Meiners v Gunn - [2020] WASC 18

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   MEINERS -v- GUNN [2020] WASC 18
CORAM:   ACTING JUSTICE STRK
HEARD:   3 - 5 DECEMBER 2018, 18 - 21 DECEMBER 2018 AND ON SUBMISSIONS FILED ON 29 JANUARY 2019 and 27 FEBRUARY 2019, and BY ORDERS MADE ON 25 MARCH 2019
DELIVERED          :   24 JANUARY 2020
PUBLISHED           :   24 JANUARY 2020
FILE NO/S:   CIV 1228 of 2018
BETWEEN:   HILDEGARD INGE MEINERS
Plaintiff
AND
DEBRA GUNN
Defendant

Catchwords:

Equity – Unconscionable dealing – Elderly mother of comparatively modest means and adult daughter – Money transferred from mother to daughter – Whether the mother was under a special disadvantage or disability in dealing with the daughter – Whether the special disadvantage or disability was sufficiently evident to the daughter to make it prima facie unfair or unconscionable for the daughter to accept or retain the benefit of the money transferred – Whether the daughter established that the transactions were fair, just and reasonable

Undue influence – Whether at the time of the transactions there existed a relationship between mother and daughter of such a nature as to involve reliance, dependence or trust on the mother’s part which created an ascendancy on the daughter's part

Legislation:

Nil

Result:

Judgment for the plaintiff

Category: B

Representation:

Counsel:

Plaintiff	:	Mr T M Clavey & Mr E Assibey-Bonsu
Defendant	:	In Person

Solicitors:

Plaintiff	:	Douglas Cheveralls Lawyers
Defendant	:	In Person

Case(s) referred to in decision(s):

Australia & New Zealand Banking Group Ltd v Dzienciol [2001] WASC 305
Blomley v Ryan (1956) 99 CLR 362
Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457
Brown v Brown (1993) 31 NSWLR 582
Commercial Bank of Australia v Amadio (1983) 151 CLR 447
Costin v Costin (1994) NSW ConvR 55‑715
Costin v Costin (1997) 77 BPR 15
Courtney v Powell [2012] NSWSC 460
Goldsworthy v Brickell [1987] Ch 378
Hewitt v Gardner [2009] NSWSC 1107
Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113
Johnson v Johnson [2009] NSWSC 503
Louth v Diprose [1992] 175 CLR 621
Mercanti v Mercanti (2016) WAR 495
Micarone v Perpetual Trustees Australia Ltd [1999] SASC 265; (1999) 75 SASR 1
Muschinski v Dodds (1985) 160 CLR 583
Nelson v Nelson (1995) 184 CLR 538
Permanent Mortgages Pty Ltd v Vandenbergh (2010) 41 WAR 353
Powell v Powell [2002] WASC 105
Re Levey; Ex parte Official Assignee (1894) 15 LR (NSW) B&P 30
Thorne v Kennedy (2017) 263 CLR 85
Wilton v Farnworth (1948) 76 CLR 646

ACTING JUSTICE STRK:

Ms Hildergard Meiners was born in July 1936. Ms Debra Gunn is Ms Meiners' daughter and one of Ms Meiners' four children to her first husband.
From about 1992, Ms Meiners lived with her late second husband at their home at 41 Amethyst Crescent, Mount Richon. In these reasons, I refer to this residence as the Armadale property. Ms Meiners and her late husband owned the Armadale property as joint tenants. Ms Meiners was widowed on 4 September 2014.
The Armadale property was sold and settlement occurred on 14 July 2015. The Armadale property was unencumbered and the net proceeds of the sale were $384,524.99.
On two separate occasions, Ms Meiners transferred money to Ms Gunn. First, $130,000 on 15 July 2015; and secondly, $242,717.43 on 9 December 2015, being a total of $372,717.43. About $320,000 of the moneys transferred was applied by Ms Gunn to the purchase of Unit 3, 79 Spencer Avenue, Yokine. In these reasons, I refer to this property as the Yokine property. The Yokine property was purchased in Ms Gunn's name.
The parties plead two different versions of their arrangements, and different reasons for the transfer of money from mother to daughter.
Ms Gunn asserts that the money transferred to her was a gift given to her by Ms Meiners. Ms Gunn has denied and continues to deny that Ms Meiners has any legal or equitable interest in the Yokine property or in the money transferred to her.
Ms Meiners asserts that it is unconscionable for Ms Gunn to retain the benefits conferred on her by use of the money transferred, and to maintain her denials and assertions in relation to the money. Ms Meiners claims an equitable interest in the Yokine property as a joint tenant in equity, and that Ms Gunn holds on trust Ms Meiners' interest in the Yokine property and any other property and / or chattels of Ms Gunn to which the money transferred was applied, for her. Further and in the alternative, Ms Meiners says that the money was transferred to Ms Gunn as a consequence of Ms Gunn's undue influence over her.
In the alternative, Ms Meiners says that she and Ms Gunn entered into an agreement by conduct by which she loaned the money to Ms Gunn, and that despite demand, there has been a failure to repay.
At trial there were three issues. First, whether the transactions (being the transfers of money by Ms Meiners to Ms Gunn) constituted unconscionable dealings as a consequence of Ms Gunn's unconscionable conduct. Secondly, whether the transfers of money to Ms Gunn were a product of Ms Gunn's undue influence over Ms Meiners. Thirdly, whether the moneys were transferred pursuant to a loan agreement, now due and payable by Ms Gunn.
For the reasons set out below, I find that the transactions constituted unconscionable dealings. So far as equity can, it is proper that Ms Meiners' position should be reinstated.
In these reasons for decision, I deal with the following matters.
1.The cases advanced by Ms Meiners and by Ms Gunn.
2.The applicable principles.
3. The evidence and credibility findings in relation to the witnesses.
4.The factual findings.
5.Whether the transactions constitute unconscionable dealings:
(a)Was Ms Meiners under a special disadvantage or disability in dealing with Ms Gunn?
(b)Was that special disadvantage or disability sufficiently evident to Ms Gunn to make it prima facie unfair or unconscionable for Ms Gunn to accept or retain the benefit of the transactions?
(c)Did Ms Gunn establish that the transactions were fair, just and reasonable?
(d)Is it unconscionable for Ms Gunn to retain the financial benefits conferred upon her in circumstances in which it was not specifically intended or provided that she should enjoy such benefits?
6.Whether the transfers of money to Ms Gunn were the product of Ms Gunn's undue influence over Ms Meiners.
7.The alternative loan claim.
8.Conclusion and orders.

The cases advanced by Ms Meiners and by Ms Gunn.

The parties' pleaded cases

The claims made by Ms Meiners

The case advanced by Ms Meiners was outlined in a re-amended substituted statement of claim filed on 19 November 2018 in terms summarised below.
Ms Meiners alleged that at all material times, she was vulnerable and emotionally dependent upon Ms Gunn, in that she was aged, being between 78 and 79 years of age at the time of the matters pleaded; isolated and living alone; grieving the loss of her husband; and in poor health in that she required a knee replacement. She relied upon Ms Gunn for advice concerning the management of her assets, and she reposed trust and confidence in Ms Gunn. Ms Meiners pleaded particulars of reliance which included that on 17 February 2015, Ms Meiners appointed Ms Gunn as her attorney and sole guardian pursuant to an enduring power of attorney and pursuant to an enduring power of guardianship.
Ms Meiners alleged that in or about February 2015, Ms Gunn advised and encouraged her to sell the Armadale property, and in this regard, it was pleaded that Ms Gunn said to Ms Meiners words to the following effect:
(a)Ms Meiners should think about selling her home;
(b)the Armadale property was isolated and too difficult to maintain;
(c)Ms Meiners should sell the Armadale property and move closer to where Ms Gunn's daughter (Briana) lived in Yokine;
(d)Ms Meiners and Ms Gunn should combine their funds to purchase a property together;
(e)Ms Meiners and Ms Gunn would own a property together to live in as a family together; and
(f)Ms Meiners was a part of Ms Gunn's family and Ms Gunn and her daughter (Briana), would look after Ms Meiners.
Ms Meiners alleged that by reason of Ms Gunn's advice and encouragement as pleaded, Ms Meiners listed the Armadale property for sale in about February or March 2015.
Further, in or about May or June 2015, Ms Gunn advised and encouraged Ms Meiners to purchase a retirement village unit lease at the Masonic Care WA Retirement Village in Dianella, and to deal with the net proceeds of the sale of the Armadale property so as to protect Ms Meiners' pension entitlements. In this regard, it is alleged that Ms Gunn said to Ms Meiners words to the following effect:
(a)Ms Meiners needed to move closer to her family and the drive from Yokine to Armadale was too far;
(b)if Ms Meiners sold the Armadale property and purchased a retirement village lease, Ms Meiners would have excess cash that would affect her pension entitlements;
(c)Ms Meiners' pension entitlements would not be affected if Ms Meiners gave Ms Gunn cash from the sale of the Armadale property;
(d)if Ms Meiners did not like living in the Masonic Village unit, then Ms Gunn would use the cash from the sale of the Armadale property and take out a bank loan to purchase a two bedroom unit in which Ms Meiners could live; and Ms Meiners could pay out the bank loan connected with the purchase of that property from the sale of the Masonic Village unit lease.
Ms Meiners claimed that the matters particularised at par 12(d) of the pleading and reproduced at [16(d)] above gave expression to a common intention held by the parties in the circumstances (the Common Intention), and a reasonable expectation on the part of Ms Meiners (the Expectation) that money from the sale of the Armadale property would be used by Ms Gunn to acquire a property to be enjoyed by Ms Meiners during her lifetime if she no longer wished to live in the Masonic Village unit, and to provide Ms Gunn with a home after Ms Meiners' death.
Ms Meiners claimed that in reliance upon the Common Intention, the Expectation and Ms Gunn's advice and encouragement, she:
(a)signed a retirement village lease with the Grand Lodge of Western Australian Freemasons Homes for Aged (Incorporated) trading as Masonic Care WA;
(b)sold the Armadale property in about April 2015 and settled on the sale on 14 July 2015;
(c)on 15 July 2015, transferred the excess cash from the sale of the Armadale property, $130,000, to Ms Gunn's bank account held with the Commonwealth Bank of Australia (defined in the pleading as the CBA Bank Account); and
(d)began living in the Masonic Village unit.
Ms Meiners claimed that by about late July or early August 2015, Ms Meiners told Ms Gunn words to the effect of that she did not like living at the Masonic Village unit, and after that conversation, Ms Gunn:
(a)took Ms Meiners to inspect the Yokine Property; and
(b)did not inform Ms Meiners that she had entered into a written contract to purchase the Yokine property on about 18 June 2015.
Ms Meiners contended that the contract to purchase the Yokine property was signed by Ms Gunn on 14 June 2015. The purchase price was $390,000. The purchase price, fees and expenses incurred in acquiring the Yokine property were together approximately $405,000.
Ms Meiners claimed that in or about early August 2015, Ms Meiners moved out of the Masonic Village unit and began to live in a rental unit in the Regis Retirement Village in Nedlands. Ms Meiners claimed that she held a discussion with Ms Gunn the substance of which was that Ms Gunn said that her residing at the Regis Retirement Village was a temporary measure while Ms Gunn found a property for her.
Ms Meiners claimed that on or about 24 August 2015, Ms Gunn completed the purchase of the Yokine property and became the registered proprietor of that property. Ms Gunn settled the purchase of the Yokine property by applying $104,863.23 of the funds given to her by Ms Meiners on 15 July 2015; and by borrowing from the Commonwealth Bank of Australia the sum of $295,625.00 (referred to in the pleading and in these reasons as the CBA Home Loan).
Ms Meiners claimed that in about late August 2015, Ms Gunn told Ms Meiners that she had purchased the Yokine property, and in about September or October 2015, Ms Meiners asked Ms Gunn if she could live there.
Ms Meiners claimed that Ms Gunn did not allow her to live in the Yokine property and instead offered to purchase Ms Meiners a property of her own. Ms Meiners claimed that Ms Gunn said to her words the substance of which were that Ms Gunn was selling her property located in Cookernup, and if Ms Meiners gave Ms Gunn the proceeds of the sale of the Masonic Village unit lease, Ms Gunn would combine the proceeds of sale of the two properties to purchase a property for Ms Meiners to live in close to the Yokine property. In these reasons, I refer to Ms Gunn's property as the Cookernup property.
Ms Meiners claimed that by saying words to this effect, Ms Gunn represented to Ms Meiners that she would give effect to the Common Intention and intended to satisfy the Expectation. Ms Meiners claimed that relying on the representations, she gave the net proceeds of the sale of the Masonic Village unit lease to Ms Gunn. That is, on about 9 December 2015, Ms Meiners caused the sum of $242,717.43 to be deposited into the CBA Bank Account.
Ms Meiners claimed that she paid to, and Ms Gunn received from her the amount of $372,717.43, and that she paid the money to Ms Gunn relying on the Common Intention and in accordance with Expectation.
It was alleged that between 15 July 2015 and 29 December 2015, Ms Gunn had applied at least $320,863.23 of the money transferred to her by Ms Meiners to the purchase of the Yokine property and in the reduction of the CBA Home Loan, and had otherwise applied the balance of the money for her own use.
Ms Meiners claimed that Ms Gunn has failed to give effect to the parties' Common Intention and has failed to satisfy the Expectation. Further, Ms Gunn has denied and continues to deny that Ms Meiners has any legal or equitable interest in the Yokine property or in the money transferred, and asserts that the money transferred was a gift from Ms Meiners to her.
Ms Meiners claimed that in the circumstances pleaded, it is unconscionable for Ms Gunn to retain the benefits conferred on Ms Gunn by the use of the money transferred and to maintain the denials that Ms Meiners has any legal or equitable interest in the Yokine property or in the money transferred, and to maintain the assertion that the money was a gift.
Ms Meiners claimed an equitable interest in the Yokine property as a joint tenant in equity, and that Ms Gunn holds on trust for her Ms Meiners' interest in the Yokine property, any other property and / or chattels of Ms Gunn to which Ms Meiners' money was applied.
Further and in the alternative, Ms Meiners claimed that the money was paid to Ms Gunn as a consequence of Ms Gunn's undue influence over her. Ms Meiners relies on the presumption of undue influence. Ms Meiners contends that in the circumstances, it is unconscionable for Ms Gunn to retain Ms Meiners' money.
In the alternative, Ms Meiners claimed that she and Ms Gunn entered into an agreement by conduct by which she loaned the money to Ms Gunn, and that despite demand, there has been a failure to repay.
Ms Meiners seeks a declaration that Ms Gunn holds the Yokine property and all other property and/or chattels owned by Ms Gunn and acquired by application of the money transferred on trust for Ms Meiners. Ms Meiners also seeks an account; an order that the Yokine property and such other property held on trust by Ms Gunn for her be sold with the net proceeds of the sale of such property be paid to Ms Meiners, after the deduction of reasonable expenses incurred in selling the property and discharging secured interests in the property; equitable compensation; alternatively, a debt in the amount of $372,717.43; interest on the moneys transferred and such other orders as the court may think fit.

