Louth v Diprose

[1991] HCATrans 76

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A36 of 1990

B e t w e e n -

CAROL MARY LOUTH

Applicant

and

LOUIS DONALD DIPROSE

Respondent

Application for special leave

to appeal

MASON CJ
DAWSON J

TOOHEY J

Louth 1 15/3/91

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 15 MARCH 1991, AT 10.58 AM

Copyright in the High Court of Australia

MR R.D. LAWSON, QC: If it please the Court, I appear for

the applicant with my learned friend,

MR E.M. AUJARD. (instructed by Lempriere Abbott

McLeod)

MR B.R.M. HAYES,QC: If it please the Court, I appear with

my learned friend, MR B.F. BEAZLEY, for respondent.

(instructed by Daenke O'Donovan)

MASON CJ: Yes, Mr Lawson.

MR LAWSON: This is an application for special leave to

appeal from a decision of the Full Court which, by

a majority, dismissed an appeal from a decision of

the trial judge, Chief Justice King, whereby

His Honour set aside a transaction under which the plaintiff had paid the purchase price for a house

in the defendant's name. The transaction was set

aside.

MASON CJ:	We are familiar with the circumstances so you can proceed directly to the presentation of your
application.

MR LAWSON: If the Court please. Central to the decision,

both of the trial judge and of the Full Court, was

a finding that the plaintiff was in a position of

emotional dependence upon the defendant. The first

point is that the Full Court misapplied the

relevant rule applicable in those circumstances.

The relevant general rule was not in doubt.

The same rule was applied by all members of the

Full Court and by the Chief Justice. It is taken

from a passage of Your Honour the Chief Justice in

Amadio's case, set out at pages 15 and 16 on to 17

of the application book. At line 30 on page 16

appears the statement:

Relief on the ground of unconscionable conduct

will be granted when -

and I interpose in the first case -

unconscientious advantage is taken of an

innocent party whose will is overborne so that

it is not independent and voluntary -

Now, that was not the case in the present case at

bar. Secondly:

when unconscientious advantage is taken of an innocent party who, though not deprived of an

independent and voluntary will, is unable to

make a worthwhile judgment as to what is in

his best interest.

Louth 2 15/3/91

That is the principle relied upon by the Court in the present case.

MASON CJ: Well, you say there is not contest as to the

principle.

MR LAWSON:	No contest as to principle.
MASON CJ:	But you say there is a misapplication of it.
MR LAWSON:	Yes.

MASON CJ: Well, misapplication of principle does not

necessarily give rise to the grant of special

leave.

MR LAWSON: Well, it is misunderstanding of principle, I

should put it, if the Court please.

MASON CJ: Well, now, what is the relevant misunderstanding?

MR LAWSON: 

The relevant misunderstanding arises from the

proposition that the rule, which Your Honour had
set out in Amadio, is that the person seeking the

benefit must be a person under some special

disability.  As Your Honour said, at page 16 of the

appeal book, about line 10:

unconscientious use of his superior position

or bargaining power to the detriment of a

party who suffers from some special disability

or is placed in some special situation of

disadvantage -

And the passage from Blomley v Ryan - - -

MASON CJ: Well, that was drunkenness, was it not; advantage

taken of somebody who was in a weakened condition

due to drunkenness?

MR LAWSON:  Yes, described as special disadvantage and

MASON CJ:  And Amadio was special disadvantage because

somebody gave a guarantee.

MR LAWSON:  Yes, someone unfamiliar with the language and

who was unfamiliar with the transaction which was

being guaranteed and was aged and otherwise infirm.

Justice Kitto in Blomley v Ryan, the

drunkenness case, also spoke of special
disadvantage and, Your Honour, concluded your

statement of the principle on page 17 of the appeal

book at line 21, again referring to "special

disadvantage". Justice Deane, with whom

Justice Wilson agreed, in Amadio's case, also spoke

of special disability and His Honour there quoted

Louth 3 15/3/91

from a judgment of the Lord Hardwick passage, "the

essence of the weakness is that the party is unable

to judge for himself."

Now the first question sought to be agitated

on this appeal is whether - what was, in effect,

infatuation on the part of the plaintiff, a long

infatuation that persisted from before the

transaction and until a couple of years after.	The
Chief Justice described that infatuation as an "emotional attachment".

MASON CJ: Did he not find that that infatuation led to

"emotional dependence"?

MR LAWSON:  Yes, if the Court pleases. His Honour reached

the conclusion that those facts demonstrated

emotional dependence on the part of the plaintiff.

