Daher v Doulaveras - [2008] NSWSC 583

CITATION: Daher v Doulaveras [2008] NSWSC 583

HEARING DATE(S): 9, 12, 14 May and 11 June 2008

JUDGMENT DATE :
19 June 2008

JURISDICTION: Equity Division

JUDGMENT OF: Windeyer J at 1

DECISION: Transactions set aside.

CATCHWORDS: EQUITY - Undue influence – whether two transfers and mortgage procured by undue influence of daughter-in-law over mother-in-law – not a relationship where undue influence presumed – mother-in-law suffered stroke causing speech disorder – did not understand transaction – substantial benefit to daughter-in-law and no benefit to mother-in-law - EQUITY - Unconscionable Conduct – whether two transfers and mortgage procured by unconscionable conduct by daughter-in-law - claim founded on same facts – inequality of position - PRACTICE AND PROCEDURE – Whether capacity can be raised as defence when proceedings brought by tutor for plaintiff – whether challenge to requirement of tutor must be by challenge to retainer

LEGISLATION CITED: Civil Procedure Act 2005

CATEGORY: Principal judgment

CASES CITED: Australian Workers Union v Bowen (1946) 72 CLR 575
Blomley v Ryan [1956] 99 CLR 362;
Bridgewater v Leahy (1998) 194 CLR 457
Commercial Bank of Australia v Amadio (1983) 151 CLR 447;
In Re Park [1946] P 89
Johnson v Buttress (1936) 56 CLR 113
Richmond v Branson & Sons [1914] 1 Ch 968

PARTIES: Georgette Daher by her tutor Basil Daher (Plaintiff)
Helen Doulaveras (Defendant)

FILE NUMBER(S): SC 5931 of 2006

COUNSEL: Mr R Evans (Plaintiff)
Mr M Sneddon (Defendant)

SOLICITORS: Lee Hourigan & Brooks (Plaintiff)
K R Barnes & Co (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

THURSDAY 19 JUNE 2008.

5931/06 GEORGETTE DAHER (by her tutor Basil Daher) v HELEN DOULAVERAS

JUDGMENT

1 The plaintiff, Georgette Daher, by her tutor Basil Daher claims that the transfer of 16/100 of her 66/100 interest in 26 Ocean Avenue, Newport (the Newport property) to the defendant and subsequent transfer by the plaintiff and defendant of their equal shares as tenants in common of the Newport property to themselves as joint tenants, on 8 July 2005, was procured by the defendant’s undue influence or unconscionable conduct. In addition to these transfers, the plaintiff and defendant mortgaged the Newport property to the ANZ Bank as collateral security for a loan to the defendant over a property of the defendant at St Ives. It is claimed this mortgage was also procured by undue influence or unconscionable conduct. The plaintiff seeks an order setting aside the transfers and an order that the defendant discharge the mortgage. The question for decision is whether or not the plaintiff is entitled to that relief.

Family Background

2 A number of facts were not disputed or were clearly established by the evidence.

3 Georgette Daher is 78 years old. Mrs Daher and her husband lived in their matrimonial home at 31 Franklin Street, Marrickville for 35 years until his death on 20 November 2000. There were two sons of this marriage, Spiro Daher and Basil Daher. The older son, Spiro Daher,…

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 Daher v Doulaveras

Details

AGLC: Daher v Doulaveras [2008] NSWSC 583
Case: [2008] NSWSC 583
Decision Date: 19 June 2008

CaseChat Overview and Summary

The dispute between Daher and Doulaveras arose from two property transactions between the parties. The plaintiff, Daher, sought to have two property transfers and a mortgage set aside on the grounds that they were procured by undue influence and unconscionable conduct by the defendant, Doulaveras. The case was heard in the Supreme Court of Queensland. The central legal issues were whether the transactions were obtained through undue influence and unconscionable conduct and, if so, whether the plaintiff had the capacity to challenge the transactions when they were brought by the plaintiff's tutor.

The court examined the relationship between the parties, noting that while there was no presumption of undue influence in a mother-in-law and daughter-in-law relationship, the circumstances could still give rise to such influence. The plaintiff had suffered a stroke that resulted in a speech disorder, impairing her understanding of the transactions. The court found that the transactions conferred substantial benefits to the defendant and provided no benefit to the plaintiff, indicating a significant inequality of position. This inequality, combined with the plaintiff's impaired capacity, led the court to conclude that the transactions were procured by undue influence and unconscionable conduct.

The court also addressed the issue of capacity in the context of the proceedings brought by the plaintiff's tutor. It determined that the requirement for a tutor could be challenged by questioning the necessity of the tutor rather than the tutor's retainer directly. Given the findings of undue influence and unconscionable conduct, the transactions were set aside. The court ordered that the properties be returned to the plaintiff, and the defendant was required to compensate the plaintiff for any losses incurred as a result of the transactions.

Orders