Irvine v Irvine

[2008] NSWSC 592

CITATION:	Irvine v Irvine [2008] NSWSC 592
HEARING DATE(S):	03/06/08, 04/06/08
JUDGMENT DATE :	16 June 2008
JURISDICTION:	Equity Division
JUDGMENT OF:	Barrett J
DECISION:	Order that defendants transfer house property to plaintiff and ancillary orders
CATCHWORDS:	CONTRACTS - unjust contracts - statutory remedies - sale by 90 year old woman of home and virtually only asset to nephew and his sons for $1.00 - oral promise by them to allow her to remain there for life - whether contract - whether unjust within Contracts Review Act 1980 s 7 - EQUITY - unconscionable dealing - clearly improvident transaction - whether position of special disadvantage
LEGISLATION CITED:	Contracts Review Act 1980. ss 4, 7, 9, 19 Real Property Act 1900
CATEGORY:	Principal judgment
CASES CITED:	Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457 Hancock v Wilson [1956] St R Qd 266 Kosmas v Cherote (unreported, NSWSC, 14 March 1996) Perpetual Trustee Co Ltd v Koshaba [2006] NSWCA 41 West v AGC (Advances) Ltd (1986) 5 NSWLR 610 Toscano v Holland Securities Pty Ltd (1985) 1 NSWLR 145
PARTIES:	Rosa Anne Irvine - Plaintiff Maxwell Charles James Irvine - First Defendant Peter Charles Irvine - Second Defendant Michael James Irvine - Third Defendant
FILE NUMBER(S):	SC 1516/07
COUNSEL:	Ms E A Cohen - Plaintiff Mr R J M Foord - Defendants
SOLICITORS:	DLA Phillips Fox - Plaintiff Rickards Whiteley - Defendants

- 4 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

MONDAY, 16 JUNE 2008

1516/07 ROSA ANNE IRVINE v MAXWELL CHARLES JAMES IRVINE & 2 ORS

JUDGMENT

1 The plaintiff, a lady of 93 years, seeks relief in respect of a transaction by which her home at Orange was transferred for a purely nominal consideration to the defendants who are her nephew and his two sons. The plaintiff has never married and has no children.

2 The plaintiff (whom I shall call “the aunt”) attacks the transfer on three alternative bases: first, under the Contracts Review Act 1980, second, on the basis of actual undue influence that she says was brought to bear upon her by the defendants; and, third, because of unconscionable conduct of the defendants towards her.

3 The aunt purchased the property in the 1970s after returning to Orange to live. It has been her home for more than 30 years. Her income is solely from an aged pension. She has very few assets.

4 In September 2005, the aunt executed a power of attorney appointing the first defendant (“nephew”) to be her attorney. She also made a will naming the nephew and his two sons as the only beneficiaries. A few months later, the nephew obtained from the National Australia Bank at Orange the certificate of title for the aunt’s property or, at least, arranged for the bank to send it to Baldock Stacy & Niven, solicitors of Orange. It may be accepted that he did this with the aunt’s concurrence. The nephew also arranged for a valuation of the house to be prepared by Mr Cullinane, a licensed valuer.

5 Mr Carpenter of Baldock Stacey & Niven was the nephew’s solicitor. He had acted for the nephew for a long time. They had been at school together. Mr Carpenter prepared a transfer between the aunt as transferor and the nephew and his sons (as tenants in common in equal shares) as transferees. The expressed consideration was the sum of one dollar. Mr Carpenter also prepared a statutory declaration of the kind required by the Stamp Duties Office from a transferor when property is transferred between related parties or otherwise than for full value. The instructions to take these steps were given to Mr Carpenter by the nephew. It is Mr Carpenter’s evidence that the nephew attended his office on 13 February 2006, following which he ordered a title search as a preliminary to preparing the documents I have mentioned. It appears that the nephew gave Mr Carpenter the certificate of title at that point.

6 Mr Carpenter said in cross-examination that he acted for the nephew and his sons alone in preparing the transfer and statutory declaration and that “it was always my intention that Miss Rosa Irvine receive independent advice on those documents”.

7 On 24 February 2006 (roughly two months before the aunt’s 91st birthday), the nephew took the aunt to Mr Carpenter’s office. Mr Carpenter, being the nephew’s solicitor, spoke to the nephew and told him that the aunt would have to be independently advised. He spoke only briefly, if at all, to the aunt. Mr Carpenter arranged for Ms Ringbauer, a solicitor with another firm in Orange, to come to the office. Ms Ringbauer saw the aunt alone at the premises of Mr Carpenter’s firm and spent about ten minutes with her. The aunt signed the transfer in the presence of Ms Ringbauer who witnessed the signature. The aunt also made the statutory declaration before Ms Ringbauer. Both are dated 24 February 2006. The transfer was thereafter stamped and registered. Baldock Stacey & Niven attended to stamping and registration. The stamp duty was paid out of a partnership bank account maintained by the nephew and his sons.

8 The aunt has continued to live in the house since it was transferred. The nephew has paid the rates and a number of other outgoings. The aunt has paid the electricity bills and some other occupancy expenses from her pension.

