Volaric v Livun in Her Personal Capacity

[2023] WASC 212

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   VOLARIC -v- LIVUN IN HER PERSONAL CAPACITY & ANOR [2023] WASC 212

CORAM:   FORRESTER J

HEARD:   31 MAY 2023

DELIVERED          :   20 JUNE 2023

FILE NO/S:   CIV 1074 of 2023

BETWEEN:   LJILJANA VOLARIC

Plaintiff

AND

SNJEZANA LIVUN IN HER PERSONAL CAPACITY

First Defendant

SNJEZANA LIVUN IN HER CAPACITY AS ADMINISTRATOR

Second Defendant

Catchwords:

Practice and procedure - Defendants' summary judgment application for orders pursuant to O 16 r 1 of the Rules of the Supreme Court 1971 (WA) - Defendants' strike-out application for orders pursuant to O 20 r 19(1)(a) of the Rules of the Supreme Court 1971 (WA) - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)
Transfer of Land Act 1893 (WA)

Result:

Application for an extension of time is granted in each case
Application for summary judgment is dismissed
Application to strike out the Statement of Claim is allowed in part, and the words 'and the alternative to paragraph 54 above' in paragraph [55] of the Statement of Claim are struck out

Category:    B

Representation:

Counsel:

Plaintiff	:	P J Hannan
First Defendant	:	C Breheny
Second Defendant	:	C Breheny

Solicitors:

Plaintiff	:	G A Lacerenza & Associates
First Defendant	:	Butlers Lawyers & Notaries
Second Defendant	:	Butlers Lawyers & Notaries

Cases referred to in decision:

Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 923

Blomley v Ryan [1956] HCA 81; (1954) 99 CLR 362

Bride and Bride v Peat Marwick Mitchell [1989] WAR 383

Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457

Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447

English v Vantage Holdings Group Pty Ltd [2021] WASCA 47

Gunn v Meiners [2022] WASCA 95

Hart v O'Connor (1985) AC 1000

Lin v Lin (No 2) [2022] VSC 542

McJannett v Gibbs [2012] WASC 369

Micarone v Perpetual Trustees Australia Ltd [1999] SASC 265; (1999) 75 SASR 1

NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107

Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; (2010) 41 WAR 353

Pisano v South Metropolitan Health Service [2023] WASCA 80

Re Coomber [1911] UKLawRpCh 45; [1911] 1 Ch 723

Serventy v Commonwealth Bank of Australia [No 2] [2016] WASCA 223

Thorne v Kennedy [2017] WASCA 49

Three Rivers District Council v Bank of England [No 3] [2001] UKHL 16; [2003] 2 AC 1

Vantage Holdings Pty Ltd v Donnelly [No 4] [2019] WASC 398

Wickstead v Browne (1993) 10 Leg Rep SL2

Wickstead v Browne [1992] NSWCA 272; (1992) 30 NSWLR 1

FORRESTER J:

Introduction

1. This is an application on the part of the defendants:

   (1)to strike out the Statement of Claim (SOC) pursuant to O 20 r 19(1)(a) of the Rules of the Supreme Court 1971 (WA) (RSC); or

   (2)alternatively, for summary judgment pursuant to O 16 r 1(1) of the RSC.

2. The plaintiff is the eldest daughter of Petar and Nedjeljka Livun.  The Livuns had another daughter, who is the first defendant in her personal capacity and the second defendant in her capacity as administrator of Mr Livun's estate.  Without meaning any disrespect to the parties, I propose generally to refer to them as Ljiljana and Snjezana in these reasons, although when referring to their cases and submissions, I may refer to them as the plaintiff and the defendants respectively.

3. Nedjeljka died in January 2006.  Following her death, Petar became the sole registered proprietor of their marital home at 89 Talbot Road, Swan View (Talbot Road property).

4. In February 2017, Mr Livun transferred his title in the Talbot Road property to Snjezana.  In the section of the transfer documents describing the consideration given is the word 'Gifted'.[1]

   [1] Affidavit of Ljiljana Volaric sworn 19 April 2023, 49 ['Annexure LV11']. 

5. Petar died in December 2021, without leaving a will. 

6. On 27 January 2023, Ljiljana commenced proceedings, contesting the validity of the transfer of the Talbot Road property to Snjezana and, in effect, seeking orders which result in the Talbot Road property forming part of Mr Livun's intestate estate, or alternatively result in an equal share in the Talbot Road property being transferred to her by Snjezana.

7. The application to strike out the SOC is 31 days out of time.[2]  The application for summary judgment is 23 days out of time.[3]  An extension of time is sought in each case.

   [2] O 20 r 19(3) RSC.

   [3] O 16 r 1 RSC.

8. For the reasons which follow, the summary judgment application is dismissed.  The strike out application is allowed in part, but with the plaintiff having leave to re‑plead.

Statement of Claim

1. Petar and Nedjeljka Livun were the parents of Ljiljana and Snjezana.  Ljiljana migrated to Western Australia in about 1975, followed by Snjezana in about 1982 and their parents in about 1986.  They all took up residence in the Swan Valley area.

   After arriving in Western Australia, Petar and Nedjeljka bought and sold properties as follows:

Property	Date purchased	Date sold
88 Ewart Street, Midland	5 October 1988	1 July 1994
14 Bushby Street, Midland	4 July 1994	12 December 1997
10 Egan Place, Midland	1 December 1997	29 May 2001
89 Talbot Road, Swan View	30 May 2001

1. On each occasion, on purchase Petar and Nedjeljka, as joint tenants, became the registered proprietors of the purchased property pursuant to the Transfer of Land Act 1893 (WA) (TLA) and on sale ceased to be the registered proprietors pursuant to the TLA.

2. On 29 January 2006, Nedjeljka died.  On 27 March 2006, Petar became the sole registered proprietor of the Talbot Road property, having lodged a survivorship application in accordance with the TLA.

3. On 1 February 2017, Petar executed a transfer, registered under the TLA on the same date, of the Talbot Road property to Snjezana (the Transfer).  In the section describing the consideration for the Transfer, the word 'Gifted' appears.  Thereafter, Snjezana became the registered proprietor of the Talbot Road property and Petar owned no real property.

4. At the time of the Transfer, Petar could not read English, or speak conversational English.  He was 87 years and 8 months old.  He did not speak to Ljiljana about the Transfer. 

5. The Talbot Road property was assessed for stamp duty purposes as having a dutiable value of $320,000. 

6. Petar resided in the Talbot Road property until his death on 3 December 2021.  He died intestate.  At the time of his death his estate was valued at just over $130,000.  Letters of Administration were granted to Snjezana on 14 June 2022.

