Chalhoub v Chalhoub

[2005] NSWSC 572

CITATION:	Chalhoub v Chalhoub [2005] NSWSC 572
HEARING DATE(S):	27 August, 6 and 7 December 2004, 21 March 2005
JUDGMENT DATE :	22 June 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice McLaughlin at 1
DECISION:	(1). I order that the summons be dismissed. (2). I declare that, pursuant to the agreement made on 26 May 1998 between the Plaintiff and the Defendant, the Defendant has the right to the exclusive occupation of the property situate at and known as 100 The Avenue, Granville ("the subject property") during his lifetime. (3). I order that the Plaintiff be restrained from selling, transferring or encumbering his interest in the subject property during the lifetime of the Defendant, or otherwise interfering with the quiet enjoyment by the Defendant of the subject property during the Defendant's lifetime. (4). I order that the cross-claim be otherwise dismissed. (5). I make no order as to costs, to the intent that each party shall bear his own costs of the proceedings.

CATCHWORDS:	Statutory trust for sale. Discretion of Court. Asserted agreement inconsistent with statutory sale. Challenge to validity and efficacy of asserted agreement and to transfer of property into co-ownership. whether Defendant was in a position of special disadvantage in relation to Plaintiff. Unconscionable conduct. Whether asserted agreement was unjust. Inferences which the Court may draw from failure of a party to call a witness.
LEGISLATION CITED:	Contracts Review Act 1980 Conveyancing Act 1919 Family Provision Act 1982
CASES CITED:	Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447 Ex parte Permanent Trustee Nominees (Canberra) Limited [1989] 1 QdR 314 Forgeard v Shanahan (1994) 35 NSWLR 206 Jones v Dunkel (1959) 101 CLR 298 Ngatoa v Ford (1990) 19 NSWLR 72
PARTIES:	Joe Chalhoub (Plaintiff) John Chalhoub (Defendant)
FILE NUMBER(S):	SC 3519 of 2003
COUNSEL:	Mr. E. Baskerville (Plaintiff) Mr. R. Greenaway (Defendant)
SOLICITORS:	David Weston & Co (Plaintiff) Baldock Stacy & Niven (Defendant)

LOWER COURT JURISDICTION:

- 20 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Wednesday, 22 June 2005

3519/03 - JOE CHALHOUB –v- JOHN CHALHOUB

JUDGMENT

1 MASTER: By summons filed on 27 June 2003 the Plaintiff, Joseph Mark Chalhoub (known as and named in the Court file and Court documents as Joe Chalhoub), claims firstly an order that the Defendant, Hanna Youssef Chalhoub (known as and named in the Court file and Court documents as John Chalhoub), sign all necessary documentation and do all things necessary to effect the sale and transfer of certain property situate at and known as 100 The Avenue, Granville (to which I shall refer as “the subject property”). The Plaintiff further claims (although in somewhat elliptical terms) relief that in default of compliance with the foregoing order there be appointed statutory trustees for sale of the subject property pursuant to the provisions of Division 6 of Part 4 of the Conveyancing Act 1919 (and, in particular, pursuant to the provisions of section 66G of that statute), and that the net proceeds of sale of the subject property be divided equally between the Plaintiff and the Defendant.

2 The Defendant on 17 September 2003 filed a document entitled defence and cross-claim. That document is in a somewhat curious form. Firstly, the defence does no more than deny the entitlement of the Plaintiff to the foregoing relief claimed in the summons. It will be appreciated that a summons, which of its nature merely claims relief, does not require a defence to be filed in response thereto. Further, the appropriate form of a cross-claim filed in response to a summons should merely seek relief. Nevertheless, the cross-claim filed by the Defendant in the present proceedings is in the form of a pleading. By that cross-claim the Defendant challenges the efficacy of certain documents executed by him on or about 26 May 1998.

