Wittman v Wittman - [2006] QSC 142

SUPREME COURT OF QUEENSLAND

CITATION:

Wittman v Wittman [2006] QSC 142

PARTIES:

PETER WITTMAN
(plaintiff)
v
RICHARD WITTMAN
(defendant)

FILE NO/S:

BS11631 of 2003

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

22, 23 and 24 May 2006

JUDGE:

McMurdo J

ORDER:

Upon payment to the defendant by the plaintiff as executor of the estate of George Wittman of $69,728 together with interest on that sum at 10 per cent per annum from 23 November 1998, the Deed of Agreement and Bill of Mortgage executed by George Wittman in favour of the defendant will be set aside and the defendant will do all things reasonably necessary to effect the registration of a discharge of that mortgage.

CATCHWORDS:

EQUITY – GENERAL PRINCIPLES – UNCONSCIONABLE CONDUCT – GENERAL PRINCIPLES – where the testator died in 2003 – where the plaintiff is his first son and executor under his father’s last will made on 23 February 2001 – where the defendant is the testator’s second son – where the defendant issued a bankruptcy notice to his father in January 1999 and a petition was filed in April 1999, returnable in May 1999 – where in May 1999 the testator through a Deed of Agreement and a Bill of Mortgage transacted to pay $273,993.35 to the defendant from his estate and secured by a mortgage over the home unit in which he lived at Surfers Paradise – where the testator was at a special disadvantage at the time of entering the transaction because of his medical condition and impaired judgment – where the plaintiff as executor of his father’s estate, applied to set aside the Deed of Agreement and the Bill of Mortgage by which this transaction was effected – whether the Deed of Agreement and the Bill of Mortgage should be set aside on the ground of unconscionable conduct by the defendant

EQUITY – GENERAL PRINCIPLES – UNDUE INFLUENCE AND DURESS – GENERAL PRINCIPLES – where the defendant threatened his father with bankruptcy and issued a bankruptcy notice to him in January 1999 – where in May 1999 the testator through a Deed of Agreement and a Bill of Mortgage transacted to pay $273,993.35 to the defendant from his estate and secured by a mortgage over the home unit in which he lived at Surfers Paradise – where that transaction included a component for wages and interest – whether a relationship of influence existed between the testator and the defendant – whether the will of the testator was not independent and was overborne – whether the Deed of Agreement and the Bill of Mortgage should be set aside on the ground of undue influence

EQUITY – GENERAL PRINCIPLES – UNDUE INFLUENCE – OTHER PRESUMPTIONS OF UNDUE INFLUENCE – ABSENCE OF INDEPENDENT ADVICE – where the testator had no legal advice specifically on the terms of the Deed of Agreement – where it is not clear if the defendant was aware…

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 Wittman v Wittman

Details

AGLC: Wittman v Wittman [2006] QSC 142
Case: [2006] QSC 142
Decision Date: 13 June 2006

CaseChat Overview and Summary

In the matter of Wittman v Wittman, the plaintiff, George Wittman's first son and executor of his father's estate, sought to set aside a Deed of Agreement and a Bill of Mortgage executed by George in favour of the defendant, his second son. The dispute arose from a transaction in May 1999, where George, under a perceived threat of bankruptcy from the defendant, agreed to pay him $273,993.35 from his estate, secured by a mortgage over his home unit at Surfers Paradise. The plaintiff contended that George was at a special disadvantage due to his medical condition and impaired judgment at the time of the transaction, and that the defendant's conduct was unconscionable and amounted to undue influence.

The court had to determine whether the Deed of Agreement and Bill of Mortgage should be set aside on the grounds of unconscionable conduct, undue influence, and the absence of independent advice. The court considered whether there existed a relationship of influence between George and the defendant, and if George's will was independent or overborne. Additionally, the court examined whether George sought legal advice on the terms of the Deed of Agreement and whether the defendant was aware of this absence.

The court found that George was indeed at a special disadvantage due to his medical condition and impaired judgment, and that the defendant's conduct was unconscionable. The court further found that there existed a relationship of influence between George and the defendant, and that George's will was overborne. The court also determined that George did not seek independent legal advice on the terms of the Deed of Agreement, and it was not clear if the defendant was aware of this fact. Consequently, the court ruled that the Deed of Agreement and Bill of Mortgage should be set aside on the grounds of unconscionable conduct and undue influence.

Upon payment by the plaintiff to the defendant of $69,728 together with interest at 10 per cent per annum from 23 November 1998, the Deed of Agreement and Bill of Mortgage executed by George in favour of the defendant will be set aside and the defendant will do all things reasonably necessary to effect the registration of a discharge of that mortgage.

Orders

Orders of the court

Upon payment to the defendant by the plaintiff as executor of the estate of George Wittman of $69,728 together with interest on that sum at 10 per cent per annum from 23 November 1998, the Deed of Agreement and Bill of Mortgage executed by George Wittman in favour of the defendant will be set aside and the defendant will do all things reasonably necessary to effect the registration of a discharge of that mortgage.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Wittman v Wittman [2006] QSC 142
PARTIES:	PETER WITTMAN (plaintiff) v RICHARD WITTMAN (defendant)
FILE NO/S:	BS11631 of 2003
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	13 June 2006
DELIVERED AT:	Brisbane
HEARING DATE:	22, 23 and 24 May 2006
JUDGE:	McMurdo J
ORDER:	Upon payment to the defendant by the plaintiff as executor of the estate of George Wittman of $69,728 together with interest on that sum at 10 per cent per annum from 23 November 1998, the Deed of Agreement and Bill of Mortgage executed by George Wittman in favour of the defendant will be set aside and the defendant will do all things reasonably necessary to effect the registration of a discharge of that mortgage.
CATCHWORDS:	EQUITY – GENERAL PRINCIPLES – UNCONSCIONABLE CONDUCT – GENERAL PRINCIPLES – where the testator died in 2003 – where the plaintiff is his first son and executor under his father’s last will made on 23 February 2001 – where the defendant is the testator’s second son – where the defendant issued a bankruptcy notice to his father in January 1999 and a petition was filed in April 1999, returnable in May 1999 – where in May 1999 the testator through a Deed of Agreement and a Bill of Mortgage transacted to pay $273,993.35 to the defendant from his estate and secured by a mortgage over the home unit in which he lived at Surfers Paradise – where the testator was at a special disadvantage at the time of entering the transaction because of his medical condition and impaired judgment – where the plaintiff as executor of his father’s estate, applied to set aside the Deed of Agreement and the Bill of Mortgage by which this transaction was effected – whether the Deed of Agreement and the Bill of Mortgage should be set aside on the ground of unconscionable conduct by the defendant EQUITY – GENERAL PRINCIPLES – UNDUE INFLUENCE AND DURESS – GENERAL PRINCIPLES – where the defendant threatened his father with bankruptcy and issued a bankruptcy notice to him in January 1999 – where in May 1999 the testator through a Deed of Agreement and a Bill of Mortgage transacted to pay $273,993.35 to the defendant from his estate and secured by a mortgage over the home unit in which he lived at Surfers Paradise – where that transaction included a component for wages and interest – whether a relationship of influence existed between the testator and the defendant – whether the will of the testator was not independent and was overborne – whether the Deed of Agreement and the Bill of Mortgage should be set aside on the ground of undue influence EQUITY – GENERAL PRINCIPLES – UNDUE INFLUENCE – OTHER PRESUMPTIONS OF UNDUE INFLUENCE – ABSENCE OF INDEPENDENT ADVICE – where the testator had no legal advice specifically on the terms of the Deed of Agreement – where it is not clear if the defendant was aware…