Matouk v Matouk (No. 2)

The case of Matouk v Matouk (No. 2) involved the deceased mother of the respondent, who had transferred property to the applicant, her son. The deceased had not received independent legal advice, could not read or write English, and did not speak the language. The respondent sought to set aside the transfer on equitable grounds, alleging it was effected by undue influence and unconscionable conduct. The court also considered the respondent's application to withdraw the deceased's caveats over the property, given that no representative had been appointed and the deceased had passed away.

The court was tasked with determining whether the transfer of property from the deceased to the applicant was effected by undue influence or unconscionable conduct, and whether the deceased's caveats could be withdrawn. The court considered the deceased's lack of independent legal advice and her inability to read, write, or speak English, which were critical factors in assessing the fairness of the transaction. Additionally, the court examined the respondent's entitlement to withdraw the caveats in the absence of a representative and whether the respondent had established a seriously arguable caveatable interest.

The court found that the transfer of property was indeed effected by undue influence, given the applicant's dominant position and the deceased's lack of capacity to understand the transaction. The court also determined that the transfer was unconscionable due to the applicant's failure to ensure the deceased understood the nature and effect of the transfer. Consequently, the court set aside the transfer of property. Regarding the caveats, the court held that the onus of proving a seriously arguable caveatable interest fell on the respondent, who had not met this burden. As a result, the respondent's application to withdraw the caveats was dismissed.

The final orders of the court were to set aside the transfer of property from the deceased to the applicant and to dismiss the respondent's application to withdraw the caveats. The property was to be returned to the estate of the deceased, and the caveats remained in place. This decision underscored the importance of ensuring that parties to property transactions are fully informed and have received independent legal advice, particularly when there are language barriers or significant power imbalances.