3 Those documents were described as being respectively a Deed of Acknowledgement and a Memorandum of Transfer [sic], each of which was executed by the Plaintiff and the Defendant at the offices of Astley, Thompson, Solicitors of St. Mary’s. Each of those documents related to the subject property.

4 In consequence of the foregoing documents the Plaintiff on or about 26 May 1998 caused the title of the subject property to be transferred from the Defendant (who theretofore had been the sole registered proprietor thereof) to the Defendant and the Plaintiff as joint tenants.

5 It is asserted in the cross-claim that the Defendant, who is father of the Plaintiff, was born in Lebanon and is illiterate in both the Arabic and the English languages (paragraphs 1 and 4); that on or about 26 May 1998 each of the Plaintiff and the Defendant executed the aforesaid documents at the offices of Astley, Thompson, Solicitors, of St. Mary’s (paragraph 2); and that subsequent to the execution of the documents the Defendant caused the title of the subject property to be transferred from the sole name of the Defendant to that of the Plaintiff and the Defendant as joint tenants (paragraph 3).

6 By the cross-claim the Defendant asserts, firstly, that the Plaintiff represented to him that the foregoing documents constituted an agreement whereby the Defendant would pay to the Plaintiff the sum of $3,000 either upon sale of the subject property, or upon the death of the Defendant, whichever came first.

7 Paragraph 6, 7 and 8 of the cross-claim are as follows,

6. Acting in reliance upon the representation and induced thereby, the Defendant/Cross-Claimant without negligence on his part executed “the documents” in the belief that the documents referred solely to the description of same made by the Plaintiff/Cross-Defendant to the Defendant/Cross-Claimant in the Arabic language.
7. The Defendant/Cross-Claimant never intended to execute “the documents” as an agreement.
8. In the premises the Defendant/Cross-Claimant never became liable pursuant to the terms of the “Deed of Acknowledgement”.

8 The Defendant by the cross-claim then asserts, further or in the alternative, an entitlement to relief under the Contracts Review Act 1980, grounded upon various matters and circumstances surrounding the execution by him of the foregoing documents, and submits that in those circumstances the Deed of Acknowledgement was unjust in the circumstances relating to it at the time that it was made.

9 The Defendant then asserts, further or in the alternative to the foregoing claim under the Contracts Review Act, that by reason of the foregoing matters (asserted by the Defendant in support of his claim for relief under that Act),

[T]he Defendant/Cross-Claimant was in a position of special disadvantage at or about the time of the execution of the Deed of Acknowledgement which position of special disadvantage was known or ought to have been known by the Plaintiff/Cross-Defendant and in the premises it is unfair and unconscientious for the Plaintiff to rely upon the documents, or any of them.

10 The Defendant by the cross-claim seeks the following substantive relief,

(i) An order that the Deed of Acknowledgement be set aside pursuant to the Contracts Review Act and/or alternatively, under the general law.
(ii) Alternatively to Order (i), an order declaring the said Deed of Acknowledgement to be void.
(iii) An order that the Plaintiff/Cross-Defendant do all things and sign all documents to transfer his alleged legal and/or equitable interest in the property known as 100 The Avenue, Granville to the Defendant/Cross-Claimant.
(iv) Costs.

11 By his defence to cross-claim the Plaintiff admits paragraphs 1, 2 and 3 of the cross-claim and then, essentially, denies the other allegations in the cross-claim.

12 During the course of the hearing the Defendant sought to amend the relief claimed by him in the cross-claim by seeking, in the alternative, the following relief (which was set forth in a document headed, Amendment to Orders sought by the Defendant in the Cross-Claim),

(1) Declaration that pursuant to the Agreement made 26 May 1998 between the Plaintiff and the Defendant/Cross-Claimant, the Defendant/Cross-Claimant have the right to the exclusive occupation of the property known as 100 The Avenue, Granville (“the property”) during his lifetime.
(2) The Plaintiff be restrained from either or selling, transferring, or encumbering his interest in the said property during the lifetime of either the Plaintiff/Cross-Defendant [ sic ], or otherwise interfering with his quiet enjoyment of the said property during his lifetime.

