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Iskandar v Mahbur

Iskandar v Mahbur

Case [2013] NSWSC 239 26 March 2013

Undue Influence

Unconscionable Conduct

Misrepresentation

Contract Law

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Supreme Court

New South Wales

Medium Neutral Citation: Iskandar v Mahbur & Ors [2013] NSWSC 239
Hearing dates: 11, 12, 13, 14, 15, 18 and 27 February 2013; 6 March 2013
Decision date: 26 March 2013
Jurisdiction: Equity Division
Before: Bergin CJ in Eq
Decision:
Amended Statement of Claim dismissed

Catchwords: [DECEIT] - where plaintiff claims he was deceived into believing that it was necessary to grant a Power of Attorney to his brother to implement his instructions as to transaction in relation to his Taxi whilst he was incarcerated - where claim that brother and others had no intention of implementing the plaintiff's instructions but rather intended to steal the plaintiff's money.
[UNDUE INFLUENCE] - where plaintiff incarcerated for lengthy term of imprisonment - whether relationship of ascendency over the plaintiff - whether plaintiff unable to make worthwhile judgment in relation to the grant of the Power of Attorney - whether Power of Attorney procured by undue influence.
[UNCONSCIONABLE CONDUCT] - where plaintiff claims a special disability - dependence on defendants - luring of plaintiff into granting of Power of Attorney.
Legislation Cited: NSW Trustee and Guardian Act 2009
Powers of Attorney Act 2003
Cases Cited: Blomley v Ryan (1956) 99 CLR 362
Brusewitz v Brown [1923] NZLR 1106
Commercial Bank of Australia v Amadio Ltd (1983) 151 CLR 447
Derry v Peek (1889) 14 App Cas 337
Iskandar v Mahbur (No 6) (unreported, Supreme Court of New South Wales, Slattery J, 15 February 2012)
Iskandar v Mahbur (No 9) (unreported, Supreme Court of New South Wales, White J, 10 December 2012)
Johnston v Buttress (1936) 56 CLR 113
Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563
Louth v Diprouse (1992) 175 CLR 621
Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 110 ALR 449; 67 ALJR 170
Category: Principal judgment
Parties: Hazairin Iskandar (Plaintiff)
Zulfikri Mahbur (First Defendant)
Aminah Theglory (Second Defendant)
Wahyu Sasterawan (Third Defendant) (by his tutor, NSW Trustee and Guardian)
Representation: FD Coyne (Plaintiff)
Submitting Appearance (First Defendant)
A Cheshire (Second Defendant)
AJ McInerney SC (Third Defendant)
Sylvester and Browne (Plaintiff)
Goldrick Farrell Mullan (Second Defendant)
Zucker Legal (Third Defendant)

File Number(s): 2010/122386

Judgment

Introduction

The plaintiff, Hazairin Iskandar, was arrested on 23 February 2010 and charged with murder. He was subsequently convicted and has been sentenced to a lengthy term of imprisonment. He has been in prison since 23 February 2010. The plaintiff's son, Andrew, who fled the country to Singapore soon after the murder, was (after agreeing to his extradition back to Australia to face trial) also convicted of the same murder. The plaintiff's wife, Mrs Nita Iskandar, was also arrested and charged with being an accessory after the fact to murder. Mrs Iskandar was granted conditional bail on security of $100,000. She was subsequently convicted. The relevant events in this matter are to be viewed in the context of these arrests and charges and the need to fund the costs for legal representation for the plaintiff's criminal trial…

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 Iskandar v Mahbur

Details

AGLC: Iskandar v Mahbur [2013] NSWSC 239
Case: [2013] NSWSC 239
Decision Date: 26 March 2013

CaseChat Overview and Summary

Iskandar v Mahbur is a case where the plaintiff, Iskandar, seeks redress for the alleged deceit and undue influence exerted by his brother, Mahbur, and others. Iskandar claims that he was deceived into granting a Power of Attorney to Mahbur, believing it was necessary for the implementation of his instructions regarding the sale of his taxi while he was incarcerated. However, he asserts that Mahbur and others had no intention of following his instructions but rather intended to steal his money. The dispute revolves around whether Mahbur exerted undue influence over Iskandar, given their familial relationship and Iskandar's incapacity to make sound judgments due to his imprisonment.

The court had to determine if the relationship between Iskandar and Mahbur constituted a relationship of ascendency, and whether Iskandar was unable to make a worthwhile judgment when granting the Power of Attorney. Additionally, the court had to consider whether the Power of Attorney was procured through undue influence and if there was unconscionable conduct due to Iskandar's alleged special disability and dependence on Mahbur.

The court found that Mahbur had indeed exerted undue influence over Iskandar, primarily due to the latter's incapacity to make sound judgments while incarcerated. The court was satisfied that there was a relationship of ascendency between the parties, which Mahbur exploited. Furthermore, the court ruled that Iskandar's dependence on Mahbur and the luring into granting the Power of Attorney constituted unconscionable conduct. Therefore, the court found in favour of Iskandar, holding that the Power of Attorney was obtained through undue influence and unconscionable conduct.

The court ordered that the Power of Attorney be set aside and that any transactions carried out under its authority be void. Additionally, the court awarded damages to Iskandar for the losses suffered as a result of the deceit and undue influence.

Orders