Bridgewater & Ors v Leahy

[1998] HCATrans 98

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B13 of 1997

B e t w e e n -

DESLEY FAY BRIDGEWATER, JOAN MARGARET O’NEILL, JUNE LORRAINE ASHTON, SHIRLEY JOY LEAHY and STELLA YORK

Applicants

and

KEVIN LEAHY

First Respondent

NEIL WILLIAM YORK and BERYL ELIZABETH YORK

Second Respondents

Application for special leave to appeal

McHUGH J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 17 APRIL 1998, AT 11.05 AM

Copyright in the High Court of Australia

MR D.B. FRASER, QC:   May it please the Court, I appear with my learned friend, MR T.W. QUINN, for the applicants. (instructed by Morrow & Associates)

MR S.C. WILLIAMS, QC:   May it please the Court, I appear with my learned friend, MR R.T. WHITEFORD, for the second respondents.  The first respondents are not represented at the appeal. (instructed by Heiser Bayly & Mortensen)

McHUGH J:   In this matter the Registrar certifies that she holds a letter from Damien Bourke & Associates, solicitors for the first respondent, advising that the first respondent does not wish to file a summary of argument in this matter and will submit to any order of the Court, save as to costs.  Yes, Mr Fraser.

MR FRASER:   Thank you, your Honour.  Your Honours, in this matter the application book contains the outline of argument which is somewhat more extensive than usual.

KIRBY J:   How many days would we have to set aside to hear this factual dispute?

MR FRASER:   Well that is the point, I suppose.  We do not wish to controvert any of the primary facts which were found by the trial judge, but we simply say that the conclusion drawn was not open on those findings and that the conclusion was affected by a misapprehension of the role of - previous approach by the deceased to his estate.

KIRBY J:   That is the disenchanting feature of the case; the thought that we would be going rummaging through all these facts, but you say you will accept all the primary findings by the trial judge?

MR FRASER:   Yes, your Honour; we rely on them as establishing a relationship of special disability and we simply submit that, on those facts, such a relationship clearly existed.  It might be convenient to simply go to them; they are listed in the draft notice of appeal, your Honours, at page 83 of the application book.

KIRBY J:   What are the important points from the point of view of clarifying issues of principle that you say are raised by the case?  I mean, one appears to be the special relationship or special disability, another might be the practice of solicitors in relation to the mental competence of people; what else is there?

MR FRASER:   Your Honour, at base it really turns on this:  having regard to what has recently been said by this Court in Maguire v Makaronis, is the same approach, that is that once a donee appears to have put himself in a position where his interest conflicts with his duty, the question only then becomes, has the donee shown that the donor acted in a manner which displayed that he had an informed consent as to what he was doing, rather than asking the question, in these types of cases, that is the undue influence cases in general, does the fact that the result might not have been different, had independent advice been given, matter?  In other words, does the disability flow from the relationship and it becomes academic then to ask, well, had advice been given, would the result have been any different?  Because that is the way that it seems to have been treated below and it must be said that there is some support for that approach in the judgment of Justice Isaacs in the decision of Watkins v Combes and our submission is that because the jurisdiction is exercised, based upon the desire to avoid or to prevent people placing themselves in a position of conflict of interest and duty, the court then does not embark upon a minute examination of what actually occurred in the relationship in order to ascertain whether or not there was a breach of the duty in the particular case, but rather leaves it to the donee in each case to show that in truth there was no breach of duty because there was a fully informed consent.  We perceive that there is some difference in approach to that issue between what is said by the Chief Justice in Louth v Diprose and what is said in the majority judgment in Maguire v Makaronis.  So perhaps that answers your Honour’s question as succinctly as I can.

KIRBY J:   Is the principle that you are seeking to support that when you get to equitable principle it must be in some way done in a manifestly conscientious way; is that behind the principle in Maguire v Makaronis, or is it something else?

MR FRASER:   Yes, your Honour, because equity acts on conscience it makes it unconscionable for the donee to accept or retain the benefit of the gift, then once you have a situation where there is a conflict which may lead to such unconscionability, there is little point in asking the court to embark upon the inquiry in order for the donee to prove that it has actually occurred in that particular relationship.  So that is perhaps the best way of addressing your Honour’s question.  It is expressed quite well in the passages from Ashburner’s Principles of Equity, which is the last authority listed in our list of authorities.

KIRBY J:   What page?