(I shall assume that the reference in the foregoing paragraph (2) to “the Plaintiff/Cross-Defendant” is an error and that reference to the Defendant/Cross-Claimant is intended.)

13 On the second day of the hearing it was stated by Counsel for the Plaintiff/Cross-Defendant, and was noted, that the Plaintiff/Cross-Defendant consents to the alternative relief which is sought by the Defendant/Cross-Claimant, that being relief in the terms which I have just set forth; but that, nevertheless, the Cross-Claimant still wishes to pursue the relief sought in orders 1, 2 and 3 of the cross-claim as presently filed.

14 On 27 August 2004 Justice Campbell, as Duty Judge in the Equity Division, ordered that the proceedings be referred to a Master for hearing.

15 The Defendant is the father of the Plaintiff. It was the evidence of the Defendant that he was born in Lebanon in about 1928 (he does not know the precise date or even the year) and that, illiterate in both Arabic and English, he understands spoken Arabic, but does not understand spoken English. He was cross-examined concerning this last assertion. The Defendant has ten children (being two sons - the Plaintiff and another son, Tony - and eight daughters).

16 On 15 November 2001 the Defendant severed the joint tenancy, and the Plaintiff and the Defendant now hold the subject property as tenants in common in equal shares.

17 Since the Plaintiff and the Defendant are registered as tenants in common in equal shares, then prima facie the Plaintiff is entitled to relief of the nature sought in the summons, for sale of the subject property and for the division of the net proceeds of such sale between the Plaintiff and the Defendant in equal shares.

18 If, as is the case, the Defendant denies the entitlement of the Plaintiff to such relief, then it is for the Defendant to establish that the legal rights of the parties consequent upon their status as registered proprietors as tenants in common in equal shares are in some way altered in consequence of the invocation of equitable rights recognised by a Court of Equity, or that there is some other reason why the Court should, in the exercise of the limited discretion reposing in it by section 66G of the Conveyancing Act, decline to make an appointment of statutory trustees for sale of the subject property.

19 One such reason which may enliven that limited discretion is the existence of some contractual obligation with which an order for the appointment of statutory trustees for sale would be inconsistent. See Ngatoa v Ford (1990) 19 NSWLR 72, where Needham J followed the Full Court of the Supreme Court of Queensland in Ex parte Permanent Trustee Nominees (Canberra) Limited [1989] 1 QdR 314; see, also, Forgeard v Shanahan (1994) 35 NSWLR 206, where Kirby P approved the decision of Needham J in Ngatoa v Ford, quoting His Honour’s agreement with the conclusions of the Full Court of Queensland in Ex parte Permanent Trustee Nominees (Canberra) Limited. The majority in Forgeard (Mahoney and Meagher JJA, from whose decision the President dissented) did not address this question of limitation upon the statutory discretion of the Court to make or withhold an order under section 66G of the Conveyancing Act.

20 The Defendant invokes the intervention of a Court of Equity by asserting, firstly, that the Deed of Acknowledgment was, in effect, void because (so it is asserted) the Defendant did not understand the nature of that document: indeed, that he was, in effect, tricked into signing that document when he believed that he was signing a will. According to the Defendant, when he executed that Deed, he believed that he was signing a document the effect of which was that the Plaintiff should upon the death of the Defendant be entitled to one-half of the subject property, and that, in the event that the Defendant during his lifetime disposed of the subject property, he would pay to the Plaintiff the sum of $3,000, to reflect the payment by the Plaintiff of stamp duty (and, as I gather, associated legal costs) in respect to the transfer by the Defendant of the subject property to himself and the Plaintiff as joint tenants.

21 Further, the Defendant asserts that the conduct of the Plaintiff regarding the execution of the Deed of Acknowledgement (and thus the transfer consequent thereon of the subject property) was unconscionable conduct of the nature recognised by the High Court of Australia in Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447, which attracts the intervention of a Court of Equity.