Ms Gunn's defence

Ms Gunn ceased being represented during the course of the proceeding and was not represented at the trial. On 26 September 2018, Ms Gunn filed a document titled 'affidavit of Debra Gunn, statement of defence', which stood as her defence to the re-amended substituted statement of claim.
On the pleadings, very few facts were admitted. Paragraphs 1 to 5 of the re‑amended substituted statement of claim were admitted. That is, it was admitted that Ms Meiners is an aged pensioner having been born on 16 July 1936; that Ms Gunn is Ms Meiners' daughter; that from about the year 1992, Ms Meiners lived with her late husband at their home, being the Armadale property; that Ms Meiners and her late husband were the registered proprietors of the Armadale property as joint tenants, and owned their property unencumbered; and that Ms Meiners' husband died on 4 September 2014.
As pleaded, Ms Gunn appears to have admitted that she received money from Ms Meiners. At trial, Ms Gunn confirmed that receipt from Ms Meiners of the total amount of $372,717.43 was not in dispute.
In summary, by her pleading, Ms Gunn contended that the money transferred to her by Ms Meiners was transferred to her as a gift for her sole use and benefit, and denied many of the representations attributed to her. Ms Gunn pleaded that the amount of $130,000 was by statutory declaration declared by Ms Meiners to be a gift to Ms Gunn.
Ms Gunn denied that Ms Meiners was vulnerable and emotionally dependent upon her.
Ms Gunn denied that Ms Meiners relied upon her for advice concerning the management of Ms Meiners' assets and reposed trust and confidence in her. While Ms Gunn was appointed an attorney, she claimed not to have exercised power pursuant to that attorney as Ms Meiners continued to make decisions independently. Ms Gunn pleaded that Ms Meiners never relied upon Ms Gunn for advice. Further, Ms Gunn contended that Ms Meiners obtained independent legal and financial advice after the death of her husband. That included advice to the effect that it would be a good idea for Ms Meiners to be closer to either Briana or to her son.
Ms Gunn denied that the conversations alleged to have taken place prior to the sale of the Armadale property, as pleaded on behalf of Ms Meiners, occurred. Rather, Ms Gunn contended that she had repeatedly said to Ms Meiners words to the effect that Ms Meiners should wait at least two years after the death of her husband before making any major decisions about her life. However, once Ms Meiners had made the decision to sell the Armadale property, Ms Gunn contended that she accepted Ms Meiners' wishes; and agreed that it would be a good idea for Ms Meiners to be closer to either Briana or to her son.
Ms Gunn contended that it was Ms Meiners who in April 2015 suggested that Ms Gunn purchase a property with Ms Meiners, but Ms Gunn did not agree to do so.
Ms Gunn denied that in or about May or June 2015, she advised and encouraged Ms Meiners to purchase a retirement village unit lease at the Masonic Care WA Retirement Village in Dianella, and to deal with the net proceeds of the sale of the Armadale property so as to protect her pension entitlements. However, once Ms Meiners had made the decision to sell, Ms Gunn contended that she did agree that it would be a good idea for Ms Meiners to be closer to either her granddaughter or to her son, and she did support Ms Meiner's decision to purchase the unit.
Ms Gunn denied having said words to the effect of those set out at par 12(d) of the re‑amended substituted statement of claim, reproduced at [16(d)] above, and denied that there was a common intention, or any expectation on the part of Ms Meiners that money from the sale of the Armadale property would be used by Ms Gunn to acquire a property to be enjoyed by Ms Meiners during her lifetime, and to provide Ms Gunn with a home after Ms Meiners' death. Ms Gunn maintained that the common intention between her and Ms Meiners was that Ms Meiners would live and own the Masonic Village unit and Ms Gunn would live and own the Yokine property.

As to the move by Ms Meiners to the rental unit in the Regis Retirement Village in Nedlands, Ms Gunn denied having represented to Ms Meiners that her residing at the Regis Retirement Village was a temporary measure while Ms Gunn found a property for Ms Meiners. Ms Gunn alleged that she told Ms Meiners not to move from the Masonic Village unit, but to give herself more time. Ms Gunn claimed that Ms Meiners had said words to her the substance of which were that Ms Meiners wanted to move to Nedlands as it had nursing home facilities, was close to Hollywood Hospital and was a larger home with better facilities. Further, that the facilities were everything that someone in her age group would want.
Ms Gunn admitted that she settled on the purchase of the Yokine property by applying $104,863.23 of the funds given to her by Ms Meiners on 15 July 2015; and by borrowing from the Commonwealth Bank of Australia the sum of $295,625. Ms Gunn contended that the Ms Meiners knew of her purchase of the Yokine property when she gifted $130,000 to Ms Gunn.
Ms Gunn denied that Ms Meiners asked if she might live at the Yokine property in about September or October 2015, and also denied having instead offered to purchase a property for Ms Meiners to reside.
While Ms Gunn accepted that the further sum of $242,717.43 was deposited into Ms Gunn's bank account by Ms Meiners on about 9 December 2015, she denied that the deposit was made in reliance on the representations alleged to have been made to Ms Meiners by her; and denied that the money was transferred by Ms Meiners relying on the Common Intention and in accordance with the Expectation. Ms Gunn contended that the moneys transferred to her were intended by Ms Meiners to be used by Ms Gunn to purchase a property for herself and to pay debts accrued by Ms Gunn.
Ms Gunn contended that Ms Meiners was not entitled to any relief claimed in the proceeding. Ms Gunn maintained that this is a simple matter of a parent gifting money to a child and then changing her mind.

The parties' written submissions

The parties relied upon written outlines of submissions for trial. Ms Gunn also relied upon a written chronology of events which was filed with her submissions.
The submission filed on behalf of Ms Meiners stated that she claimed to be entitled to relief on three bases, as follows:[1]
(a)That the transfer of her money to Ms Gunn was the product of Ms Gunn's undue influence over Ms Meiners.
(b)That at all material times, Ms Meiners was vulnerable by reason of special disadvantage. In circumstances where Ms Gunn was aware of that special disadvantage, Ms Gunn unconscionably received Ms Meiners' money and applied it for her own purposes.
(c)That Ms Meiners paid her money to Ms Gunn based on an understanding that the money would be enjoyed by Ms Meiners during her lifetime if she no longer wished to live in a retirement village, and to provide a property for Ms Gunn after Ms Meiners' death. The understanding was that Ms Meiners would live with Ms Gunn to be close to her family and for Ms Gunn to take care of her as she grew old. The understanding and relationship upon which the payment of money was based has been removed and it is unconscionable for Ms Gunn to retain the financial benefits conferred upon her in circumstances in which it is not specifically intended or specially provided that she should enjoy those benefits.
[1] Plaintiff's submissions filed 28 November 2018 par 94.
The trial was adjourned part heard for closing submissions. Programming orders were made for the filing of written outlines of submissions.
Submissions were filed on 29 January 2019 and 27 February 2019 on behalf of Ms Meiners and by Ms Gunn respectively. The usual order was varied to give Ms Gunn, who was not represented, the benefit of receiving the submissions prepared and filed on behalf of Ms Meiners, and responding to the same.
On 25 March 2019, at the request of the parties, the hearing listed for the parties to present their closing submissions was vacated as the parties had elected to rely upon their filed submissions.

The trial

As Ms Gunn was not represented at the trial, steps were taken to ensure, so far as possible, that Ms Gunn had sufficient information about the practice and procedure of the court. That information was provided prior to the commencement of the trial and, as necessary, during the course of the trial.
As Ms Gunn was not adequately prepared to cross‑examine Ms Meiners, witnesses were called out of turn so as to afford Ms Gunn further time to prepare.
When cross‑examining, Ms Gunn found it extremely difficult to ask fair questions, and to refrain from summarising or commenting upon the answers given. The circumstances and the interests of justice required the court to ask questions of witnesses, in particular to provide to witnesses in cross-examination an opportunity to respond to the evidence that formed part of Ms Gunn's case.