MR FRASER:   That is at page 306, your Honour, and the passage that in particular we rely on at about point 3 of page 306, your Honours:

Courts of equity in some branches of their jurisdiction are guided by another principle, namely, the desire to prevent a person from burdening his conscience by the acquisition of property to which in conscience he has no right.  No branch of the jurisdiction illustrates this principle more clearly than the branch with which this chapter deals.

And then there are references to four passages, each of which refer to the inflexible rule, specifically addressing the position there to persons in a fiduciary position, but not being allowed to put yourself into that position.  But then, the basic principle which underlies those statements is set out at page 307, in the judgment of Lord Eldon in Ex parte Bennett, as follows:

“The safest rule is that a transaction, which under circumstances should not be permitted, shall not take effect upon the general principle; as, if ever permitted, the inquiry into the truth of the circumstances may fail in a great proportion of cases.”

And that is simply, in our respectful submission, a logical exposition of the feature that, in a relationship between two people, the court is never ever going to get really to the very factors which have influenced a particular person in any one case, and that is why equity insists that the equity to rescission emerges the moment the transaction has occurred, unless the donee shows that there was no breach by showing that there has been an informed consent.  We submit that is the essence of what is said in Maguire v Makaronis, and it seems a little different, with respect, to what was said in particular by the Chief Justice in Louth v Diprose, and in the passages relied upon by our learned friends.

McHUGH J:   Well, I think Justice Gaudron and myself said in Breen v Williams that really underlying this doctrine is the biblical injunction that no man can serve two masters and that one must be put in a position where he chose self interest as opposed to the interests of the person whom you have the relationship with.

MR FRASER:   Your Honour, if that is the underlying rationale there, we submit that is entirely consistent with the passage we have just read out, and in ‑ ‑ ‑

McHUGH J:   Well, we actually cited that passage in Bray v Ford ‑ ‑ ‑

MR FRASER:   Your Honour, we have collected a number of authorities on the point in our list.

McHUGH J:   Well it is on a different area, but it deals with the whole question of ‑ ‑ ‑

MR FRASER:   It really comes down to this:  is the principle the same, in unconscientious transactions, in so far as there is an unconscionable dealing arising out of a relationship with special disability?  Does that same principle which applies where there is a fiduciary relationship apply in both situations?

McHUGH J:   Yes.

MR FRASER:   And we submit that the statements of general principle support that view.  The way that it has been approached in the Court of Appeal was to say, well, this is consistent with his general intention; I am satisfied that the result would have been no different had the advice been given.  And if you then tack onto that the stricture in Maguire v Makaronis, which is, it is for the defendant to show that informed consent was obtained, then it does not matter that the result might have been no different, we submit, and the rest of it comes down to a question of how you mould the relief, so far as any other extraneous circumstances might be conceived.

KIRBY J:   Looking at the unconscientious quality, the wife was a wife of 53 years and there were daughters aged 50, 47, 45 and 44; what did they get out of the estate as a result of this transaction?

MR FRASER:   $50,000 each I think; approximately in that order, your Honour.

KIRBY J:   This man was not strong on his generosity to the female’s line.

MR FRASER:   No, and it was seen that because he behaved like that consistently during his lifetime, that it was sort of not such a bad thing that it happened in this case, I suppose.

KIRBY J:   But is conscientiousness determined according to his standards or according to the court’s statement of the community standards?

MR FRASER:   It must be the latter, your Honour; you cannot have subjective influence there otherwise we would never know what the result might be.

KIRBY J:   You are really saying that the equitable principles were being tainted by the approach that might be adopted in a family provision or testators family maintenance case, to some extent.

MR FRASER:   We say, with respect, a little more.

KIRBY J:   No, at least that, you say.

MR FRASER:   We submit that really these questions of causation that seem to be appealing to both courts below really have no place in this area.

CALLINAN J:   Mr Fraser, I wanted to ask you about two factual matters:  at page 84 (vii) you point to a finding; you say these are all findings, is that correct?

MR FRASER:   Your Honour, we have not specified that that is a specific finding.

CALLINAN J:  No, I wondered what you meant.  I understand what you mean when you say:

The degree of emotional.....dependence -

and that seems to come through in all of the judgments, but when you refer to “financial dependence” are you just referring to the fact that the nephew could get financial advantage out of the transaction, or was there something to show that there was, in fact, a financial dependence?

