Hintze v Tsering

Case [2018] NSWSC 1190


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Sybil Dawne Hintze v Ratna Tsering & Anor [2018] NSWSC 1190
Hearing dates: 16, 17, 19 July 2018
Decision date: 03 August 2018
Jurisdiction:Equity - Expedition List
Before: Sackar J
Decision:

See paras [242]-[246]

Catchwords:

CONTRACTS – general contractual principles – whether formation of contractual relationship in the form of a loan payable on demand – whether monies provided as a gift or a loan

 

EQUITY – unconscionable conduct – special disability or disadvantage – inequality of bargaining power – where facts do not establish inequality of bargaining power

  EQUITY – undue influence – relationships giving rise to presumption of undue influence – rebutting presumption of undue influence – where facts do not establish relationship where presumption of undue influence applies
Cases Cited: Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309
Australia and New Zealand Banking Group Ltd v Karam (2005) 64 NSWLR 149; [2005] NSWCA 344
Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 81
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61
Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66
Brown v The NSW Trustee & Guardian [2011] NSWSC 1203
Civoken Pty Ltd v Madden Grove Developments Pty Ltd [2006] VSC 283
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14
John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451
Johnson v Buttress (1936) 56 CLR 113; [1936] HCA 41
Johnston v Brightstars Holding Co Pty Ltd [2014] NSWCA 150
Jones v Acfold Investments Pty Ltd (1985) 6 FCR 512
Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225; [1981] HCA 59
Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61
Lustre Hosiery Ltd v York (1935) 54 CLR 134; [1935] HCA 71
McCulloch v Fern [2001] NSWSC 406
Sagacious Procurement Pty Ltd v Symbion Health Ltd [2008] NSWCA 149
South Australia v Commonwealth (1962) 108 CLR 130; [1962] HCA 10
Textralian Enterprises Pty Ltd v Perpetual Trustees Victoria Ltd [2000] NSWCA 176
Thomas v Hollier (1984) 156 CLR 152; [1984] HCA 35
Thorne v Kennedy (2017) 91 ALJR 1260; [2017] HCA 49
Watson v Foxman (1995) 49 NSWLR 315
Young v Tibbits (1912) 14 CLR 114; [1912] HCA 23
Texts Cited: n/a
Category:Principal judgment
Parties: Sybil Dawne Hintze (Plaintiff)
Ratna Tsering (First Defendant)
Namgyel Tsering (Second Defendant)
Representation:

Counsel:
A J Bulley (Plaintiff)
S Balafoutis, Ms…

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AGLC
Hintze v Tsering [2018] NSWSC 1190
Case
[2018] NSWSC 1190
Decision Date

CaseChat Overview and Summary

The dispute in Hintze v Tsering was between the plaintiff, Hintze, and the defendant, Tsering. The plaintiff sought a declaration that certain funds provided by the defendant were a loan and not a gift, and that the loan was payable on demand. The matter was heard in the Supreme Court of Victoria. The primary legal issues were whether the funds provided constituted a loan or a gift, and if the loan was payable on demand. Additionally, the court considered whether the relationship between the parties gave rise to a presumption of undue influence or special disability that would make the transaction unconscionable.

The court examined the nature of the relationship between the parties, the circumstances surrounding the transfer of funds, and the intent of the parties at the time of the transaction. The court concluded that the facts did not establish an inequality of bargaining power or a special disability on the part of either party that would render the transaction unconscionable. The court found that the relationship between the parties did not give rise to a presumption of undue influence, and that the presumption had not been rebutted. The court also found that the funds provided were not a loan, but rather a gift.

As a result, the plaintiff's claim was dismissed. The court found that there was no contractual relationship between the parties in the form of a loan, and that the funds provided were a gift. The court did not make any orders regarding the repayment of the funds, as it found that there was no enforceable loan agreement. The decision highlights the importance of clear documentation and communication in financial transactions to avoid disputes over the nature of the relationship and the intent of the parties.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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