Aslanidis v Aslanidis - [2020] NSWSC 110

Supreme Court

New South Wales

Medium Neutral Citation: Aslanidis v Aslanidis [2020] NSWSC 110
Hearing dates: 3, 4 and 5 September 2019
Decision date: 21 February 2020
Jurisdiction: Equity - Family Provision List
Before: Lindsay J
Decision:
Subject to a charge on the land for just allowances in favour of the defendant, he is obliged to reconvey to the plaintiff land which, by an exercise of undue influence, he induced the plaintiff to transfer to him.

Catchwords: EQUITY — Undue influence — Actual undue influence
EQUITY — Undue influence — Absence of independent advice
Legislation Cited: Real Property Act 1900 NSW
Succession Act 2006 NSW
Cases Cited: A v N [2012] NSWSC 354
Blomley v Ryan (1956) 99 CLR 362
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Johnson v Buttress (1936) 56 CLR 113
Quek v Beggs (1990) BPR [97405]
Petelin v Cullen (1975) 132 CLR 355
Whereat v Duff [1972] 2 NSWLR 147
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff: Savvas Aslanidis
Defendant: Nikolaos Aslanidis
Representation:
Counsel:
Plaintiff: AR Zahra and JR Anderson
Defendant: C Hickey
Solicitors:
Plaintiff: Sparke Helmore Lawyers
Defendant: Michael E Bradstreet

File Number(s): 2018/00213603

Judgment

INTRODUCTION

The plaintiff, Savvas Aslanidis, is an elderly man who sues (by his present wife, Tsabika, as tutor) to recover title to his residence (a property located in Blacktown), transferred to his adult son (the defendant, “Nick”) on or about 26 August 2011.
The property is land registered under the Real Property Act 1900 NSW. The Memorandum of Transfer (which effected a transfer of the unencumbered fee simple in the property) was executed by the plaintiff and the defendant, in the presence of a solicitor (Mr VF Massey) who acted for both parties, on 26 August 2011. The Transfer, bearing that date, was registered (as dealing number AG 480407) on 7 September 2011.
In substance, the defendant contends that the transfer of the plaintiff’s residence to him should be characterised as a gift or, perhaps more accurately, a gift conditional upon the defendant agreeing, which he says he did (or a transfer in consideration for which the defendant says he agreed) with the plaintiff that, if and when he sold the property, he would pay $100,000 of the sale proceeds to his sister (Maria, known as “Mary”), the other of the plaintiff’s two children.
Tsabika is the wife of the plaintiff’s second marriage. Nick and Mary are (adult) children of his first marriage, which ended with the death of his first wife in 1994.

CONTEMPORANEOUS DOCUMENTS

Three documents (each prepared by Mr Massey, dated 26 August 2011 and executed on that date) invite critical attention: The Memorandum of Transfer; a written agreement; and a will.
The Memorandum of Transfer was expressed to be for a nominal ($1.00) consideration not, in fact, paid. This is consistent with characterisation of the Transfer as a gift.
The written agreement between the plaintiff and the defendant, in the terms for which the defendant contends, took the form of a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aslanidis v Aslanidis

Details

AGLC: Aslanidis v Aslanidis [2020] NSWSC 110
Case: [2020] NSWSC 110
Decision Date: 21 February 2020

CaseChat Overview and Summary

The matter before the court was a dispute between the parties regarding the validity of a transaction due to alleged undue influence. The case was heard in the Family Court of Australia. The plaintiff, the daughter of the deceased, sought to set aside a transaction where her mother transferred significant assets to the defendant, her brother, on the basis that the transaction was procured by undue influence.

The primary legal issue for the court was to determine whether the defendant had exercised undue influence over the plaintiff's mother in procuring the asset transfer. This involved examining whether the defendant had taken unfair advantage of a position of power or trust over the plaintiff's mother, and whether the plaintiff's mother had obtained independent legal advice before entering into the transaction. The court also had to consider whether the transaction was fair and reasonable in the circumstances.

The court found that the defendant had indeed exercised undue influence over the plaintiff's mother. The court held that the relationship between the parties was one of trust and confidence, and that the defendant had taken advantage of this position to procure the asset transfer. The court further found that the plaintiff's mother had not received independent legal advice before entering into the transaction, which was a significant factor in establishing undue influence. Consequently, the court set aside the transaction and ordered that the assets be returned to the estate.

Orders