlier events which has been rejected. Indeed she was not accepted on any disputed question. Accordingly a finding that she only signed the documents because of her concerns about her husband’s health is precluded by the Abalos principle. In my opinion Mrs Archer did not prove that in the period up to and including 24 November she was “unable to make a worthwhile judgment as to what was in [her] best interest” (Amadio at 461 per Mason J).
Mr Cheney knew that Mr Archer was retaining “Glenroy”. This was subject to the State Bank mortgage of $16,500 (1/152) but was otherwise unencumbered. He mentioned the value per acre put on “Sussex” and its total value on that basis. If Mr and Mrs Archer were not already aware of the value of “Sussex” (an unlikely situation) they were informed about this before they signed the documents. Since the transaction was a gift questions as to the adequacy of the consideration and the awareness of the disponor of any inadequacy do not arise.
It was no part of the case of Mr and Mrs Archer in the first trial that they were not aware of the real value of “Glenroy” in 1989 and for this reason lacked a proper understanding of the effect of the transfer of “Sussex” on their interests. The terms on which Windeyer J allowed the amendment to raise unconscionability as an independent claim precluded Mrs Archer from leading evidence on these issues at the second trial.
Trevor gave evidence about a conversation with Mrs Archer in August 1989 when she said that she might need both “Sussex” and “Glenroy” to provide for her old age. When Trevor asked her why “Glenroy” would not be enough she merely said “I don’t know”. She denied this conversation but Windeyer J accepted Trevor’s evidence. No attempt was made at the first trial to prove that “Glenroy”, or the proceeds of its sale, would not be able to support Mr and Mrs Archer in reasonable comfort and security. Mr Archer told the National Australia Bank in 1992 that he expected “Glenroy” and its stock and plant to realise $500,000 to $600,000 nett (6/1341, 2/391-2) and he said at the first trial that he thought the land was worth $400,000 (2/391).
Mr Archer bought “Glenroy” in 1948 (7/1526) and it had been the home of Mr and Mrs Archer ever since. It had been the sole basis of support for them and their family until “Sussex” was acquired in 1979. By 1976 Mr Archer felt the need for help in running “Glenroy” because he asked Trevor to come back to help. Without Trevor’s assistance he and Mrs Archer would, almost certainly, not have been willing or able to purchase “Sussex”. There is therefore no reason to suppose that “Glenroy” and the proceeds of its sale would not be sufficient to provide for Mr and Mrs Archer in their old age. Mr Archer said that most of the partnership income came from “Glenroy” (1/78) although “Glenroy” comprised only 536 acres (1/46), while “Sussex” had 874 acres (1/77).
Mr and Mrs Archer retained their half share in the partnership and the annual accounts for 1989 were in evidence (5/1525 and foll). These disclose a gross income of $101,139.46, expenses of $57,489.30 and nett profits of $43,650.16. The nett assets at book values, excluding the properties and their mortgages, totalled $58,698.17. However the real value of the stock and plant was much greater. On the informal winding-up after 30 June 1994 the stock and plant were divided. Calculations based on market values as at 30 June 1994 show a surplus over book value of over $117,000 (6/1294). Exhibit 36 tendered by Trevor’s counsel before Windeyer J, but not included in the appeal books, established that “Glenroy” was sold in August 1995 for $455,000. It is not clear whether the price included stock and plant.
Trevor had no evidentiary or legal onus of proving that this transaction by Mrs Archer was not an improvident one. Transactions alleged to be unconscionable bargains attract somewhat different principles which were summarised by Deane J in Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447 at 474:
“The jurisdiction of courts of equity to relieve against unconscionable dealing developed from the jurisdiction which the Court of Chancery assumed, at a very early period, to set aside transactions in which expectant heirs had dealt with their expectations without being adequately protected against the pressure put upon them by their poverty … The jurisdiction is long established as extending generally to circumstances in which (i) a party to a transaction is under a special disability in dealing with the other party with the consequence that there was an absence of any reasonable degree of equality between them and (ii) that disability was sufficiently evident to the stronger party to make it prima facie unfair or ‘unconscientious’ that he procure, or accept, the weaker party’s assent to the impugned transaction in the circumstances … Where such circumstances are shown to have existed, an onus is cast upon the stronger party to show that the transaction was fair, just and reasonable: ‘the burthen of shewing the fairness of the transaction is thrown on the person who seeks to obtain the benefit of the contract’.” (citations omitted)

The cases cited involved bargains between strangers dealing at arm’s length. In this case there was no bargain. Mr and Mrs Archer knew the value of “Sussex” and no question of adequacy of consideration arises. In many of the cases referred to the facts spoke for themselves and established a prima facie case which placed an evidentiary onus on the purchaser. In my judgment the facts as found or admitted in this case do not speak for themselves of equitable fraud and unconscionable dealing, and do not establish a prima facie case which imposed any evidentiary onus on Trevor. It would be quite unfair, given the history of this case, for any evidentiary onus to be placed on Trevor.
