Janson v Janson

Janson v Janson - [2007] NSWSC 1344 - NSWSC 2007 case summary — Zoe

[17]

Agreement that Eric could live at 12 Rupert Street for life 9 There is an allegation by Adrian, contested in part by Robert, that the brothers agreed in 1961 to the effect that Eric could live at 12 Rupert Street for the rest of his life on the basis that he look after their mother, pay the rates and insurance and maintain the property, and, upon his death unmarried, leave his interest to Robert and Adrian. In that regard, Adrian's affidavit evidence was as follows : As my brother, Robert, and I were already married in 1961 and had our own residences and, as Eric was unmarried and was a pensioner with hearing and sight problems, we decided to allow Eric to stay with my mother at the residence. I distinctly remember a conversation which took place with Eric in Robert's presence when it was said words to the effect of: You can stay here and look after Mum and stay here for the rest of your life on the proviso that you pay for the rates, insurance and maintain the property. As you are unlikely to marry upon your death the deal would be that you leave your share to me and Robert. 10 According to Adrian, as Eric had a problem with mental illness as well as physical handicaps, Adrian considered that allowing him to live at 12 Rupert Street was the best way to make provision for him. I accept this was Adrian's perception. 11 However, Adrian has made statements and engaged in conduct which seem inconsistent with his alleged agreement insofar as he alleges that Eric (if unmarried) was obliged to leave his share of 12 Rupert Street to Adrian and Robert: (a) on 29 October 1999 Adrian wrote a letter to Robert which suggested that Adrian wished to transfer his interest to enhance his pension entitlement, which was subject to an asset test. The letter included the statement "Depending on whether Eric passed on before me, seeing that he had had a free run for 30 years, I anticipate you and I may benefit equally and I told Pension people that". The words " anticipate " and " may " suggest not an obligation on Eric but an aspiration by Adrian; (b) in an undated letter to Eric, Adrian said: "I also have to put in declaration to pension people (Dept of Social Security) showing asset of portion of 12 Rupert Street and my pension is worked out on figures I give them. I have always told them there are 3 brothers joint owners and that the 1/3rd share could become 1/2 share only if my elder brother did not live as long as the others" . The word " could " suggests not an obligation on Eric but a possibility; (c) Helen Nabainivalu (Adrian's daughter) discussed with Adrian the note that Eric wrote and gave her in 2004 (" My share is to go to you and Adrian "). She gave instructions to a solicitor to draft Eric's will naming Adrian and her as beneficiaries, and she provided the solicitor with a copy of the note. Adrian appears to have acquiesced in this, which is inconsistent with an understanding on his part that Eric was obliged to leave it to his brothers.

[57]

35 Counsel for Richard and Robert submitted that (a) Eric may not have been referring to the occasion when the transfer was signed because Ms Benson, who witnessed execution of the transfer was not from social services and the transfer was executed shortly after lunch time and not at 9pm; and (b)the social worker referred to in Eric's evidence may have been a social worker who, according to Richard, visited Eric in about 1990 when he was recovering from a medical procedure. It is possible that Eric confused Ms Benson's occupation with the occupation of the social worker who visited him long ago. If that is so, it tends to confirm the medical evidence (to which I have referred) that he suffers from cognitive impairment. He misstated the time. Whether that is attributable to sight impairment or memory impairment is unknown. Notwithstanding these points, I am satisfied that the occasion to which Eric intended to refer in his affidavit was the occasion when the transfer was executed. This conclusion is reinforced by his subsequent statements which came to be admitted into evidence, referred to below. 36 Richard's affidavit evidence as to the execution of the transfer on 27 March 2004 was short: 77. She came out to Eric's hostel on 27 March 2004. I had obtained a Transfer form from Penfolds at Parramatta. I meant to fill it in before Kate arrived but I didn't get around to it. Kate filled it out for me. 78. I remember that after I had given her the details to complete the form, I then showed it to Eric and wrote it out for him bit by bit on the whiteboard. He read out what I had written for him. 79. After I wrote out the form for Eric, Kate then said:- This is a Transfer for the property to Richard. Do you understand that? Eric said:- Yes. 80. Eric then signed the form and Kate witnessed his signature. I then signed it and Kate witnessed my signature. 81. I obtained a valuation of the land and took the Transfer to the Stamp Office. Annexed hereto and marked H is a copy of the Transfer and valuation. 82. I then went to the Lands Title Office to register the Transfer. 37 In cross-examination, it emerged that it was inaccurate to say that Richard wrote out the transfer "bit by bit" on the whiteboard, that he did not transcribe every bit of the transfer, and that what he meant to say was that he wrote out that this is a transfer of 12 Rupert Street, Merrylands. I accept that evidence. In cross-examination, Richard indicated that he wrote on the whiteboard the words that he attributed to Ms Benson in his affidavit. He explained that he did not record that in his affidavit because he could not recall it when he swore his affidavit but he recalled it now. There is no corroboration from Ms Benson that any of her words were written on the whiteboard. I am not satisfied that anything she said was written on the whiteboard.

