Nikolic v Nikolic

[2001] NSWSC 1121

CITATION:	Nikolic v Nikolic [2001] NSWSC 1121
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 1499/00
HEARING DATE(S):	18-21 September 2001, 24.09.01
JUDGMENT DATE:	14 December 2001
PARTIES :	Ratomir Nikolic v Zoran Nikolic, Dragica Nikolic and Petar Dobrich
JUDGMENT OF:	Master Macready at 1

COUNSEL :	Mr. G. McGrath for plaintiff Mr W.G. Muddle for 1st and 3rd defendants Mr B. Shields for 2nd Defendant
SOLICITORS:	Stojanovic Solicitors for plaintiff Deacons for 1st and 3rd defendants Ebsworth & Ebsworth for the 2nd defendant
CATCHWORDS:	Equity. Fraudulent misrepresentation. Claim by the plaintiff who could not read or speak English that his son and solicitor had fraudulently misrepresented the terms of two transfers by which the plaintiff's property was transferred to the son. - Held no misrepresentations made and that the transfers were part of a deliberate scheme to defeat claims which were being made upon the plaintiff for provision by the plaintiff's new wife. - Proceedings dismissed.
DECISION:	Paragraph 104

These are proceedings by the plaintiff against his son, the first defendant, his son’s wife, the third defendant, and the plaintiff’s solicitor who is the second defendant in which the plaintiff seeks to set aside two transfers by which he effectively gave away his house at 113 Brisbane Road, St Johns Park, New South Wales to his son. The property has subsequently been transferred by the son into the joint names of himself and his wife who is the third defendant.

2   The plaintiff is 88 years of age and was born in Yugoslavia on 13 February 1913. He came to Australia in 1987 when he was then 74 years old and he does not speak or read English. The first defendant came to Australia in 1984 and he is now fluent in English as well as his native Serbian language. The second defendant has been solicitor of this court since 1981 and he is fluent in the English and the Serbian language. The first document which the plaintiff seeks to set aside was made on 29 December 1997 and is a transfer to the first defendant of an interest in remainder in the property at St Johns Park. According to the plaintiff that document was presented to him by the first and second defendants for signature and explained to him as being a will which had the effect of giving half an interest in the plaintiff’s home to the first defendant. The second transfer was signed in August 1998 whereby the plaintiff transferred his then life interest to the first defendant. It was alleged by the plaintiff that the first and second defendants represented to him there were problems with the first document he had signed and that he had to sign a further document which would put the plaintiff in a stronger position. The stronger position to which the plaintiff refers in this part of the pleadings was in relation to his dealings with his then third wife who he had recently married. She was then pressuring him to sign a will in her favour. The plaintiff puts his claims in various ways but primarily his claim is that the representations were made fraudulently by each of the first and second defendants. Subsidiary claims are made against the second defendant in negligence, breach of fiduciary duty and breach of contract of retainer. There is also mention against the first defendant of undue influence, duress and the contract being unjust in the circumstances under the Contracts Review Act.

3   In order to understand the matter it is necessary that the history of family be dealt with in a little detail before returning to the way the claims were put.

General History

4   The plaintiff was born in Yugoslavia on 13 February 1913. His eldest son migrated to Australia in 1972 and his younger son, the first defendant, migrated in 1984. In 1987 the plaintiff and his wife migrated to Australia where they resided with their son, the first defendant, and his family in Sydney until about 1989. They returned to Yugoslavia for a few years and in 1991 they returned to Australia where they rented a home near the first defendant. The plaintiff’s wife died in October 1991. In August 1993 the plaintiff met Dragica Savic, a widow. He went to live with her in a house which she owned at 113 Brisbane Road, St Johns Park. The plaintiff married Dragica Savic on 20 November 1993. It is clear that the first defendant did not approve of that marriage and there were arguments between the plaintiff and the first defendant. The estrangement continued for about 18 months. In December 1995 the relationship between the plaintiff and the first defendant was re-established. The following year the plaintiff’s second wife, Dragica, became ill with cancer and she died on 10 November 1996. The plaintiff’s second wife had died intestate and, accordingly, the St Johns Park property passed to the plaintiff. At this stage, at the suggestion of his son, the plaintiff employed the second defendant to act in the estate. He could communicate with him freely in the Serbian language. The Letters of Administration were granted on 6 February 1997 and the property transferred into the name of the plaintiff.

5   In about September 1996 the plaintiff started to suffer ill heath which . seemed to stem from blood pressure and coronary problems. He had dizzy spells and he consulted a number of doctors. His son assisted by taking him to see these doctors over a period of time.

6   After the death of his second wife in September 1996 the plaintiff returned to live with his son, the first defendant, and his family at their home. It was in March 1997 that the property was transferred to the plaintiff. About this time the plaintiff says, and this was disputed by the first defendant, that he commenced to be pressed by the first defendant to sell his home or alternatively to transfer it to the first defendant.

7   By May 1997 the plaintiff’s health had started to improve and after some disagreements with the first defendant’s family he contrived to have the first defendant take him to the St John’s Park house. When he arrived at his house the plaintiff decided to stay there and refused to return to the defendant’s house. Shortly afterwards it became apparent that the plaintiff had started a new acquaintance with a lady, Radmilla Nikolic, whom he married on 1 September 1997. This marriage revoked a will which the plaintiff had made on 18 October 1996 in favour of the first defendant. During the hearing the parties referred to the plaintiff’s third wife by her Christian name, Radmilla and I will adapt that course in this judgment. Although the first defendant had not seen his father, the plaintiff, for about three months prior to the marriage he heard about the marriage shortly after it occurred and went to meet Radmilla. He noted that his father seemed to be happy. The first defendant and his wife thus renewed contact with the plaintiff and Radmilla. The contact between the plaintiff and the first defendant then continued with the first defendant taking his father, the plaintiff, to various medical appointments. Apparently Radmilla was not able to drive long distances.

8   About two months after the marriage the plaintiff, according to the first defendant, complained to him that he was starting to be pressed by Radmilla to make a will in her favour. According to the plaintiff the first defendant kept raising the subject of the house and suggesting that Radmilla had only married the plaintiff so that she could have the house. According to the second defendant the plaintiff in September first discussed with him a plan to make sure that his house would go to his son. These discussions were advanced and on 20 November the plaintiff telephoned the second defendant to arrange a conference which then took place on 25 November at the second defendant’s office. There are file notes in respect of this conference which record discussions on a range of issues including a transfer of a remainder interest in the house to the son. Nothing was decided at the conference and ultimately on 29 December 1997 the plaintiff and the first defendant attended a conference with the second defendant at his home in Castle Hill.

