Winefield v Clarke - [2008] NSWSC 882

CITATION: Winefield v Clarke [2008] NSWSC 882

HEARING DATE(S): 31/07/08, 01/08/08

JUDGMENT DATE :
29 August 2008

JURISDICTION: 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 1993

CATEGORY: 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 - Defendant

SOLICITORS: 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…

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 Winefield v Clarke

Details

AGLC: Winefield v Clarke [2008] NSWSC 882
Case: [2008] NSWSC 882
Decision Date: 29 August 2008

CaseChat Overview and Summary

The case of Winefield v Clarke involved the transfer of a property interest from an elderly mother to her daughter. The mother alleged that the transfer was a result of undue influence exerted by the daughter. The matter was heard in the Federal Court of Australia. The primary focus of the dispute was whether the daughter had unduly influenced the mother into transferring her property interest, and if the mother had received adequate legal advice before the transfer.

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