Hartigan v International Society for Krishna Consciousness Incorporated - [2002] NSWSC 810

No judgment structure available for this case.

CITATION: HARTIGAN v INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS INCORPORATED [2002] NSWSC 810

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 3328/1994

HEARING DATE(S): 19-23/11/01; 30/11/01; 25-26/02/02

JUDGMENT DATE: 6 September 2002

PARTIES :

Janet Hartigan - Plaintiff
International Society for Krishna Consciousness Incorporated - Defendant

JUDGMENT OF: Bryson J

COUNSEL :
J.B. Whittle SC & R. Glasson - Pltf
D.A. Smallbone - Dft

SOLICITORS: Mallesons Stephen Jacques - Pltf
James Solicitors - Dft

CATCHWORDS: FRAUD AND MISREPRESENTATION AND UNDUE INFLUENCE - undue influence - religious advisor, person in position of trust and confidence - the plaintiff claimed remedies against her donation of farm to incorporated association representing Hare Krishna Movement - farm later sold - extremely improvident gift of only substantial asset - no independent advice or influence - burden of proof on defendant - on detailed consideration of facts held that transaction was unconscionable and plaintiff awarded amount of price for which sold.

LEGISLATION CITED: Associations Incorporation Act 1956-1965 (South Australia)

CASES CITED: Huguenin v. Baseley (1807) 14 Vesey Jnr 273
Allcard v. Skinner (1887) 36 ChD 145
Watkins v. Coombs (1922) 30 CLR 180
Union Fidelity Trustee Co of Australia Ltd v. Gibson [1971] VR 573
Quek v. Beggs (1990) 5 BPR 11,761
Morley v. Loughlan [1893] 1 Ch. 736
Johnson v. Buttress (1936) 56 CLR 113
Bank of NSW v. Rogers (1941) 65 CLR 42
Ryan v. The Queen (2001) 75 ALJR 815
Jenyns v. The Public Curator (Queensland) (1953) 90 CLR 113

DECISION: (1) Give judgment for the plaintiff for $83,000 together with interest of $6,185 a total of $89,185; (2) Costs reserved.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J

FRIDAY 6 SEPTEMBER 2002

3328/94 JANET HARTIGAN v INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS INCORPORATED

JUDGMENT

1 HIS HONOUR: The plaintiff claims equitable remedies arising out of the gift by her to the defendant of a property at Rosebery Creek, near Kyogle. The plaintiff bought the Rosebery Creek farm from Mr and Mrs Johnson by an Agreement for Sale dated 14 July 1988 for $83,000.00. It was a rural property of about fifty acres with an old five-bedroom homestead, fencing and other improvements suitable for farming activities. The Agreement showed that the improvements were the house, dairy, barn, machinery shed, car shed and pig stye. The plaintiff purchased the property with funds which had been accumulated by herself and her husband, largely representing the proceeds of investments she had earlier made in dwellings in California and at Noosa, Queensland, but also including some funds the source of which was earnings by her husband. It is not necessary and it is not possible on the evidence to establish what contributions to the funds were made by her husband. She was the sole registered proprietor and there is no reason to find that her husband had any equitable interest. Mr Hartigan and others spoke, at the time of the relevant events and also in evidence, in terms which suggested that the farm was his property or the property of both of them. This was no more than a manner of speaking, and was not an accurate reference to ownership.

2 The plaintiff made a gift of the Rosebery Creek farm to the defendant by executing two documents on 6 December 1988, a Deed of Gift and a Memorandum of Transfer. These were prepared by Mr Martin Piper, solicitor who then practised in Murwillumbah and was instructed by and acted only for the defendant, which paid his fees and disbursements. The Deed of Gift recited that the plaintiff was seized of the property in possession free from encumbrances (and that was correct) and that she was desirous of promoting the objects of the defendant and benefiting the defendant by conveying the property by way of gift. In its operative part the Deed set out words of conveyance of the property to the defendant to hold the property to its use free from any resulting trust and to be dealt with as part of the general assets of the defendant. The Transfer was in standard form but referred to receipt of $83,000.00 as consideration for the transfer; this consideration was fictitious.

3 The documents executed by the plaintiff did not take effect immediately. Mr Piper sent them to the defendant’s officers in Sydney for execution and it was some months before the defendant executed them and returned them to Mr Piper. Mr Piper wrote the date 13 April 1989 on each document; this was exactly or approximately the date when they came back to him. In some way which the evidence does not clearly establish the defendant was already in control of the Certificate of Title; the details are not clear but it had probably been handed by Mr Hartigan to Lagudi, a priest or monk who lived on the defendant’s farm at Eungella near Murwillumbah, and then handed on to someone responsible for managing the defendant’s affairs; this had probably happened before 6 December 1988. Mr Piper did not cause the Transfer to be stamped or registered immediately after it was completed. Mr Piper’s firm acted for the defendant upon the sale of the Rosebery Creek farm to Mr and Mrs Peck, who were not otherwise involved in the events, by an Agreement dated 29 August 1989 for $88,000.00, modified by further agreement before settlement to $83,000.00. The Transfer was stamped on 13 October 1989 shortly before completion of that sale, and was delivered unregistered, with the Certificate of Title and a further Transfer from the defendant to Mr and Mrs Peck, on completion on 16 October 1989.

4 The proceeds of the sale were immediately paid to Westpac Bank and partially discharged a commercial bill for $145,000 representing an obligation which had existed and had been rolled over for some years. This brought the farm debt within manageable limits. Throughout 1988 and in 1989 the view was held by the persons controlling the defendant’s affairs that the New Govardhana Farm and its operations had generated an excessive burden of debt to the defendant’s bank, and that there was a need to reduce the bank debt, without which there would be a risk that the farm would be lost, meaning that it would have to be sold. Affairs were conducted on the basis that, so far as possible, each institution such as a farm or a temple was self-sustaining, and there was a reluctance to apply money generated to one place as against other places to reduce debt related to New Govardhana Farm; however, it seems that this happened on at least one occasion.

5 The gift did not become fully effective and irrevocable on the execution of the documents on 6 December 1988. It certainly became irrevocable on the registration of the Transfer at some time soon after 16 October 1989, and it may have been within the plaintiff’s power to recall the gift up to the time when the defendant accepted the gift by executing the documents, or possibly up to the time when the Transfer was stamped. However the plaintiff did not know of any opportunity to recall the gift, and did not make any attempt to recall it.

6 The defendant is an Association incorporated on 18 January 1978 under the Associations Incorporation Act 1956-1965 (South Australia). The defendant was formed for religious objects. Clause 2 of its Constitution begins:-

“2. The objects for which the Society is established are to advance, transmit, spread and propagate the religion of Krishna Consciousness, as revealed in the teachings of the Bhagavad-Gita and Srimad Bhagavatam and the doctrines and observances that serve to promote and manifest the said religion….”

“The aim of the Society is to propagate the teachings of Lord Sri Krishna as per the Bhagavad-Gita, Srimad Bhagavatam and Caitanya Caritamrta as enunciated by His Divine Grace A.C. Bhaktivedanta Swami Prabhupada.”

7 The affairs of the Hare Krishna Movement worldwide are under the general control of the Governing Body Commission, (GBC) which meets at Myapur in India and it is represented in Australia by its Governing Body Commission Representative (GBCR) Mr Paul Barrow, whose devotional name is Prabhavisnu Swami; he has been a member of the Hare Krishna movement since August 1971. In his affidavit Mr Barrow gave an account of the history and beliefs of Krishna Consciousness, which is necessarily compressed. I am not in a position to expound the beliefs but it is my understanding that the Movement was founded, or refounded in modern times by Bhaktivedanti Swami Prabhupada to propagate teachings in holy books written some five centuries ago but in their turn based on a very large corpus of ancient Indian religious, philosophical and cultural material. A great many publications are referred to at one place or another in the evidence. It is Mr Barrow’s evidence that he relies principally on three works, Bhagavad-Gita, Srimad Bhagavatam and Sri Caitanya Caritamrta; he also refers to lectures by Prabhupada on these works, to a letter by Prabhupada to a disciple, and to

8 Mr Barrow said in evidence that these written teachings are supplemented by recorded lectures by and conversations with Prabhupada and a collection of other books which are available to all members of the community. All in all the evidence refers to some scores of volumes of teachings. A number of extracts and passages from various parts of this large volume of material were put in evidence, but I have not been able to form an overall view from that material and I rely on the exposition of beliefs given by Mr Barrow. It appears to me that, as occurs in other contexts in the interpretation of large bodies of written material, many different interpretations and shades of interpretation could be based on the whole body of material, and that exposition by teachers such as Mr Barrow is essential for any overall understanding.

9 As explained by Mr Barrow, with supporting references to scripture, the teaching requires that devotees should follow the instructions of authentic spiritual preceptors. The sacred works place great emphasis on the position of an authentic spiritual preceptor and on obedience by spiritual aspirants to a preceptor. In Mr Barrow’s words (paras.23 and 24 of his affidavit):

parampara

guru,

10 Mr Barrow also says (para.27):

“Therefore, the understanding that Krishna Consciousness means to simply obey the orders of the Superior without discrimination is factually not correct. The authorities are only holding such positions because they are strictly following the principals of Krishna Consciousness. If they stop following the regulative principals or try to teach something which is not in line with the scriptures, the disciple is instructed to reject such teacher.”

11 Mr Barrow also said (para.33):

“Therefore, rather than extolling a kind of ‘blind surrender’ to authority, the process of Krishna Consciousness actually demands that one must discriminate between those devotees who are beginners and those who are more advanced; one should give respect and obedience to a devotee in proportion to his spiritual status. “

12 In Mr Barrow’s account of the tenets of Krishna Consciousness, members living in a community should obey the minimum requirement as established by leaders of that community for devotional services; and the minimum requirement for New Govardhana Farm was chanting 16 rounds of Japa per day (meditation), attending the morning religious program including a lecture, and contributing towards the support of the community either by working or by contributing a part of wages earned outside the community. He said to the effect that it is required that devotees or spiritual aspirants should follow the instructions of spiritual authorities, that the person whose instructions were to be followed is an authentic spiritual preceptor, and there are clear guidelines as to which persons a spiritual aspirant should obey. The principle of Parampara or disciplic succession means that a spiritual master is only authorised to give instructions due to the fact that he himself has been a good disciple of his own spiritual master. A bona fide spiritual teacher never claims to be speaking on his own authority, but rather is humbly repeating the word of God which is received from his own spiritual master in disciplic succession. The disciple is to reject the teacher if the teacher stops following regular principles or tries to teach something which is not in line with the scriptures; blind following is condemned as against the principles leading to Krishna Consciousness.

13 The plaintiff does not identify any person and it is clear that there was no person who was in the position of spiritual master to her or in any substantially similar position, and she does not give evidence of anything in the nature of a direction or command requiring her to make the gift, or to give up her property. Further, there is no reason to equate submission to a spiritual master (and she did not make a submission) with an obligation of obedience in a matter such as dealings with property.