9 The aunt gave evidence that the possibility of transferring the house to the nephew and his sons was raised by the nephew shortly after the power of attorney and will were signed in September 2005; and that he said to her on the telephone one night words to the following effect:

“This is no use to me the way it is. I think I should have the place in my own name. I want you to give me the house. Why don’t you give the house to me now rather than have me wait until you die?”

10 The aunt accepts that she agreed with the nephew’s suggestion, telling him, “Yes, you can have the house”. She says that she cannot remember why she said this and that she did not really have time to think about it; also that she “didn’t really know what to do when Max had asked and did not think I should say ‘No’”.

11 The nephew’s evidence is that it was the aunt’s idea that the house should be transferred to him. He says that, after the will and power of attorney had been executed in September 2006, the aunt asked him whether the will could be contested. He replied “yes” and, according to him, the conversation continued thus:

“She said: ‘But if I put the house in yours, Michael’s and Peter’s names would they be able to contest it then?’
I said: ‘I don’t think so, but you’d have to get legal advice’.”

12 The identity of “they” came out in cross-examination of the nephew. He is on very bad terms with his sister, Elizabeth Dowling. She, as executrix of a will, took possession proceedings against the nephew who had been in occupation of a family farming property. It was she who caused him to leave the property. Elizabeth lives near the aunt’s house and had been a regular visitor, assisting the aunt in various ways, although it appears that she was not a regular visitor by the second half of 2005. In the course of cross-examination, the nephew gave explicit evidence of the intention behind the transfer of the aunt’s house to him and his sons:

“What it was aimed to do was keep her in her own home which it has done. However if it had gone [to] the other side I think they would have sold the house.”

13 When asked who “the other side” was, the nephew replied:

“My sister. That is what she was always afraid of.”

14 It is thus suggested by the nephew that the aunt was “always afraid of” the possibility that Elizabeth would sell the aunt’s house, so that the aunt would no longer have a home. There is a distinct air of unreality about this. Elizabeth had no means of selling the aunt’s house. It was not hers to sell. And if Elizabeth had persuaded the aunt to sell, the proceeds would not have accrued to Elizabeth. The true position is, to my mind, clear: the nephew himself feared that Elizabeth would persuade the aunt to transfer the house to Elizabeth; and that it would, in that way, have “gone to the other side”. It was a passing of the house “to the other side” that the nephew wished to prevent. In his mind, he had to get the house to stop Elizabeth getting it.

15 In 2002, the aunt had made a will leaving her estate to Elizabeth and Elizabeth’s husband. That will was revoked by the will of September 2005. The aunt’s evidence is that the nephew always spoke about Elizabeth in a disparaging way, particularly after the dispute about the farming property, and that “he had convinced me that I would not be seeing Elizabeth any more and I was convinced that I would be dependent upon him for assistance”. The aunt’s affidavit continues:

“As a result of his constant comments I thought I should change my will in his favour.”

16 The nephew says that it was the aunt alone who had the idea of changing her will and transferring the house to the nephew and his sons. But he does not, in his evidence, suggest any reason why she should have decided to do so – apart from the supposed fear (attributed by the nephew to the aunt) that Elizabeth would somehow sell the aunt’s house and thereby deprive her of her home. In particular, the nephew does not give evidence of any statement by the aunt of affection for the nephew and his sons or of desire to confer benefit on them. Nor does he give evidence of any reason why the aunt should not confer some benefit on Elizabeth through her will. Rather, he portrays the aunt as embarking on the transfer in case “they” successfully challenged the will made in favour of the nephew and his sons.

17 As I have said, the transfer was signed by the aunt on 24 February 2006. It is necessary to refer to certain events that occurred shortly before and shortly after that day, as well as the events of the day itself.

18 On 21 February 2006, the aunt telephoned Mr Blackwell, a solicitor then with Baldock Stacy & Niven (he moved to another firm shortly afterwards). It was he who had prepared the will and power of attorney signed by the aunt in September 2005. Mr Blackwell gives the following account of the telephone conversation:

‘The plaintiff said ‘I don’t remember signing anything that made Max my attorney’.
I said ‘you did appoint Max as your attorney’ and ‘Just as you make Max your Attorney you can withdraw or revoke the power of attorney’.
The plaintiff said ‘I want to withdraw the Power of Attorney to Max’ and ‘I don’t want Max to know as he can be overpowering’.”

19 Mr Blackwell called at the aunt’s home on 27 February 2006 to discuss the revocation of the power of attorney (this was three days after the aunt had signed the transfer). He took a form of revocation with him. However, the aunt told Mr Blackwell that she had changed her mind and did not wish to proceed with the revocation. According to Mr Blackwell’s evidence, he asked whether the nephew had made the aunt change her mind, to which she gave a negative answer, adding that the nephew did not know that she had arranged to see Mr Blackwell. Mr Blackwell’s affidavit continues:

“I said: ‘Are you sure you were not pressured by Max?’
She said: ‘No. He can be forceful but I do what I want.’”

20 Later in the conversation, the aunt told Mr Blackwell that she had transferred the house to the nephew. In response to questions, she said that she had done this voluntarily and had not been forced by the nephew; also that he had said that she could live there for the rest of her life. By that time, of course, the deed was done.