MR FRASER:   There was this point:  the nephew had a property at Injune at some stage and he and his wife were contemplating going to live there and that would mean they could not then run the partnership affairs for the deceased and his father, and the deceased was concerned about that prospect because, if that happened, he would not have a person that he, I use the word “trusted”, to run his properties in the way that he was happy with, no doubt, and that would mean that he would not have someone upon whom he could rely to look after his financial interest.

CALLINAN J:   That is what you mean when you say ‑ ‑ ‑

MR FRASER:   That is what we mean, your Honour.

CALLINAN J:   Could I just ask you one other question:  on page 71 in the reasons for judgment of his Honour Justice Davies, there seems to be some considerable reliance by his Honour upon the failure of the mother to give evidence.  Do you want to quibble with the finding at line 26, that:

If anyone had noticed any deterioration in his mental condition or such a dependence on Neil as to cause him to disregard his own interests one would think it would have been she.  No-one saw him more frequently.

Do you want to challenge those, assuming that they are properly characterised as findings of fact?

MR FRASER:   Well, there were not any findings of fact specifically based upon that by the primary judge, but that is an observation made by his Honour Mr Justice Davies.

CALLINAN J:   I understand that, but why is it wrong?  In fact the evidence was uncontested, or the inference was irresistible, was it not?

MR FRASER:   Because ultimately, whatever inference might be drawn would be drawn in making findings of primary facts, we would submit, and again, we cannot and do not seek to controvert the feature that an inference could be drawn which might have affected the making of findings of primary facts, but because we are content with the primary facts that were found, we would submit that the inference there does not matter, in particular because, whatever you might think about what may or may not have happened in the transaction, in this case, how it actually occurred came from the mouth of the respondent himself.

CALLINAN J:   It really does not answer my question; I really want to know whether you would want, if we were to grant leave, to challenge that.  Whether it be treated as a finding of fact or an inference or however else you might want to characterise it, would you want to challenge what appears in the passage that I have read?

MR FRASER:   No, your Honour; that finding that one would think that she would be able to have noticed it and could have given useful evidence on the point, we cannot challenge that.

CALLINAN J:   No evidence that she herself was infirm or disabled mentally or physically?

MR FRASER:   I was not in the trial, but my inquiries suggest that there is simply no explanation as to why she did not give evidence, but there is perhaps one point which bears on that ‑ ‑ ‑

KIRBY J:   I thought it was common ground that he had good and bad days, that was a finding, was it not?

MR FRASER:   Yes, your Honour.

KIRBY J:   So that she - it is not suggested that is not correct, as I understand it, that he had good and bad days.

MR FRASER:   Yes.  There is a suggestion in their response outline that that referred to his health, but we submit that when you actually look at the finding made by the primary judge, the discussion on that point appears immediately after the reference to his decline in mental faculties and he had already been in ‑ ‑ ‑

KIRBY J:   It was enough to get the solicitor for the respondent to feel he ought to have somebody and then to have a 10 minute interview, without a full briefing, as to the question to which the doctor was supposed to be addressing his attention.  If that is the standard, it does not seem a very rational or good standard to me, subject to hearing the respondent.

MR FRASER:   Your Honour, I do not believe anyone thought that that was appropriate ‑ ‑ ‑

KIRBY J:   It is a symbolic consultation, not a real consultation - a 10 minute talk with somebody.

MR FRASER:   In the same way that seeing a solicitor is symbolic, but it is not much good if he is acting for the other fellow, and the court has recently canvassed those issues in the other case.  But can I just mention, in response to what Justice Callinan said.  At page 47 in the judgment of the President, he has extracted what actually occurred on the occasion the deceased made his will and put in the sum of $200,000 as being the cost for the exercise of the option, and this is referable to what was said, or the position of the wife who was absent:

Before Bill went into the solicitor’s offices, while on the footpath outside, he asked Neil what he should give to ‘his girls’, meaning apparently his daughters.  Bill nominated $100,000.  Neil responded that Bill should give them ‘twice that much’, provoking Bill’s comment: ‘I told mum you would be bloody fair’ -

Now that says an awful lot about this relationship.  If he consulted Neil about how much he should leave his daughters, after having already told his wife, “Well, obviously, well I will speak to Neil about it because he’ll be fair”, then it is a bit hard to see that the inference that might otherwise have been drawn, because of the absence of the wife, would have affected very greatly these primary facts that were found, and they did not - I am sorry, and they were not so affected, I perhaps should put it.