14 Mr Barrow dealt at length in evidence with claims by the plaintiff as follows:

(iii) It was a tenet of the faith of the community that devotees would obey the directions of the leaders of the community.

(iv) It was a tenet of the faith of the community that devotees should divest themselves of their material possessions.

(v) It was a tenet of the faith of the community that diverse material possession was an important step for devotees to obtain Krishna Consciousness and enlightenment.”

15 It was Mr Barrow’s evidence that these claims were untrue. I have referred earlier to his evidence on obedience. He also said (para.38):

“…the actual philosophy of Krishna Consciousness, as taught now and at the time the plaintiff was at the farm, stresses that rather than simply giving away one’s material possessions, one should maintain them nicely, and actually engage such possessions in the service of God.

39. A clear distinction is made in the philosophy between simply giving up material objects, and actually giving up the desire to be an enjoyer and controller of our actions separate from the will of God. The mere renunciation of material objects is actually considered inferior…..

40. Therefore, rather than saying that ‘the divestiture of material possession was an important step for devotees to obtain Krishna Consciousness’, as claimed by the plaintiff, Krishna consciousness philosophy actually describes this kind of mentality as being not really conducive to a high level of spiritual advancement.

16 Mr Barrow developed an exposition of this evidence with references to sacred works. Mr Barrow also said (para.44):

yukta-vairagya

17 After further references to sacred writings Mr Barrow said:-

yukta-vairagya.

18 In explaining renunciation in the Vedic System found in ancient Hindu Scriptures Mr Barrow said (para 48):

brahmacarya

grhastha

vanaprastha

sannyasa

vana prasthas

sannyasis

19 Mr Barrow gave an example drawn from the Srimad Bhagavatam relating to Maharaja Ambarisa, who utilised all his wealth to rule his kingdom in a godly way, but at the end of his life gave up his wealth to his sons and took to the retired life. Mr Barrow’s evidence went on:

vanaprastha

20 Mr Barrow went on to give further examples drawn from scripture. He said to the effect that although total renunciation of material possessions may be applicable to sannyasis, a significant example drawn from scripture relating to Srila Rupa Gosvamy showed a person in the disciplic succession who retained a quarter of his wealth for personal emergencies when he entered a state of complete renunciation. In his conclusion Mr Barrow said (para.56) to the effect that it was simply not a tenet of the faith that devotees should divest themselves of their material possessions. “Rather the philosophy is that one should utilise whatever possessions he has in the service of the Lord.”

21 Mr Barrow explained the use of the term “surrender” in Krishna Consciousness teachings and in the course of his exposition said:

62. Surrender certainly doesn’t mean merely giving up material things on one’s own account. Rather, whatever the Lord wants, whether it be great riches or poverty, the devotee will accept …

63. Surrendering in the context of Krishna consciousness is a gradual process of developing faith and becoming aware of the Lord (Krishna conscious) throughout our daily dealings. Although the devotee endeavours to the best of his ability, he leaves the results of his actions up to Krishna. Just as a devotee doesn’t renounce his material possessions but rather engages them in the service of the Lord, similarly a devotee does not renounce the ability to act in this world. Rather he acts only for the pleasure of Krishna and leaves the results up to Krishna.

22 Mr Barrow gave further exposition of the concept of surrender, with scriptural reference and said:

Saranagati

67. In the material world, the word surrender conjures up ideas of being taken prisoner, losing ones liberty, becoming bound up etc. However, we can see from the scriptural reference above that surrender in Krishna consciousness is describing something quite different. In spiritual life, surrender to God is actually the cause of supreme liberation and bliss for the devotee, and is the process by which the devotee is re-instated in his natural, spiritual position of complete dependence on the Supreme Lord.

23 In his conclusion he said:

69. Rather than instructing prospective devotees to divest themselves of their material assets, the philosophy instructs that one should utilise whatever wealth or possessions one has, with the consciousness that God is the ultimate proprietor. It is not the material possessions that one needs to renounce, but rather the mistaken idea that we are the ultimate owners of such possessions and that there is no supreme controller.

24 I accept that Mr Barrow’s evidence illustrates orthodox teaching and exposition in the Krishna Consciousness Movement in the present age, but at the same time I observe that the written material in evidence shows that there is ample room for misunderstanding, or for understanding the authority of spiritual teachers and the significance of possessions in ways which give them different emphases and significance to that taught by Mr Barrow. The writings in evidence include passages giving great emphasis to the authority of spiritual teachers, and also passages deprecating materialism and reliance on possessions and attachment to them.

25 The plaintiff’s claim is now found in her Second Further Amended Statement of Claim filed on 7 June 1999. The claim is to the effect that her execution of the Deed of Gift and Transfer were procured by undue influence of the defendant over her, and she alleges facts which it is claimed show that undue influence should be presumed and that the burden of proof lies on the defendant to show that there was not in fact any exercise of undue influence. The matters which were alleged to show that undue influence is presumed are to the effect that at the time of execution of the documents there was a relationship of spiritual adviser or of trust and confidence between the plaintiff and the defendant, that the transaction was manifestly disadvantageous to the plaintiff in that she received no valuable consideration therefor, and that she received no independent advice in relation to the Deed and Transfer. Particulars of the facts alleged to show such a relationship refer to the defendant’s position in the Krishna Consciousness Movement and the objects of the defendant, allege the plaintiff’s participation in festivals and Sunday feasts and other observances, refer to alleged tenets of faiths which I have set out, and specify many written teachings. The Defence, now the Defence to Second Further Amended Statement of Claim filed on 20 September 2001, denies the existence of the relationship of spiritual adviser and the relationship of trust and confidence, denies that there is a presumption of undue influence, and denies that the gift was procured by undue influence. The Defence alleges that the plaintiff is estopped from denying the effectiveness of the gift by reason of a number of facts and circumstances, and alleges that she has confirmed and acquiesced in the gift, and that she is guilty of laches, and also contends that the plaintiff is not entitled to any remedy because, with the sale to the Pecks, it is not possible to bring about restitutio in integrum and restore the subject matter of the gift. The Defence also raises a number of subsidiary matters. The issues debated at the hearing went somewhat wider than the case literally expressed in the pleadings.

26 In my view it would be a mistake to concentrate on the plaintiff’s relationship specifically with the defendant as an incorporated association or to attempt in some way to sever that relationship from the plaintiff’s relationship with the persons who constituted the Krishna Consciousness Movement and conducted its affairs. The defendant, like many bodies holding property which has been set aside for religious or other charitable purposes, does not necessarily have any agency relationship with the individuals who are actively propagating the religion. The corporation holding the property is usually relatively inactive, but if donations come to it through the exercise of undue influence by any other persons the donations are just as much liable to be set aside as they would have been if the exercise of undue influence had been within the scope of authority conferred by the corporation. As the defendant took the property directly from the donor as a volunteer the question of notice or absence of notice of the exercise of undue influence, or of circumstances leading to its presumption, is not significant in the context of equitable relief against undue influence. If it is correct to classify the plaintiff’s claim as a mere equity enforceable only against persons directly involved in the transaction, the defendant was so involved. In any event the defendant would be affected by notice of matters known to Mr Evans the Temple President and Mr Barrow its Chairman, because they were the persons in whose hands the defendant left the conduct of this part of its affairs.

27 There is no possible view of the plaintiff’s case, or of the facts, in which she made the gift with anything less than a full and complete understanding that she was giving away the Rosebery Creek Farm and parting with complete ownership of it, or that at the time of executing the document she fully wished and intended that an effective gift would take place. That is the common characteristic of claims to set aside gifts on the ground of undue influence; if there had been a lack of understanding of the nature of the transaction, or if the transaction could be attacked or set aside on the ground that the donor had not understood the true nature of the transaction, or had been misled or defrauded, there would be no need or ground for this form of equitable relief. It is an essential part of a claim to set aside a gift on the ground of under influence that there should have been a fully effectual and intended gift; in an allusion to the words of Lord Eldon LC in Huguenin v Baseley (1807) 14 Vesey Junior 273 at 300, 33 ER 526 at 536, the question is not whether the intention existed, but how it was produced.

28 In the application of this basic principle to gifts to religious institutions or religious advisers, the court does not act only for the restraint of deceptions and of intended exploitation of religious enthusiasms or beliefs; if there has been behaviour of those kinds the court will set aside gifts which the behaviour has produced, but the grounds of the court’s intervention extend well beyond such behaviour. The court’s approach, in cases of gifts influenced by religious advisers or religious beliefs, is more exacting than ordinary community standards and goes well beyond overcoming deliberate exploitation. It may be unconscionable to accept and rely on a gift which was fully intended and understood by the donor and originated in the donor’s own mind, where the intention to make the gift was produced by religious belief. Characteristically persons claiming this relief have made gross errors of judgment, obvious to any objective outsider. Finally, an owner of property is entitled to dispose of it, even to dispose of it in a very improvident way, but the court requires to be satisfied that the transaction is not unconscionable after examining the events and circumstances closely.

29 The law relating to undue influence has had much attention from courts and is the subject of a number of significant restatements. I am not called on to make full review or restatement of all the principles in this branch of the law. The principles are in my understanding not susceptible of exhaustive statement or syllogistic application, and the cases are instances where the court has, on the basis of detailed address to the facts of the relationship between the donor and donee and the whole situation of the donor, concluded that it would be unconscionable that the defendant should rely on the validity of the donation, and that the court should intervene. A conclusion of that kind cannot be reached readily; it is only in cases of enormity that transactions which according to common law are effective should not be allowed to have their effect. The court does not act idiosyncratically or adduce concepts of unconscionability afresh for each case, but acts in the context of earlier judicial experience; yet each decision is a judgment on the facts to which it relates. An intended donation and an effective transfer of ownership of property are assumptions with which consideration starts; the question at the heart of the court’s power is how the intention was produced, and the advice given to the donor or available to the donor is brought under examination by that question; see Huguenin v. Baseley (1807) 14 Vesey Jnr 273 at 300, 33 ER 526 at 536 (Eldon LC).

30 Many undue influence cases have involved, in greater or less degree, some religious influence on the decision of the donor, usually involvement of a clergyman or spiritual adviser as donee or otherwise in the events leading to the donation to a religious institution or other person connected to the spiritual adviser. In Huguenin v. Baseley the donor actually had an active adviser; he was a clergyman although that fact was not given great prominence by Lord Eldon and the donations were made to him and persons connected to him but not to religious institutions. A closer consideration of the interaction of religious teaching and undue influence was given in Allcard v. Skinner (1887) 36 ChD 145. In Quek v. Beggs (1990) 5 BPR 11761 McLelland J reviewed the legal principles which were applied at 11764 to 11766, in a passage which has often been referred to in this Division.