21 The aunt contacted Mr Blackwell again on 25 July 2006. According to him, their conversation included the following disjointed remarks by her:

“Max’s wife wants things”

“Max says he is my attorney”

“I have no document from a solicitor (that Max is my attorney)”

“If I tell Max he will make trouble”

“The house needs painting”

“I have given things to people. I gave a 200 year old case to Max”

“being 92 years old it is difficult to do things”

“I remember leaving my house to Max in my Will”

22 Mr Blackwell saw the aunt, by arrangement, on 8 August 2006.. He gave evidence that she said on that occasion:

“I have spoken with Max and he is much better. I believe that his solicitor has spoken firmly to him. . . . Max is to contact me next Friday. After I have spoken to Max I will advise you as to whether I want to revoke the power of attorney.”

23 Mr Blackwell says that the aunt telephoned him on 14 August 2006 and said:

“I have talked to Max. He is to talk to Mr Carpenter. . . . Don’t do anything about preparing to revoke the power of attorney to Max.”

24 I refer next to Ms Ringbauer’s evidence. She confirms that, on 24 February 2006, she went at short notice to the office of Baldock Stacy & Niven at the request of someone from that firm. She was about to leave her office for the day and, since the Baldock Stacy & Niven premises were on her way home, it suited her to go there virtually at once. She was given the transfer and statutory declaration when she arrived. Ms Ringbauer was introduced to the aunt. The two of them went to a conference room. No one else was present. The following points come out of Ms Ringbauer’s evidence:

(1) In response to a question from Ms Ringbauer, the aunt confirmed that the transferees were her nephew and his two sons.

(2) Ms Ringbauer asked why the aunt’s address was stated in the statutory declaration to be in one street but the property being transferred was described as being in another street, to which the aunt replied that the property was on a corner and had two street addresses (something that made sense to Ms Ringbauer from her own knowledge of the locality).

(3) The aunt expressed to Ms Ringbauer an opinion that the value in the valuation was “low” but said this “was done to keep the costs down”. This was a comment volunteered by the aunt.

(4) Ms Ringbauer knew that the property was the aunt’s home. She raised with the aunt the question where she would live if the house was transferred. The response, according to Ms Ringbauer, was to this effect:

“I am happy to transfer the property for no value even though there will be no money to me. . . . Max said he will not put me out until I die. I have been there since 1973. I will stay in the house.”

25 These matters were dealt with in a contemporaneous file note of Ms Ringbauer which she read on to the transcript as follows:

“HIS HONOUR: Q. I wonder if you wouldn't mind just reading out the note at annexure C starting with the first line, ‘Rosa Ann Irvine’?
A. ‘Rosa Ann Irvine, 70 Lords Place, corner Gardiner Road, Orange. Transfer to Max (nephew), Michael, Peter (sons), land at 115 Gardiner Road’, arrow ‘70 Lords Place, your house. Valuation, you feel is low to keep costs down. One residence like flat. Happy to transfer no value even though no money to you. He said he will not put you out until you die, been there since 7’, and that's a 3 but that's not visible in this note.

Q. Then there is 7?
A. I know my original note says 73.

HIS HONOUR: Q. Right?
A. ‘You will stay in house. Instruct to do transfer. Stat dec re value’.”

26 Ms Ringbauer accepted in cross-examination that she did not raise with the aunt the question whether she had received assurances from the nephew’s sons about the aunt’s continued occupation; nor was there reference to the implications of the transfer from the point of view of the aunt’s pension entitlement or what might happen if one or more of the transferees died, became bankrupt or took action to borrow on the security of his interest and then defaulted. Ms Ringbauer was not made aware of the fact that the property was very substantially the only asset of the aunt.

27 The aunt says in her first affidavit that “a lady gave me two forms to sign. … I don’t know what the papers were …”. She also says that she does not recall any conversation she had at that time. When cross-examined about her meeting with Ms Ringbauer, the aunt could recall signing documents but had virtually no other recollection. The aunt says in her second affidavit that she does not recall what was said in the conversation with Ms Ringbauer. Importantly, she also says that she did not know that Ms Ringbauer was a solicitor.

28 The first basis upon which the aunt attacks the transfer is centred on s 7 of the Contracts Review Act 1980. Section 7 of that Act is as follows:

“ 7 Principal relief
(1) Where the Court finds a contract or a provision of a contract to have been unjust in the circumstances relating to the contract at the time it was made, the Court may, if it considers it just to do so, and for the purpose of avoiding as far as practicable an unjust consequence or result, do any one or more of the following:
(a) it may decide to refuse to enforce any or all of the provisions of the contract,
(b) it may make an order declaring the contract void, in whole or in part,
(c) it may make an order varying, in whole or in part, any provision of the contract,
(d) it may, in relation to a land instrument, make an order for or with respect to requiring the execution of an instrument that:
(i) varies, or has the effect of varying, the provisions of the land instrument, or
(ii) terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the land instrument.


(2) Where the Court makes an order under subsection (1) (b) or (c), the declaration or variation shall have effect as from the time when the contract was made or (as to the whole or any part or parts of the contract) from some other time or times as specified in the order.

(3) The operation of this section is subject to the provisions of section 19.”

29 The word “unjust” is defined in s 4:

“’unjust’ includes unconscionable, harsh or oppressive, and ‘injustice’ shall be construed in a corresponding manner.”