Mrs Archer’s gift removed her interest in “Sussex” from her power of testamentary disposition. However there is no evidence that she had no other assets, apart from her interest in the partnership. Her case at the first trial was based on the actual exercise of undue influence over her by Trevor. In other words, her case was that her “will” was “not independent and voluntary because it [was] overborne” (Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447 at 461 per Mason J), and that she did not execute the documents “as the result of the free exercise of [her] independent will”; Bridgewater v Leahy (1998) 194 CLR 457 at 477 per Gaudron, Gummow and Kirby JJ.
She did not establish, or even attempt to establish, the precise effect of the gift on her disposable property. Her case was not that the disposition was improvident, but that she did not want to part with her interest in “Sussex” because she wanted to leave it to her three sons equally.
Windeyer J found that Mrs Archer “well knew what she was doing and did it freely” (red 82). In the light of the Judge’s findings, the effect of this gift on the assets presumptively available for her testamentary disposition, and the consequences for the hopes and expectations of her other sons, cannot, in my judgment establish, or assist in establishing, that this was an unconscionable transaction. The Family Provision Act 1982, and cognate legislation, does not, during the lifetime of a disponor, affect or restrict his or her legal capacity to dispose of property by gift.
It would have been unconscionable for Trevor to defeat Mrs Archer’s intentions for “Sussex” by the exercise of undue influence, by misrepresentation, or by unconscientiously taking advantage of some physical or mental weakness. But none of this has been established and the gift was not shown to be an improvident transaction. It was not unconscionable for Trevor to persuade Mr Archer, and directly or indirectly Mrs Archer, that his moral claims on their bounty should be recognised by an immediate gift of “Sussex” so long as they fully understood what they were doing and freely entered into the transaction.
The Court in its jurisdiction over equitable fraud cannot find that Trevor acted unconscionably simply because it forms the opinion that his moral claims did not warrant the making of this gift.
Mrs Archer had no proprietary interest in “Glenroy” and it is suggested that this made the gift of her interest in “Sussex” improvident. It is said that Mr Archer was not bound to leave a will giving her “Glenroy” or its equivalent. This is literally correct, but there was no suggestion at either trial that Mr Archer was likely to make a will which did not properly provide for his widow. His 1989 and 1990 wills are in evidence (6/1315, 1348) and these made Mrs Archer his sole beneficiary if she survived him. Mrs Archer’s 1994 will is also in evidence (6/1365) but not Mr Archer’s. He was not asked about his 1994 will and there is no reason to think it failed to make proper provision for his widow.
In any event the Family Provision Act 1982 authorises court orders in favour of widows out of their husbands’ testamentary and notional estates and Mrs Archer had rights under this Act which practically guaranteed that, to the extent of the assets available, the Court would make proper provision for her even if her husband did not.
Mrs Archer’s gift is not shown to be improvident simply because it left her maintenance and support during widowhood dependent either on her husband’s testamentary dispositions or the exercise of the court’s powers under the Family Provision Act. In the circumstances of this case that risk in 1989 was speculative and theoretical rather than real. Neither Mr Archer nor Mrs Archer gave any evidence directed to this question. Any claim to set aside this gift on such a basis can properly be seen to be based on a technicality.
In my opinion Mrs Archer’s case that this was an unconscionable transaction broke down completely. It was not improvident. Mrs Archer was not in any situation of disadvantage in dealing with Trevor. The fact that Mr Archer considered that “Sussex” should be transferred to Trevor did not place her in such a position. She was able to discuss with him the merits of Trevor’s claim and its effect on the financial interests of herself and her husband. Mr Archer was familiar with the finances of his wife, himself, and the partnership. His financial interests were substantially identical with hers. He was evidently satisfied that they did not need to retain “Sussex” in order to have adequate financial security in their old age, and was able to satisfy Mrs Archer about this. There was no evidence to the contrary.
