Turner v Windever

Case [2003] NSWSC 1147


CITATION: Turner v Windever [2003] NSWSC 1147
HEARING DATE(S): 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
CASES CITED: Bester v Perpetual Trustee Co Limited [1970] 3 NSWR 30
Blomley v Ryan (1956) 99 CLR 362
Bridgewater v Leahy (1998) 194 CLR 457
Commercial Bank Australia Limited v Amadio (1983) 151 CLR 337
Johnson v Buttress (1936) 56 CLR 113
Louth v Diprose (1992) 175 CLR 61
Maynard v Moseley (1676) 3 Swans 651
Wilton v Farnworth (1948) 76 CLR 646

PARTIES :

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…

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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.

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