Your Honours, I wanted perhaps to express the main issue in perhaps another way, and that is this:  in principle, the fact that the result may hypothetically have been the same without the intervention of the donee and with the benefit of independent advice, provides no answer to the real inquiry, and that is, did the donee act unconscionably in obtaining or retaining the benefit? 

Now, if that proposition be made out, then the approach in the Court of Appeal, in our submission, and the approach of the learned trial judge, is wrong, and it does have, as I mentioned at the outset, some support in a statement by Justice Isaacs in Watkins v Combes (1992) 30 CLR 180. I will take your Honours to that because this is a statement which is against us in relation to undue influence. The statement appears at page 196. In this case the majority were content to dispose of the action on another ground, but his Honour embarked upon the confidential relationship. This is a case which is cited with approval as to some other aspects, in both Amadio and in Louth v Diprose, but this particular passage has not, so far as we have noted, been the subject of comment.  It is about point 3:

After referring to the following sentence in the judgment of the subordinate Judge:  “It is needless to cite authorities that such a gift cannot stand unless it is proved that the lady had independent advice,” Lord Shaw says:  “In their Lordships’ opinion there is no rule of law of the absolute kind here indicated.  The possession of independent advice, or the absence of it, is a fact to be taken into consideration and well weighed on a review of the whole circumstances relevant to the issue whether the grantor thoroughly comprehended, and deliberately and of her own free will carried out, the transaction.  If she did, the issue is solved and the transaction is upheld; but if upon a review of the facts - which include the nature of the thing done and the training and habit of mind of the grantor, as well as the proximate circumstances affecting the execution - if the conclusion is reached that the obtaining of independent advice would not really have made any difference in the result, then the deed ought to stand.”

We submit that the way that should be understood is not the way in which it was approached below, but rather on the basis that if it is shown by the defendant that informed consent was in truth obtained, then the deed can stand; that is really perhaps putting a gloss on it that the words themselves may not bear, but, in our submission, consistently with the principle, that is how they ought to be understood.

McHUGH J:   Time is up, Mr Fraser.

MR FRASER:   Thank you, your Honours.

McHUGH J:   Yes, Mr Williams.

MR WILLIAMS:   May it please the Court, may I read something my learned friend.....to your Honours in terms of the disposition writing the will.  The widow’s interest was ultimately $170,000 or more.  Each of the daughters seek under the will $50,000.  In answer to something your Honour Mr Justice Callinan asked my learned friend, the failure of the plaintiffs to call one of their number, Stella, the wife, in our submission, was nearly fatal to their claim, because Stella’s evidence would go to all aspects of the plaintiff’s proof.  It would be capable of establishing a relationship of special disability.  It would be capable of establishing, by fact, which could not largely be controverted, that the deceased did, in fact, repose such trust and confidence in Neil York as to constitute a relationship of special disability.

McHUGH J:   But is that an answer to the applicant’s case?  The applicant says, well, true it is I did not call Stella, but on the evidence and on the findings, the relationship of special disability did exist.

CALLINAN J:   Yes.  Its existence was really reinforced, I think, by the passage that Mr Fraser referred us to at page 47, about fairness. 

MR WILLIAMS:   Yes, your Honour, it also reinforces the notion that Stella was, in fact, consulted in respect of the terms of the will and presumably consulted in respect of all other dispositions which the deceased made.

CALLINAN J:   I think that is going a bit far, but anyway.

MR WILLIAMS:   Well, your Honour, I read into that line that the deceased had informed his wife that he was going to make a will, that he discussed with her the disposition to the daughters and that at some point someone suggested that Neil be asked and that the deceased considered that he would be fair.  So that the wife was intimately involved in that transaction, in our submission, and, in the subsequence transaction it is reasonable to infer that he would have consulted her - they had been married for a long, long time.

Your Honours, despite our learned friend’s submission to the contrary, we submit that this case will necessarily involve a deal of factual consideration.  One cannot simply adopt what appear to be the favourable findings in the evidence and from that extrapolate a relationship of special disability.

KIRBY J:   But he has said he will do that and he would be held to that. 

MR WILLIAMS:   Your Honour, there are findings there, in our submission, which have not been specifically made; at one point Mr Justice de Jersey simply referred to a whole lot of other evidence upon which he relied in reaching a conclusion, ultimately stated, that there was no relationship of special disability.  Evidence such as the independence of the deceased in his own mind.

KIRBY J:   Well that would be you, if you are raising other factual material.

MR WILLIAMS:   I would.