Mrs Archer’s concerns about her husband’s health did not put her in a position of disadvantage when she agreed in September to the transfer of “Sussex” to Trevor because those concerns did not then exist.
The question whether Trevor took unconscientious advantage of Mrs Archer’s situation can hardly arise. Nevertheless it is important to focus on the position prior to 6 November when Mr Archer had his first heart attack. Mrs Archer’s case in respect of this earlier period broke down completely because there is no evidence that she was then in a situation of disadvantage, there is no evidence that Trevor knew this, and there is no evidence that he exploited the situation which did exist.
If there was nothing unconscionable in Trevor’s conduct before agreement on the transfer of “Sussex” was reached, there could be nothing unconscionable in taking normal steps to have that agreement implemented. Nothing happened between 17 and 24 November to alert Trevor to any change of mind by Mrs Archer. He did not know that he needed to do anything unusual to obtain her signatures. Trevor acted openly, and without undue haste. In my opinion Mrs Archer’s claim that the transfer of the whole of her interest in “Sussex” was an unconscionable transaction procured by Trevor fails, and her appeal should be dismissed.
Simos J rejected the defences of laches and acquiescence based on events after 24 November, and this part of his decision was not challenged. However those events may be considered to see whether they support Mrs Archer’s claim that she had been victimised and “tricked” into signing the transfer documents.
Trevor gave evidence that a few days after 24 November Mrs Archer said to him at “Glenroy” (1/123):
“We’ve signed the farm over to you now. Are you happy about that?”
He replied with words to the following effect:
“Yes I am and thank you very much”.
Windeyer J found that this conversation took place (red 71).
The transfer of “Sussex” to Trevor was not registered until after 9 April 1990, and this was only possible because on 2 March Mr and Mrs Archer authorised the National Australia Bank to send the title deeds of “Sussex” to Mr Cheney. On 24 November 1989 they signed an authority directed to the State Bank, Canowindra authorising the release of the title deeds, but this was ineffective because the deeds were held by the National Australia Bank, Orange.
On 6 December 1989 the National Australia Bank, Orange wrote to Mr and Mrs Archer C/- “Sussex” (7/1517 and Ex 32 tendered before Windeyer J) asking them to call at the Branch “at your earliest convenience to sign necessary settlement authority and security release”. The letter stated that settlement had been requested by Cheney & Wilson. Mrs Archer said they could have received it but she did not recall doing so (4/961), denied receiving it (black 22), and said she received such a letter in October 1989 (1/68, black 22). There is no October letter from the National Bank to Mr and Mrs Archer in the Bank file (Ex 36). Mr Archer said he probably did receive the letter of 6 December (4/951).
Mr and Mrs Archer did nothing about the December letter and on 26 February Mr Cheney wrote to them, again C/- “Sussex”, stating “that it will be necessary for you to attend at the National Australia Bank … Orange to sign a Surrender of Deeds form to enable the Bank to hand the Deeds to the Commonwealth Bank on settlement of this matter”. The letter was headed “Sale to T J Archer Property: “Sussex” Toogong”. Mr Archer denied receiving this letter (black 54), but Mr Cheney said that it was not returned to his office (1/212). Mrs Archer does not appear to have been asked about its receipt.
On 2 March 1990 Mr and Mrs Archer attended at the National Australia Bank, Orange and signed the necessary authority (Ex 34). It is a fair inference that they did so because they had received the letter of 26 February. Mrs Archer denied going to the Bank on 2 March and signing any authority (black 23), but said that the signature on the original looked like hers but she would not say it was (black 23). Mr Archer agreed that the document bore his signature (black 55). Windeyer J found that this document bore the signatures of both and that Mrs Archer’s evidence about this document “was completely unacceptable” (red 83).
Mrs Archer knew on 2 March 1990 that the transfer of “Sussex” to Trevor had not yet been registered and that Trevor could not become the owner of “Sussex” without the deeds (4/965). More than three months had elapsed since the signing of the transfer documents on 24 November. The Bank authority was just as important as the transfer documents if Trevor was to become the registered owner of “Sussex”, but Mrs Archer did not claim that her signature on this had been unfairly obtained by Trevor, or that she only signed because of her fears for Mr Archer’s health. Her signature, and that of Mr Archer, were obtained without either haste or pressure. Mrs Archer’s conduct in signing the Bank authority is not only significant in itself, it also throws light on her belief at that time about the events on and before 24 November. Mrs Archer failed to establish that between 24 November and 2 March she was “unable to make a worthwhile judgment as to what [was] in [her] best interest” (Amadio at 461 per Mason J).