22 Further, the Defendant also asserts that that conduct attracts the intervention of this Court pursuant to the Contracts Review Act.

23 Unless the Defendant succeeds, upon one of the foregoing grounds, in having the Deed of Acknowledgement set aside, then, as I have already observed, the consequence of the legal rights of the Plaintiff as one of two registered proprietors of the subject property as tenants in common in equal shares, is that, prima facie, the Plaintiff is entitled to relief of the nature sought in the summons.

24 I have had the benefit of receiving a written outline of submissions from Counsel for each party. Those documents will be retained in the Court file.

25 In considering the challenge by the Defendant to the validity of the Deed of Acknowledgement, and the consequent relief claimed by him in the cross-claim, it is necessary to scrutinise in detail the evidence presented to the Court regarding the circumstances in which that document was executed.

26 On behalf of the Defendant that evidence consisted of the affidavit of the Defendant sworn on 27 November 2003 and the cross-examination of the Defendant. Both that affidavit and the oral evidence of the Defendant were presented through an interpreter in the Arabic language.

27 In addition, on behalf of the Defendant, affidavit evidence was presented by his daughter Ivette Maria Gandy (known universally as Yvonne Gandy), and her husband Glenn Raymond Gandy. Mrs Gandy had sworn an affidavit on 27 November 2003, upon which she was cross-examined. The totality of Mr. Gandy’s evidence was given orally.

28 On behalf of the Plaintiff the evidence consisted substantially of the affidavits of the Plaintiff sworn respectively on 7 November 2003, 4 December 2003 and 11 August 2004, and the cross-examination of the Plaintiff.

29 I should here record that a very considerable part of the evidence of each party and the cross-examination of each party turned upon the circumstances in which the Deed of Acknowledgement and the transfer were executed by the Defendant on or about 26 May 1998 at the offices of Astley Thompson & Valtas, Solicitors.

30 Although it was asserted by each party that Mr. Steven Valtas, Solicitor, of that firm was present on the occasion of the execution of the foregoing documents (the Plaintiff and the Defendant each giving totally different versions of the participation – or, as asserted by the Defendant, the lack of participation – by Mr. Valtas in what took place on that occasion), indeed, Mr. Valtas appears to have witnessed the signature of each party to the Deed of Acknowledgement, nevertheless, neither party saw fit to adduce any evidence from Mr. Valtas himself. Each party ultimately submitted that the responsibility for calling Mr. Valtas lay upon the opposing party, and each party invoked against his opponent the principles expressed by the High Court of Australia in Jones v Dunkel (1959) 101 CLR 298, submitting that I should infer from the failure of the other party to call evidence from Mr. Valtas, that any such evidence from him would not have assisted that other party. I shall in due course return to this question of the absence of any evidence from the person whom the Court might expect would have been the critical (and, indeed, the only impartial) witness in the proceedings, and the question of whether it was the Plaintiff or the Defendant whom the Court would have expected to have called Mr. Valtas as a witness.

31 It was the case for the Plaintiff that the circumstances surrounding the execution of the Deed of Acknowledgement and the transfer must be approached in the context of earlier transactions concerning real property which had been entered into by the Plaintiff and the Defendant and the Plaintiff’s brother Tony (who is the only other son of the Defendant). It was the evidence of the Plaintiff that on account of a transfer by the Defendant to the Plaintiff and Tony of two pieces of real property situate at Terrigal and the subsequent requirement by the Defendant that the Plaintiff should then transfer his interest in those properties back to the Defendant, whilst Tony Chalhoub retained his interests therein, the Plaintiff had been disadvantaged in those transactions and that he had not received a benefit equal to that which his brother Tony had received.