7. For many years prior to the Transfer, Petar had been reliant on Snjezana, who was at times a witness to the signatures of both of her parents on the transfer documents executed to effect their property transactions.  In the case of the sale of the Bushby Street property, Snjezana witnessed her parents' signatures on the transfer documents with a note to the effect that, they being unable to read English, she had read and explained the document to them in Serbian, after which they appeared to understand fully its nature and effect.[4]

   [4] Affidavit of Ljiljana Volaric sworn 19 April 2023, 26 ['Annexure LV4'].

8. The survivorship application resulting in Petar becoming the sole registered proprietor of the Talbot Road property was filled out in Snjezana's handwriting. 

9. At the time of the Transfer, Snjezana lived with her de facto.  Her de facto owned the property in which they resided with another, as a tenant in common in equal shares.

Presumed undue influence claim

1. The plaintiff claims that the Transfer should be set aside for undue influence, on the basis that, at the time of the Transfer, there existed a relationship between Petar and Snjezana of such a nature as to involve reliance, dependence and/or trust on Petar's part which created ascendancy on Snjezana's part and further, that as at the date of transfer, the gift of the Talbot Road property was so substantial as not to be reasonably accounted for on the ground of motives on which ordinary persons act.

2. The plaintiff submits that it should be presumed that Petar executed the Transfer as a result of the undue influence of Snjezana. 

Actual undue influence claim

1. In the alternative, the plaintiff claims that, by reason of the circumstances of the Transfer and Petar's circumstances at the time of the Transfer, Petar's capacity to make judgments as to his affairs, and in particular the distribution of the Talbot Road property as between Ljiljana and Snjezana was 'markedly substandard as a result of the subordination of Petar's will to Snjezana's will'.[5]

Unconscionable conduct claim

[5] SOC [55].

1. The plaintiff claims that, by reason of his age and inability to read English or speak conversational English, Petar was subject to a special disadvantage that seriously affected his ability to make a judgment as to his own best interests and that Snjezana knew, or ought reasonably to have known, of these matters.  As a result, it was unconscionable for Snjezana to accept the gift of the Talbot Road property from Petar. 

Talbot Road forms part of Petar's estate

1. It is claimed that, as a result of either the undue influence claim, the unconscionable conduct claim, or both, the Transfer should be set aside and the Talbot Road property should form part of Petar's intestate estate. 

Undue influence

1. In Gunn v Meiners,[6] the Court of Appeal referred to the following propositions regarding the doctrine of undue influence, drawn from the reasons of the plurality in Thorne v Kennedy,[7] which I gratefully adopt:

   [6] Gunn v Meiners [2022] WASCA 95 [216].

   [7] Thorne v Kennedy [2017] WASCA 49 [30] - [34].

   1.A person is subjected to undue influence where the effect of various factors (which may arise from widely different sources and include pressure) is that the person has 'no free will', ie the person is 'not a free agent' and is not equal to protecting himself or herself.

   2.The question is whether the relevant act is not a 'free act'.

   3.There is no undue influence where the relevant act is a 'free and well-understood act' or there has been a 'free exercise' of the person's will.

   4.Questions of degree are involved.  It is not necessary for the person to be reduced to an automaton.  A person is deprived of free choice in the relevant sense where factors cause the person 'substantially to subordinate' his or her will.  The judgmental capacity of the person must be 'markedly sub-standard' as a result of the effect on the person's mind of the will of another.

   5.The existence of undue influence may be proved by direct evidence (ie 'actual' undue influence) or by presumption (ie 'presumed' undue influence).  A presumption, in this sense, arises where common experience is that the existence of one fact means that another fact also exists.

   6.Common experience gives rise to a presumption that a transaction was not the exercise of a person's free will where:

   (a) the person is proved to be in a particular relationship (as to which see sub-pars 7 and 8 below); and

   (b)the transaction is one which cannot be explained by ordinary motives or is not readily explicable by the relationship of the parties (commonly involving a substantial benefit to another).

   7.There are certain relationships that are accepted to give rise to the presumption.  The relevant relationships giving rise to the presumption of undue influence are not closed.  They include parent and child, guardian and ward, trustee and beneficiary, solicitor and client, and physician and patient.

   8. Outside of the recognised categories of relationship attracting a presumption of undue influence, the presumption can also be raised by proof that 'the history of the particular relationship involved one party occupying a similar position of ascendancy or influence, and the other a corresponding position of dependency or trust' (emphasis added).  (The similar ascendancy or influence and corresponding dependency or trust referring to that found in the relationships recognised as giving rise to the presumption.)

   9.The presumption is rebuttable (both in the recognised categories of relationship attracting the presumption and in a particular relationship where an ad hoc presumption of undue influence arises).

   10.To rebut the presumption the stronger party must prove that the particular transaction, in its particular circumstances, was the result of the weaker party's free will.

Unconscionable conduct

1. In Gunn v Meiners, the Court of Appeal also had cause to consider the doctrine of unconscionable conduct and said:[8]

   Broadly speaking, the doctrine of unconscionable dealings involves (1) a relationship that places one party at a 'special disadvantage or disability vis-à-vis another party; (2) knowledge of that special disadvantage or disability by the stronger party; and (3) unconscientious exploitation by the stronger party of the weaker party's disadvantage or disability.

   [8] Gunn v Meiners [147]; Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447, 459 ‑ 460, 461 ‑ 462, 474.

2. In Commercial Bank of Australia Ltd v Amadio, Mason J stated:[9]

   [R]elief on the ground of "unconscionable conduct" is usually taken to refer to the class of case in which a party makes unconscientious use of their superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage…Although unconscionable conduct in this narrow sense bears some resemblance to the doctrine of undue influence, there is a difference between the two.  In the latter the will of the innocent party is not independent and voluntary because it is overborne.  In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position.

   [9] Commercial Bank of Australia Ltd v Amadio (461) (Mason J).

3. The knowledge required on the part of the stronger party was considered in Serventy v Commonwealth Bank of Australia [No 2], in which the Court of Appeal said:[10]

   Unconscionable conduct occurs if one party (A) takes advantage of an inability on the part of another party (B) to make decisions in their own best interests, in circumstances where this inability was sufficiently evident to A to render A's conduct exploitative.  B's special disability is sufficiently evident to A if and only if A actually knows of it or is wilfully blind to it; constructive knowledge is not sufficient.  That is because unconscionable conduct involves a 'predatory state of mind' and exploitation or victimisation, albeit that, in this context, victimisation should not be narrowly understood.

   [10] Serventy v Commonwealth Bank of Australia [No 2] [2016] WASCA 223 [18] (citations omitted) (emphasis added).