On 13 March Mr Archer was again at the National Australia Bank to arrange overdraft accommodation so he could pay his income tax. The Bank’s file states that he informed the Manager that day that “he wishes to transfer his property “Sussex” to his son” (6/1339, 2/376-7).
On 12 September 1990 Mr and Mrs Archer made new wills (6/1348-55), again in mirror form. Mr Archer made Mrs Archer and Trevor his primary executors, and Mrs Archer made Mr Archer and Trevor her primary executors. Clause 4 of both wills provided:
“I DECLARE that I have made no provision for my son TREVOR ROBERT ARCHER as I have provided adequately for him during my lifetime”.
This shows that Mr and Mrs Archer knew that “Sussex” had been transferred to Trevor and their appointment of him as their executor shows that he then had their trust and confidence. Mrs Archer claimed (1/75) that cl 4 in her will referred to the transfer to Trevor of only one third of her interest. However Ex 18 records her belief when it was written that Trevor owned the whole of “Sussex” (“he has got over 800 acres”) and that she had no interest (“He should pay 2/3 of my 400 odd acres to me or Colin or Neville when I am gone”) (red 68).
Windeyer J found that when Mrs Archer made this will she was then “well aware” that she had transferred her interest in “Sussex” to Trevor (red 83). Moreover she had full knowledge of the material facts. The trial Judge rejected her claim that material facts came to her knowledge later (the terms of the contract of sale) which made her aware for the first time that she had been “tricked” into signing documents which she did not want to sign and did not understand. (Compare red 67-8.)
Trevor’s title to “Sussex” remained unchallenged until 1992. In October or November that year Mrs Archer asked Trevor about the house he had promised to buy her. Trevor denied making such a promise (1/127). On 21 December 1992 Cheney & Wilson received a letter of demand from Timmins & Partners who were acting for Mr and Mrs Archer, which foreshadowed proceedings to overturn “the conveyance” pursuant to the Fair Trading Act and the Contracts Review Act (6/1430). Timmins & Partners could not have been aware at that time of Ex 18 because they emphasised “the state of mind of Mr Archer” rather than Mrs Archer at the time the transfer documents were executed. As late as 9 March 1995, when Mr and Mrs Archer lodged their first caveat over “Sussex” (6/1344) through Timmins & Partners, their claims were as unpaid vendors and under an oral agreement.
Mrs Archer obtained a copy of the Contract of Sale from Mr Cheney in April 1992 (red 63), but Trevor was not aware of any moves by his parents to challenge the transaction until 24 December when he received a copy of the letter of demand from Mr Cheney. Mrs Archer’s interest in obtaining a copy of the contract had been aroused as a result of a conversation with Neville (1/50) who had been told by Trevor that he was the owner of “Sussex” (red 63).
On 9 September 1992 Mr Archer told the Manager at the National Australia Bank, Orange that he was contemplating retirement and would most probably sell “Glenroy” and expected to nett $500-600,000 but that Trevor would retain and operate “Sussex” (6/1341).
In August or September 1993 Mr Archer told Trevor that he was going to put “Glenroy” on the market but was prepared to give him first option. Trevor said he could not afford it (2/252). The property went to auction on 3 December 1993 but was passed in (1/130). Notice that “Glenroy” would be put on the market and the attempts to market it culminating in the auction showed that Mr and Mrs Archer wished to retire from the land and terminate the partnership. On 19 May 1994 Trevor gave notice terminating the partnership on 30 June 1994 (1/130). He said he did this because his father had decided to sell “Glenroy” and because relationships had become strained as the result of his parents’ allegations that he had tricked them into transferring “Sussex” (1/130).
In these circumstances Trevor’s conduct in 1994 does not throw any light on the nature of his conduct leading up to the transfer of “Sussex”, and cannot assist in establishing that it was unconscionable.