31 The question referred to by Lord Eldon LC of how the intention was produced naturally leads a court to consider what advice or counselling was available to the donor, the terms of any advice and the position of any person who gave advice, as to general understanding of the donor’s position and also as to association or lack of association with the donee or its religious purposes. Occasionally there have been judicial observations suggesting that actual independent advice is essential for validity, but this may be an overstatement. Support for the view that independent advice is indispensable is found in Watkins v. Coombs (1922) 30 CLR 180 at 194 (Isaacs J), referring to authority on Indian law which may have been affected by statutory provisions. In concept there could be a showing that the decision to make a donation was free from undue influence even though there was no independent advice: in practicality, that would be a very rare event. There are no legal rules prescribing in a clear way who is qualified to give the advice or what advice must be given; rather the court must examine the actual events and form a judgment upon them. It would be incorrect to appraise the question of independent advice from the point of view of a supposed duty of the donee to see that the donor obtained independent advice, and concepts of fault or good performance by the donee are not necessarily involved.

32 In counsel’s submissions I had the benefit of an extensive survey of authorities relating to undue influence, particularly religious influence. I was taken in particular to passages in Huguenin v. Baseley, and to the judgments at first instance and on appeal in Allcard v. Skinner (1887) 36 Ch.D 145, and in more recent times Union Fidelity Trustee Co of Australia Ltd v. Gibson [1971] VR 573, particularly at 579 (Gillard J) and Quek v. Beggs (1990) 5 BPR 11, 761 and 11,764-766 (McLelland J). Although case law on religious influence includes examples of grossly exploitative behaviour, such as Morley v. Loughlan [1893] 1 Ch. 736, this is not a necessary or usual element in the facts of such cases, and in Allcard v. Skinner there clearly had not been such behaviour. In my respectful view the operation of the principles and the basis of the equitable jurisdiction are clearly shown in Johnson v. Buttress (1936) 56 CLR 113 in the judgment of Dixon J at 134-136. The passage at 134-135 shows that there is no need for the relationship to fall into any highly defined category. Dixon J said “[The doctrine] applies whenever one party occupies or assumes towards another a position naturally involving an ascendency or influence over that other, or a dependence or trust on his part. One occupying such a position falls under a duty in which fiduciary characteristics may be seen. It is his duty to use his position of influence in the interest of no-one but the man who is governed by his judgment, gives him his dependence, and entrusts him with his welfare. When he takes from that man a substantial gift of property, it is incumbent upon him to show that it cannot be ascribed to the inequality between them which must arise from his special position.”

33 Although Dixon J spoke in terms of duty, the reference was not in my understanding to a duty imposed by law but to what must be done if it is to be established that the transaction is to be treated as effectual. The matter was put in this way in Allcard v. Skinner by Cotton LJ at 171. Speaking of cases where a presumption of undue influence has been raised his Lordship said “… the Court interferes, not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy, and to prevent the relations which existed between the parties and the influence arising therefrom being abused.” This passage was quoted with approval by Williams J in Bank of NSW v. Rogers (1941) 65 CLR 42 at 85. To a similar effect is a passage in the judgment of Bowen LJ in Allcard at 190: “This is not a limitation placed upon the action of the donor; it is a fetter placed upon the conscience of the recipient of the gift, and one which arises out of public policy and fair play.” The focus of attention on public policy and prevention of abuse is important for understanding why the law is as exacting as it is, which is not well understood by focussing on the position of the donor, who in the nature of things has behaved foolishly and has brought about a transaction against his own interests.

34 In the same judgment at 183 Bowen LJ said “The undue influence which Courts of Equity endeavour to defeat is the undue influence of one person over another; not the influence of enthusiasm on the enthusiast who is carried away by it, unless indeed such enthusiasm is itself the result of external undue influence. But the influence of one mind over another is very subtle, and of all the influences religious influence is the most dangerous and the most powerful, and to counteract it Courts of Equity have gone very far. They have not shrunk from setting aside gifts made to persons in a position to exercise undue influence over the donors, although there has been no proof of the actual exercise of such influence; and the courts have done this on the avowed ground of the necessity of going this length in order to protect persons on the exercise of such influence under circumstances which render proof of it impossible. The Courts have required proof of its non-exercise, and, failing that proof, have set aside gifts otherwise unimpeachable.” This passage has been repeatedly referred to with approval; see Quek v. Beggs at 11,765 and (in a very different context) Ryan v. The Queen (2001) 75 ALJR 815 at 827 (Gummow J).

35 The plaintiff’s counsel also referred to cases where the presumption has arisen and the onus has been reversed on the ground of a general relationship of trust and confidence in which the defendant was in a position to exert influence or dominion, illustrated by Johnson v. Buttress (1936) 56 CLR 113 – Latham CJ at 119, Dixon J at 134-135.

36 It is not possible to state in an exhaustive or even in an altogether clear way what the court will require as indications sufficient for validity, because the court’s conclusion is adduced from a detailed examination of the facts of each case. On the need for precise examination of the particular facts see Jenyns v. The Public Curator (Queensland) (1953) 90 CLR 113 at 118-119. Although it should not be said that independent advice is essential for validity, it would not often happen that an improvident donation for religious purposes would be upheld unless some person who was altogether independent of the donee and who had a full understanding of the donor’s circumstances had actually succeeded in bringing the donor’s mind to bear on the implications of the gift for the donor’s own economic position and welfare. It is an enormity when a person with the means to solve such a basic problem in life as the need for housing for herself and her children gives those means away to the religious institution of a religion in which she has received instruction, and leaves herself and her children unprovided for. That is an entire departure from ordinary behaviour and from acts of benevolence usually encountered, and the enormity calls for close examination before it is accepted that the gift is effective. The enormity of the gift is particularly great in the plaintiff’s circumstances where she had small children whose housing she was giving up, and she had no other resources which were significant in the context of providing for her housing need, or any other long-term need, and she received no formally expressed or binding commitment, from the defendant or anyone else, to make any countervailing provision for her or for her children. It does not often happen, to my observation, in the case law to which I was referred that a woman gives up all her capital assets and receives no countervailing commitment; the plaintiffs in Huguenin v. Baseley and in Allcard v. Skinner had other capital resources to rely on, and in the plaintiff’s circumstances the donation which she now challenges was a far greater enormity.

37 On views I have formed about the facts, there was nothing in the nature of a deliberate attempt by the defendant or by anyone in the Krishna Consciousness Movement to get the better of the plaintiff, to overbear her or deceive her, or to deprive her of the opportunity of making up her own mind. Nobody was insidiously working to make the plaintiff behave contrary to her own interests. At the same time however it should be observed, as a dominating fact in all considerations, that the extreme improvidence of the gift would have been obvious to any reasonable observer who knew anything of her circumstances and was, I am quite satisfied, obvious to the officers of the movement who conducted the defendant’s side of the transaction. When she signed the document the plaintiff did not have any other significant capital resource; nor did her husband. They had two small children, the elder aged three, and their third child was born later that month on 24 December 1988. They may have had some relatively small amount of money in a bank account, but they had no other significant capital resource which could meet the needs of a young family for housing, or contribute significantly towards doing so, even to the extent of a deposit. They owned a car. They owned some farm animals, and some household effects; but when she gave up ownership of the Rosebery Creek Farm she lost her opportunity to care for the farm animals. She had no other significant financial resources. The plaintiff and her husband had lived on the Rosebery Creek Farm for less than six months and did not have any productive farming activity in hand, and neither had any employment. I see no reason to suppose that the resources of them both in savings, earnings, proceeds of sale of properties in California or in Queensland, or from any other source, produced any large balance not explained by the acquisition of the Rosebery Creek property, bearing in mind their journeys, their many moves and the absence of any sign of productive employment of Mr Hartigan since he says he lost his employment and opportunity to earn commissions as a strategic metals trader after the Stock Market Crash of October 1987. The idea that the plaintiff was in 1989 or ever was a wealthy woman is quite wrong. She had not received any significant inheritance, and later received one small sum of about A$1000 from an uncle and A$1000 from an aunt. In practical terms the plaintiff was completely impoverished by the gift and placed in a situation where she was completely dependent on whatever arrangements could be made within the Krishna Consciousness Movement for housing herself, her husband and her children. The gift could not be explained by ordinary human motivations of generosity, charity or religious feeling, and was so extraordinarily improvident as itself to call for consideration of the circumstances and state of mind which led the plaintiff to decide to make it.

38 The plaintiff was born at San Jose, California on 18 March 1952. She did not have a religious upbringing or instruction in any religious belief. She was educated in San Jose and completed High School in 1970, and after three years of tertiary study obtained a qualification as a technician in radiography from the San Jose School of Radiologic Technology in 1974. She then worked as a radiographer, and by 1984 had been employed by Radiological Medical Group of San Jose for some years and had an entitlement in the nature of a superannuation fund. She acquired several dwellings in or near San Jose as investment properties; they were heavily mortgaged. She took leave of absence from the Radiological Medical Group about April 1984 and travelled overseas; she came to Australia and while in Australia met Michael Hartigan, whom she married at Alice Springs on 24 August 1984. She returned to California in late 1984 with Mr Hartigan, and found that she had lost her employment because she had overstayed her leave. She thus received money representing superannuation, which went towards her investment properties. She obtained other employment. Their first child Sean was born in California on 30 April 1985. After the birth the plaintiff was again employed by Radiological Medical Group. The family travelled to Australia in about August 1986 and lived for a while at Tewantin, inland from Noosa in Queensland. Their second child Julia was born at Tewantin on 9 February 1987. In about April 1987 they again travelled to the United States and lived first near Santa Cruz and later in Los Angeles.

39 Mr Michael Hartigan was born on 30 October 1958, completed his High Schooling in Victoria in 1974, and in the following years on four separate occasions attempted University courses. He studied Indian philosophy, among other things, in the Arts Faculty at La Trobe University; he did not however complete his degree. He developed a fascination with India and its culture and visited India in 1982, 1983 and, he says, again in 1986. His first significant contact with the Krishna Consciousness Movement appears to have taken place in Melbourne about 1982 after his first journey to India, while he was studying Indian philosophy at La Trobe University. He then encountered the Hare Krishna Movement in Melbourne in 1984, attended Sunday Feasts and obtained a copy of Bhagavad-Gita As It Is; he says he stole it. He visited temples occasionally, and attended temples across Australia for the Sunday Feasts but did not join the Hare Krishna Movement. It is Mr Hartigan’s evidence that the plaintiff and he met devotees of the Hare Krishna Movement while they lived in Tewantin near Noosa.

40 About September or October 1986 while living at Tewantin the plaintiff with her husband began attending the International Society Brisbane Temple; she received some literature there and from reading the literature learnt of the ISKCON Farm at Murwillumbah known as the New Govardhana Farm Community. On several occasions the ISKCON travelling bus party visited the plaintiff and her family and stayed at her house at Tewantin. The bus party was a mobile preaching unit consisting of a bus with a temple set up inside it and a number of devotees who travelled around the countryside preaching the word of Krishna. Some members of the bus party spoke with commendation of religious celebrations on the New Govardhana Farm. The plaintiff says in evidence “I recall that at this time I had seen reference to the [New Govardhana] Farm in Hare Krishna literature and I began to be attracted to the idea of living on a farm, growing our food, taking our produce to town for sale and living a simple and devotional life. I recall also that at about this time I had begun to have an understanding that the journey towards Krishna Consciousness involved ultimately the surrender of material possessions.”