9   At that conference the transfer of the interest in remainder to the first defendant was signed. There was also signed a will which was written out in Serbian which appointed the first defendant as executor and left the plaintiff’s moveable property to the first defendant. A valuation for stamp duty purposes was obtained and the transfer registered in January 1998. The first defendant paid the valuation fee which was incurred in this process. On 19 February 1998 the second defendant sent a note of his costs to the plaintiff, c/o the first defendant. It was written in English which was somewhat strange given the fact that he had previously written to the plaintiff in Serbian using the Serbian script when dealing with matters to do with the estate of the plaintiff’s second wife.

10   By May 1998 there were calls to the second defendant from the plaintiff, according to the second defendant, in which he indicated that his wife was asking him to go to a solicitor to make a will in her favour. On 13 August 1998 the plaintiff, the first defendant and the second defendant met at the second defendant’s office and discussed, according to the latter, a transfer of the life estate to the first defendant. This was prepared and signed. At the suggestion of the second defendant there was also prepared and signed a lease the terms of which I will come back to later but which substantially provided for the plaintiff to be able to reside in the house while he was able and wished to do so. The rental was fixed at the equivalent of the rates and insurance premiums which the plaintiff still wished to pay. According to the second defendant the plaintiff asked him to prepare a will revoking any will he might make in the future in favour of his wife.

11   Before the conference in August there was a document which was in the plaintiff’s handwriting which he gave to his son on 1 August. This was on an occasion when the plaintiff and his wife came to his son’s house for dinner. He gave it secretly to his son and asked him to read it later. That letter is instructive in terms of revealing the plaintiff’s intentions and what would have been discussed with him beforehand. Late in August 1998 the plaintiff received the water rate notices which were in the names of himself and his son no doubt because of the transfer of the interest in remainder. There were discussions with a solicitor, Mr Gagic, who Radmilla had taken the plaintiff to see. The plaintiff was then taken to his present solicitor by Radmilla and on 18 September 1998 he executed a will which provided for a life interest for Radmilla and left the interest in remainder to the plaintiff’s two sons. According to the second defendant the plaintiff rang him and told him that he was going to do this but indicated that he did not wish to do it and wanted to immediately revoke the will. The second defendant reminded him that he had already provided him with a document suitable for such a purpose.

12   Later on 18 September 1998 as a result of a call from the first defendant the second defendant met the plaintiff in a car park close to the defendant’s home. He executed a will which revoked the previous will in favour of Radmilla and appointed the first defendant as executor and gave him all his property including his house. There was also written on the back of it an express note revoking the earlier will. There was an independent witness to the execution of this will and I will return to the circumstances of its signature later. In his affidavit evidence the plaintiff says that this was arranged by the second defendant and his son and that he was pressured into signing this document.

13   In January 1999 the first defendant says his father telephoned him and said that Radmilla had apparently seen a letter from the Land and Valuation Office which had come to the home addressed to the first defendant. She was threatening to see a lawyer so that she could confirm that the house had been transferred and she was very angry. The first defendant’ s account of the conversation had the plaintiff saying that he was under extreme pressure from Radmilla. Later, according to the first defendant, he also said that he was going to have to have the house transferred back to him. A day later there was a message on the first defendant’s answering machine from the plaintiff to which I will return in which there are said to be a number of admissions made by the plaintiff demonstrating his real knowledge of what had occurred on the transfers. There are also some conversations with the third defendant in which similar admissions are said to be made. Shortly after this the parties became at issue and Mr Stojanovic continued to act for the plaintiff in the proceedings which were commenced in February 2000.

Plaintiff’s credit

14   Before turning to the circumstances in more detail when I will look at the cases put by each party in respect of the major events with which I am concerned it is necessary to look at the credit of the parties and the various witnesses. I will first deal with the plaintiff.

15   The plaintiff was a very unsatisfactory witness. He was elderly but certainly not frail. There were many occasions in the witness box when he would bluster, become angry and start to shout down counsel. During the hearing I had to continually remind him that he should listen carefully to the question and answer the question only. Instead he continued to take every opportunity to shout his condemnation of the second defendant. Some of the statements he made about the second defendant’s conduct were internally inconsistent. For instance he accused the second defendant of fraud in respect of signing a will but then admitted he could not recall having signed it.

16   On numerous occasions the plaintiff prevaricated. Some of these were not in respect of major matters. For instance the time when he first met Mr Dobrich, the second defendant. Another example was his dissembling about the reasons why he went to see Mr Gagic. He also prevaricated about secretly handing over the August 1998 note to his son. From time to time the plaintiff engaged in opportunistic revision of his evidence. In cross-examination he raised for the first time that the document he had signed had been half covered by Mr Dobrich. This never appeared in his affidavit material and he then suggested that he had in fact told his solicitor about this matter three or four days before giving evidence. The solicitor was not called and clearly this was a recent invention.

17   From time to time he had convenient memory lapses. There were numerous internal inconsistencies in his evidence. He denied answers which he gave in evidence the day before. From time to time he backed down on exaggerations he made in answers. An example of an inconsistency in his evidence is his statements in cross-examination that he was under no pressure to sign the will in complete contrast to his affidavit evidence. Generally I would not be prepared to accept the plaintiff unless he is corroborated in some material respect. In coming to this conclusion I am mindful of the difficulties which he had in reading and speaking English but it did appear to me that he was quite unreliable in what he said.

Defendants’ credit

18   In contrast I found the defendants to be careful witnesses. The first defendant was slow and thoughtful about his evidence and the second defendant I found to be careful and accurate in his attempts to answer questions. There were some inconsistencies which I will deal with later but I was of the view that he was endeavouring to give accurate evidence. The third defendant presented well and spoke plainly without any pretence. Another important witness was Slavoljub Vlastelica. He was an engineer and he gave evidence about the signing of the will in the park after the plaintiff had made a will in favour of Radmilla. It became perfectly apparent from the way he gave his evidence and his answers that he regarded what he had been asked to do, namely, witness a will, as a matter of some importance. I found his evidence quite compelling.

19   Before dealing with the detail it is necessary to appreciate if it is not already obvious that the plaintiff’s claim was pitched as a conspiracy to defraud on the part of the first and second defendants. No motive was put forward for the second defendant to be involved in such a fraud except that he was a friend of the first defendant. The claim involves disbelieving a number of independent witnesses such as the witness to the 1998 will and also involves the third defendant fabricating her evidence of conversations with the plaintiff. It also involves a claim that the second defendant had fabricated his file notes.

20   The chain of events in the sense of the documents that were signed is quite complex. If there had been an intention to defraud a simple transfer would have done. According to the defendants the only explanation for this complex chain of events was the plaintiff’s desire to deceive his third wife, Radmilla.

21   One thing became painfully obvious when the plaintiff was in the witness box and that is that he stands to lose the support of his wife, Radmilla, if he is not able to achieve a return to him of the land. From her conduct in the courtroom it was apparent that she had a keen interest in the outcome although she was never called.