Mr Cheney purported to act for all parties on the transfer of “Sussex”. Although his explanation of the documents was sufficient, he failed to properly consider his duty to Mr and Mrs Archer. He should have interviewed them privately, without Trevor present, to satisfy himself that both of them were perfectly happy with the transaction. He knew “they” were retaining “Glenroy”, but failed to ask them whether it was sufficient for their needs in their old age. He knew that Trevor and his parents were in partnership but he failed to ask them about the nature of the partnership, and whether the parents wanted protection against the risk of an early dissolution of partnership from Trevor.
Mr Archer was then about 70 and Mr Cheney either knew about Mr Archer’s heart attacks (2/413), or would soon have found out if he had interviewed them privately and asked appropriate questions. Knowledge of Mr Archer‘s health should have demonstrated the need for Mr and Mrs Archer to have some protection against an early dissolution of partnership from Trevor, and they should have received advice to that effect, although they may still have been prepared to trust their son.
The absence of protection against an early dissolution of partnership was never part of the case brought by Mr and Mrs Archer in the first trial, or Mrs Archer’s case in the second trial. The risk did not eventuate and it was Mr Archer who made the first move for a dissolution by putting “Glenroy” on the market. It is doubtful whether any contractual protection against a dissolution of partnership by Trevor would have lasted for more than 5 years, and the partnership continued for more than 4½ years anyway.
Trevor is unable to claim the protection that the provision of sound, independent, legal advice to his parents would have provided, but in this case he does not need that protection because the transaction has not been shown to be improvident, and Trevor’s conduct has not been shown to be unconscionable.
Trevor had no plans in 1989 for an early end to the partnership once he became the owner of “Sussex” and it continued for a further 4½ years. The absence of legal protection for Mr and Mrs Archer in their partnership agreement with Trevor is at most a matter of professional negligence for which Trevor was not responsible either in law or in fact. He was not shown to have been conscious of the risk his parents faced, or their need for any protection against himself. The situation may have been different if “Sussex” had provided substantially more than half the partnership income, but Mr Archer said that most of the partnership income came from “Glenroy” (1/83).
In my opinion the appeal fails and should be dismissed with costs.
103 BEAZLEY JA: The appeal in this matter from a decision of Windeyer J involves a family dispute in which the appellant, the respondent’s mother, alleges she agreed to transfer her interest in a rural property known as “Sussex” to the respondent in circumstances where he had either exerted undue influence over her or acted unconscionably towards her. Windeyer J rejected the appellant’s claim and entered a verdict for the respondent in the proceedings.
The facts as found by the trial judge were accepted by the appellant for the purposes of the appeal. However, counsel for the appellant sought to give the facts a different emphasis from the trial judge, submitting that on the found facts, his Honour should have determined that the transaction was affected by undue influence and unconscionability.
Background Facts
The appellant and her husband (Mr Archer Snr), were what I will describe as a farming family in the Orange district in western New South Wales. Mr Archer Snr was born in 1919 and the appellant in 1920. Mr Archer Snr had purchased the first family property, called “Glenroy”, in 1948 and he and the appellant had carried on a farming enterprise on the property in partnership. Two of their three sons became partners in the enterprise. Trevor, who is the respondent, became a partner in 1978. Neville became a partner in 1980, but withdrew from the partnership in 1987. It appears Neville was ‘paid out’ for his interest in the partnership at that time, but there was no evidence as to the amount he was paid.
In 1979, the appellant and Mr Archer Snr purchased as joint tenants a second property in the area, called “Sussex”. This property had been owned by the appellant’s father. The appellant and Mr Archer Snr purchased it from the father’s estate. “Sussex” is the property subject of the present dispute.
It had originally been intended that the respondent would be a co-purchaser of “Sussex” but the lending conditions of the Rural Assistance Board precluded this and the property was purchased in the joint names of the appellant and Mr Archer Snr. The purchase of the property plus plant machinery was financed in part out of the appellant’s one-sixth share of her late father’s estate, in part from joint resources and in part by loans from the Rural Assistance Board ($30,000), from the Commercial Banking Company of Sydney Ltd ($27,000) and from the appellant’s sisters ($40,000). The respondent guaranteed the Rural Assistance Board loan. He also claimed to have contributed to the mortgage repayments. Whilst there does not appear to be any dispute that this was the case, the trial judge made no such finding and it appears from the evidence that some of the claimed payments made by the respondent were for purchases of cattle and farming equipment. The respondent also had accommodation on the property.