Applicable principles

Unconscionable dealing

Ms Meiners contended that the transactions, being the two transfers of money to Ms Gunn, constituted unconscionable dealings, and by this proceeding she sought the assistance of equity.
In Permanent Mortgages Pty Ltd v Vandenbergh,[2] Murphy JA summarised the law in relation to unconscionable dealing as follows.
[2] Permanent Mortgages Pty Ltd v Vandenbergh (2010) 41 WAR 353 [291] - [233].
219 Equity's jurisdiction to set aside a transaction for unconscionable dealing is invoked where one party to the transaction is under a special disadvantage or disability in dealing with the other party, and that special disadvantage or disability was sufficiently evident to the other party to make it prima facie unfair or unconscionable for that other party to accept or retain the benefit of the transaction: Commercial Bank of Australia v Amadio; Louth v Diprose (1992) 175 CLR 621, 637.
220The underlying equitable principle may be invoked 'whenever one party by reason of some condition or circumstance' is placed at a special disadvantage of which unfair and unconscientious advantage is taken by the other party: Commercial Bank of Australia v Amadio (462).
221 The special disadvantage will be sufficiently evident to the other party if the other party knows facts which would raise the possibility of the special disadvantage in the mind of a reasonable person: Commercial Bank of Australia v Amadio (467 ‑ 468, 479).
222Where such circumstances are shown to exist, the onus is on the other party to establish that the transaction was fair, just and reasonable: Commercial Bank of Australia v Amadio (474).
223The special disadvantage need not have been created by the party taking the benefit of the transaction: Louth v Diprose (629).
224The special disadvantage alleged must be one 'which seriously affects the ability of the innocent party to make a judgment as to his own best interests'; mere difference in bargaining power is insufficient: Commercial Bank of Australia v Amadio (462). The 'essence of such weakness is that the party is unable to judge for himself': Blomley v Ryan (1956) 99 CLR 362, 392; or 'to conserve his own interests': Blomley v Ryan (415); ACCC v C G Berbatis Holdings [12], [46], [55].
225In this regard care must be taken not to 'eviscerate unconscionability of its meaning': NZI Capital Corporation v Fulton [1998] FCA 667 Black CJ & Lehane J, quoting Mason CJ in Stern v McArthur [1988] HCA 51; (1988) 165 CLR 489, 503.
226In ACCC v C G Berbatis Holdings, Gleeson CJ [14] said:
Unconscientious exploitation of another's inability, or diminished ability, to conserve his or her own interests is not to be confused with taking advantage of a superior bargaining position. There may be cases where both elements are involved, but, in such cases, it is the first, not the second, element that is of legal consequence ...
227In ACCC v C G Berbatis Holdings, Gummow & Hayne JJ [56] also said that even a person in a 'greatly inferior bargaining position' may nevertheless not lack capacity to make a judgment about that person's own best interests.
228In all cases, the court's equitable jurisdiction is to be exercised according to recognised principles, and the courts are not armed with a general power to set aside transactions which in the eyes of the judges appear unfair, harsh or unconscionable: Louth v Diprose (654) (Toohey J, although in dissent in the result).  See also the observations of Sir Anthony Mason in 'The Impact of Equitable Doctrine on the Law of Contract', (1998) 27 Anglo‑American Law Review 1, 12 cited by Debelle & Wicks JJ in Micarone v Perpetual Trustees Australia Ltd [1999] SASC 265; (1999) 75 SASR 1 [648]:
There is a strong objection to simply equating the concept to what is unreasonable and unfair. The object of the doctrine is not to protect people from the consequences of their own mistakes. Because our contract law, unlike that of the United States, does not impose a general obligation of good faith and fair dealing, it is preferable to think of unconscionable conduct in terms of that which shocks the conscience, something which is harsh or oppressive in that it involves taking advantage of another's special disability or disadvantage. So understood, the concept is not one which is open‑ended, to be applied according to the subjective whim of the Judge, though like other standards, such as that of 'the reasonable person', borderline applications will require an element of value judgment.
229In Bridgewater v Leahy [76], Gaudron, Gummow & Kirby JJ referred with approval to the Privy Council's observations in Hart v O'Connor [1985] AC 1000, in which unconscionable conduct was described as:
[V]ictimisation, which can consist either of the active extortion of a benefit or the passive acceptance of a benefit in unconscionable circumstances.
230In The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 225 FLR 1 [4924], Owen J said that it is not enough for there to be unequal bargaining power - the conduct of the stronger party has to be exploitative or oppressive.
231Whilst the categories of disability are not closed, the requisite special disadvantage often involves poverty, need, sickness, age, infirmity of body or mind, sex, drunkenness, illiteracy, lack of education and lack of assistance or explanation when assistance or explanation is necessary: Blomley v Ryan (405, 415); lack of or limited comprehension of the English language: Commercial Bank of Australia v Amadio; impaired intelligence:  Wilton v Farnworth (1948) 76 CLR 646; or infatuation with or emotional dependence upon another person: Louth v Diprose.
232Absence of independent legal advice may in a given case be a circumstance of factual importance in determining whether a special disability exists:  Bridgewater v Leahy [41].
233Physical frailty and enfeeblement, with diminished knowledge by the party in question of that party's property and affairs generally, are not necessary elements of a special disadvantage: Bridgewater v Leahy [116].

Undue influence

Further and in the alternative, Ms Meiners claimed that the transactions were the product of Ms Gunn's undue influence over Ms Meiners.
Undue influence is a doctrine of equity pursuant to which a court may set aside a transaction which has been unconscionably procured in consequence of the relationship of the parties.[3]
[3] Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed, 2015) [15-005].
Inadequate consideration is to be distinguished from nominal consideration, which may be characterised in equity as in substance, a gift or voluntary disposition.[4] As to voluntary dispositions, in Permanent Mortgages Pty Ltd v Vandenbergh, Murphy JA at [247], citing Wilton v Farnworth,[5] noted that:
… it has always been considered unconscientious to retain the advantage of a voluntary disposition of a large amount of property improvidently made by an alleged donor who did not understand the nature of the transaction and lacked information of material facts such as the nature and extent of the property particularly if made in favour of a donee possessing greater information who nevertheless withheld the facts.
[4] Permanent Mortgages v Vandenbergh [246], citing Costin v Costin (1994) NSW ConvR 55‑715, 60, 97 overturned on appeal in the result: Costin v Costin (1997) 77 BPR 15, 167.
[5] Wilton v Farnworth (1948) 76 CLR 646, 655.
In Mercanti v Mercanti,[6] Buss P referred to Sir Frederick Jordan's Chapters on Equity in New South Wales (6^th ed, 1947), in which it is stated:
(a)a court of equity regards the free consent of the parties concerned as essential to every dealing;
(b)whenever one person procures another to enter into a transaction, or make a gift, 'by so dominating his mind as to prevent him from exercising a free discretion', the transaction or gift will have been produced by 'undue influence'; and
(c)the party influenced is entitled to avoid the transaction or gift in equity, if it is inter vivos, although the influence 'may fall altogether short of common law duress'.
[6] Mercanti v Mercanti (2016) WAR 495 [282].
Buss P then summarised the law in relation to undue influence as follows:[7]
[7] Mercanti v Mercanti [283] - [290].
283In Quek v Beggs (1990) 5 BPR 11,761, McLelland J said:
Generally speaking, the law permits a person of full age and capacity to dispose of his or her property by gift or otherwise in such manner as he or she may choose. However in certain recognised categories of case, principles of equity intervene to render such a [transaction or] gift liable to be set aside by the court. One of those categories is where the donor [enters into the transaction or] makes the gift as a result of 'undue influence' of the donee. In this context 'influence' means a psychological ascendancy by the donee over the donor, and 'undue influence' means the donee's taking improper advantage of such ascendancy: Union Bank of Australia Ltd v Whitelaw [1906] VLR 711 at 720. It is not necessary that the ascendancy amount to domination: Goldsworthy v Brickell [1987] Ch 378 at 402 - 406 (11,764).
284A donor or his or her legal personal representative will prima facie be entitled to have a transaction or gift set aside on the ground of undue influence upon proof of:
(a)facts establishing that the transaction or gift was made by the donor as a result of the donee's undue influence; or
(b)facts that give rise to a presumption that the transaction or gift was so made, unless the donee rebuts the presumption.
See Quek (11,764).
285A presumption of undue influence will arise where it is proved that:
(a)at the time of the transaction or gift there existed a relationship between the donor and the donee of such a nature as to involve reliance, dependence or trust on the donor's part which created an ascendancy on the donee's part; and
(b)the transaction is so improvident or the gift is so substantial as not to be reasonably accounted for on the ground of friendship, relationship, charity or other ordinary motives on which ordinary persons act.
See Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113, 134 ‑ 135 (Dixon J; Evatt J agreeing); Goldsworthy v Brickell [1987] Ch 378, 400 - 401 (Nourse LJ; Parker LJ & Sir John Megaw agreeing); Quek (11,764).
286Where the presumption arises, 'the Court interferes, not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy, and to prevent the relations which existed between the parties and the influence arising therefrom being abused': Allcard v Skinner (1887) 36 Ch D 145, 171 (Cotton LJ). See also Bank of New South Wales v Rogers [1941] HCA 9; (1941) 65 CLR 42, 85 (Williams J); Antony v Weerasekera [1953] 1 WLR 1007, 1011 (Lord Normand, Lord Cohen & Sir Lionel Leach); Quek (11,764). As Dixon J observed in Johnson:
[The donee] has chosen to accept a benefit which may well proceed from an abuse of [his position of ascendancy] and the relations between him and the donor are so close as to make it difficult to disentangle the inducements which led to the transaction. These considerations combine with reasons of policy to supply a firm foundation for the presumption against a voluntary disposition in his favour (135).
287When certain well-established relationships, such as solicitor and client, trustee and beneficiary, parent and young child, and doctor and patient are proved, the presumption will arise. But the classes of relationship which will give rise to the presumption are not closed. The presumption will arise wherever one party occupies or assumes a position naturally involving influence over another. See Johnson (134 - 138); Goldsworthy (401); Quek (11,764).
288Where the presumption of undue influence arises the donee may rebut the presumption by proving that the donor:
(a)knew and understood what he or she was doing; and
(b)was acting independently of any influence arising from the donee's ascendancy.
See West v Public Trustee [1942] SASR 109, 119 (Mayo J); Quek (11,765).
289It is not sufficient to prove only the first condition. As Lord Eldon observed in Huguenin v Baseley (1807) 33 ER 526:
The question is, not, whether she knew what she was doing … but how the intention was produced (536).
See also Harris v Jenkins [1922] HCA 54; (1922) 31 CLR 341, 368 (Starke J); Rogers (54), (85); Quek (11,765).
290As to the second condition, it is not necessarily sufficient to prove that the proposal to make the gift originated with the donor (Spong v Spong [1914] HCA 52; (1914) 18 CLR 544, 549 (Griffith CJ; Isaacs, Gavan Duffy, Powers & Rich JJ agreeing)) or that no active steps were taken by the donee to procure the gift (Allcard (183 - 186); Wright v Carter [1903] 1 Ch 27, 52 - 53 (Vaughan Williams LJ). In Quek McLelland J said (11,765):
The matters which in a particular case will need to be proved in order to rebut the presumption will depend upon the nature and incidents of the relationship on which the presumption is founded, since the influence which arises from different kinds of relationships varies in kind and degree: Johnson at 134.
The law in relation to undue influence is also conveniently summarised in the judgment of Murphy JA in Permanent Mortgages Pty Ltd v Vendenbergh, as follows:
166The basis of the equitable jurisdiction to set aside an alienation of property on the grounds of undue influence is the prevention of the unconscientious use of any special capacity in or opportunity for the disponee to affect the disponor's will or freedom of judgment in reference to the transaction: Johnson v Buttress (1936) 56 CLR 113, 134
167The jurisdiction to set aside a transaction procured by undue influence is exercised on two bases. The first is where undue influence is proved as a fact. The second is where undue influence is presumed by reason of the antecedent relationship between the parties, and the presumption has not been rebutted: Johnson v Buttress (119); Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VR 573, 575. The former is 'actual' undue influence and the latter is 'presumed' undue influence: Powell v Powell [2002] WASC 105 [120] - [121].
168Actual undue influence requires proof that the transaction was the outcome of such an actual influence over the mind of the disponor that it cannot be considered to be the free act of the disponor: Johnson v Buttress (134). The source of power to practise such influence or domination over the disponor may not arise from an antecedent relationship, but may arise in the particular situation, or by the deliberate contrivance of the disponee: Johnson v Buttress (134).
...
176The doctrine of undue influence looks to the quality of the consent, or assent, of the weaker party: Commercial Bank of Australia v Amadio (474); Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457, 478.

Interplay - the doctrines of unconscionable dealing and undue influence

The doctrines of unconscionable dealing and undue influence may apply in the same case. The following observations were made by Gaudron, Gummow and Kirby JJ in Bridgewater v Leahy:[8]
73… Each doctrine may be seen as a species of that genus of equitable intervention to refuse enforcement of or to set aside transactions which, if allowed to stand, would offend equity and good conscience. However, there are conceptual and practical distinctions between them …
74In Commercial Bank of Australia Ltd v Amadio, Deane J said that the two doctrines are distinct, undue influence looking to 'the quality of the consent or assent of the weaker party', while unconscionable conduct looks to the attempted enforcement or retention of the benefit of a dealing with a person under a special disability. Further, the recognition of certain special relations, the existence of any of which would itself support a presumption of undue influence, could provide a particular forensic advantage to plaintiffs.
75Sir Anthony Mason, with reference to the well developed Australian body of authority on the subject, has contrasted the two doctrines as follows:
My understanding of undue influence … is that it denotes an ascendancy by the stronger party over the weaker party such that the relevant transaction is not the free, voluntary and independent act of the weaker party. In other words, it is the actual or presumed impairment of the judgment of the weaker party that is the critical element in the grant of relief on the ground of undue influence.
…
Unconscionable conduct, as the term suggests, focuses more on the unconscientious conduct of the defendant. As a ground of relief in England unconscionable conduct has been confined largely to 'catching bargains' with expectant heirs and others in particular categories of disadvantage eg those who are illiterate. …In Australia, it has been recognised that unconscionable conduct is a ground of relief which will be available 'whenever one party by reason of some condition or circumstance is placed at a special disadvantage vis-à-vis another and unfair or unconscientious advantage is taken of the opportunity thereby created'. Unconscionable conduct is also recognised in New Zealand as a ground of relief in these circumstances.
76In Commercial Bank of Australia Ltd v Amadio, Deane J spoke of unconscionable conduct as occurring where, in the circumstances, it is unconscientious to 'procure, or accept, the weaker party's assent to the impugned transaction'. It also should be noted that in Hart v O'Connor, an appeal from New Zealand, the Privy Council described unconscionable conduct which provided a basis for equitable relief as 'victimisation, which can consist either of the active extortion of a benefit or the passive acceptance of a benefit in unconscionable circumstances. In so giving the judgment of the Privy Council, Lord Brightman was reflecting a general proposition put by James LJ in Torrance v Bolton. This was that it was the 'ordinary jurisdiction' of the Court of Chancery to deal with instruments and transactions 'in which the court is of opinion that it is unconscientious for a person to avail himself of the legal advantage which he has obtained'. … (Footnotes omitted.)
[8] Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457 [73] - [76].
In Thorne v Kennedy,[9] Kiefel CJ, Bell, Gageler, Keane and Edelman JJ held that:
Although undue influence and unconscionable conduct will overlap, they have distinct spheres of operation. One difference is that although one way in which the element of special disadvantage for a finding of unconscionable conduct can be established is by a finding of undue influence, there are many other circumstances that can amount to a special disadvantage which would not establish undue influence. A further difference between the doctrines is that although undue influence cases will often arise from the assertion of pressure by the other party which might amount to victimisation or exploitation, this is not always required. In Amadio, Mason J emphasised the difference between unconscionable conduct and undue influence as follows:
In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position.

