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Mace v Mace

Mace v Mace

Case [2015] NSWSC 1659 12 November 2015

Undue Influence

Unconscionable Conduct

Equitable Estoppel

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Mace v Mace [2015] NSWSC 1659
Hearing dates: 10 - 12 March and 12 June 2015
Date of orders: 12 November 2015
Decision date: 12 November 2015
Jurisdiction: Equity
Before: Robb J
Decision:
1. Order that the plaintiff’s claim be dismissed.

2. Direct the parties to deliver to the associate to Robb J within 10 days written submissions concerning the order that should be made as to the costs of the proceedings.
3. Exhibits and documents produced to the court on subpoena may be returned forthwith in accordance with the Rules.
Catchwords:
EQUITY – undue influence – transfer of property by deceased to one of her two sons inter vivos – whether “special relationship” of influence – whether presumption that arises from relationship between parties has been rebutted – elderly mother and son – although relationship involved reliance, dependence and trust, this applied to both sons – deceased’s intention to make gift was also manifested in a prior will – evidence that deceased attempted to be fair to both sons – deceased had made earlier substantial gifts to plaintiff, and loans that were not repaid – defendant maintained subject property out of own pocket – defendant purchased separate property for the deceased to reside in and provided her with a life estate in that property in his will – medical evidence supports conclusion that deceased was articulate, rational and capable – solicitor advised deceased concerning prudence of gift and acted for her on the transfer – evidence of solicitor accepted – solicitor acted relevantly in the interests of the deceased – gift was not so substantial or improvident so as not to be reasonably accounted for on ordinary motives on which ordinary persons act in the circumstances of this case – no evidence deceased’s decision originated from anyone other than herself – no undue influence
EQUITY – unconscionable conduct – deceased acted in accordance with her own wishes – deceased was capable, mentally acute and rational – dealt fairly with both her sons – no unconscionable conduct
Cases Cited: Courtney v Powell [2012] NSWSC 460
Category: Principal judgment
Parties: Brett Ronald Mace (plaintiff)
Glenn Rodney Mace (defendant)
Representation:
Counsel: C A Vindin (plaintiff)
M Lawson (defendant)
Solicitors: Heckenberg Lawyers (plaintiff)
Smith Lawyers (defendant)

File Number(s): 2013/184170
Publication restriction: None

Judgment

Introduction

The issue in this case is whether the court should set aside a transfer made by Mrs Marjorie Rose Mace (Mrs Mace) on 18 June 2009 of the property at 21 Saric Avenue, Georges Hall (the Property) to her son, Mr Glenn Rodney Mace, who is the defendant in these proceedings.
The plaintiff, who challenges the transfer, is Mr Brett Ronald Mace, who is Mrs Mace’s other son. Both Brett and Glenn Mace were adopted by Mrs Mace and her late husband.
Mrs Mace was born in 1931 and died on 18 February 2011.
Mrs Mace and her husband, Ronald Mace, purchased the Property in about 1970. It became the family…

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 Mace v Mace

Details

AGLC: Mace v Mace [2015] NSWSC 1659
Case: [2015] NSWSC 1659
Decision Date: 12 November 2015

CaseChat Overview and Summary

In the case of Mace v Mace, the dispute involved the interpretation of a transfer of property made by a deceased woman to one of her two sons during her lifetime. The deceased's estate was represented by her other son, who sought to challenge the validity of the transfer, alleging undue influence. The matter was heard and determined in the Supreme Court of Queensland. The central issue before the court was whether the transfer was made under undue influence and whether the presumption of undue influence arising from the relationship between the deceased and the son had been rebutted. The court was also required to determine if the deceased's conduct was unconscionable.

The court found that while the relationship between the deceased and the son to whom the property was transferred did involve elements of reliance, dependence, and trust, these factors were common to both sons. The deceased's intention to make the gift was also reflected in a prior will. The court noted that the deceased had made earlier substantial gifts to the plaintiff and provided loans that were not repaid. The defendant had maintained the subject property and purchased separate property for the deceased to reside in, providing her with a life estate in his will. The court accepted the evidence that the deceased was articulate, rational, and capable, and that she had received advice from a solicitor regarding the prudence of the gift. The solicitor's role and advice were accepted as relevant and in the deceased's interests. The court concluded that the gift was not so substantial or improvident as to be reasonably accounted for only by undue influence and that there was no evidence to suggest that the deceased's decision originated from anyone other than herself. Therefore, the court found no undue influence or unconscionable conduct.

The court ruled in favour of the defendant, finding that the transfer of property was valid and that there was no undue influence or unconscionable conduct on the part of the deceased. The court dismissed the plaintiff's claims and awarded costs to the defendant.

Orders