2, 3, 4, 7 & 24 April 2003; written submissions to 22 May 2003
JUDGMENT DATE:
4 December 2003
JURISDICTION:
Equity
JUDGMENT OF:
Austin J
DECISION:
Summons dismissed
CATCHWORDS:
EQUITY - unconscionable dealings - requirement of special disadvantage - whether satisfied when elderly woman, frail but in possession of mental faculties, transfers of property to one child at an undervalue, removing it from her residuary estate
Suzanne Mary Turner (P) Carol Ann Windever and Daniel William Windever (D)
FILE NUMBER(S):
SC 4537/01
COUNSEL:
Mr S Y Reuben (P) Mr M B J Lee (D)
SOLICITORS:
Astley Thompson Cox (P) Marsdens Law (D)
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
AUSTIN J
THURSDAY 4 DECEMBER 2003
4537/01 SUZANNE MARY TURNER V CAROL ANN WINDEVER & ANOR
JUDGMENT
1 HIS HONOUR: Betty Lett had seven children during her marriage. One of her daughters, Suzanne Turner, is now the plaintiff in this proceeding. Another daughter, Carol Windever, is the first defendant. The second defendant, Daniel Windever, is Carol's husband. Another daughter is Mrs Christine Blackburn.
2 Mrs Lett and her husband were divorced in 1985. Mrs Lett lived on the south coast of New South Wales, from the late 1980s until her death on 25 December 2001, aged 75 years. In her last will dated 2 March 2001 she named Suzanne Turner as executrix, and after some specific bequests, gave the residue of her estate (including any interest she might have in real estate) to four of her children, including Mrs Turner and Mrs Blackburn but excluding Mrs Windever. Probate of that will was granted to Mrs Turner. Mrs Lett commenced the present proceeding before she died, but in due course Mrs Turner was substituted as plaintiff, by orders of this Court made on 4 August 2002. According to the inventory of property of the estate prepared by Mrs Turner as executrix, the total value of the estate was $233,026, and by far the most valuable asset was said to be an interest in property claimed in the present proceeding, valued by her at $220,000.
3 In 1996 Mrs Lett was living in a home unit, owned by her, in Narooma on the south coast of New South Wales. She decided to sell the home unit and was attracted to a property at 13 View Hill Road Kianga ("the Kianga property"), but the price was more than her available funds. She borrowed the balance from her daughter and son-in-law, Mr and Mrs Blackburn, and signed a mortgage in their favour, which provided for compound…
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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AGLC
Turner v Windever [2003] NSWSC 1147
Case
[2003] NSWSC 1147
Decision Date
CaseChat Overview and Summary
The case of Turner v Windever involved an elderly woman, Turner, who transferred property to her child, Windever, at an undervalue. The question before the court was whether this constituted unconscionable conduct under the principles of equity. Turner was in possession of her mental faculties but was frail and elderly at the time of the transaction. The court was tasked with determining whether the transfer was unconscionable, specifically whether Turner's special disadvantage had been established. Special disadvantage in this context refers to a situation where one party is placed at a significant disadvantage in dealing with another party, which is not merely the consequence of imprudence but of some special disadvantage or infirmity of which the other party is or ought to be aware.
The court considered whether Turner's age, frailty, and the resulting disadvantage were sufficient to satisfy the requirement of special disadvantage. It was noted that Turner, although frail, retained her mental faculties and was not suffering from any cognitive impairment. The court deliberated on the nature and extent of the disadvantage that constituted a special disadvantage sufficient to establish unconscionable conduct. Ultimately, the court held that Turner's age and frailty alone, without evidence of cognitive impairment or other infirmities, did not amount to the special disadvantage required. The transfer, while at an undervalue, did not meet the threshold for unconscionable conduct as it did not exploit a significant vulnerability or infirmity on Turner's part.
In reaching its decision, the court emphasised the need for a more profound incapacity or infirmity to satisfy the special disadvantage requirement. The judgment clarified that while age and frailty are factors to be considered, they must be accompanied by a more substantial disadvantage that affects the party's capacity to understand the nature of the transaction or to protect their interests. The court did not find that Turner's situation met this standard, and therefore, the transfer was not unconscionable. The court's decision underscored the necessity for a more pronounced incapacity or infirmity to establish unconscionable conduct under equity, highlighting the nuanced application of these principles in property transactions involving vulnerable parties.