KIRBY J:   The applicants say that they would not; they are content to deal with it within the four corners of what his Honour found.

MR WILLIAMS:   They are content, your Honour, providing they can ask your Honours to focus on two days in the deceased’s life;  effectively the day the offer and acceptance occurred and on the day on which the transaction occurred.

CALLINAN J:   For my part, Mr Williams, I do not find a measure of factual complexity as an obstruction of itself or a ground for refusing special leave; I speak only for myself, I emphasise.

MR WILLIAMS:   No, your Honour.  I was leading to the point, though, that it is necessary to review those facts in order to satisfy your Honours that the finding of absense of special disability, made by the primary judge, and the concurrent findings made by the majority in the Court of Appeal, should stand.

McHUGH J:   You have also got this point going for you that, although one says the facts we rely on are those set out at pages 83 to 84, the findings are always difficult, if not impossible, to understand without going to the underlying evidence which gives them content.

KIRBY J:   Yes, but if Justice Callinan says we should not be put off from that, well we may go to the evidence with enthusiasm.

MR WILLIAMS:   Quite, your Honour, and your Honours would, when going to the evidence with enthusiasm, find the findings of fact and concurrent findings of fact are justified by the evidence.

McHUGH J:   I get the feeling there is a fresh wind blowing in the High Court concerning findings of fact and an evaluation of evidence.

MR WILLIAMS:   I am feeling a little chilly actually, your Honour, just at the moment.  Your Honours, it is our submission ‑ ‑ ‑

KIRBY J:   There are some very curious things, that the deceased was hawked around town seeing a solicitor who is entirely new, and sent off to a doctor for 10 minutes, no proper briefing to the doctor, and then the wife of 53 years and the daughters are really done in the eye; that is the sort of proposition.  It does not sound right; it does not sound conscionable.

MR WILLIAMS:   When one goes to the whole history, the whole history of the matter of course includes the 1985 will, in which all the lands the deceased owned, not just those the subject of the sale, all the lands that the decreased owned were the subject of an option in Neil’s favour, for $150,000.  That will was subjected to attack and survived.  The deceased had, from that early stage, decided to benefit Neil in respect of his lands, to fulfil his long-held ambition that his farming interests would be carried on as a productive enterprise.  That could only be done by involving Neil, because the lands themselves, which were not partnership property, but which were owned either jointly by the deceased and his brother Sam, Neil’s father, by the deceased and Neil jointly, and by the deceased alone.

KIRBY J:   Yes, but conscience also takes into account his obligations to the wife of 53 years and their four daughters.

MR WILLIAMS:   Yes, your Honour, and that issue was best raised in testator family maintenance proceedings, which were instituted and which were not prosecuted.  This matter has had a long history.

KIRBY J:   Yes, but the fact that that happened does not mean that you throw out your conscience when you are dealing with the dealings that were prosecuted ‑ ‑ ‑

MR WILLIAMS:   Oh no.

KIRBY J: ‑ ‑ ‑and there are things here that really are sanctioned which are of concern; that a person is taken to a solicitor and he is not his ordinary solicitor, he is your client’s solicitor, and he does not get independent advice.  He goes and sees a doctor, who sees him for 10 minutes; the doctor does not have the details of his mental capacities.  How can he really make a judgment in the few minutes?

MR WILLIAMS:   Your Honour, the solicitor concerned had, in fact, drawn the deceased’s will some three years earlier.  He had been engaged on this occasion by ‑ ‑ ‑

KIRBY J:   It was not the solicitor who knew him and who regularly had dealt with him over the years.

MR WILLIAMS:   No, that was a Mr Taylor, your Honour, this was Mr Pack, but Mr Pack had drawn his will, was aware of those dispositions, and ‑ ‑ ‑

KIRBY J:   Why not go to Mr Taylor?

MR WILLIAMS:   I think Mr Taylor had retired by that stage, your Honour, leaving Mr Pack as the principal in the partnership.  So he returned to his formed solicitors and dealt with the principal.  Your Honour, those matters were, of course, ventilated in the trial and in the Court of Appeal.

KIRBY J:   Yes, but it does not mean that we are foreclosed from ‑ ‑ ‑

MR WILLIAMS:   It certainly does not preclude your Honour from doing so, but ‑ ‑ ‑

KIRBY J:   If it appears to offend conscience, and it said also, perhaps more to the point, that it offends a principle recently stated by the Court in Maguire v Makaronis.