30 Section 9(1) of that Act requires the court to “have regard to the public interest and to all the circumstances of the case”. Section 9 is as follows:

“ 9 Matters to be considered by Court
(1) In determining whether a contract or a provision of a contract is unjust in the circumstances relating to the contract at the time it was made, the Court shall have regard to the public interest and to all the circumstances of the case, including such consequences or results as those arising in the event of:
(a) compliance with any or all of the provisions of the contract, or
(b) non-compliance with, or contravention of, any or all of the provisions of the contract.

(2) Without in any way affecting the generality of subsection (1), the matters to which the Court shall have regard shall, to the extent that they are relevant to the circumstances, include the following:
(a) whether or not there was any material inequality in bargaining power between the parties to the contract,
(b) whether or not prior to or at the time the contract was made its provisions were the subject of negotiation,
(c) whether or not it was reasonably practicable for the party seeking relief under this Act to negotiate for the alteration of or to reject any of the provisions of the contract,
(d) whether or not any provisions of the contract impose conditions which are unreasonably difficult to comply with or not reasonably necessary for the protection of the legitimate interests of any party to the contract,
(e) whether or not:
(i) any party to the contract (other than a corporation) was not reasonably able to protect his or her interests, or
(ii) any person who represented any of the parties to the contract was not reasonably able to protect the interests of any party whom he or she represented,
because of his or her age or the state of his or her physical or mental capacity,
(f) the relative economic circumstances, educational background and literacy of:

(i) the parties to the contract (other than a corporation), and
(ii) any person who represented any of the parties to the contract,
(g) where the contract is wholly or partly in writing, the physical form of the contract, and the intelligibility of the language in which it is expressed,
(h) whether or not and when independent legal or other expert advice was obtained by the party seeking relief under this Act,
(i) the extent (if any) to which the provisions of the contract and their legal and practical effect were accurately explained by any person to the party seeking relief under this Act, and whether or not that party understood the provisions and their effect,
(j) whether any undue influence, unfair pressure or unfair tactics were exerted on or used against the party seeking relief under this Act:
(i) by any other party to the contract,
(ii) by any person acting or appearing or purporting to act for or on behalf of any other party to the contract, or
(iii) by any person to the knowledge (at the time the contract was made) of any other party to the contract or of any person acting or appearing or purporting to act for or on behalf of any other party to the contract,
(k) the conduct of the parties to the proceedings in relation to similar contracts or courses of dealing to which any of them has been a party, and
(l) the commercial or other setting, purpose and effect of the contract.


(3) For the purposes of subsection (2), a person shall be deemed to have represented a party to a contract if the person represented the party, or assisted the party to a significant degree, in negotiations prior to or at the time the contract was made.

(4) In determining whether a contract or a provision of a contract is unjust, the Court shall not have regard to any injustice arising from circumstances that were not reasonably foreseeable at the time the contract was made.

(5) In determining whether it is just to grant relief in respect of a contract or a provision of a contract that is found to be unjust, the Court may have regard to the conduct of the parties to the proceedings in relation to the performance of the contract since it was made.”

31 A threshold question here is whether the executed transfer document of 24 February 2006 is properly regarded as a “contract”. That term is not defined by the Contracts Review Act and must therefore be given its ordinary meaning, that is, a promise that the law will enforce. The Act does, however, contain an indication that a wider meaning is intended. Section 19 contemplates that a contract may be “constituted (in whole or in part)” by a “land instrument”, an expression defined by s 4(1) as including “an instrument that transfers land”. That has implications for cases such as the present where, apart from antecedent spoken words, the relevant “contract” is said to consist of an instrument of transfer made for purely nominal consideration.

32 The question whether an instrument of transfer expressed to be made for substantial consideration but in fact made for none was a “contract” for these purposes was canvassed by Simos J in Kosmas v Cherote (unreported, NSWSC, 14 March 1996). It is appropriate to quote at some length from his Honour’s judgment, noting the reliance on the earlier decision of McLelland J in Toscano v Holland Securities Pty Ltd (1985) 1 NSWLR 145:

"It was further submitted on behalf of the Plaintiff that the memorandum of transfer of the property constituted a contract between the Plaintiff and the Defendant which was unjust within the meaning of the Contracts Review Act and should be set aside pursuant to the provisions of that Act.

The word ‘contract’ is not defined in the Contracts Review Act and it is, perhaps, arguable that a gift, as such, is not a contract within the usual meaning of that term since it does not, prima facie, involve any notion of agreement or bargain and, of course, by definition, does not involve any consideration. Be that as it may, it seems clear enough that the Act treats a transfer which is registered under the Real Property Act as a contract, having regard to the provision in s19(1) of the Act which deals with ‘a contract so far as the contract is constituted by a land instrument that is registered under the Real Property Act 1900’. The full text of s19(1) is as follows:
‘19.(1) An order made under s7(1)(b) or s7(1)(c) has no effect in relation to a contract so far as the contract is constituted by a land instrument that is registered under the Real Property Act 1900. ‘

S4(1) of the Act contains the following definition of ‘land instrument’:
'”Land instrument” means an instrument that transfers title to land, creates an estate or interest in land or is a dealing within the meaning of the Real Property Act 1900.’

