CITATION: Winefield v Clarke [2008] NSWSC 882 HEARING DATE(S): 31/07/08, 01/08/08
JUDGMENT DATE :
29 August 2008JURISDICTION: Equity Division JUDGMENT OF: Barrett J DECISION: See paragraphs 53 to 55 CATCHWORDS: EQUITY - undue influence - transfer of interest in property by aged mother to daughter - no consideration given - daughter admits mother was reliant on her and reposed trust and confidence in her - undue influence established - no evidence of adequate legal advice to mother - onus on daughter not discharged - property to be restored to mother LEGISLATION CITED: Civil Procedure Act 2005, s 74(1)
Contracts Review Act 1984
Conveyancing Act 1919, s 66G
Protected Estates Act 1993CATEGORY: Principal judgment CASES CITED: Johnson v Buttress (1936) 56 CLR 113 PARTIES: Joyce Winefield by her Tutor the Protectrive Commissioner of New South Wales - Plaintiff
Kim Louise Clarke - Defendant
FILE NUMBER(S): SC 1162/07 COUNSEL: Mr A J McInerney - Plaintiff
Mr P Folino-Gallo - DefendantSOLICITORS: Lee & Lyons - Plaintiff
Cutlers The Law Firm - Defendant
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
BARRETT J
FRIDAY, 29 AUGUST 2008
1162/07 JOYCE WINEFIELD BY HER TUTOR THE PROTECTIVE COMMISSIONER OF NEW SOUTH WALES v KIM LOUISE CLARKE
JUDGMENT
1 The plaintiff and the defendant are mother and daughter. The plaintiff sues the defendant with a view to recovering an interest in real property transferred by the plaintiff to the defendant in June 2004. The property concerned is a residential property at Bateau Bay of which the plaintiff was formerly the sole registered proprietor. By a transfer dated 31 May 2004 (which is admitted not to be the date of its execution), the plaintiff transferred the property to herself and the defendant as joint tenants.
2 The plaintiff, born on 31 January 1921, is 87 years old. She is a person under legal incapacity within the meaning of s 74(1) of the Civil Procedure Act 2005. She sues by her tutor the Protective Commissioner of New South Wales, by whom her estate is managed pursuant to an order made by the Guardianship Tribunal on 29 July 2004 pursuant to the Protected Estates Act 1993.
3 The plaintiff had four children: Anthony Walker, Peter Walker and Gail Tyler (now deceased) to her first husband; and the defendant, Kim Louise Clarke, the only child of her second marriage.
4 The plaintiff and her second husband acquired the Bateau Bay property in 1971. The defendant lived there until 1981 when she left shortly before her marriage. Upon the dissolution of her marriage in 1999, the defendant returned to the family home and lived there with the plaintiff thereafter, except for a period of three months in 2004 when she was travelling in the United States. During the defendant’s absence, the plaintiff’s daughter Gail called regularly at the plaintiff’s house to assist her mother.
5 In April 2004 when the defendant was in the United States, one or more of the plaintiff’s other children arranged the plaintiff’s…
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- Winefield v Clarke [2008] NSWSC 882
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- [2008] NSWSC 882
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CaseChat Overview and Summary
The court was required to determine whether the daughter had indeed exerted undue influence over the mother, which led to the transfer of property without consideration. The court also had to consider whether the mother had received adequate legal advice to understand the implications of the transfer. Additionally, the court needed to decide whether the onus of proving that the transaction was fair and independent of any undue influence lay with the daughter, as the party who benefited from the transaction.
The court found that the daughter had indeed exerted undue influence over the mother, who was reliant on her and reposed trust and confidence in her. The court also determined that there was no evidence to suggest that the mother had received adequate legal advice to understand the implications of the transfer. Consequently, the court held that the onus of proving that the transaction was fair and independent of any undue influence did not shift from the daughter, and since this onus was not discharged, the transfer was deemed invalid. The court ordered that the property be restored to the mother.
Orders
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Background
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Evidence
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Decision
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Ratio Decidendi
Legal Principle Established
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