MASON CJ: Well, is emotional dependence a special

disability of the kind that you speak of?

MR LAWSON:  Not, in my submission, an emotional dependence

of the kind we find in this case. I should say

there are two points: one is as Justice Matheson,

the dissenting judge, found on exactly the same

facts, as we would submit, one could not say in

this case that emotional dependence was

established. The dependence was not established.

The special disability, if it be dependence, we

would have to accept, might be sufficient to invoke

the equitable rule. The Chief Justice, in our

submission, and the majority in the Full Court,

that is the Acting Chief Justice and Justice Legoe,

focused, in our submission, upon what was found by

the Chief Justice to have been unconscientious

advantage taken by the defendant by reason of this

emotional dependence of the plaintiff.

DAWSON J:  The reasoning seemed to go, did it not, "Well,

what it a special disadvantage?	A special
disadvantage is a disadvantage of which it would be

unconscionable to take advantage"?

MR LAWSON:  Yes. If Your Honour pleases, that approach

highlights what we say was an error.

DAWSON J: Well, that was the approach of the majority and

the Chief Justice, was it not?

MR LAWSON:  Yes, it was. That was an error of principle.

In our submission, the approach is to look at the

position of special disadvantage, the weakness, and

also to examine the unconscientious use of that

weakness to obtain a benefit. There must, in our

submission, be two elements established on the rule

Louth 4 15/3/91

which Your Honour the Chief Justice had set out in

.Amadio.

MASON CJ:  Mr Lawson, I am not entirely clear what you are

saying at the moment. Let us assume for the moment

that your challenge to the finding of emotional

dependence fails. Is that the end of your case?

MR LAWSON: Well, ultimately, yes, I would have to concede

that the appeal would fail if the challenge to the

finding of emotional dependence was dismissed.

DAWSON J: Why is that? Is emotional dependence a special

disadvantage?

MR LAWSON: Well, we would submit that it is not within the

genus of weakness, referred to in the cases such as

Blomley v Ryan and .Amadio. It is not, of itself,

sufficient to invoke the principle, but it, of

course, depends upon the type of emotional

dependence. An emotional dependence of this kind,

without law, engendered purely by infatuation of a

person who, even on the Chief Justice's findings,

understood the nature and quality of what he was

doing and desired to do it, because of his express

love for the defendant, would be insufficient, and

is insufficient, to invoke the principle.

DAWSON J: That is what was being put to you and, what is

the test for what constitutes a special

disadvantage?

MR LAWSON: Well, the courts have eschewed laying down any

definitive test of what might be a special

disadvantage, and that appears in the dictum from

.Amadio, but our submission is that one cannot

constitute a special disadvantage from an emotional

dependence derived by, as it were, a voluntary

infatuation, unencouraged by the person who takes

the advantage of the gift.

DAWSON J:  Why not?

MR LAWSON: That is not the type of weakness, in our

submission, upon which the principle is based.

DAWSON J:	Why not?
MR LAWSON:	The weakness is based upon infirmity of mind

engendered by age; illness; drunkenness; ignorance,

but to say that because a person loves another and

wishes to confer or bestow benefits upon that other

person is not, as it were, a weakness of the kind

contemplated in the rule. The devotion or, as it

were, emotional attachment is the way we would

describe it and the way Justice Matheson described

Louth 15/3/91

it - an emotional attachment, is insufficient, in

our submission, to found - - -

DAWSON J: It may be a greater weakness than, for instance,

the weakness in Amadio's case which was that of an

Italian, who had a passing familiarity with the

language - had been here for 30 years and had

engaged in numerous property transactions.

MR LAWSON: Well, that was a question of degree, on which,

of course, the Court in Amadio's case was divided,

but that was - - -

DAWSON J: But the majority held that that was a position of

relative weakness.

MR LAWSON: Vis-a-vis, the bank. Here we have the

relationship of the parties is an emotional

attachment - a romantic attachment - at least on

the part of the plaintiff.

MASON CJ:  Mr Lawson, how long did the trial take?

MR LAWSON:  Two days, if the Court pleases. The facts were

within a very narrow compass and the Chief Justice

has found all of the facts, facts from which he

drew certain inferences on, what we would say, were

incorrect inferences. Justice Matheson also drew

contrary inferences to those of the Chief Justice.