4. The 'special disadvantage' alleged must be one which seriously affects the ability of the innocent party to make a judgment as to his own best interests; a mere disparity in bargaining power is not sufficient.[11]

   [11] Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; (2010) 41 WAR 353 [224].

5. While advanced age is not of itself sufficient to constitute a special disadvantage, it may, in combination with other factors, result in a finding of special disadvantage.[12]  The list of factors giving rise to special disadvantage is not closed, but can include:[13]

   … poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary.  The common characteristic seems to be that they have the effect of placing one party at a serious disadvantage vis-à-vis the other.  It does not appear to be essential in all cases that the party at a disadvantage should suffer loss or detriment by the bargain…But inadequacy of consideration, while never of itself a ground for resisting enforcement, will often be a specially important element in cases of this type.  It may be important in either or both of two ways - firstly as supporting the inference that a position of disadvantage existed, and secondly as tending to show that an unfair use was made of the occasion.

   [12] Permanent Mortgages Pty Ltd v Vandenbergh [234].

   [13] Blomley v Ryan [1956] HCA 81; (1954) 99 CLR 362, 405 (Fullagar J).

6. Absence of independent legal advice may, in a given case, be of factual importance in determining whether a special disadvantage exists.[14]

   [14] Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457 [41].

7. The 'passive acceptance of a benefit in unconscionable circumstances' can constitute unconscionable conduct.[15]

   [15] Bridgewater v Leahy (479); Hart v O'Connor (1985) AC 1000, 1024.

Application for leave to extend time

1. Pursuant to O 16 r 1 RSC, the application for summary judgment is 23 days out of time. The application to strike out the SOC is 31 days out of time.[16]

   [16] O 20 r 19(3(a) RSC.

2. The plaintiff opposes the defendants' application to extend time.

3. The delay has been explained by the defendant as being attributable to her inability to promptly inspect the necessary documents in the hands of the plaintiff's solicitor, her counsel's unavailability and the defendant's own time‑consuming involvement as the executor of another estate.  It was also submitted that the only event which has occurred as a result of the failure to comply with the time limits was that the defence has been filed, and there is no prejudice to the plaintiff. 

4. In my view, the extensions of time sought are relatively short and, in the circumstances, it is in the interests of justice to grant an extension in each case.

Application for summary judgment

Relevant legal principles

1. The Court of Appeal recently summarised the legal principles applicable to a defendant's application for summary judgment in Pisano v South Metropolitan Health Service:[17]

   [17] Pisano v South Metropolitan Health Service [2023] WASCA 80 [48] ‑ [52] (most citations omitted).

   Summary judgment is a procedure designed to deal with cases that are not fit for trial.[18]

   [18] Three Rivers District Council v Bank of England [No 3] [2001] UKHL 16; [2003] 2 AC 1 [95].

   Order 16 r 1(1) RSC allows a defendant to an action to apply to the court for summary judgment. The application may be made without leave at any time up to 21 days after the defendant enters an appearance. Subsequent to 21 days after appearance the application requires leave of the court. The court may order that judgment be entered for the defendant, with or without costs, if satisfied that: (1) the action is frivolous or vexatious; (2) the defendant has a good defence on the merits; or (3) the action should be disposed of summarily.

   In substance, each of those three matters amounts to the same thing - that the plaintiff's action is so clearly untenable that it could not possibly succeed at a trial in the ordinary way.[19]

   [19] NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [52].

   The application is to be made by summons supported by an affidavit or affidavits verifying the facts on which the application is based (O 16 r 1(2) RSC). The plaintiff may show cause against the application by affidavit (O 16 r 2(1) RSC). Unless the court otherwise directs, the parties' affidavits may contain statements of information or belief provided that the sources and grounds for the information or belief are disclosed (O 16 r 1(3) & r 2(1a) RSC).

   The general principles that apply on a defendant's application for summary judgment under O 16 r 1(1) RSC are well-established:

   1. The power to order summary judgment is one that should be exercised with great care (sometimes expressed as 'exceptional caution').  A party should not ordinarily be denied the opportunity to have its case determined following trial.  It is only in the clearest of cases, where there is a high degree of certainty about the ultimate outcome of the proceedings if they were to go to trial, that summary judgment ought properly to be granted.  Accordingly, summary judgment will be granted only where it is clear there is no real question to be tried.

   2.Put alternatively, the relevant question for summary dismissal is whether, on the materials before the court, it has been demonstrated that the plaintiff's action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail.

   3.At all times the defendant retains the legal onus of demonstrating that the application for summary judgment ought to succeed.  The defendant must establish that there is no real question to be tried on any cause of action raised by the plaintiff.

   4. If a defendant's affidavit material establishes the basis for the summary judgment application, the plaintiff may assume an evidentiary onus to show why summary judgment should not be given. The plaintiff may, by an affidavit to show cause pursuant to O 16 r 2(1) RSC, seek to demonstrate the existence of a triable issue. The plaintiff's affidavit must condescend to particulars - it must set out facts which establish that it is reasonable to allow the plaintiff to pursue the action.

   5.Actions should not be disposed of summarily where the material factual issues between the parties are in dispute.  Similarly, summary dismissal should not be awarded simply because the court has formed the view that the plaintiff is unlikely to succeed on the factual issues.  Unless the evidence is inherently incredible, where there is a conflict in the affidavit evidence the court should approach the summary judgment application on the basis that the facts set out in the affidavits of the party resisting judgment will be accepted at trial.  But the court is not bound to accept uncritically, as raising a factual dispute calling for further investigation, every statement in an affidavit however inherently improbable in itself or equivocal, lacking in precision or inconsistent with undisputed contemporary documents or other statements by the deponent.

   6.Where a plaintiff's claim depends on propositions of law apparently precluded by existing authority that may not always be the end of the matter.  The court should be careful not to risk stifling the development of the law by summarily rejecting a claim if there is a reasonable possibility that the law is developing.  Summary processes must not be used to stultify the development of the law where existing authority may be overruled, qualified or further explained.

   7.It is not the case that summary judgment will only be given where the action is so hopeless as to not require argument.  Extensive argument may be necessary to demonstrate that the plaintiff's case is so clearly untenable that it cannot possibly succeed.

   8.On an application under O 16 r 1(1) RSC the plaintiff is confined to the causes of action pleaded in the statement of claim (although the statement of claim will be construed broadly and generously, with ambiguities assumed in favour of the plaintiff, and a reasonable application to amend will be permitted). It is not for the court to identify or accept possible causes of action which are arguably available on the evidence but are not pleaded.