The circumstances surrounding the first transfer

22   The events leading to the first transfer in 1997 of the interest in remainder to the first defendant commence with events earlier on in that year when the plaintiff was living with the first defendant. On the plaintiff’s story his son, the first defendant, was then pressuring him to sign the house over to him. The first file note of the second defendant which is in evidence is one of 14 March 1997. That file note generally deals with complaints by the plaintiff about his son, the first defendant. Importantly, however, the file note records as a first complaint that the son wanted to sell the house only four months after Dragica’s death. A later complaint makes reference to the son having the plaintiff’s house in Belgrade and wanting the subject house as well. This is a different emphasis from the plaintiff’s case, namely, that Zoran was pressing for the property to be transferred to him. Given the illness of the plaintiff and his residence at his son’s house, it is not unlikely that the son suggested that the house the plaintiff was no longer occupying should be sold.

23   According to the second defendant it was in September 1997 that he was first spoken to on the phone by the plaintiff about transferring the property. According to the second defendant the plaintiff wanted to prevent his new wife whom he had just married from inheriting the house. He wanted to make sure that it all went to his son, Zoran. Apparently there were a number of telephone conversations and according to the second defendant he put a number of options to him which included making a new will or transferring a remainder interest in the home to the first defendant. The transfer of such a remainder interest would defeat Radmilla’s desire to have the house.

24   It was 25 September, according to the second defendant, that he had a call from the first defendant saying that his father was in North Shore Hospital and wanted to transfer the remainder interest to him. The second defendant attended the hospital with a transfer. The plaintiff apparently changed his mind and said he was still undecided. There is a file note of 25 September recording the telephone call and the subsequent attendance. Importantly that records the fact that the plaintiff wanted to sign a “transfer of remainder”.

25   On 20 November, according to the second defendant, the plaintiff called him and discussed a proposal to make one will to please his wife to give her half a share and a second will to be signed later which would provide for the entire estate to go to the first defendant. There is a file note of this conversation which supports aspect of it. On 25 November 1997 there was a discussion when the plaintiff attended at the second defendant’s office. According to the second defendant at the plaintiff’s insistence the first defendant was present. The file note in respect of that records a two-hour conference. One of the choices raised recorded in the file note was the transfer of a remainder interest to the son now. It was on 29 December 1997 that the transfer was signed. There was a file note of the second defendant’s which is fairly brief but which refers to discussions on some three or four prior occasions over a number of hours. It also refers to the plaintiff wanting to sign a will now. It refers to the plaintiff’s reason for signing the transfer as wanting his house to go to his child and grandchildren not her children. The will that was signed was in the Serbian language and the dispositive part gave all moveable property to the first defendant. This is consistent with the transfer of the remainder interest to the first defendant.

26   The second defendant gave evidence of what he said which included an explanation of the life estate and that the plaintiff would be the owner until his death and afterwards Zoran to be the owner. He also says there was discussion about notices of sale and where rates notices should be sent. It became apparent in cross-examination that Zoran, the first defendant, was present when the second defendant gave advice. The first defendant’s evidence of what Mr Dobrich told the plaintiff was to the effect that the document he was signing was to leave half the house to Zoran now and the other half to Zoran on the plaintiff’s death. There was no re-examination but it was suggested in submissions that the mostly likely thing that happened was that some explanation involving the property being transferred as to part now and part when the plaintiff dies occurred. The plaintiff’s story is, of course, that the document to be signed was said to have been a will leaving half of the house to Zoran. The plaintiff denied the execution of the will. Mr Avedillo, who worked next door to Peter Dobrich’s office, in fact witnessed the will. He was called and confirmed his signature but could not, given the passage of time, recognise the plaintiff. He made it clear that he saw someone else sign the document before he did.

27   After the execution of the documents, according to the second defendant, he then proceeded with the registration of the transfer. He arranged a valuation and had to pay a higher fee given it was the Christmas holidays. Thereafter the transfer was registered in January.

28   It is important to look at events concerning the second document because there may be some relevant matters which go to whether or not the plaintiff knew and understood that he was transferring an interest in his home rather than making a will. There might also be some matters which might support the conspiracy alleged by the plaintiff. Accordingly, I will move on to these events.

The circumstances surrounding the second transfer

29   In February 1998 the second defendant sent a letter to the plaintiff care of the first defendant setting out his costs which were quite modest. It was in English and this is strange as he had previously corresponded, as I have pointed out, using the Serbian language. This letter made it plain that the transfer had been registered. The plaintiff, of course, seized upon this as evidence of hiding from the plaintiff the real effect of what had happened on 29 December. The second defendant gave evidence of a number of conversations in May through to July where effectively the plaintiff was saying that he was being pressured to make a will in favour of his wife and wanting to find out if he did so whether he could immediately thereafter cancel it. Strangely the second defendant did not tell him that there was no need to cancel it because such a will would not be effective given the transfer that had already taken place. The second defendant’s file notes support the conversations which he recounted in his affidavit in this respect. It also appears that by early July the second defendant was making calls to Centrelink to try and find out the effect of a transfer of the life estate to the son. Clearly by early August the plaintiff was being pressured to go and see Mr Gagic to sign a fresh will in favour of his wife, Radmilla.

30   The transfer of the life interest to the first defendant was signed on 13 August at the second defendant’s office. According to the second defendant the plaintiff raised the fact that unless he gave his wife half of the home she was going to leave. He mentioned that he had been taken to Mr Gagic who had refused to draft the will. A suggestion was made by the second defendant to the plaintiff, that he could transfer the life estate to the first defendant. He said that this would mean that there would be great difficulty in trying to claim the home by Radmilla. He said that if he signed such a transfer any will would no longer be effective as he was not the owner of the house. It seems to have been a suggestion of the second defendant to prepare the lease which gave a fairly secure right of residence while the plaintiff was fit and well. The plaintiff denied signing that agreement. The second defendant’s file note of the day’s events is consistent with his evidence and refers to the signing of the lease.

31   The plaintiff’s case is that he was called into Mr Dobrich’s office by Mr Dobrich on the pretext that the first will made was uncertain and he needed go sign another one. He says that when he attended the office these matters were repeated. He said that the document, which was similar to the previous one, was not translated to him.

32   On 17 August, according to the second defendant, the plaintiff telephoned him saying that he was worried that his wife might find out that the home was no longer in his name and that he wanted Zoran to transfer the home back to him. The second defendant said that he said that this would have to be discussed with Zoran. The file note of the second defendant supports his version of the conversation.

33   When considering all these events a very important document is a document in the plaintiff’s handwriting which does not seem to be disputed was given to the first defendant by the plaintiff in early August (before 13 August 1998) when the plaintiff and Radmilla came to the first defendant’s house for dinner. A translation of that note is in these terms:-

“I don't know what else 1 could do and I shall have to write a Will to say that I am giving her half the house, provided that she looks after and cares for me until my death. In case she doesn't look after me, that the Will will be invalid and that I shall cancel it.