TOOHEY J: There is a little more to it than just emotional

attachment, is there not? On the view of the

Chief Justice, at any rate, there was some

deception on the part of the present applicant, or

a depiction of her situation in a way that was not

strictly accurate?

MR LAWSON:  The Chief Justice found that the defendant had

deliberately manufactured an atmosphere of crisis,

but that went not to the question of the weakness,

in my submission. His Honour found that that went

to the unconscientiousness of the defendant in

seeking to obtain and retain the benefit of the

transaction having, as His Honour found,

manufactured an atmosphere of crisis. But that was

a conclusion drawn by His Honour from facts which

His Honour set out and which, even if it be

accepted, would not have entitled the plaintiff on

our argument to succeed because notwithstanding

whatever air of crisis the defendant had created,

the plaintiff was not, in our submission in the

circumstances, under a special disability or

special disadvantage of the type contemplated in

the rule.

DAWSON J: Really what you are saying is this was a case of,

if it was anything, undue influence but, of course,

Louth 6 15/3/91

undue influence knows no such category as this.

Is that how you are putting it?

MR LAWSON: Well, undue influence was argued in the case,

but the case was not decided on the ground of undue

influence either by the Chief Justice or by the

majority of the Full Court. But, in our

submission, the will of the plaintiff on the facts

as found was not so overborne as to engender the

rules against undue influence, or the rules to set

aside transactions entered into under undue

influence.

So it is not, in our submission, an undue

influence case. This case is focussed ultimately

narrowly upon the question whether or not the

circumstances put the plaintiff at such a

disadvantage that one could say he was entitled to,

as the Chief Justice had it, set aside the

transaction.

I should perhaps mention that this was a case

in which, as the Court will recall, the plaintiff

was a solicitor, a man of mature years and

experience - - -

MASON CJ:	We are aware of that.
MR LAWSON:	- - - and all of the facts relating to that

relationship are, as Your Honours will be aware,

set out in the judgments.

The second special leave point is that the majority of the Full Court, in our submission,

misconstrued the appellate function by accepting not only the trial judge's findings of fact - as

indeed in this case they were, in effect, bound to

do - but also the inferences or conclusions which

His Honour drew from those facts. The conclusion

of emotional dependence was a conclusion which both

the acting Chief Justice, Justice Jacobs, and

Justice Legoe, found themselves bound to accept.

But we would submit that the correct approach

was that of Justice Matheson which was to take the

findings of fact and then to draw the inferences

from the undisputed facts as he did. It was, in

our submission, an error on the part of the

majority of the Full Court to, as it were, accept

the trial judge's conclusions on that aspect.	The
matter was, in our submission, open to review.

DAWSON J:  You are reverting to saying that there was no

emotional dependence here, are you? I am not sure

how you are putting it. Are you saying that

emotional dependence is no special disadvantage; it

is a frailty to which we are all subject and

Louth 7 15/3/91

therefore it attracts no protection so far as the

law is concerned?

MR LAWSON:	Yes.
DAWSON J:	Or are you saying that this man was not

emotionally dependent in such a way as to give rise

to a special disadvantage?

MR LAWSON:  Both points, if Your Honour pleases. Emotional

dependence is not within the genus of special

disadvantage and, in any event, the facts of this
case would not establish emotional dependence of
the kind sufficient to amount to weakness or

deprivation of a capacity to form an informed

judgment.

MASON CJ: But on this point that you are presently

pursuing, you have some difficulty, do you not,
because, first of all, if you look at the judgment

of Mr Justice Legoe, at page 71, His Honour says,

line 25:

In my judgment the plaintiff established his claim for equitable relief upon the basis that

and he then gives attention to the evidence.

It is clear enough that His Honour directed

his mind to the evidence and to the question

whether the inference should be drawn.	And if you
go back to the judgment of

Mr Acting Justice Jacobs, he refers to the relevant

findings, page 28, and then he goes on to say, page

29, line 5:

These are findings which in my judgment

this Court ought not to disturb. It may well be that they are inferences which the learned

trial Judge drew -

and then he quotes Mr Justice Rich, and he says, at

line 12 -

In this case the adverse inferences that have

been drawn depend so much upon an assessment

of the credibility, personality and character

of the party concerned that an appellate court

ought not to disturb the findings.

There is a good deal of strength in that, is there

not?

MR LAWSON:  Excepting that if Your Honour returns to line 1

of page 29, in the judgment of

Acting Chief Justice Jacobs, what His Honour is

Louth 15/3/91

there saying in the passage Your Honour has just

read to me, that he accepts the conclusion that the

plaintiff was utterly vulnerable by reason of his

infatuation. Now, that was a conclusion the

Chief Justice drew from the facts.

