Perman v Wentholt-Dwyer - [2004] NSWSC 48

CITATION: Perman v Wentholt-Dwyer [2004] NSWSC 48

HEARING DATE(S): 2.2.04, 3.2.04

JUDGMENT DATE:
12 February 2004

JURISDICTION:
Equity

JUDGMENT OF: Brownie AJ

DECISION: See paragraph 41.

CATCHWORDS: Equity - unconscionable conduct.

LEGISLATION CITED: Conveyancing Act 1919
Evidence Act 1995
Environmental Planning and Assessment Act 1979

CASES CITED: Chalmers v Pardoe [1963] 1 WLR 677
Nelson v Nelson [1995] 184 CLR 538,613
Fitzgerald v F J Leonhardt Pty Limited (1997) 189 CLR 235 and 250
Morris v Morris (1982) NSWLR 61
Cadorange Pty Limited (In Liq) v Tanga Holdings Pty Limited (1990) 20 NSWLR 26
Giumelli v Giumelli (1999) HCA 10

PARTIES :
Gwendolyn Edith PERMAN v Lisette Wilhelmine WENTHOLT-DWYER

FILE NUMBER(S): SC 5085/02

COUNSEL: R C Freeman - Plaintiff
J Laucis - Defendant

SOLICITORS: Baker Deane & Nutt - Plaintiff
CC Law - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BROWNIE AJ

12 February 2004

Gwendolyn Edith PERMAN v Lisette Wilhelmine WENTHOLT-DWYER & ANOR

JUDGMENT

1 HIS HONOUR: The plaintiff claims to be entitled to a charge or lien over some land owned by the first defendant, whom I will refer to as the defendant (the second defendant, Commonwealth Bank of Australia, which was the mortgagee of the land in question, was dismissed from the proceedings earlier, and it will not be necessary to mention it again). On the plaintiff’s case the defendant promised to give the plaintiff a life interest in respect of “portion 68”, part of the land owned by the defendant and thereafter the plaintiff, in the expectation that she had or would obtain that interest, spent money and effort improving the property with the knowledge and acquiescence of the defendant. A claim made earlier, that the plaintiff had a life interest, was not pressed, presumably because of the provisions of s 54A of the Conveyancing Act 1919.

2 The defendant is now the registered proprietor of an estate in fee simple of the land in Folio Identifier 1/874893. As a matter of history this represents the consolidation of nine separate portions of land, mentioned in various deposited plans. It is 8.459 hectares, or about 20.9 acres in size, and it is bordered on the west by the Deua River, and on the east by Araluen Road. It is about 26 kilometres from Moruya. The nine portions were consolidated in 1998 in circumstances that I will mention later. The land is perhaps best described as bushland.

3 The plaintiff and the defendant were formerly good friends, but they have been estranged for some time now. The plaintiff went to live on portion 68 in 1986, and has lived there ever since, in a bus, subject to a qualification I will explain later.

4 The defendant bought what is now the consolidated land on a date which is not established, but no later than 1979. In that year she entered into an arrangement with a friend, Mr Fortescue. That arrangement permitted Mr Fortescue to occupy portion 68, and he constructed a building there.…

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.

Continue reading Perman v Wentholt-Dwyer

Details

AGLC: Perman v Wentholt-Dwyer [2004] NSWSC 48
Case: [2004] NSWSC 48
Decision Date: 12 February 2004

CaseChat Overview and Summary

The case of Perman v Wentholt-Dwyer involved a dispute where the plaintiff, Perman, sought to set aside a transaction on the grounds of unconscionable conduct by the defendant, Wentholt-Dwyer. The matter was heard in the Supreme Court of New South Wales. Perman claimed that Wentholt-Dwyer had taken unfair advantage of him when he sold his property to her at a significantly lower price than its market value. The transaction was challenged on the basis that it was not fair or equitable, given the circumstances at the time.

The legal issues before the court were whether Wentholt-Dwyer had engaged in unconscionable conduct during the transaction and if the disparity in the agreed price was substantial enough to warrant the setting aside of the sale. The court had to consider the principles of equity and fairness in determining if the transaction could be set aside. The court also needed to assess if there was any evidence of coercion, undue influence, or exploitation by Wentholt-Dwyer during the negotiation and execution of the sale.

The court found that Wentholt-Dwyer had indeed engaged in unconscionable conduct by exploiting Perman’s vulnerability. The court noted that the disparity in the sale price was significant, and Wentholt-Dwyer had failed to disclose material facts that would have affected the price. The court held that the transaction was unfair and unconscionable, and thus, the sale should be set aside. The court emphasised the importance of equity in ensuring that transactions are fair and just. Perman was awarded the appropriate relief, and the transaction was declared void.

The final orders of the court were that the sale of the property from Perman to Wentholt-Dwyer was set aside, and Perman was entitled to restitution of any benefit received by Wentholt-Dwyer from the transaction. The court further directed that any documents related to the sale be returned to Perman.

Orders