Gifts and the doctrines of unconscionable dealing and undue influence

[9] Thorne v Kennedy (2017) 263 CLR 85.

In this case, Ms Gunn contended that the proper conclusion to be reached on the evidence was that Ms Meiners had made gifts of money to her simply because she had wished to do so, to assist Ms Gunn and ultimately Briana and her children, reducing Ms Gunn's debt and creating wealth for the family, imprudent though the gifts may have been.
If a gift was not the result of unconscionable conduct on the part of the defendant, a plaintiff cannot recover the gift. In Louth v Diprose,[10] Brennan J summarised the position as follows:
… As Lindley L.J. pointed out in Allcard v Skinner (37):
Courts of Equity have never set aside gifts on the ground of the folly, impudence, or want of foresight on the part of donors. The Court have always repudiated any such jurisdiction … It would obviously be to encourage folly, recklessness, extravagance and vice if persons could get back property which they foolishly made away with, whether by giving it to charitable institutions or by bestowing it on less worthy objects.
Salmond J. in Brusewitz v Brown (38) spoke to the same effect:
The law in general leaves every man at liberty to make such bargains as he pleases, and to dispose of his own property as he chooses. However improvident, unreasonable, or unjust such bargains or dispositions may be, they are binding on every party to them unless he can prove affirmatively the existence of one of the recognized invalidating circumstances, such as fraud or undue influence.
His Honour then goes on to distinguish cases of undue influence:
This general principle, however, is subject to an important exception. Where there is not merely an absence or inadequacy of consideration for the transfer of property, but there also exists between the grantor and the grantee some special relation of confidence, control, domination, influence, or other form of superiority, such as to render reasonable a presumption that the transaction was procured by the grantee through some unconscientious use of his power over the grantor, the law will make that presumption, and will place on the grantee the burden of supporting the transaction by which he so benefits, and of rebutting the presumption of its invalidity. In such cases it is necessary for the grantee to prove that the suspected transaction has not its source in any improper influence over the mind or will of the grantee, or in any fraud, misrepresentation, mistake, or concealment of material facts which ought to have been disclosed by the grantee to the grantor in view of the relation between them. Unless the grantee can prove this the transaction will be set aside at the suit of the grantor or his representatives.
The same approach leads to a similar conclusion when the evidence shows unconscionable conduct on the part of a donee. Once it is proved that substantial property has been given by a donor to a donee after the donee has exploited the donor's known position of special disadvantage, an inference may be drawn that the gift is the product of the exploitation. Such an inference must arise, however, from the facts of the case; it is not a presumption which arises by operation of law. The inference may be drawn unless the donee can rely on countervailing evidence to show that the donee's exploitative conduct was not a cause of the gift. At the end of the day, however, it is for the party impeaching the gift to show that it is the product of the donee's exploitative conduct. This is the final and necessary link in the chain of proof of unconscionable conduct leading to a decree setting aside the gift. (Footnotes omitted)
[10] Louth v Diprose [1992] 175 CLR 621, 631.
Ms Gunn also asserted that the presumption of advancement applied to her benefit in the circumstances of this case, but she did not attempt to develop the point.[11]
[11] Defendant's closing submissions dated 27 February 2019 par 268.
There is a presumption that moneys paid from a parent to a child are advanced by way of a gift. However, even if an appropriate relationship exists, the presumption may be rebutted by evidence of the parent's actual intention which is inconsistent with the application of the presumption.[12]
[12] Brown v Brown (1993) 31 NSWLR 582; Nelson v Nelson (1995) 184 CLR 538; Johnson v Johnson [2009] NSWSC 503 [101]; Hewitt v Gardner [2009] NSWSC 1107 [66].
In this proceeding, Ms Meiners primarily prosecutes her claim on the bases of unconscionable dealing and undue influence. She does not seek relief on the basis that the transfers gave rise to resulting trusts.
For the reasons expressed in Louth v Diprose, reproduced above, the court finding that the transfers were a gift, by presumption or otherwise, would not be an absolute defence to claim where equity has cause to intervene in circumstances of unconscionable dealing or undue influence.

The evidence and the credibility findings in relation to the witnesses.

The documentary evidence

Fifty three documents were admitted into evidence. The documents admitted into evidence by consent included the contracts for the sale of the Armadale property and the Yokine property respectively; the certificate of title for the Yokine property; the settlement statements prepared at the time of settlement of each of the properties; and a draft settlement statement concerning the surrender of the Masonic Village unit. Also admitted into evidence were bank statements which record the receipt of money by Ms Gunn the subject of this proceeding.

The witnesses

Counsel tendered two witness statements as the evidence‑in‑chief of Ms Meiners.[13] The witness statements of Ms Valerie Jean Parker and Mr James Alan Ford were also tendered as their respective evidence. The witnesses were cross‑examined by Ms Gunn.
[13] Witness statement of Ms Meiners dated 14 November 2018; responsive witness statement dated 23 November 2018.
Two witness statements were tendered as the evidence‑in‑chief of Ms Gunn.[14] Objection was taken to large portions of Ms Gunn's evidence. Irrelevant evidence was not admitted. As portions of Ms Gunn's evidence were in inadmissible form, Ms Gunn gave supplementary oral evidence. Despite assistance, Ms Gunn found it difficult to give evidence in admissible form. While some further objections were taken to Ms Gunn's evidence, Ms Gunn's oral evidence was largely admitted into evidence.
[14] Statement of evidence of Ms Gunn dated 12 November 2018; responsive statement of Ms Gunn dated 26 November 2018.
Ms Pho Yeun Soo, a pharmacist, was called by Ms Gunn and gave evidence. A summary of Ms Soo's evidence prepared on 30 November 2018 was tendered.
Ms Gunn and Ms Soo were cross‑examined by counsel for Ms Meiners.
Ms Meiners did not object to Ms Gunn also leading the evidence of Mr Ashley Bracken.[15] However, Ms Gunn ultimately elected not to call Ashley to give evidence.[16]

Findings as to the credibility of the witnesses

Mr Ford

[15] ts 315 (3 December 2018).

[16] ts 660 (18 December 2018).

Mr Ford is a financial adviser and in 2015 was the Senior Vice President of Legacy. Mr Ford gave evidence of the assistance he provided to Ms Meiners in October 2015, and of the conversations he had with Ms Meiners at that time.
Mr Ford gave evidence of his usual practice when volunteering for Legacy. While Mr Ford checked his 2015 diary and refreshed his memory from it, he had an independent recollection of the gist of his conversations with Ms Meiners in October 2015. I accept Mr Ford's evidence as truthful and reliable.

Ms Parker

Ms Parker is a daughter of the late Mr Meiners. She gave evidence of her relationship with Ms Meiners before and after Mr Meiners' death. She also had an independent recollection of the gist of a number of conversations with Ms Meiners.
On a number of occasions during her cross‑examination, Ms Parker's answers to questions put to her by Ms Gunn revealed her frustration. However, I accept Ms Parker's evidence to be truthful and reliable.
Parts of Ms Parker's evidence was inadmissible hearsay. On behalf of Ms Meiners it was submitted that such evidence was only sought to be relied upon to establish Ms Meiners' state of mind and her intention as expressed to others about the transactions.[17] This submission was not further developed. It was also submitted that the evidence was relied upon to establish that Ms Meiners' evidence was not the subject of recent invention.[18]
[17] Plaintiff's closing submissions dated 29 January 2019 par 9.
[18] Plaintiff's closing submissions dated 29 January 2019 par 95.
In the document taken to stand as Ms Gunn's defence, in response to the plea of a Common Intention and Expectation, Ms Gunn stated that the common intention and expectation between the plaintiff and the defendant was that the plaintiff live and own the retirement village unit and the defendant live and own the Yokine property. Further, Ms Gunn asserted that '[in] 4 years, of [State Administrative Tribunal] and Supreme Court affidavits, this is the first time that it has been raised that the Plaintiff expected the Defendant to acquire a property for the Plaintiff to live in her lifetime, which the Defendant could have after her death.'[19] It was not however clearly put to Ms Meiners in cross‑examination that her evidence was a recent fabrication, explicitly or implicitly.
[19] Affidavit of Debra Gunn, statement of defence dated 26 September 2018 par 13.
To the extent that I had regard to Ms Parker's evidence in the making of any finding of fact, I have done so expressly in these reasons. I have not weighed in the balance evidence of Ms Parker that is not expressly referred to.

Ms Soo

Ms Soo was called to give evidence concerning her signature as a witness on the statutory declaration relied upon by Ms Gunn. Ms Gunn had pleaded that the amount of $130,000 transferred to her on 15 July 2015 was by statutory declaration declared by Ms Meiners to be a gift to Ms Gunn.[20]
[20] Exhibit 35.
Ms Soo had no recollection of having witnessed the making of a statutory declaration by Ms Meiners in June 2015. Ms Soo gave evidence as to her usual practice in witnessing the making of statutory declarations and that she recognised her handwriting and the stamps applied to the document as her own. Ms Soo also gave evidence of her familiarity with Ms Meiners. I accept Ms Soo's evidence to be truthful and reliable.

