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Jones v Moss

Jones v Moss

Case [2007] NSWSC 969 13 August 2007

Unconscionable Conduct

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CITATION: Frederick John Jones v Jennifer May Moss [2007] NSWSC 969

HEARING DATE(S): 9 & 10 August 2007

JUDGMENT DATE :
13 August 2007

JURISDICTION: Equity Division

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 13 August 2007

DECISION: Parties to bring in short minutes of order in accordance with these reasons.

CATCHWORDS: EQUITY – General principles – Mistake – No relevant mistake – Grounds for rectification or setting aside of contract not established.EQUITY – Unconscionable Conduct – Plaintiff under no disability or significant disadvantage of which defendant took advantage. - CONTRACTS – Unjust contracts – When contract “unjust” – Where terms of contracts not reasonable due to their effect – Unreasonableness of terms foreseeable at time of contracting – Consideration of public interest – Plaintiff transferred house and all household furnishings, and goods to his daughter, to ensure sons could have no claim after his death – Plaintiff entitled to live on property provided he paid all outgoings – Defendant paid arrears of rates – Defendant not liable to pay for repairs – Plaintiff unable to pay outgoings and repairs needed to keep the property in habitable condition - Held that contracts unjust notwithstanding that defendant innocent of any improper conduct – Plaintiff to repay defendant her expenditure on the land – Defendant entitled to a charge to secure repayment. - (NSW) Contracts Review Act 1980, ss 7, 8 and 9(NSW) Residential Tenancies Act 1987, ss 3 and 6(1)(a)

LEGISLATION CITED: Contracts Review Act 1980 (NSW)
Family Provision Act 1982 (NSW)
Residential Tenancies Act 1987 (NSW)

CASES CITED: Gibbon v Mitchell [1990] 1 WLR 1304
Baird v BCE Holdings Pty Ltd (1996) 40 NSWLR 374
Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449
Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471
Yaroomba Beach Development Co Pty Ltd v Coeur de Lion Investments Pty Ltd (1989) 18 NSWLR 398
Clifford v Turrell (1845) 14 LJ Ch 390
In Re Cartwright; Avis v Newman [1889] LR 41 Ch D 532
Australian Maritime Safety Authority v Quirk (1998) NSW ConvR 55-858
Miller v Gray; Ex parte (1892) 18 VLR 31
Commissioner of Stamps v Parbury Estates Limited (1913) 16 CLR 521
The Marquess of Bristol v Commissioners of Inland Revenue (1901) 2 KB 226
West v AGC (Advances) Ltd & Ors (1986) 5 NSWLR 610
Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41

PARTIES: Frederick John Jones
v
Jennifer May Moss

FILE NUMBER(S): SC 2784/05

COUNSEL: Plaintiff: Ms S K Hill
Defendant: Mr R D Wilson

SOLICITORS: Plaintiff: CBD Law
Defendant: Peninsula Law

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Monday, 13 August 2007

2784/05 Frederick John Jones v Jennifer May Moss

JUDGMENT

1 HIS HONOUR: The plaintiff and the defendant are father and daughter. The plaintiff seeks orders to set aside two agreements made on 1 May 1996 between them which deal with his property. Alternatively, he seeks orders that the agreements be set aside.

2…

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 Jones v Moss

Details

AGLC: Jones v Moss [2007] NSWSC 969
Case: [2007] NSWSC 969
Decision Date: 13 August 2007

CaseChat Overview and Summary

In the case of Jones v Moss, the plaintiff, Mr Jones, sought to set aside a contract whereby he transferred his house and household goods to his daughter, Ms Moss, and sought to hold the defendant accountable for the repairs and maintenance of the property. The dispute was heard and determined by the Supreme Court of New South Wales. The primary legal issue before the court was whether the contract was unjust or should be rectified due to a mistake. The court also had to determine if the defendant had engaged in unconscionable conduct.

The court found that there was no relevant mistake that would warrant rectification or setting aside of the contract. Furthermore, the plaintiff was not under any disability or significant disadvantage from which the defendant had taken advantage. The court emphasised that the terms of the contracts were not unreasonable due to their effect, and the unreasonableness of the terms was foreseeable at the time of contracting. The court also considered the public interest in ensuring that contracts were not unjustly enforced. The plaintiff had transferred his house and all household furnishings and goods to his daughter to ensure his sons could not claim against his estate. The plaintiff was entitled to live on the property provided he paid all outgoings, and the defendant had paid arrears of rates. However, the plaintiff was unable to pay the outgoings and the repairs needed to keep the property in habitable condition.

The court held that the contracts were unjust notwithstanding that the defendant was innocent of any improper conduct. The plaintiff was ordered to repay the defendant her expenditure on the land, and the defendant was entitled to a charge to secure repayment. The court found that the contracts were unjust because the terms were unreasonable due to their effect, and the unreasonableness of the terms was foreseeable at the time of contracting. The court also considered the public interest in ensuring that contracts were not unjustly enforced. The final orders of the court were that the plaintiff was to repay the defendant her expenditure on the land and that the defendant was entitled to a charge to secure repayment.

Orders