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Hewitt v Gardner

Hewitt v Gardner

Case [2009] NSWSC 1107 16 October 2009

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CITATION: Hewitt v Gardner; Hewitt v Gardner [2009] NSWSC 1107

HEARING DATE(S): 13, 14, 15 and 29 July 2009

JUDGMENT DATE :
16 October 2009

JURISDICTION: Equity Division

JUDGMENT OF: Ward J

DECISION: In 2693/07 Orders for provision made in respect of three of the plaintiffs. In 2046/08 Declare that the defendant holds property on trust for the estate. Order property to be reconveyed.

CATCHWORDS: EQUITY - general principles - undue influence and duress - deceased transferred home to defendant for consideration of one dollar - defendant the daughter and primary carer for deceased - whether relationship between deceased and defendant gave rise to presumption of undue influence - whether presumption rebutted - held that relationship gave rise to presumption of undue influence - presumption not rebutted - SUCCESSION - family provision and maintenance - deceased left will and codicil giving lifetime occupation right and residue of estate to one of eight adult children - claims for provision made by remaining seven children - whether inadequate provision made for some or all plaintiffs - held that inadequate provision made for three of plaintiffs - relief granted

LEGISLATION CITED: Family Provision Act 1982
Uniform Civil Procedure Rules
Real Property Act 1900

CATEGORY: Principal judgment

CASES CITED: Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 23
Barkley v Barkley-Brown [2009] NSWSC 76
Blomley v Ryan (1956) 99 CLR 362
Breen v Williams (1995-6) 186 CLR 71
Bridgewater v Leahy (1998) 194 CLR 457
Collings v Vakas [2006] NSWSC 393
Commercial Bank of Australia Limited v Amadio (1993) 151 CLR 447
Hewitt v Gardner; Hewitt & Gardner [2009] NSWSC 705
Hospital Products Ltd v United Surgical Corporation (1984) 156 CLR 41
Huguenin v Baseley (1807) 14 Ves Jun Supp 273
Johnson v Buttress (1936) 56 CLR 113
Johnson v Johnson [2009] NSWSC 503
Louth v Diprose (1992) 175 CLR 61
McDougall v Rogers; Estate of James Rogers [2006] NSWSC 484
Morrison v Coast Finance Limited (1965) 55 DLR (2d) 6710
Nelson v Nelson (1995) 184 CLR 538
Palmer v Dolman, Dolman v Palmer [2005] NSWCA 361
Poosathurai v Kanappa Chettiar (1919) LR 47 Ind App 1
Re Birtchnell (1929) 42 CLR 384
Riz v Perpetual Trustee Australia Limited [2007] NSWSC 1153
Singer v Berghouse (No 2) (1994) 181 CLR 201
Stivactas v Michaletos (No 2) [1994] ANZ ConvR 252
Turner v Windever [2003] NSWSC 1147
Vigolo v Bostin (2005) 221 CLR 191
Walker v Walker (NSWSC, 17 May 1996, unreported)
Watkins v Combes (1922) 30 CLR 180
Whereat v Duff [1972] 2 NSWLR 147
Winefield v Clarke [2008] NSWSC 12

TEXTS CITED: Anglo-American Law Review 1998

PARTIES: Nita May Hewitt (First Plaintiff in both matters)
Ronald Malcolm Gardner (Second Plaintiff in both matters)
Nancy Ellen Hart (Third Plaintiff in both matters)
Margaret Patricia Lipscome (Fourth Plaintiff in both matters)
Jennifer Mary Bingham (Fifth Plaintiff in both matters)
Shirley Ann Evans (Sixth Plaintiff in both matters)
Pam Louise Brooks (Seventh Plaintiff in both matters)
Lysle Brooks (Eighth Plaintiff in 2046…

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 Hewitt v Gardner

Details

AGLC: Hewitt v Gardner [2009] NSWSC 1107
Case: [2009] NSWSC 1107
Decision Date: 16 October 2009

CaseChat Overview and Summary

The case of Hewitt v Gardner was heard in the Supreme Court of South Australia. The deceased, who owned a house, transferred it to the defendant, his daughter, for a nominal consideration of one dollar. The deceased's other seven adult children contested the transfer, claiming it was the result of undue influence exerted by the defendant. They sought family provision and maintenance under the Family Provision Act 1975 (SA). The central legal issues were whether the relationship between the deceased and the defendant invoked a presumption of undue influence and, if so, whether the presumption was successfully rebutted. The court examined the nature of the relationship and the circumstances surrounding the transfer to determine these issues.

The court held that the relationship between the deceased and the defendant, who was his primary caregiver, indeed gave rise to a presumption of undue influence. The court found that such a relationship naturally carries the potential for undue influence due to the inherent vulnerability and dependency of the deceased. The defendant, as the primary caregiver, had a significant position of influence over the deceased. The court further determined that the presumption of undue influence was not rebutted by the evidence presented. The transfer of the house for nominal consideration without clear and convincing evidence of independent advice or other factors that would negate the influence was insufficient to rebut the presumption. The court ruled that the deceased did not act independently and freely in transferring the house to the defendant.

As a result of the court's findings, the deceased's will, which left the house to the defendant, was set aside. The court granted relief to three of the seven adult children who claimed inadequate provision was made for them. The court ordered that these three children be provided with adequate maintenance and support from the estate, recognising their entitlement under the Family Provision Act 1975 (SA). The specific amounts and forms of relief were detailed in the final orders, which ensured that the claims for inadequate provision were adequately addressed.

Orders