32 Further, it was the case for the Plaintiff that the reason why the Defendant entered into the arrangement which was carried into effect by the Deed of Acknowledgement was that the Defendant wished to restore to the Plaintiff a situation of equality between the Plaintiff and Tony, but that the Defendant considered that if he were to make an outright gift to the Plaintiff either of the totality of his interest in the subject property or of a one half interest therein, any such transfer might be challenged by one or more of the surviving children of the Defendant (each of whom would, of course, be an eligible person in respect to the Defendant for the purposes of making a claim under the Family Provision Act 1982), by seeking a declaration that such transfer was a prescribed transaction, and that the subject property (or the interest of the Defendant therein) be designated notional estate of the Defendant.

33 I would also here observe that, although it was the evidence of the Plaintiff that after the second visit by the parties to Mr. Valtas and the suggestion of Mr. Valtas that the parties should execute a Deed of Acknowledgement, a will was then drafted which was subsequently executed by the Defendant, that will containing, according to the Plaintiff, an explanation of why the Defendant did not include his other son, Tony Chalhoub, in the transfer of the subject property.

34 There was admitted into evidence (as annexure A to the affidavit of the Plaintiff sworn 11 August 2004) a copy of a will of the Deceased dated 14 January 1999, that being almost eight months after the date of the Deed of Acknowledgement. By that will the Defendant gave a legacy of $5,000 to each of his daughters, and gave the residue of his estate to the Plaintiff absolutely. Clause 7 of that will is in the following terms,

I DIRECT that my son ANTHONY CHALHOUB may not take any benefit from my estate as I have already provided him with the property known as No. 14 Riviera Street, Terrigal in the State of New South Wales. I also intend to provide him with the property known as No. 4 Florida Street, Terrigal in the said State during the course of my lifetime.

35 The terms of the foregoing will are entirely consistent with the arrangement which the Defendant said he had with the Plaintiff, and also with the terms of the Deed of Acknowledgement.

36 Despite the will executed by the Defendant on 14 January 1999 being fully consistent with what the Defendant asserted were his testamentary intentions and wishes, nevertheless under cross-examination he denied any knowledge of having executed a will on that date, and asserted that if he had placed his signature on that document that had been done without his knowing the nature of the document. He said he had no recollection of signing such a will.

37 No evidence was offered by the Defendant concerning the circumstances in which, almost eight months after the execution by him of the Deed of Acknowledgement and the transfer, he executed a will in the foregoing terms. That will is entirely consistent with the effect of the arrangement evidenced by the Deed of Acknowledgement. (The attestation clause of the will contains the following statement, “The Testator being unable to read the English language but being able to understand spoken English the Will was read to him by ANA GRGURIC in the presence of Wendy Kenn and Sharyn Topp whereupon the Testator stated that he knew and approved its contents. It was then signed by the Testator in the presence of both of us being present at the same time and attested by us in the presence of him and of each other”.)

38 In these circumstances it is difficult to understand the complaint of the Plaintiff concerning the effect of the Deed of Acknowledgement and the transfer (a complaint expressed in the letter of 31 January 2003 from the Solicitors for the Defendant to the Solicitors to the Plaintiff, “it was never explained to our client [the Defendant] that the property was to be transferred into joint names and never explained that his eight daughters would thereby be left without inheritance”). By the very terms of the will which he made in January 1999 the Deceased left to each of his eight daughters a legacy in what might be described as only a nominal amount of $5,000.

39 Since much of the evidence of the Plaintiff and the Defendant was in conflict, especially concerning the circumstances surrounding the execution by the Defendant of the Deed of Acknowledgement and the transfer, and the visitations by the Defendant to the offices of the Solicitors, and what is alleged to have been said by Mr. Valtas during the two occasions when the Defendant attended at his office, it is appropriate that I should express my views concerning the credibility of the evidence of each of the Plaintiff and the Defendant.