1. In circumstances, as here, in which an application for summary judgment is combined with an application under O 20 r 19(1) RSC:

   … the court is not confined by the manner in which the plaintiff has formulated his case on the pleadings and may consider the undisputed facts as well as the facts which are in dispute.[20]

Evidence filed in support of application

Affidavit of Snjezana Livun sworn 24 March 2023

[20] McJannett v Gibbs [2012] WASC 369 [10]; Bride and Bride v Peat Marwick Mitchell [1989] WAR 383, 394.

1. Snjezana says that, when her parents first came to Australia in 1986, they lived with her and her young son in a house rented by Snjezana.  Shortly after he arrived, Petar found work, as did Snjezana, at a meat processing plant.  Thereafter, Petar and Snjezana worked together, and contributed their income equally to the shared living expenses of the family.  Snjezana also assisted Nedjeljka with household chores.

2. In about 1988, Petar obtained finance to purchase a property in Ewart Street, Midland, and to construct a house on it.  Petar and Nedjeljka asked Snjezana to be a registered co‑owner, but she declined, fearing that, if she agreed, the property might be subject to division under Australian family law.

3. When the house was built, Petar, Nedjeljka, Snjezana and her son moved into the house, and Snjezana continued to contribute to the living expenses of the property and the household chores.  Petar was responsible for home loan payments.

4. Snjezana moved into a house with her de facto partner in about 1991, but her son remained with Petar and Nedjeljka.  Snjezana visited them every day and continued to assist with household duties.

5. In about 1992, when he was about 63 years old, Petar suffered a workplace injury.  He told Snjezana that he used his compensation payment to pay the outstanding loan on the Ewart Street property.  He was thereafter debt free and retired, living on a combination of a Croation pension and his Australian seniors pension.

6. Petar enjoyed house maintenance, and eventually decided to sell the Ewart Street property and purchase another, in Bushby Street.  Snjezana counselled him against doing so, but he went ahead with the sale.

7. Again, at the time of the purchase of this property, Petar and Nedjeljka asked Snjezana if she would be a registered owner on the title.  They told her, in effect, that they made the request out of respect and gratitude to her for her contributions to their lives over the years, and to make sure she was supported.  However, Snjezana was again concerned not to render the property vulnerable to any family law division if her relationship ended, and thus refused the request.

8. Snjezana's son continued to live with Petar and Nedjeljka when they moved to the Bushby Street property, and Snjezana continued to visit daily after work to help with the household chores and to assist Nedjeljka to run errands.

9. Ljiljana's husband and Snjezana assisted Petar with renovating the Bushby Street property. 

10. Once he had completed renovating the Bushby Street property, Petar wished to sell the property and purchase one in Egan Place, Midland.  Once again, Snjezana counselled him against this, but he proceeded to carry out his plan.  Petar and Nedjeljka repeated their request for her to become a registered proprietor on the title, but Snjezana refused, on the same basis as before. 

11. Snjezana's son moved with Petar and Nedjeljka to the Egan Place property and Snjezana continued to visit them daily and assist with the household chores and the renovations. 

12. After he finished renovating the Egan Place property, Petar again started talking about selling that property and buying one in Talbot Road.  He told Snjezana, in a manner she describes as 'jokingly', that it was because 'Ljiljana makes excuses about not coming to see us because Midland is too far away'.[21]  At the time, Ljiljana lived in Talbot Road. 

    [21] Affidavit of Snjezana Livun sworn 24 March 2023 [40].

13. Again, Snjezana tried to persuade Petar not to move, but he did so anyway, and in April 2001 he bought the Talbot Street property after selling Egan Place. 

14. Nedjeljka died in January 2006.  Petar heavily grieved his wife's passing, and Snjezana provided companionship and household assistance for him during this time.  In 2007, Petar and Snjezana went to Croatia for a holiday, after which Petar appeared to live more independently.  However, Snjezana still visited him almost daily for companionship and assistance. 

15. Of the relationship between her parents and Ljiljana, Snjezana claims it to have been 'always strained', which she recalls dating back to the death of Ljiljana's first child, around the time Ljiljana moved to Australia.  The relationship did not improve after Petar and Nedjeljka moved to Australia, and Ljiljana rarely saw them.

16. After Nedjeljka died in 2006, Ljiljana was completely estranged from Petar until shortly before his death, when she visited him in hospital a few times.  Snjezana did not see Ljiljana with Petar at any point during that time, despite Ljiljana living just down the road from Petar. 

17. On the basis of what Petar told her, Snjezana says that the period of the estrangement of Ljiljana and Petar was over 10 years' duration and that Ljiljana would cross the road if she saw Petar. 

18. It was after Nedjeljka died that Petar began saying he wished to transfer the Talbot Road property to Snjezana.  At this point, Snjezana believed that his desire to do so:[22]

    … had less to do with my contributions to his property originally and more to do with the complete breakdown in his relationship with Ljiljana, his anger with her for her behaviour when my mother was dying, and his intention that she should not receive the family home if he were to die.  The death of my mother made my Father very concerned about this.  I know these things because my Father told me, and expressed his concerns to me.

    [22] Affidavit of Snjezana Livun sworn 24 March 2023 [59].

19. Snjezana was financially secure, and thought it was an unnecessary risk for Petar to transfer the property to her, but Petar persisted in asking over the years.  At one point Snjezana's son told her that Petar had asked if he (Petar) could transfer the property to him, but he had declined also.  Eventually, in 2016, Petar said words to Snjezana to the effect that he had been estranged from Ljiljana for more than 10 years and he wanted to ensure she did not receive his home if he died, and Snjezana agreed. 

20. Despite Petar's lack of fluent English, he was not limited in relation to everyday affairs, or matters in which he had experience; he only struggled if English was required for something unusual.  This was so even in the lead up to his death. 

21. However, Petar expressed concern to Snjezana that, if he transferred the Talbot Road property to her, after he died Ljiljana would contest his capacity or understanding in relation to the transaction.  To this end, between April and July 2016, he arranged to be assessed by his general physician, and to be tested by three specialists, which included undergoing a cognitive function assessment.  The latter was done with the assistance of an independent Serbian interpreter, and Snjezana was not permitted to be present during the assessment. 

22. Annexed to Sjnezana's affidavit are medical reports from Petar's general physician, and reports of results from a CT scan of his head, an MRI of his head and the cognitive function assessment performed by Dr Nabin Dangal, which confirm that no issues were observed with his cognitive function. 