You with Pera need to know what Pera said, that has to be done immediately after I sign this Will, meaning that next day we go to Pera and write another Will, but you need to say that you have made a specialist medical appointment for me, that I have to go that day when we need to go to Pera. You need not worry, because both Pera and Gajic told me that I can cancel a Will. Always be correct, talk to Pera whether it is better if I make a Deed of Gift before I sign this Will or after, and do we write a Deed of Gift at all.

Zoran, I have to write this Will giving her half the house, but all this will be cancelled by a second Will or something else, because she won’t remain, witnesses will confirm that she isn’t caring for me, and the main thing is that you call me when 1 tell you to, and tell me that you have made a specialist appointment and to that I shall reply that something is wrong with my heart and I need to go for a check up and you say that the doctor said to come when I feel some changes with my heart.

I am trying to convince her that by law she has rights after my death.

I was thinking of doing all sorts of things with her, that is not good for me, I don't want to be alone again or relying only on you, both old and sick.

Pera said that everything will be in order; but that we need to go to him straight away, you be in contact with Pera about everything".

34   Of importance is that he asks his son to speak to the second defendant, “whether it is better if I make a deed of gift before I sign this will or after, and do we write a deed of gift at all?” This shows a clear consciousness on the part of the plaintiff of his ability to make a gift of the property in order to defeat any will he may make in favour of Radmilla. It is quite contrary to the picture which he paints as to the reason why the second defendant, he said, called him into his office.

35   By the end of August the plaintiff was being further pressured to sign a will prepared by Mr Stojanovic . According to the second defendant the plaintiff rang him on 10 September and told him this and instructed him to prepare a new will to revoke the one which he said he would sign under pressure. The second defendant said he had already prepared such a will and he had given it to the plaintiff on the last occasion. The file note supports the second defendant’s version of this conversation. On 18 September the plaintiff signed a will before Mr Stojanovic giving an interest to his third wife. He immediately arranged to meet the second defendant and the plaintiff in order to sign a new will revoking it.

36   The execution of this will showed haste as the parties met to sign it in the car in the car park of a shopping centre near the plaintiff’s home. On this occasion a friend of the first defendant came to whom I have already referred when discussing the credit of witnesses. The plaintiff’s version is that he was tricked into going for a walk with his son as he said he wanted to talk to him about something. They met up with Mr Dobrich and he was asked to sign a will which said that all previous wills were revoked and that he should sign it and get back before Radmilla returned home. He claimed to sign it without reading it. He said in cross examination that he was happy to do it because he felt uncertain about some of the earlier wills that he had signed. He says he intended to sit down later to talk to his wife as to what he would do and leave to her. This seems somewhat extraordinary given that morning he had already signed a will in her favour in Mr Stojanovic’s office.

37   A number of important events occurred in January and February when admissions were said to be made. The first of these was in a conversation between the plaintiff and the first defendant in which he said that a letter from the Land Valuation Office had arrived in his son’s name and that Radmilla was threatening to take it to lawyers so that she could confirm who owned the house. He then went on to suggest that they would have to change the transfer but give it back to him later. There was also a message left on the first defendant’s answering machine by the plaintiff on 1 February. The answering machine was played in court to the plaintiff and ultimately he accepted part of a translation of it. It was perfectly apparent that in that conversation he was well aware of the fact that he had been found out about the fact that the ownership of the house had been transferred to Zoran. In addition in a conversation with the third defendant about this time she gave evidence of a conversation on 10 February in these terms:-

“Ratomir: I want you to get Zoran to transfer the house back to me. Radmilla has found out. She is going to leave me unless I get the house back.
Dragica: It is not as simple as that. We have incurred considerable expense in accepting the transfer of the property to us. It will cost more money to transfer it back to you.
Ratomire: You will just have to borrow the money you need to do it. Radmilla will leave me unless you do. I’ll take you to court if you don’t transfer the property back. You’ll have to do it then. You have no proof that I wanted to transfer the property to you in the first place.”

38   I found the third defendant quite straightforward as a witness and the account she gives of this conversation is totally inconsistent with the view of the plaintiff that he had been tricked into signing away the house. In fact it was quite the contrary and showed a clear consciousness of the fact that he wanted to transfer the property in the first place.

The first representations on 29 December 1997

39   The representation pleaded in paragraph 12 of the Statement of Claim was that the first and second defendants represented to the plaintiff that the document which they presented to him for signature was a document or testament having the effect of leaving a one half interest in the plaintiff’s home to the first defendant.

40   In his affidavit evidence the plaintiff put the representation in this way. He said that he instructed Mr Dobrich, the second defendant when he spoke to him on the phone on the 29 December

“I have a desire to make a will. I want to leave half the house to Zoran.”

41   When he attended on 29 December his evidence was that Mr Dobrich said to him:-

“I have prepared a will how we discussed half the house goes to Zoran. You only now have to sign.”

42   Clearly the representation, according to the plaintiff, was that he was being presented with a will which left half the house to Zoran.

43   The plaintiff’s case was that the circumstances leading up to the signature on the document on 29 December showed a plan by the first defendant, in concert with the second defendant, to deceive the plaintiff into giving an interest in the house to the first defendant. Submissions pointed to the evidence of the earlier attempts by the first defendant to pressure his father into either giving him the house or selling it and the admitted animosity of the first defendant to the plaintiff as a result of him remarrying not only the first time but also the second time when he married Radmilla. This was then linked with the friendship between the first defendant and the second defendant to indicate why both became involved with the attempt to deceive the plaintiff. The motive according to the submissions of the plaintiff was that the first defendant wished to defeat the claims of Radmilla.

44   In support of this claim of deceit on the part of the first and second defendants the plaintiff in submissions pointed to a number of different matters which showed suspicion or matters in support of the proposition which he advanced. It was said that these matters would lead one to prefer the plaintiff’s account of the evidence in respect of the representations rather than that of the first and second defendants. The relevant matters referred to were as follows:-

1. The pressure from the first defendant upon the plaintiff to transfer the house to the first defendant.

2. The friendship between the first and second defendants.
3. Discrepancies in the timing of the meeting of 29 December.
4. Discrepancies as to who were present at the time the representations were made.

5. The evidence of the first defendant that what the second defendant had said to the plaintiff was to the effect that the document he was signing was to leave half the house to the first defendant now and the other half when the plaintiff died.

6. The statements by the second defendant to the plaintiff that he would be “owner of the property until his death”.

7. The urgency to register the transfer.

8. Reporting on the registration of the transfer by writing in English to the plaintiff c/o the first defendant.

9. The failure of the second defendant to point out to the plaintiff after 29 December in numerous conversations there was then no need for him to worry about revoking any will to be made in favour of Radmilla

1. The pressure from the first defendant upon the plaintiff to transfer the house to the first defendant.

45   The plaintiff gave evidence that after he moved into his son’s home in early 1997 his son started to insist that he sign over the house to him. He said this happened on a number of occasions. He says that his son had acquired the keys of the house without his knowledge and stored some tiles there. These allegations were denied by the first defendant. It is instructive if one looks at the file note of the second defendant 14 March 1997, where the second defendant records the first comment as “the plaintiff complaining that his son wanted to sell the house only four months after Dragica’s death”. Later in the note he refers to having given him a house in Belgrade and “his son now wanting the house as well”. That file note which of course only relates to complaints made by the plaintiff to his solicitor does not really truly reflect what the plaintiff said in evidence. It seems to be more likely as the house was empty that the first defendant was saying to his father that he should sell the house. Unfortunately this was not put to the first defendant in cross examination so he has not answered that allegation. I do not regard the file note as sufficient corroboration of the plaintiff’s version. I will proceed on the basis that there were suggestions by the first defendant to the plaintiff that he should sell the house.