Ms Meiners

Counsel tendered witness statements as Ms Meiners' evidence‑in‑chief. She was cross‑examined by Ms Gunn.
I approached Ms Meiners' evidence with caution for the following reasons.
First, Ms Meiners had good reason to give self‑serving evidence. At the trial, Ms Meiners was 82 years old and had made two transfers of money to Ms Gunn, being the majority of Ms Meiners' personal wealth. The outcome of this proceeding will be determinative of Ms Meiners' financial security going forward. While Ms Meiners receives a pension, it was reduced by reason of her having transferred money to Ms Gunn. Ms Meiners was widowed and she no longer owned her own home. She had no ability to otherwise generate income, or from her own funds provide for her care or accommodation going forward.
Secondly, although the evidence focussed on events and conversations within the relatively confined period of September 2014 to early 2016, on a number of occasions, Ms Meiners' evidence revealed a lack of precision and confusion in relation to dates.
Some of Ms Meiners' evidence concerning dates and the chronology of events was consistent with the evidence of others. Ultimately, I was satisfied that when Ms Meiners' evidence was considered as a whole, in the context of all of the evidence led, her confusion and lack of precision as to dates did not cast doubt over all of her evidence.
Thirdly, Ms Meiners' evidence revealed gaps in her memory.
Ms Meiners' evidence concerning the statutory declaration gave me significant pause. The effect of Ms Meiners' evidence was that she had not signed the statutory declaration and that she was not aware of its existence until after she and Ms Gunn were involved in the proceeding before the State Administrative Tribunal. For reasons explained in more detail below, I found that, it was more likely than not that Ms Meiners signed the statutory declaration before Ms Soo, and that Ms Meiners' now has no memory of signing the statutory declaration.
I weighed heavily in the balance Ms Meiners' evidence in relation to the statutory declaration when determining whether her evidence was reliable. Having rejected Ms Meiners' evidence in relation to the statutory declaration raised a serious question as to the reliability of the rest of Ms Meiners' evidence.
Fourthly, I had regard to Ms Gunn's complaints that the evidence given by Ms Meiners in cross‑examination and re‑examination was not given with the same level of particularity as expressed in her witness statements; the suggestion made during cross‑examination that some of Ms Meiners' evidence was expressed in language that Ms Gunn would not expect Ms Meiners to use; and Ms Gunn's description of Ms Meiners' evidence as being on occasion 'smug, flippant and evasive.'
I observed Ms Meiners respond assertively to questions put to her in cross‑examination and re‑examination. I formed the view that Ms Meiners was an alert and engaged witness. I did not form the view that Ms Meiners language or manner of expression in her witness statement differed markedly to her oral expression, so as to any adverse inference. On a number of occasions during her cross‑examination, Ms Meiners' answers to questions put to her by Ms Gunn were abrupt. The fractious relationship between mother and daughter was evident on more than one occasion during the cross examination. However, I formed the view based on all of Ms Meiners' evidence that she did not seek to tailor her evidence to suit her own case, and I did not form the impression that Ms Meiners answered in a smug, flippant or evasive manner as submitted by Ms Gunn.
During cross‑examination, Ms Meiners answered the questions put to her directly and made a number of concessions. By way of example, in cross‑examination it was put to Ms Meiners that she sold the Armadale property because she found the house a bit isolated, and because she felt isolated in the home after her husband's death.[21] Ms Meiners agreed that she did feel isolated and had not settled down to being on her own. Ms Meiners also agreed that after Mr Meiners' death, she would have said to Ms Gunn words to the effect that she wanted to get out of the house and wanted to have social contacts.[22] Ms Meiners agreed that one of the reasons why she decided to sell the Armadale property was that she was no longer confident to drive from Armadale to Yokine.[23] Ms Meiners explained that she '…wanted to be able to see the family more readily, to be closer to them and not have the long drive.'[24]
[21] ts 462 (4 December 2018).
[22] ts 709 - 710 (19 December 2018).
[23] ts 494 (4 December 2018).
[24] ts 494 (4 December 2018).
In re‑examination, when asked what was the main reason she decided to sell her home, Ms Meiners responded as follows.[25]
Well, I missed Ben. All of a sudden, I was on my own and the house was cold. And it wasn't very big, but it was – grief does funny things to you. No matter how warm it was, the house was cold and I was cold. And it wasn't a sign without him. And so, to escape this feeling, I thought I go somewhere else that does not remind me of him and of the loss. Not that that helped, but I didn't know that at the time.
[25] ts 777 (19 December 2018).

When Ms Meiners was asked if there were other reasons why she had decided to sell the home, the following exchange took place:[26]
Well, yes. It brought me closer to the family. I was too far away. From Armadale to Dianella it's an hour's drive and it's heavy traffic and all this. Yes. I thought it was a good choice.
Counsel: And we have your evidence already about the discussions you had with your daughter. Were they a factor in the reason why you decided to sell your home?
Well, it was a part of it, yes.
Counsel: So, out of all of those reasons, was their one main reason why you decided to sell your home?
There wasn't one main reason, but all of those made sense at the time, combined.
[26] ts 778 (19 December 2018).
By way of further example, during cross‑examination, Ms Meiners gave evidence that her grief was a possible reason why Ms Meiners had distanced herself from Ms Parker. That is, Ms Meiners made the concession that Ms Gunn's advice was possibly not the only reason for Ms Meiners having distanced herself from Ms Parker.
I gave careful consideration to Ms Meiners' evidence as a whole. I found that Ms Meiners' evidence in cross‑examination and re‑examination as to the conversations she had with Ms Gunn were in the main broadly consistent with her pleaded version of their conversations and arrangements, and her filed witness statements.
As explained in more detail below, when Ms Meiners' evidence was considered as a whole, in the context of all of the evidence led, Ms Meiners' evidence afforded a logical and more probable explanation for the events that took place than the evidence of Ms Gunn.
I found Ms Meiners to be an honest witness. Although there were gaps in Ms Meiners' recollection (Ms Meiners' evidence in relation to the statutory declaration being notable), and on occasion there was a lack of precision in relation to her recollection of the chronology of events, such issues were not determinative of my finding as to credit. I found much of Ms Meiners' evidence as to the general relationship of the parties and the circumstances in which the subject of the transfer of money arose convincing, but I was not persuaded to accept evidence which I considered to be improbable or which was in conflict with other convincing evidence.
On balance, I concluded that Ms Meiners' evidence was truthful and in the main, reliable.

Ms Gunn

I also approached Ms Gunn's evidence with caution.
First, like Ms Meiners, Ms Gunn also had a lot to lose in this proceeding. The relief pressed by Ms Meiners would likely cause Ms Gunn to be divested of all of her personal wealth, including the Yokine property.[27] Like Ms Meiners, Ms Gunn had good reason to give self‑serving evidence. However, unlike Ms Meiners, Ms Gunn left me with no doubt that on occasion she gave self‑serving evidence.
[27] ts 976 (20 December 2018).
For example, Ms Gunn's evidence during cross‑examination concerning her interaction with Ms Meiners in the months that followed Mr Meiners' death sought to downplay the significance of Ms Gunn's presence at the Armadale property and her contact with her mother at that time.
In addition, Ms Gunn gave self‑serving evidence the effect of which was that Ms Gunn always did what her mother asked of her; and that on Ms Meiners' advice, Ms Gunn looked for a property; made an offer and then purchased the Yokine property; incurred a second loan liability; and proceeded to sell her Cookernup property, which Ms Gunn said that she enjoyed.[28]
[28] ts 797 - 799 (20 December 2018). See also ts 810 (20 December 2018).
Secondly, I formed the view that Ms Gunn deliberately sought to downplay her role and also the extent to which she brought her own independent judgment to her actions and decisions. For example, in cross-examination, Ms Gunn sought to downplay the significance of her relationship and contact with her mother after Mr Meiners' death. Ms Gunn also sought to downplay the extent to which she brought her own independent judgment to her decision to purchase the Yokine property in her own name; her decision to use moneys transferred to her by Ms Meiners to purchase the Yokine property and to pay personal debts;[29] and her decision to use the second tranche of money transferred to her by Ms Meiners to further reduce the mortgage on the Yokine property and to renovate the Yokine property.
[29] ts 797 - 799 (20 December 2018).
Thirdly, Ms Gunn accepted that information she provided to Archer J in the course of the hearing of an application made on behalf of Ms Meiners for freezing orders in this proceeding was false.
The transcript of the hearing before Archer J on 14 September 2018 was tendered and Ms Gunn was taken to the transcript during the course of her cross‑examination.[30]
[30] Exhibit 53.
Ms Gunn had informed Archer J that some money withdrawn from bank accounts held by Ms Gunn shortly before the hearing of the application was 'buried in the garden'. Other answers given by Ms Gunn to the questions asked of her by Archer J on 14 September 2018 were evasive.
During cross‑examination, it was put to Ms Gunn that 'when Archer J was having this conversation with you about where the money was, you had put it in a safe at work?' and Ms Gunn responded 'That's correct.' That is, Ms Gunn accepted that the information she had provided to Archer J was false.
It was also put to Ms Gunn that she answered Archer J dishonestly. In response, Ms Gunn stated:
Yes, completely lied through my teeth, was deceptive, and of course.
Counsel: Yes?
I was not – I was in a complete state of stress, misunderstanding, to knowing the situation. A freezing order? Honestly.
When pressed to give an answer that Ms Gunn perceived could damage her own position, both at the trial and at the hearing before Archer J, Ms Gunn gave evasive answers. She did not immediately answer questions put to her directly and honestly. She would later describe her answers as 'sarcasm' or a 'throw away comment', and cite the stress of the situation as the reason for her having not responded directly and honestly.
I do not underestimate the stress of the proceeding on the parties in this action, and I am cognisant of the stress that is likely felt by a litigant in person during a trial defending a claim such as this. However, from my observations of Ms Gunn's demeanour as a witness during the trial, I find that her evasive answers and dramatic responses were deliberately deployed by her as techniques to dodge answering particularly difficult questions, and further, to cast doubt generally and to create confusion so as to make it difficult to determine Ms Gunn's evidence and what concessions had genuinely been made.
Fourthly, in cross‑examination Ms Gunn failed on occasion to provide complete and candid answers to questions, and sought to avoid answering questions that might reveal her lack of candour or inconsistencies in her evidence.
By way of example, Ms Gunn was asked under cross-examination whether or not she had any other financial resources as at August 2015 in addition to her wage. She said that she had none, and that she had only one source of income, being her wages at the time of purchasing the Yokine property as at 24 August 2015. The effect of Ms Gunn's evidence was that after paying the mortgages, she was left with $300 per week.[31]
[31] ts 869 (20 December 2018), as summarised in the plaintiff's closing submissions filed 29 January 2019 par 164.
It was put to Ms Gunn that when applying for her loan to purchase the Yokine property, Ms Gunn had represented to the mortgage broker that she had other income in the amount of $15,600 per annum from her having rented the Cookernup property for the period 14 August 2015 to 14 August 2016. The residential tenancy agreement was between Ms Gunn and her son in law, Mr Scott Shipsides, and was dated 26 June 2015.[32]
[32] Exhibit 51.
Ms Gunn denied that the residential tenancy agreement was a sham document designed to mislead the bank into the belief that Ms Gunn's income was sufficient to service a second loan (that is, the loan to purchase of the Yokine property).[33] Ms Gunn accepted that rent was not paid by Mr Shipsides into the bank account nominated in the residential tenancy agreement. Ms Gunn's evidence was that rent was paid through cash 'and through different things'.[34]
[33] ts 873 (20 December 2018), as noted in the plaintiff's closing submissions filed 29 January 2019 par 167.
[34] ts 873 - 874 (20 December 2018), as noted in the plaintiff's closing submissions filed 29 January 2019 par 167.
Confronted with the inconsistency between her earlier evidence that she had no other financial resource as at 24 August 2015, and her evidence that she received rent through cash and other consideration, it was not Ms Gunn's evidence that she had simply forgotten about the rental income. Rather, Ms Gunn responded to the inconsistency by asserting, without any details, that Mr Shipside had occupied the Cookernup property and paid rent at a prior period in 2015.[35]
[35] ts 875 - 876 (20 December 2018).
When pressed as to when Mr Shipside paid rent, Ms Gunn answered 'it was earlier in the year'; 'when they were actually living there earlier in the year'. When pressed as to when this was, Ms Gunn answered 'I don't know', and when pressed further she said 'they were living there before [Mr Meiners'] died.'[36] (That is, before 4 September 2014 in circumstances where the tenancy agreement was dated 26 June 2015.)
[36] ts 876 (20 December 2018).
I note that Ms Gunn had earlier given evidence that prior to Mr Meiners' death, Ms Gunn had stayed with Briana during the week.[37]
[37] ts 792 (20 December 2018); defendant's submissions dated 30 November 2018 par 44.
I accept the submission made on behalf of Ms Meiners that Ms Gunn's answers suggest that either the tenancy agreement was a sham document (and Ms Gunn was not honest in her evidence as to the reason why she and Mr Shipsides documented a tenancy agreement), or that Ms Gunn's evidence that she had only one source of income, being her wages, at the time of purchasing the Yokine property as at 24 August 2015 was not accurate. Ms Gunn's answers together with my impression of Ms Gunn's demeanour during cross‑examination contributed to my having formed the view that on occasion, Ms Gunn failed to provide complete and candid evidence.
Fifthly, on occasion, Ms Gunn sought to tailor her evidence to assist her own case. By way of example, Ms Gunn sought to emphasize that Ms Meiners' decision to market and sell the Armadale property, and the timing of that decision, created significant trouble and inconvenience for Ms Gunn. No concession was made that Ms Gunn had benefitted from the receipt of money from Ms Meiners.
Further, the evidence given by Ms Gunn to assist her own case was not always wholly consistent. By way of example, Ms Gunn gave evidence concerning conversations she said she had with Ms Meiners concerning Ms Meiners' will. In this regard, the effect if Ms Gunn's evidence was that she had had many conversations with Ms Meiners in which Ms Meiners repeatedly expressed her concern that the Armadale property would be left to Ms Parker should she pre‑decease her husband.[38] However, during cross‑examination, Ms Gunn gave evidence that in the 16 years prior to Mr Meiners' death, Ms Gunn had only what she considered to be 'superficial discussions' with Ms Meiners. Ms Gunn's evidence was that she and Ms Meiners '…talked about the chooks and food…'; and '…we would have general discussions about the garden and the house and the lifestyle. It would not have been detailed in-depth discussions with her about philosophy or politics or anything like that.'[39] The following evidence was also given in cross‑examination:
[38] ts 646 (18 December 2018).
[39] ts 818 (20 December 2018).
Counsel: Well, let's take it to a personal level. She wasn't confiding in you in that period?
And I didn't confide in her.
Counsel: And you weren't confiding in her?
No.
Counsel: That's correct. Right?
That's correct.
Counsel: So it wasn't a mother and daughter relationship where you could turn to your mum for personal comfort or advice?
No. She wouldn't come to me for that either.
…
We were not dependent on each other at all.
As noted above and explained in more detail below, when Ms Gunn's evidence was considered as a whole, in the context of all of the evidence led, I found that Ms Meiners' evidence afforded a logical and more probable explanation for the events that took place than the evidence of Ms Gunn.
I explain in more detail below the reasons why I accepted or rejected particular aspects of Ms Gunn's evidence but in summary, the approach I have taken to Ms Gunn's evidence is as follows.
I did not accept all of Ms Gunn's evidence as being truthful or reliable. I did not reject her evidence in its entirety either. Parts were credible and aspects of her evidence were consistent with the evidence of Ms Meiners.
Where Ms Gunn's evidence concerned conversation with Ms Meiners and it contradicted the evidence of Ms Meiners, I preferred the evidence of Ms Meiners.

