Hastie v Hastie
[2025] QSC 190
•28 August 2025
SUPREME COURT OF QUEENSLAND
CITATION:
Hastie & anor v Hastie & anor [2025] QSC 190
PARTIES:
ALLAN HASTIE
(first plaintiff)
and
JEANETTE FAY HASTIE
(second plaintiff)v
CRAIG ANDREW HASTIE(first defendant)
and
KYLIE ELIZABETH HASTIE(second defendant)
FILE NO/S:
BS No 9844 of 2024
DIVISION:
Trial Division
PROCEEDING:
Trial
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
28 August 2025
DELIVERED AT:
Brisbane
HEARING DATE:
27-28 March and 2 April 2025
JUDGE:
Williams J
ORDER:
1. The plaintiffs’ claim is dismissed.
2. Within 14 days the parties are to file and serve written submissions in respect of costs, of not more than 3 pages.
CATCHWORDS:
EQUITY – UNDUE INFLUENCE AND DURESS – WHERE NO PRESUMPTION ARISES – where the plaintiffs had a mortgage over their property and were struggling to make repayments – where the bank was threatening to foreclose – where the plaintiffs transferred the property to the defendants in exchange for the defendants paying the outstanding mortgage and rates owed – where the plaintiffs alleged that the defendants promised that they could remain in the property rent free or the defendants would provide other accommodation to them – where the plaintiffs paid rent to the defendants – whether the transfer of the property was a result of actual undue influence over the plaintiffs – whether the relations between the parties raised a presumption of undue influence
EQUITY – UNCONSCIONABILITY, UNCONSCIONABLE DEALINGS AND OTHER FORMS OF EQUITABLE FRAUD – GENERALLY - where the plaintiffs had a mortgage over their property and were struggling to make repayments – where the bank was threatening to foreclose – where the plaintiffs transferred the property to the defendants in exchange for the defendants paying the outstanding mortgage and rates owed – where the plaintiffs alleged that the defendants promised that they could remain in the property rent free or the defendants would provide other accommodation to them – where the plaintiffs paid rent to the defendants – whether the plaintiffs were suffering from a special disadvantage – whether the defendants unconscientiously took advantage of any condition or circumstance of the plaintiffs
Avon Finance Co Ltd v Bridger [1985] 2 All ER 281, cited
Blomley v Ryan (1956) 99 CLR 362, cited
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14, cited
Johnson v Buttress (1936) 56 CLR 113; [1936] HCA 41, cited
Tulloch (decd) v Braybon (No 2) [2010] NSWSC 650, cited
Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VR 573, citedCOUNSEL:
M G Larsen for the plaintiffs
A M Laylee for the defendants
SOLICITORS:
De Brenni & Co for the plaintiffs
ACS Legal Solutions for the defendants
The first plaintiff and the second plaintiff are husband and wife, and the first defendant is their son. The second defendant is the wife of the first defendant and the daughter in law of the plaintiffs.
The plaintiffs are suing the defendants alleging undue influence and unconscionable conduct in relation to the transfer of a property at Rochedale South (Rochedale South Property) from the plaintiffs to the defendants in June 2019.
The plaintiffs claim various relief from the defendants, including:
(a)A declaration that the transfer of the Rochedale South Property dated 3 June 2019 to the defendants be set aside.
(b)A declaration that the plaintiffs were at all times the sole legal and beneficial owners of the Rochedale South Property as joint tenants.
(c)An order that the Registrar of the Land Titles Registry be directed to rectify the title for the Rochedale South Property so that the plaintiffs are the registered proprietors of the Rochedale South Property as joint tenants.
(d)Alternatively:
(i)a declaration that the defendants hold the Rochedale South Property[1] on:
(A) a resulting trust, 100% for the plaintiffs (or alternatively, as determined by the Court as just and equitable); or
(B) a constructive trust, 100% for the plaintiffs (or alternatively, as determined by the Court as just and equitable).
(ii)An order requiring the defendants to do all things and take all steps necessary to perform the trust and convey to the plaintiffs the legal title to the Rochedale South Property.
(e)Alternatively an order for equitable compensation in lieu of the plaintiffs’ interest in the Rochedale South Property, with an equitable charge or lien over the Rochedale South Property in an amount that is just and equitable.
[1]Which is currently registered in their names as joint tenants.
In final submissions the plaintiffs also claim a constructive trust on the further alternative basis of a failed joint enterprise.
The defendants deny the allegations of undue influence and unconscionable conduct and further deny that any trust arises.
The proceeding was commenced by way of originating application but was ordered to proceed as if started by claim. The trial proceeded on the Further Further Amended Statement of Claim dated 24 March 2025 (Statement of Claim), the Further Amended Defence of the Defendants dated 18 March 2025 (Defence) and the Amended Reply filed 4 March 2025 (Reply).
The issues to be determined are:
(a)Have the plaintiffs established undue influence by the defendants?
(b)Have the plaintiffs established unconscionable conduct by the defendants?
(c)If so, what relief is appropriate?
Given the nature of the facts, specific findings of fact will be made prior to turning to consider these issues.
Overview and contentions
The plaintiffs were the owners of the Rochedale South Property and lived in the property from about 1971.[2]
[2]The plaintiffs originally bought the land in 1964 for 290 pounds and the house was built with the assistance of family in 1971.
In June 2019 the plaintiffs had a mortgage of $322,804.17 over the Rochedale South Property with the ANZ Bank. The plaintiffs were having difficulties in making repayments and the ANZ Bank was threatening to foreclose and to sell the Rochedale South Property. Further, the plaintiffs owed $9,043.00 in outstanding rates on the Rochedale South Property.
On or about 3 June 2019, a transfer was executed transferring the Rochedale South Property from the plaintiffs to the defendants (Transfer).
The Transfer was registered at the Queensland Titles Registry on or about 26 June 2019, with the defendants as the registered owners of the Rochedale South Property.
As part of the settlement, the plaintiffs’ debt to the ANZ Bank and the outstanding rates were paid.
The parties agree that the Rochedale South Property was valued at approximately $550,000 at the time of the Transfer.[3]
[3]Valuation evidence was exchanged prior to trial: Affidavit of Dennis Wong sworn 26 March 2025 and Affidavit of Nicholas Payne affirmed 26 March 2025.
The plaintiffs continued to reside in the Rochedale South Property, having entered into a five-year lease[4] (Lease) with the defendants at or around the time of the Transfer. Under the Lease the plaintiffs paid the defendants $300 per week in rent and continue to do so after the expiry of the Lease in June 2024.
[4]Lease dated 26 June 2019.
The plaintiffs contend that both the Transfer and the Lease should be “unravelled” on the basis of undue influence and/or unconscionability.
The plaintiffs contend that the consideration for the Transfer was a promise by the defendants that:
(a)the plaintiffs would have a right to live “rent free” in the Rochedale South Property for as long as the plaintiffs were able to; and
(b)the defendants would otherwise “look after them” by providing accommodation for the plaintiffs.
Further, the plaintiffs contend that the plaintiffs were at a “special disadvantage” and that this was exploited by the defendants who had knowledge of that special disadvantage, giving rise to unconscionability.
The defendants contend that:
(a)the consideration for the Transfer was the defendants paying the amounts of the plaintiffs outstanding mortgage and rates; and
(b)the balance of the equity in the Rochedale South Property was a gift to the defendants.
Further, the defendants contend that this was done in the context of the defendants doing what they could to assist the plaintiffs in their position of financial hardship with the ANZ Bank.
The defendants also point to the following factual context as relevant:
(a)The rent being paid by the plaintiffs under the Lease is far below market rates.
(b)The defendants originally had a mortgage with Bluestone Home Loans but refinanced with Macquarie Bank in or about April 2023.
(c)The defendants are currently in a position of financial hardship in respect of the mortgage on the Rochedale South Property and Macquarie Bank has granted a temporary reprieve in respect of mortgage repayments.