23. The plaintiff objected to a number of parts of Snjezana's affidavit.[23]  I uphold objections 1 to 4, which relate to passages which are, in effect, submissions as to the Statement of Claim.  Objection 5 is taken to the evidence that, from a certain point in time, Petar was debt free.  Even if the objection were technically correct, the matters asserted are not in dispute.  The evidence objected to by objection 6 is of very limited weight, if any, and need not be repeated here.  I do not take it into account in dealing with these applications.

    [23] Outlined in the Plaintiff's Outline of Submissions in Opposition to Defendants' Application for Summary Judgment filed 18 May 2023, 20 ['Schedule A'] (Plaintiff's Submissions).

24. As to objection 7, I do not accept that, simply because the plaintiff does not assert a lack of capacity, the tests Petar took to establish his cognitive function and the results of those tests are irrelevant.  Those matters are potentially relevant to the extent of any influence by Snjezana on Petar. 

25. Regarding objection 8, the fact that Petar did not leave a will and died intestate is, in my view, relevant.  The matter may not be a probate matter, but it is relevant that he did not leave a will which clearly expressed his testamentary intentions regarding Ljiljana.

Affidavit of Ljiljana Volaric sworn 19 April 2023

1. I propose to summarise Ljiljana's evidence only insofar as it differs from or adds to Snjezana's. 

2. Ljiljana says that, while Petar and Nedjeljka initially lived with Snjezana and her son when they moved to Australia, after about one month they all moved in with Ljiljana for some time, before moving into a property in Midvale.  After that, they all lived in a property rented from Ljiljana and her husband until about 1989, when they moved into the new house built at Ewart Street.

3. Ljiljana's husband was close to Petar and they conversed in Croatian.  Her husband told her that Petar 'would always consult and ask [him] for advice … for all of his business related matters'.  Ljiljana's husband also told her:[24]

   … about the renovations which he aided my father with.  Ivan told me my father would buy old houses cheaply, fix and/or renovate them whilst living in them and sell for profit.

   [24] Affidavit of Ljiljana Volaric sworn 19 April 2023 [12] - [13].

4. Ljiljana's husband helped with the ordering of materials, obtaining building permits and selecting and purchasing properties.  Petar and Nedjeljka were very independent and capable workers and over the years were able to purchase, renovate and sell a number of properties, all of which made a profit.

5. Annexed to Ljiljana's affidavit are the transfer documents for the purchase and sale of the various properties by Petar and Nedjeljka.  Their signatures on the documents relating to the transfer of the Ewart Street property were witnessed by Ljiljana's husband.

6. The documents relating to the purchase of the Bushby Street property were signed by Petar and Nedjeljka on 1 July 1994, and their signatures were witnessed by P.A. Gibson,[25] the same person who later witnessed the execution of the Transfer by Petar and Snjezana in 2017.[26]

   [25] Affidavit of Ljiljana Volaric sworn 19 April 2023, 22 - 23 ['Annexure LV 3'].

   [26] Affidavit of Ljiljana Volaric sworn 19 April 2023, 49 ['Annexure LV11']

7. The transfer of land papers effecting the sale of the Bushby Street property, annexed to Ljiljana's affidavit, record that on 9 December 1997, Snjezana witnessed the execution of the transfer by the Livuns, with a notation on the transfer documents which read:[27]

   Signed by the said PETAR LIVUN he being unable to read in the English Language after the same read and been read and explained to him in the Serbian Language by Snjezana Livun a person understanding both languages he then appearing to understand fully its nature and effect in the presence of Snjezana Livun [address].

   [27] Affidavit of Ljiljana Volaric sworn 19 April 2023, 26 ['Annexure LV 4'].

8. The same notation accompanied Snjezana's witnessing of Nedjeljka's execution of the transfer.[28]

   [28] Affidavit of Ljiljana Volaric sworn 19 April 2023, 26 ['Annexure LV 4'].

9. The witness to the Livuns' execution of the transfer documents effecting the purchase of the Egan Place property on 10 December 1997 was Ljiljana's husband.[29]

   [29] Affidavit of Ljiljana Volaric sworn 19 April 2023, 29 ['Annexure LV 5'].

10. Snjezana witnessed the execution by both Petar and Nedjeljka of the documents relating to the sale of both the Egan Place property[30] and the Talbot Road property.[31]

    [30] Affidavit of Ljiljana Volaric sworn 19 April 2023, 31 ['Annexure LV 6'].

    [31] Affidavit of Ljiljana Volaric sworn 19 April 2023, 33 ['Annexure LV 7'].

11. Ljiljana informed Petar of the availability of the Talbot Road property for purchase, as it was near her home, and it was convenient 'because of the close relationship we enjoyed as a family and in particular my father's dependence on my husband Ivan'.[32]

    [32] Affidavit of Ljiljana Volaric sworn 19 April 2023 [17].

12. Ljiljana denies her relationship with her parents was 'always strained', saying her relationship with her mother was never strained, and her relationship with her father altered after Nedjeljka died.  In 2005, when Nedjeljka began to be sick, some stress developed in the family.  At that time, Petar was in Croatia.  Nedjaljka was in a lot of pain and Ljiljana stayed and looked after her, as Snjezana had limited time to assist. 

13. On the night after Nedjeljka died, the whole family was together when Snjezana's de facto appears to have said something to Petar about something he heard or saw.  Ljiljana did not know what it was, but Petar told Ljiljana and her family to leave the house, and they did so.  When she went back to speak to Petar, he was rude to her and she left. 

14. Soon afterwards, Petar stopped talking to Ljiljana's husband and refused to let him into the house when he visited.  Later, Ljiljana heard things being said about her relating to Nedjeljka at the time of her death which were untrue.  Thereafter, Petar became 'more distant' when they met, and he would not tell her what the problem was.  The distance extended to Ljiljana's children, who had been close to Petar.  Snjezana also became more distant and would not explain either.

15. Still, Petar would walk past Ljiljana's house several times a week.  When she was able to get outside and to him before he passed, she would greet him and kiss him.  She saw him two to three times a week, especially during visits to the shops, when she 'would give him a hug and a kiss and he would move on.'[33]

    [33] Affidavit of Ljiljana Volaric sworn 19 April 2023 [53].

16. Ljiljana disputes the description of her being 'completely estranged' from Petar after her mother's death, although she was estranged from Snjezana, with whom she had little to no dealings. 

17. Ljiljana does not accept that Snjezana had the conversations with Petar in which he said he was angry with Ljiljana and did not want her to receive his house after he died.  To the extent that paragraph [41] of Ljiljana's affidavit does more than put this matter in issue, it has no real weight, going only to her belief as to the state of her relationship with Petar. 

18. Petar never said anything to her to that effect (that he was angry with her and did not want her to receive his house when he died) and he never spoke to her regarding estate planning or property gifts he made to Snjezana.