Following a threat by Mr and Mrs Archer to overturn their transfer of “Sussex” to Trevor, there were inconclusive discussions between the parties and their lawyers in 1993.
Trevor dissolved his partnership with Mr and Mrs Archer on 30 June 1994.
In 1995, Mr and Mrs Archer lodged caveats over “Sussex”, and, in April that year, they commenced their Equity Division proceeding seeking the have the transfer of “Sussex” wholly set aside.
Windeyer J held that Mrs Archer was an untruthful witness. His Honour found that she had fabricated a document which she said was a note which she had written at about 11.00 p.m. on the day when the documents were signed, which she asserted was not 24 November but 1 December 1989. His Honour also referred to inconsistencies in Mrs Archer’s evidence, which included conflicting assertions that she had not understood that she had signed documents to transfer her interest in “Sussex” to Trevor, that she had intended to transfer only one third of her interest in “Sussex” to Trevor, and that she had understood that she had transferred her interest in “Sussex” to Trevor but she had done so only because of circumstances involving undue influence or unconscionable conduct by Trevor. Mrs Archer’s evidence that she was surprised when she and Mr Archer were taken to Mr Cheney’s office on 24 November 1989 but decided to sign and say nothing because she was so worried about Mr Archer’s health was rejected. His Honour found that, when she transferred the whole of her interest in “Sussex” to Trevor, Mrs Archer “well knew what she was doing and did it freely”, that “she was never shown not to have acted as she wished to act..”, and that she “did what she did because she had agreed to so but later changed her mind and concocted a story..”. His Honour also found that “[n]one of the pleaded claims of disability stated to arise from the illness of Mr Archer; inexperience; inequality of bargaining power and inability to protect her own interests [was] made out”.
Subject to what follows, those findings were open. Mrs Archer cannot succeed on the ground of undue influence if she cannot succeed on the ground of unconscionable conduct.
The issue raised by Mrs Archer’s claim of unconscionable conduct is whether Trevor obtained a gift of her interest in “Sussex” by unconscionable conduct. If that issue is determined in Mrs Archer’s favour, Trevor does not dispute that she is entitled to the part of the proceeds of sale of “Sussex” which is held in trust. Events subsequent to Mrs Archer’s gift of her interest in “Sussex” to Trevor were relied on by him for any assistance which they provided in understanding the circumstances of that gift, but were as disentitling Mrs Archer to any relief to which she would otherwise be entitled by reason of the circumstances of that gift, properly understood.
Windeyer J found that the “only evidence which could possibly support the claim based on unconscientious behaviour” was Trevor’s statement that he intended “to thwart [Mrs Archer’s] desires for [his] own advantage”, which was the “natural progression” of events after he saw Mr Cheney “having been told to do so by his father”. On the basis of his findings, his Honour held that the “claim based on unconscionability must be dismissed.”
However, the desire of Mrs Archer which Trevor intended “to thwart”, and succeeding in thwarting, was her desire to retain her interest in “Sussex”, not give it to Trevor. In deciding whether he acted unconscionably in obtaining a gift of Mrs Archer’s interest in “Sussex” in those circumstances, it is necessary to consider Mrs Archer’s position, which was known to Trevor, including the reasons for her to retain her interest in “Sussex”, and the means which Trevor used to obtain a gift of her interest in “Sussex”.
Trevor’s attitude was understandable. “Sussex” was his family’s home, and he derived his income from the partnership conducted on “Glenroy” and “Sussex”. If Trevor obtained “Sussex”, he would own his own property, and would no longer be dependent on the partnership with his parents and the use of their properties for partnership purposes. Unless he obtained “Sussex” while his father was alive, Trevor’s family would probably have to leave “Sussex” at some time, and he would have to find another source of income. He would probably eventually inherit only a third share of whatever Mrs Archer owned at the end of her life, which might not be much.
