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Urane v Whipper

Urane v Whipper

Case [2001] NSWSC 796 12 September 2001

Undue Influence

Unconscionable Conduct

Equity

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Reported Decision:
(2002) NSW ConvR 55-992

New South Wales

Supreme Court

CITATION: Urane v Whipper [2001] NSWSC 796 revised - 8/10/2001

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 4022/2000

HEARING DATE(S): 9, 10 and 25 July 2001

JUDGMENT DATE:
12 September 2001

PARTIES :

Warren Urane (Plaintiff)
Julie Adele Whipper (Defendant)

JUDGMENT OF: Windeyer J at 1

COUNSEL : Mr J Whittle SC with him Ms Y Holt (Plaintiff)
Mr J Taperell (Defendant)

SOLICITORS: Brian Arkell (Plaintiff)
Cantle Carmichael (Defendant)

CATCHWORDS: EQUITY - undue influence - father and daughter used proceeds of sale of their respective properties to buy property in daughter's name alone - whether transaction procured by undue influence - EQUITY - unconscionable conduct - daughter caring for father disabled by stroke - father and daughter sell properties and use proceeds to purchase home in daughter's name alone - transaction enables father to live with daugther and be cared for by her - whether unconscionable conduct by daughter

CASES CITED: Bank of Credit & Commerce Industry SA v Aboody [1990] 1 QB 923 at 953
Blomley v Ryan (1956) 99 CLR 362
Bridgewater v Lacey (1998) 194 CLR 457
Commercial Bank of Australia Ltd v Armadio (1983) 151 CLR 447
Johnson v Buttress (1936) 56 CLR 113
Louth v Diprose (1992) 175 CLR 621

DECISION: See paragraph 30

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

WEDNESDAY 12 SEPTEMBER 2001

4022/00 WARREN URANE V JULIE ADELE WHIPPER

Outline

1 The plaintiff claims that the sale of his home and the application of the proceeds of sale towards the purchase of a home in the sole name of his daughter, the defendant, was procured by her undue influence or unconscionable conduct. He claims an interest in the daughter's home or a charge over it for the moneys so applied.

Facts

2 Mr Urane was born on 8 March 1929. He was married in 1956. His wife died in 1992. They had four children; Bruce born in 1958, Julie Adele Whipper, the defendant, born in 1960, Keith born in 1964 and Helen born in 1966. After his wife died, Mr Urane established a relationship with a long time acquaintance, Mrs Nance Hunter, but they did not live together.

3 Mr Urane retired in 1984. He had worked as a cost accountant in Newcastle and had been a lecturer in accounting at the TAFE college in Newcastle. He remained a very active man after retirement, IN particular he was a regular tennis player.

4 Mr Urane lived alone in his home at 21 Ellen Street, Belmont South (Ellen Street). Mrs Whipper lived with her husband Peter at 8 Beath Crescent, Kahibah (Kahibah).

5 In November 1997, the plaintiff underwent an operation for a blocked left carotid artery in Lake Macquarie Private Hospital and on 28 November suffered a post-operative left hemiplegia. He was treated for this and then transferred to Toronto Private Hospital rehabilitation unit under the care of Dr Walsh. He was there from 16…

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 Urane v Whipper

Details

AGLC: Urane v Whipper [2001] NSWSC 796
Case: [2001] NSWSC 796
Decision Date: 12 September 2001

CaseChat Overview and Summary

Urane and Whipper, father and daughter, were the parties in this dispute. The father had suffered a stroke, leaving him physically disabled. The daughter, who had been caring for him, assisted him in selling their respective properties and purchasing a new home in her name alone. The father sought to have the transaction set aside on the grounds of undue influence and unconscionable conduct. The case was heard in the Supreme Court of Queensland.

The central legal issues the court had to resolve were whether the daughter had exerted undue influence over her father, causing him to enter into the transaction, and whether the transaction constituted unconscionable conduct. Undue influence involves a person improperly influencing another, while unconscionable conduct pertains to situations where one party takes advantage of another's disadvantage.

The court examined the nature of the relationship between the father and daughter and the circumstances surrounding the transaction. It was noted that the daughter had been caring for her father due to his disability and that the transaction allowed him to live with her and receive care. The court concluded that while there was evidence of influence, it was not undue. The court also found that the transaction was not unconscionable, as it was beneficial to the father, enabling him to live with his daughter and receive the care he required. Therefore, the father's claim was dismissed.

The court's final order was that the transaction could stand as it was, and the daughter could retain ownership of the property. The court recognised the care and support the daughter had provided to her father, and the benefits the transaction had brought to him. The court found that the transaction was not procured by undue influence or unconscionable conduct.

Orders