19. In paragraphs which are objected to by the defendants,[34] Ljiljana makes a number of somewhat general assertions about her parents' awareness of the impact of various matters on the aged pension.  The plaintiff concedes their inadmissibility. 

    [34] Affidavit of Ljiljana Volaric sworn 19 April 2023 [44], [45] and [46] as outlined in First and Second Defendant's Submissions filed 3 May 2023, 19 ['Schedule of Objections'] (Defendants' Submissions).

20. Ljjiljana also appears to take issue with the verification of Petar as the transferor of the property, on the basis that it does not name him or state that he had access to a Croatian interpreter.  She points to the lack of any statement indicating that the documents had been translated to him. 

21. To Ljiljana's knowledge, there has never been an occasion when Petar was interviewed, seen to or examined by a doctor or signed legal or semi‑legal documents or been interviewed by a settlement agent or public servant without an interpreter.  She points to various documents which reference an interpreter being present. 

22. Ljiljana went to the hospital when she found out Petar was dying.  Snjezana had not contacted her to inform her of this.  Thereafter, Ljiljana went twice daily to the hospital and, where necessary, helped Petar, who 'did not really like it, but did not oppose' her.[35] 

    [35] Affidavit of Ljiljana Volaric sworn 19 April 2023 [56].

23. On one of the days, there was a dispute between Ljiljana and Snjezana about how Petar had come to wrongly be given food.  Ljiljana left, and the next day when she saw Petar he told her he had told Snjezana and her partner to leave Ljiljana alone and she had done nothing wrong. 

24. Ljiljana drove Petar home two weeks later and spent 'every other night' with him and looked after him until he died.  Petar told her Snjezana never did the things she did for him during this time.  He complained to her that Snjezana and her son were always together and spoke English around him, so he did not know what they were speaking about.

25. The evidence set out in [85] to [87] above was objected to by the defendants, on the basis that it is irrelevant to the Transfer and the pleaded causes of action.  However, in my view it goes to the relationship between Snjezana and Petar and, even if it has limited weight, is not irrelevant. 

Disposition: summary judgment application

Presumed undue influence claim

1. The relationship of adult child and elderly parent is not a category of relationship which is recognised as automatically giving rise to a presumption of undue influence.[36]  Further, a relationship of trust and confidence reposed by an elderly parent in a child with whom they are close is not necessarily, of itself, a sufficient basis from which to presume that a transaction between them was affected by undue influence.[37]

   [36] Permanent Mortgages Pty Ltd v Vandenbergh [173].

   [37] Lin v Lin (No 2) [2022] VSC 542 [147]; Re Coomber [1911] UKLawRpCh 45; [1911] 1 Ch 723.

2. The plaintiff claims that the relationship between Snjezana and Petar was one of ascendancy and dependency such as to give rise to the presumption of undue influence, and the Transfer was not such as could be explained by ordinary motives or was not readily explicable by the relationship.  

3. It is immediately apparent from the summary of the evidence that there is a real dispute as to the nature of the relationship which existed between Ljiljana and Petar in the years following Nedjeljka's death and preceding Petar's death.  On behalf of the defendants, it was suggested that, as the relevant relationship was that between Snjezana and Petar, that dispute was of little consequence.  I do not accept that submission.  To the contrary, the relationship between Ljiljana and Petar potentially impacts on the matter in at least two important ways. 

4. The first is that it may have a bearing on the ultimate findings as to the nature of the relationship between Snjezana and Petar.  For example, if Ljiljana was significantly estranged from Petar, that may mean that Snjezana's influence, and the capacity for her relationship to be one which invoked the presumption of undue influence, was increased by the exclusion of Ljiljana.  On the other hand, if Ljiljana had a good, albeit distant relationship with her father, that may have operated to dilute any ascendancy Snjezana might have had.

5. Secondly, the nature of Ljiljana's relationship with Petar potentially impacts on determination of the issue whether the Transfer could be explained by ordinary motives or was not readily explicable by the relationship between Snjezana and Petar.  If Ljiljana was substantially estranged from Petar, the Transfer might be more readily explicable.  However, if the relationship was as Ljiljana describes, it might be more difficult to explain the Transfer as the rational decision of a father acting of his own free will. 

6. In the course of the hearing, it was submitted on behalf of the defendants that Snjezana's evidence as to her discussions with Petar regarding the reasons for the Transfer and Petar's desire that Ljiljana not receive a share of the house after his death was not controverted by Ljiljana's evidence and in those circumstances, I must accept Snjezana's evidence, even if it was not accepted by Ljiljana. 

1. It was argued that, if I were to accept Snjezana's evidence about this, I could not find that that a presumption of undue influence was open because that evidence establishes that the Transfer was readily explicable by the relationship between Petar and his daughters.  Further, it was submitted that even if the evidence as a whole was capable of giving rise to a presumption of undue influence, Snjezana's evidence about her discussions with Petar conclusively rebutted the presumption. 

2. It was further submitted on behalf of the defendants that the fact that Petar never discussed his intentions as to his estate with Ljiljana was not evidence capable of giving rise to an inference that he did not hold those intentions, even assuming that, at trial, the facts as otherwise set out by Ljiljana in her affidavit would be accepted. 

3. Ljiljana is not, of course, in a position to give evidence as to whether the specific discussions between Petar and Snjezana took place or their content, she having not been present.  However, it was plain from her affidavit material that she took issue with the evidence and, in the event of a hearing, Snjezana's evidence about the discussions would be tested. 

4. I was referred to a number of authorities as to whether there could be said to be a 'dispute' as to the discussions referred to by Snjezana, given the lack of directly contradictory evidence about them.  Ultimately, however, those authorities added little, if anything, to the general principles as to the approach to evidence in summary judgment applications as set out in Pisano, and in light of my conclusion below, it is unnecessary for me to deal with them in detail. 

5. In my view, the submission on the part of the defendants is misconceived, because it relies upon one isolated part of the evidence (as to the discussions between Snjezana and Petar as to his reasons for the Transfer) as being wholly determinative of the issue of whether the relationship provided a rational explanation for the Transfer, or alternatively, whether the presumption was rebutted. 

6. Even if that piece of evidence were to be found credible and reliable, I do not accept it is necessarily determinative.  Firstly, I have identified two significant ways in which other disputed aspects of the relationships between the parties are relevant to determining the issue of presumed undue influence. 

7. Further, in my view, it would be inappropriate in an application such as this to elevate one part of the evidence about the relationships between Petar and his children above the rest, when all of the evidence will ultimately need to be considered to determine the nature of those relationships and, in particular, whether a relationship giving rise to a presumption of undue influence existed. 