It also seems clear enough that the Act regards a land instrument as so defined even if not registered as a contract as appears from the provisions of s19(2) of the Act which is in the following terms:
‘19.(2) Where an order is made under s7(1)(b) or s7(1)(c) in relation to a contract constituted (in whole or in part) by a land instrument, not being a land instrument registered under the Real Property Act 1900, the regulations made under this Act may make provision for or with respect to prescribing the things that must be done before the order, so far as it relates to the land instrument, takes effect.’

The term ‘land instrument’ is also referred to in s7(1)(d) of the Act, being one of the provisions referred to in s19(1) and s19(2) of the Act.

It seems, therefore, that the Act contemplates that a transfer of title to land, whether or not registered under the provisions of the Real Property Act , is or, at least, may be a contract within the meaning of that Act. It follows that the better view is that the transfer in the present case, both before and after its registration under the Real Property Act , constitutes a contract within the meaning of the Contracts Review Act .

In this connection it may also be noted that, upon registration under the Real Property Act , a transfer has effect as a deed pursuant to the provisions of s36(11) of the Real Property Act which provides as follows:
‘36.(11) Upon registration, a dealing shall have the effect of a deed duly executed by the parties who signed it.’

A submission that the expression ‘contract’ in the Contracts Review Act did not include a deed was rejected by McLelland J (as he then was) in Toscano r Holland Securities Pty Ltd (1985) 1 NSWLR 145 at 149 where his Honour held as follows:
‘There is another submission relating to the application of the Contracts Review Act with which I should deal, namely the defendants' submission that the expression “contract” in the Act does not include a deed. There is in my view no warrant for any such limitation in the terms or the evident policy of the Act. The expression “contract” is apt to include both a simple contract and a contract under seal. It is conceivable that there may be deeds which are not contracts, but in my opinion any deed whereby an obligation is undertaken by a party thereto would be a 'contract' within the meaning of the Act. That the expression “contract” is not used in the Act in any restricted sense is illustrated by the circumstance that it is clearly intended to include a dealing within the meaning of the Real Property Act 1900: see s19, and the definition of “land instrument” in the Contracts Review Act , s4(1).’”

33 Although Simos J went on to rehearse the contrary argument, the fact that there was, in the present case, no submission that the Contracts Review Act cannot apply causes me to proceed on the basis that the position stated by Simos J in the above extract should be accepted – added to which, this is a case in which there appears on the face of the instrument nominal consideration legally sufficient for contract formation purposes: see, for example, Hancock v Wilson [1956] St R Qd 266 concerning the grant of an easement for one shilling.

34 The approach to be adopted in considering cases brought under s 7 of the Contracts Review Act was explained by Basten JA in Perpetual Trustee Co Ltd v Koshaba [2006] NSWCA 41. The first stage entails making findings of fact as to the circumstances revealed in the evidence. In Basten JA’s words “the second step in the process is a finding that a contract or a provision of a contract is ‘unjust’”. His Honour also notes that “here the Court is not exercising a discretionary power but making an evaluative judgment as to whether the facts as found satisfy a statutory description which in turn engages a discretionary power”. The third step involves the exercise of the power to grant relief which may, but need not, follow from a finding that the contract or a provision of the contract is unjust.

35 The first step thus involves findings based on the definition of “unjust” contained in s 4 of the Contracts Review Act, noting that “unjust” includes “unconscientious, harsh or oppressive” and is thus to be read expansively. As Basten JA put it (at [114], [115])”:

“ The term ‘unjust’ is defined in s 4 to include ‘unconscionable, harsh or oppressive’, a definition which is clearly intended to give the term an expansive meaning but which does little to define the boundaries. As was noted almost 20 years ago by McHugh JA in West v AGC (Advances) Ltd (1986) 5 NSWLR 610 at 621A, in language which has been repeated on many occasions thereafter:

The Contracts Review Act 1980 is revolutionary legislation whose evident purpose is to overcome the common law’s failure to provide a comprehensive doctrinal framework to deal with ‘unjust’ contracts .

That is not to say that the Court is launched on an uncharted sea with no navigational guides, but rather that constraints which would preclude intervention according to established principles of legal or equitable doctrine, may not be decisive under the Act. Thus, while equity provides relief against the unconscientious conduct of the defendant, the Act may permit relief in circumstances where the conscience of the defendant is not affected. Similarly, a contract, or a provision thereof, may be unjust in circumstances where there was no pre-existing duty owed by, say, a lender to a borrower to act in a particular way.”

36 It is submitted on behalf of the aunt that the transfer of her house was unjust in the circumstances and at the time it was made for a number of reasons. First, there is the obvious point that the aunt effectively gave away the house. The defendants acknowledge this but say that the aunt knew precisely what she was doing when she made the gift. I accept that the aunt knew what she was doing. But that of itself is of limited relevance.

37 The nephew and his sons also contend that the aunt had appropriate legal advice about the transfer. They say that she entered into a binding contract having been fully advised by legal practitioners as to the ramifications of her acts and choices; and further that such legal advice was facilitated and arranged by the defendants.

