Archer v Archer No. 2

[1999] NSWSC 500

CITATION:	Archer v Archer No. 2 [1999] NSWSC 500
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	2040 of 1995
HEARING DATE(S):	10 and 11 May 1999
JUDGMENT DATE:	27 May 1999
PARTIES :	Una Evelyn Archer (Plaintiff) Trevor Robert Archer (Defendant)
JUDGMENT OF:	Windeyer J at 1

COUNSEL :	Mr. B.A. Coles QC with him Mr. P.B. Walsh (Plaintiff) Mr. J. Trebeck (Defendant)
SOLICITORS:	Garden & Montgomerie (Plaintiff) Peter Adams & Co (Defendant)
CATCHWORDS:	EQUITY UNDUE INFLUENCE - gift of farm by parent to one of three sons - chain of events leading up to transfer - documents signed by all parties in office of one solicitor - claim built on document held to be a forgery; UNCONSCIONABLE TRANSACTION - claim founded on same facts - no special disadvantage - no opportunity by trickery or otherwise - no improper procuring of benefit
CASES CITED:	Bridgewater v Leahy (1988) 158 ALR 66 Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447 Johnson v Buttress (1936) 56 CLR 113
DECISION:	Claim dismissed

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

THURSDAY 27 MAY 1999

2040/95 UNA EVELYN ARCHER v TREVOR ROBERT ARCHER

JUDGMENT

Issue

1    The plaintiff, Una Evelyn Archer, (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 been sold and she now 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 on the grounds of the transfer of the two thirds of her one half share was obtained by undue influence or through unconscionable conduct of Trevor. The question is whether or not she is entitled to relief.

Facts

2    This is a very sad case. The original claim was brought by Mrs. Archer and her husband, Ernest Robert Archer (Mr Archer) against their son Trevor, both claiming that the transfer by them of 'Sussex' to Trevor was procured by undue influence.

3    Those proceedings were heard over 11 days in 1995 before Simos J when the claim of Mr. Archer was dismissed but the claim of Mrs. Archer was upheld in part and a declaration made that the transfer by her to Trevor of her one half interest in the property 'Sussex' was as to two thirds of that one half procured by the undue influence of Trevor. Other orders were made which are not relevant at the present time. Mr. Trevor Archer appealed to the Court of Appeal against the finding of undue influence. That appeal was heard by the Court of Appeal on 18 August 1998 and its judgment was delivered on 23 February 1999. The Court of Appeal allowed the appeal and set aside the orders made by Simos J, upholding part of Mrs. Archer's claim and ordered that there be a new trial of her claims.

4    The new trial was heard before me on 10, 11 and 12 May 1999. As Mr. Archer had not filed any appeal against the decision of Simos J that he claimed that the transfer of his one half share of 'Sussex' had been obtained by undue influence, the new trial before me was only of the claim of Mrs. Archer, and only in respect of the fund representing two thirds of her notional one half interest in the property, namely one third of the proceeds of sale of that property, that amount being agreed and held in a trust account in the names of the solicitors for the parties. However, as I will explain the action was founded not only on undue influence, but on unconscionable conduct as well.

5    The new trial before me proceeded quite quickly as a result of certain procedural directions or orders made by Bryson J that the evidence in the original trial be evidence in the new trial and that cross-examination of witnesses be limited in time and directed towards the major matters of contention. In view of the very substantial amounts which would have been and have been incurred for costs in this action in comparison to the amount involved it seems to me those orders were very effective, and counsel on both sides should be congratulated on their efficient handling of the new trial in the bounds of those procedural directions. It is proper to say that while some comments were made about the directions by Mr. Coles QC and the use I could make of the material he made no application for their variation and the hearing proceeded on the basis they were in place. It is of course obvious that a lot of the material is irrelevant to the trial before me, particularly insofar as it related to a claim about a house and the partnership. I have had no regard to that irrelevant material. I have received a further communication from Mr. Coles about this, which I have disregarded.

Uncontested facts

6    Mr. Archer was born in 1919 and his wife in 1920. At about the time the events under consideration in this action occurred they were aged about 70 and 69 respectively. They were married in 1946. They have three children, Colin born in 1949, Trevor born in 1952 and Neville born in 1956. Mr. Archer purchased a property known as "'Glenroy'" near Cudal in 1948. He and his wife conducted a farming enterprise on that property, Trevor became a partner in 1978 and Neville a partner in 1980, Neville withdrawing from the partnership in 1987. Another property in the Cudal area known as "'Sussex'" had been owned by Mrs. Archer's father. That property was purchased by Mr. and Mrs. Archer in 1979 from the estate, they buying out Mrs. Archer's sisters. The purchase moneys were provided at least in part by loans from the Rural Assistance Board of $30 000, from the Commercial Banking Company of Sydney Limited for $27 000 and from the four sisters of Mrs. Archer for $40 000. All these loans were secured by mortgage over 'Sussex'. It had been originally intended that 'Sussex' would be purchased in the names of Mr. and Mrs. Archer and Trevor, but that was not possible due to the conditions under which Rural Assistance Board loans were available, thus Trevor did not become a purchaser although he was a guarantor of the liability of his parents under the Rural Assistance Board mortgage.

7    Trevor married his wife Sue Archer in 1982 and they lived in a cottage on 'Sussex' and for a time Neville lived there as well. After Neville withdrew from the partnership a new partnership was formed in which Mr. and Mrs. Archer had a one half share and Trevor a one half share. This occurred in March 1989.

8    Trevor continued to work on the two properties and from time to time was engaged in additional employment with a security company at Orange. Both he and his wife were concerned about their future security at 'Sussex'. Trevor discussed this with his father at various times, particularly during 1989 and I will come back to these matters later for determination.

9    Mr. and Mrs. Archer had both made wills on 1 March 1989 which were in effect mirror wills under which they each gave their estate to the other, provided that other survived, but if that did not happen then 'Sussex' was given to Trevor and the residue of the estate was given to the three sons equally, except that the share of Colin was charged with payment of certain legacies. Trevor said he was given a copy of those wills by his mother and I will come back to that later because Mr. and Mrs. Archer denied that they had given copies to him. In September 1989 the mortgage loan to the sisters of Mrs. Archer was repaid and the Rural Assistance Board mortgage was discharged, moneys being advanced by the State Bank of New South Wales. The Rural Assistance Board mortgage was over both 'Sussex' and 'Glenroy', but the State Bank substituted loan was secured only on 'Glenroy'.