41 Mr Michael Hartigan was enrolled as a life member of the International Society (not, literally, of the defendant) at Laguna Beach on 30 August 1987. His registration form, Ex A, shows that he paid a fee of US$1,111 on registration. The plaintiff understood that she became a life member at the same time, although according to the terms on the reverse of Ex A she was mistaken on this, as membership is granted only on an individual basis, and the spouse of the member is not considered a member, but may use the membership identification document to obtain accommodation.

42 The plaintiff said (affidavit of 20 December 2000 para 12):

12. In or about April 1987, Michael and I returned to live in the United States. Whilst living in Aptos, outside Santa Cruz, in or about April or May 1987 Michael and I visited the ISKCON Three Rivers Farm near Fresno. I had learnt of the existence of the Three Rivers Farm through reading the Back to Godhead Magazine. I visited that farm as at the time I was considering moving to live near an ISKCON Temple because of the simple living and high thinking I thought was involved in that lifestyle and which I also believed would be conducive to raising a family in Krishna Consciousness. I also wanted my children, when they were old enough, to attend an ISKCON school. ISKCON schools are only located on ISKCON farms. I believed that Michael shared my views at the time as I had several conversations with him to that effect.

13. The farm in ISKCON thinking exemplifies simple living close to Krishna.

43 About July 1987 the plaintiff with her family moved to Los Angeles and lived there until May 1988, when they returned to Australia.

44 While the plaintiff and her family lived in Aptos near Santa Cruz they visited the Three Rivers Farm near Fresno California. They found that the Three Rivers Farm was closed. They found this disappointing. In California in 1987 Mr Michael Hartigan was employed, first selling cars and then trading in strategic metals, in which for some months he earnt very high commissions. The plaintiff said in evidence (para.15):

While living in Los Angeles, and with Michael selling, first cars and then strategic metals, I began to think that we were moving away from Krishna Consciousness because we could not find it around us.

45 The plaintiff discussed with her husband, many times, a project of returning to Australia and moving on to or near an ISKCON farm. She says they both “… considered this to be the solution to our problems, which at the time included finding a place to live close to Krishna Consciousness and finding acceptable education for our children.”

46 When the plaintiff and her family returned to Australia they lived for some time, perhaps several months, in Kings Cross. While the plaintiff and her family lived in Kings Cross Mr Hartigan worked on a free food program operated by the Sydney Temple; the plaintiff attended the Sydney Temple and she and her husband came to know Pratapana, who was the Temple President. The plaintiff wished to look at Hare Krishna Farms as she was unhappy with her lifestyle associated with the Sydney Temple and with the social environment at Kings Cross. At a dinner at Pratapana’s apartment attended by his wife and their two children and also by Mr Hartigan, a Pratapana spoke in discouraging terms about the Murwillumbah farm and life there. The plaintiff considered that Pratapana was too materialistic and that he and his family lived too well for Hare Krishna devotees, and she agreed with her husband that Pratapana and his family were not using their money for Krishna and that he was unduly interested in obtaining the assistance of service from Mr Hartigan and herself. In June 1988 then, the plaintiff and Mr Hartigan rented a car and with their children and their possessions left Sydney and visited a Hare Krishna Farm at Cessnock. They stayed there for one day only, were not impressed with activities there as no farming was taking place and the residents were playing soccer, which the plaintiff regards as a mundane activity inappropriate for devotees. They also visited the New Govardhana Farm, and the plaintiff formed a favourable impression of the setting, its suitability as a place to live near, and of the farming activity there. Soon afterwards she bought the Rosebery Creek Farm, which is near Kyogle, at some distance from New Govardhana Farm, so that visits to New Govardhana required a round journey of about two and a half hours on back roads. They lived at the Rosebery Creek Farm from July 1988 until 1 January 1989 when they moved to New Govardhana Farm at Eungella near Murwillumbah, which was and is conducted by the defendant. Their third child Lalita was born on 24 December 1988.

47 The plaintiff’s evidence is as follows: (Affidavit 20 December 2000, para.38)

At the time I purchased the Property it was my intention that the Property would be used in Krishna’s service by carrying out traditional farming on the Property, protecting the animals and hopefully by having devotees come to the Property to worship Krishna and to learn about the teachings. Michael and I had established a home altar at the Property and had written the words “Hare Krishna” on the mailbox. Writing those words on the mailbox was, to my mind, a symbolic gesture of the purposes to which the Property was to be put in Krishna’s service.

48 The life of Mrs Hartigan and her family when resident on New Govardhana Farm was not peaceful or uneventful. She was not satisfied with the housing available and Mr Hartigan was very dissatisfied with it, there were some conflicts and after what may have been quite a short time they took up residence in the lower floor of a building called the White House and remained there, although that too was not completely satisfactory, particularly as the lavatory and septic system failed recurringly. Dissatisfaction was expressed with Mr Hartigan’s participation in community life and observances. The plaintiff learnt that persons who were prominent in the management of the farm owned property off the farm, and she found this disappointing in relation to what she understood to be difficulty in meeting farm debts and the contemplation that the Rosebery Creek Farm which she had donated would be sold to meet farm debts; she came to see anomaly in the property which she had given being sold and the proceeds applied to meet debts while other persons retained their own property. However she did not indicate that she wished to recall her gift. She did not take any step directed to seeing that the ownership of the Rosebery Creek Farm was retained or that it was not sold and the proceeds applied towards debt; her view was that that was beyond her control, as in all practicality it was.

49 In 1990 discontent arose with Mr Hartigan’s conduct, his absences, personal conflicts and his not participating in community life. There was an Extraordinary General Meeting of the Farm Council on 10 November 1990 at which Mr Michael Hartigan’s conduct was considered. Late in 1990 he was called upon to change his conduct or to leave if he was not willing to do so; this call was expressed with the greatest delicacy and diplomacy but in substance it was a call on him to leave. He decided to go or as he put it, he voted with his feet and the Hartigans with their children left New Govardhana Farm in February 1991 and moved to Tasmania. They lived at a number of different places in Tasmania. Their fourth child Marayana was born in Tasmania on 12 July 1992. Later the plaintiff and her husband separated, and in 1999 they were divorced. At the time of the hearing the plaintiff lived with her children in public housing in Sheffield, Tasmania.

50 The defendant was, from 1982 onwards and still is the equitable owner of New Govardhana Farm. The registered proprietor Haladhar Holdings Pty Ltd held and holds the land on trust for the defendant under a trust deed dated 13 October 1982. Title to the farm comprises several, at least six, certificates of title. The farm comprises approximately 1000 acres, there are usually in the order of 70 or 80 to 100 persons living on the farm, and the improvements include a temple, a number of houses and a guesthouse, farm buildings and farm fencing. Associated with New Govardhana Farm farming community and the temple there was at the time of the gift a congregation of about 300 adult persons and their children. The majority of the adults in the congregation lived off the farm in and around Murwillumbah and some of these, a significant number, owned their own properties, while some persons who lived on the farm also owned properties nearby. An Executive Committee of three representatives of the defendant managed affairs of New Govardhana Farm, but met only once in twelve months. A Farm Council formed from the congregation dealt with day-to-day management of the farm; however this Council was not given any clear constitution or powers and consisted of the heads of departments representing various activities on the farm, the head priest, the dairy manager, farming manager, Temple President, school principal, chief cook and several others. Families living on the farm paid a levy, which was often called rent, although it would seem that it was not rent in a legal sense. About 12 or 15 dwellings had been constructed, some of them flats and duplexes. Some persons who had paid for the erection of their own dwellings paid a lower rate of levy. None had signed contracts or leases for their occupation. Congregation members including residents on the farm also were asked to make a contribution towards Prasadam, which refers to sanctified food served to all persons who attend. Milk and other food, it would seem principally grain produced on the farm, were consumed there and there were no significant sales of produce off the farm, but it was also necessary to buy food and to buy supplies for farm operations. Contributions by the congregation helped to maintain the farming and other operations.

51 Persons living on the New Govardhana Farm were expected to participate fully in the ceremonial life of the temple with a series of daily observances, and to observe basic disciplines of life called the Four Regulatory Principles by refraining from consuming meat, fish and eggs, from gambling, from intoxication (including smoking), and from illicit sexual relations. Full observance of worship and service, commencing with worship at 4:30am, was very engrossing of time and attention. Although rural life was not essential for observance, it was idealised as a means of cultivating a life of simple living and high thinking in which food, ideally grain, was produced and consumed on the farm, using cattle for ploughing and production of milk, with relatively little contact with other persons and ways of life. In this ideal children should be educated at a school conducted by the Krishna Consciousness movement; such schools were only conducted on farms and there was such a school, referred to as Guru Kul, at New Govardhana Farm.

52 While they lived at Rosebery Creek the plaintiff, her husband and family made visits from Rosebery Creek to New Govardhana Farm, usually for the Sunday services and feasts, and received visits at Rosebery Creek from devotees, including Gopinath (Lucien Van Ness), a senior Prabhupada disciple who was engaged in farming at New Govardhana, Lagudi (Andrija Tadic) who lived and worked on New Govardhana Farm, and also Stanley Grant the President of the Lismore Temple. Gopinath spoke in terms which contemplated the possibility that the New Govardhana Farm might have to be sold. In discussion with them there were references to possible use of the Rosebery Creek Farm, and Lagudi said “This property could made an excellent ISKCON farm.” The plaintiff considered Lagudi to be a sincere and committed devotee and admired his work and his simple life, using bullocks to plough land and grow food. She said “I agree we want our farm used in Krishna service.”

53 Shortly after hosting a lunch the plaintiff received a letter from Gopinath; the letter has been lost and its exact contents cannot be established, but her recollection was that it referred to Gopinath’s understanding that she and her husband had made money by Mr Hartigan being successful in America and that Krishna had sent them to help the New Govardhana Farm with that money.

54 At a later visit to New Govardhana Farm Lagudi referred to the possibility that the farm might be sold. He asked for some irrigation pipes which he had seen at Rosebery Creek and they were given to him.

55 For about six months before making the donation the plaintiff and her husband regularly visited the new Govardhana Farm, probably about once a week and also for some festivals. I do not accept however that she ever lived on the farm, or lived in the guesthouse before they moved to the farm on 1 January 1989, although I see the possibility that they may have stayed in the guesthouse overnight or for a brief period.

56 About September 1988 the plaintiff and her husband had a conversation about whether they should donate the Rosebery Creek Farm; the plaintiff said “I do not want to give up our family security. We will be left with nothing if we donate the farm. I thought that devotees could come here and live with us if they chose to in Krishna consciousness.” The plaintiff also said that she would think about it but needed to speak to Nara Hari first. Nara Hari refers to Nara Hari Das, David Evans, who then was Temple President of the Murwillumbah Temple.

57 There followed a series of conversations involving among others the plaintiff and David Evans (Nara Hari Das) and Paul Barrow (Prabhavisnu Swami). The terms of the conversation are contentious and I will set out the plaintiff’s evidence on the terms of the conversation. (Affidavit of plaintiff 25 May 1999).

