Wittman v Wittman

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.