10    On 21 September 1989 Trevor consulted Mr. Cheney of Messrs. Cheney and Wilson solicitors of Orange, doing this he says as a result of a conversation with his father who told him, so Trevor said, to find out how much it would cost to transfer 'Sussex' into his name.

11    After the visit to Messrs. Cheney and Wilson, Mr. Cheney wrote to Trevor setting out the desirability of having a transfer to himself effected during the lifetime of his parents and as quickly as possible. There is then some dispute about what happened, Trevor saying that there were discussions when it was agreed that the transfer would go ahead but to him alone and the parents denying that.

12    On 16 October Trevor and his wife saw Mr. Cheney and told him Mr. and Mrs. Archer had agreed to transfer 'Sussex' to Trevor, but not to Sue. As a result of this Mr. Cheney prepared the necessary documents. Mr. Archer suffered a heart attack on 6 November 1989 and was in hospital in Orange for a time, being discharged on 17 November 1989 with arrangements that he would consult his general practitioner, Dr. Winkworth within a week and then see his specialist treating doctor shortly thereafter.

13    On either 24 November 1989 or 1 December 1989 Mr. and Mrs. Archer were driven by Trevor and his wife to the office of Messrs. Cheney and Wilson where they signed a contract for the sale of 'Sussex' to Trevor together with a transfer of that property and an authority directed to the State Bank to send the title deeds to Cheney and Wilson. Mr. Cheney and Trevor say that this took place on 24 November 1989. Mrs Archer says it took place on 1 December. Mr. Archer really does not know. In evidence before me he said he saw Dr. Shannon on the critical day, but later he seemed to concede that it must have happened on 24 November. After the documents were signed in the office of Mr. Cheney, Mr. Archer was taken to a medical appointment, either with Dr. Ridge who is Dr. Winkworth's partner or Dr. Shannon.

14    The consideration shown in the agreement for sale was $436,500. I will come back to this. Mr. Cheney said that was his method of dealing with what he described as "inter-generational transfers of rural property" in 1989 although it was never intended that any money should be paid. It is not the case of Mrs. Archer that any moneys were to be paid. On 5 December 1989 Mr. Cheney gave instructions to Messrs. Toner Savage & Co., to prepare a valuation; wrote to the National Australia Bank asking it to discharge what was the old Commercial Banking Company of Sydney Limited mortgage; and to the State Bank at Canowindra for the deeds and a discharge of the mortgage which had previously existed to that bank to secure the Rural Assistance Board debt. There was an error about the banks but that does not matter.

15    By some lucky co-incidence which is likely to have been pre-arranged, the valuation came in at the purchase price stated in the contract and after the National Australia Bank received an authority signed by Mr. and Mrs. Archer for the handing over of the title deeds, Mr. Cheney completed the contract and transfer by dating the contract 20 March and the transfer 9 April, and arranged for the discharges and the transfer to be registered.

16    In the meantime, according to Mrs. Archer, she wrote a note on the date of signing these documents which is dated in two places 1 December 1989 in which she expressed her dismay at what she had done. She said that she had destroyed the original of this but had made a fair copy of it later on. Unfortunately the original of that fair copy, which is exhibit 18 in the proceedings, is somehow missing from the court papers, but that does not matter for this decision as it is reproduced in the appeal books which were used for the purposes of the re-hearing before me.

17    During December 1989 there seem to have been the usual family activities including a birthday party for Mr. Archer and a family Christmas at 'Glenroy' when there was no complaint about anything that had been done, but no mention of it either.

18    On 2 March 1990, Mr. and Mrs. Archer signed an authority to the National Bank of Australia at Orange authorising it to send the title deeds to 'Sussex' to Cheney and Wilson. This was the day or day after Mr. Archer returned home from a period in hospital in Sydney.

19    On 12 September 1990, Mr. and Mrs. Archer made new wills. They each appointed the other and Trevor as executors and gave the whole of their estate to the other. In the event that the spouse did not survive then each will gave a one half share in the estate to Colin, once again charged with payment of certain legacies and a one half share to Neville. There were some other provisions which do not matter. Each will contained the following clause:

8. I DECLARE that I have made no provision for my son Trevor Robert Archer as I have provided adequately for him during my lifetime.

20    Things seemed to proceed along reasonably well during 1991, Trevor and his wife conducting some independent activities on 'Sussex', but generally so far as one can tell still using the land for partnership activities. Some time, probably in April 1992, Mrs Archer obtained a copy of the contract of sale from Mr. Cheney as a result of a discussion with one of her sons, who had been told by Trevor that 'Sussex' was his.

21    On 10 December 1992 Messrs. Timmins & Partners, who have remained the solicitors for Mrs. Archer, wrote to Messrs. Cheney and Wilson, stating that they acted for Neville and Mr. and Mrs. Archer and seeking further information to which Mr. Cheney responded on 22 December 1992, but his letter was quite inaccurate as to dates. The next day he wrote to Trevor with a copy of the letter from Timmins & Partners and his response and stated that he would not be able to act further. On 4 January Trevor wrote to Mr. Cheney acknowledging the letter and asking for a copy of the agreement or the transfer payment "which released 'Sussex' to me that Mr. and Mrs. E.R. Archer signed on the day of 24 November 1998 at 12.30 p.m. in your office". The last two figures in the date were obviously transposed and it has not been suggested otherwise. Trevor had no idea of the claim of Mrs. Archer that she signed on 1 December when he wrote his letter.

22    On 26 January 1993 Trevor went to see his parents at 'Glenroy' and had a conversation with them and quite wrongly taped it without their knowledge. Apart from going some distance towards discrediting Trevor the taped conversation in the main does acknowledge that one of the contested conversations to which I will come at least took place even if what was discussed is not agreed, and it is also reasonably clear that the engagement of Messrs. Timmins & Co was brought about through dissatisfaction of the other two sons with what had happened.

23    In early 1994, Trevor injured his back at work and apparently decided to sell 'Sussex'. In March 1995 Mr. and Mrs. Archer entered caveats against the title to 'Sussex'. These proceedings commenced as a result of lapsing notices having been served and on 28 April 1995 after some procedural difficulties had been overcome because the original caveat had lapsed, I gave leave to Mr. and Mrs. Archer to lodge further caveats. In any event a statement of claim was filed in May 1995 and the proceedings were expedited.