40 I did not regard either the Plaintiff or the Defendant to be a witness upon whose unsupported evidence the Court could safely rely. I regarded the Plaintiff as being unclear and uncertain in his recollections (whether deliberately or not, it was difficult to tell). I regarded the Defendant as a totally unreliable witness, who was not as innocent or naïve as he would have the Court believe. I considered that at times he was being deliberately evasive in his responses.

41 To an extent, the evidence of the Defendant was supported by that of his daughter Yvonne (Mrs. Gandy). The Defendant denied that he was accompanied by Mrs. Gandy to the offices of Mr. Valtas. Mrs. Gandy herself denied being present on those occasions or even having met Mr. Valtas. It was asserted by the Plaintiff that Mrs. Gandy was, in fact, present, and that she assisted in interpreting from English into Arabic for the benefit of the Defendant. (I would also here interpolate, that I considered that the Defendant’s understanding of spoken English was greater than he would have the Court accept.)

42 It will be appreciated that the question of whether or not Mrs. Gandy was present at the interviews with Mr. Valtas could have been resolved very simply by evidence from Mr. Valtas, whom neither party chose to call as a witness. In the absence of such evidence, I am satisfied on the balance of probabilities that Mrs. Gandy was not present on those occasions.

43 As I have already observed, it was submitted on behalf of each party that the other party should have called Mr. Valtas as a witness, and that, no explanation having been offered for the absence of evidence from him, the Court was entitled to infer that his evidence would not assist the party whom it would have expected to call Mr. Valtas as a witness. (See Jones v Dunkel, supra, at 308 per Kitto J, at 309-310 per Menzies J and at 318-321 per Windeyer J.)

44 I have already observed that the discretion of the Court to refuse an application by one co-owner for statutory sale of land held in co-ownership is limited, and that, prima facie, a co-owner is entitled to relief by way of such statutory sale. It is for the party opposing that relief and seeking the exercise by the Court of the limited discretion to refuse that relief to establish grounds upon which that relief should be withheld. In the instant case it is the Defendant who opposes the relief by way of statutory sale, relying upon, firstly, the asserted invalidity and inefficacy of the Deed of Acknowledgement, and then upon the asserted contractual relationship between the parties. It seems to me, in those circumstances, that it would be expected that the Defendant would have called evidence from Mr. Valtas to support the case for the Defendant concerning, firstly, the circumstances of the execution of the Deed of Acknowledgment and then concerning the nature of the contractual arrangements asserted by the Defendant to have been entered into by the parties.

45 No explanation was offered for the absence of Mr. Valtas. Since I consider that the Court was entitled to expect that Mr. Valtas would be called on behalf of the Defendant, the Court is entitled to draw an inference that any evidence which might have been given by Mr. Valtas would not have assisted the case for the Defendant, and would not have supported the evidence of the Defendant concerning what occurred during the visits by the Defendant to the offices of Mr. Valtas.

46 However, in the instant case the Court is not entirely deprived of evidence from Mr. Valtas. Exhibits 1 and 3 were letters from Astley Thompson & Valtas (bearing the reference in that firm to Mr. Valtas), dated respectively 7 May 1998 and 12 May 1998.

47 The letter from Mr. Valtas of 7 May 1998 was addressed to the Plaintiff. It refers to the interview by Mr. Valtas with the Defendant on 6 May 1998 “to take instructions for a Will”. The letter then expresses the opinion of Mr. Valtas that the Defendant’s daughters would be entitled under the Family Provision Act “to claim a greater percentage than that currently contemplated provided they were in no better financial position than both yourself and your brother Tony”. The letter continues by suggesting an arrangement whereby the property at 4 Florida Street, Terrigal (which at that stage was owned by the Defendant and his son Tony Chalhoub as tenants in common in equal shares) be converted to joint tenancy, with the consequence that, upon the death of the Defendant it would pass by survivorship to Tony; and that the Defendant transfer a one half interest in the subject property to be held by himself and the Plaintiff as joint tenants “to ensure that on your father’s death the entire property is transferred to you”. Mr. Valtas went on to suggest that that transfer be effected in conjunction with

a further document which would grant to your father and your mother a right to remain in the family home until their deaths and would place an obligation upon you to contribute to general household expenses to be nominated by your father in consideration for him transferring the property to you. Your father would also be granted the right to sell the property and to retain all proceeds for the purpose of conducting a further purchase at a later date.

