Wilce v Wilce - [2022] QSC 94

SUPREME COURT OF QUEENSLAND

CITATION:

Wilce v Wilce & Anor [2022] QSC 94

PARTIES:

JANE SARELLE WILCE
(plaintiff)
v
ANGELA MAREE WILCE

(first defendant)

AND

KHALIL JAMES SMITH

(second defendant)

FILE NO/S:

T536 of 2019

DIVISION:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

19 May 2022

DELIVERED AT:

Cairns

HEARING DATES:

17-19 May 2022

JUDGE:

Bradley J

ORDER:

The parties are to confer and submit draft orders on 23 May 2022

CATCHWORDS:

EQUITY - GENERAL PRINCIPLES - UNDUE INFLUENCE AND DURESS - GENERALLY - where the plaintiff is the stepmother of the first defendant and the mother-in-law of the second defendant - where the plaintiff and her husband executed a transfer of the fee simple in certain land to the defendants by way of gift - where the defendants became the registered proprietors of the fee simple - where the plaintiff alleged that the transfer by her of her interest in the land was the result of undue influence - where the undue influence was said to be in the form of pressure placed on her by her husband and the first defendant - whether the conduct on the part of the plaintiff’s husband and the defendants was unconscionable conduct - whether declarations should be made as to the plaintiff’s interest in the land, the validity of the transfer and other matters on the grounds of undue influence.

COUNSEL:

P F Mylne for the plaintiff
C Ryall for the defendants

SOLICITORS:

O’Shea & Dyer for the plaintiff
Far North Injury Lawyers for the defendants

On 27 November 2018, the plaintiff Jane Sarelle Wilce (Jane) and her husband Frank Stanley Wilce (Frank) executed a transfer of the fee simple in certain land (Lot 40) to the first defendant Angela Maree Wilce (Angela) and the second defendant Khalil James Smith (Khalil), by way of gift. On 7 December 2018, the transfer was registered over the title and Angela and Khalil became the registered proprietors of the fee simple.
Jane alleged that the transfer of her interest in Lot 40 was the result of undue influence in the form of pressure placed on her by Frank and Angela, in particular the pressure of threats made by Frank in November 2018. Jane alleged the same conduct, on the part of Frank, and the conduct of Angela and Khalil, was unconscionable conduct. Jane sought a remedy from the court.
On 19 May 2022, at the conclusion of a three day trial, I gave reasons for concluding that the court should grant relief to Jane in her claim against Angela and Khalil. This is an edited version of those reasons.
Reasons
This proceeding is part of a family story. The plaintiff Jane is the stepmother of the first defendant Angela and the mother-in-law of the second defendant Khalil.
In cases involving allegations of undue influence and unconscionable conduct, the court is to examine with precision the particular facts, scrutinise…

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 Wilce v Wilce

Details

AGLC: Wilce v Wilce [2022] QSC 94
Case: [2022] QSC 94
Decision Date: 19 May 2022

CaseChat Overview and Summary

The case of Wilce v Wilce involved a dispute between Jane, the plaintiff and stepmother of Angela, the first defendant, and Khalil, the second defendant and Jane's husband. The plaintiff sought declarations regarding her interest in certain land, the validity of a transfer of that land, and other matters on the grounds of undue influence. The defendants became the registered proprietors of the land after the plaintiff and her husband executed a transfer of the fee simple by way of gift. The plaintiff alleged that the transfer was the result of undue influence exerted by her husband and Angela.

The central legal issues were whether the pressure exerted on Jane amounted to unconscionable conduct and whether this conduct rendered the transfer of land invalid. The court had to consider the evidence of undue influence and the reliability of the plaintiff's testimony. It also needed to determine whether the pressure exerted was of such a nature that it deprived Jane of her free will.

The court found that the undue influence alleged was excessive pressure on Jane. Despite criticisms regarding the plaintiff's recollection of events and the reliability of her evidence, the court accepted Jane's testimony as genuine and reliable, particularly as it was corroborated by objective points of reference. The court rejected arguments that Jane had not revealed her concerns about undue pressure to relevant parties, noting that she had disclosed her concerns to a social worker and her general practitioner. The court also dismissed claims that Jane's evidence was contradicted by her husband or that she had failed to provide detailed evidence. The court concluded that the pressure exerted on Jane by her husband and Angela was indeed unconscionable, and the transfer of the land was rendered invalid as a result of this undue influence.