24    On 19 November 1996 an order was made giving Trevor power to sell 'Sussex' on condition that the one third of net proceeds of sale (not making any allowance for the sums required to discharge any mortgage or encumbrance) be paid into an account in the joint names of the solicitors for the parties to abide the outcome of the appeal to the Court of Appeal. It is those moneys, which now, with interest, total something over $214 000, which are the subject matter of this new trial. There is also to be determined in this new trial the question of who should pay the costs of the original proceedings before Simos J.

25    When this new trial was opened before me by Mr. Coles QC, senior counsel for the plaintiff, Mrs Archer, he stated that the claim was first for undue influence and second for unconscionable conduct in accordance with the principles laid down by the High Court in Bridgewater & Ors v Leahy & Ors (1998) 158 ALR 66. There were some procedural difficulties about this because the unconscionability claim had never been allowed as a separate claim before Simos J but was treated merely as additional matter on the claim for undue influence. Thus the claim in respect of which a retrial was ordered was really only the claim based on undue influence. Nevertheless I gave a judgment about this on the first day allowing an amendment thereby allowing paragraphs 24 to 26A of the amended statement of claim to be treated as a claim separate from the claim based on undue influence. As I have explained to counsel, in hindsight I may have made a mistake in allowing the claim to be made as it is not clear the Court of Appeal did not preclude it. However, it was allowed on the basis the plaintiff would call no additional evidence and the defendant did not seek an adjournment, which I indicated I would have allowed, to deal with the claim, so that no harm was done.

26    The claim based on undue influence was brought on allegations that Trevor brought constant pressure on Mr. and Mrs. Archer to transfer 'Sussex' to them; that Mr. Archer was in poor health and Mrs Archer was concerned about this; they were taken to the office of a solicitor whom they did not know without any notice, and induced to sign the contract and transfer without any advice about the transaction; that they were pressured into signing the documents immediately on their first visit to Mr. Cheney's office without the opportunity of obtaining legal advice on their own position; and that Mrs. Archer was so concerned about the effect on her husband's health if she did not sign that she went ahead and did so. So far as the claim based on unconscionability is concerned it is said in addition that the plaintiff was in a position of special disadvantage when dealing with Trevor by reason of the illness of Mr. Archer, inexperience, inequality of bargaining power and inability to protect her own interests and that Trevor took unconscionable advantage of these disabilities. An important position adopted on both counts is the allegation that Trevor was concerned and worried after his father's heart attack in November that he might die, so that it was necessary to act immediately to secure his position. In dealing with the claim of Mrs. Archer it is necessary to remember that the claim of Mr. Archer in the original proceedings was dismissed.

Contested facts

27    The claim of Mrs. Archer put at its most simple is that she never agreed to transfer her interest in 'Sussex' to Trevor, or certainly no more than a one third interest, that she gave no indication that she was prepared to do so, that she and her husband did not give to Trevor a copy of their 1989 wills and although she recognised their contents she said that as she was younger she expected to survive her husband and that having done so she would make a new will, that after her husband's heart attack he was quite ill, that after his discharge from hospital on 17 November Trevor and his wife had agreed to take them to see Dr. Shannon in Orange at 2.00 p.m. although in earlier evidence she had given a later time of 4.00 p.m, that she and her husband had been picked up by Trevor at about 11.00 a.m. and driven to Orange, that the car had stopped outside the office of Messrs. Cheney and Wilson, that she had no idea why this was but that they were taken up to the office where her husband signed some documents and she signed some documents she saying in various parts of her affidavit and oral evidence that she understood they had something to do with giving some authority to make inquiries about stamp duties or other matters, that they were for the transfer of 'Sussex' to Trevor, and that they were for the transfer of one third of her share to Trevor. Mr. Archer said before me that he thought the documents were something to do with giving management authority over the farm while he was sick. Mrs. Archer says that no proper explanation was given to her, that she was so concerned about her husband's health she went ahead, and that she took no part in the conversation in Mr. Cheney's office. She said that after the documents were signed they left and went to Dr. Shannon. She then says that on the same night at 11.00 o'clock she was so concerned after thinking about what she had done that she wrote the note which is Exhibit 18. It is necessary to set that out in full as follows:

''Glenroy''
Cudal
1st December 1989

To day I did something I will regret for the rest of my life and to make matters worse neither Bob nor I had been told what was on. I know if Bob had known he would have said no I feel to [sic] sick to worry.

Bob had an appointment to day to see Dr. Shannon to see how his heart was and if he would have to go to Sydney. Trevor said he would take us up but to our surprise he pulled up in front of a solicitors which we have never heard of & I cant remember his name. Trevor asked us to go inside with him. I didnt wake up what was on. But he had made arrangments [sic] for us to sign 'Sussex' over to him.

We did talk about this one day down at 'Sussex'. Bob seemed to be in favour but I said no I wasn't. I pointed out that I didn't want to give my inheritance away to 1 son when I had 3 who should share it, half of 'Sussex' was all I had all my share of Dads estate was left in the farm as well as my fifth share in the money Mum left in the farm. I would have nothing of my own after years of thinking how nice it would be to have something to share with my 3 sons.

The money which I left in the farm was $3000 from Dad & Mum. In September this year $40 000 (Mums remaining share) had to be paid to the girls. Well Bob and I paid this not Trevor and a other $25000 came from my money. I got $8000 back from the Law Society. This was a refund of the money that Stan Wall had spent out of Dads probate. I put this on interest and after 10 years it was $25000, but I didn't get that either so that was $60000 I put into the farm.

Any way the solicitor had all the papers ready. I was just stuned [sic] because Trevor never said what he had done, so we were tricked into it. Anyway Bob signed he was far to [sic] sick to say anything & I thought what am I going to do if I say no or even say something it would only upset him as he had allready [sic] signed. So I signed but I was so hurt & mad to think he was in such a hurry to get that farm. He must think Bob is dying and he doesn't trust me to be fair in my will.

Now I am home how I wish I had said something, but he new [sic] I wouldn't cause any trouble (thats me) I know Trevor works on the farm, but we found the money he has only helped pay the banks back and we still owe the State bank money. I feel he won't offer to pay that off.