The factual findings.

Ms Meiners was born on 16 July 1936 and is an aged pensioner. She migrated from Germany to Australia in 1959.
Ms Meiners had four children from her first marriage. Ms Gunn is the eldest daughter. The other children are Ashley, Shirley and Derek.
Ms Meiners married a second time. She married Lionel Mark Meiners, who was known as Ben, on 29 August 1992. For approximately 22 years the couple lived in the Armadale property, a three bedroom, one bathroom home.
Ms Meiners and Mr Meiners spent most of their time together and at home. They cared for each other. Ms Meiners had limited social engagement and connectivity outside of the home and apart from her husband.
Mr Meiners had a back injury and had difficulties with his mobility. He developed emphysema later in life and the couple became increasingly isolated. Ms Meiners was her husband's primary carer during his illness. Ms Meiners arranged for a gardener and a cleaner to assist her once a fortnight.
Mr Meiners was ill for about 10 years due to his injury and emphysema. While Ms Meiners had some friends, she rarely saw them when her husband was ill.
Mr Meiners passed away on 4 September 2014. Ms Meiners' evidence was that while Mr Meiners was sick for quite some time, his death felt sudden; he deteriorated quickly and within a period of five days, he passed away.
Ms Meiners did not have many friends around the time her husband passed away. While Ms Meiners' may have had some contact with a seniors group in the Armadale area after Mr Meiners' death,[40] I accept that she had very limited social contact. Ms Gunn's evidence was that Ms Meiners never had many friends.[41] Two of the few contacts Ms Meiners had, Lynne and her husband, withdrew their friendship shortly after Mr Meiners died. Ms Meiners was not a confident driver.
[40] ts 443 (4 December 2018).
[41] ts 821 (20 December 2018).
I describe Ms Meiners' relationship with her children and Mr Meiners' children below. I accept that upon Mr Meiners' death, Ms Meiners was lonely and socially isolated.

Ms Meiners' relationship with her children

Ms Meiners did not have a close relationship with any of her children prior to Mr Meiners' death. She was estranged from her children Shirley and Derek prior to the death of Mr Meiners, and remained estranged from them afterwards.
Ms Meiners had some contact with her son, Ashley, who lived in Hillarys and worked away on a fly in fly out basis. After Mr Meiners died, Ashley occasionally helped Ms Meiners with the garden of the Armadale property when he was not away working.
Ms Meiners' described her relationship with her daughters as very tenuous over the years. Ms Gunn described her family and her relationship with Ms Meiners as dysfunctional. Ms Meiners and Ms Gunn had never shown affection towards each other.
Ms Gunn and her sister Shirley were and remain estranged. Shirley married Ms Gunn's former husband, Briana's father.
Ms Gunn lived in Sydney from 1999 to 2011.[42] Ms Gunn accepted that for 10 of those years, her relationship with Ms Meiners was not close.[43] Ms Meiners visited Ms Gunn in Sydney on one occasion, and Ms Gunn saw Ms Meiners when she visited Perth on one occasion. Ms Meiners had telephone contact with Ms Gunn while Ms Gunn lived in Sydney. Ms Gunn purchased the Cookernup property in 2011 upon her return to Western Australia.
[42] ts 814 (20 December 2018).
[43] ts 814 (20 December 2018).
After Mr Meiners died, there is no evidence that Ms Meiners was in frequent contact with any of her children, with the exception of Ms Gunn.

Ms Meiners' relationship with Ms Gunn after Mr Meiners died

Shortly after Mr Meiners' death, Ms Gunn began to stay with Ms Meiners at the Armadale property.
Ms Gunn's evidence was that from early September 2014 until the Armadale property settled in July 2015, Ms Gunn stayed with Ms Meiners at the Armadale property three nights each week. Ms Gunn said that she would arrive at the Armadale property about 5.30 pm after work; that she and Ms Meiners would have the dinner prepared by Ms Meiners; that Ms Gunn would be in bed by 7.30 pm; and that Ms Gunn would leave for work the next day by 6.30 am. In this regard, Ms Gunn's evidence is broadly consistent with the evidence of Ms Meiners.
Ms Gunn worked in Osborne Park. Travelling from Cookernup to Osborne Park required Ms Gunn to travel approximately 130 kilometres both to and from work. Ms Gunn's evidence was that prior to Mr Meiners' death, Ms Gunn had stayed with Briana during the week and at the Cookernup property on the weekend.
Ms Meiners' evidence was that it was comforting to have someone in the house after her husband's death. Further, that she cooked and cleaned for Ms Gunn and that attending to Ms Gunn and the home gave Ms Meiners a sense of purpose.
Ms Meiners' evidence was that in about late September or October 2014, Ms Meiners purchased a sofa bed for Ms Gunn and around that time, Ms Gunn began sleeping four nights each week at the Armadale property. Ms Gunn would return to the Cookernup property on the weekends. Ms Meiners later purchased a double bed for Ms Gunn in the room previously used as the home office.
As Ms Meiners' companion for at least three nights a week, Ms Gunn became Ms Meiners' primary companion after Mr Meiners death and prior to the sale of the Armadale property. Ms Gunn's evidence was that '…the only person regularly in [Ms Meiners'] life from the time of Ben's death in September 2014 to the date my mother stopped taking my calls in [February] 2016, was me.'[44]
[44] Responsive witness statement of Ms Gunn dated 26 November 2018 par 120.
I accept that Ms Gunn's company was a comfort to Ms Meiners after the death of her husband. However, the relationship between Ms Meiners and Ms Gunn could not be categorised as a close and loving relationship as between a mother and a daughter before or after Mr Meiners' death. I note that Ms Gunn did not contend that it was a close and loving bond that motivated Ms Meiners to transfer money to her, nor feelings of gratitude for care rendered.

Ms Meiners' relationship with Briana

Ms Meiners had not seen nor interacted with Briana very much as a child, although she and Mr Meiners had some contact with Briana and her children prior to Mr Meiners' death.
After her husband died, Ms Meiners spent more time with Briana and her children. Ms Meiners would travel to see Briana and Ms Meiners' great grandchildren at Briana's home in Yokine. Ms Meiners could not recall how often she travelled to Yokine to visit Briana.[45] Ms Meiners' evidence was that she was welcomed into Briana's home. Ms Meiners enjoyed seeing Briana's children and in her grief, was able to feel affection for them. I accept that Ms Meiners' increased interaction and growing relationship with her granddaughter and great grandchildren gave Ms Meiners comfort.

Equity's jurisdiction to intervene for unconscionable dealing may be invoked if it is established that Ms Meiners was under a special disadvantage or disability in dealing with Ms Gunn, and that special disadvantage or disability was sufficiently evident to Ms Gunn to make it prima facie unfair or unconscionable for Ms Gunn to have accepted, or to retain the benefit of the transactions.[119]
[119] Commercial Bank of Australia v Amadio (1983) 151 CLR 447; Louth v Diprose 637, cited in Permanent Mortgages Pty Ltd v Vandenbergh [219].
If such circumstances are established, then the onus falls on Ms Gunn to establish that the transactions were fair, just and reasonable.[120]

Was Ms Meiners under a special disadvantage or disability in dealing with Ms Gunn?

[120] Commercial Bank of Australia v Amadio 474, cited in Permanent Mortgages Pty Ltd v Vandenbergh [222].

Special disadvantage concerns the ability of Ms Meiners to have made an informed judgment as to her own interests.[121] The special disadvantage alleged must be one which seriously affected the ability of Ms Meiners to make a judgment as to her own best interests.[122]
[121] Bridgewater v Leahy [39].
[122] Commercial Bank of Australia v Amadio 462.
It was submitted that Ms Meiners was in a position of special disadvantage and vulnerability in her dealings with Ms Gunn in the following respects.[123]
[123] Plaintiff's submissions filed 28 November 2018 par 129.
(a)Ms Meiners was elderly, without her husband who had died recently.
(b)Ms Meiners was managing her grief over the loss of her husband and had no close friends or confidants.
(c)Ms Meiners says that she was depressed. She lacked sleep and was on medications for her inability to sleep and for her knee complaint.
(d)Ms Meiners felt isolated within herself and had been hard hit by loneliness upon the death of her husband. She felt that she had no purpose in life.
(e)Ms Gunn in some way filled the hole left in Mrs Meiners' life due to the loss of her husband.
(f)Ms Meiners had a need to have a relationship of sorts with Ms Gunn. Ms Gunn was Ms Meiners connection to Briana and Briana's children.
(g)Ms Meiners had no one else to turn to and placed trust in Ms Gunn.
(h)Ms Meiners was concerned about being taken care of as she grew older and about being close to Ms Gunn and Briana who she thought would take care of her.
(i)Ms Meiners became emotionally dependent on Ms Gunn and dependent on Ms Gunn to achieve her goal of being close to family and being cared for as she grew older.
(j)Ms Meiners had been misinformed by Ms Gunn concerning the effect that the sale proceeds from the sale of her home may have on her pension and the effect of giving the money to Ms Gunn might have on her pension.
(k)Ms Meiners had no relevant independent legal advice or other advice relating to the proposed transaction, the effect of which was that she was giving a substantial part of her wealth and eventually all of her wealth to Ms Gunn in circumstances where she was not protected legally by way of a deed or other written agreement recording the basis for the payment of money to Ms Gunn.
(l)Ms Meiners needed to understand that there were risks and ramifications of giving money to Ms Gunn and not having available funds for herself in her name or having a property purchased with her funds registered in her name. In particular she needed to have explained to her, so she could understand the following:
(i)what might happen if she changed her mind and wanted her money back;
(ii)what might happen if she needed money to live in a nursing home because her health deteriorated;
(iii)what effect giving money to Ms Gunn would have on her pension entitlements;
(iv)what might happen to the property that was to be purchased with her money, if Ms Gunn fell into financial difficulty at some stage in the future or if the mortgagee were to exercise its rights under the mortgage;
(v)the effect of the transfers of money to Ms Gunn was that she had disposed of her main asset in life and the net proceeds of sale had been delivered to Ms Gunn. These transactions put the asset and the money from the sale of the asset out of her power to change her testamentary arrangements or use the asset or money for her own purposes and security during her lifetime.
It has been held that while the categories of disability are not closed, the requisite special disadvantage often involves matters such as those relied upon by Ms Meiners, being need, sickness, age, infirmity of body or mind, and lack of assistance or explanation when assistance or explanation is necessary, and emotional dependence upon another person.[124]
[124] Plaintiff's submissions filed 28 November 2018 par 129, which references Louth v Diprose 629. See also Blomley v Ryan (1956) 99 CLR 362.
Special disadvantage in Ms Meiners' dealings with Ms Gunn was established on the evidence as a whole. No one matter was determinative of the question. I weighed in the balance the following matters. They were not independent of each other.