2. The friendship between the first and second defendants.

46   It is clear that it was at the suggestion of the first defendant that the plaintiff employed the second defendant to deal with the estate of his second wife. The evidence contained reference to the first defendant having asked the second defendant to his home for a Saints Day celebration and there was also evidence that their children were involved in out of school activities altogether. The first defendant did not deny that he was a friend of the second defendant. Accordingly I will proceed on the basis there was a friendship between the first and the second defendants.

3. Discrepancies in the timing of the meeting of 29 December.

47   According to the file note of the second defendant the meeting commenced 9:45am and continued through until 11am. The plaintiff placed the meeting at about noon and the first defendant in the afternoon. He said that in the morning he had picked up his father so that he could play with his grandchildren. The second defendant thought a meeting had been set up some days before and perhaps confirmed on the morning. Clearly there is a difference between the parties and it might be that if one person’s evidence was preferred over others and I might be persuaded to consider the possibility that the file note was subsequently created. This was not put to the second defendant. I will proceed for the time being on the basis that there are unexplained versions in the evidence on this aspect.

4. Discrepancies as to who were present at the time the representations were made

48   The first defendant and the plaintiff were both present at times during the meeting with the second defendant. There is some dispute on the evidence as to whether the second defendant had asked the first defendant to wait outside while he saw the plaintiff. The position advanced by the second defendant was that the plaintiff insisted on his son being present. The first defendant said he was present for part of the time. The resolution of this dispute is not important because the relevant evidence that emerged at the meeting which I will next consider was at a time when the first defendant and plaintiff were present.

5. The evidence of the first defendant that what the second defendant had said to the plaintiff was to the effect that the document he was signing was to leave half the house to the first defendant now and the other half when the plaintiff died.

49   The first defendant did not deal in his affidavit evidence with the terms of the conversations which he heard at the meeting. His oral evidence was that he recalled Peter Dobrich explaining the effect of the document as giving half the house to the first defendant and after the plaintiff’s death the other half of the house will go to the first defendant. It was the first defendant’s belief that this was the effect of the document which was a transfer of the interest in remainder. The first defendant was not cross examined by counsel for the second defendant in respect of this evidence and indeed the second defendant himself did not have the evidence put to him. Instead that cross examination seemed to deal with the matter considered on the next point. It is important to realise that the plaintiff’s submissions which were put on this aspect were without the benefit of transcript and once one sees the transcript it is apparent that the first defendant was coupling two matters together in the explanation, one was a half interest now and the remaining half interest on death. In these circumstances this supports some explanation by the second defendant of a life estate rather than a misleading of the plaintiff by merely saying that the effect was to leave half the house to the first defendant on the plaintiff’s death.

6. The statements by the second defendant to the plaintiff that he would be “owner of the property until his death”.

50   In his affidavit evidence the second defendant included in his explanation a statement he made to the plaintiff that he would be the “owner until his death” and after that Zoran would be the owner. The challenge in cross examination was that this was not a true explanation of the transfer. The second defendant said that he was using ownership in the sense of possession. The second defendant conceded that he did not explain that the plaintiff would have no house to sell in the future if he wished to do that. He said that although the plaintiff had asked him a number of questions about a life estate he did not ask him that one. The description certainly lacks precision. However this is not the representation pleaded or relied upon by the plaintiff in his misrepresentation case.

7. The urgency to register the transfer.

51   The transfer having been signed on 29 December 1997 the second defendant called a valuer on 31 December to obtain a valuation. It was obtained the fee being $350 which was the normal urgency fee in contrast to the standard fee of $250. The valuation was made available on 5 January and the stamp duty declaration was made on 12 January 1998. The transfer was registered on 13 January. There is no evidence to suggest that this was a particular speedy process apart from the fact that the higher valuation fee was paid. According to the second defendant this was the holiday period. I am not satisfied that there was anything particularly quick about the process of second defendant at this stage and indeed even on the plaintiff’s case there would be seem to be little reason to do the matter quickly.

8. Reporting on the registration of the transfer by writing in English to the plaintiff care of the first defendant.

52   It was on 19 February that the second defendant wrote a letter addressed to the plaintiff c/o his son the first defendant. This letter reported upon registration of the transfer and enclosed a note of some costs. It was written in English. When dealing with the plaintiff’s second wife’s estate it is clear that the second defendant had previously written to the plaintiff in Serbian. When challenged on this matter the second defendant initially had no explanation but then gave evidence of the fact that he had been instructed not to send any letters to the plaintiff. According to him he had been told to send them c/o his son who of course did speak English. If the plan, as it appears to be even on the plaintiff’s case was to deceive Radmilla, then it would have been very foolish to write to the plaintiff in Serbian at his home which was also occupied by Radmilla. According to the plaintiff the reason for writing in English was so that the plaintiff never found out that there had been a transfer of the property. In contrast the defendants seek that I infer that this action is totally consistent with what the plaintiff was trying to achieve namely a deception of Radmilla.

9. The failure of the second defendant to point out to the plaintiff after 29 December in numerous conversations there was then no need for him to worry about revoking any will to be made in favour of Radmilla

53   It is clear that after 29 December there are a number of conversations that were held in the following year between the plaintiff and the second defendant in which the second defendant was told by the plaintiff that he was being pressured to sign a will leaving the home to Radmilla. Certainly the second defendant realised that having transferred the interest in remainder the plaintiff was not in a position to leave the home to Radmilla but the surprising thing is that he did not suggest to the plaintiff that he should simply sign such will in the knowledge that it would be of no effect. Evidence was given by the first defendant in respect of the August meeting that the second defendant explained to the plaintiff that after he signed the transfer to the first defendant, that he could leave Radmilla the Opera House if he liked as it would not affect him as he did not own the Opera House. The second defendant’s explanation was that the point of revoking the will was to confirm that the plaintiff was under pressure from his wife. If he left the will unrevoked, his wife would have a document she could rely upon for some claim. The plaintiff submitted that this was ridiculous and that the failure in this regard was a powerful reason for inferring that the reason was that the second defendant did not want the plaintiff to know the nature of the document he had signed. Although not dealt with in this cross examination, the plaintiff apparently had other property in Serbia.

Conclusions in respect of the first representations.