I only hope Trevor will come good as one day he said he would have to buy me a house, he should pay me or the 2 boy (Colin & Neville) back, because he has got over 800 acres, and Bob only has 530 left for myself & the boys.

Trevor gets more from the farm that Bob & I, and he is working in Orange every week & Bob is doing the work.

Half of 'Sussex' was all I had so I feel I have lost out. He should pay 2/3 of my 400 odd acres to me or Colin or Neville when I am gone.

I know he will sell the farm one day. When Bob is better I will talk to him about it I just hope and pray something can be done for the wrong I have done.

Una Archer
11 PM 1-12-89

28    The most convenient way to commence the discussion of the important matters in issue is to deal with the evidence of Trevor which is as follows: He left employment which he had in Canberra in 1976 to return to 'Glenroy' at the request of his father. After 'Sussex' was purchased he and Neville moved into the workman's cottage there in 1980. His grandmother, who was still alive, continued to live in the main residence. He married Sue in 1982, she having two children. He said that in 1988 Mrs. Archer had told him that one day 'Sussex' would be owned by him and his two brothers, and that he had expostulated about this because he had stayed on at 'Sussex' and had helped to get the loans to buy it and pay them off and that his mother 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." He said that in March 1989 his mother had told him about the wills which had been made and had given him a copy of them and when he saw that 'Sussex' would be ultimately left to him his mother had said "Yes, we've agreed to that." And he said "thanks". He said that later in August 1989 he had a conversation with Mrs. Archer at 'Glenroy' when she said that if Mr. Archer died before her that she would have to sell up, by which she meant sell 'Sussex' as well as 'Glenroy' to provide for her old age. He said that he was concerned about this and had a conversation a few days later with his father near the shearing shed at 'Sussex' at which his wife was also present, when he related his conversation with his mother to his father and asked whether there was any chance of getting 'Sussex' transferred into his name then. He said that his father replied "Yes, I suppose it's time that we transferred to you. You had better make some inquiries with the solicitor to see what's involved and let me know." He said that at this stage he obtained a recommendation to Messrs. Cheney and Wilson as he knew nothing about procedures, and he assumed that the property would be transferred to his name and that of his wife. They visited Mr. Cheney on 21 September, at which stage he became aware of the consequences of joint tenancy. He said that when he received the letter from Cheney and Wilson recommending that 'Sussex' be transferred he told his father that the stamp duty would be about $27 000 and he would be prepared to pay for it and that his father had said "That's OK, go ahead." He said that on 26 September 1989 in the kitchen at 'Sussex' he had a conversation with his mother and father when he said "I am relieved that you and Dad have agreed to transfer 'Sussex' to me" and his mother had said "I am 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." He said that Sue came into the kitchen and she said "Put it in Trevor's name, it doesn't worry me at all." And he said "I understand the papers will be drawn up in my name only." He identified this as the date the conversation took place because it was the day on which he and his parents went to the State Bank at Canowindra to sign the documents regarding the repayment of the Rural Assistance Board loan with moneys borrowed from the State Bank, he saying that his father had told the bank that if they wanted security they should take it on Glenroy because 'Sussex' was being transferred to him. He said that before 16 October Mr. Archer told him that they were in the process of paying out "the girls" who were Mrs. Archer's four sisters, and on 16 October he and Sue saw Mr. Cheney again and told him that his parents had agreed to transfer 'Sussex' into his name only, and that Mr. Cheney had said that he would arrange for a valuer to visit in due course. They had then discussed the amount of the stamp duty and borrowing the money and discussed the value of the property coming to the conclusion that $500 an acre would be the right price to put on it. He said that Mr. Cheney had said that he would have the documents typed up and would contact him when this was ready to be signed and that on 17 October he got a letter from Mr. Cheney confirming the documents were ready for signature. After Mr. Archer came out of hospital on 17 November Trevor saw him on a number of occasions and thought he was alert enough. He said that he told Mr. and Mrs. Archer that the papers to sign over 'Sussex' were ready and asked when they could go in to sign them. He said that one of them said they could go in on 24 November as Mr Archer had an appointment to see Dr. Winkworth that day. He then made an appointment to see Mr. Cheney and told him parents of that. He said he confirmed that early in the morning on 24 November. He said that in Mr. Cheney's office Mr. Cheney had said "Trevor has told me that you have agreed to transfer 'Sussex' to him, is that correct?" and "Mum and Dad said yes." He then said there was conversation about the purchaser being himself alone and his mother had confirmed that. There was conversation about the value and the price put in the contract and some possibility of reduction in the stamp duty. He said that Mr. Cheney asked whether it was correct that the transfer was to be a gift and that his mother had said yes and that she had asked who was going to pay for the work and that Mr. Cheney had said that he, Trevor, was going to get the property alone and pay for it. He said that a few days later his mother had asked whether he was happy having had the property transferred over to him and he had thanked her. Most of the dates deposed to or in respect of which Trevor gave evidence are confirmed by diary notes of himself or of Mr. Cheney.

29    Mrs. Sue Archer confirmed first that Trevor had told her about the conversation with Mrs. Archer selling up everything if Mr. Archer died first. She said that she was present during the shearing shed conversation of which Trevor gave evidence; at the appointments with Mr. Cheney; at the conversation in the kitchen at 'Sussex' about transferring the property into Trevor's name only; and at the interview and instructions to Mr. Cheney to go ahead and prepare the documents on that basis. She did not go into the office of Mr. Cheney when the signing took place, although she drove to Orange with her husband and his parents and later went from Mr. Cheney's office to Dr. Winkworth's surgery.

30    Mr. Cheney gave evidence, all of which supported the dates given by Trevor and supported the evidence given by Trevor, Trevor telling him of the agreement of Mr. and Mrs. Archer to transfer 'Sussex' to him but not to his wife. It was on that basis that he said that he prepared the documents. He said that the interview and the signing took place on 24 November and his appointment book and note confirmed that. He said that he explained what was happening to them and confirmed that the transfer had been discussed with them and had said "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'" and either Mr or Mrs. Archer had said "Yes, that's right we continue to own 'Glenroy'". There was then some discussion about the valuation figure and the mortgages to be discharged and he had explained the general terms of the contract and the transfer to them. He had also prepared an authority to the State Bank at Canowindra for the transfer of the title documents which Mr. and Mrs. Archer had signed. This is a significant document as it is dated 24 November. He agreed that his first instructions came from and his first advice was to Trevor, but that after he was informed Mr. and Mrs. Archer had agreed to go ahead he considered he was acting for everyone involved in the transaction. He said and I accept that it is not unusual for one solicitor to act in inter-generational transfers. I have not set out in full the conversation in Mr. Cheney's office because it is not necessary. I accept his evidence and that of Trevor. The explanation was quite sufficient unless it could be suggested Mr. Cheney was acting only for Trevor and really against the parents.