8. As a result, I am of the view that there is a real dispute as to a material issue in the proceedings.  Resolution of that issue will involve making assessments of credibility, which, except in extreme cases, is not an appropriate task for a court considering an application for summary disposal of a proceeding. 

9. I am not satisfied that the presumed undue influence claim should be disposed of summarily. 

10. Apparently conscious of the potential finding that the plaintiff's case might be more meritorious in respect of the presumed undue influence claim than the actual undue influence claim or the unconscionable conduct claim, the plaintiff submitted that, in the event I was to dismiss the application for summary judgment in relation to the presumed undue influence claim, there was no utility in granting summary judgment in respect of the other claims. 

11. Apart from the significant overlap of the facts and the legal principles involved in this matter, the plaintiff relied upon the observations of Kirby P (as he then was) in Wickstead v Browne,[38] who, in dissenting from the majority's view that a cause of action in negligence should be summarily dismissed when other causes of action were to proceed, said:

    Conformably with the decision of this Court, the matter will now proceed to trial.  It will be tried upon the two causes of action which the court has unanimously upheld…If there were to be no trial, there might be particular reasons for affirming the [conclusion of the majority].  Then, the summary termination of this claim might save the respondent altogether from the 'vexation of the continuance of useless and futile proceedings'…But as the trial must now proceed, there is merit (as it seems to me) in permitting the appellant to present his case in various ways.  The marginal utility to the respondent of preventing the appellant from proceeding upon the alternative cause of action in negligence is minimal.  But the marginal costs of doing so would be very great if, subsequently, the trial was concluded, limited by the orders proposed, and it was then held, either by this Court or by the High Court of Australia, that the appellant's cause of action in negligence was viable.

    [38] Wickstead v Browne [1992] NSWCA 272; (1992) 30 NSWLR 1 5D - F.

12. In allowing the appeal from the dismissal of the negligence claim, the High Court expressed general agreement with the reasons of Kirby P for the conclusion that the negligence claim should not have been dismissed.[39]

    [39] Wickstead v Browne (1993) 10 Leg Rep SL2.

13. On behalf of the defendants, it was submitted that, in light of case management principles and in the interests of narrowing the issues, I should not take such an approach, and should proceed to summary judgment on the remaining claims.

14. There was an issue of law involved in Wickstead which was not necessarily settled, which counted against summary dismissal of the negligence claim, even though that claim was likely to add considerably to the length and complexity of the case. 

15. Despite that distinction, the observations of Kirby P hold considerable force in this case.  In this case, proceeding on all of the claims will not result in any significant additional evidence being led.  There is very substantial overlap in the issues to be resolved, and the law which applies.  There will, of course, still be different legal principles which apply, which will require additional submissions and, of course, reasons for decision.  However, in my view, that is not a sufficiently significant factor in this case to warrant summary disposal of the remaining claims. 

16. I am conscious of the case management principles which emphasise the need for matters to proceed in a timely and efficient manner and for issues to be appropriately narrowed.  However, as with strike out applications, in such a case management environment, care should be taken not to take an excessively technical approach to pleadings where an arguable cause of action is disclosed and the parties are apprised of the case to be met.

17. In my view, having regard to my decision to refuse summary judgment on the presumed undue influence claim, and having regard to my conclusion on the strike out application, the application for summary judgment on the actual undue influence and unconscionable conduct claims should be dismissed. 

Unconscionable conduct claim

1. Despite having so found, I will briefly consider the unconscionable conduct claim, on the basis that detailed submissions were made in relation to it. 

2. As to this cause of action, the SOC alleges at paragraph [56] that, by reason of his incapacity to read and speak English, and his age, Petar was subject to a special disadvantage that seriously affected his ability to make a judgment as to his own best interests. 

3. By paragraph [57] it is pleaded that Snjezana knew or ought to have known of those matters.  The particulars of this knowledge as pleaded include a reference to Petar's reliance on Snjezana. 

4. Paragraph [58] of the SOC then asserts that, by reason of the matters pleaded in Parts H to J of the SOC and the matters referred to in [56] and [57] of the SOC, it was unconscionable for Snjezana to accept the gift of the Talbot Road property. 

5. Part H contains factual allegations as to how Petar came to acquire the Talbot Road property initially and alleges that, following Nedjeljka's death, Snjezana aided him to complete the documents necessary to become the sole registered proprietor. 

6. Part I relates to the circumstances of the Transfer, the identity of the witness to the execution of the Transfer by Petar and Snjezana and the registration of the Transfer.

7. Part J alleges that Petar could not read or speak English, that he was 87 years and 8 months old at the time of the Transfer and that he had not discussed the Transfer or his testamentary affairs with Ljiljana prior to the Transfer.  It also alleges that the Talbot Road property had been Petar's home for more than 16 years until his death, that it was the only real property he owned, and was his most valuable asset (with a dutiable value of $320,000). 

8. Part J also contains the allegation that Petar had been reliant on Snjezana for many years before the Transfer and that, at the time of the Transfer, Snjezana did not own the property in which she resided with her de facto. 

9. At the hearing of the matter, counsel for the plaintiff accepted that the part of the SOC relating to the unconscionable conduct claim was unfortunately drafted, and foreshadowed an application to amend the SOC to make it clear that the relationship between Snjezana and Petar was also relied upon as one of the factors giving rise to the 'special disadvantage' to which Petar was alleged to have been subject at the relevant time.  However, no application was actually made, and I have determined the matter in the absence of any such amendment.

10. It does not necessarily follow from the fact that Petar was of advanced age and was unable to read or speak English that he was under a special disadvantage of such a nature as to seriously affect his ability to make a judgment as to his own best interests.  However, those factors are capable, in combination, of giving rise to a relationship of special disadvantage between Petar and Snjezana. 

11. If such a finding were to be made, it would also be open to make a finding that it was unconscionable of Snjezana to accept the Transfer. 

12. I am not satisfied that the plaintiff's claim will inevitably fail.  There is a material dispute in relation to matters fundamental to the prospects of the unconscionable conduct claim.  Accordingly, it is not appropriate to dispose of it summarily. 

13. The application for summary judgment is refused. 

Application to strike out Statement of Claim

1. The application to strike out the SOC is made on the basis that it discloses no reasonable cause of action.[40]

Relevant legal principles

[40] Defendants' Submissions [13].

1. The legal principles applicable to a strike out application were synthesised by Smith J in Vantage Holdings Group Pty Ltd v Donnelly [No 4],[41] and endorsed by the Court of Appeal in English v Vantage Holdings Group Pty Ltd.[42]  Relevantly:

   [41] Vantage Holdings Pty Ltd v Donnelly [No 4] [2019] WASC 398 [60] (citations omitted).