54   Under section 140 of the Evidence Act the court must find the case proved on the balance of probabilities. Under subsection 2 the court must take into account the gravity of the matters alleged. In the present case serious matters are alleged namely an allegation of fraud which was practiced deliberately by the second defendant with the knowledge and conniving of the first defendant. The fraud is alleged to be a misrepresentation as to the nature of the document which the plaintiff, who could not read English, signed in the presence of the first and second defendants. Earlier in this judgment I referred to admissions which were contained in a note which the plaintiff gave to the first defendant early in August 1998 and also admissions in conversations with the first and third defendant once Radmilla found out about the transfer. Those admissions are not specific enough to relate to the first transfer which I am now considering and indeed can be explained by circumstances may have occurred in relation to the second transfer. Accordingly I will put them aside for the purposes of considering whether or not the first representations were made.

55   Leaving aside the credit of the plaintiff for the moment, important factors which stand out about the first transaction are as follows:

1. The file notes of the second defendant record discussions about a transfer of an interest in remainder prior to the execution of the document in question. See for example the file note of 25 November 1997.

2. The will signed on 29 December 1997 is perfectly consistent with the transfer as it only deals with the plaintiff’s movable property. It is also written in Serbian and could be easily read by the plaintiff.

3. Although the witness could not identify the plaintiff it seems more likely than not that the plaintiff did sign the will on 29 December 1997.

56   The signature of a will and a transfer is consistent with the plaintiff’s clear intention that he did not wish his third wife Radmilla to inherit the property which he had so recently acquired. This was particularly so as she had only been with him as his wife for a short period.

57   As I have pointed out the claim of the plaintiff’s necessarily involves the second defendant being part of a joint enterprise to deceive the plaintiff. Part of that deceit must necessarily be the concoction by the second defendant of the file notes to support his version of events. Reasons for the second defendant to do this are not compelling as the fees which he obtained as a result of the transaction were very modest and the only motive advanced was the simple fact of his friendship with the first defendant. Under normal circumstances something far more than simple friendship is necessary for there to be such deceit. There is no doubt that the first defendant was angry with his father for re-marrying although there was the rapprochement after his father appeared happy. It is conceivable that the first defendant would have a motive for trying to obtain the transfer which was executed in December namely that he should receive the property and defeat any claim that this new wife might have to his father’s property. However I have real doubts as to whether the motive attributed to the second defendant would be sufficient.

58   I have now set out some of the factors which the plaintiff wishes me to take into account as a reason for preferring his version of the representation. Apart from 1 or 2 matters, they have little impact on the question. Even leaving aside the question of the plaintiffs credit I would need substantially more to form a view that the second defendant had engaged in such a serious deception involving fabrication of his file notes.

59   Taking into account the views which I have expressed about the credit of the witnesses I am perfectly satisfied that the representations which the plaintiff claims were made by the second defendant in the presence of the first defendant on 29 December were not made.

The second representations made on 13 August 1998

60   The representation pleaded in paragraph 14 was that the first and second defendants represented to the plaintiff that there was a problem with the first document signed and that the plaintiff had to sign a further document which would put the plaintiff in a stronger and safer position.

61   The plaintiff gave evidence that he had a discussion a few days earlier with the second defendant in which the second defendant said:-

2nd defendant: “You need to come in a do a New Testament which will be stronger and safer for you.”
Plaintiff: “What is wrong with the one that I have already signed?”
2nd defendant: “That one is invalid and uncertain, your wife can still take the whole house and sell it. The new one will make sure that this won’t happen.”
Plaintiff: “I will come one day with Zoran.”

62   He said that when he attended the office on 13 August he had a conversation with the second defendant in the presence of the first defendant in which the second defendant said:-

“The first will is no good and is uncertain and invalid. You now need to sign another one, which will be certain. I have already prepared it.”

63   He says that he asked why the first one was no good and was told:-

“It is too uncertain, your wife can take the house, put you in a nursing home and sell the house.”

64   The plaintiff’s submissions continued the theme in the respect of the first representation and in addition referred to the following:-

1. The investigations into the effect of such a transfer on the plaintiff’s social security position.

65   It became apparent that in July 1998 the second defendant was making investigations into the effect of the transfer of the life estate to the son. See the diary entry of 2 July. It is clear from the notes on that day and 8 July that what was being considered was a transfer of the life estate to the son, in other words a surrender of the life interest. The second defendant initially explained it as having been asked to look at the effect the transfer of the remainder interest. He said that that request had come from the plaintiff. Such a request was surprising as it was such a long time after the events of December.

66   The notes themselves clearly indicated some proposal, or thought of a transfer, of the life interest in July.

2. The lack of file notes concerning the proposal for the transfer in August prior to the meeting on 13th.

67   The relevant meeting happened on 13 August. There is a file note on 13 August which records the matters which occurred including that the plaintiff signed a transfer to his son as the owner. There was no note of conversations alleged by the second defendant which had occurred prior to that day when the proposal was discussed. The second defendant asserted in his oral evidence that he had discussed a transfer of the life estate in mid 1998. In his affidavit evidence he says that the matter arose on the visit of the 13 August and he did not refer to the earlier discussions. This is probably because the file notes about the social security discussions did not refer to such discussion.

3. The second defendant’s explanation that the transfer would defeat any Family Provision Act claim by Radmilla.

68 The second defendant explanation for giving the advice about the transfer was that it would help defeat any potential claim under the Family Provision Act by the wife Radmilla. This explanation seems to be not very strong having regard to the fact that all the plaintiff had was a life interest which would come to an end on his death. It is hard to see how the transfer of the property would make a difference to a Family Provision Act claim.

4. Why the will signed on 13 August gave the whole of the plaintiff’s property to the first defendant.

69   There would be little point in the plaintiff executing a will giving the whole of his property to his son. His major asset had been transferred. The only explanation would seem to be that the plaintiff was absolutely insistent about signing a will as well. For the plaintiff’s part it is put forward to support an inference about the deception in respect of the nature of the document he was signing. It will be recalled that the plaintiff’s case was that he only signed one document. However it is clear on the first and second defendants’ evidence that there were two documents signed.

5. The nature of the lease which was signed.

70   In submissions there was much criticism of the lease which was signed because it only allowed the plaintiff to live in the house while he was able and decided to do so. It was pointed out that this meant that once he needed to go into the nursing home he would lose his rights to the house. However it seems to me that this lease is something which indicates the second defendant’s own separate concern for the plaintiff’s position. No one asked him to draw a lease. He proffered it and insisted on it being signed. Doing that is arguably inconsistent with a desire to deceive the plaintiff by transferring his property to the first defendant. Plainly the plaintiff and Radmilla were to occupy the house until the plaintiff’s death. The conspiracy would have to be one to have the house in a practical sense after the plaintiff’s death and in the meantime conceal the true effect of the transfer which was signed. The signing of a lease in these circumstances would be quite superfluous.

