Trevenar v Ussfeller - [2005] NSWSC 582

CITATION:
Trevenar v Ussfeller & Ors [2005] NSWSC 582

HEARING DATE(S): 09/06/05, 10/06/05

JUDGMENT DATE :

23 June 2005

JUDGMENT OF:
Gzell J

DECISION:
Alleged gifts set aside

CATCHWORDS:
EQUITY - Undue Influence and Duress - Plaintiff an 83 year old dependent personality emotionally dependent upon female defendant - Presumption of undue influence accepted - Female defendant wrote cheques in excess of $500,000 on plaintiff's bank account - Whether presumption rebutted - No new principles - Forensic evidence from indentations on cheques disproving defendants' contentions - Whether fraud established - Unnecessary to decide

CASES CITED:
Johnson v Buttress (1936) 56 CLR 113
Union Fidelity Trustee Co of Australia v Gibson [1971] VR 573
Allcard v Skinner (1887) 36 Ch D 145
Stivactas v Michaletos (No 2), NSWCA, unreported, 31 August 1993
Spong v Spong (1914) 18 CLR 544
Briginshaw v Briginshaw (1938) 60 CLR 336

PARTIES:
Melba Josephine Trevenar - Plainitff
Margaret Mary Ussfeller - 1st Defendant
Wolf Rainer Alfred Ussfeller - 2nd Defendant
Christie Steve McGuiness - 3rd Defendant

FILE NUMBER(S):
SC 2842/04

COUNSEL:
Mr M Ashhurst - Plaintiff
Mr Christian Vindin - Defendants

SOLICITORS:
Kemp Strang Solicitors
Acclaim Legal

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

THURSDAY 23 JUNE 2005

2842/04 MELBA JOSEPHINE TREVENAR v MARGARET MARY USSFELLER & ORS

JUDGMENT

1 Margaret Mary Ussfeller, the first defendant, wrote cheques totalling $584,200.00 on the bank account of Melba Josephine Trevenar, the plaintiff, who brings her action by her tutor Peter Carusi. Mrs Trevenar signed each of the cheques. They were written in favour of, or for the benefit of, Mrs Ussfeller, her husband Wolf Rainer Alfred Ussfeller, the second defendant, and her father, Christie Steve McGuinness, the third defendant. The cheques were paid on presentation to Mrs Trevenar’s bank. $7,000.00 was subsequently repaid. Mrs Trevenar sought an order against Mrs Ussfeller in the amount of $577,200.00 and orders against Mr Ussfeller and Mr McGuinness in lesser amounts. She made these claims on the alternative grounds of fraud and undue influence.

Background

2 Mr and Mrs Ussfeller and Mr McGuinness lived in a house at Ashfield, New South Wales, until 4 October 2003.

3 Mrs Ussfeller became a close friend and confidante of Mrs Trevenar who lived across the road from Mrs Ussfeller. Mrs Trevenar was born on 1 April 1920.

4 On 24 April 2003, Mrs Trevenar appointed Mrs Ussfeller her enduring guardian, granted a power of attorney to Mrs Ussfeller and Thomas Edward Dawson, an accountant, and executed a will appointing Mrs Ussfeller her executrix and giving the whole of her estate to her. In the event that Mrs Ussfeller predeceased Mrs Trevenar, she appointed Mr Ussfeller her executor and gave him the whole of her estate.

5 Mr Trevenar was ill with heart disease and could not drive. Mrs Ussfeller became the means of transport for both of them. Mrs Ussfeller read Mrs Trevenar’s mail to her and wrote out cheques on Mrs Trevenar’s bank account for her…

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 Trevenar v Ussfeller

Details

AGLC: Trevenar v Ussfeller [2005] NSWSC 582
Case: [2005] NSWSC 582
Decision Date: 23 June 2005

CaseChat Overview and Summary

The case involved an 83-year-old plaintiff who was emotionally dependent on a female defendant. The plaintiff alleged that the defendant exerted undue influence over him, leading to the withdrawal of over $500,000 from his bank account. The court had to determine whether the presumption of undue influence was rebutted, and whether fraud was established. The plaintiff argued that the defendant had undue influence over him due to their close relationship, while the defendant claimed that the cheques were obtained through fraud by a third party. The court had to decide on the admissibility of forensic evidence regarding the indentations on the cheques.

The legal issues in the case included whether the presumption of undue influence was rebutted, and whether fraud was established. The court had to consider the relationship between the parties, the nature of the transactions, and the evidence presented by both sides. The court had to determine whether the forensic evidence was admissible and whether it was sufficient to prove that the defendant had undue influence over the plaintiff. The court also had to consider whether the defendant's contentions were disproven by the forensic evidence.

The court found that the presumption of undue influence was accepted due to the close relationship between the parties. The court also found that the forensic evidence was admissible and that it disproved the defendant's contentions. The court held that the defendant had undue influence over the plaintiff, and that the cheques were written due to this influence. The court found that the defendant's contentions were disproven by the forensic evidence, and that the plaintiff had established undue influence and fraud.

The court ordered that the cheques written by the defendant be set aside, and that the plaintiff be repaid the amount of $500,000. The court also ordered that the defendant pay costs to the plaintiff. The court held that the plaintiff had established undue influence and fraud, and that the defendant was liable for the amount of the cheques. The court held that the forensic evidence was sufficient to prove that the defendant had undue influence over the plaintiff, and that the cheques were written due to this influence.

Orders