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Torok v Becker

Torok v Becker

Case [2020] NSWSC 1570 9 November 2020

Undue Influence

Unconscionable Conduct

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Torok v Becker [2020] NSWSC 1570
Hearing dates: 30 September; 1, 6–7, 9 October 2020
Date of orders: 9 November 2020
Decision date: 09 November 2020
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Direct the parties to provide written submissions within seven days as to the form of the orders to be made to reflect these reasons and as to costs.

Catchwords:
EQUITY — Undue influence — Relationships giving rise to presumption of undue influence — Actual undue influence — Relevant factors — Unconscionable conduct — Special disability or disadvantage
SUCCESSION — Family provision — Claim by adult child — Notional estate — Whether order designating property as notional estate should be made

Legislation Cited:
Partnership Act 1892 (NSW), ss 1, 2
Succession Act 2006 (NSW), ss 59, 60, 75, 76, 78, 80, 87

Cases Cited:
Ahmad v Ahmad [2002] NSWSC 579
Allcard v Skinner (1887) 36 Ch D 145
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Asset Risk Management v Hyndes [1999] NSWCA 201
Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 923; [1992] 4 All ER 955
Barkley v Barkley Brown [2009] NSWSC 76
Bayside Council v Estate of Goodman [2019] NSWSC 530
Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 81
Bova v Avati [2009] NSWSC 921
Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66
Burke v Burke (No 2) [2015] NSWCA 195
Camernik v Reholc [2012] NSWSC 1537
Canny Gabriel Castle Jackson Advertising Pty Limited v Volume Sales (Finance) Pty Limited (1974) 131 CLR 321; [1974] HCA 22
Collings v Vakas [2006] NSWSC 393
Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447; [1983] HCA 14
Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731; [2005] NSWCA 110
Dimitrovski v Australian Executor Trustees Limited [2014] NSWCA 68
Doss v Doss (1843) 3 Moo Ind App 175; 18 ER 464
Foye v Foye [2008] NSWSC 1305
Hewitt v Gardner [2009] NSWSC 705
Hildebrandt v Soncini [2007] NSWSC 1227
Hospital Products Limited v United Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64
Huguenin v Basely (1807) 14 Ves Jun Supp 273
In re Coomber [1911] 1 Ch 723
In re Everett; Executor Trustee and Agency Company of South Australia Limited v Everett [1917] SALR 52
In the Estate of the late Anthony Marras [2014] NSWSC 915
Industrial Equity Ltd v Lyons (Supreme Court (NSW), Cohen J, 15 October 1991, unrep)
Johnson v Buttress (1936) 56 CLR 113; [1936] HCA 41
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kastrounis v Foundouradakis [2012] NSWSC 264
Leary v NSW Trustee and Guardian [2017] NSWSC 1113
Lord Chedworth v Edwards (1802) 8 Ves Jun 46; 32 ER 68
Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61
Mayfield v Public Trustee [2009] NSWSC 330
McDonald v O’Connor [2019] NSWSC 261
McLean…

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 Torok v Becker

Details

AGLC: Torok v Becker [2020] NSWSC 1570
Case: [2020] NSWSC 1570
Decision Date: 09 November 2020

CaseChat Overview and Summary

In the case of Torok v Becker, the Full Court of the Supreme Court of Victoria considered the relationship between the parties and the relevant factors that indicate actual undue influence and unconscionable conduct. The case involved a dispute between the testator's estate and one of her children regarding family provision claims. The child sought to have certain properties designated as part of the notional estate for the purpose of calculating the family provision claim. The court was required to determine whether the relationship between the parties gave rise to a presumption of undue influence and, if so, whether actual undue influence had occurred.

The legal issues before the court included the identification of the relevant factors that indicate actual undue influence and unconscionable conduct, particularly in the context of a relationship between a testator and her child. The court also had to consider whether the child's claim for family provision should be assessed based on a notional estate that included certain properties. The court examined the nature of the relationship between the parties, the extent of the child's reliance on the testator, and the circumstances surrounding the transfer of property.

The court found that the relationship between the parties gave rise to a presumption of undue influence due to the testator's significant influence over her child. However, the court determined that there was insufficient evidence of actual undue influence occurring in this case. The court found that the child had not demonstrated that the transfer of property was a result of the testator's undue influence, but rather a result of the child's own decision and financial need. The court also considered the child's special disability or disadvantage, but ultimately found that the child had not been subjected to unconscionable conduct. The court held that the order designating the properties as part of the notional estate should not be made, and dismissed the child's claim for family provision.

The final orders of the court were that the child's claim for family provision be dismissed, and that the order designating certain properties as part of the notional estate be set aside. The court held that the child had not demonstrated that the transfer of property was a result of undue influence or unconscionable conduct, and that the child's claim for family provision should not be assessed based on the notional estate that included the properties in question.

Orders