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

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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…

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 Irvine v Irvine

Details

AGLC: Irvine v Irvine [2008] NSWSC 592
Case: [2008] NSWSC 592
Decision Date: 16 June 2008

CaseChat Overview and Summary

Irvine v Irvine was a dispute between an elderly woman and her nephew and his sons, concerning the sale of the woman's home and the alleged promise made by the nephew and his sons to allow her to remain in the property for the rest of her life. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether there was a contract between the parties, and if so, whether it was unjust and therefore void under section 7 of the Contracts Review Act 1980. Additionally, the court had to consider whether the transaction amounted to unconscionable dealing or was a clearly improvident transaction, particularly given the woman's age and the special disadvantage she was in at the time of the agreement.

The court began by examining the evidence regarding the oral promise made by the nephew and his sons. It was found that there was indeed an oral promise, which was considered part of the agreement. The court then turned to the issue of whether the contract was unjust. It was noted that the transaction was clearly improvident, given the substantial disparity between the purchase price and the property's value. The court also recognised the woman's position of special disadvantage, due to her age and the close familial relationship with the purchaser. Consequently, the court concluded that the contract was unjust and void under the Contracts Review Act 1980. Furthermore, the court found that the transaction also amounted to unconscionable dealing, reinforcing its decision.

In conclusion, the Supreme Court of New South Wales found that the contract between the parties was unjust and void. The court also determined that the transaction constituted unconscionable dealing. As a result, the court ordered that the sale of the property be set aside, and that the woman be allowed to remain in the property for the rest of her life, as per the oral promise made by the nephew and his sons.

Orders