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 adviceLegislation Cited: Real Property Act 1900 NSW
Succession Act 2006 NSWCases 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 147Texts Cited: - Category: Principal judgment Parties: Plaintiff: Savvas Aslanidis
Defendant: Nikolaos AslanidisRepresentation: Counsel:
Solicitors:
Plaintiff: AR Zahra and JR Anderson
Defendant: C Hickey
Plaintiff: Sparke Helmore Lawyers
Defendant: Michael E Bradstreet
File Number(s): 2018/00213603
Judgment
INTRODUCTION
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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.
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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.
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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.
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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
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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.
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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.
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The written agreement between the plaintiff and the defendant, in the terms for which the defendant contends, took the form of a…
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- Aslanidis v Aslanidis [2020] NSWSC 110
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- [2020] NSWSC 110
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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