Orders

Orders of the court

The parties are to confer and submit draft orders on 23 May 2022

Background

Background to the litigation

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Evidence

Evidence Before The Court

On 7 December 2018, the transfer was registered, making Angela and Khalil the registered proprietors of the fee simple in Lot 40. The mortgage granted by Frank and Jane to their bank remained on the title. Consideration of the evidence The undue influence alleged here is excessive pressure on Jane. To succeed, Jane must show that the effect of the pressure on her was such that she had no free will. Like Angela, Jane’s recollection of specific events, when and in what sequence each occurred was imperfect. Jane accepted she had a poor memory of events at the relevant time. This did not detract from the genuineness with which Jane gave her evidence or, in my observation, the reliability of her testimony when checked with objective points of reference. Many criticisms of Jane’s evidence were advanced on behalf of Angela and Khalil. Those said to affect her reliability included that, if Jane had concerns about undue pressure from Frank, “she kept them to herself and did not reveal them” to family members, the social worker at the Atherton Hospital or her general practitioner at Eacham Medical Centre. I reject these criticisms. Jane did reveal her concerns to the social worker at the hospital, who recorded them in the notes three weeks before the transfer was signed. She disclosed them to her general practitioner on the morning of the day she signed. A specific criticism of Jane’s reliability was that she did not tell the social worker “that she was in a difficult position because a husband was holding her ransom by threatening to terminate the relationship if she did not sign the document”. It was also put that Jane’s evidence failed to show that “termination of her marriage and/or her leaving the family home was something that she ought fear because it would cause her some great difficulty”. It was said that, before signing the transfer, Jane “had commenced a process of coming to the conclusion that she would leave her husband.” This last point is consistent with Jane’s recorded disclosures to the social worker and to her general practitioner. I do not find these matters have any adverse consequence for the reliability of her evidence. For Angela and Khalil, it was also put that Jane should be found unreliable because, they say, Jane “offered no oral evidence about what led to her leaving her husband” and because Jane’s evidence “was contradicted directly by her husband Frank.” Added to these was the submission that Jane had not provided “the sort of detailed evidence that would be necessary to accept her case generally.” The following examples were given: that Jane had “not suggested that anyone had ever seen” Frank display his anger by breaking things in the house; and Jane “did not give evidence to the effect that” [Frank] “was doing the offensive acts deliberately at times when there would be no one present to witness them or the like.” It was also put that Jane’s evidence should not be accepted because “a number of serious allegations made against Frank in the statement of claim … were not proved”.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Wilce v Wilce & Anor [2022] QSC 94
PARTIES:	JANE SARELLE WILCE (plaintiff) v ANGELA MAREE WILCE (first defendant) AND KHALIL JAMES SMITH (second defendant)
FILE NO/S:	T536 of 2019
DIVISION:	Trial Division
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	19 May 2022
DELIVERED AT:	Cairns
HEARING DATES:	17-19 May 2022
JUDGE:	Bradley J
ORDER:	The parties are to confer and submit draft orders on 23 May 2022
CATCHWORDS:	EQUITY - GENERAL PRINCIPLES - UNDUE INFLUENCE AND DURESS - GENERALLY - where the plaintiff is the stepmother of the first defendant and the mother-in-law of the second defendant - where the plaintiff and her husband executed a transfer of the fee simple in certain land to the defendants by way of gift - where the defendants became the registered proprietors of the fee simple - where the plaintiff alleged that the transfer by her of her interest in the land was the result of undue influence - where the undue influence was said to be in the form of pressure placed on her by her husband and the first defendant - whether the conduct on the part of the plaintiff’s husband and the defendants was unconscionable conduct - whether declarations should be made as to the plaintiff’s interest in the land, the validity of the transfer and other matters on the grounds of undue influence.
COUNSEL:	P F Mylne for the plaintiff C Ryall for the defendants
SOLICITORS:	O’Shea & Dyer for the plaintiff Far North Injury Lawyers for the defendants