It is our submission on this second point that

the Full Court has, as it were, merely accepted the

Chief Justice's conclusion of utter vulnerability

by reason of infatuation.

TOOHEY J:  I am not clear whether you are saying that on no

view of the facts could this case come within

Amadio or any other relevant principle or that on

the view of the facts for which you contend the

case does not fall within those principles.

MR LAWSON:  The first point is that emotional dependence,

vulnerability of this kind, could never in law

constitute special disadvantage of the type

referred to in the rule. The second point is that

on the facts as found - that is the primary facts

as found by the trial judge and as accepted by the

Full Court, emotional dependence is simply not established or, to put it another way, weakness of the kind referred to in the rule is not established

on those facts.

In my submission, the proposition that the

plaintiff was suffering from emotional dependence

is a conclusion which the trial judge drew, a

conclusion which was an inappropriate conclusion,

having regard to all of the background facts which

Justice Matheson set out. In our submission, the

view taken both by the trial judge and the majority

of the Full Court was really not a view open to

them, especially having regard to the plaintiff's

own evidence as to the reasons why he undertook the

transaction.

The Court will recall that he came to court

with the proposition that there was a special

arrangement relating to this particular house,

namely that the defendant would reconvey it to him

at his request, but the plaintiff was not accepted

on that proposition.

MASON CJ:	If you look at this second point of yours in isolation, if it stands alone as a ground for
special leave, it strikes me that you are in a
somewhat weak position because you are confronted
by concurrent findings of fact.  You have a
confirmation by the Full Court of the findings of
facts made by the trial judge. Now, you can only
escape from that difficulty if you are able to show
that the Full Court misconceived its .function as an
appellate court and for some reason or other

Louth 9 15/3/91

regarded itself as disabled from reviewing the

findings of fact made by the trial judge. What I

am putting to you is that the majority do not seem

to have regarded themselves as disabled from review

and Mr Justice Jacobs, specifically says, having

regard to the findings they are of such a nature

that an appellate court must necessarily be much

influenced by what the trial judge says.

MR LAWSON:  I certainly accept, if Your Honour pleases, that

if the second point sought to be agitated was the
only point we would obviously be on a very weak

ground and, in a sense, the second point is not

essential to the argument. Now, I cannot put

anything further other than to say that a reading
of the whole of the judgments leads to the
conclusion that the majority of the Full Court have

accepted His Honour's conclusion. I cannot submit

that they have utterly disregarded their appellate

function. In my submission, they have simply paid

insufficient regard to all of the facts. If the

Court pleases.

MASON CJ: Yes, Mr Lawson. Yes, Mr Hayes?

MR HAYES:  If the Court pleases. The categories of

behaviour of what might amount to conduct which

would disqualify someone from claiming back

something which they have given are categories

which are not, and nor have they been capable of

being exhaustively defined or categorized by the
Court. In this case, the trial judge and the

FulL Court accepted that the conduct involved, whether we call it emotional dependence or what we

call it, quite clearly was the kind of conduct

which this Court, in Amadio's case and in other

cases, has established as being the kind of conduct

which is sufficient to found - - -

DAWSON J: Well, is that not the fault though? That is

starting at the wrong end, is it not, to say if

weakness which attracts the protection of the court	there is unconscionable conduct that demonstrates a	and is that not, perhaps, the fault in what the
trial judge did and what the majority in the Full Court did?

MR HAYES:  No, with respect, what I was seeking - - -

DAWSON J: Because that would be so, if I might develop

that, with any human frailty, tiredness,

drunkenness, what it might be, if someone takes

advantage of it you may well say that it is

unconscionable but then you would never close the

categories, would you, or you would never be able

to draw any line?

Louth 10 15/3/91

MR HAYES: That is true, but in this case the trial judge

and the Full Court were not limiting themselves

only to the conduct on the part of the respondent

in this case. There were findings, as His Honour

the Chief Justice pointed out, by Justice King and,

subsequently, by Justice Legoe at page 71 of the

appeal book, which goes much further than simply determining whether the emotional dependence was

the kind of category which disqualified the

respondent from succeeding. If Your Honour looks

at page 71 of the appeal book, His Honour says at

line 25:

In my judgment the plaintiff established his claim for equitable relief upon the basis

that:-

1.       A condition of total "emotional

dependence" had developed originally in

Tasmania -

and then he goes on, over the page, page 72:

The appellant was in poor financial

circumstances. Although the appellant refused

all 'sexual' dealings after about July

1985 ..... she "tolerated his visits -

et cetera -

This "fed the flames of his passion and kept

alive his hopes that the defendant would

relent and that his devotion would be

requited."

