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Ward v Ward

Ward v Ward

Case [2011] NSWSC 107 4 February 2011

Unconscionable Conduct

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Supreme Court

New South Wales

Medium Neutral Citation: Kenneth Charles Ward v Brian Charles Ward & Anor [2011] NSWSC 107
Hearing dates: Friday 4 February 2011
Decision date: 04 February 2011
Jurisdiction: Equity Division
Before: Brereton J
Decision:
Second Defendant is liable to pay the Plaintiff moneys owing according to loan agreement. First Defendant holds his interest in the Kings Park property on trust for the Plaintiff.

Catchwords: EQUITY - general principles - unconscionable dealings - Plaintiff provides son with one-third interest in real property - father said to be under special disability because of alcohol abuse, assault by younger son and re-establishment of recent relationship with son - notice of special disability said to arise by improvidence of transaction - son fails to plead to allegations in statement of claim - deemed admissions - held: son unconscionably took advantage of special disability - declaratory relief - son holds interest in property on trust for father.
LOAN AGREEMENT - agreement entered into on behalf of Plaintiff by son acting pursuant to Power of Attorney with grandson - maturity date reached - amount of advance and interest not paid pursuant to agreement - grandson fails to plead to allegations in statement of claim - held: loan advance repayable with interest.
Legislation Cited: (NSW) Family Provision Act (1982), s32
Cases Cited: Bridgewater v Leahy (1998) 194 CLR 457
Louth v Diprose (1992) 175 CLR 621
Mirembe Pty Ltd v Dangar [2009] NSWSC 1268
MY Distributors Pty Ltd v Omaq Pty Ltd and Another (1992) 36 FCR 578
Sergi v Jurcevic (1999) 46 NSWLR 672.
Tillett v Varnell Holdings Pty Limited & ors [2009] NSWSC 1040
Category: Principal judgment
Parties: Kenneth Charles Ward (Plaintiff)
Brian Charles Ward (First Defendant)
David Brian Ward (Second Defendant)
Representation: Counsel:
Mr D Stewart (Plaintiff)
No appearance (Defendants)
Solicitors:
Matthews Dooley & Gibson (Plaintiff)

File Number(s): 2010/093471

JUDGMENT (ex tempore)

HIS HONOUR: The Plaintiff Kenneth Charles Ward sues his son, the First Defendant, Brian Charles Ward, and his grandson, the Second Defendant David Brian Ward, as against the First Defendant to have set aside a transaction whereby the Plaintiff made a gift to the First Defendant of a one third interest in a property purchased in 2003 by the Plaintiff from the son of his de facto spouse, in the names of the Plaintiff, his de facto spouse, and his son; and as against the Second Defendant, to recover a loan of $140,000 and interest advanced on behalf of the Plaintiff by the First Defendant as his Attorney Under Power to the Second Defendant, the advance being derived from the proceeds of sale of the Plaintiff's former home at Marrickville.

The Plaintiff, who was born on 2 August 1926, was at the time of the relevant events in 2003 some 77 years of age. His wife Nonie had died in 1988. They had two sons - Brian, the First Defendant, who is now aged 60; and Anthony, who is now aged 51.

The Plaintiff had retired from…

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 Ward v Ward

Details

AGLC: Ward v Ward [2011] NSWSC 107
Case: [2011] NSWSC 107
Decision Date: 04 February 2011

CaseChat Overview and Summary

In the matter of Ward v Ward, the parties involved were the plaintiff, Ward, and his son, the defendant. The dispute centred on the ownership of a one-third interest in a property and a loan agreement. The case was heard in the Supreme Court of New South Wales. Ward claimed that his son had unconscionably taken advantage of his special disability, which included alcohol abuse, assault by a younger son, and the re-establishment of their relationship, to obtain the property interest and to avoid repaying a loan. The son failed to plead to the allegations in Ward's statement of claim, resulting in deemed admissions.

The legal issues before the court were whether Ward's son had unconscionably taken advantage of his special disability, and whether the loan agreement required repayment of the advance with interest. The court had to determine if Ward's special disability was such that it justified equitable intervention, and if the son's conduct in acquiring the property interest and the loan agreement was unconscionable. The court also needed to consider whether the son's failure to plead to the allegations amounted to admissions of the claims.

The court found that Ward's special disability, including his alcohol abuse and the assault by his younger son, did indeed place him at a significant disadvantage. The improvidence of the transaction, where Ward provided his son with a one-third interest in the property, further indicated that Ward was under a special disability. The son's failure to plead to the allegations resulted in deemed admissions, which meant that the son had effectively admitted to the claims made by Ward. The court concluded that the son had unconscionably taken advantage of his father's special disability by acquiring the property interest and not repaying the loan. As a result, the son held the property interest on trust for Ward, and the loan advance was repayable with interest.

The final orders of the court declared that the son held the one-third interest in the property on trust for Ward and ordered the repayment of the loan advance with interest. This decision highlights the importance of considering special disabilities and the need for equitable intervention in cases of unconscionable conduct.

Orders