Hillston v Bar-Mordecai - [2003] NSWSC 89

CITATION: HILLSTON v BAR-MORDECAI [2003] NSWSC 89

HEARING DATE(S): 9-12, 16-19, 23-24 & 30 September 2002;
1-5, 9-11, 14-18, 21-25 and 28-31 October 2002;
18-22, 25-29 November 2002.

JUDGMENT DATE:
28 February 2003

JURISDICTION:
EQUITY

JUDGMENT OF: Bryson J at 1

DECISION: Gifts set aside. Family Provision claim and claim to remove Administrator dismissed. see [274] - [276]

CATCHWORDS: FRAUD MISREPRESENTATION AND UNDUE INFLUENCE - Undue Influence - medical attendant - de facto relationship- F aged 72 and M aged 36 lived in shared households from about 1983 until she died in 1994 aged 83 M was medical practitioner and GP attending F throughout- treated her, referred her to Specialists and allowed access to medications- she gave him sums of money gifts, surgery, property by series of transactions including sale without payment of expressed consideration and later discharge of her mortgage, she paid purchase price of home purchased in his name as to one-third - no independent advice - no rebuttal of presumption of undue influence - M claimed (1) de facto relationship and (2) this answered the claim of undue influence. On large body of evidence of behaviour of M & F and knowledge and perceptions of relatives, friends and associates, held that there was no de facto relationship- further that relationship of H & W if it existed did not rebut presumption of undue influence. - FAMILY PROVISION - Claim by M failed- prescribed period exceeded and no cause shown to extend- not eligible person- on merits no prospect of success. - WILLS PROBATE AND ADMINISTRATION - Claim to remove administrator based on alleged false evidence relied on in proceedings in which administration granted- dismissed.

LEGISLATION CITED: Family Provision Act 1982
Wills Probate and Administration Act 1898
Property (Relationships) Act 1984

CASES CITED: Plunkett v. Bull (1915) 19 CLR 544
Johnson v. Buttress (1936) 56 CLR 113
Watkins v. Combes (1922) 30 CLR 180
Poosathurdi v. Kanappa Chettiar [1919] LR 47 IA 1
Linderstam v. Barnett (1915) 19 CLR 528 at
Haskew v. Equity Trustees Executors and Agency Co. Ltd (1919) 27 CLR 231
Hartigan v. International Society for Krishna Consciousness Inc [2002] NSWSC 810
Mitchell v. Homfray (1881) 8 QBD 587
Dent v. Bennett (1839) 4 My.&Cr.269
Gibson v. Russell (1843) 2 Y&CCC 104, 63 ER 46
Blackie v. Clark (1852) 15 Beav. 594
Ahearne v. Hogan (1844) Drury temp. Sug. 310
Billage v. Southee (1852) 9 Hare 532
Quek v. Beggs (1990) 5 BPR 11761
Yerkey v. Jones (1939) 63 CLR 649
Garcia v. National Australia Bank Ltd (1998) 194 CLR 395
Jenyns v. The Public Curator (Queensland) (1953) 90 CLR 113
Royal Bank of Scotland v. Etridge (No.2) [2001] 3 WLR 1021
Lewis v. Lewis [2001] NSWSC 321

PARTIES :
Allan David James Hillston - Plaintiff in 3240/98 and Defendant in 1709/99 and 3039/02
Michael Jacob Bar-Mordecai - Defendant in 3240/98 and Plaintiff in 1709/99 and 3039/02

FILE NUMBER(S): SC 3240/98; 1707/99 and 3039/02

COUNSEL: J. Whittle SC & B. Burke for A. Hillston
M.…

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.

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Details

Case: [2003] NSWSC 89
Decision Date: 28 February 2003

CaseChat Overview and Summary

The parties to this case were Hillston (F) and Bar-Mordecai (M). The dispute involved claims of undue influence, family provision, and the removal of an administrator. The matter was heard in the Supreme Court. F and M lived in a shared household from approximately 1983 until F's death in 1994. M, a medical practitioner, provided medical care to F throughout her life. F made various financial transactions to M, including the purchase of a home, without receiving independent legal advice. M argued that a de facto relationship existed, which would rebut the presumption of undue influence. M also sought family provision and attempted to remove the administrator.

The primary legal issues were whether M's conduct constituted undue influence, whether the relationship between F and M constituted a de facto relationship, and if so, whether it rebutted the presumption of undue influence. Additionally, the court had to determine if M was eligible for family provision and if the claim to remove the administrator was valid. The court examined the evidence related to the relationship between F and M, including their behaviour, and the knowledge and perceptions of relatives, friends, and associates. The court also assessed the merits of M's family provision claim and the validity of the claim to remove the administrator.

The court held that there was no de facto relationship between F and M. It further found that even if such a relationship existed, it would not rebut the presumption of undue influence. The court dismissed M's family provision claim, stating that the prescribed period had expired, and no cause was shown to extend it. M was deemed not to be an eligible person under the relevant legislation. Additionally, the claim to remove the administrator was dismissed as it was based on alleged false evidence. The court concluded that there was no merit in M's claims.

As a result of the court's decision, M's claims for undue influence, family provision, and the removal of the administrator were dismissed. The administrator remained in place, and M was not entitled to any family provision. The court's ruling effectively concluded the litigation between the parties, affirming the validity of the transactions between F and M and the administrator's role in the estate.

Orders