31    Mrs. Archer did not deny the evidence of Trevor about the conversation when he said she had agreed to think about his claim, but that nothing could be done while the Rural Assistance Board loan was outstanding. Otherwise she denied giving Trevor a copy of her 1989 will; she denied the conversation at 'Sussex' on 26 September, at least as to agreeing to the transfer of all her share, although this varied from time to time; she denied the conversation at the bank, when it was arranged that the new mortgage would be secured on 'Glenroy' alone and she denied being told of the proposed appointment with Mr. Cheney on whatever day it took place. She said that Trevor and his wife picked her and her husband up at 11.00 a.m.; she expected to go to the doctor; to her surprise the car stopped outside Mr. Cheney's office; she said she had never been there before and that Trevor told her that she would find out what was happening. She said they went in and a conversation not unlike that Mr. Cheney deposed to took place; that she was so worried about her husband that she decided to say nothing and sign. She said that after that they took Mr. Archer to an appointment with Dr. Shannon and that after she got home she was so concerned she wrote the note, which I have set out. She refused to depart from her evidence that the signing took place on 1 December. That was really essential to her as she relied on the note.

32    So far as subsequent events were concerned, Mrs. Archer said that she had no recollection of the authority to the National Australia Bank, she explained the 1990 wills by saying that provision she had made for Trevor was passing a one third share of her share in 'Sussex' to Trevor, and she said that it was only when her sons questioned her, and she obtained copies of the documents, she had realised that she had transferred all her interest to Trevor. This has obvious difficulties when the words of the note are considered.

On what date were the documents signed? - The Note of 1 December 1989

33    Apart from Mrs Archer's evidence everything else points to the documents having been signed on 24 November 1989. Mr. Cheney's appointment in his diary was for that date and there is no notification of any other appointment. Trevor's diary, which is really written up as a farm type diary has an entry for 24 November "Got Dad and Mum. Went to Orange. Dad and Mum signed paper for Sussex. Dad to doctor …", and the letter from Trevor to Mr. Cheney dated 4 January 1993 at a time when there was no contention about the dates, nominated the correct date without any difficulty. Probably the most critical document is one dated 24 November 1989, which was an authority to the State Bank to forward the title deeds to Messrs. Cheney and Wilson, which Mr. Cheney said was signed on the same day as the contract and transfer. That document came from the State Bank files, not from the files of Mr. Cheney. Although it was put to Mr. Cheney that it might have been dated before it was signed he denied that and that suggestion is so unlikely that it can be disregarded. The copy document which Mr. Cheney had was blank as to date so he could not have somehow concocted this evidence to support the defendant's case. The evidence of Sue Archer also supports this because while she thought that she was taking Mr. Archer to Dr. Winkworth's surgery, she certainly did not take him to Dr. Shannon's surgery. The fact that Mr. Archer saw Dr. Ridge and not Dr. Winkworth has no bearing on this.

34    Mr. Archer gave up any attempt to support his wife's story in the trial before me when he conceded that he saw Mr. Cheney on 24 November 1989. However, it is unfair to try to pin too much on this latter statement as by then I thought he was prepared to agree with most things that were put to him, unless he recognised how contrary they would be to his wife's position. Thus in the same passage of cross-examination he said he saw Dr. Shannon on the day he saw Mr. Cheney.

35    A very strong attack was made on the credit of Mr. Cheney by Mr. Coles, based first on his acting for both parties on this transaction, second on his lack of proper records, third on the circumstance that the documents did not bear the date on which they were signed and provided for a consideration which it was not intended would be paid and fourthly because it was claimed he had only concern for the interests of Trevor. While it is fair to say that not everything he did was perfect, it is right to say first that Mr. Cheney had every reason to prepare the documents when he was told by Trevor and Sue that Mr. and Mrs. Archer had agreed to transfer the property to Trevor, second if he had the conversation which he said he did with them when they came to the office, then he confirmed what had been told to him and third, it is in my view, quite impossible to believe that he placed an entry in his appointment book and somehow or other dated a document which he did not have in his possession for the purpose of supporting the case of Trevor. I said during the hearing and I should say again as strongly as is possible that it is quite inappropriate for solicitors to prepare documents which provide for a consideration which neither party expects will be paid. The proper course is to prepare a document with no consideration and to have the document stamped on the basis of a valuation which the Stamp Duties authorities will require in any event. Mr. Cheney said that what he did was the way in which he dealt with inter-generational transfers of property for no consideration at that time. I accept that to be the position. All I wish to point out is that it is not a proper procedure. However that does not mean that I do not accept the evidence which he gave as to the date of signing or what happened on that day. I do accept it.

36    The plaintiff said that the note was copied exactly as it was on the original. The date of 1 December 1989 appears on it twice. There can be no doubt that her evidence is that date was on the original document when she wrote it whenever it was she copied it out, the evidence of which seemed to vary on many occasions. She would not retract from her evidence that the transfer documents were signed on 1 December. It is perfectly clear they were not. I find as a fact and without hesitation the documents were signed on 24 November 1989.

Consequences of the note of 1 December 1989

37    The case of Mrs. Archer really relies on acceptance of the note as a genuine document. If it were genuine then it would clearly enough go to support the case of undue influence. If it is not genuine then it is clearly a document concocted and put forward as a contemporaneous note to support a claim which is probably without foundation. Its genuineness depends upon the appointment with Mr. Cheney having been on 1 December. The evidence is so clear that the appointment was on 24 November, that it is necessary to find that the document is a fabrication. This is a serious matter as it amounts to a finding of forgery. However, the evidence is quite clear and I so find. It seems likely that the date of 1 December was arrived at because Mrs. Archer knew that the documents were not signed on the date that the contracts and transfer were dated, and she knew that there was an appointment with a doctor on the date the documents were signed. Some support is given to this theory by a note made on the Medicare refund advice against the entry for 1 December and the appointment with Dr. Shannon on that day. It is also of some significance that Mr. Archer was quite uncertain about when he knew of the note's existence, but as Mr. Trebeck pointed out, it is almost certain that the note must have come into existence before the taped conversation on 26 January 1993, because Mrs. Archer talked about the actual date of the visit to Mr. Cheney on that day and Colin said his mother had shown a note to him even if it was not clearly identified.