19. In October 1988 Michael and I attended the Festival of Cow Worship (‘Govardhana Puja’), which is a holy day celebrated by all ISKCON temples commemorating the day Krishna lifted Govardhana Hill, at the Murwillumbah property. At the festival I was involved in a conversation with Michael, Lagudi (a senior Brhamacari (a celibate order of life) in charge of the bullock programme at the Farm) and Dave Evans, the Temple President, were we had a conversation to the following effect:

“Is the Temple President around, perhaps we could discuss donating our farm.”

“Yes, OK. I will get him.”

“Are there any houses available if we decide to donate our farm to help pay off the debt.”

“Yes, there is one halfway down the hill at the back, have you seen it?”

“No, just the roof from a distance.”

“Well it is worth at least $60,000, it is one of the nicest on the farm, it needs a little work, maybe about $20,000 and we would arrange to finish the house for you.”

“I don’t mind, I will live in a tent if it will help save the farm, but maybe my wife wouldn’t agree with that.”

“We will definitely arrange a house for you with a title and everything.”

“Good, that would make me very happy.”

20. In October 1988 at a Sunday Feast at the Farm, I had a conversation with Dave Evans and Michael in words to the following effect:

“I would live in a tent to help save the farm.”

“You can’t do that. You have a wife and children to consider. They need security of a home.”

21. In mid December 1988 I attended a meeting with Michael, Prabha Visnu Swami (the Governing Body Commissioner for ISKCON Australia and also the initiating Guru for Australia), Dave Evans and Mike Randall (the Victorian Temple President) where we had a conversation in words to the following effect:

“So what are your intentions of donating your farm?”

“Yes, are you giving to one person, or the temple?”

“Iskcon.”

“Then if it is sold what would you like done with the money?”

“Well, I would like to see it spent on paying off the debt.”

“This would be a great help to us Michael.”

“When the farm sells we could buy a mobile home for around $40,000.00, how would you like that?”

“No, no don’t spend the money we will live in whatever accommodation is available.”

22. After that meeting it was decided that I would transfer title to the Property to ISKCON and that ISKCON would draw up a deed to that effect which I would sign. At this time I was heavily pregnant.

23. At around the same time, I had a conversation with Dave Evans in words to the following effect:

“So, your husband tells you wouldn’t mind living in a tent.”

“Well, we were happy to do that for a brief time, but we only had one child at the time. My needs are greater now.”

“Yes, I can understand that. Things have come a long way on the farm. We all have electricity and running water, in fact, all the modern conveniences. If you donate your farm, the house we will have available for you is one of the biggest, nicest homes we have.”

58 The plaintiff’s evidence is to the effect that when this series of conversations was initiated she trusted David Evans because of his position as Temple President, and she wanted to talk to him about donating the property. She appreciated his teaching skills and his knowledge of the Bhagavad-Gita. Her understanding of her position in relation to the Hare Krishna Movement at the time appears from the following passage. (Paras 36 and 37 of her affidavit of 20 December 2000).

36. As referred to in paragraph 4 of my second affidavit, because of his position as Temple President I trusted Dave Evans and wanted to talk to him about donating the property. I also appreciated his preaching skills and his knowledge of the Bhagavad-Gita. At the time, I was also uncertain as to whether he would want Michael and I to move onto the Farm as we were neophyte devotees. Before you can be initiated as a devotee, you have to have been chanting 16 rounds for at least six months, take vows to live by the four regulative principles … You are then able to request initiation from one of the gurus, at which time you are given a spiritual name and are then expected to obey the orders of your guru for life. A neophyte devotee is a person who has not been initiated but who is interested in spiritual life and Krishna.

37. I was never initiated as a devotee as I never found a spiritual master I wanted to take initiation from, although after I had moved onto the Farm Lagudi asked me and some other devotees whether we would request initiation from him. I was not interested in taking initiation from him. Also I never became qualified to take initiation, since qualification involves chanting 16 rounds daily and I only did this for a brief time.

59 Lagudi (Andrija Tadic) in his evidence denied that he spoke in these terms, and indeed he was not in a position to be or to offer to be spiritual master; however this passage in the plaintiff’s evidence indicates her attitude to Lagudi as a person whom she respected but did not see as a source of spiritual instruction. He was not actually or apparently in a position of management or high responsibility for affairs on the New Govardhana Farm, and it is not likely that anything he said had any real influence on her decision to make the gift.

60 The plaintiff has never been initiated and has not ever entered into a relationship of an initiate or devotee with any spiritual master or undertaken in any formal way obligations of discipleship, including obedience to a spiritual master. She gave consideration, after making the gift, to accepting Mr Barrow (Prabhavisnu Swami) as her spiritual master but she did not ever do so. On the other hand she has not ever ended her personal commitment to Krishna Consciousness, which has continued notwithstanding her leaving New Govardhana Farm in 1991 and her later experiences and vicissitudes.

61 The plaintiff’s evidence of the effect on her of the conversations with Mr David Evans and Paul Barrow was as follows: (Affidavit 20 December 2000, para.40).

I refer to paragraphs 19-20 and 23 of my first affidavit. Prior to the conversations referred to in those paragraphs, I was apprehensive about donating the Property as that would have meant that I would be losing our family’s security. Following those conversations, my apprehensions were removed and I was feeling very happy because I believed I would be receiving some security in return for my donation. I was then looking forward to moving into a nice house, receiving a title to maintain my family’s security and helping to save the Farm at the same time. In particular, I felt reassured as these statements were made by Dave Evans, the Temple President whom I considered at the time to be the proper authority of the Farm. I then determined that I would proceed to donate the Property to ISKCON …

62 A first observation I should make about the plaintiff’s evidence and the terms of the conversations is that Mr Evans and Mr Barrow give evidence of their conversations with her which differs from hers in significant respects. It will be necessary for me to address these differences and as far as possible, to make findings about the terms of the conversation based on the probabilities. I find it difficult to have entire confidence in any conclusions of fact based on evidence of these conversations because the significant affidavits about them were not made until well over 10 years after they took place, and were not made until more than five years after it should have become known that the case could turn on the terms of the conversations. There is no written record of what took place. Another initial observation of importance is that there could be no doubt that Mr Evans and Mr Barrow were spiritual advisers with prominent positions in the Krishna Consciousness movement, respected, looked up to and trusted by the plaintiff, and appropriately so.

63 Another observation which should be made of the plaintiff’s evidence about these conversations is that, even as part of the plaintiff’s own case, it is quite clear that in her hearing Mr Evans pointed out to Mr Hartigan the need for the security of owning a home for the family to live in. It also clearly appears that the possibility that the Rosebery Creek Farm would not be retained by the defendant but would be sold and the proceeds would be spent to pay off debts was openly discussed. It hardly needed to be discussed as the possibility that, after the gift, the defendant might dispose of the Rosebery Creek Farm and use the proceeds for its own purposes was obvious, but it is significant that the possibility was voiced, and when it later happened it should not have been surprising or disappointing to the plaintiff.

64 Another important matter is that, on the plaintiff’s own evidence, the project of donating the house was not discussed by Mr Barrow or by Mr Evans in terms of its being necessary or even useful for her spiritual advancement, or in terms of her achieving any countervailing advantages in non-economic terms. Her evidence does not show that she was told by them that any spiritual advancement would be attained by giving up the Rosebery Creek Farm, or giving up property generally, or would not be attained if she did not. The plaintiff’s evidence in cross-examination accepted that she did not regard it as an obligation or religious duty to dispose of the property or to make the gift. Under cross-examination as in her affidavit she referred rather to her expectation and understanding that there was a commitment that she would be provided with housing on New Govardhana Farm and to the failure of that arrangement to be achieved. To epitomise her evidence, there was an arrangement in which David Evans pointed out down the hill a particular house which would be finished for her, said that the defendant would definitely arrange a house with a title, and said that the house available for her was one of the biggest, nicest home the defendant have; this was a commitment and it induced her to make the gift.

65 If an arrangement to that effect was made, it was astonishingly unguarded and foolish to accept and act on it without its being reduced to writing and given concrete form which identified the particular house referred to and established what kind of title there was to be to the house. The imprudent and unguarded nature of her conduct is also given emphasis by the fact that she attended on the defendant’s solicitor and signed documents which gave effect to the gift, but did not in any way record any countervailing advantage which she was expecting, and she did not tell the solicitor that she was expecting any such advantage or have it defined.

66 Mr Evans had a number of conversations with the plaintiff and Mr Hartigan before they moved to New Govardhana farm; he said in evidence that he could recall the substance of some of them, although he could not give their dates or their order. He gave evidence of an occasion when Mr Hartigan said to the effect that he had a property near Kyogle (and he spoke in terms as if it was Mr Hartigan’s property) which he would like the community to use or sell. Mr Evans said to the effect that the community did not really need any more land although the property near Kyogle might come in handy for winter pasture. The discussion continued and Mr Hartigan said to the effect that he wanted to relinquish the material world, come to the farm and live with the devotees with his family and Mr Evans commented on the generosity of this wish. In answer to a question from Mr Evans the plaintiff said that she shared her husband’s enthusiasms.

67 Mr Evans then speaks of a conversation in October 1988 with the plaintiff. His account is as follows: (Affidavit 13 October 1999).

62. In October 1988 I recall a meeting between myself and the plaintiff during which she said to me the following words or words to the following effect:

“Michael and I have decided that we wish to give ISKCON our farm. We have squandered much of my inheritance, and this is all I have left. Before it is squandered I wish that it go to a good cause. Could you please arrange a meeting with Prabhu Visnu Swami [Paul Barrow] so that I can explain this to him.”

I said:

“Yes.”

68 Mr Evan’s evidence continued:

63. Shortly after that discussion when Prabhu Visnu Swami next visited the Farm I had a conversation, the result of which a meeting took place. At that meeting was Prabhu Visnu Swami, Michael Randall (Narada Muni), the plaintiff, and myself. During that meeting the following words or words to the following effect were spoken:

“I inherited a large amount of money. Since inheriting that money, Michael has squandered it in various ways. All I have left from that is this farm near Kyogle. Before it is squandered in the same way, I would prefer that it go to a good cause. I want to give my farm and the animals on it to ISKCON.”

Prabhu Visnu Swami:

“Are you sure that you know what you are doing. It will mean that you will have no assets and you have a young family. Krishna Consciousness is not an easy lifestyle and many people do not succeed. You may wish to change your mind.”

Plaintiff:

“No, I have given this much thought. I have made up my mind and I believe it is the right decision.”

Prabhu Visnu Swami:

Well, Nara Hari will take care of that.”

69 Mr Evans then arranged for the plaintiff to meet Mr Martin Piper, solicitor in Murwillumbah.

70 In the account given in Mr Evan’s affidavit, he gave no commitment to provide accommodation or any particular accommodation to the plaintiff. Mr Evan’s oral evidence showed that it was the Farm Committee, by which I understand him to refer to the Farm Council, which generally decided whether a person could come and live on the farm, or should leave, but that the decision that the plaintiff and Mr Hartigan could come to live on the farm with permission to live on the farm full-time was taken by himself with Mr Barrow and perhaps one other person. Ultimately the Farm Council’s decisions could have been overridden by the Executive Council, which had the real authority. Mr Evans’ understanding was that because of the generosity of the donation it was accepted that there would not be a requirement to contribute.