MR WILLIAMS:   Your Honour, we have some difficulty with our learned friend’s submission there, for we perceive he is attempting to, in effect, merge the doctrine of unconscionability into the duties of a fiduciary; he is attempting to equate the two.

McHUGH J:   There is no doubt about that.

MR WILLIAMS:   Well he must, essentially, your Honour, to succeed.

KIRBY J:   Is that not an important question?

MR WILLIAMS:   Well it might be, but for clear statements by this Court, in respect of both doctrines.  Louth v Diprose establishes the doctrine of unconscionability beyond doubt, Amadio and such cases, and Maguire deals with the fiduciary duties which arise, once a fiduciary relationship is established.  Decisions of this Court in Hospital Products establish the circumstances in which a fiduciary relationship will arise, essentially implied undertakings to act - by the fiduciary to act on behalf of the beneficiary and not to act in his own interests.  Now, your Honours, it is a long bow, in our submission, to take one principle, that of unconscionability, which does not, as an essential element, have a duty, merely a result, in certain circumstances of special disability, and meld that into another clear area of law where ‑ ‑ ‑

KIRBY J:   But they are both areas of the law of equity; they are both areas developed by the chancellors.

MR WILLIAMS:   They certainly are, your Honour.

KIRBY J:   It seems impossible to think that conceptually they are entirely different ideas.  The idea is that people in special relationships have to act in a particularly conscientious way to others.

MR WILLIAMS:   Quite, your Honour, but then those in a fiduciary relationship must act according to more stringent requirements, and that is where our learned friend’s argument will encounter considerable difficulty, because by imposing, as he wishes to have imposed, on a person who is in a relationship of special disability with another, the same duty as is imposed on a fiduciary, he is asking the Court to sanction specific duties of a fiduciary arising out implied or express undertakings and where public policy is an element in the Court’s determination of both the duty and the relief.  In our submission, your Honour, these two branches of equity, if I may, having developed independently and thereby capable of meeting the burden of vicissitudes of human life, should not be melded in that way.  To do so detracts from both, in our submission.

Your Honours, there is one further point in this case, and that is the question of relief.  The will was proved and the option under the will was ultimately exercised.  The will was subject to attack under the Testators Family Maintenance legislation and that was not prosecuted, so the option is valid.  If our learned friends succeed in successfully attacking the transaction in July, the question is, how would equity respond?  In our submission, the relief to which the applicants are primarily liable is restoration to the status quo anti.  We would refer to Maguire, particularly your Honour’s Justice Kirby’s judgment.  That being so, your Honours would set aside the transaction.  Your Honours would not, as the President did, seek to set aside a part of that transaction or a part of the documentation, over which the parties had no control and which was solely the decision of the solicitor who structured the transaction.

Your Honours will see that what the President proposed was that the deed of gift by which the balance of purchase price was effectively paid should be allowed to stand, thereby effectively requiring the second respondents to purchase the lands at full value.  Now, in our submission, that is not a matter of doing practical justice, in terms of the decision inVadasz and is not consistent with the decision in Maguire.  It is, in the terms in which the majority spoke in Maguire, an impermissible form of relief.

KIRBY J:   Would not the practical course that the Court would take in such a matter, rather than itself trying to do the equities, be simply to send it back to the Supreme Court of Queensland so that presumably it would be sent back to the primary judge to deal with the matter on a different principle that has not happened to date?

MR WILLIAMS:   Yes, your Honour; the ultimate question is whether the whole transaction is struck down, it seems, or whether only part of it is struck down or whether the part of the transaction can be struck down, leaving some in place.  The President did, in our respectful submission, proceed on an incorrect premise, in any event, in arriving at his conclusion.  He proceeded on the assumption that the relief he proposed was justified, because the arrangements had been kept secret from members of the family until after the deceased died and, in our respectful submission, his Honour was wrong in that respect.  The facts clearly established and indeed, accepted by the trial judge, were that in November 1988, some four months after the transaction took place, the deceased’s executor, his son-in-law, and one of the plaintiff’s took him back to Mr Pack, the solicitor, to, in effect, obtain a power of attorney.

Another doctor’s certificate as to competence was obtained and produced, a Doctor Carlisle, but at that meeting there was evidence that the transactions were disclosed, that there was considerable disquiet on the part of the daughter, that the deceased’s further instructions were taken and, as his Honour found, the deceased was determined to hold in an informed way to those transactions.