38    Once it is found that exhibit 18 is a fabrication then one is bound to find that it was concocted for the purpose of supporting the plaintiff's case on undue influence. Once that is found then the whole basis of her case falls to the ground at least on undue influence. In spite of this last statement it is as well to determine those issues of fact which would bear directly upon the claim of undue influence and also of unconscionability. These are the happenings which led up to the meeting in Mr. Cheney's office on 24 November, because irrespective of what happened on that day the prior happenings bear upon whether the actions of Mrs. Archer that day were of her own will or as a result of her will being overborne.

39    In determining these matters a substantial difficulty for the version of Mrs. Archer is that whatever her husband's evidence before me and at the previous trial was, his action was dismissed, so the transaction so far as he was involved cannot be impugned. His evidence overall was rather inconsistent, although he was, I thought being loyal to his wife. However, the greatest difficulty for her is that I have found that she has produced and attempted to rely on a document which is a forgery and thus it is almost impossible to accept any other account of hers unless there is some corroboration of it from someone other than her husband where there is some issue between her and Trevor.

40    There can be no doubt that Trevor was concerned about his future and knew of his mother's view that 'Sussex' should go to the three sons. However, I find that by the end of 1988 there was some softening of that view. That is because I accept Trevor's evidence as to putting his claim and Mrs. Archer saying "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". This was never denied and before me Mrs. Archer accepted it.

41    The next subject matter on which there is a factual dispute is whether or not Mrs. Archer gave Trevor a copy of the wills of 1 March 1989. It was suggested that Trevor must have taken them from 'Glenroy' and later perhaps that he could have got them from solicitors in Orange. Copies retained by Mr. and Mrs. Archer at 'Glenroy' differ from those in the possession of Trevor. He therefore could not have made his copies from the copies which he is said to have copied, and it cannot be claimed that he got them from the solicitors who prepared them. I find that they were handed to him by Mrs. Archer and Mr. Archer knew of this. That is further reason to think that Mrs. Archer had changed her mind about the future of 'Sussex'. Mr. Archer said they were temporary wills because the other sons were having problems with their marriages. Mrs. Archer did not say that but said she intended changing her will if she survived her husband which she thought she would. If that was her intention which is possibly likely, she did not tell Trevor of it. Sue Archer said on the first hearing that Trevor had told her about the wills and she had seen them some time later. Whilst some attack was made on the credit of Sue Archer I thought her evidence given before me was convincing and she is a witness I would accept. She did not attempt to overstate things; she did not say the important meeting took place on 24 November 1989; and I accept she was more concerned about her house than the farm. I find that Mrs. Archer did hand a copy of the 1989 wills to Trevor.

42    The next dispute is about the shearing shed conversation. If this took place it came about in late August 1989. According to Trevor he was most concerned when his mother indicated that if Mr. Archer died first she would have to sell everything. Until then he had thought the will would protect him. Thus there was a reason for bringing this up with his father and asking for a transfer at that time. Both Trevor and his wife gave almost identical accounts about what was said and this was denied by Mr. Archer, although he did say he told Trevor to find out the stamp duty as he thought that would put him off. Before me Sue said she was present at two conversations which were obviously this one and the one on 26 September 1989. I find that the conversation did take place. It must be borne in mind that the chain of events in the story of Trevor has logical linkages and would be a very strange sequence of events to invent. Thus the visit to Mr. Cheney after this conversation was a logical next step to take.

43    It is possible now to deal more quickly with the other matters of factual dispute. I accept the evidence of Mr. Cheney and Trevor and his wife that an estimate of stamp duty was given at the conference on 21 September. After all if the shearing shed conversation took place one of the purposes of the visit was to obtain this information. I find that Mr. Archer was informed of this. Nevertheless I accept that Mrs. Archer did not know of this appointment with Mr. Cheney and that a prime reason for Trevor seeing Mr. Cheney was to protect his own position, albeit that his father has authorised him to find out what was involved in the transfer. In fact, in cross examination of Trevor at page 1069 the following passage appears:

Q: Is that right, you needed to be protected against your mother's intentions in dealing with her assets?
A: I'm sorry, I don't know what you mean.
Q: You wanted to cut across your mother's anticipated intentions?
A: Yes.
Q: To intercept her will for your own benefit?
A: I'm sorry, I don't know what you mean.
Q: To thwart her desires for your own advantage?
A: I suppose that, yes?
Q: Mr. Cheney wrote to you the next day after that interview?
A: He did.
Q: He recorded:
As advised in our conference, having regard to the fact Mr and Mrs. Archer senior held the property as joint tenants, it is important from your point of view to discuss with them the possibility of transferring the property to yourselves at the earliest possible time.
A. Yes.

Q: Do you agree in light of the letter that was written to you that you discussed joint tenancy in the interview we have been talking about?
A: I didn't know it was joint tenancy.

Q: Mr. Cheney also recorded:
We will take no further action at the present time. However, should you wish us to prepare a schedule of the costs involved in effecting the transfer, we will be quite happy to do so.
A. Yes.
Q. I am looking at page 1383. Do you want to see that letter?
A. No, I think that was what was in it.
Q. You were not given the information your father told you to find out?
A. He told me prior to that.

44    So far as the agreement of Mr. Archer to "go ahead" is concerned and the disputed conversation at 'Sussex' on 26 September 1989 I also accept the defendant's evidence. I do so because I accept his wife's evidence; because there is an entry on the farm diary of Trevor which looks genuine; and Mrs. Archer's evidence vacillated from denial of even going to 'Sussex' to admitting she was there as she had to if she relied on Exhibit 18 as correct. In any event the taped conversation established the fact of the conversation but not its contents.

