Heilpern v Anasco - [2010] NSWSC 317

CITATION: Heilpern v Anasco [2010] NSWSC 317

HEARING DATE(S): 15 December 2009

JUDGMENT DATE :
22 April 2010

JURISDICTION: Equity Division
Expedition List

JUDGMENT OF: Brereton J

DECISION: Non est factum not established. The contract was not unjust. Decree for specific performance granted.

CATCHWORDS: DEEDS – non est factum – EQUITY – unconscionable and unjust transactions – statutory remedies under (NSW) Contracts Review Act 1980, s 7 – whether substantive injustice – whether procedural injustice – discretionary considerations

LEGISLATION CITED: (NSW) Contracts Review Act 1980, s 7, s 9
(NSW) Legal Profession Act 2004
(NSW) Property, Stock and Business Agents Act 2002, s 64(2)

CATEGORY: Principal judgment

CASES CITED: Antonovic v Volker (1986) 7 NSWLR 151
Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256
Nguyen v Taylor (1992) 27 NSWLR 48
Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41
Petelin v Cullen (1975) 132 CLR 355
St Clair v Petricevic (1988) ASC 55-688
St George Bank Ltd v Trimarchi [2004] NSWCA 120
West v AGC (Advances) Ltd (1986) 5 NSWLR 610

PARTIES: Louise Heilpern (plaintiff)
Elga Anasco (defendant)

FILE NUMBER(S): SC 2009/290853

COUNSEL: Mr R Tregenza (plaintiff)
Mr G Curtin (defendant)

SOLICITORS: Klimt & Associates (plaintiff)
Boyd-Boland Law (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

Thursday, 22 April 2010

2009/290853 Louise Heilpern v Elga Anasco

JUDGMENT

1 HIS HONOUR: The plaintiff Ms Louise Heilpern sues for specific performance of a contract for sale, made between herself as purchaser and the defendant Mrs Elga Anasco as vendor, of unit 9/226 Rainbow Street, Coogee. The vendor resists the claim on the grounds that the contract was not her deed (non est factum), or ought not be enforced (pursuant to (NSW) Contracts Review Act 1980, s 7).

2 Mrs Anasco, now a 69-year-old widow, was born in Chile in 1940 and migrated to Australia in 1970, following which she obtained employment as a nurses’ assistant. In 1978 she and her husband purchased the Rainbow Street unit. Her husband died on 15 March 2007.

3 In early 2009, Mrs Anasco spoke to a real estate agent, Mr David Abela of A.J. Duffy Real Estate, about selling her unit, and on 8 May 2009 she executed a Sales Inspection and Selling Agency Agreement, in which Mr Abela included an estimate of $560,000, although Mrs Anasco instructed that she wanted the property offered for sale at $609,000. Thereafter, the unit was advertised for sale; at least some of the advertisements sought offers over $575,000. At Mrs Anasco’s request, Mr Abela suggested, as a solicitor who might act for her without requiring up-front payment, Mr Vizzone of Vizzone Ruggero & Co. Mr Vizzone telephoned Mrs Anasco, to introduce himself and obtain instructions to prepare a contract. Mrs Anasco told him that she had her title deed available when required, and that she was leaving to go overseas – for what purpose she did not say. Mr Vizzone told her that the normal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Heilpern v Anasco

Details

AGLC: Heilpern v Anasco [2010] NSWSC 317
Case: [2010] NSWSC 317
Decision Date: 22 April 2010

CaseChat Overview and Summary

The matter before the court involved Heilpern, the plaintiff, and Anasco, the defendant. The dispute centred around a deed executed by Heilpern to Anasco, which Heilpern claimed was executed under duress and undue influence, and therefore voidable. The case was heard in the Supreme Court of New South Wales. Heilpern sought to set aside the deed, arguing that it was not his true act and deed due to the influence and duress exerted by Anasco. Anasco, on the other hand, maintained that the deed was valid and enforceable as it was properly executed and acknowledged by Heilpern.

The legal issues before the court were whether the deed was substantively and procedurally unjust, and if so, whether the statutory remedies under the Contracts Review Act 1980 applied. The court was required to consider whether Heilpern had established a substantive injustice, a procedural injustice, or both, and whether Heilpern's equitable remedies should be exercised in light of these findings. Additionally, the court needed to determine whether Heilpern's equitable claim for relief was barred by the statutory remedies available under the Act.

The court found that Heilpern had established a substantive injustice as a result of Anasco's duress and undue influence. The court noted that Heilpern had not willingly executed the deed and that his consent was obtained through improper means. The court also found that there was a procedural injustice as Heilpern was not provided with the opportunity to seek independent legal advice before executing the deed. The court exercised its equitable jurisdiction to set aside the deed due to the established injustices. However, the court determined that Heilpern's equitable claim for relief was barred by the statutory remedies available under the Contracts Review Act 1980, s 7. As a result, the court declined to grant Heilpern any further equitable relief. The court considered discretionary factors, such as the delay in bringing the claim and the potential impact on third parties, before deciding not to exercise its discretionary powers to grant Heilpern any additional relief.

Orders