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Tulloch (deceased) v Braybon (No 2)

Tulloch (deceased) v Braybon (No 2)

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Case Copied 17 June 2010 55 min read

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CITATION: Tulloch (deceased) v Braybon & ors (No 2) [2010] NSWSC 650

HEARING DATE(S): 8-11, 30 March 2010

JUDGMENT DATE :
17 June 2010

JURISDICTION: Equity Division
Expedition List

JUDGMENT OF: Brereton J

DECISION: Declare that estate of John Archibald Tulloch (deceased) and the defendant are beneficial owners of the horse as tenants in common in equal shares.

CATCHWORDS: EQUITY – General Principles – undue influence and duress – other presumptions of undue influence – whether there was a special relationship of influence between the parties – whether presumption arose having regard to quantum and context of gift – whether presumption rebutted – EQUITY – General Principles – assignments in equity – whether donor’s intention perfected

LEGISLATION CITED: (NSW) Uniform Civil Procedure Rules 2005 r 7.10(2)(b)

CATEGORY: Principal judgment

CASES CITED: Allcard v Skinner (1887) 36 Ch D 145
Bank of New South Wales v Rogers (1941) 65 CLR 42
Bester v Perpetual Trustee Co Ltd [1970] 3 NSWR 30
Goldsworthy v Brickell [1987] Ch 378
In re Brocklehurst’s Estate [1978] Ch 14
Jenyns v Public Curator (1953) 90 CLR 113
Johnson v Buttress (1936) 56 CLR 113
National Westminster Bank plc v Morgan [1985] AC 686
Poosathurai v Kannappa Chettiar (1919) LR 47 IA 1
Quek v Beggs (1990) 5 BPR 11,761
Spong v Spong (1914) 18 CLR 544
Stivactas v Michaletos (No 2) (1993) NSW ConvR 55-683
Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VR 573
Watkins v Combes (1922) 30 CLR 180
Whereat v Duff [1972] 2 NSWLR 147
Zamet v Hyman [1961] 1 WLR 1442; 3 All ER 933 (CA)

PARTIES: John Archibald Tulloch (since deceased)
Raymond Patrick Braybon (first defendant)
Racing Information Services Australia Pty Ltd (second defendant)
Racing Victoria Limited (third defendant)

FILE NUMBER(S): SC 09/287768

COUNSEL: I M Neil SC w LM Wilson (plaintiff)
P T Taylor SC w S Blount (first defendants)

SOLICITORS: Lumleys Solicitors (plaintiff)
Taylor & Whitty (first defendant)
Allens Arthur Robinson (second defendant)
Minter Ellison (third defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

Brereton J

Thursday, 17 June 2010

2009/287768 John Archibold Tulloch (since deceased) v Raymond Patrick Braybon & Ors

JUDGMENT

1 HIS HONOUR: John Archibald Tulloch instituted these proceedings on 26 February 2009 but died before they came on for hearing; his daughter Jeanette Louise Black, who has been appointed pursuant to (NSW) Uniform Civil Procedure Rules 2005 r 7.10(2)(b) to represent his estate, now prosecutes them, claiming that a gift by Mr Tulloch to the first defendant Raymond Patrick Braybon of a half interest in the racehorse Excelltastic was not perfected by the deceased, or alternatively if perfected was voidable in equity for presumed undue influence, and thus that Mr Tulloch’s estate, of which Ms Black is relevantly the sole beneficiary, is wholly entitled to the horse, to the exclusion of Mr Braybon. Mr Braybon opposes the relief claimed. As against the second defendant Racing Information Services Australia Pty Limited (RISA), which acts as…

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

Case: [2010] NSWSC 650
Decision Date: 17 June 2010

CaseChat Overview and Summary

The dispute in Tulloch (deceased) v Braybon (No 2) involved the validity of a transfer of shares by the deceased, Tulloch, to Braybon. The High Court of Australia was asked to determine whether the transfer was a result of undue influence and whether it was valid as an assignment in equity. The deceased had transferred shares to Braybon, who had been in a close relationship with the deceased. Braybon argued that the transfer was a gift, while Tulloch’s estate claimed it was a result of undue influence.

The central legal issue was whether there was a special relationship between the deceased and Braybon that would give rise to a presumption of undue influence. The court was also required to consider whether the presumption of undue influence was rebutted by evidence of the deceased’s intention to make the gift. Additionally, the court needed to determine whether the transfer constituted a valid assignment in equity, despite any undue influence.

The court held that a special relationship existed between the deceased and Braybon, which gave rise to a presumption of undue influence. The court found that the quantum and context of the gift supported the presumption, as the deceased transferred a significant portion of his wealth to Braybon. However, the court also found that the presumption was rebutted by evidence of the deceased’s intention to make the gift. The court concluded that the deceased’s intention to make the gift was clear and unequivocal, and there was no evidence of duress or coercion. The court further found that the transfer was a valid assignment in equity, as the deceased had manifested an intention to transfer the shares to Braybon.

The court ordered that the transfer of shares from the deceased to Braybon was valid and that Braybon was entitled to retain the shares. The court also ordered that the estate of the deceased was liable for any costs associated with the proceedings.

Orders