Age

Ms Meiners was elderly. While advanced age of itself does not constitute a special disadvantage, it may, in combination with other factors, contribute to the condition of being under a special disadvantage.[125]
[125] Permanent Mortgages Pty Ltd v Vandenbergh [234], citing Australia & New Zealand Banking Group Ltd v Dzienciol [2001] WASC 305 [289]-[290].
While Ms Meiners was elderly, she was not physically frail. However, physical frailty itself is not a necessary element of a special disadvantage.[126]
[126] Permanent Mortgages Pty Ltd v Vandenbergh [233], [242].
Given Ms Meiners' age, it can be reasonably inferred that the options available to her to improve her position financially through her own labour, and to so ensure her own security and care going forward, were limited. Ms Meiners' options were limited by reason of, among other things, her advanced age, which contributed to her weakness.

Grief

I accepted Ms Meiners evidence that she grieved the death of her husband of 22 years and continued to grieve his loss for more than a year after he passed away.
Ms Meiners grief was an instance of weakness and, in combination with Ms Meiners' age, need and the other matters referred to below, made Ms Meiners susceptible to influence by Ms Gunn.

Need

Ms Meiners was widowed, elderly, lonely and socially isolated. Ms Meiners' evidence reveals that she was aware of her own vulnerability by reason of these matters. Ms Meiners sought to address her own perceived vulnerability by forming a closer bond with Ms Gunn and her family.
Ms Meiners' social isolation, coupled with her desire for connectivity and the security of family, were weaknesses that particularly contributed to her vulnerability in her dealings with Ms Gunn.
Ms Meiners did not have a close relationship with any of her children prior to her husband's death. The only relationship Ms Meiners had with Mr Meiners' children was with Ms Parker. Following the death of her husband, Ms Meiners had distanced herself from Ms Parker, which exacerbated her isolation. Ms Meiners had very few friends, if any, around the time her husband passed away and she was not a confident driver.
Ms Meiners' need did not come about by reason of physical frailty following the death of her husband. However, having nursed her own husband for the last 10 years of his life, it can be reasonably inferred that Ms Meiners was aware of the assistance and care that she might need in the years to come.
Ms Meiners was lonely. After the death of Mr Meiners, Ms Meiners found it a comfort to have someone else in the house. Ms Meiners' growing relationship and connection with Briana and her great grandchildren were a comfort to Ms Meiners in her grief. She had a need to replace the social connectivity, company and mutual support she had enjoyed with Mr Meiners, and which a relationship with Ms Gunn and Ms Gunn's extended family offered.
After Mr Meiners' death, Ms Meiners felt a lack of purpose. Ms Meiners cooked and cleaned for Ms Gunn. Her evidence was that attending to Ms Gunn and to the Armadale property gave her a sense of purpose. She had a need to feel useful and busy.
Ms Meiners' social isolation contributed to her vulnerability which made her susceptible to influence by Ms Gunn. Ms Meiners' need for a close bond and connectivity with Ms Gunn and her family seriously affected her ability to make a judgment as to her own best interests.

Emotional dependence upon Ms Gunn

The relationship as between mother and daughter was not affectionate. The relationship between Ms Meiners and Ms Gunn could not be categorised as a close and loving relationship as between a mother and daughter after Mr Meiners' death.
However, there was a need on the part of Ms Meiners to maintain and build her relationship with her daughter. This finding is supported by Ms Gunn's evidence was that '…the only person regularly in [Ms Meiners'] life from the time of Ben's death in September 2014 to the date my mother stopped taking my calls in [February] 2016, was me.'[127] Also that Ms Meiners appointed Ms Gunn as attorney and guardian under the power of attorney and power of guardianship executed on 17 February 2015. Ms Meiners' evidence was that she never thought of appointing anyone else as her guardian or attorney, only Ms Gunn.
[127] Responsive witness statement of Ms Gunn dated 26 November 2018 par 120.
It was established on the evidence that Ms Meiners relied on Ms Gunn to reduce her loneliness and sense of isolation; to give her a sense of purpose, a sense that she was needed and useful; and to maintain a family relationship with Ms Gunn and Briana.
Ms Meiners' age, her social isolation, the loss of her husband, her grief, her desire for connectivity and the security of family, all fuelled her emotional dependence on Ms Gunn and contributed to her vulnerability and susceptibility to the influence of Ms Gunn.
In evaluating whether to transfer money to Ms Gunn, it was necessary for Ms Meiners to make an assessment of Ms Gunn and the genuineness of her desire to care for her going forward. It was also necessary for Ms Meiners to evaluate the risks of transferring the money without documenting her arrangement with Ms Gunn and what was described as their Common Intention. Ms Meiners' emotional dependence on Ms Gunn, together with the other matters mentioned, diminished Ms Meiners' capacity to apply a degree of independent judgment as to her own best interests when dealing with Ms Gunn.

Absence of independent advice

I gave some weight to the absence of independent legal or financial advice in my finding that special disadvantage was established.
The effect of Ms Gunn's evidence was that Ms Gunn understood that Ms Meiners was taking financial and legal advice facilitated by Legacy and that Ms Meiners was in regular contact with Legacy in the period after Mr Meiners died.
While Ms Meiners was in contact with Legacy in the months that followed Mr Meiners death, for the reasons explained above, I was not satisfied that Ms Meiners obtained financial or legal advice from Legacy in relation to the decision to sell the Armadale property. I was also not satisfied that Ms Meiners had secured independent advice concerning the transfer of $130,000.
The absence of financial advice did not weigh as heavily in my finding that Ms Meiners continued to suffer from special disadvantage when she made the second transfer of $242,717.43 to Ms Gunn upon her exit from the Masonic Village unit lease. While Mr Ford was not retained to give Ms Meiners' financial advice, Ms Meiners did receive the benefit of an informal caution from Mr Ford in relation to proceeding with an arrangement with Ms Gunn without documentation, based on his experience.
Also weighed in the balance was the fact that Ms Meiners was in contact with Legacy and she could have readily availed herself of independent legal and financial advice in relation to the transactions. On the evidence, it is established that after Mr Meiners' death, Ms Meiners had independently availed herself of legal advice which lead to the preparation of a new will and the preparation and execution of a power of attorney and power of guardianship. The availability of independent advice to Ms Meiners, that she could have independently and readily accessed, weighed against the finding of special disadvantage in Ms Meiners' dealings with Ms Gunn.
As observed by Ball J in Courtney v Powell,[128] it is the opportunity to obtain independent advice or the absence of that opportunity which is important, not the effect that the advice might have produced. The absence of the opportunity is an element of unconscionable conduct.

Sickness

[128] Courtney v Powell [2012] NSWSC 460 [53], citing Bridgewater v Leahy [100], citing Re Levey; Ex parte Official Assignee (1894) 15 LR (NSW) B&P 30, 36.

It was submitted that Ms Meiners was in a position of special disadvantage and vulnerability by reason of her ill health. In particular, it is submitted that regard ought to be had to Ms Meiners' evidence that she was depressed after the death of her husband; that she lacked sleep and was on medications for her inability to sleep and for her knee complaint.
In about September or early October 2014, Ms Meiners was prescribed medication to help her sleep. Further, in early 2015, Ms Meiners experienced extreme pain in her left knee. Ms Meiners took medication to help her sleep and to assist with her pain. She said that the pills made her feel dopey in the morning and she never felt right. She found walking difficult, and in February 2015, Ms Meiners had knee replacement surgery. She was in hospital for about seven days and then spent about two weeks in respite care.
The evidence does not establish that the pain and discomfort experienced by Ms Meiners arising from her knee was of such a degree to enable an inference to be drawn that Ms Meiners was susceptible to pressure by anyone as a result of that pain. The two transfers of money occurred well after her knee surgery. Similarly, the evidence concerning the medication taken by Ms Meiners in the later part of 2014 and throughout 2015, and their effect on Ms Meiners, does not enable an inference to be drawn that Ms Meiners was susceptible to pressure by anyone as a result of that medication. Further, there is no evidence that Ms Meiners was taking medication that might have affected her mental capacity at the time of the two transfers.
The sickness or ill health of Ms Meiners was not a matter that was given weight in my finding that special disadvantage was established.
Ms Meiners' vulnerability did not come about by reason of sickness or physical frailty experienced.
However, having nursed her own husband for the last 10 years of his life, it can be reasonably inferred that Ms Meiners was aware of the assistance and care that she might need in the years to come. As noted above, the vulnerability that existed by reason of that awareness was weighed in the balance.

Ms Gunn's actions

Special disadvantage in Ms Meiners' dealings with Ms Gunn was established on the evidence as a whole.
To prove special disadvantage, it was not necessary for Ms Meiners to establish that Ms Gunn contributed to the weakness and vulnerability of Ms Meiners. My finding that special disadvantage existed was not reliant upon any contribution to that special disadvantage by Ms Gunn. For example, my finding of special disadvantage based on need as a consequence of social isolation was not reliant upon the finding that Ms Gunn encouraged Ms Meiners to distance herself from Ms Parker.

Was Ms Meiners' special disadvantage or disability sufficiently evident to Ms Gunn to make it prima facie unfair or unconscionable for Ms Gunn to have accepted, or to retain the benefit of the transactions?

It was not sufficient for Ms Meiners to establish that she was under a special disadvantage or disability in her dealings with Ms Gunn. It was also necessary for Ms Meiners to establish that her special disadvantage or disability was sufficiently evident to Ms Gunn to make it prima facie unfair or unconscionable for Ms Gunn to have accepted, or to have retained the benefit of the transactions.
The following matters weighed against a finding that Ms Meiners' special disadvantage or disability was sufficiently evident to Ms Gunn.
First, Ms Meiners was not physically frail. Ms Meiners managed to walk around and attend to her personal care.[129] Ms Meiners was also able to make appointments and attend those appointments independently.
[129] Exhibit 15.
Secondly, while Ms Meiners had knee replacement surgery in February 2015, there is no evidence that her pain continued after the surgery, or that Ms Meiners complained of pain after the surgery.
Thirdly, Ms Gunn knew that Ms Meiners received a pension. Ms Gunn also knew that when Ms Meiners had her knee replacement surgery in February 2015, Ms Meiners spent about two weeks in respite care. Ms Meiners did not call upon Ms Gunn to nurse her in her recovery and there is no evidence that suggests that Ms Meiners sought or required financial assistance from Ms Gunn or any third party in order to secure her medical needs.
Fourthly, Ms Gunn knew that Ms Meiners was in contact with Legacy and could readily avail herself of independent legal and financial advice, including in relation to the transactions the subject of this proceeding. Ms Gunn was also aware that after Mr Meiners' death, Ms Meiners had in fact independently availed herself of legal advice which lead to the preparation of a new will and the preparation and execution of a power of attorney and power of guardianship. Ms Gunn's knowledge of the availability of independent advice, that Ms Meiners could have independently and readily accessed, weighed against the finding that Ms Meiners' special disadvantage or disability sufficiently evident to Ms Gunn.
I gave these matters careful consideration. However, I was persuaded, having regard to all of the circumstances, that knowledge of the following matters would raise the possibility of the special disadvantage in the mind of a reasonable person.[130]
[130] Commercial Bank of Australia v Amadio 467 - 468, 479, cited in Permanent Mortgages Pty Ltd v Vandenbergh [221].
First, Ms Gunn knew that Ms Meiners was elderly and by reason of her social isolation, had very limited options to ensure her own care going forward.
Secondly, Ms Gunn knew that Ms Meiners' second husband and close companion of 22 years had died in September 2014. Ms Gunn knew that Ms Meiners would likely be grieving his loss, although it was Ms Gunn's evidence that she did not observe signs of grief.[131]
[131] ts 827 (20 December 2018).
Thirdly, Ms Gunn knew that Ms Meiners had attended to, cared for and nursed Mr Meiners for many years prior to his death. She knew that Ms Meiners no longer had the company of her husband, nor the task of caring for him to fill her time.
Fourthly, Ms Gunn knew that after the death of Ms Meiners, her mother was socially isolated. Ms Gunn knew that Ms Meiners was estranged from and had no contact with two of her four children, and only limited contact with Ashley. She knew that Ms Meiners had few if any friends, and that after her husband's death, Ms Meiners had distanced herself from Ms Parker. She knew that Ms Meiners lived in Armadale, without any friends. She knew that neither she, Briana nor Ashley lived nearby. She also knew that Ms Meiners was not a confident driver.
Such knowledge is supported by Ms Gunn's evidence that '…the only person regularly in [Ms Meiners'] life from the time of Ben's death in September 2014 to the date my mother stopped taking my calls in [February] 2016, was me.'[132]
[132] Responsive witness statement of Ms Gunn dated 26 November 2018 par 120.