(d)The defendants have had sole responsibility for the mortgage in respect of the Rochedale South Property since June 2019.
(e)The plaintiffs claim equitable rights over the whole of the Rochedale South Property and do not take into account the defendants’ payments under their mortgage and the ongoing maintenance and costs of the Rochedale South Property.[5]
[5]Such as rates.
Turning now to deal with some of the evidence common to both issues before considering the issues of undue influence and unconscionability.
Witnesses and general facts
The following witnesses gave evidence:
(a)For the plaintiffs:
(i)the first plaintiff;
(ii)the second plaintiff; and
(iii)Mandeep Singh (real estate agent).
(b)For the defendants:
(i)the first defendant;
(ii)the second defendant; and
(iii)Renee Caldwell (the daughter of the plaintiffs and the sister of the first defendant).
A representative of the ANZ Bank was also called to give evidence to prove as a business record electronic diary notes kept of the ANZ Bank’s communications with the second plaintiff.
The parties also relied upon affidavit evidence[6] as follows:
(a)For the plaintiffs:
(i)Denis Wong[7] (valuer).
(b)For the defendants:
(i)Nicholas Payne[8] (valuer); and
(ii)Rochelle Leanne Field[9] (real estate agent – historical rental appraisals).
[6]Without requiring the deponents for cross-examination.
[7]Affidavit sworn 26 March 2025.
[8]Affidavit affirmed 26 March 2025.
[9]Affidavit sworn 26 March 2025.
It is necessary to make some preliminary comments about the evidence of the plaintiffs and the defendants, including as to their credibility and reliability:
(a)The first plaintiff’s evidence was in quite general terms. There were aspects that the first plaintiff could not recall, which is perhaps understandable given the first plaintiff is 82 years of age with some sight difficulties. The first plaintiff appeared to give evidence to the best of his recollection, but he was not the key person on some aspects, and on others his evidence was not helpful or reliable.
(b)The second plaintiff could recall some aspects in minute detail and could not recall other aspects at all. This does impact on the second plaintiff’s reliability and credibility. While the second plaintiff is 76 years of age, the second plaintiff had a good understanding of the issues in the proceeding and presented as quite savvy. I find that the second plaintiff’s evidence in some key respects was unreliable and not credible. This will be specifically addressed below.
(c)The first defendant and second defendant were largely credible and reliable witnesses. At times the defendants appeared defensive in their evidence, but this could be explained by the nature of the claims being made and the strained family relationship. There were some aspects that the defendants could not recall specifics of, but these were peripheral to the main issues and did not impact their overall credibility.
I make the following findings of fact on the evidence at trial:
(a)The first plaintiff is currently 82 years of age and the second plaintiff is 76 years of age. The plaintiffs are currently retired and had operated their own cleaning business for many years, with the final tax return for the cleaning business being lodged in 2019.
(b)The plaintiffs currently receive the old age pension and also receive a government rental assistance benefit.
(c)The first plaintiff had bought the land and built the house with his father, brother, and uncle, being the Rochedale South Property. The plaintiffs had lived in the Rochedale South Property as their home since 1971, being approximately 50 years. Consequently, the plaintiffs were sentimental about the Rochedale South Property.
(d)In the period of approximately 12 months before June 2019, the plaintiffs were in arrears in their mortgage payments to the ANZ Bank and the second plaintiff was in regular contact with the ANZ Bank about their financial hardship.
(e)By approximately February 2019, the ANZ Bank records indicate that the plaintiffs had to sell the Rochedale South Property. Otherwise, the Rochedale South Property would need to be surrendered to the ANZ Bank or litigation would be commenced.
The relationship between the plaintiffs and the defendants is also relevant to the timeline of events and the nature of the relationship between them. I make the following findings of fact:
(a)In 2011, for a period of approximately 6 to 7 months, the defendants and their children lived with the plaintiffs while one of the children received medical treatment. The defendants moved out suddenly following a disagreement between the plaintiffs and the defendants.
(b)Following this there was a lengthy period of estrangement between the plaintiffs and the defendants.
(c)The circumstances of the falling out in 2011 made it unlikely that the defendants would offer for the plaintiffs to live with them in the future.
(d)Renee Caldwell had also been estranged from the plaintiffs for a period of time.
(e)In or about December 2018, Renee Caldwell arranged a family barbeque which the plaintiffs and defendants attended (2018 BBQ). The parties considered that they had reconciled at this time.
(f)In early 2019, possibly February 2019, there was a second family barbeque (2019 BBQ) attended by the plaintiffs, the defendants, Renee Caldwell, and her husband.
The 2019 BBQ is important as it was on this occasion that the second plaintiff first raised with the first defendant the first defendant buying the Rochedale South Property. The evidence in respect of what was discussed at the 2019 BBQ is controversial between the parties in some respects.
It is uncontroversial that the second plaintiff “casually” raised with the first defendant the first defendant buying the Rochedale South Property. The first defendant accepted that the plaintiffs were sentimental about the Rochedale South Property and wanted to “keep it in the family”.
The second plaintiff’s evidence was that she told the first defendant that the property was on the market for $650,000, she believed that the first defendant was going to seek finance for $650,000, and that the second plaintiff told the first defendant that the plaintiffs were on a pension and paid fortnightly. I do not accept the second plaintiff’s evidence.
It is not consistent with the events that followed that this detail was discussed at the 2019 BBQ. I accept the evidence of the first defendant that at the 2019 BBQ:
(a)The second plaintiff did not mention that the Rochedale South Property had been listed for sale with a real estate agent for $650,000.
(b)The first defendant did not give any indication that he could or would purchase the Rochedale South Property.
(c)The second plaintiff did not mention that the plaintiffs were on a pension or the amount or frequency of any pension payments.
Between the 2019 BBQ and the Transfer being signed on 3 June 2019, I find the following facts:
(a)The first defendant prepared a document dated 11 March 2019 stating that the “balance of the equity” in the Rochedale South Property be gifted to the defendants “after they both take possession of the property” (Equity Gift Letter).
(b)The Equity Gift Letter was prepared by the first defendant on the advice of the first defendant’s accountant.
(c)The first defendant arranged for the plaintiffs to attend his place of work, the Logan Police Citizens Youth Club, to sign the Equity Gift Letter. The Equity Gift Letter was signed by the plaintiffs on or about 11 March 2019 in the carpark of the first defendant’s place of work.
(d)While the plaintiffs cannot recall signing the Equity Gift Letter, they do not deny it is their signatures on the document. There is no allegation that the Equity Gift Letter was not in fact signed by the plaintiffs.
(e)The fact that the original Equity Gift Letter could not be produced by the defendants does not support a conclusion that the Equity Gift Letter was not signed by the plaintiffs.
The Equity Gift Letter is general in its terms and addressed to “[t]o whom it may concern”. It is written in a generic legalistic style. The second plaintiff’s evidence was that she would not have used “my son” when referring to the first defendant and that the wording was inconsistent with how she would have worded the document. That evidence is not of assistance as it is not disputed that the Equity Gift Letter was prepared by the first defendant, and not the second plaintiff.
The evidence of the plaintiffs was that the Equity Gift Letter did not reflect their intention. I do not accept this evidence.
I make the following further factual findings relevant to this period:
(a)On or about 14 March 2019, the defendants obtained a market appraisal for the Rochedale South Property. Relevantly the value of the Rochedale South Property was $490,000 - $495,000.[10]
(b)In or around March 2019, the defendants’ application for finance to the Commonwealth Bank was declined.
(c)On or about 4 April 2019, the plaintiffs signed a lease agreement at the request of the first defendant (April Lease).
(d)I accept the evidence of the first defendant that the April Lease was prepared at the request of Westpac Bank to support a further application for finance.
(e)The April Lease states the rent of $650 per week. The first defendant’s evidence at trial was that this was an error and was meant to be the amount per fortnight.[11] I accept the first defendant’s evidence in this regard.