   [42] English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 [55] - [56].

   (a)the essential functions of a pleading are to define and limit the issues for decision, to provide the basis for determining discovery and the admissibility of evidence for trial, and to ensure a fair trial by putting the other side on notice of the case it must meet;

   (b) a statement of claim must not plead allegations at too high a level of generality.  A pleading must be sufficiently particular to conform with one of the primary objects of pleadings, to inform the opposing party of the case that it must meet;

   (c) a statement of claim must state specifically the relief or remedy claimed;

   (d) the court should proceed with caution before striking out a pleading on the ground that it does not disclose a reasonable cause of action.  While the court may determine a difficult question of law on such an application, it would usually be appropriate to leave the determination of such questions for trial;

   (e)in alleging no reasonable cause of action:

   (i) the question to be decided is not whether the facts pleaded are in themselves sufficient to give rise to a cause of action.  Rather, the question is whether it would be open to the party (on its pleadings) to prove facts at the trial which would constitute a cause of action; and

   (ii)'reasonable' means reasonable according to law.  If the facts pleaded conceivably give rise to relief, then the cause of action should be held to be reasonable;

   (f) the mere fact that a case appears weak is not of itself sufficient to strike out the action;

   (g) in considering a strike out application, it is now necessary to consider the role of pleadings in the context of case management techniques. Case management considerations are not, however, necessarily antithetical to the observance of pleading rules. The objects of O 1 r 4A and 4B of the Rules of the Supreme Court 1971 (WA) are often promoted by a clear and precise statement of the issues for decision;

   (h)provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action (or defence), and apprising the parties of the case that has to be met, the court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleading rules that evolved in, and derive from, a very different case management environment.

2. No evidence is admissible on an application to strike out under O 19 r 1(a) RSC.[43]

Submissions of the First and Second Defendants

[43] O 20 r 19(2) RSC.

1. For the purposes of their application, the defendants accept that the material facts set out in the SOC are true.[44]

Undue influence claims

[44] Defendants' Submissions [44].

1. The defendants submit that there is no direct evidence pleaded in the SOC of any conduct which is capable of constituting undue influence, and thus the claim to that effect rests entirely on the court drawing a presumption of undue influence from the facts pleaded.[45]

   [45] Defendants' Submissions [38].

2. The defendants submit that the material facts pleaded are incapable of leading the court to draw a presumption that the gift of the Talbot Road property to Snjezana was so extraordinary that it cannot be explained as the actions of a rational person.[46]  It follows that the material facts pleaded also cannot support the contention that the only logical conclusion is that it was procured by the defendants' undue influence.[47]

Unconscionable conduct claim

[46] Defendants' Submissions [48].

[47] Defendants' Submissions [49].

1. The defendants argue that the contentions that Petar did not read or speak English, and that he was almost 88 years of age at the time of the Transfer do not support a finding of special disadvantage on his part.  They submit that the material facts pleaded are incapable of establishing that Snjezana conducted herself in an unconscientious manner, which is required to prove an allegation of unconscionable conduct.[48]

Submissions of the plaintiff

[48] Defendants' Submissions [67] - [68].

1. Ljiljana submitted that it is open to her, on her pleadings, to prove facts at the trial which would constitute a cause of action.[49]

Disposition: strike out application

Presumed undue influence claim

[49] Plaintiff's Submissions [67].

1. In my view, the SOC discloses a reasonable cause of action of presumed undue influence. 

2. The facts pleaded allege the relationship between Petar and Snjezana to have been one of reliance, dependence and trust on Petar's part, over a considerable period of time, and to the apparent exclusion of others. 

3. The relationship of father and adult daughter does not fall within the categories of relationships recognised to give rise to a presumption of undue influence.  However, accepting the facts as pleaded, a relationship such as that alleged is capable of being found to have been of such a nature as to give rise to a presumption of undue influence, and the gift to have been of such a nature as not to be readily explicable in the circumstances. 

Actual undue influence claim

1. The SOC is drafted in such a way that various topics are dealt with in sections denoted by letters of the alphabet, with paragraph numbers within them, and the claims of undue influence and unconscionable conduct then refer back to the sections by letter or paragraph number. 

2. The defendants submitted that, in the case of the actual undue influence claim, the SOC did not make out a reasonable cause of action when regard is had to the paragraphs referred to. 

3. More fundamentally, the pleading of the actual undue influence claim does not, in my view, disclose a reasonable cause of action.  Paragraph [55] (which is the only paragraph relevant to this claim) alleges that, by reason of various matters:

   … when he executed the Talbot Road Transfer, Petar's capacity to make judgments concerning:

   (1)his affairs in general; and

   (2)in particular, the distribution of 89 Talbot Road between Ljiljana and Snjezana, whether inter vivos or upon Petar's death,

   was markedly substandard as a result of the subordination of Petar's will to Snjezana's will.

4. To make out a claim of actual undue influence, the plaintiff must establish not only that Snjezana had the capacity to influence Petar, but that she actually exercised that influence, in an undue manner, and that her doing so brought about the transaction.[50]

   [50] Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 923, 953 - 954; Micarone v Perpetual Trustees Australia Ltd [1999] SASC 265; (1999) 75 SASR 1 [276].

5. The SOC pleads only the first of those factors, as to Snjezana's capacity to influence Petar.  Accordingly, in my view, it does not disclose a reasonable cause of action of actual undue influence and the plaintiff should not be permitted to pursue that claim. 

6. To give effect to this order, the words 'and the alternative to paragraph 54 above' (sic) in paragraph [55] of the SOC must be struck out. 

Unconscionable conduct claim

1. As indicated in [120] to [1211] above, I am not satisfied that, in combination, paragraphs [56] and [57] of the SOC do not disclose a reasonable cause of action.  That is not to say that the prospects of success on the basis of the SOC claim as presently drafted are good, but I am not satisfied that the part of the SOC relating to the unconscionable conduct claim should be struck out. 

Leave to re-plead

1. In my view, if the plaintiff seeks leave to re‑plead the actual undue influence claim, she should be granted that leave. 

Orders

1. The application for an extension of time is granted in each case.

2. The application for summary judgment is dismissed.

3. The application to strike out the Statement of Claim is allowed in part, and the words 'and the alternative to paragraph 54 above' in paragraph [55] of the Statement of Claim are struck out.

4. Costs are ordered to be in the cause.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AT

Associate to the Honourable Justice Forrester

20 JUNE 2023