38 I do not accept these submissions about adequate legal advice. According to the nephew, he flagged to the aunt at an early stage the need for her to obtain legal advice. When she, according to him, asked whether “they” could contest the putting of the house into “yours, Michael’s and Peter’s names”, he said he did not think so “but you’d have to get legal advice”. But his concern then was not that the aunt should be advised about her own position and in order to protect her own interests. Rather, he was suggesting that she obtain advice about whether a transfer to the nephew and his sons would be vulnerable to challenge by Elizabeth. That, of course, was a matter entirely foreign to the aunt’s own interests and relevant solely to his interests and those of his sons.

39 The arrangements for the preparation of the transfer documents were made by the nephew alone with Mr Carpenter. The aunt gave no instruction to Mr Carpenter’s firm about this. After the documents had been prepared, she was taken by the nephew to the solicitors’ office. After perhaps exchanging a greeting briefly with Mr Carpenter, she found herself alone in a conference room with Ms Ringbauer whom she had never met before, did not know and had not asked to see. Indeed, the aunt said in evidence that she did not know that Ms Ringbauer was a solicitor. Nor is it suggested by the nephew or by Mr Carpenter that either of them explained that Ms Ringbauer was a solicitor or why the aunt was to see her. Mr Carpenter’s evidence is that it was to the nephew, not to the aunt, that he explained the perceived need for the aunt to be advised by a solicitor not connected with Mr Carpenter’s firm.

40 Nor is there anything in Mr Ringbauer’s evidence indicating that she told the aunt that she was a solicitor or that her function, as she perceived it, was to give the aunt advice about the aunt’s own position, consistently with the protection of the aunt’s own separate interests. The clear impression from the aunt’s evidence is that she regarded Ms Ringbauer as merely someone who was attending to the signing and witnessing of documents. Moreover, Ms Ringbauer was, in the aunt’s perception, someone before whom the documents were at be signed at once.

41 The course Ms Ringbauer took (see paragraphs [24] and [25] above) was unexceptionable, as far as it went. But she did not, it appears, satisfy herself on a matter fundamental to safeguarding of the aunt’s interests, namely, that the aunt fully understood that the oral promise to allow her to live in the house for life was legally unenforceable, with the result that the occupancy could be terminated at any time; also that the nephew and his sons might sell the property at will, that their interests might pass from them by operation of law or that any one of them might, despite the wishes of the other two, obtain the appointment of trustees for sale.

42 The involvement of Ms Ringbauer cannot, on any view, be seen as having put the aunt into a position where she had received adequate legal advice about the protection of her own interests. The aunt was not given the documents in advance to study at her leisure. Nor did she have an opportunity to consult a solicitor of her choosing at a time of her choosing. She was put by the nephew into a position where a person she apparently did not know was a solicitor spent ten minutes talking with her about the documents which she was then asked to sign on the spot.

43 The next ground on which the aunt submits the transfer is unjust is that, despite the agreement existing between the aunt and the nephew that the aunt could live at the property for the rest of her life, that continued occupation was vulnerable in numerous ways, including those just mentioned. There is substance in that submission. The aunt no doubt put great store by the oral and unenforceable assurance. But the fact is that she could have been dispossessed at any time at the whim of any one of the three transferees. And that is the position that still prevails.

44 A further basis of the aunt’s submissions is that the transfer made her “penniless”, that is, without any asset to offer as security should she wish to borrow money and without the option to prefer some other living arrangement such as a nursing home or other aged care facility. Again, there is substance in the aunt’s submissions.

45 There is evidence that the aunt considered mortgaging the house about 15 years ago to raise money to buy a new refrigerator and that the nephew helped her out financially on that occasion. With ownership of the house lost, she is deprived of any similar ability or opportunity for the future. She has also lost the ability to resort to an obvious source of funds to finance the acquisition of a retirement village unit, to pay a nursing home bond or to employ someone to provide full-time (or at least regular) home care. Counsel for the aunt submitted that the court is entitled to be aware that financial institutions are today willing to finance elderly and old people who are “assets rich but cash poor” by way of “reverse mortgage”, with loan funds being made available on the basis that principal and interest will be recouped only out of the proceeds of the sale of the family home after death or on earlier voluntary sale. I accept that submission. The aunt was, by the challenged transaction, deprived of the ability to resort to any such source of finance.

46 In her affidavit evidence, the aunt several times refers to the nephew’s capacity for being “forceful” and that she “felt that [she] couldn’t say ‘no’ to him”. The evidence of Mr Blackwell is that the aunt told him that the nephew could be “overpowering” and, with reference to her potential revocation of the power of attorney, “if I tell Max he will make trouble”. Mr Blackwell’s evidence shows that the aunt harboured these apprehensions and that, at the very least, she wished to avoid confrontation with the nephew. As her comments to Mr Blackwell at paragraph [23] above show, the aunt placed some reliance on an ability of Mr Carpenter to curb or control the nephew. Mr Blackwell is the only solicitor with whom the aunt herself initiated contact. She did so without the knowledge of the nephew. Mr Blackwell conceded in cross-examination that the aunt had effectively “adopted” him as her legal representative and it was to him that she chose to confide her thoughts about the power of attorney and her nephew.