(f)On or about 30 April 2019, the solicitors acting on behalf of the defendants emailed draft transfer documents to the defendants’ broker and the first defendant.
(g)In or about early May 2019, the Westpac Bank declined the defendants’ application for finance. The first defendant told the second plaintiff that the application for finance was unsuccessful.
[10]Exhibit 17.
[11]T2 – 106.
A controversial issue arises on the evidence at this point in the timeline. The first defendant’s evidence is that the second plaintiff said to him that she would “kill herself” because of the stress. It is uncontroversial that the plaintiffs were stressed about the likelihood of them losing the Rochedale South Property due to their financial hardship. However, the evidence of the plaintiffs is that this conversation did not occur.
The evidence of the first defendant is that the second plaintiff made the statement to the first defendant and first defendant took the second plaintiff’s threat seriously and contacted his broker to explore further options. I accept the evidence of the first defendant and do not accept the evidence of the plaintiffs. The threat by the second plaintiff to self-harm resulted in the first defendant renewing steps to obtain finance to assist the plaintiffs.
Around this time the second plaintiff provided to the ANZ Bank the unsigned transfer documents. This is in the context of the ANZ Bank records recording that the plaintiffs were being pressed to provide some evidence that the Rochedale South Property was being sold to the first defendant to clear the debt.
The provision of the unsigned transfer documents to the ANZ Bank by the second plaintiff is inconsistent with the plaintiffs’ claim that they did not have advanced notice of the transfer documents and that they were presented to them for signing at the defendants’ solicitors’ office. I do not accept the plaintiffs’ evidence in this regard.
On or about 27 May 2019, Bluestone Home Loans approved the defendants’ application for finance in the amount of $414,560. This amount is made up of the following:
(a)Surplus Funds - $62,715.83;
(b)HELP Debt - $20,284.17;
(c)Purchase of the Rochedale South Property- $320,000.00;
(d)Essential repairs - $5,000.00; and
(e)Fees - $6,560.00.
I accept the evidence of the first defendant in respect of the finance obtained from Bluestone Home Loans.
These figures are consistent with the ANZ Bank records which record that the second plaintiff was making enquiries as to a payment figure for the plaintiffs’ mortgage with the ANZ Bank. The payout figure was $322,444.68.[12]
[12]Exhibit 25.
I also find that around this time the first defendant informed the second plaintiff that Bluestone Home Loans had approved the application for finance.
Another controversial issue arises in respect of the period between the 2019 BBQ and early June 2019. The plaintiffs contend that at some point in this period the first defendant promised that the plaintiffs could remain in the property without paying rent until they were too old to care for themselves, at which time the first defendant would provide a granny flat for them. The first defendant denies making any such promise – or any promise at all.
The plaintiffs’ evidence in this regard is quite general and vague as to the timing.
The first plaintiff’s evidence included:
(a)He was happy to transfer for the “low price” as he “didn’t see any other option”.
(b)He believed the first defendant was “looking after them” and he and the second plaintiff went “along with it”.
(c)The first and second plaintiff discussed getting less than the full price for the Rochedale South Property and he thought “... we’re better off letting [the first defendant] having it cheaper, and it helps him, and it helps us ... financially”.
(d)The first defendant promised that the plaintiffs could live rent free in the Rochedale South Property and the first defendant would build a granny flat when they could not live in the Rochedale South Property any longer.
(e)The promise was made “just after the house was signed over” to the first defendant.[13]
(f)When the plaintiffs signed over the Rochedale South Property it was not on the understanding of the promises.[14]
[13]T1-57 L 14 – 15.
[14]T1-57 L 19 – 24.
The second plaintiff’s evidence included:
(a)On 26 September 2019, the second plaintiff expected a cheque for $330,000 and did not receive it.
(b)The second plaintiff assumed the plaintiffs would receive the whole value of the Rochedale South Property.
(c)At the 2019 BBQ the first defendant had said he was going to look after the plaintiffs.
(d)“I can’t recall exactly when it took place, but he did offer rent-free”.
(e)At some point, at least prior to the application to Bluestone Home Loans, the first defendant in telephone calls persistently reduced the price until the plaintiffs agreed that the first defendant would pay the mortgage only.
I do not accept the evidence of the first plaintiff or the second plaintiff that the first defendant made a promise that they could live in the Rochedale South Property “rent free” and when they could not longer live there the defendants would provide a granny flat. There is not a sufficient evidentiary basis to be satisfied that the promise was made in the terms alleged or at all.
This conclusion is supported by the fact that the alleged promise was not referred to in conversations or exchanges more contemporaneous with the alleged promise being made which were a natural point in time for the issue to be raised. Further, the second plaintiff did not refer to the “rent free” promise in her affidavit when the proceeding was originally commenced which was where it logically and rationally would have been included if it had in fact been made.
I accept the evidence of the first defendant that the alleged promise was not made to the plaintiffs in consideration for the Transfer or otherwise.
Subsequently to the approval of finance to the defendants, the following events occurred:
(a)On or about 1 June 2019, the plaintiffs executed a mortgage discharge authority.
(b)On or about 3 June 2019, the plaintiffs signed the transfer form.
(c)On or about 26 June 2019, the Transfer was registered at the Land Titles Office.
(d)On or about 26 June 2019, the plaintiffs signed the Lease.[15]
[15]Which is the Lease referred to at [15].
There are some controversial factual issues in respect of these events that need to be considered further.
It is uncontroversial that the Transfer was signed on 3 June 2019. The plaintiffs drove, collected the first defendant, went to ACS Lawyers to sign the Transfer, and then returned home. It is also uncontroversial that the time spent at ACS Lawyers to sign the Transfer was reasonably short: being 10 to 15 minutes.
What is controversial is the evidence in relation to the draft transfer document and the final transfer document that was signed.
The second plaintiff’s evidence is that when they arrived at ACS Lawyers, the lawyer brought the transfer document in a manilla folder into the reception area where the plaintiffs signed the Transfer.[16]
[16]The Transfer is signed by the solicitor on behalf of the defendants.
The second plaintiff’s evidence was that she did not make amendments to the draft transfer document and the handwriting was not hers.
The first plaintiff’s evidence was that he did not recognise the handwriting on the draft transfer document.
The first defendant’s evidence was that when the plaintiffs arrived at his house to collect him to go to ACS Lawyers to sign the Transfer, the second plaintiff produced the draft transfer document with the handwritten amendments.[17] Further, when they arrived at ACS Lawyers the transfer document needed to be amended before the plaintiffs signed the Transfer.
[17]Exhibit 19.
The first defendant’s evidence was that the amendments to the transfer document were in two categories:
(a)The correction to the second defendant’s birthdate and the defendants’ address, in respect of which he made the amendment.
(b)The other annotations on the draft transfer document were made by the second plaintiff.
An amended version of the transfer document was prepared and then the plaintiffs signed the Transfer.
The second plaintiff’s evidence is very specific: the lawyer came out to reception holding the manilla folder in her left hand. However, the second plaintiff has no recollection of the document needing to be amended to, at the very least, correct the second defendant’s birthday and the defendants’ address. The second plaintiff’s evidence is inconsistent with the need for the transfer document to be amended whilst they were at the lawyer’s office.
A comparison of the marked up transfer documents (Exhibit 19 and the first document in Exhibit 24) and the final Transfer documents (the second document in Exhibit 24) shows that there were amendments to:
(a)the defendants’ address after possession;
(b)the second defendant’s date of birth;
(c)the transferor’s residential or business address after settlement;
(d)the details of sale price (entered as $320,000);
(e)the answer to the question “[w]ere any transferees related to or associated with any transferors at the date of the dutiable transaction?”;
(f)the relationship was described as “[m]other and father of Craig Andrew Hastie”; and
(g)various check boxes which were previously marked with question marks were completed.