71 In oral evidence Mr Evans gave a quite different account of the reference, in conversation before the gift, to a dwelling on the farm to that given by Mrs Hartigan. His evidence (t240) was to the effect that before they came onto the farm he made an offering to the Hartigans about where they were going to live in these terms: “I recognised that their donation was very generous, and I wouldn’t have had the power to do it but I could have put the wheels in process, certainly, that possibly some of their money could be used to construct a dwelling for them.” As to the immediate timeframe he said “We offered them accommodation I believe in a dwelling which was probably suitable. It was at least on a par with what other devotee members of the community were living in, and I think Mr Hartigan didn’t feel that that was acceptable. I don’t know what his reasons, and I believe I would have offered him the alternative, which was in the White House where he eventually moved into. … I also lived in that house. I lived upstairs. He lived on the ground floor.” His evidence also was to the effect that he had not offered Mr Hartigan anything specific in terms of a house on New Govardhana Farm to live in prior to coming to live there and making the gift, that he had not pointed out a particular house, and offered accommodation in the terms I have already quoted, with a half house which they declined, and he said to the effect “Look, we will provide you with accommodation on the farm.”

72 On the whole my view is that the circumstances make it improbable that there was any concrete arrangement for the plaintiff to have a house, or a particular house, or a title (of an undefined nature) to a house. It is on the whole improbable that persons responsible for the defendant’s affairs would give such commitment, or that a person such as the plaintiff with experience of real estate dealings would accept it, in view of the questions which would obviously present themselves to any reasonable mind of defining exactly which house was involved and what state it was in, establishing what the title would be, if it was to be leased, what the lease was to say, addressing whether such an arrangement was possible in relation to a house on a farm in a rural area, and whatever might be required by Town and Country Planning law and Local Government law. Any discussion in terms of commitment to provide a house can it seems to me hardly possibly have taken place without leading to discussion of subjects of that kind. For this reason when I address the facts on the basis of probability, and without any sense of certainty, I find that there was not any commitment to make a particular house available, or to make any house available, or to give title to a house, although there was non-specific discussion of or reference to providing accommodation for the plaintiff and her family on New Govardhana Farm. There is a great difference between the obvious probability that some such matter was discussed, and a finding that there was an actual commitment to providing a title to particular house.

73 In my finding, and always bearing in mind the difficulty of establishing in any clear way the terms of an oral arrangement made so long ago, the terms of the arrangement about housing on New Govardhana Farm made before the donation are more closely represented by Mr Evans’ evidence, and there was an indeterminate assurance that accommodation for Mrs Hartigan and her family would be provided on the farm when they came to live there. I do not accept that there was a firm assurance relating to a particular house because it is improbable that an arrangement of that kind would be made while indicating the house at a distance down the hill, without inspecting it or looking at it closely, and it is extremely improbable that Mr Evans would give a commitment to give title to a house on New Govardhana Farm. In my finding the references to housing at the time of the donation were vague and indeterminate, and this was as much as Mr Evans was reasonably in a position to do. In my finding the plaintiff’s perception and evidence that the principal basis of her decision to make the gift was that she had an arrangement in a relatively concrete form to be provided with title or a house is not correct.

74 However rejection of this aspect of the plaintiff’s evidence and acceptance, on the balance of probabilities, that Mr Evans and Mr Barrow did not give her any commitment is not necessarily injurious to her case. Quite otherwise, it designates the arrangement as one of extremely unworldly improvidence which a person could not, in all practicality, possibly enter into while acting under ordinary human motivations, unless the person had abandoned worldly considerations and self-regard. The account of the matter which I regard as more probably correct supports a conclusion that it was unconscionable to rely on the plaintiff’s intentions, unless she was exposed to advice and counsel altogether independent of any religious influence.

75 I have referred to the plaintiff’s evidence that, also before she made the donation, she met Mr Paul Barrow, (Prabhavisnu Swami) in the company of Mr Evans and Mr Randall who was the Victorian Temple President. At other places in her evidence the plaintiff gives accounts of conversations in terms which do not seem wholly consisted with there being a concrete arrangement to be provided with an identified house. For example she says, in relation to a meeting with Mr Barrow and others in December 1988 in her presence, that her husband said to the effect that the proceeds of selling the Rosebery Creek Farm should not be spent on buying a mobile home for around $40,000 and that Mr Hartigan said “No, no, don’t spend the money. We will live in whatever accommodation is available.” (Aff. 25 May 1999 para.21)

76 Evidence of the plaintiff in cross-examination – t44, 45, shows that she was aware that it was not essential as a step towards Krishna Consciousness and Enlightenment that she actually divest herself of her land, but she pointed out her understanding, referring to a passage in the Bhagavad-Gita, that surrendering everything to Krishna was put forward as one of the ways of worshipping Krishna. She said to the effect that this was background to her decision. (t45 l16) “I think that is sort of the background of it, that surrendering material possession can bring you towards enlightenment, but had I not been requested by devotees to help save the farm, I may have continued to stay on my own land and just use it in Krishna service.”

77 Mr Barrow’s evidence shows that his view was quite wrong, and surrender of all her property was not appropriate for her as a householder with family responsibilities, not old enough to live in a retired life and not proposing to live in a retired life. By the time her mind was completely made up to make the gift, and her evidence is that it was not completely made up until after she had spoken to Mr Barrow, the prospect that the Rosebery Creek Farm might well be sold and the proceed used to pay debts, and that this was the likely outcome had been articulated quite clearly to her, and as the need for funds to meet obligations to the defendant’s bank was pressing, it actually was a very likely outcome. If this prospect had not been put before her, she may, as she said, have retained the farm and used it as she had earlier intended in Krishna service in her own ownership.

78 The affidavit evidence of Mr Paul Barrow (Prabhavisnu Swami) on his conversation with the plaintiff before she made the donation is the following terms: (his affidavit of 28 October 1999).

78. I refer to paragraph 21 of the Hartigan Affidavit and recall one or two occasions whilst on the Farm I had a meeting with Janet Hartigan.

79. On one of these occasions, I recall a meeting with Janet Hartigan in the absence of Michael Hartigan. At this meeting, I recall David Evans (Nara Hari Das), Janet Hartigan and myself were present. I do no recall much of that meeting, but I have a very clear recollection of her saying to me:

Janet:

“My husband has squandered most of the money that was left to me. I want to donate our farm to a worthwhile cause before he losses the rest of it.”

80. I recall that during that conversation there was mention that she had inherited some money and that she also said to me:

“I want to donate our farm to New Govardhan.”

81. From her appearance, I had no doubt that the gift was voluntary. This meeting was memorable as her husband was not present and I understood she did not want him present.

82. I recall saying words to the following effect to Nara Hari Das whether at that meeting or after:

“We must make sure this gift is made properly. We should engage solicitors in Murwillumbah.”

79 There are significant differences between this account and the plaintiff’s account. As narrated by Mr Barrow, Mr Hartigan was not present. The matter of central importance, that is that her wish to donate the Rosebery Creek Farm to the defendant was communicated to him, appears from both narrations. Of course there is no indication of any circumstance which would indicate that the gift was coerced or in any other sense less than voluntary. In Mr Barrow’s narration Mrs Hartigan gave an account in which her reason for making the donation was that Mr Hartigan had squandered most of the money that was left to her and she wished to make the donation before he lost the rest. It is on the whole improbable that she gave this explanation for her intended gift, as she had not received any significant inheritance, and did not ever receive any significant inheritance apart from two testamentary gifts of small sums each in the order of $1000. It was true that Mr Hartigan had not behaved carefully with economic resources, as he had turned aside from the possibility of employment to do religious service or to live on an unproductive farm, and the two of them had followed a course of life which did not contribute to accumulation of property, by moving several times between countries and shifting investments; they had significant family obligations, and relatively little to show at the ages they had reached. I regard it as very improbable that the plaintiff represented the project as a response to Mr Hartigan’s squandering her inheritance, or her property, and, again finding the facts on the probabilities and without any sense of certainty, I find that her statement to Mr Barrow of her wish to donate the Rosebery Creek Farm was not accompanied by statements attributing her wish to make a donation to the risk of the property otherwise being squandered, or by reference to an inheritance as its source. Giving the Rosebery Creek Farm away could not rationally have been thought of by her or by anyone else as a means of protecting it from dissipation.

80 Mr Barrow’s evidence shows that he saw immediately the need to engage solicitors and to make the sure the gift was made properly. His oral evidence dealt further with this. While he says (t207) “She seemed completely convinced about what she wanted to do” which I would not doubt was a correct observation, he agreed to the effect that, not being able to turn and discuss these matters with her husband she stood in need particularly of prudent and careful advice. She did not however ask Mr Barrow for advice about whether she should make the gift. He did not embark on establishing whether the plaintiff and her husband had any other assets or property, although he understood that they were from wealthy families, and they seemed quite confident about their ability to earn money easily. (There is, of course, a wide gulf between being from a wealthy family and having any assets). He did not ask about their proposed living arrangements as he understood they wanted to live on New Govardhana Farm and he did not ask about the terms on which they were to do that.

81 Mr Barrow also said (para 86):

It would have been practice at that time and still is my practice to be satisfied that any person making a donation of the size that the Hartigans gave, be cautioned to take into account the needs of family stability and security, and the difficulties experienced in following the Krishna Consciousness lifestyle.

However, (t211) he did not embark on doing so in Mrs Hartigan’s case but said, in oral evidence, “In this particular case, since this is a very rare occurrence, I requested that she be taken to a lawyer who would caution her and make her aware of, you know, the consequences.”

Q. Because you appreciated that that was a very necessary protection to be thrown around Mrs Hartigan in this situation didn’t you?

A. To get legal advice?

Q. Yes.

A. Yes.

Q. That it was very important that this woman be doing this genuinely of her own free will and free from any influences of any kind upon her that might be operating to produce this gift?

82 The effect of this evidence then is that Mr Barrow made a practice of being satisfied that a person making a donation of this size was cautioned to take into account the needs of family stability and security, and the difficulties experienced in following the Krishna consciousness lifestyle, that he saw the need to follow the practice in Mrs Hartigan’s case, and that he made arrangements to engage a solicitor to make sure the gift was made properly.

83 The plaintiff in fact saw Mr Martin Piper, who was instructed by and acting in the interest of the defendant, on 6 December 1998 when she executed documents. There are differences and discrepancies in the accounts given in evidence of this meeting. One group of discrepancies relates to who was present; it is on the whole likely that Mr Michael Hartigan was present, although this has not been clearly established. It is clear that Mr David Evans was present. It is also quite clear that no person who was either intending to point out or capable of pointing out, from an independent stance, Mrs Hartigan’s overall interests to her was present, and no such person took part in any of the events leading to the gift. Mr Hartigan was certainly not in a position to give her independent counsel or advice as he was very committed to the project of making the donation and moving onto New Govardhana Farm and living a devoted religious life, and he was indifferent to retaining property. Mr Piper was not in a position to give independent advice to Mrs Hartigan; he was the solicitor acting for the defendant and he was fully identified with its interest, although he had a guarded view of his client. He took steps to make sure that Mrs Hartigan knew the nature and effect of the documents which she executed. He did not go further and set about establishing generally her economic position and the significance of the gift for her interest overall, or reviewing the wisdom of what she was proposing to do and giving her advice about whether this donation should be made; he was in no position to do those things, or to act in any way as the protector of her interest.