47 I have already mentioned the aunt’s apprehension, engendered in her mind by the nephew, that “I would not be seeing Elizabeth any more and I was convinced that I would be dependent upon him for assistance”. This was a fear held by a lady aged more than 90 whose strength was failing and who was in declining health. Details of her health problems given in her affidavit are not challenged and need not be repeated – added to which, she walked with difficulty in the courtroom, was dependent on a walking frame and dozed from time to time. The nephew, his sister Elizabeth and their brother Robert were (and are) the aunt’s closest living relatives. She does not see much of Robert (indeed, she said in the September 2005 will that she did not wish him to attend her funeral). That leaves the nephew and Elizabeth as the persons to whom the aunt naturally looks for help and family support.

48 The nephew and Elizabeth are at loggerheads and have been on hostile terms for some years. It is not, I think, going too far to say that the nephew has been willing to use the aunt and her house as a weapon in his battle with his sister. He wanted the aunt to transfer her home to him and his sons because he feared that it might otherwise pass to Elizabeth and her husband. And he (along with his sons) gave, in return for the transfer, an oral assurance that the aunt could continue to live there for life, thereby representing himself to be, in that way and to that extent, someone who would look after the aunt for her remaining days.

49 She, for her part, was wary of the nephew. She knew he could be “forceful” and “overpowering”. She feared that, if the nephew knew that she was dealing with Mr Blackwell with a view to revocation of the power of attorney “he will make trouble”. But hoping that Mr Carpenter would be some sort of moderating influence on the nephew – and also because of a desire to avoid confrontation with the nephew – she let the power of attorney stand.

50 In the whole of the circumstances, the aunt stood, in relation to the nephew, in a position of disadvantage. She thought, at the time of the transfer, that he was the only one of nephews and niece who would look after her. There was therefore a dependence on her part – a dependence that she could not afford to risk by refusal or questioning that might bring out the “forceful” or “overpowering” side of his nature or cause him to “make trouble”.

51 I have said little, to this point, about the nephew’s sons (then aged 26 and 24 and both unmarried). There is not much to be said. They simply played the roles in which they were cast by their father. They may well have been party to the oral assurance about lifetime occupation. But their evidence made it clear that they gave very little thought indeed to what was occurring. Each referred in his affidavit to having signed the transfer. The second defendant said that he signed it at Mr Carpenter’s office. The third defendant said that he thought he was with his father and his brother when he signed the transfer. Yet, as the document itself shows, neither of them signed it; nor did the nephew. It was accepted by Mr Carpenter as the solicitor for the transferees. The sons, in my opinion, took little notice of what was happening. They did no more than act as their father asked, thereby becoming willing, if not entirely comprehending, parties to his design.

52 It is necessary now to deal with a submission made on behalf of the defendants in light of the fact that the aunt made no attempt to adduce evidence from her former solicitor, Mr Fardell, by whom the proceedings were commenced, or from her niece, Elizabeth, the nephew’s sister. Each was in court during the hearing (Mr Fardell for a short time only) and there can be no doubt that they were available as witnesses.

53 In relation to Elizabeth, the submission was as follows:

“The defendants are entitled to a number of inferences pursuant to Jones v Dunkel because of the absence of any evidence from Elizabeth Dowling. Nothing Elizabeth Dowling could say would have assisted the plaintiff
(i) in proving that the plaintiff acted because of undue influence from the first defendant or unconscionable conduct of his;
(ii) in proving that Elizabeth Dowling gave any assistance to the plaintiff at any relevant time;
(iii) in providing an explanation to the court as to why and how the proceedings came to be commenced;
(iv) in proving that Elizabeth Dowling did not lock the plaintiff out of her own garage and that the lock was changed for the reason advanced by the defendants;
(v) in proving the nature of the relationship between the plaintiff, Elizabeth Dowling and the first defendant;
(vi) in proving that the plaintiff was vulnerable because of some estrangement between Elizabeth Dowling and herself at the time of the transaction.”

54 I am not satisfied that absence of evidence from Elizabeth on any of these matters is a material consideration. The nephew himself made it clear that there was bad blood between him and Elizabeth and that he sought to become more meaningful than Elizabeth in his aunt’s life. The aunt does not contend to the contrary. In addition, she made it clear that Elizabeth was essentially off the scene when the events relevant to this case occurred. The matter of the garage lock is quite peripheral. The question whether someone – possibly Elizabeth – suggested that the aunt bring these proceedings or helped her to do so is of very limited relevance: the object of the proceedings is to benefit the aunt by redressing perceived wrong done to her. She will be the only beneficiary. It is to this essentially unimportant last point that any evidence of Mr Fardell might go.

55 Even if the failure of Elizabeth and Mr Fardell to give evidence should be taken as an indication that their evidence would not have been helpful to the aunt’s case, the inference would not be such as to weaken the central findings.