The second plaintiff’s evidence was also that she had not seen the transfer documents before arriving at ACS Lawyers. This is plainly inconsistent with the ANZ Bank records which record that the second plaintiff provided a copy of the draft transfer on or about 9 May 2019. Further, this is also inconsistent with Exhibit 11 which shows that the first defendant forwarded the transfer document by email to the plaintiffs on 9 May 2019.
I do not accept the evidence of the second plaintiff in respect of the draft transfer and the execution of the Transfer.
I accept the evidence of the first defendant in respect of the preparation of and the execution of the Transfer, including but not limited to the annotations to the draft transfer, the amendments that were made to the transfer document at ACS Lawyers, and the circumstances of the execution of the Transfer.
It is not contentious that the plaintiffs did not receive legal advice from ACS Lawyers or other independent legal advice at the time of execution of the Transfer.
Following execution of the Transfer, the plaintiffs and the first defendant agree that “they were happy”. They returned in the same car and there was no dissatisfaction with what had occurred.
The second plaintiff did give evidence that she definitely would not have signed the Transfer if she had known “the true state of affairs”. I do not accept the second plaintiff’s evidence in respect of this issue.
On 26 June 2019, settlement occurred and the Transfer was registered. On that day the plaintiffs executed the Lease. The evidence in respect of the execution of the Lease is also controversial.
The second plaintiff’s evidence was that she was happy up until the presentation of the Lease and that was the first time the plaintiffs were aware of the Lease. Further, the second plaintiff’s evidence was that she signed the Lease as the first defendant put it to the plaintiffs. The second plaintiff’s evidence was that she was “disgusted”.
The first plaintiff’s evidence was that the plaintiffs could stay at the Rochedale South Property after the Transfer and “just pay the rent”. This is consistent with the first plaintiff being aware that paying rent was part of the arrangement.
In contrast, the first defendant’s evidence was that the plaintiffs knew that a lease of the Rochedale South Property was part of what was being done. This is consistent with the April Lease which had earlier been signed by the plaintiffs as part of the unsuccessful application for finance to Westpac.
The first defendant’s evidence was that he “always” does “an RTA lease”. The defendants owned other investment properties at the time. While there is no evidence of leases in respect of those properties, this is a rational response.
The second plaintiff’s evidence was that there was no reason why the plaintiffs would pay $600 a fortnight in rent when they could “just pay the mortgage” instead. This was not an option available to the plaintiffs and does not take into account that the plaintiffs were in substantial arrears on the ANZ mortgage and the ANZ Bank required them to sell the Rochedale South Property or the property would be forfeited.
The plaintiffs did obtain a rental allowance in addition to their pension payment. It can be inferred that this must have been as a result of an application by them and likely to have been subject to some level of “means testing”. There was no evidence at the trial as to how or when the rental allowance was obtained. However, this is consistent with the arrangement being that the plaintiffs would pay rent. Otherwise, there was no basis to claim rent assistance. If the promise was made to live at the Rochedale South Property rent free, there would be no need for the application for, or payment of, rent assistance. Equally, if the plaintiffs retained some equity or ownership in the Rochedale South Property, that is likely to have been relevant to that application.
The second plaintiff’s evidence was also that the plaintiffs did not think that payment of the rent was “fair” and that they had “given [the Rochedale South Property] to [the first defendant] for half price” and “what does [the first defendant] expect us to do pay rent and give it to him for half price”.
Generally, the second plaintiff’s evidence was that the plaintiffs were under stress and “felt influenced” by the first defendant to “do all these things”. Further, when questioned why the rent issue was not raised with the first defendant, the second plaintiff stated that “we felt it was the way rent goes” and “[the first defendant] has other properties he knows how selling and buying and renting goes”.
The difficulty with the second plaintiff’s evidence is that the alleged promise of staying in the Rochedale South Property “rent free” was not raised at the time and was not grappled with even in hindsight. If the alleged promise had been made, the clear response to being presented with the Lease was to raise that it was contrary to the promise. Not that “it was how renting goes”.
I do not accept the second plaintiff’s evidence in respect of the Lease. I accept the first defendant’s evidence in regard to this issue.
There are a number of more recent events that are also relevant, including:
(a)On or about 29 November 2022, the defendants sold a property at Mundoolan.
(b)On or about 6 March 2023, the defendants sold a property at Regents Park.
(c)On or about 28 April 2023, the defendants refinanced their Bluestone Home Loans mortgage with Macquarie Bank.
(d)On or about 6 August 2023, the plaintiffs, the defendants, and Renee Caldwell were at the defendants’ house where there was a discussion (August Discussion).
(e)On or about 8 November 2023, the plaintiffs, the defendants, and Renee Caldwell had a discussion at the Rochedale South Property (November Discussion).
(f)On or about 29 December 2023, the first defendant sent a text message to the plaintiffs advising that the Rochedale South Property had to be sold (29 December Text Message).
(g)On or about 5 January 2024, the second plaintiff sent a text message to the first defendant asking “how long before you want us to leave” (5 January Text Message).
(h)In or about February 2024, the defendants appointed a property manager to manage the Rochedale South Property.
(i)In or about February or March 2024, the second plaintiff advised the property manager that the driveway at the Rochedale South Property needed to be replaced.
(j)On or about 26 April 2024, a notice to leave the Rochedale South Property was served on the plaintiffs.
(k)In or about May 2024, the driveway at the Rochedale South Property was replaced.
(l)In or about November 2024, the defendants applied for hardship assistance from Macquarie Bank.
(m)On or about 26 July 2024, the plaintiffs commenced proceedings in the Supreme Court by originating application.
There is some factual controversy between the parties about the August Discussion and the November Discussion.
The first defendant’s evidence was that by the time of the August Discussion the defendants were starting to have financial troubles and the first defendant told the plaintiffs that he was not able to afford the mortgage.
It is uncontroversial between the parties that at the November Discussion:
(a)the first defendant told the plaintiffs he could no longer afford the mortgage on the Rochedale South Property;
(b)the plaintiffs agreed to pay more rent; and
(c)the plaintiffs agreed to an additional renter at the Rochedale South Property.
However, it is controversial between the parties as to who was responsible for setting the amount of the increased rent and arranging the additional renter.
In respect of the increase in rent:
(a)The second plaintiff’s evidence was that the plaintiffs were waiting for the first defendant to take a step.
(b)The first plaintiff’s evidence was that the second plaintiff said she would make enquiries about how much of an increased rent the plaintiffs could afford to pay, but that they agreed to pay more rent.
(c)The first defendant’s evidence was that he was waiting for the plaintiffs to confirm how much they could pay once they were no longer paying a debt to Centrelink.
(d)In effect, nothing happened in respect of increasing the rent.
In respect of the additional renter to move into the Rochedale South Property:
(a)The second plaintiff’s evidence was that the plaintiffs were waiting for the first defendant to take a step.
(b)The first plaintiff’s evidence was that the second plaintiff did make enquiries with a potential renter but they were not interested in staying there.
(c)The first defendant’s evidence was that he was waiting for the second plaintiff to check with someone she knew as to whether she was interested in moving in and paying rent.
(d)In effect, nothing happened in respect of an additional renter moving in.
Another issue in dispute is the statement by the first defendant that he could be fined $15,000 if the rent was not increased to market rent.[18] Ultimately, the first defendant’s position was that this was on advice from his accountant.
[18]The plaintiffs’ submissions say “if the rent was increased” at [26(e)]. However, the evidence was if the rent was not increased: see T3-21.
The evidence is that a statement was made. However, what is not clear is the basis for the statement. It appears that there were concerns about how the Australian Taxation Office may treat the below market rent, but other than that it is unclear on what basis a fine could be imposed.
In respect of the 29 December Text and the 5 January Text, these occurred at a point when the first defendant had decided to sell the Rochedale South Property at the end of the lease period.
The deadline was taken seriously by the plaintiffs and the first plaintiff was not happy with them being “kicked out”. The second plaintiff said they were “distraught about the whole thing given that [the first defendant] said he would look after [them] and keep a roof over [their] heads”.