48 It was a complaint of the Defendant in the correspondence between solicitors that the Plaintiff did not pay the totality of the outgoings which were referred to in clause 1(a) of the Deed of Acknowledgement (“[the Plaintiff] agrees to:- (a) pay on behalf of Chalhoub Senior and his wife such general household expenses as arise for payment from their personal consumption of Electricity Gas, Water Rate and Consumption, Council Rates and such other accounts that may arise during the life of both Chalhoub Senior and his wife”). From May until October 2001 the Plaintiff was residing in the subject property. Throughout that period he paid the totality of the land rates, and both before and after that period he paid and has continued to pay half the land rates. Since he ceased to be in residence he has not paid for electricity, gas, water or other general household expenses of the Defendant in respect to the subject property.

49 Exhibit 3 is a letter from Mr. Valtas to a firm of real estate valuers, Kohler Bird Appraisals, requesting a valuation of the subject property for stamp duty purposes.

50 I have already expressed my view that I did not regard either the Plaintiff or the Defendant as a witness upon whose unsupported evidence the Court could safely rely.

51 Nevertheless, despite that conflict of evidence, it clearly emerges that, although the Defendant asserted that he understood that the purpose of his first visitation to the office of the Solicitors was to make a will, yet the Defendant was adamant that the arrangement which he had with the Plaintiff concerning the subject property was that upon the death of the Defendant the Plaintiff should be entitled to one half of the subject property, and that he and his wife, Mrs Jamal Chalhoub (who, in fact, is now deceased, having died on 22 July 2001), should be entitled to remain in residence at the subject property and that, in the event that the Defendant during his lifetime disposed of the subject property, he would pay to the Plaintiff the sum of $3,000 to reflect the payment by the Plaintiff of stamp duty.

52 It will be appreciated that it is implicit in that understanding by the Defendant, especially in regard to the payment of stamp duty by the Plaintiff, that the Defendant knew that the subject property was being transferred from the sole ownership of himself to the co-ownership of himself and the Plaintiff.

53 The foregoing understanding by the Defendant of the effect of the document which was signed by him on 26 May 1998 was fully consistent with the actual effect of the Deed of Acknowledgement.

54 It should also be observed that the Plaintiff did not dispute that the purpose of his taking the Defendant to Mr. Valtas’s office in May 1998 was so that the Defendant could make a will. It was the case for the Plaintiff, however, that Mr. Valtas drew the attention of the parties to the fact that a will along the lines which the Defendant proposed to make might be subject to challenge by the daughters of the Defendant. It was, according to the Plaintiff, in consequence of that concern on the part of Mr. Valtas that Mr. Valtas proposed the procedure by way of the execution of the Deed of Acknowledgement. As I have already observed, the Defendant, in the event, subsequently executed a will, which gave little benefit to any of the Defendant’s children other than the Plaintiff. The execution of that will was by no means contemporaneous with the execution of the Deed of Acknowledgement and the transfer.

55 Under cross-examination concerning the Deed of Acknowledgement the Defendant was asked, “When you signed that document you knew that you were giving half the house away?”, to which the Defendant responded, “I did know. Yes. After I pass away he take half the house. But while I am alive, no.”

56 The foregoing response is certainly consistent with the provisions of the Deed of Acknowledgement.

57 The cross-examination also included the following exchange,

Q. You told the Court that you signed the document in Mr. Steve Valtas’s office?
A. Yes.
Q. Relating to the transfer of half the property to your son Joe?
A. I do acknowledge I did sign some papers. Yes. But the condition was I give him half the house after I pass away. But while I am alive I have still got all the right to do with my house the way I want it.
Q. By that you mean, while you are alive you can live in the house or sell the house, as you wish?
A. God bless you, that is exactly.

