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Nitopi v Nitopi

Nitopi v Nitopi

Case [2022] NSWCA 162 26 August 2022

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109 NSWLR 390

Nitopi v Nitopi [2022] NSWCA 162 Court of Appeal Bell CJ, Ward P and White JA 21April, 26 August 2022 EQUITY — Unconscionable conduct — Special disability or disadvantage — Other party’s knowledge — Whether constructive notice of special disadvantage sufficient — Whether requirement for “predatory state of mind” — Whether passive acceptance or retention of benefit constitutes unconscionable conduct — Evidentiary onus to show transaction fair, just and reasonable .

The defendant was a child of the deceased, who died in 2014. Between July 2009 and June 2010, the deceased made six payments to the defendant.

The primary judge found that, from November 2008 until his death, the deceased’s cognitive impairment was sufficient to constitute a special disadvan tage in his dealings with the defendant; that, even if the defendant lacked actual knowledge of the extent of the deceased’s disabilities in June 2009, the defendant ought to have known of the deceased’s special disadvantage from June 2009; and the six payments made to the defendant were the result of the defendant unconscientiously taking advantage of the deceased.

The primary judge ordered that the defendant repay the six payments, with interest, to the deceased’s estate.

The defendant appealed.

Held (allowing the appeal in part): (1) For a claim of unconscionable dealing in equity, a finding of actual knowledge is not essential. Constructive knowledge of a special disadvantage, in the sense of that the defendant ought to have known of that special disadvantage, may be sufficient. ([4]–[14]; [118]–[120])

Kakavas v Crown Melbourne Ltd(2013) 250 CLR 392; [2013] HCA 25; Thorne v Kennedy(2017) 263 CLR 85; [2017] HCA 49; Stubbings v Jams 2 Pty Ltd(2022) 96 ALJR 271; [2022] HCA 6 followed.

(2) (Ward P) Mere knowledge of a special disadvantage is insufficient. There must be unconscientious exploitation of the known special disadvantage or disability to constitute unconscionable dealing. In some circumstances, passive acceptance or retention of the benefit of an impugned transaction may establish unconscientious exploitation of a special disadvantage. ([101])

(3) (Ward P) Once the requisite elements of a special disadvantage, knowledge of that special disadvantage, and the improvidence of the transaction are established, there is an evidentiary onus on the stronger party to show that the transaction was fair, just and reasonable or a court may more readily infer that the impugned transaction was procured by the unconscientious exploitation of that special disadvantage by the stronger party. ([140]–[142], [147], [150]–[153], [170])

Louth v Diprose(1992) 175 CLR 621; [1992] HCA 61; Turner v Windever[2003] NSWSC 1147; Turner v O’Bryan-Turner[2021] NSWSC 5 followed.

Consideration (by Bell CJ) as to the reconciliation of Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25 and Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49. ([5]–[9])

Consideration (by Bell CJ) as to the requirement for a “predatory state of mind” and the circumstances when such a state of mind…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Nitopi v Nitopi [2022] NSWCA 162
Case: [2022] NSWCA 162
Decision Date: 26/08/2022

CaseChat Overview and Summary

The case of *Nitopi v Nitopi* concerned a dispute between the parties, who were identified as husband and wife, regarding the division of their matrimonial assets. The matter came before the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the primary judge erred in their assessment of the parties' contributions, both financial and non-financial, to the marriage and the acquisition, conservation, and improvement of the matrimonial property. Specifically, the court was asked to consider whether the weight given to certain contributions was appropriate and whether the overall property settlement was just and equitable.

The Court of Appeal reviewed the evidence presented at trial and the primary judge's findings. The court applied the principles of the *Family Law Act 1975* (Cth), particularly sections 75 and 79, which govern the division of property in family law proceedings. The court considered the nature of the contributions made by each party, including direct financial contributions, indirect financial contributions, and non-financial contributions such as homemaking and parenting. The court also had regard to the future needs of each party and the overall desirability of achieving a just and equitable outcome.

The Court of Appeal ultimately upheld the primary judge's decision, finding no error in the assessment of contributions or the final property settlement. The orders made by the primary judge were confirmed.

Orders