KIRBY J:   Your client and your client’s wife were picking false leads, were they not; was that not found?

MR WILLIAMS:   That is early on, your Honour, yes, as was the deceased, we readily concede.  The deceased was one to deflect questions in relation to his affairs; he did not discuss them with anyone.

KIRBY J:   Especially with his wife of 53 years or his four daughters.

MR WILLIAMS:   He seems to have, your Honour.

KIRBY J:   That does not seem conscientious to me.

MR WILLIAMS:   That fact though, your Honour, the fact of the revelation of those matters has a significant bearing, we submit, on the

nature of the relief and, in our submission, it would not avail the applicants to establish an entitlement in equity to restoration for the status quo anti, if all that did was to deprive them of the consideration actually paid for this transfer, because the lands would then go under the option, which has been exercised, and would become the second respondent’s in any event.

So, it is our submission, there is no special leave point in the case.  It is our submission the facts are against the respondent and, as neatly as they may attempt to circumvent the finding of fact, there are concurrent findings of no relationship of special disability, that in any event the outcome of the appeal would not avail the applicants; it in fact would ultimately detract from their position, and this is not a case as a suitable vehicle for the determination of any questions your Honour considers are outstanding.  Unless there is anything further, those are our submissions.

McHUGH J:   Thank you, Mr Williams.  Yes, Mr Fraser.

MR FRASER:   Your Honour, three points.  Firstly, our learned friend has referred to the launching of of Testators’ Family Maintenance provision proceedings.  Of course, in Queensland, unlike elsewhere, if the property has gotten out of the estate, the Court has got no jurisdiction over it, so far as the Testators’ Family Maintenance application is concerned, so the practical effect of the inter vivos transaction was to preclude access to the bulk of the deceased’s estate, so far as his ‑ ‑ ‑

KIRBY J:   But that still leaves Mr William’s point that at the end of the case there has to be a disposition and the disposition would have to build upon the legal position which is that the will has been upheld, and the option exercised.

MR FRASER:   But, with respect to that, it is attractive at first blush, but at the end, assume that there had been no attack on the will at all, and the position was that an attack was made solely on the inter vivos disposition, if the will left this property to the respondent, then it would have been susceptible to the exercise of the court’s jurisdiction under that provision and, so far as practical justice is concerned, you look at the circumstances which prevail, so far as the particular transaction is concerned.  It can hardly be a hardship to the respondent to have to pay the market value for a property where he has procured a deed of gift by unconscionable conduct and, so far as that is concerned, it seems, with respect, to us at least, an odd response to say, well you should not hold the respondents to the way this particular transaction was structured, because the parties had no control about the structure of the contracts.  That rather seems to support our contention that this was not something which was the fully informed action of the deceased. 

So they cannot have it both ways, with respect.  If, at the end of the day, the effect of an unsuccessful attempt to, in an unconscientious way, accelerate the benefit to the respondents under the will fails, then it is a bit difficult for this Court to endorse the view, well that is all right because you got it under the will, and public policy does not require us to provide any practical justice as a remedy in response, because that is ultimately what would happen and, in our outline we have said, these are by no means unfamiliar situations.

KIRBY J:   Would you be seeking to uphold the order made by the President?

MR FRASER:   Yes, your Honour, we seek alternative relief, but that is the primary source, but whether that is an exercise that should be carried out by this Court or by returning the matter to the Supreme Court with guidance as to the proper principles to be applied is, of course, another question.  Ultimately, if it is being said against us that the relief we get will not be good enough for our purposes, then that seems not a particularly attractive reason to refuse special leave and we have been denied that opportunity by a miscarriage below.

There was one factual matter, I do not mean to trespass, but we have given a reference to the evidence that Mr Pack, the solicitor, swore that, to his knowledge, the firm had never previously acted for the deceased before the matter of the will.

KIRBY J:   He had not.

MR FRASER:   He never personally had.

KIRBY J:   Mr Taylor apparently had retired.

MR FRASER:   It is not clear, because Mr Pack’s evidence was that the firm had not acted for the deceased.

KIRBY J:   Anyway, whatever the position, it was a solicitor who saw him for 10 minutes who had never seen him before.

MR FRASER:   I think the solicitor saw him for a bit longer, but the doctor had not seen him before, yes.  Thank you, your Honour.

McHUGH J:   Yes, there will be a grant of special leave in this case.

AT 11.49 AM THE MATTER WAS CONCLUDED