45    When the natural progression of events is looked at there is a further reason to accept the evidence of Trevor. That is because that it is admitted that Mr. and Mrs. Archer went to the State Bank at Canowindra with Trevor on 26 September for the purpose of re-financing the Rural Assistance Board loan, which was due for repayment, this being the loan which Mrs. Archer had said would prevent anything being done for Trevor, and the new loan was secured on 'Glenroy' alone. In ordinary circumstances if the new loan to the State Bank was provided so that the Rural Assistance Loan could be paid out and that was obtained for the purchasing 'Sussex', one would have expected the substituted security to be taken over 'Sussex' if it were to be taken over one of the properties alone. Thus I accept Trevor's evidence that Mr. Archer said if security was needed it should be over 'Glenroy', and I do not accept Mr. Archer's statement that was what the bank manager arranged and he did whatever the bank manager suggested. It is important to remember that by this time the loan to the sisters of Mrs. Archer had been repaid or was in the process of being repaid. As there was very little debt due to the National Australia Bank, the fact was that 'Sussex' was relatively free of encumbrance if it were to be the subject of transfer to Trevor.

46    Another reason to accept this evidence of agreement is that the next significant event was the visit to Mr. Cheney's office on 16 October. Both Trevor and his wife say that they told Mr. Cheney that agreement had been reached but that the property was to be transferred to Trevor alone. The file note of Mr. Cheney appears to confirm that and it also notes that the mortgage to the sisters existed, which is referred to in Mr. Cheney's letter of the next day. It is of significance that in his note of the happenings of 24 November Mr. Cheney noted that this mortgage had been discharged. However, the significant point is that it is clear that on 16 October instructions were given to Mr. Cheney to prepare the documents for transfer, and unless there were some nefarious scheme or trick proposed by Trevor it is at least unlikely that this cost would have been incurred unless his parents had agreed to the transfer. It follows from this that I accept the evidence of the agreement being reached and Mr. Cheney being informed of this. Thus I do not accept that he was a solicitor acting in the interests of one person in some way to defeat the legitimate interest of another. Finally I accept the evidence of Trevor as to the appointment with Mr. Cheney on 24 November and his parents telling him that would be a convenient day to go because they had a medical appointment that day. There was no possible reason why Mr and Mrs. Archer would be collected at about 11.30 in the morning to drive to Orange for a medical appointment at 2.00 p.m. or according to Mrs. Archer in her original affidavit, 4.00 p.m.

47    It is now necessary to come to the meeting at Mr. Cheney's office. I am satisfied that the explanation which he said that he gave of the transaction was sufficient. It is to be remembered that he was operating under the belief that Mr. and Mrs. Archer had agreed to the transfer, so that what he did was to confirm their agreement which was given. The difficulty of the case for Mrs. Archer is that she said at various times (1) that she thought that all she was doing was signing an authority for some further inquiries to be made as to stamp duty and the like; (2) that she knew she was signing over her interest, although she did not want to do so; and (3) that she intended only to sign over a one third of her interest and thought that is what she had done. Mr. Archer on this occasion before me said that he thought he was giving some authority for the management of the property while he was ill, which was clearly untrue. There was no suggestion at that time that he was to have some further operation, and in any event he finally accepted before me that he signed transfer documents on that day. His evidence to the contrary cannot be accepted, although it is not really significant as his claim failed. Mrs. Archer must be completely disregarded because she could hardly put forward Exhibit 18 and then say she had not signed transfer documents, nor could she say that when she gave her story about the later will when she said that she had only handed over one third of her interest, which of course was quite inconsistent with some of her evidence as to what she was signing on the day in question and quite inconsistent with Exhibit 18. There is no suggestion that Mr. and Mrs. Archer were forced into Mr. Cheney's office, nor that there was any pressure exerted on them to sign while they were there. In other words I find that Mrs. Archer well knew what she was doing and did it freely.

48    This finding is say borne out by Mr. and Mrs. Archer both signing a letter to the National Australia Bank authorising that bank to forward the title deeds to 'Sussex' to Mr. Cheney. That document is dated 2 March 1990. By that time they may well have received letters from both the bank and from Mr. Cheney asking them to do this, albeit that both letters were addressed to them at 'Sussex'. In any event there is no suggestion that Trevor sought their signature because they can give no explanation for signing it. I should say that it is perfectly clear that had Mrs. Archer been tricked then she would not have signed this authority over three months later, because Mr. Cheney was the last person she would have trusted with her deeds. In any event her evidence as to this document was completely unacceptable because she was reluctant to recognise it, yet it was clear she recognised its importance to the case against her when she prevaricated for a considerable period as to whether or not the signature was hers, although in the long run it was accepted that it was. Finally I find that when she made her will of 12 September 1990 Mrs. Archer was well aware of the fact that she had transferred her interest to Trevor; in some ways it was difficult for her to deny this as she was putting forward Exhibit 18 as true, and in any event she had appointed Trevor as co-executor which would be a strange thing to do for a son who had exercised improper influence on her freedom of will. Once again the will is a logical step in the chain of events.

49    Having made all these findings the likely conclusion is that when Mrs. Archer was confronted by her other sons asking about what she had done she may have had some misgivings, but it was quite impossible for her to say that until she received copies of the documents from Messrs. Cheney and Wilson she did not know what she had done.

Decision on undue influence

50    It is accepted that the principles as to undue influence are those as set out in Johnson v Buttress (1936) 56 CLR 113, where the following passage appears in the judgment of Dixon J at p134:

The basis of the equitable jurisdiction to set aside an alienation of property on the ground of undue influence is the prevention of an unconscientious use of any special capacity or opportunity that may exist or arise of affecting the alienor's will or freedom of judgment in reference to such a matter. The source of power to practise such a domination may be found in no antecedent relation but in a particular situation, or in the deliberate contrivance of the party. If this be so, facts must be proved showing that the transaction was the outcome of such an actual influence over the mind of the alienor that it cannot be considered his free act.