After the 5 January Text, the plaintiffs made contact with Mandeep Singh again, this time about a rental property. It was Mr Singh who referred the plaintiffs to the lawyer currently acting for them.
When asked why the 5 January Text did not reference the alleged promise, the first plaintiff said the promises were definitely made but acknowledged there was no reference to the promise in the response.
It is consistent with the promise not being made that there was no reference to any agreement to live “rent free” at this point in time.
Turning now to consider the issues.
Have the plaintiffs established undue influence by the defendants?
The plaintiffs allege that their will was overborne by the influence of the first defendant in respect of both the Transfer and the Lease. In these circumstances, the plaintiffs submit that the Court is to consider the quality of the consent of the plaintiffs.
The defendants contend that they did what they could to assist the plaintiffs, and that there would be no property now if the defendants had not stepped in and paid out the plaintiffs’ debts to the ANZ Bank and the Council rates.
In particular, the defendants contend that there is no evidence that, at the time of the Transfer and refinance, the plaintiffs considered that they were going to have an ongoing interest in the property. The agreement was an arrangement to get the plaintiffs out of an immediate and serious financial difficulty.[19]
[19]This contention also applies in respect of the unconscionable conduct claim.
An agreement may be set aside by the Court for “undue influence” where a person has abused a position of influence.
There are two classes of undue influence:
(a)Where it is proved on the evidence that the transfer was a result of influence used over the transferor(s); and
(b)Where relations between the parties raise a presumption that the transferee(s) had influence over the transferor(s) and the presumption is not rebutted.[20]
[20]Johnson v Buttress (1936) 56 CLR 113, 119 (per Latham CJ); Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VR 573, 577.
The presumption will be raised:
(a)in cases of special relationships where the Court presumes “the reposal of confidence and the exertion of undue influence”, such as between parent and child[21] (and this presumption can be rebutted); or
(b)“[w]herever the relation between the donor and the donee is such that the latter is in a position to exercise dominion over the former by reason of the trust and confidence reposed in the latter”.[22]
[21]Whereat v Duff [1972] 2 NSWLR 147, 167; citing with approval Johnson v Buttress (1936) 56 CLR 113, 119 (per Latham CJ).
[22]Johnson v Buttress (1936) 56 CLR 113, 119 (per Latham CJ).
For the presumption to be raised on the facts of a case, there must be evidence establishing a fiduciary relationship:
“A court of equity will presume undue influence on the part of the donee when the evidence establishes a fiduciary relationship between the donor and donee, whereby at the material time of the gift the donor reposed complete trust and confidence in the donee and thereby placed the donee in a position to exercise ascendaney or dominion over the will or mind of the donor.”[23]
[23]Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VR 573, 576.
It has been recognised that a relationship of actual dominion is not necessary, rather a fiduciary relationship can be established if it can be shown that “the party in whom trust and confidence is reposed is in a position to exert influence over the party who reposes it”.[24] However, more than mere influence is required. There must be some element of authority or superiority over the other.[25]
[24]Tulloch (decd) v Braybon (No 2) [2010] NSWSC 650, [51].
[25]Tulloch (decd) v Braybon (No 2) [2010] NSWSC 650, [51].
Where a fiduciary relationship is established, the onus shifts to the transferee to establish that the transfer was voluntary:
“… the party in the position of influence cannot maintain his beneficial title to property of substantial value made over to him by the other as a gift, unless he satisfies the court that he took no advantage of the donor, but that the gift was the independent and well-understood act of a man in a position to exercise a free judgment based on information as full as that of the donee. This burden is imposed upon one of the parties to certain well-known relations as soon as it appears that the relation existed and that he has obtained a substantial benefit from the other.”[26]
[26]Johnson v Buttress (1936) 56 CLR 113, 134 (per Dixon J).
A basis for a claim in undue influence is that there is a rebuttable presumption that influence of this nature and extent existed. “Parent and child” is a class giving rise to the rebuttable presumption, but precedents usually consider the parent influencing the child. The relationship of child and aged parents may be a class giving rise to the presumption, such as in Avon Finance Co Ltd v Bridger.[27] In that case, the presumption arose in respect of the influence of a chartered accountant in a good practice over his aged parents, in humble circumstances and inexperienced in business, in respect of a second mortgage over their home to secure the son’s borrowing.
[27][1985] 2 All ER 281.
Even if a recognised class does not arise, the antecedent relationship between the parties may give rise to the presumption (or alternatively actual undue influence).
Dixon J in Johnson v Buttress described the circumstances where a special relationship of influence may be found as follows:
“[O]ne party occupies or assumes towards another a position naturally involving an ascendancy or influence over the 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.”[28]
[28](1936) 56 CLR 113, 134-135.
Undue influence may arise from an antecedent relationship between the parties.[29] This is relevant here as, while there is a family relationship between the plaintiffs and the defendants, it is one where there had been a lengthy estrangement.
[29]Tate v Williamson (1866) LR 2 Ch App 55, 61.
While the plaintiffs are of senior age, there is no basis to conclude on the evidence that their mental capacity was weakened to such an extent to give rise to the presumption of undue influence. The plaintiffs may have been relatively unsophisticated, but they were experienced in running a business for many years. There was no evidence to support a finding of a reduction in or a lack of capacity, and the plaintiffs were able to provide detailed instructions to their lawyers in respect of the proceeding.
I am not satisfied that the nature of the relationship between the plaintiffs and the first defendant was such as to give rise to the presumption of undue influence. If I am wrong about that issue, the factors considered below in respect of whether there was actual undue influence are relevant to whether the presumption, if it did arise, was rebutted.
In the circumstances of this case, for the plaintiffs to establish actual undue influence, the plaintiffs must establish that the first defendant used “undue influence” on the plaintiffs to persuade them to enter into the agreement or transaction, including that the first defendant abused his position of influence over the plaintiffs.
Consistent with the factual findings made earlier in these reasons, there was an agreement between the plaintiffs and the defendants to transfer the property to the defendants on the basis that the defendants paid out the plaintiffs’ debts and assumed the responsibility for paying the mortgage on the Rochedale South Property and the ongoing liabilities, such as rates. Any equity in the Rochedale South Property in excess of the plaintiffs’ mortgage and rates arrears was a gift to the defendants.
There was also an agreement that the plaintiffs would rent the Rochedale South Property from the defendants at a rent less than market value.
The plaintiffs appear to contend that because the consideration for the Transfer was less than the full market value, this supports a conclusion of undue influence. This however does not factor in that, on the evidence, the second plaintiff approached the first defendant to purchase the Rochedale South Property. On the evidence, the defendants were doing everything they could to assist the plaintiffs hold off the ANZ Bank and avoid the ANZ Bank selling the property in a mortgagee sale.
The only way that the Rochedale South Property could be purchased by the defendants was for the amount paying out the plaintiffs’ debt owed to ANZ Bank and the outstanding rates. Otherwise, the Rochedale South Property would have been repossessed and sold by the ANZ Bank, or the plaintiffs would have had to sell the property themselves with all the additional costs of that process.
The agreement was in the interests of the plaintiffs who had a sentimental attachment to the Rochedale South Property and wanted it to remain in the family. The defendants taking on the Bluestone Home Loans mortgage meant that the plaintiffs could stay in the property paying rent rather than having to move out and find somewhere else to live at full market rent. The plaintiffs did not have an option of merely staying in the Rochdale South Property and paying their mortgage. That option was not available as evidenced by the ANZ Bank records.
The evidence does not support a conclusion that the first defendant used “undue influence” on the plaintiffs to persuade them to enter into the agreement or that the first defendant abused his position of influence over the plaintiffs. If anything, the plaintiffs, in particular the second plaintiff, used the plaintiffs’ precarious financial position to influence the defendants into taking on the Bluestone Home Loans mortgage at a higher interest rate. The only finance that the defendants could obtain was with a second-tier lender at high interest rates.