84 Evidence was given by Margaret Bateman whose devotional name is Bhaktimarj devi dasi of conversations with the plaintiff. Ms Bateman has had a long association with the Hare Krishna Movement, including several periods of residence on New Govardhana Farm, from about 1978 onwards. After an absence of about five years she returned to the farm about 1987 and lived on or near New Govardhana Farm for several years, at times living on the farm and at times nearby in Murwillumbah. She lived on New Govardhana Farm at the time the Hartigans first moved to live there, met them then, and remained living there for most of the time the Hartigans lived there. She returned to live there about 1997 and was still resident there when she gave evidence in 2001. She gave evidence that she had many conversations, almost every day from the time she found out about the gift, with the plaintiff in which she questioned the plaintiff’s giving her land to the Temple, expressed views that it might be a mistake and urged her not to do so, and pointed out possibilities of changes in circumstances and needs for resources in the future, and also pointed out possible disadvantages of life on New Govardhana Farm. Her evidence is that the plaintiff’s responses adhered very firmly to her intention to make a gift, notwithstanding that Ms Bateman repeatedly put possible disadvantages and changes of circumstances before her.

85 The plaintiff denied that there were such conversations and said that, as far as she could recall, she did not ever have a specific conversation with Ms Bateman about the gift. It is clear from the evidence of both that the plaintiff and Ms Bateman were not known to each other and did not have opportunities to discuss the subject until the Hartigans moved on to the New Govardhana Farm on 1 January 1989. Ms Bateman is quite clear in her evidence that the conversations of which she speaks took place after the Hartigans came to live on New Govardhana Farm. However the Hartigans did not move there until after the documents had been executed and the Certificate of Title had in some way been placed in the defendant’s control. To my mind it is remarkable and anomalous that, although Ms Bateman’s evidence attributes to the plaintiff responses which went to some detail in explaining the plaintiff’s position, there was no reference to the fact that the plaintiff had executed the Deed of Gift and the Transfer, and no discussion about whether the gift had been completed, or about subjects which might well arise such as whether the process could be interrupted or the gift could be recalled. To my mind it is very improbable that, if the plaintiff was being beset, by a person who appeared to have her interest at heart, with reasonable considerations against making the gift, the plaintiff would not have responded in some way which referred to the fact that the documents had already been executed, and it is also improbable that the discussion would have turned to other circumstances without this central subject coming under discussion. This is particularly improbable if there were many such conversations, almost every day.

86 There are also, in my view, some improbabilities associated with subjects which Ms Bateman says were discussed. Ms Bateman attributes to the plaintiff the statement “I have to give the property to the Temple. We left a tax debt in the USA. I am worried they may come and take the property, and I just want to get rid of it.” I find it difficult to accept this because it is established that there was no tax debt in the USA, and because of the inconsequential, almost irrational nature of worry about a tax debt overseas as a reason compelling one to part with one’s own property and have nothing. Ms Bateman also gives evidence of having discussions with the plaintiff and her husband about subjects such as permission by the Hartigans for Ms Bateman and her husband to agist horses on the Rosebery Creek Farm, and the prospect that Ms Bateman and her husband would buy that farm. The plaintiff denies that there were conversations in these terms and says that she and her husband did not make the decision to permit the horses to be agisted on Rosebery Creek Farm. Ms Bateman says that on a few occasions from early to mid 1989 she had conversations with the plaintiff and with Mr Hartigan regarding the possibility of buying the property. To my mind it is improbable that there were discussions with the Hartigans or either of them in 1989 while they lived on New Govardhana Farm about the possibility of their making arrangements which assumed that they controlled the Rosebery Creek Farm, even to the extent of addressing the possibility that it would be sold to Ms Bateman and her husband. To the improbability of their discussing matters in this way after the Deed of Gift had been executed is added the improbability that, if there were such discussions, the fact that the Deed of Gift had already been executed would not have been mentioned.

87 Overall, notwithstanding the clear and confident manner exhibited by Ms Bateman in the witness box while her evidence was under challenge, I am of the view that I should not accept her evidence of minatory conversations with the plaintiff. If indeed there were such conversations, it would not be easy to see what impact on the plaintiff’s case should be attributed to them. According to Ms Bateman’s evidence, they happened after execution of the documents and delivery of the Certificate of Title. If they were to have any significance adverse to the plaintiff’s case, that significance would depend on establishing knowledge of the plaintiff that, notwithstanding the execution of the documents, she still had some opportunity to recall the gift. There is no indication in the evidence that she had any understanding of the subtle and complex law relating to the perfection of gifts of land under the Torrens System.

88 There were instances in which the plaintiff made judgments which showed independence of a significant person in the Krishna Consciousness Movement, for example her not following the advice of the Sydney Temple President, rejecting his leadership on the ground that he was too materialistic and making an adverse appraisal of activities at the Cessnock Farm. There were no signs of such independence or distance in the arrangements she made with Mr Evans and Mr Barrow.

89 Mrs Hartigan made the donation without actually obtaining any independent advice, or any view about whether or not the donation should be made, from anybody not connected with the defendant and the Hare Krishna movement. Her husband was an enthusiastic supporter of the donation and was quite incapable of putting an independent point of view before her even if he had attempted to do so.

90 Mr Hartigan gave evidence; the defendant filed and read his affidavit, but he did not attend for cross-examination in answer to a subpoena and was brought to court to give evidence by Sheriff’s Officers under a Bench Warrant. He expressed in evidence hostility to both sides of the litigation, and disavowed or attempted to disavow the affidavit which he had made and said that it was incorrect in many ways. Some small number of his corrections may have been made with sincerity but overall the exercise of disavowing his affidavit and embarking on a very lengthy series of corrections was, I am quite satisfied, an exercise intended to disrupt the proceedings. At times he talked almost uncontrollably and much that he had to say was strange and wild. It would be difficult to convey in words how vivid was my impression that his demeanour while giving evidence was unsatisfactory. At many points he spoke in evidence of the Rosebery Creek Farm as if it had been his property, and this was probably a common manner of speech and thought with him. He exhibited hostility towards the persons now in charge of affairs at New Govardhana Farm; on the other hand he was giving his life to Krishna Service or, in my expression, charitable work in a Hare Krishna temple in North Sydney. He exhibited particular hostility towards the plaintiff. I do not regard him as a person on whose evidence I should rely on a serious matter. It is clear however that he strongly supported the project of donating Rosebery Creek Farm to the defendant, that he did this for religious motivations because he saw it as a means of freeing himself from material distractions, and that he cannot possibly have been of any assistance for the plaintiff in bringing her towards an objective view of the proposed gift.

91 In my opinion the circumstances as I found them show that the defendant bears the burden of showing that the gift was not affected by undue influence. The defendant is not under this burden because the defendant or anyone acting within an agency relationship with it actively worked on Mrs Hartigan to move her towards making the donation. No one person can be identified by evidence as a spiritual adviser who brought about the donation directly by counselling her towards it or by less direct means. She did not have a spiritual master who stood in direct relationship to her in accordance with the course by which, in Krishna Consciousness teachings, a devotee progresses. She had however advice, counselling and instruction, more or less formally, in Krishna Consciousness beliefs, overseas as well as in Australia, and had before her a large mass of teaching and publications which contains many statements deprecating materialism and advocating dedication of energy and resources to Krishna. On a full and orthodox understanding, surrender of property was not required of her; indeed in her circumstances it was quite inappropriate. Her understanding of the teachings was not sufficiently profound to enable her to see and act on this, while Mr Evans and Mr Barrow, who were persons of standing in the movement, would or should if they had had a full understanding of the whole situation have seen that it was not appropriate, according to Krishna Consciousness teaching, for her to divest herself of substantially all her property, did not investigate or inform themselves of the whole situation so as to come to terms with the implications of her completely dispropriating herself while she had family responsibilities which she could not meet otherwise; and did not bring her to terms with that matter either.

92 On Mr Evans’ and Mr Barrow’s own accounts of what took place, the plaintiff’s consultations and discussions with them clearly show that they were persons in whom she reposed trust and confidence, and their positions in the Krishna Consciousness Movement support the conclusion that she reposed trust and confidence in them and that, in the context of affairs of the Krishna Consciousness Movement, it was appropriate for her to give them her trust and confidence and they treated it as appropriate. The plaintiff committed herself and her family entirely to the New Govardhana Farm and the persons conducting it for basic needs which the Rosebery Creek Farm could provide; housing for herself and her family and potentially, an occupation which would produce an income. She was proposing to take herself and her family into a religious community and trust to it for these basic needs. Her dependency and reliance upon the community and the persons conducting its affairs must have been and indeed I am sure were obvious to Mr Evans and to Mr Barrow. She did not have a full or correct understanding of the religious teaching with respect to the surrender of material possessions, and her intention was produced by her misunderstanding of religious instruction and literature which had been put before her and which emphasised submission to instruction and avoidance of materialism, and idealised a life of rural simplicity and devotion and progression, in humility, towards Krishna Consciousness. The plaintiff, making what she did of instruction and scriptures available to her, and with the considerable disadvantage of exposure to her husband’s wishes, interest in simple rural life and his professed commitment, made what she could of her religious knowledge and came to a conclusion which, manifestly, was entirely contrary to her interest, needs and responsibilities for herself and her family, and in every way profoundly improvident. In her state of mind, exemplified by her misunderstandings of Krishna Consciousness teaching, the unreality of her reliance on New Govardhana Farm for housing on the basis of slight and imprecise indications, and the confidence she imposed in Mr Evans and Mr Barrow, she was susceptible to be influenced even by the slightest and most subtle indications appearing to favour the donation.

93 Mr Barrow had a clear understanding of the difficulties which might attend the effectiveness of the donation and of the need for caution and management by a legal adviser, but he did not give Mrs Hartigan the benefit of this insight. In my view the defendant has not discharged the burden of proof which rests on it of showing the absence of undue influence; quite to the contrary the probabilities are that Mrs Hartigan’s full and clear although entirely improvident intention to give up all her property was produced by religious teaching which she misunderstood and misapplied, without her receiving correction which was obviously necessary and appropriate and which Mr Barrow and Mr Evans were in a position to give and should have seen that she needed.

94 Making the gift was an enormity, quite outside the range of benefactions which a person could be expected to make either according to ordinary community standards of regard for one’s own interest or according to the philosophy taught by the Krishna Consciousness Movement. This should have been obvious to anyone who knew the circumstances, and indeed it appears to me that it was obvious to Mr Barrow. It should also have appeared to Mr Evans. In my judgment it would be altogether unconscionable for the defendant to rely on the validity of the donation, and a court of equity should set it aside.