56 Reference is made in Basten JA’s judgment in Koshaba (above) to the judgment of McHugh JA in West v AGC (Advances) Ltd (1986) 5 NSWLR 610. Another passage from McHugh JA’s judgment is relevant when assessing whether matters for consideration under s 9 of the Contracts Review Act are present here:

“Under s 7(1) a contract may be unjust in the circumstances existing when it was made because of the way it operates in relation to the claimant or because of the way in which it was made or both. Thus a contractual provision may be unjust simply because it imposes an unreasonable burden on the claimant when it was not reasonably necessary for the protection of the legitimate interests of the party seeking to enforce the provision: cf s 9(2)(d). In other cases the contract may not be unjust per se but may be unjust because in the circumstances the claimant did not have the capacity or opportunity to make an informed or real choice as to whether he should enter into the contract: cf s 9(2)(a), 9(2)(e), 9(2)(f), 9(2)(g), 9(2)(i), 9(2)(j). More often, it will be a combination of the operation of the contract and the manner in which it was made that renders the contract or one of its provisions unjust in the circumstances. Thus a contract may be unjust under the Act because its terms, consequences or effects are unjust. This is substantive injustice. Or a contract may be unjust because of the unfairness of the methods used to make it. This is procedural injustice. Most unjust contracts will be the product of both procedural and substantive injustice.”

57 Turning to the specific matters mentioned in s 9(2) of the Contracts Review Act, I am of the opinion that

(a) the aunt had been led by the nephew to think that he was the only relative on whom she could rely for assistance in her remaining years, with the result that he assumed a position of ascendancy in her thinking destructive of equal bargaining power;
(b) by reason of that circumstance and her advanced age and declining health, coupled with her apprehensions about the nephew’s ability to be “forceful” and “overpowering” so that she “could not say ‘no’ to him”, the aunt was not reasonably able to protect her interests in the matter of the transfer of the house; and
(c) although the aunt received independent legal advice, it was not explained to her that the effect of the transfer, even allowing for the accompanying oral assurance, was to leave her with no legal right to occupy the house for the rest of her life or at all.

58 Having regard more broadly to the general criteria in s 9(1), read in the light of the s 4 definition of “unjust”, I am of the opinion that the transfer was oppressive because its effect was to take away from the aunt virtually her only asset, with nothing but the unenforceable oral assurance given in return, so that she was deprived of security of tenure and of the ability to resort to the asset to meet future financial needs.

59 In terms of s 7, therefore, I find that the transaction was unjust in the circumstances relating to it at the time it was made – both because of the manner which it was effected and because of its operation and effect upon the aunt. Furthermore, I consider it just to make an order which will remedy the unjust consequences of the transaction.

60 In order to remedy those unjust consequences, it is necessary that full and unencumbered title to the house be restored to the aunt. In view of s 19 and the fact that the transfer has been registered under the Real Property Act 1900, it is inappropriate to make an order under s 7(1)(b) declaring the transfer to be void. Rather, having regard to s 7(1)(d)(ii) and paragraph 1(a) of Schedule 1, there should be an order that the nephew and his sons execute and deliver to the aunt a transfer of the house property, together with ancillary orders.

61 Although these conclusions with respect to the Contracts Review Act cause these proceedings to be determined in favour of the aunt, I nevertheless proceed to consider briefly one of the alternative cases she advances, namely, the case based on principles of unconscionability or unconscientious conduct on the part of the nephew and his sons.

62 The situation with respect to the transfer was as described by Gaudron J, Gummow J and Kirby J in Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457 at [123]:

“[T]hey were meeting on unequal terms. [He] took advantage of this position to obtain a benefit through a grossly improvident transaction on the part of his [aunt].”

63 The description “grossly improvident” is particularly apt in this case. The aunt was a person who suffered special disadvantage. The transaction brought to her no benefit whatsoever and saw her left without her major – almost sole – asset.

64 Having regard to the whole of the matters I have canvassed and for reasons corresponding with those in Bridgewater v Leahy (above), it is unconscionable for the nephew and his sons to retain the benefit of the improvident transaction by being left as the owners of the property.

65 In order to counter that unconscionability and to do equity, an order for transfer of the house back to the aunt should be made. Principles of equity will justify that order even if the view be taken, contrary to the position I have adopted, that the statutory remedy is denied because the transfer was not a “contract” strictly so called.

66 The orders of the court are as follows:

1. Order that the defendants do, within seven days after receipt by their solicitors from the solicitors for the plaintiff of an instrument of transfer under the Real Property Act 1900 between the defendants as transferors and the plaintiff as transferee and relating to the whole of the land in Folio Identifier 5/22778 (Lot 5 Deposited Plan 22778 City and Parish of Orange County of Bathurst), duly execute that instrument of transfer and deliver or cause it to be delivered to the solicitors for the plaintiff together with the certificate of title for that land.
2. Order that the defendants do and cause to be done such things as are reasonably required by the plaintiff to obtain stamping and registration of the said instrument of transfer including but not limited to
(a) paying for any valuation that the plaintiff sees fit to obtain from a licensed valuer for stamp duty purposes;
(b) making any statutory declaration reasonably required to be made in order to facilitate stamping of the instrument of transfer; and
(c) paying stamp duty, registration fees and such other costs (excluding lawyer’s fees) as are reasonably and directly necessary to cause the instrument of transfer to be stamped and registered.
3. Order that the defendants and each of them, by themselves and their agents, be restrained from dealing with the said land or any undivided interest therein in any way whatsoever except in conformity with these orders.
4. Grant liberty to apply in relation to any matter relevant to the implementation and effectuation of these orders.
5. Order that the defendants pay the plaintiff’s costs of the proceedings.
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