While the defendants may have got the benefit of the ownership of the Rochedale South Property which has subsequently increased in value, the onerous terms of the Bluestone Home Loans mortgage meant that the transaction was not without some risk to them. This was particularly so if there was an increase in interest rates.
Whether considering if there was actual undue influence or whether the presumption has been rebutted, it is relevant to consider whether the agreement was the result of the “free exercise of an independent will”.[30] In addition to the findings made earlier in these reasons, I make the following additional findings:
(a)The plaintiffs understood the agreement that was made with the defendants.
(b)The plaintiffs entered into the agreement as a result of a free exercise of their independent will.
(c)The agreement was a practical solution to the financial position in which the plaintiffs found themselves: it kept the ownership of the Rochedale South Property within the family and the plaintiffs could stay in the property by paying an agreed rent.
(d)If the presumption of undue influence does arise, the defendants have rebutted it. The agreement was entered into for “ordinary motives”.
[30]Bridgewater v Leahy (1998) 194 CLR 457 at 477.
Accordingly, the plaintiffs have not established undue influence by the defendants and the plaintiffs’ claim must fail.
Have the plaintiffs established unconscionable conduct by the defendants?
The plaintiffs also allege unconscionable conduct by the defendants. The plaintiffs contend that the defendants knew of and exploited the plaintiffs’ special disadvantage. Further, the plaintiffs submit that the Court is to consider the conduct of the defendants as the party who has retained a benefit from the arrangement with the plaintiffs, who had a special disadvantage.
The plaintiffs rely on “adverse circumstances” as the plaintiffs’ special disability. Reliance is placed on the comments of Fullagher J in Blomley v Ryan as follows:
“poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary.”[31]
[31](1956) 99 CLR 362, 405.
Reliance is also placed on the inequality of bargaining power between the plaintiffs and the first defendant in accordance with the principles considered in Commercial Bank of Australia Ltd v Amadio (Amadio).[32]
[32](1983) 151 CLR 447.
The plaintiffs point to the following factors as making out the claim of unconscionable conduct:
(a)In early 2019 the plaintiffs were in a state of extreme stress because of their financial troubles.
(b)The plaintiffs engaged a real estate agent on 29 January 2019 to the sell the Rochedale South Property.
(c)The second plaintiff informed the first defendant at the 2019 BBQ that the plaintiffs were in financial difficulty and “casually” raised whether the first defendant wanted to buy the Rochedale South Property.
(d)The plaintiffs had a sentimental attachment to the Rochedale South Property, with a strong preference to keep the property in the family.
(e)The first defendant took the opportunity to buy the Rochedale South Property seriously.
(f)The Equity Gift Letter was not genuine. It was was signed at the direction of the first defendant.[33]
[33]The plaintiffs make this submission although their evidence is that they cannot recall signing it but do not dispute it is their signatures.
(g)On 14 March 2019, three days after the Equity Gift Letter was signed, the first defendant arranged for the Rochedale South Property to be valued by Century 21.
(h)The first defendant sought finance for the plaintiffs’ debt only, knowing that this was below the true market value.
(i)The plaintiffs signed documents put to them by the first defendant without negotiation.
(j)During this period the real estate agent was no longer under contract to sell the property. This was likely to have been prior to the Westpac Bank finance application.
(k)The plaintiffs contend that after the 2019 BBQ but before the Transfer on 3 June 2019, the first defendant made promises to the plaintiffs to justify his purchase of the Rochedale South Property for the amount of the debt only.
(l)The first defendant promised the plaintiffs:
(i)to permit the plaintiffs to live rent free in the Rochedale South Property; and
(ii)to arrange a granny flat to accommodate the plaintiffs at such time as they became too elderly to continue to live at the Rochedale South Property.
(m)The defendants obtained finance from Bluestone Home Loans for the ANZ Bank debt amount and the overdue rates amount only.
(n)The agreement for the defendants to pay only the ANZ Bank debt and the overdue rates was made over the telephone.
(o)Following this agreement, the plaintiffs and the defendants were happy with the arrangement.
(p)Up until the presentation of the Lease, the plaintiffs were unaware that they were going to be paying rent.
(q)The plaintiffs signed the Lease because of the promises given by the first defendant.
(r)Further, the plaintiffs signed the Lease as they thought that was the “normal course of things” and they had no choice.
(s)The plaintiffs trusted the first defendant as a result of the familial relationship and the first defendant had an ascendance of power due to his knowledge of buying of property.
(t)The plaintiffs point to:
(i)the Equity Gift Letter;
(ii)the April 2019 Lease;
(iii)the first defendant almost immediately liaising with his accountant and mortgage broker;
(iv)the plaintiffs’ financial stress;
(v)the plaintiffs’ naivety and lack of sophistication;
(vi)the plaintiffs’ trust in the first defendant;
(vii)the plaintiffs not negotiating at any point; and
(viii)the impecuniosity of the plaintiffs in comparison to the defendants.
(u)The plaintiffs also rely on the statement by the first defendant that he would be fined $15,000 if he did not increase the rent as designed to cause the plaintiffs to sympathise with the first defendant.
Whilst the plaintiffs raise these contentions, the submissions on behalf of the plaintiffs do acknowledge a number of factors contrary to these contentions but submit that the Court should not accept them. These factors include:
(a)There is evidence that the first defendant held a genuine desire to assist his parents, the plaintiffs.
(b)The first defendant’s evidence was that the Equity Gift Letter was prepared because of concerns about the plaintiffs’ Centrelink payments.
(c)Bluestone Home Loans agreed to provide finance to the defendants at a higher interest rate and the defendants accepted this.
(d)The first defendant denies the promises were made but accepts that the application to Bluestone Home Loans was for the amount of the plaintiffs’ debt to ANZ Bank and the amount of the overdue rates.
(e)The first defendant’s explanation for the reference to a $15,000 fine if the rent was not increased was that it was on advice from his accountant.
The defendants contend that:
(a)There were no promises made by the defendants that the plaintiffs would have an interest by way of a right to reside in the Rochedale South Property or that the defendants would be responsible for the plaintiffs’ residential needs.
(b)The consideration for the Transfer was the defendants alleviating the plaintiffs’ mortgage and rates debts and that any equity over and above the amount of these debts was a gift.
(c)The plaintiffs resided in the Rochedale South Property and paid rent of $300 per week under a five year lease.
(d)The Lease expired in June 2024 and no new lease was entered into. The plaintiffs continue to pay $300 per week in rent, which is far below market rent.
(e)The defendants have been suffering financial hardship and a temporary reprieve was granted in respect of the defendants’ mortgage repayments.
(f)If the defendants are unable to meet the non-discounted repayments, the mortgagee has options available that will be detrimental to all parties.
(g)The defendants have been solely responsible for mortgage payments since June 2019.
(h)The plaintiffs assert equitable rights over the whole of the Rochedale South Property and do not take into account the amount contributed by the defendants to the retention of the Rochedale South Property and the ongoing maintenance and costs of the Rochedale South Property. The plaintiffs also do not take into account that there would be no property to which to assert rights over if the defendants had not stepped in.
(i)There was no evidence at trial and no inferences from behaviour to lead to a finding that the plaintiffs were at any special disadvantage in 2019.
(j)There is no evidence of an “informal common intention” nor a “failed joint endeavour” pursuant to which it was unconscionable for the defendants to retain the proceeds of the Rochedale South Property.
(k)There is no evidence of specific representations made by the defendants to the plaintiffs about the plaintiffs having an interest in the Rochedale South Property and no evidence of a common intention or common purpose.
(l)Further, there is no evidence of promises made by the defendants to the plaintiffs about rent, continued residence, or a granny flat.[34]
(m)There is nothing to suggest that, at the time of the Transfer and refinancing, the plaintiffs considered that they were going to have an ongoing interest in the Rochedale South Property.
(n)The arrangement was to get the plaintiffs out of the immediate and serious financial difficulty with the ANZ Bank.