6. The charade concerning the signing the 18 September will.

71   The plaintiff’s case is that this event was a further attempt to hide from the plaintiff the fact that he had already transferred his interest in the property to the first defendant. With regard to the signing of this will I have earlier referred to the evidence given by the witness who was called. He was a friend of the first defendant but he impressed me as someone who regarded what he was doing as a matter of some seriousness. According to him the plaintiff had the document read to him, fully explained and that there was no suggestion that the plaintiff was reluctant or unwilling to sign the document. I have already noted the different versions of the plaintiff’s evidence about whether or not he felt pressured to sign the document. Also noteworthy is the fact that there was a separate document which was a specific revocation of the will that had been signed in Mr Stojanovic’s office. This would tend to indicate to me that the plaintiff had a strong desire to make sure that the will which he had just signed was not effective.

72   In these circumstances it is necessary to look also at the other evidence and the admissions to which I have referred. The note in the plaintiff’s handwriting handed to the first defendant at the beginning of August clearly shows a consciousness of the use of a deed of gift. Such knowledge could only have come from an earlier discussion of this subject with the second defendant. This is consistent with the second defendant’s oral evidence. It is also important because it shows that the plaintiff clearly understood that he was considering making a gift as well as making a will. Wills become important in some people’s eyes and it seems to me that the plaintiff regarded them as being important.

73   The plaintiff gave the following evidence in cross examination concerning 13 August.

“MUDDLE: Q. How many documents do you say were shown to you by Mr Dobrich on that day?
A. Nothing. Just this one form that you have shown me here and he showed me just one form and he said to me - the first will and testament was not sure enough because my wife could sell the house and leave me and this document could be sure enough and certain. He also said to me that "This is the last will I can sign that I cannot sign anymore wills", and even if I signed away the Opera House it wouldn't be valid because this is the last and valid one there is.

Q. He told you that even if you signed away the Opera House it wouldn't be valid, is that what you say?
A. Even if I signed away for the Opera House, it wouldn't be valid or worth anything.

Q. He explained to you, didn't he, that you were signing away all of your interest in the St John's Park property and therefore it would not be possible for you later to leave it, by will, to anyone?
A. He said, "I could not sign anymore wills and testaments and your wife cannot sell the property anymore."

74   This is partially consistent with the first defendant’s version of a statement made that day by the second defendant to the plaintiff. It is quite inconsistent with the plaintiff’s belief about his ability to always be able to revoke a will. In short it is an unconscious slip in cross examination which acknowledges that he knew he had disposed of the house.

75   The existence of the note in early August in the plaintiff’s handwriting is a very strong indication in my view that the plaintiff had been discussing proposals for a gift of the property and that is consistent with the second defendant’s oral evidence but not his affidavit evidence. When one then moves to consider the other admissions recounted by the first defendant, and particularly the third defendant, it is perfectly obvious that the plaintiff knew that he had in fact given the property to his son. I have earlier indicated that I am prepared to accept this evidence.

76   Accordingly I am satisfied that the second representations were not made.

Disposition of the proceedings

77   It follows from the conclusions that I have come to in respect of the representations that the claims against the first and second defendants in fraud and negligence in paragraph 19 of the Statement of Claim cannot stand. An addition the claim in paragraph 20 of the representations of misleading or deceptive breach of s 2 of The Fair Trading Act 1982 cannot stand.

78   In paragraph 21 there is a claim that there was a fiduciary duty owed to the plaintiff by the first defendant. This was not advanced in submissions and I can see no basis for this claim.

79 In paragraph 26 there is a claim that the plaintiff was subject to undue influence and/or duress. Given that I do not accept the plaintiff’s versions of the evidence and noting the quite different versions of the plaintiff’s evidence in respect of the will, it seems to me that the plaintiff was under no duress. He consulted the second defendant from time to time, had numerous conversations with him and ultimately took the steps he did with the intention of defeating the claims by Radmilla. For the same reasons the claim in paragraph 27 of the statement of claim should not be accepted. In paragraph 28 there is a claim that the transfer was unjust in the circumstances the Contracts Review Act 1980. No submissions were put on this claim and given my conclusions it would seem that it cannot be advanced.

80   There is a claim in paragraph 23 of the statement of claim that the second defendant breached his contract with the plaintiff and acted negligently in the conduct of the retainer. The particulars record a failure to explain the effect of the transfer and failure to tell the plaintiff to obtain independent advice. It was said in submissions that there was a duty upon the second defendant to explain the documents or at least to ensure that the client understood the material parts and the consequences of executing them. It was said that the following matters were not explained by the second defendant to the plaintiff:-

1. The transaction could not be revoked unilaterally.
2. The plaintiff would not be the owner other than that he would have a life interest.
3. The plaintiff could not thereafter sell the property no matter what were his needs for other accommodation.
4. That he was giving away his major asset.
5. That he was putting it beyond his power to look after Radmilla.
6. That he was putting it beyond his power to further reward his son, Zoran.
7. That he would only have a life interest with the limits inherent in that interest.
8. If Radmilla ever left the plaintiff had no choice but to go back to Zoran if he would have him.

81   As far as the second transfer is concerned it is said that there was a breach in that the second defendant:-

9. Did not explain to the plaintiff the nature and the consequences of the second transfer.
10. Did not warn the plaintiff of the special risks inherent in the second transfer.
11. He did not explain that the effect of the documents meant that he would have nowhere else to live once he could not live independently.
12. That the transaction could not be revoked independently.

82   The first thing to observe about this claim is that it is not based upon the plaintiff’s own evidence. The plaintiff’s evidence was not that he engaged the second defendant to prepare the documents that he did prepare and have the plaintiff sign them. However, in submissions the claim seems to be predicated upon the basis that I disbelieve the plaintiff’s evidence and accept the evidence of the second defendant. Assuming that this is the basis for the moment the first thing to observe is that the only evidence given was to the effect that the second defendant acted only for the plaintiff in respect of the transactions relating to St Johns Park and the wills prepared by the second defendant for the plaintiff in that period. There is thus no basis for any suggestion that the second defendant acted for two parties in the transaction. Accordingly, there was no need for the plaintiff to obtain other independent advice. The second defendant was only acting for the plaintiff. I am mindful of the fact that the second defendant’s fees for the transfer were ultimately paid by the first defendant but this of itself does not prove retainer by the first defendant. I also note that the second defendant had the first defendant take the transfer away to have someone else witness that transfer. This occurred in respect of both transfers. Given that the plaintiff well knew of the relationship between the first and second defendants there can be no question of breach of fiduciary duty.

83   In respect of the retainer for the first transaction this has to be seen in the context of the discussions which occurred up to the time of the execution of the document on 29 December 1997. In particular there should be noted the desire to prevent Radmilla from inheriting the property. At some of the interviews matters were discussed when the first defendant was present I am satisfied on the evidence I accept from the second defendant that he had attempted to exclude the first defendant from interviews when instructions were given but at the insistence of the plaintiff he allowed him to stay.

