Archer v Archer

[1999] NSWCA 286

CITATION:	Archer & Anor v Archer [1999] NSWCA 286
FILE NUMBER(S):	CA 40455/99
HEARING DATE(S):	19 July 1999
JUDGMENT DATE:	20 July 1999
PARTIES :	Una Evelyn ARCHER Ernest Robert ARCHER v Trevor Robert ARCHER
JUDGMENT OF:	Mason P

LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	ED 2040/95
LOWER COURT JUDICIAL OFFICER:	Windeyer J

COUNSEL:	A: J Conomy R: J Trebeck
SOLICITORS:	A: Peter Adams & Co, Solicitors, Sydney R: Garden & Montgomery, Solicitors, Cowra
CATCHWORDS:	Application for stay - No question of principle.
CASES CITED:	Bridgewater v Leigh (1998) 158 ALR 66 Paringa Mining & Exploration Co plc v North Flinders Mines Ltd (1988) 165 CLR 452 Jesasu Pty Ltd v Minister for Mineral Resources (1987) 11 NSWLR 110
DECISION:	Injunction granted, appeal expedited

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40455/99

MASON P

Tuesday, 20 July 1999

Una Evelyn ARCHER & Anor v Trevor Robert ARCHER

JUDGMENT
1    MASON P: The appellant, Mrs Archer, originally sought an order that a transfer by her to her son Trevor of a one half interest in a property known as Sussex near Cudal, be set aside on the ground of undue influence. That property has now been sold. However, Mrs Archer seeks an order that a sum of money being one third of the proceeds of sale of Sussex, being the same as two thirds of a one half interest, be paid to her. She seeks that relief on the grounds of the transfer of the two thirds of her one half share was obtained by undue influence or through unconscionable conduct on Trevor's part. 2    This is a sad and troubling case. It is sad because it is a family dispute. It is troubling because of the facts and the concern that the litigation is being persisted in in circumstances that will just cause wasted expenditure. The proceedings were originally brought by Mr and Mrs Archer against Trevor Archer on the basis that each claimed that the transfer by them of Sussex to Trevor was procured by undue influence. The original proceedings were heard over 11 days in 1995 before Simos J. Simos J dismissed the claim of Mr Archer, but upheld the claim of Mrs Archer, at least in part, and his Honour made a declaration that the transfer by her to Trevor of her one half interest in Sussex was as to two thirds of that one half procured by the undue influence of Trevor. 3    Trevor Archer appealed to the Court of Appeal against the finding of undue influence. That appeal was expedited and upheld in a judgment delivered on 23 February 1999. The orders made by Simos J relating to Trevor's undue influence were set aside and a new trial was ordered. The new trial was heard in May of this year before Windeyer J. 4    In the light of the High Court's decision in Bridgewater v Leigh (1998) 158 ALR 66, the issues were…