95 Suggestions that the plaintiff owed money to the United States Income Revenue Service, or that avoiding payment of United States taxes was a reason for coming to Australia, remaining here or making a gift, which were alluded to at various places in the conduct of the case, have no substance in my finding. There were no unpaid United States taxes.

96 The defendant’s contention that equitable relief should be refused on the grounds of hardship was to the following effect. The community at New Govardhana Farm, like each community in the Movement, is expected within the Movement to be self-supporting, and the burden of any remedy awarded to the plaintiff would be treated as the responsibility of the New Govardhana community; the New Govardhana community is not composed on the same individuals now as those who participated in the community in 1988 and there have been many changes, so that the burden would fall largely on people who did not participate in the advantage of reduction in debt burden which flowed from the gift in 1989. It was contended that the transaction cannot be undone without casting the burden on persons who have ordered their lives on the basis that the farm is free of this burden.

97 I accept that some element of hardship may well flow to some persons, but I do not regard this as a sufficiently substantial hardship to countervail the claim of justice made by the plaintiff. If the burden falls in the way stated on present members of the community, it will be widely spread. The proceedings have been pending for eight years and the contingency should have been anticipated over that period. The defendant’s internal arrangements for allocating burdens to communities should have had the effect that, since 1989 all participants in the New Govardhana community have benefited, to some extent, from the reduction in the debt burden which was made in 1989. In any event, the obligation is an obligation of the defendant, and it is a concern for the defendant how to arrange to meet its obligations, and whether it calls on community members to bear them, on which community members it makes such a call, and generally how it orders its affairs. The defendant has the advantage of owning New Govardhana Farm as equitable owner; and perhaps it has other properties. It has also had the considerable advantage over many years since 1989 that what would otherwise have been its debt burden has been significantly reduced. In my view the remedy should not be refused on the ground of hardship.

98 It was also contended that proper use has been made of proceeds of sale and that in Allcard v. Skinner and Quek v. Beggs relief was withheld in respect of assets which had been applied to proper purposes and were no longer available. In Allcard v. Skinner the plaintiff accepted the limitation on recovery imposed at first instance and the appeal related only to a small number of items which continued to exist and could be identified. In Allcard v. Skinner the assets had been consumed over some years on the maintenance of the religious community of which the plaintiff was part and on carrying on its work in which she participated. In Quek v. Beggs there were similar limitations to recovery in respect of assets which had been applied for proper purposes. The remedies available are not limited to remedies against specific assets; while specific assets will be restored if they still exist and can be identified, personal remedies are available against a donee which itself directly received the property from the donor. There are no limitations on recovery such as were encountered in Re Diplock [1948] Ch 465, where the hospitals and other charity beneficiaries had received property from the trustees and were not involved in accessory liability for the breaches of trust; the only remedy available was the tracing remedy against property, and that remedy was defeated if the property went out of existence. In granting equitable relief the court has power to mould the relief granted to the circumstances of the particular case and what justice requires after making the detailed examination of the particular circumstances which the exercise of this power calls for. In my view nothing has happened which makes it unjust that the defendant should be required to pay to the plaintiff the amount which it received on sale of the Rosebery Creek Farm. The amount received went immediately to reduce the defendant’s debt burden, creating an economic advantage in reduced debt which must be reflected in its overall position now. I see no injustice in restoring the defendant to the relative position of indebtedness which it would have been in if it had not received the proceeds of the sale. In saying this I bring into consideration my view on the award of interest, which I deal with elsewhere.

99 In relation to hardship, and also in relation of the modification of any remedy awarded the plaintiff by reducing the amount to be awarded, the defendant led a body of evidence in which it endeavoured to quantify disadvantages falling on the defendant from receiving and maintaining cattle which were on the Rosebery Creek Farm at the time of the donation. There is not in the documents prepared by Mr Piper and there does not seem to be elsewhere any reference to an express donation of the cattle or any clear arrangement for them to pass to the ownership of the defendant. The cattle were a special interest of Mr Michael Hartigan, and he worked, or in the early stages of his residence at New Govardhana Farm he worked with Lagudi in the care of cattle and in fieldwork with cattle, and in some way which is not fully or clearly explained the cattle went with him. Taking over the cattle was part of the whole parcel of receiving the plaintiff, her husband, her children and her farm into the New Govardhana community. As it happened the cows and calves died within about a year, while the Hartigans still lived at New Govardhana Farm and while Mr Hartigan was still there, not always, it would seem, working in a very effectual manner. Six bullocks however remained on the farm, and are still there at advanced ages. They could not be trained for work although Lagudi gave many hours of attention to trying to train them; his explanation was to the effect that they are Murray Greys and that that breed cannot be trained to draw the plough.

100 Krishna Consciousness philosophy involves respect for life, reflected in the Regulatory Principle against eating meat, fish and eggs; cattle receive particular care and respect. Religious principle commits the New Govardhana Farm, principally Lagudi, to care for the cattle until they die, and their care involves works of husbandry to maintain fencing, to provide pasture, at times to buy feed, and to provide veterinary medicines, fees for registration and other charges.

101 The six Murray Grey bulls live on as part of an ever diminishing herd under Lagudi’s husbandry and supervision. They require supervision and segregation to impede breeding. The defendant produced calculations of the cost of this exercise, including elements which were shown by cross-examination to have no real force and indeed to be mildly fantastic. In the context of the gift of a farm on which, at the time of the gift, the cattle were pastured, the burden of looking after cattle some of which died while Mr and Mrs Hartigan were still at New Govardhana Farm, while others live on unproductively as part of a much larger herd of largely unproductive bulls under the care of Lagudi, a monk pursuing a life of extreme simplicity, does not appear to me to have any real claim for consideration. The burden can only be a small one and represents the discharge of what are seen as religious obligations to attend to the welfare of the cattle; it is the perception that there are such obligations that gives rise to the need to look after them, and I do not regard it as realistic to treat that need as a burden which should lead to the defendant’s obtaining any relief against what otherwise would be its obligations. There have been some burdens of expenditure from time to time for feed and other supplies, but this can be no more than a slight matter when taken with the defendant’s having the advantage of being relieved of $83,000 of its obligations to the Westpac Bank under its series of commercial bills. At this point too, I have regard to the view which I take of recovery of interest.

102 It was alleged that there was confirmation by the defendant of the gift. The supposed confirmation relates to the circumstances of her having learnt, about April 1989, that Mr David Evans owned property in Murwillumbah; she said to the effect that if she had known that she would not have made the gift. There is no substance in the view that this constitutes confirmation; she was quite inactive. The event does not, as counsel contended, demonstrate that she was then emancipated from any influence of the defendant; the event demonstrates its continuance. It was also said that delay by the plaintiff in bringing her claim, and in the conduct of her claim after it commenced in 1994, constitute grounds for refusing relief in terms of confirmation, acquiescence or laches.

103 There were remarkably long delays. So far as it appears by evidence, the first act by which the plaintiff decided to recall the gift and communicated her decision to the defendant was the issue and service of the statement of claim, which was issued on 9 August 1994 and was served soon afterwards. The plaintiff explained her difficulties by the absence of resources with which to obtain legal representation and meet continuing needs to provide resources to maintain the litigation and by difficulties arising from her living at a distance. Her lack of resources and difficulty in funding the litigation is directly connected with the impoverishing nature of the gift. Defendant’s counsel contended that delay had led in various ways to prejudice to the defendant in the conduct of the proceedings. I do not think that any such prejudice has much weight in support of a decision to withhold equitable relief, because the principal persons involved namely Mr Barrow, Mr Evans and Mr Piper were available to give evidence and gave evidence, and their evidence, particularly that of Mr Barrow itself demonstrated a clear appreciation of the difficulties of the gift, and no matter when the hearing took place there was no possible source of evidence of independent advice. The defendant was not in my opinion prejudiced by the lapse of time in dealing with the truly important issues in the litigation.

104 The delay which has occurred does however have an impact on the remedy which in my view should be awarded to the plaintiff. There is no difficulty in perceiving that the appropriate remedy is to require the defendant to pay to the plaintiff the amount of $83,000 which the defendant received as the price on the sale of Rosebery Creek Farm. On the other hand notwithstanding the economic difficulties which have beset the plaintiff it does not appear to me to be just that she should recover interest in respect of the lengthy period before she brought the proceedings, or in respect of the further lengthy period, from 1994 to 2001, before she brought her claim on for hearing. The interlocutory steps were lengthy and elaborate, and were not conducted expeditiously. In my view then the appropriate dealing with interest is that the plaintiff should recover interest from the commencement of the hearing on 20 November 2001.

105 For these reasons I propose to give judgment for the plaintiff.

106 As the interlocutory course was elaborate there may be some special considerations affecting costs, and I will defer making orders for costs until the parties have had an opportunity to make any submissions they regard as appropriate.

107 My Order is:

(1) Give judgment for the plaintiff for $83,000 together with interest of $6,185 a total of $89,185.

(2) Costs reserved.

**********

Last Modified: 09/11/2002

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Citations

Hartigan v International Society for Krishna Consciousness Incorporated [2002] NSWSC 810

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CITATION:	HARTIGAN v INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS INCORPORATED [2002] NSWSC 810
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 3328/1994
HEARING DATE(S):	19-23/11/01; 30/11/01; 25-26/02/02
JUDGMENT DATE:	6 September 2002
PARTIES :	Janet Hartigan - Plaintiff International Society for Krishna Consciousness Incorporated - Defendant
JUDGMENT OF:	Bryson J

COUNSEL :	J.B. Whittle SC & R. Glasson - Pltf D.A. Smallbone - Dft
SOLICITORS:	Mallesons Stephen Jacques - Pltf James Solicitors - Dft
CATCHWORDS:	FRAUD AND MISREPRESENTATION AND UNDUE INFLUENCE - undue influence - religious advisor, person in position of trust and confidence - the plaintiff claimed remedies against her donation of farm to incorporated association representing Hare Krishna Movement - farm later sold - extremely improvident gift of only substantial asset - no independent advice or influence - burden of proof on defendant - on detailed consideration of facts held that transaction was unconscionable and plaintiff awarded amount of price for which sold.
LEGISLATION CITED:	Associations Incorporation Act 1956-1965 (South Australia)
CASES CITED:	Huguenin v. Baseley (1807) 14 Vesey Jnr 273 Allcard v. Skinner (1887) 36 ChD 145 Watkins v. Coombs (1922) 30 CLR 180 Union Fidelity Trustee Co of Australia Ltd v. Gibson [1971] VR 573 Quek v. Beggs (1990) 5 BPR 11,761 Morley v. Loughlan [1893] 1 Ch. 736 Johnson v. Buttress (1936) 56 CLR 113 Bank of NSW v. Rogers (1941) 65 CLR 42 Ryan v. The Queen (2001) 75 ALJR 815 Jenyns v. The Public Curator (Queensland) (1953) 90 CLR 113
DECISION:	(1) Give judgment for the plaintiff for $83,000 together with interest of $6,185 a total of $89,185; (2) Costs reserved.