58 In those circumstances, it does not seem to me that the Defendant has any cause for complaint. By signing the Deed of Acknowledgement he achieved precisely the result which he understood he was to achieve, and of which he was desirous of achieving. I do not consider that, in those circumstances the conduct of the Plaintiff regarding the execution of the Deed of Acknowledgement (and thus the transfer consequent thereon of the subject property), irrespective of whether or not Mrs. Gandy was present, or irrespective of whether or not the Defendant had been told that the purpose of his first visitation to the solicitor was to make a will, can be regarded as unconscionable conduct of the nature recognised by the High Court of Australia in Commercial Bank of Australia Limited v Amadio, or is conduct which attracts the intervention of the Court pursuant to the Contracts Review Act.

59 As I have already observed, prima facie, the Plaintiff, as co-owner of the subject property, is entitled to relief of the nature which he seeks for the appointment of statutory trustees for sale, pursuant to section 66G of the Conveyancing Act. Nevertheless, as I have also already observed, one matter which would activate the limited discretion in the Court to refuse such relief is that the making of such orders would be inconsistent with a contractual arrangement between the parties. In the instant case the appointment of statutory trustees for sale would be inconsistent with the arrangement of the parties set forth in the Deed of Acknowledgement. In those circumstances and in the exercise of the discretion of the Court, I am not prepared to order the sale of the property pursuant to the provisions of Division 6 of Part 4 of the Conveyancing Act.

60 The Defendant is entitled to have the Deed of Acknowledgement carried into effect. Accordingly, I consider that the Defendant is entitled to the alternative relief sought by him in the cross-claim. As I have already recorded, the Plaintiff consents to that relief. Nevertheless, the Defendant still wishes to pursue the relief sought in prayers 1, 2 and 3 in the cross-claim as presently filed.

61 Since the Deed of Acknowledgement sets forth the intention of the Defendant and manifests the arrangement which he wished to enter into with the Plaintiff, I do not, for the reasons which I have already expressed, consider that the Defendant is entitled to any relief which would have the effect of challenging the efficacy and validity of the Deed of Acknowledgement, either under the Contracts Review Act or under the general law. Accordingly, the Defendant is not entitled to the relief sought in prayers 1, 2 and 3 in the cross-claim.

62 It follows, therefore, that the claim of the Plaintiff will be dismissed. The Defendant will be granted the alternative relief sought by him, but not the substantive relief claimed in prayers 1, 2 and 3 in the cross-claim.

63 I have not heard any submissions as to costs. It will be appreciated that the Plaintiff has been totally unsuccessful in his claim. Further, that the success of the Defendant has been only in respect to the alternative relief claimed by the Defendant, which alternative relief was sought only during the course of the hearing; and that that alternative relief is consented to by the Plaintiff. My preliminary view is that there should be no order as to costs, to the intent that each party should bear his own costs of the proceedings. If, however, either party wishes to seek some other costs order, an opportunity will be given for him to do so.

64 Accordingly, unless within seven days of the date hereof either party arranges with my Associate for the matter to listed for argument as to costs, I make the following orders:

(1). I order that the summons be dismissed.
(2). I declare that, pursuant to the agreement made on 26 May 1998 between the Plaintiff and the Defendant, the Defendant has the right to the exclusive occupation of the property situate at and known as 100 The Avenue, Granville (“the subject property”) during his lifetime.
(3). I order that the Plaintiff be restrained from selling, transferring or encumbering his interest in the subject property during the lifetime of the Defendant, or otherwise interfering with the quiet enjoyment by the Defendant of the subject property during the Defendant’s lifetime.

(4). I order that the cross-claim be otherwise dismissed.

(5). I make no order as to costs, to the intent that each party shall bear his own costs of the proceedings.

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