(o)Consequently, there is no constructive trust.
(p)Even if the plaintiffs believed in 2019 that once their financial problems were over they could stay in the Rochedale South Property, that does not mean that the alleged promises were made or an agreement on those terms was reached.
(q)If the promises were not made, those promises could not be breached.
(r)The increases in interest rates, the cost of living pressure, and a jump in property prices could not be foreseen in 2019.
(s)There was no “cunning plan” in 2019 to obtain the capital growth in the value of the Rochedale South Property. The defendants were concerned about the plaintiffs and wanted to do what they could to help.
[34]Or no sufficiently compelling evidence on which the Court could be satisfied.
In response the defendants also raise the following additional features:
(a)The plaintiffs and the defendants have had a “fractured and fractious relationship”. There was a falling out in 2011 and an estrangement from 2016 to 2018. The circumstances of the falling out were such that it is unlikely that the defendants would have offered to have the plaintiffs come and live with them, even in a granny flat.
(b)There was a period of approximately 5 years when the plaintiffs and the defendants got along but the relationship was “fractious and fractured” again as a result of the first defendant doing something which was not what his parents wanted him to do.
(c)The estrangement came to an end in December 2018 when Renee Caldwell arranged a family BBQ. This was close to the start of relevant events in February 2019 and the 2019 BBQ when the Rochedale South Property was first discussed.
(d)The plaintiffs’ sale of the Rochedale South Property was not voluntary. The plaintiffs were forced by the ANZ Bank to take action. By the time of the 2019 BBQ the plaintiffs were in arrears for almost 12 months and the second plaintiff had been dealing extensively with a person from the ANZ Bank in relation to the arrears.
(e)The Rochedale South Property was never actually advertised with the real estate agent. A Form 6 was prepared by the real estate agent and the second plaintiff provided a copy to the ANZ Bank to obtain further forbearance from the ANZ Bank taking legal action.
(f)The second plaintiff says that she told the first defendant that the real estate agent had been appointed, but the evidence of the first defendant and the first plaintiff was that this did not occur.
(g)The second plaintiff’s evidence was that she did not tell the first defendant that the ANZ Bank was about to take the Rochedale South Property or that the plaintiffs were in financial difficulty, but the second plaintiff’s evidence was that she did tell the first defendant that the plaintiffs were on the pension.
(h)The defendants submit that this is unlikely, particularly where in the August Discussion and the November Discussion about the plaintiffs’ financial position there were very heated discussions consistent with it being very unlikely that the second plaintiff would volunteer information about the pension amounts.
(i)The conversation at the 2019 BBQ was short and undertaken in the absence of the second defendant. The first defendant did not have time to even think about whether he wanted to buy the Rochedale South Property, let alone whether he could afford to do so. Rather, the first defendant was shocked and concerned about the difficulties the plaintiffs were in.
(j)It was the plaintiffs who approached the first defendant about buying the Rochedale South Property. The first defendant did not know before then that the plaintiffs were considering selling or were being forced to sell.
(k)The plaintiffs could have surrendered the Rochedale South Property to the ANZ Bank or sold the Rochedale South Property in an arm’s length transaction. Both would have incurred costs of sale, and both would have resulted in the plaintiffs having to relocate.
(l)The defendants’ involvement saved legal fees, commission, and the plaintiffs having to look and find alternative accommodation at market rates, either as rent or mortgage repayments.
(m)The second plaintiff had extensive dealings with the ANZ Bank, including requesting the payout figure so she could give that information to the first defendant. This information was to assist the first defendant in seeking finance.
(n)In May 2019, the second plaintiff requested from the first defendant a copy of the transfer document. The transfer documents were provided to the second plaintiff, who provided them to the ANZ Bank.
(o)The ANZ Bank was requesting information to show that matters were progressing, and the second plaintiff provided the copy of the transfer documents for this purpose. This is despite the second plaintiff’s evidence in an earlier affidavit, the pleadings, and at trial that she had not seen the Transfer prior to 3 June 2019.
(p)The plaintiffs’ evidence was that they were happy and relieved when the first defendant obtained finance and they signed the Transfer.
(q)The plaintiffs’ evidence is that they do not recall signing the Equity Gift Letter, the April 2019 Lease, nor the Lease. They do admit that it is their signatures on the documents. There is no basis for an inference that it was less likely that the plaintiffs signed any document rather than the other.
(r)The plaintiffs wanted to keep the Rochedale South Property in the family and keep the ANZ Bank at bay. The first plaintiff’s evidence was he thought it was good that he was able to help the first defendant by selling the Rochedale South Property to him for less.
(s)The second plaintiff’s suggestion in evidence that she was expecting approximately $330,00 to be paid to her at settlement is “completely implausible”. Further, it is submitted that it is completely untrue. It is also inconsistent with the submissions being made that the plaintiffs knew that the defendants’ refinance was only the amount of the mortgage arears and the rates arrears.
(t)The second plaintiff had seen the Transfer and had, on multiple occasions, requested the loan payout figure from the ANZ Bank. Even to be able to refinance the mortgage debt to the ANZ Bank and the rates arrears, the defendants needed to borrow from a second-tier lender at high interest rates.
(u)The suggestion by the plaintiffs of “why would they pay rent when they could just continue to pay the mortgage” does not take into account the arrears. The plaintiffs could not keep up repayments in the lead up to 2019. There is no evidence to support the conclusion that they had any capacity to pay the arrears and/or the mortgage payments to the ANZ Bank. There is evidence that the ANZ Bank was threatening to sell the Rochedale South Property.
(v)The total amount refinanced by the defendants included some other liabilities that were required to be paid out as part of the loan agreement with Bluestone Home Loans.
(w)The second plaintiff in her dealings with the ANZ Bank made numerous attempts to hold off the bank, including sending the bank the real estate appointment document, sending the bank copies of the proposed transfer documents, and telling the bank that the first plaintiff was having cancer tests (which the first plaintiff denied). The second plaintiff also told the bank that their son was going to buy the Rochedale South Property and gave regular updates on progress. The second plaintiff previously denied some dealings with the bank, including in her earlier affidavit, but ultimately made some concessions when faced with the narrative in Exhibit 25, being the ANZ Bank’s records of the dealings.
(x)The second plaintiff was highly savvy in her dealings with the ANZ Bank and successfully kept the ANZ Bank at bay for 18 months.
(y)By the time the Transfer was signed on 3 June 2019, the second plaintiff had had the documents for approximately a month. The evidence is consistent with amendments being required to the transfer documents when the plaintiffs and the first defendant attended the solicitor’s office. This is consistent with the evidence of the first defendant and inconsistent with the evidence of the plaintiffs.
(z)The alleged promise in respect of no payment of rent was not asserted in the second plaintiff’s affidavit filed earlier in the proceedings.
The defendants also contend as follows:
(a)At [14] and [15] of the Statement of Claim, the plaintiffs allege that the promises of no payment of rent and residing in the granny flat were made at the 2019 BBQ. At trial this was not established. The evidence at trial, at best, was that they were promises made over the telephone at some point after the 2019 BBQ but before the Transfer. In fact, the first plaintiff’s evidence was it could have been after the Transfer was signed and the second plaintiff thought it was around the time the Transfer was signed. Again, there is a significant inconsistency between the pleaded case, earlier sworn evidence, and the evidence at trial.
(b)The first plaintiff made concessions that there was no agreement about not paying rent and also that the sale of the Rochedale South Property was something they had to do as the ANZ Bank was forcing them. This is a further inconsistency in the plaintiffs’ case.
(c)The inconsistency between the plaintiffs alleging they were promised rent free accommodation but signing two leases and paying rent for five years and their continual payment of rent. The first plaintiff also admitted the plaintiffs had an obligation to pay rent and did not refer to any expectation of living in the Rochedale South Property rent free.
