Mentink v Olsen

[2020] NSWCA 182

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Mentink v Olsen [2020] NSWCA 182

Hearing dates:

4 May 2020

Date of orders:

21 August 2020

Decision date:

21 August 2020

Before:

Meagher and Payne JJA at [1];
Emmett AJA at [47]

Decision:

1. The appeal is dismissed.

2. The appellant is to pay the respondent’s costs of the appeal.

Catchwords:

EQUITY — Unconscionable conduct — Special disadvantage — Whether unconscientious advantage taken — Whether gift fair, just and reasonable — Undue influence — Whether findings of primary judge supported by available evidence

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) rr 7.6, 7.11

Cases Cited:

Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 81

Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66

Commercial Bank of Australia v Amadio (1983) 151 CLR 447; [1983] HCA 14

Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25

Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Karen Howard Mentink (Appellant)
John Henry Olsen (Respondent)

Representation:

Counsel:
R D Wilson SC with S Chapple (Appellant)
M T McCulloch SC with J E Brown (Respondent)

Solicitors:
Bedson Legal (Appellant)
Oxley Law (Respondent)

File Number(s):

2019/335449

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity – Expedition List

Citation:

[2019] NSWSC 1299

Date of Decision:

25 October 2019

Before:

Sackar J

File Number(s):

2019/118366

HEADNOTE

[This headnote is not to be read as part of the judgment]

A woman died of a terminal illness at the age of 75, survived by her husband and her daughter from a previous marriage. Before her death, she gave approximately $2.2 million to her daughter. That money was withdrawn from a term deposit account that was solely in the name of the deceased. Some of the funds in the term deposit were inherited from the estate of the deceased’s mother. However, the majority of the funds were from other sources and may have been assets of a partnership between the deceased and her husband.

Her husband commenced proceeding as an executor of the estate and in his personal capacity against his stepdaughter, the recipient of the gift. He alleged that she had obtained the money by reason of undue influence or unconscionability and was liable to repay that amount to the estate. The primary judge found in favour of the husband and ordered the daughter to repay the money to the estate with interest. His Honour principally based that conclusion upon a finding that the daughter initiated or contrived her mother’s change of mind to her own benefit or took advantage of her mother’s vulnerability in unconscionable circumstances. His Honour indicated that the factual findings would also support a finding of undue influence.

The daughter appealed the decision, submitting that the primary judge erred in his conclusions concerning unconscionable conduct and undue influence, in addition to rejecting defences…