Fifthly, she that Ms Meiners sought social interaction and connectivity and that she was keen to not remain at home alone in the Armadale property.
Sixthly, Ms Gunn knew that by reason of Ms Meiners' contact with Ms Gunn, Ms Meiners saw more of Briana and her children.[133]
[133] ts 830 - 831 (20 December 2018).
I am persuaded that Ms Meiners' special disadvantage was sufficiently evident to Ms Gunn to make it prima facie unfair or unconscionable for Ms Gunn to have accepted the benefit of the transactions, and to have retained the benefit.

Did Ms Gunn establish that the transaction was fair, just and reasonable?

It was established that Ms Meiners was under a special disadvantage or disability in dealing with Ms Gunn, and that special disadvantage or disability was sufficiently evident to Ms Gunn to make it prima facie unfair or unconscionable for Ms Gunn to have accepted, or to retain the benefit of the transactions. In these circumstances, the onus fell on Ms Gunn to establish that the transaction was fair, just and reasonable.[134]
[134] Commercial Bank of Australia v Amadio (474), cited in Permanent Mortgages Pty Ltd v Vandenbergh [222].
Ms Gunn failed to discharge the onus. The evidence led did not establish that the transaction was fair, just and reasonable.
For the reasons expressed in this judgment, I preferred the evidence of Ms Meiners to that of Ms Gunn in relation to their conversations and found that the parties shared a common intention. Ms Gunn encouraged Ms Meiners join with her in that common intention. Ms Meiners transferred money to Ms Gunn on the understanding that the money would be available to be used for Ms Meiners' benefit. Instead, Ms Gunn used the money transferred to her to secure her own home, close to her daughter and grandchildren. The failure of Ms Gunn to apply the money transferred in accordance with the common intention and their understanding, and to enjoy the benefit of the use of the money to the exclusion of Ms Meiners, constitutes unconscionable conduct which shocks the conscience.
I am satisfied that the transfers of money by Ms Meiners to Ms Gunn were the product of Ms Gunn's exploitative conduct. By encouraging Ms Meiners to sell the Armadale property and to transfer money to Ms Gunn so that she might be closer to family, and thereby supported by and in contact with family, Ms Gunn played upon Ms Meiners' susceptibility before taking advantage of the same. The transfers of money to Ms Gunn were so improvident when judged in light of Ms Meiners' financial position, that the transfers were explicable only on the footing that Ms Meiners was emotionally dependent upon, and influenced by Ms Gunn so as to disregard entirely her own interests.
Also weighing heavily against a finding that the transactions were fair, just and reasonable were the following matters:
(a)That Ms Meiners gained no benefit from the transactions.
(b)That by the transactions, Ms Meiners transferred to Ms Gunn the majority of her wealth in circumstances where the common intention was not documented and no independent legal or financial advice was obtained.
It is for the party impeaching the gift or transaction to show that it is the product of the donee's exploitative conduct. This is the final and necessary link in the chain of proof of unconscionable conduct leading to a decree setting aside the gift or transactions.[135] On the evidence, I am satisfied that the transfers were the product of Ms Gunn's exploitative conduct and that equity has cause to intervene.

Is it unconscionable for Ms Gunn to retain the financial benefits conferred upon her in circumstances in which it was not specifically intended or provided that she should enjoy such benefits?

[135] Louth v Diprose 631.

Unconscionable conduct in the second sense relied upon by Ms Meiners was on the basis that a court of equity would intervene to prevent a person from asserting or exercising legal rights in circumstances where the particular assertion would constitute unconscionable conduct.
It was submitted that the circumstances in which a court of equity will intervene on this ground include when a payment has been made in anticipation of something afterwards being enjoyed and where circumstances arise where that future enjoyment is denied.[136]
[136] Plaintiff's submissions filed 28 November 2018 par 126.
The following passage from the decision of Deane J in Muschinski v Dodds was cited on behalf of Ms Meiners in support of the submission:[137]
Those circumstances can be more precisely defined by saying that the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purpose of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that the other party should so enjoy it.
[137] Muschinski v Dodds (1985) 160 CLR 583, 619 ‑ 620.
The circumstances of Muschinski v Dodd may be summarised as follows.
An unmarried couple purchased land by a contract under which they were jointly and severally liable. The plaintiff's payment of the purchase price of the property, which was transferred into the joint names of the defendant and the plaintiff, was made on the basis and for the purposes of their planned joint venture with respect to the land. The court found that the substratum of that planned joint endeavour was removed without attributable blame. The defendant was left as a half‑owner of the property in circumstances (ie the collapse of the joint endeavour) to which the parties did not advert and in which it was not specifically intended or specially provided that the defendant would enjoy such a benefit at the plaintiff's expense.
Mason and Deane JJ held that in these circumstances, the operation of the relevant principle was to preclude the defendant from asserting, against the plaintiff, his one‑half ownership of the property to the extent that it would be unconscionable for him so to do.
It was submitted on behalf of Ms Meiners that she had paid her money to Ms Gunn based on an understanding that the money would be enjoyed by Ms Meiners during her lifetime if she no longer wished to live in a retirement village, and to provide a property for Ms Gunn after Ms Meiners' death. The understanding was that Ms Meiners would live with Ms Gunn to be close to her family and for Ms Gunn to take care of her as she grew old. The understanding and expectation of a continuing relationship upon which the payment of money was based has been removed and it is unconscionable for Ms Gunn to retain the financial benefits conferred upon her in circumstances in which it is not specifically intended or specially provided that she should enjoy those benefits.[138]
[138] Plaintiff's submissions filed 28 November 2018 par 94.
For the reasons given above, I accept that it would be unconscionable for Ms Gunn to retain the financial benefits conferred upon her in circumstances in which it is not specifically intended or specially provided that she should enjoy those benefits.
In this case, Ms Meiners made transfers of money to Ms Gunn on the understanding that the money would be available to be used for Ms Meiners' benefit. Further, I accept that the substratum of what Ms Meiners understood to be the planned joint endeavour upon which the payment of money was based was removed. However, in the circumstances of this case, it cannot be said that the substratum of the planned joint endeavour was removed without attributable blame.
In light of the factual findings made, Ms Meiners' claim properly falls under the first pressed basis of unconscionable dealing, rather than the second.

Whether the transfers of money to Ms Gunn were the product of Ms Gunn's undue influence over Ms Meiners.

As noted above, the doctrines of unconscionable dealing and undue influence may apply to the same case. There are however conceptual and practical distinctions between them,[139] and they have distinct spheres of operation.[140] While unconscionable dealing looks to the attempted enforcement or retention of a benefit of a dealing with a person under special disability, the doctrine of undue influence looks to 'the quality of the consent or assent of the weaker party.'[141]
[139] Bridgewater v Leahy [73].
[140] Thorne v Kennedy 103 [40].
[141] Commercial Bank of Australia v Amadio 474, cited in Bridgewater v Leahy [74].
Further and in the alternative to the plea of unconscionable dealing, Ms Meiners claimed that the money was paid to Ms Gunn as a consequence of Ms Gunn's undue influence over her. Ms Meiners relied on the presumption of undue influence and contended that in the circumstances, it was unconscionable for Ms Gunn to retain Ms Meiners' money.
Before turning to a discussion of the evidence, I note that while the presumption of undue influence will arise when a substantial gift is made in recognised relationships, the relationship of a mother and adult daughter is not a relationship which gives rise to a presumption of undue influence. To the extent that a relationship between a parent and child gives rise to a presumption, it arises when there is a gift from a child to a parent. The presumption does not operate in reverse.[142] In this proceeding, while Ms Meiners seeks to rely on a presumption of undue influence, it is not on the basis of a recognised relationship.
[142] Johnson v Butress (134) Dixon J; Permanent Mortgages Pty Ltd v Vandenbergh 173 – 174; Powell v Powell [2002] WASC 105 [130] – [131].
Outside of recognised relationships, the presumption of undue influence will also arise when it is proved that:[143]
(a)at the time of the transaction or gift there existed a relationship between the donor and the donee of such a nature as to involve reliance, dependence or trust on the donor's part which created an ascendancy on the donee's part; and
(b)the transaction is so improvident or the gift is so substantial as not to be reasonably accounted for on the ground of friendship, relationship, charity or other ordinary motives on which ordinary persons act.
[143] Mercanti v Mercanti [285] Buss P, citing Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113, 134 ‑ 135 (Dixon J; Evatt J agreeing); Goldsworthy v Brickell [1987] Ch 378, 400 - 401 (Nourse LJ; Parker LJ & Sir John Megaw agreeing); Quek (11,764)
If Ms Meiners establishes that the presumption of undue influence has arisen, the burden will fall upon Ms Gunn to rebut the presumption. She may do so by proving that Ms Meiners knew and understood what she was doing; and Ms Meiners was acting independently of any influence from Ms Gunn's ascendancy.

At the time of the transactions, did there exist a relationship between Ms Meiners and Ms Gunn of such a nature as to involve reliance, dependence or trust on Ms Meiners' part which created an ascendancy on Ms Gunn's part?

Ms Meiners submitted that this is a case where undue influence should be presumed from the fact that Ms Gunn occupied a position of ascendency or influence over Ms Meiners; and that Ms Meiners depended and relied upon, as well as trusted, her.
Following the death of Mr Meiners and throughout 2015, Ms Meiners' relationship with Ms Gunn was trusting and confidential. However, a relationship of confidence is not a sufficient condition for undue influence to be presumed. Many parents would describe their relationship with their adult children as trusting and confidential.[144]
[144] Mercanti v Mercanti [292].
It was established on the evidence that Ms Meiners also relied on Ms Gunn to reduce her loneliness and sense of isolation; to give her a sense of purpose, a sense that she was needed and useful; and to maintain a family relationship with Ms Gunn and Briana.[145]
[145] Plaintiff's closing submissions filed 29 January 2019 par 56.
However, it is the actual or presumed impairment of the judgment of the weaker party that is the critical element in the grant of relief on the ground of undue influence.[146] The will of the innocent part is not independent and voluntary because it is overborne.
[146] Commercial Bank of Australia Ltd v Amadio 467, 474 - 475, cited in Bridgewater v Leahy [74].
While it was established on the evidence that there existed a relationship between Ms Meiners and Ms Gunn of such a nature as to involve reliance, dependence and trust on Ms Meiners' part, the evidence does not establish that the nature of the relationship created a psychological ascendancy on Ms Gunn's part.
While vulnerable and susceptible to the influence of Ms Gunn, Ms Meiners had not subjugated her will to that of Ms Gunn. In this regard, by way of example, I note that Ms Meiners had upon the death of her husband independently attended to the preparation of a new will, an enduring power of attorney and an enduring power of guardianship. Ms Meiners elected to nominate Ms Gunn as attorney without suggestion or prompt by Ms Gunn. In about late 2014 or early 2015, Ms Meiners needed the Armadale property certificate of title to complete the application for her to become registered as the sole owner and contacted Legacy for assistance. Facilitated by Legacy, Ms Meiners instructed Mr Vincent who assisted her in securing the title to the Armadale property, which was being held by ANZ bank.
It is established on the evidence that the will of Ms Meiners, while independent and voluntary, was the result of the disadvantageous position in which she was placed, and of Ms Gunn unconscientiously taking advantage of that position. It was not established on the evidence that the will of Ms Meiners was not independent and voluntary because it was overborne.
As a consequence, Ms Meiners claim that the transactions were the product of Ms Gunn's undue influence over Ms Meiners must fail.

The alternative loan claim

In the alternative to the unconscionable dealing and undue influence claims, it was pleaded on behalf of Ms Meiners that she and Ms Gunn had entered into an agreement by conduct by which she loaned the money to Ms Gunn, and that despite demand, there has been a failure to repay.
While the claim was not formally abandoned, the alternative claim was not particularised nor developed on behalf of Ms Meiners, and the alternative claim was not addressed in the written closing submissions filed on behalf of Ms Meiners. In these circumstances, and in light of my findings in relation to the claims primarily pressed, I make no findings in relation to the alternative loan claim.

Conclusion and orders

Having established that the transactions constitute unconscionable dealings, judgment should be entered for Ms Meiners.
The court has wide powers to mould equitable relief. It is proper that, in so far as equity can, Ms Meiners' position should be reinstated.
There is considerable overlap in the orders pressed in Ms Meiners’ prayer for relief. I will hear from the parties as to the form of orders necessary to give effect to my reasons, and on costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EP
Associate to Principal Registrar Strk
24 JANUARY 2020