MASON CJ: It sounds like an 18th century novel.

TOOHEY J: It is certainly not a 20th century.

MR HAYES: His Honour goes on:

The learned Chief Justice clearly found that

she was fully aware of his "weakness" for her,

and furthermore that she knew of his expected

receipt of monies -

DAWSON J: Well, she exploited his infatuation - - -

MR HAYES: That is right.

DAWSON J:  - - - but assuming that, where does that carry

you?

MR HAYES: Well, it takes us, with respect, to the point

that it is for the court at first instance to

determine what the behaviour is to make findings of

the behaviour that has been involved. Having made

Louth 11 15/3/91

those findings it is for the court to say, "Well,

is it the kind of behaviour which is set out in the

judgments such as Amadio?"

DAWSON J: Well, what is the test?

MR HAYES:  As this Court said in Amadio, it is difficult if

not impossible to close off and be definitive about

that. Can I take the Court to - - -

DAWSON J: That is counsel in despair. There must be some

way in which you - - -

MR HAYES:  Yes, there is.

DAWSON J: Well, what is it?

MR HAYES:  The Full Court put it on the basis that - in

Amadio's case, 151 CLR 447, Your Honour the

Chief Justice, at page 461, point 8:

Relief on the ground of unconscionable conduct will be granted when unconscientious advantage is taken of an innocent party ..... who, though

not deprived of an independent and voluntary

will, is unable to make a worthwhile judgment

as to what is in his best interest.

Now, if there be a test, that is the test which the

Court has got to apply in the circumstances of the

findings which the Court makes of the behaviour

involved.

TOOHEY J:  Mr Hayes, you keep speaking of behaviour, whose

behaviour are we concerned with?

MR HAYES: All the parties' behaviour; both parties, not

just one; the circumstances in which the

transaction occurred. You do not only, in our

respectful - that test does not limit itself to one

or other party's behaviour; it is all of the

circumstances surrounding it. As, indeed, the

Chief Justice in this case and the Full Court was

able to say, all of the circumstances did amount to

the kind of tests set out in Amadio's case.

MASON CJ:	You mentioned earlier, Mr Hayes, that in Amadio's case and other cases, this principle had been
applied.  Now, what are the other cases that you
are referring to, apart from Blomley v Ryan?
MR HAYES:	A case, which I do not think is on a list of

authorities, Borg Warner Acceptance v Diprose.

MASON CJ:  Now, what was the relationship between the

parties there?

Louth 12 15/3/91

MR HAYES: Perhaps I can take Your Honour, rather than that,

to His Honour Justice Legoe's decision, where

His Honour deals with the authorities, at page 73 -

the bottom of page 73, at line 26:

In my judgment this case not only falls within the general principles as expressed by

Mason J. (as he then was) in Commercial Bank

of Australia Ltd v Amadio supra, but is

clearly supported by the reasoning of other

cases particularly K v K supra where

O'Regan J. in New Zealand refused specific

performance of the separation deed "by reason

of her emotional condition and her distress

she was bereft of proper judgment." see

further Grant v Grant -

which is another New Zealand case -

approving K v K.

MASON CJ:  How would the emotional condition have arisen

in K v K?

MR HAYES: Perhaps I can just again refer to Justice Legoe's

decision earlier, at page 68, which deals with

this, line 20:

First in law I consider the "emotional

dependence" or "emotional infatuation" can

constitute "a pressure without adequate
protection", or alternatively, can in law

create an unequal rational bargaining power

such as to deprive the voluntary donor of

proper judgment .. In K v K O'Regan J refused

an order for specific performance where a

separation agreement had been drawn up by the

husband's solicitor based on a note which the

wife had written and subsequently given to her

husband who handed it on to his solicitor.

The note stated that she wanted to go away

from the home to "sort herself - - -

MASON CJ: Well, that was an improvident transaction, by the

look of it.

