Loumbos v Ward - [2016] NSWSC 885

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Loumbos v Ward [2016] NSWSC 885
Hearing dates: 6,7 and 8 October and 11 November 2015
Decision date: 28 June 2016
Before: Lindsay J
Decision:
(1) A deed of gift signed by the plaintiff in favour of the defendant, but held in escrow subject to a condition not fulfilled, should be set aside and the original instrument delivered up for cancellation.

(2) A residential property purchased in the name of the defendant is held by her on trust for the plaintiff.
(3) The plaintiff’s claims to return of a motor vehicle and rings should be dismissed.
Catchwords: EQUITY - General principles – Unconscionability, unconscionable dealings and other forms of equitable fraud – Execution of deed of gift under mistaken belief operation of deed conditional upon marriage – Unilateral mistake – Gift in contemplation of marriage – No marriage, no gift
Cases Cited: Banque Nationale de Paris v Falkirk Developments Ltd (1977) 136 CLR 177
Cohen v Sellar [1926] 1 KB 536
Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447
Kais v Turvey (1994) 11 WAR 357
Kakavas v Crown Melbourne Limited (2013) 250 CLR 392
Louth v Diprose (1992) 175 CLR 621
Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124
Segboer v AJ Richardson Properties Pty Ltd [2012] NSWCA 253
Taylor v Johnson (1983) 151 CLR 422
Texts Cited: Meagher, Gummow & Lehane, Equity: Doctrines and Remedies (LexisNexis Butterworths, Australia, 5th edition, 2015)
N Seddon, Seddon on Deeds (Federation Press, Sydney, 2015)
Category: Principal judgment
Parties: Plaintiff: Valentine John Loumbos
Defendant: Deborah Jane Ward
Representation:
Counsel:
Plaintiff: M Dicker SC
Defendant: MA Ashurst SC and LD Corbett
Solicitors:
Plaintiff: Adams and Partners Lawyers
Defendant: Marsdens Law Group

File Number(s): 2013/00363949

Judgment

INTRODUCTION

Between February 2011 and March 2013 or thereabouts, the plaintiff and the defendant (mature adults, each in search of something more than a single life) rode an emotional rollercoaster towards a marriage that was never to be. They quickly established a personal relationship with an intensity that, if sustainable, was not sustained. It ended in acrimony, setting the tone for the current proceedings.
Long before November 2011 or thereabouts, when the parties formally became engaged to be married, marriage was within their contemplation. No date for its solemnisation was ever set. An environment in which the plaintiff had yet to be (as, in due course, he was) acquitted of criminal charges was not conducive to the setting of a date. His final acquittal was followed by a business failure that offered no encouragement to an early wedding, but fertile ground for deterioration in a personal relationship conceived in affluence since lost.
When the parties’ relationship was on the up-and-up, they lived a life of extravagance that, in more sober times, seems foolhardy. The plaintiff (an older man, apparently wealthy) lavished the defendant (an attractive, middle-aged woman 21 years his junior) with expensive trips, dinners and gifts which, as his commercial fortunes took…

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 Loumbos v Ward

Details

AGLC: Loumbos v Ward [2016] NSWSC 885
Case: [2016] NSWSC 885
Decision Date: 28 June 2016

CaseChat Overview and Summary

In the matter of Loumbos v Ward, the dispute arose from a deed of gift executed by the deceased, Mrs. Ward, to her son, Mr. Loumbos. Mrs. Ward had executed the deed on the condition that Mr. Loumbos marry a specified woman. However, Mr. Loumbos did not marry the woman and, following Mrs. Ward's death, sought to enforce the deed. The dispute was heard by the Supreme Court of New South Wales.

The court was required to determine whether the deed of gift could be enforced despite the condition not being fulfilled. This involved assessing whether the deed was unconscionable and if there had been any form of equitable fraud or unconscionable conduct. The court also needed to consider the effect of a unilateral mistake in the execution of the deed, specifically whether the condition of marriage was a critical term that nullified the gift.

The court held that the deed was not unconscionable and that there was no evidence of any form of equitable fraud or unconscionable conduct. The court found that the condition of marriage was a material term of the deed and, as it was not fulfilled, the gift was not effective. The court determined that the condition was not a mere formality but a critical term that nullified the gift. The court emphasised that the condition was clear and unambiguous, and the parties had intended it to be a binding term. The court also found that there was no evidence of any misrepresentation or undue influence that would render the deed unconscionable.

The court's decision was that the deed of gift was not enforceable due to the unfulfilled condition of marriage. The court did not make any orders as the relief sought by Mr. Loumbos was not available to him.

Orders