Turner v Windever

Case [2005] NSWCA 73
CITATION:

Turner v Windever & Anor [2005] NSWCA 73
HEARING DATE(S):

20 October 2004
 
JUDGMENT DATE: 


22 March 2005

JUDGMENT OF:

Giles JA at 1; Santow J at 90; Bryson JA at 103
DECISION:

Appeal dismissed with costs.
CATCHWORDS:

Relief against unconscionable dealings - elderly widow mortgages home to one son-in-law to secure a loan - arrangement for simple interest and no payment until sale or death - mortgage erroneously provides for compound interest and payment on demand - widow finds out and becomes distressed and concerned about "foreclosure" - son-in-law does not allay her concerns - adverse stance in correspondence - widow wished to be rid of the mortgage - transferred home to another daughter and son-in-law who paid out the mortgage - transaction improvident - widow died before trial - whether judge erred in not accepting her affidavit evidence where disputed unless corroborated - whether widow under special disadvantage because unaware that mortgage could be rectified - whether transferees took advantage of opportunity presented by the disadvantage - no error as to affidavit - on facts, not shown that under special disadvantage or that advantage taken. D
CASES CITED:

Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419;
Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51;
Blomley v Ryan (1956) 99 CLR 362;
Bridgewater v Leahy (1998) 194 CLR 457;
Clyne v Law Society of New South Wales (CA, 4 September 1987, unreported);
Commercial Bank of Australia v Amadio (1983) 151 CLR 337;
Fox v Percy (2003) 214 CLR 118;
Louth v Diprose (1992) 175 CLR 61;
Wilton v Farnworth (1948) 76 CLR 646.
PARTIES:

Suzanne Mary Turner - Appellant
Carol Ann Windever - First Respondent
Daniel William Windever - Second Respondent

FILE NUMBER(S):

CA 41244/03
COUNSEL:

D Grieve QC & S Reuben - Appellant
M B Lee & A Crossland - Respondents
SOLICITORS:

Astley Thompson Cox - Appellant
Marsdens Law Group - Respondents

LOWER COURT JURISDICTION:

Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):

ED 4537/01

LOWER COURT JUDICIAL OFFICER:

Austin J



                          CA 41244/03
                          ED 4537/01

                          GILES JA
                          SANTOW JA
                          BRYSON JA

                          Tuesday 22 March 2005
TURNER v WINDEVER & ANOR
Judgment

1 GILES JA: The proceedings were commenced by summons. An order was not made for formal or informal pleadings to define the issues, as at least with the benefit of hindsight would have been desirable. The trial before Austin J was conducted as a claim to relief in the exercise of equity’s jurisdiction to relieve against unconscionable dealings. His Honour declined to grant relief.

2 Both parties accepted his Honour’s statement of the elements of a case of unconscionable dealing, formulated with reference to Wilton v Farnworth (1948) 76 CLR 646, Blomley v Ryan (1956) 99 CLR 362, Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, Louth v Diprose (1992) 175 CLR 61 and Bridgewater v Leahy (1998) 194 CLR 457.…

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AGLC
Turner v Windever [2005] NSWCA 73
Case
[2005] NSWCA 73
Decision Date

CaseChat Overview and Summary

The appeal in *Turner v Windever* concerned an elderly widow who had mortgaged her home to her son-in-law to secure a loan. The agreed terms were for simple interest with no repayment due until the sale of the property or the widow's death. However, the mortgage document erroneously stipulated compound interest and payment on demand. Upon discovering this discrepancy, the widow became distressed and concerned about potential foreclosure, a concern not alleviated by her son-in-law's adverse stance in correspondence. Seeking to resolve the situation, she transferred her home to another daughter and son-in-law, who then paid out the mortgage. The transaction was considered improvident. The widow died before the trial.

The primary legal issues before the court were whether the primary judge erred in his approach to the widow's affidavit evidence, particularly where it was disputed and uncorroborated, and whether the widow was under a special disadvantage. Further, the court had to determine if the transferees had taken advantage of any such disadvantage.

The court held that there was no error in the primary judge's treatment of the affidavit evidence. Regarding the special disadvantage, the court found that the widow's unawareness that the mortgage could be rectified did not, on the facts, establish that she was under a special disadvantage. Consequently, the court concluded that it was not shown that she was under a special disadvantage, nor that the transferees had taken advantage of such a disadvantage.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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