MR HAYES:  Yes, and we say that is so and that is the case

here. We say that, Your Honour, the appeal court -

this Court - should not concern itself with

rehearing the arguments on the evidence to

determine, given that the principle is clear, given

that, as I understood, there is no contest about

the principle, if emotional dependence of this kind
can, in some circumstances, depending on the
findings of the Court, fit the category which was
set out in Amadio's case and which was apparently

followed in the New Zealand case, then it is not,

Louth 13 15/3/91

in our respectful submission, for this Court to

retry the case and it is not a case for the

granting of special leave.

But on any view of the matter here, the

findings made by His Honour the Chief Justice,
confirmed by the Full Court, the principle of

unconscionable conduct fits within those findings, and that being the case it simply does not, in our

respectful submission, justify special leave. Now,

it is not to the point, if this Court were to hear

it, to say that the kind of conduct and the

circumstances which surrounded the whole

transaction in the view of one court may not fit in
the kind of category that amounts to that special

disadvantage. That is essentially for the trial

judge which has been confirmed by the Full Court,

and in the absence of any error of principle, then

this Court should not interfere.

TOOHEY J:	Mr Hayes, we do not have the statement of claim, but can you tell us just how the case was put in
the pleading?  I do not want you to read it in its
detail, but presumably there was some sort of a
cause of action founded upon an agreement to
retransfer, was there?
MR HAYES:	Your Honour, I am not sure that I can assist you

there. I can look at the statement of claim if you

give me a moment.

TOOHEY J:  I am wondering whether the statement of claim was

framed in terms of the defendant's conduct, the

plaintiff's conduct or both, or how it was put.

MR HAYES:  I will have to check that, Your Honour, I am

sorry.

TOOHEY J:  I am not asking you to read it, but just give us

some sort of bird's eye view of how the case was

put in the statement of claim.

MR HAYES:	Just looking very quickly at it, the statement of claim - the particulars seem to put it on the basis of both parties' conduct, the plaintiff's and the
defendant's conduct in that regard. It is both
parties' conduct. It is not simply limited to the
plaintiff's conduct.
TOOHEY J:	Thank you.

MR HAYES: If the Court pleases.

MASON CJ: Thank you, Mr Hayes. Yes, Mr Lawson.

MR LAWSON:  If the Court pleases, contrary to my learned

friend's submission, it is our contention that

Louth 14 15/3/91

there are no cases in which any court has held that

emotional dependence constitutes a special

disadvantage of the necessary kind for the purpose

of this rule.

K v Kand the other New Zealand cases are, as

Your Honour the Chief Justice said, improvident

transaction cases, cases where there was some

degree of emotional instability at the time the

transactions were entered into, but they are not

based upon any suggestion of emotional dependence.

DAWSON J: Really, your best way of putting this is to say,

is it not, "Well, if this man had had the best

advice in all the circumstances, he still would

have done what he did."

MR LAWSON:  Yes, on his own account because as

Justice Matheson pointed out there was a

conversation prior to the transaction with a third

party which the Chief Justice accepted had occurred

in which he said he wished to make the gift to

Mary, notwithstanding that he knew she did not love him and that she would never accept him.

DAWSON J:  So that if he had had every assistance, he still

would have done what he wanted to do, and the law

does not protect people against their improvidence

if they want to be improvident. That is the way

you put it, is it not?

MR LAWSON:  Yes, we would accept that, if Your Honour

pleases. The facts establish that the plaintiff did intend to enter into the transaction and did

understand precisely the situation with regard to

his relationship with the defendant.

DAWSON J:  So that you say that there was no position of disadvantage at all.

MR LAWSON:  Indeed, there was no disadvantage. The whole of

the facts, including the duration of the

transaction, the particular qualifications and

experience of the plaintiff and the whole of the

circumstances both before and after the transaction

showed no dependence in any relevant sense. He was

acting freely, and that is amply corroborated by

evidence accepted by the Chief Justice.

MASON CJ: But you are wandering off on to this second

point, Mr Lawson. If you are going to get a grant

of special leave it is on the question of

principle, and you do not want to smudge your
reliance on this question of principle by

descending into a contest about the facts all the

time.

Louth 15 15/3/91

MR LAWSON:  I do not seek to do that if the Court please,

because it is a question of principle, the

principle being, "What is the special relationship

of the kind spoken of in Amadio's case?" It is our

submission that - I should say "the special

disadvantage special relationship".

MASON CJ:  I think you have made that point.

MR LAWSON: If the Court please.

MASON CJ: There will be a grant of special leave to appeal

in this case.

AT 11.40 AM THE MATTER WAS ADJOURNED SINE DIE

Louth 16 15/3/91