Guha v Guha (No 2) - [2021] NSWSC 757

Supreme Court

New South Wales

Medium Neutral Citation: Guha v Guha (No 2) [2021] NSWSC 757
Hearing dates: On the papers; written submissions ending 14 May 2021
Date of orders: 28 June 2021
Decision date: 28 June 2021
Jurisdiction: Equity
Before: Parker J
Decision:
See [63]

Catchwords:
EQUITY – unconscionable conduct – special disability or disadvantage – transfer of family property by mother in poor health to one of her daughters – improvident transactions – actual knowledge of special disadvantage – presumption of unconscionability – withdrawal of defence and discontinuance of cross-claim – costs

Legislation Cited:
Real Property Act 1900 (NSW), s 138
Uniform Civil Procedure Rules 2005 (NSW), rr 14.14, 15.3

Cases Cited:
Dimos v Willetts (2000) 2 VR 170
J Earle Hermann Ltd v Ferry (1915) 32 WN (NSW) 31
Sgro v Australian Associated Motor Insurers Ltd [2015] NSWCA 262
Turner v O’Bryan-Turner [2021] NSWSC 5
Williams v Maalouf [2005] VSC 346

Category: Principal judgment
Parties: Sreyashi Guha by her tutor Debadrita Guha (Plaintiff/Cross-Defendant)
Samadrita Guha (Defendant/Cross-Claimant)
Representation:
Solicitors:
King Legal (Plaintiff/Cross-Defendant)
Legal Assistance Referral Scheme NSW Bar Association (Defendant/Cross-Claimant)
Counsel:
J Eun (Plaintiff/Cross-Defendant)
J Gatland (Defendant/Cross-Claimant)

File Number(s): 2019/358479
Publication restriction: Nil

Judgment

This judgment arises from a dispute concerning the ownership of a family home. The property was previously owned by Mr Sandip Guha and his wife, Mrs Sreyashi Guha. Mr Guha died in December 2017, after which Mrs Guha became the sole proprietor. Mrs Guha later transferred ownership of the property (by two successive transfers) to one of her daughters. Mrs Guha, by her tutor, has now brought proceedings to have those transfers rescinded in equity.

Background

Mr and Mrs Guha had three daughters. For convenience and without disrespect, I will refer to them by their given names.
Mrs Guha’s tutor in the proceedings is the eldest daughter, Debadrita. Samadrita, the second daughter, is the defendant. The youngest daughter, Diwali, suffers from disabilities including quadriplegia and cerebral palsy. Debadrita now has parental responsibility for her as a result of an order by the Family Court in 2018. She is not a party to these proceedings.
Mrs Guha was born in June 1965 in Hazaribagh, India. She completed a degree in history, but has never been engaged in paid employment. She married Mr Guha in 1987 at the age of 22 and was wholly dependent on him for financial support and lifestyle decisions. The couple lived in India until 1995 when they migrated to Australia.
The property the subject of the proceedings is a three-bedroom residence at Marayong in north-western Sydney. The Guhas bought the property as joint tenants in 2002. The purchase price was $250,000. It appears to have been their only substantial asset.
In 2017 Mr Guha was diagnosed with an aggressive form of brain cancer. He underwent surgery in August, after which he suffered from complications. Conflict arose between Samadrita and Debadrita about how his affairs should be managed. Guardianship proceedings were instituted in the New South Wales Civil and Administrative Tribunal (“NCAT”).

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 Guha v Guha (No 2)

Details

AGLC: Guha v Guha (No 2) [2021] NSWSC 757
Case: [2021] NSWSC 757
Decision Date: 28 June 2021

CaseChat Overview and Summary

In the Family Court of Australia, Guha v Guha (No 2) involved a dispute over the transfer of family property by a mother in poor health to one of her daughters. The court was tasked with determining whether the transaction amounted to unconscionable conduct under the principles of equity. The mother had transferred her property to her daughter in circumstances where the daughter was aware of the mother’s health condition and vulnerability, leading to concerns about the fairness of the transaction. The daughter, in turn, had filed a cross-claim against the other daughter, which she later withdrew, and the mother had discontinued her defence.

The central legal issue was whether the daughter’s knowledge of the mother’s special disability or disadvantage, coupled with the improvident nature of the transaction, warranted a finding of unconscionable conduct. The court examined whether the daughter had actual knowledge of the mother’s vulnerability and whether this, combined with the improvident nature of the transaction, gave rise to a presumption of unconscionability. The court also considered the implications of the daughter’s withdrawal of her cross-claim and the mother’s discontinuance of her defence on the proceedings.

The court found that the daughter had actual knowledge of the mother’s special disadvantage due to her poor health and vulnerability, and this, along with the improvident nature of the transaction, justified a presumption of unconscionability. The court noted that the daughter’s withdrawal of the cross-claim and the mother’s discontinuance of her defence did not preclude a finding of unconscionable conduct. The court ordered the property to be transferred back to the mother, reflecting the equitable principle of addressing unconscionable conduct. The court also made orders regarding the costs of the proceedings, reflecting the actions of the parties during the litigation.

Orders