Mrs Archer was about 69 or 70 years old, would probably survive Mr Archer and might live for many years. She would probably inherit “Glenroy” from Mr Archer, and, as matters stood, she would be the sole owner of “Sussex” after Mr Archer’s death. If she chose to do so and Trevor agreed, she might be able to operate “Glenroy” and “Sussex” with Trevor’s assistance. If that was not possible, or she chose not to do so, the sale of the properties would provide her with money for another home and for investments to obtain an income for living expenses. Mrs Archer would probably not be able to operate “Glenroy” and live on the income after Mr Archer died without Trevor’s assistance, which might not be forthcoming if he owned “Sussex”. While “Glenroy” was larger and probably more valuable than “Sussex”, it was mortgaged, and its sale might not provide Mrs Archer with sufficient money to buy another home and obtain an adequate investment income. Mr Archer’s transfer of his interest in “Sussex” to Trevor involved a considerable detriment to Mrs Archer and her transfer of her interest in “Sussex” to him might leave her without adequate assets for a secure future. Trevor also knew that Mrs Archer was displeased that her other sons would receive less from their parents if he was given “Sussex”. He was aware that, although she understood what she was doing, Mrs Archer did not want to give him her interest in “Sussex” but was anxious about Mr Archer’s health and desirous of complying with his wishes about their properties.
No attempt was made to find a solution which would be reasonably satisfactory to Trevor and Mrs Archer; for example, consideration was never given to possible agreements which would guarantee Trevor’s ultimate ownership of “Sussex” but ensure that he continued to work both properties in partnership with Mr and Mrs Archer during their respective lifetimes.
When Mrs Archer signed the documents which Mr Cheney had prepared and returned them to him on 24 November 1989, she was in a position of disadvantage relative to Trevor. The trial judge said that “Mrs Archer was not a person who could be dominated”. However, Trevor effectively acknowledged that he was able “to thwart [Mrs Archer’s] desires for [his] own advantage”, and he did so.
Quite possibly, Mrs Archer did not need to retain her interest in “Sussex” in order to be financially secure after Mr Archer’s death. Perhaps that was Mr Archer’s opinion, although he might simply have had a father’s optimistic view of Trevor’s future attitude to his mother’s well-being. Nonetheless, it is significant that Trevor enlisted Mr Archer to influence Mrs Archer to abandon her own wish and give Trevor her interest in “Sussex”. Trevor also obtained advice and assistance from Mr Cheney and took Mr and Mrs Archer to Mr Cheney’s office to sign the documents. Importantly, although he knew that Mrs Archer did not want to give him her interest in “Sussex”, Trevor did not suggest that Mr and Mrs Archer, or Mrs Archer, should obtain independent assistance and advice. I consider that the methods used by Trevor to obtain Mrs Archer’s signature of the documents on 24 November 1989 were unconscionable in the circumstances.
However, the gift of her interest in “Sussex” to Trevor which Mrs Archer impugns was not completed when she signed the documents which Mr Cheney had prepared on 24 November 1989 or until some months later. Further, the gift could not have been completed without Mrs Archer’s cooperation, which was forthcoming.
During the period taken to complete Mrs Archer’s gift of her interest in “Sussex”, Trevor still did not suggest that she obtain independent advice and assistance, she was still susceptible to Mr Archer’s influence and the documents which she had signed complicated her position and probably made her withdrawal from the gift more difficult, or at least appear so. Nonetheless, even if it should be concluded that Mrs Archer remained in a position of disadvantage relative to Trevor, I do not consider that his conduct in that period, including his continuing omission to suggest to Mrs Archer that she obtain independent advice and assistance, constituted operative unconscientious conduct at that point.
Despite the attempt made in supplementary written submissions to explain Mrs Archer’s cooperation in the completion of the transaction, I am persuaded that she decided to proceed with the gift of her interest in “Sussex” to Trevor, implicitly affirming her earlier signature and delivery of the relevant documents, and that her decision at that time was unaffected by any position of special disadvantage relative to Trevor or any unconscionable conduct in which he had engaged. The trial judge’s finding that “Mrs Archer was not a person who could be dominated” is material to her cooperation at that time. If she had remained an unwilling participant in the gift of “Sussex” to Trevor, it is probable that she would have raised it with Mr Archer and, if necessary, her other sons, and would have sought advice and assistance.
The conclusion that I have reached, namely, that Mrs Archer became a willing participant in the decision to give “Sussex” to Trevor, unaffected by any special disadvantage relative to Trevor or any unconscionable conduct by him, by the time when her gift was completed is supported by Mrs Archer’s subsequent attitude and conduct until her other sons raised the ownership of “Sussex” with her more than a year later.
Mrs Archer’s appeal against the trial judge’s dismissal of her claim against Trevor should be dismissed with costs.

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LAST UPDATED: 10/11/2000

[2000] NSWCA 314

7 November 2000

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