51    I find there was no improper conduct of Mr. Cheney; that Mr. Cheney gave a proper explanation as to the documents, and that he did so having been informed of the prior agreement of Mr. and Mrs. Archer to the transaction; and that Mr. and Mrs. Archer had both been informed that they were to attend an appointment with Mr. Cheney. I have found Mrs. Archer knew what she was signing. The claim of Mrs. Archer that she was so influenced by her husband's illness she just signed because he signed, and she was concerned about the effect on him if she did not sign cannot be accepted and it is perfectly clear that Mrs. Archer was not a person who could be dominated. The established facts do not establish any wearing down of the will of Mrs. Archer nor any dominance by Trevor over her. The passage which I have quoted from the evidence given by Trevor as to his intentions must be read having regard to the time when it took place, and what happened thereafter; and the conduct of Mrs. Archer after the event in signing the authority to the National Australia Bank and in making the will she did makes it clear that not only did she know what she was doing, but she was prepared to do what was necessary thereafter to give effect to the documents which she had signed, which is quite contrary to a claim of influence. The statement that she thought she was only signing over a one third interest in the property was quite inconsistent with anything else she said, and she does not say that Mr. Cheney said that was what was happening. Finally it was said that after Mr. Archer's heart attack in early November it was a matter of great urgency for Trevor to get the transfer signed. That might have more force if nothing had been done prior to that time to put in train the preparation of the documents, but as the documents had been prepared it has little force once it is found that Mr. & Mrs. Archer knew they were to see Mr. Cheney and were not somehow tricked into going to his office.

52    As I have said it seems to me that the claim based on undue influence came to an end as soon as I found the document Exhibit 18 was a forgery, but even without that the claim would not have been made out. I should add that as there was no question of dominance or opportunity to overbear the will of Mrs. Archer or of any influence over her, the question of separate advice does not really arise. The note was apparently concocted to give a false impression of being in a situation of pressure and the evidence concocted around that. It must be put aside. The claim based on undue influence fails.

Claim for unconscionability

53    The plaintiff's claim based on unconscionable conduct relied on the same facts as those for the case on undue influence. It was based upon the decision of the High Court of Australia in Bridgewater which confirmed that undue influence and unconscionable conduct are separate causes of action confirming the decision in Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447. In Bridgewater at page 80 the majority judges set out the general principles upon which they relied as follows:

In Commercial Bank of Australia Ltd v Amadio, Deane J said that the two doctrines are distinct, undue influence looking to "the quality of the consent or assent of the weaker party", whilst unconscionable conduct looks to the attempted enforcement or retention of the benefit of a dealing with a person under a special disability. Further, the recognition of certain special relations, the existence of any of which would itself support a presumption of undue influence, could provide a particular forensic advantage to plaintiffs.

Sir Anthony Mason, with reference to the well developed Australian body of authority on the subject, has contrasted the two doctrines as follows:
My understanding of undue influence ... is that it denotes an ascendancy by the stronger party over the weaker party such that the relevant transaction is not the free, voluntary and independent act of the weaker party. In other words, it is the actual or presumed impairment of the judgment of the weaker party that is the critical element in the grant of relief on the ground of undue influence.
...
Unconscionable conduct, as the term suggests, focuses more on the unconscientious conduct of the defendant. As a ground of relief in England unconscionable conduct has been confined largely to 'catching bargains' with expectant heirs and others in particular categories of disadvantage eg those who are illiterate. ... In Australia, it has been recognized that unconscionable conduct is a ground of relief which will be available 'whenever one party by reason of some condition or circumstance is placed at a special disadvantage vis-a-vis another and unfair or unconscientious advantage is taken of the opportunity thereby created'. Unconscionable conduct is also recognized in New Zealand as a ground of relief in these circumstances.
In Commercial Bank of Australia Ltd v Amadio, Deane J spoke of unconscionable conduct as occurring where, in the circumstances, it is unconscientious to "procure, or accept, the weaker party's assent to the impugned transaction". It also should be noted that in Hart v O'Connor, an appeal from New Zealand, the Privy Council described unconscionable conduct which provided a basis for equitable relief as "victimisation, which can consist either of the active extortion of a benefit or the passive acceptance of a benefit in unconscionable circumstances". In so giving the judgment of the Privy Council, Lord Brightman was reflecting a general proposition put by James LJ in Torrance v Bolton. This was that it was the "ordinary jurisdiction" of the Court of Chancery to deal with instruments and transactions "in which the Court is of opinion that it is unconscientious for a person to avail himself of the legal advantage which he has obtained".

54    None 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 interest is made out. Trevor was not very well educated and has difficulty in reading and there was nothing to show that Mrs. Archer was in any unequal position as against him. Her ability to understand those pieces of evidence which were against her and to attempt to reconstruct her evidence accordingly was quite apparent, and her concoction of the note shows that she knew precisely what she doing. The medical evidence does not support the fears for her husband's future which she said that she had when she was signing, which evidence was necessary to make good what was said in the note. That is not to say he was in perfect health but to say the stated concern about a further heart attack is not true. The only evidence which could possibly support the claim based on unconscientious behaviour was that passage of the cross-examination of Trevor, which I have set. That however must be considered in light of my acceptance that he went to see the solicitor having been told to do so by his father and the natural progression of events after that. Mrs. Archer was never shown to be under the influence of Trevor; she was never shown not to have acted as she wished to act; she was not lured into an office to sign. It was not unreasonable of Trevor to put forward his claims. What has happened in this unfortunate case is that Mrs. Archer did what she did because she had agreed to do so but later changed her mind and concocted a story probably because of dissatisfaction expressed by her other sons. The claim based on unconscionability must be dismissed.

55    The result of all this is that the plaintiff's claim on the retrial must be dismissed. The defendant is entitled to the moneys held to abide the result of this action.

56    As the defendant has succeeded in his defence of the claims of both his father and mother, it follows that they should both pay the costs of the proceedings before Simos J. The plaintiff, Mrs. Archer, must pay the costs of the action before me. An application was foreshadowed that these costs should be on the indemnity basis if I found Exhibit 18 was a forgery. If that application is to be pursued I would list it for argument on a later date.

57    The orders I propose to make are as follows:

1. The claim of the plaintiff, Una Evelyn Archer be dismissed.

2. The plaintiff, Mrs. Archer, pay the defendant's costs of the trial before me.

3. The plaintiffs, Una Evelyn Archer and Ernest Robert Archer, pay the defendant's costs of the first trial to the date of the judgment of Simos J.

4. Liberty to apply to relist the matter to claim indemnity costs. Any such application to be made after 28 June 1999 and not later than 9 July 1999 and if not so made shall be deemed abandoned.

5. Exhibits may be returned after 28 days.

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