84   The instructions given in the second defendant’s evidence in chief in respect of the first transaction appears at paragraph 12 and was in these terms:-

“One way to do this would be to transfer a remainder of your estate to Zoran and for yourself to keep a life interest. At best your wife will have a life estate only and after your death Zoran will be the owner. Furthermore, you would be the owner until your death and after that Zoran will be the owner. If she left you you could always divorce her and she would have no rights to the home.”

85   I accept the evidence of the second defendant that he read the transfer to him and that the plaintiff understood its effect and then signed the transfer in his presence. The extent of the advice was explored in part in cross examination at transcript 203. The second defendant was cross examined to this effect:-

“Q. You said, "You would be the owner until your death?
A. Yes.

Q. You did tell him that?
A. Yes.

Q. Do you still think that is the effect of the transfer he signed?
A. I was talking in terms of ownership and, in effect, his interest as owner would continue as death, and upon his death the first defendant would be the owner of the property.

Q. Weren't you aware at the time all he had was a right to live there after he signed the transfer?
A. Yes.

Q. A right to live there is not ownership of a property, is it?
A. That was my understanding of the rights which the plaintiff had in relation to property. Certainly he could never - he certainly could never be thrown out of the property.

Q. But it is not ownership, is it?
A. Ownership in a sense of possession.

Q. You did not tell him the effect of the signing the transfer would be to give away ownership except in perhaps possession of his interest, did you?
A. Yes, I did.

Q. You told him I am sure he would be the owner until his death?
A. Yes, he would have possession of the property.

Q. And you didn't tell him, I take it, that if he signed the transfer he would have no house to sell if he needed to buy nursing home accommodation of any sort?
A. He, the plaintiff did not ask that question of me. He asked me many other questions, but not that question.

Q. It is his fault, is it, that he failed to ask you that question if he objects to not being able to acquire nursing home accommodation?
A. If you think so.

Q. No, I am asking you?
A. I don't know.”

86   I turn to each of the particular matters in which it is said that the second defendant failed to properly explain the effect of the transfer.

1. The transaction could not be revoked unilaterally.

87   Given the fact that it was a transfer, it was explained and that it was effective immediately, there would ordinarily not be a need to say that could not be revoked unilaterally. It is to be remembered that it was a transfer of property that was being explained, not the effect of a will.

2. The plaintiff would not be the owner other than that he would have a life interest.

88   The expression in the affidavit that the plaintiff would be owner until his death in a sense would be misleading. However, the cross examination made it plain that the second defendant did explain that it was giving away ownership except in respect of possession. There were obviously a number of other words used to explain this effect. See my earlier comments on the first defendant’s explanation of what was said by the second defendant. It made it clear that part of the ownership was being given then and part on the death of the plaintiff. I am satisfied that there was an appropriate explanation.

3. The plaintiff could not thereafter sell the property no matter what were his needs for other accommodation.

89   This raises the question of the extent of the duty of the plaintiff’s solicitor. As was indicated in the quote from the cross examination this question was not asked of the second defendant. In Clark Boyce v Mouat (1994) 1 AC 428 at 367 the Privy Council was concerned with a case where a solicitor was acting for both parties. It was a case where the plaintiff had gone guarantor for her son in respect of some loans to the son. Independent advice was offered and refused and the solicitor in that case pointed out that she would lose her house if the son failed to meet the mortgage payments. At page 437 the advice was:

“When a client in full command of his faculties and apparently aware of what he is doing seeks the assistance of a solicitor in the carrying out of a particular transaction, that solicitor is under no duty whether before or after accepting instructions to go beyond those instructions by proffering unsought advice on the wisdom of the transaction. To hold otherwise could impose intolerable burdens on solicitors.”

90   In the present case this allegation has to be seen against the background that the plaintiff wished to dispose of his property so that Radmilla could not obtain it. The whole context of what the solicitor had been engaged to do, namely, prepare a particular type of transfer, was set against this background. In these circumstances I do not see that this is legal advice connected with that nor would I see the solicitor being under a duty to advise on this matter.

4. That he was giving away his major asset.

91   For the reasons set out in 3 above, I do not think this is legal advice nor do I think there was an obligation for the second defendant to advise on this aspect.

5. That he was putting it beyond his power to look after Radmilla.

92   This clearly falls outside legal advice and there was no liability to so advise.

6. That he was putting it beyond his power to further reward his son, Zoran.

93   This clearly falls outside legal advice and there was no liability to so advise.

7. That he would only have a life interest with the limits inherent in that interest.

94   I have dealt with this under 2 above.

8. If Radmilla ever left the plaintiff had no choice but to go back to Zoran if he would have him.

95   This is in the same category as 5 and 6 and above.

96   I am satisfied that there was no negligence or breach of retainer on the part of the second defendant carrying out his instructions to prepare a transfer for a remainder interest to his son, the first defendant.

97   I turn to the second transfer on 13 August 1998. It will be recalled from the history which I have earlier detailed that this occurred following further pressure upon the plaintiff to make provision for his wife. The relevant discussion when instructions were given were as follows:-

Dobrich: “You could transfer your life estate to Zoran. Your wife would have great difficulty trying to claim the home for herself and her children. If you signed a transfer doing this you could sign any sort of will but it would not be effective to give your wife anything as you would no longer be the owner of the home.”
Nikolic: “I want to do this.”

98   I turn to the various matters alleged in respect of this advice.

9. Did not explain to the plaintiff the nature and the consequences of the second transfer.

99   In my view the conversation which I have referred to above clearly explained the consequences in very plain language.

10. Did not warn the plaintiff of the special risks inherent in the second transfer.

100   The special risks were not spelt out in submissions but in any event if they encompassed some of the matters dealt in the first transfer the same comments would apply.

11. He did not explain that the effect of the documents meant that he would have nowhere else to live once he could not live independently.

101   This is a reference to the terms of a lease which was then signed on 13 August. The affidavit evidence of the second defendant was that he explained the form of the lease and he translated the first and second pages. In cross examination that was changed and the second defendant said that he also translated the page containing clause 30. That page contained clauses 30 and 31. The terms of clause 30 clearly indicated that his right to live there would only be as long as he wished and was able to live independently or in the terms of 30 (b) able to reside in the property. The nature of what was said was not explained really is advice about his personal situation once he had reached that stage. I would have thought that this would not be legal advice and there was no obligation to give it. The fact of the matter is that he would probably have other places to live with his immediate family including the first defendant. The terms of 30 (c) also makes it clear that once the plaintiff had ceased residing in the property then the lease could be terminated.

12. That the transaction could not be revoked independently.

102   For reasons which I have earlier expressed I do not think there was any need to explain this. The parties were concerned with a transfer of the home so that the plaintiff would have no further ownership in it.

103   In the circumstances I am satisfied that there was no negligence or breach of retainer on the part of the second defendant in relation to the second transaction.

104   In these circumstances I dismiss the plaintiff’s claim and I will hear argument on costs.

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Last Modified: 01/31/2002