(d)The second plaintiff says she was “disgusted” but does not actually recall signing the Lease. The second plaintiff says she did not want to raise it as the first defendant could get in a bad mood, but this does not satisfactorily explain the inconsistencies in the plaintiffs’ case.
(e)That the plaintiffs did whatever they were told to do is inconsistent with the second plaintiff’s dealings with the ANZ Bank and also the acceptance of the landlord/tenant relationship whereby the plaintiffs expected the defendants to be responsible for the upkeep of the property and pay rates and insurance.
The defendants deny there was any agreement that the plaintiffs would not have to pay rent. It is submitted this is consistent with the fact that the defendants could not afford the property without the rental income, even at the reduced amount that the plaintiffs were paying. The evidence is that the $300 being paid was significantly lower[35] than the estimates of market rent of $650 to $700[36] or $800[37] per week.
[35]See evidence of Rochelle Field.
[36]Evidence of Mandeep Singh as at 2024.
[37]Evidence of the first plaintiff, T1-25 L 9.
It is also relevant that the plaintiffs were receiving rental assistance from Centrelink throughout the lease period. It can be inferred that the plaintiffs applied to Centrelink for this benefit. This also has an effect on the relief if the plaintiffs are successful in respect of their claim.
Ultimately, the defendants contend that the evidence of the promises is crucial to the claim of unconscionable conduct. It is only if the promises were in fact made that consideration is to be given to the claim for equitable compensation.
The defendants submit that the evidence of the plaintiffs does not make out when the promises were made. Further, there were at least three opportunities when the promises were not referred to when it was logical to refer to them if they had been made. These include the August Discussion and the November Discussion when the plaintiffs’ financial position was discussed and there was no mention of the alleged promises not to pay rent or to build a granny flat. Further, when the plaintiffs received the 5 January Text and they did not respond “but you promised us”.
An agreement may be set aside by the Court on the ground that it is “unconscionable”.
In Amadio, Deane J articulated the circumstances which establish unconscionability as:
(a)“a party to a transaction was under a special disability in dealing with the other party with the consequence that there was an absence of any reasonable degree of equality between them”; and
(b)“that disability was sufficiently evident to the stronger party to make it prima facie unfair or ‘unconscientious’ that he procure, or accept, the weaker party’s assent to the impugned transaction in the circumstances in which he procured or accepted it”.[38]
[38]Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, 474.
Justice Deane continued:
“[w]here such circumstances are shown to have existed, an onus is cast upon the stronger party to show that the transaction was fair, just and reasonable.”[39]
[39]Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, 474.
Justice Mason framed unconscionability as arising where:
“a party makes unconscientious use of his superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage.”[40]
[40]Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, 461.
The central elements in the descriptions of unconscionability by Deane J and Mason J are:
(a)special disability or disadvantage resulting in inequality in bargaining power; and
(b)knowledge of this disability or disadvantage by the stronger party from which one can draw the conclusion that it was prima facie unconscientious to procure or accept assent by the weaker party.
The elements to be established to make out a claim for unconscionable conduct are:
(a)At the time of entering into the transaction, the weaker party must suffer from a special disadvantage in respect of the stronger party. This requires the person to be affected by some condition or circumstance that seriously compromises their capacity or opportunity to judge or protect their own interests in the transaction.
(b)The stronger party must know of the special disadvantage. Alternatively, the stronger party must know of facts that would raise that possibility in the mind of the reasonable person.
(c)The stronger party must take advantage of the opportunity presented by the special disadvantage.
(d)The taking of advantage must have been unconscientious in the circumstances.[41]
[41]Cheshire & Fifoot Law of Contract (LexisNexis, 11th ed, 2017) 829 [15.6].
The adverse circumstances which may constitute a “special disability” for the purposes of the Amadio test “may take a wide variety of forms and are not susceptible to being comprehensively catalogue[d]”,[42] however a common characteristic is that “they have the effect of placing one party at a serious disadvantage vis-à-vis the other”.[43]
[42]Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, 474 (per Deane J).
[43]Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, 475 (per Deane J) citing Blomley v Ryan (1956) 99 CLR 362, 405 (per Fullagar J).
Justice Mason clarified that the unconscionability principle does not apply to any circumstance where there is a difference in bargaining power, rather the disability or disadvantage must be “one which seriously affects the ability of the innocent party to make a judgment as to his own best interests”.[44]
[44]Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, 462.
Recognised disadvantages include “poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary”[45] as well as “illness, ignorance, inexperience, impaired faculties [and] financial need”.[46]
[45]Blomley v Ryan (1956) 99 CLR 362, 405 (per Fullagar J).
[46]Blomley v Ryan (1956) 99 CLR 362, 415 (per Kitto J).
Disadvantage may also arise from the dependence of one party on the other. For example, in Amadio the special disadvantage was the respondents’ reliance on their son.[47] In Louth v Diprose, emotional dependence was found to be a special disadvantage as it was found, on the facts, that the transaction was “explicable only on the footing that [the weaker party] was so emotionally dependent upon, and influenced by, the [stronger party] as to disregard entirely his own interests”.[48]
[47]Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, 464. Although ‘[t]heir reliance on their son was due in no small degree to their infirmities’ (age, little command of written English and lack of business experience).
[48](1992) 175 CLR 621, 626.
A transaction will only be unconscientious if “the party seeking to enforce the transaction has taken unfair advantage of his own superior bargaining power, or of the position of the disadvantage in which the other party was placed”.[49]
[49]Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, 459 (per Gibbs CJ).
The special disability or disadvantage cannot be considered in isolation but must be part of the broader analysis of whether the transaction was procured by the stronger party taking advantage of the special disability or disadvantage which rendered the weaker party unable to make decisions in its own best interests.[50]
[50]Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392, 425 [118].
In Amadio, Justice Mason formulated the test to encompass actual knowledge of the special disadvantage or where the stronger party is aware of facts which would alert a reasonable person to the possibility of there being a special disadvantage:
“if A having actual knowledge that B occupies a situation of special disadvantage in relation to an intended transaction, so that B cannot make a judgment as to what is in his own interests, takes unfair advantage of his (A's) superior bargaining power or position by entering into that transaction, his conduct in so doing is unconscionable. And if, instead of having actual knowledge of that situation, A is aware of the possibility that that situation may exist or is aware of facts that would raise that possibility in the mind of any reasonable person, the result will be the same”.[51] (emphasis added)
[51](1983) 151 CLR 447, 467.
The issue of “special disadvantage” is considered in all of the circumstances at the time the agreement was entered into. It includes consideration of whether the “weaker” party was able to make a judgment in their own best interests.
In circumstances such as the current case, a key consideration is whether no agreement would have been entered into had unconscionable advantage not been taken of the person’s disability.[52]
[52]J W Carter, Contract Law In Australia (LexisNexis, 7th ed, 2018) 524.
In light of the findings that I have made earlier in these reasons, particularly in respect of the alleged promise not being made, the plaintiffs have not established any unconscionable conduct by the defendants.
Further, I make the following additional findings:
(a)At the time of entering into the Transfer and/or the Lease or otherwise, the plaintiffs were not suffering from a special disadvantage in respect of the defendants.
(b)The plaintiffs were not affected by some condition or circumstance that seriously compromised their capacity or opportunity to judge or protect their own interests in respect of entering into the Transfer and/or the Lease.
(c)The defendants did not take advantage of any opportunity presented by some condition or circumstance of the plaintiffs.
(d)The defendants did not unconscientiously take advantage of any condition or circumstance of the plaintiffs.
Accordingly, the plaintiffs’ claim in respect of unconscionable conduct must fail.
If so, what relief is appropriate?
The plaintiffs have not established entitlement to any relief.
Accordingly, the appropriate order is that the plaintiffs’ claim is dismissed.
It is also appropriate to hear further from the parties as to the appropriate costs order.
Orders
The Court orders that:
1. The plaintiffs’ claim is dismissed.
2. Within 14 days the parties are to file and serve written submissions in respect of costs, of not more than 3 pages.
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