[58]

38 Ms Benson's evidence concerning execution of the transfer was more detailed. Ms Benson's father and Robert had been friends and she occasionally visited Robert. In early January 2004, while visiting Robert, she met Richard who said Eric had to sign some documents before a JP. She offered to witness them if he let her know when. She had previously been a clerk in the Federal Court jurisdiction where she had acquired an appreciation of the significance of legal documents. On 27 March 2004 she travelled with Richard to see Eric. Richard told her he wanted her to witness Eric's transfer of his share of 12 Rupert Street to Richard. Richard introduced her to Eric. While Richard was looking through papers he had brought with him, Eric said: "Rick looks after Rupert Street for me - feeds the chooks and pays my bills". She saw that one of the documents Richard had was a power of attorney, which Eric signed. 39 She noticed that the transfer produced by Richard was blank. She advised him to complete it before Eric signed it. She said that if he would read out the details she would write them on the form. That occurred. In her affidavit she said that Richard then proceeded to read the transfer in a louder voice than normal and, using a large black texta and a whiteboard, wrote down "some passages on [sic] the Transfer". In cross-examination, she conceded that from her position in the room she could not see what Richard appeared to write except for the words "transfer for Rupert Street" and some other words which she cannot recall. Eric used a large rectangular magnifier to read these words (Richard also referred in his affidavit to Eric's use of a magnifier at the Cardinal Gilroy Village). He repeated some of Richard's words. It seemed to her that Eric was thereby demonstrating that he had understood what he had just been told and read. 40 Although she had been told Eric was hard of hearing, Ms Benson says that she was satisfied he heard and understood her comments. She says that in the conversation he asked her to speak up as he had been hard of hearing since his younger days. She did not attempt to use the whiteboard. She witnessed his signature and that of Richard on the transfer. While Richard was signing she remembers Eric saying: "I've only got a third share. My brothers Bobby and Adrian own the others. You have no idea! That Adrian is a ratbag - he's never paid a penny to me for the rates he owes me for years. He never comes near me. Bobby looked after me and then Rick here looks after my bills".

[67]

53 Following Eric's discharge from Westmead Hospital in late 2003, Adrian and his daughter, Helen Nabainivalu, made unsuccessful enquiries as to Eric's whereabouts. However, they made no enquiries of Richard or Robert. In mid September 2004 Helen discovered that he was at Cardinal Gilroy Village and visited him there on 19 September. She communicated with him on that and other occasions by writing in large letters on a whiteboard. I accept her following affidavit evidence: 17. On 19 September 2004, I went to visit Uncle Eric. It was a very emotional meeting at which we both cried. After talking about how I had found him after almost 12 months of searching, we came to talk about my cousin Richard: a. He said: Richard has dumped me here and has not been looking after me as he was supposed to do. He hasn't been visiting me either. I am very worried that my bills have not been paid. Can you Helen, go to the council, electricity and other providers and pay the various rates and bills? b. I said: You don't have to worry about the rates because you no longer own your share of the property and are not responsible for the rates. I said this because I believed that my father Adrian had received a Council Rates Notice with Richard's name on it and Eric's name missing. c. He said: How could Richard own my property? I have lived there for nearly 90 years! d. I said: Richard's name is on the latest rates notice, and your name is not on the rates notice. e. He said: I refused Richard permission to go to the Lands Department. I did not allow a transfer. I don't want Richard to have the property. f. He said: One evening when it was quite late, around 9 pm, Richard and a woman, whom Richard said was from Social Security, came in with a pile of papers for me to sign. They told me it was for the office at Gilroy Village. They got me out of bed and I just signed what they told me to sign. I couldn't read the papers but I signed. I trusted him. g. I explained, You have signed over your share of the property to Richard. h. Uncle Eric said: Richard has done something he shouldn't. Richard does not own my property. There's a lot of dirty work. Richard is telling a pack of lies. Put his solicitor in too, who Richard took me to see a few years ago to make out a Will in Richard's favour in return for Richard looking after me. Tell Richard I want my paperwork. Richard had better not show his face here. No-one gave Richard permission to take my property. i. Uncle Eric yelled: How can Richard own it? He cried, It is my home, I have lived there for 90 years and I was allowed to stay there until I died. He said, Am I living here for good? j. He said: Richard won't even bring in my big clock so I can see the time. I wanted him to bring my photograph album, but he wouldn't. He has been burning my mail. Please, Helen, get the police. 18. During this conversation, Uncle Eric appeared to be very angry and very upset. At times he was in tears. …

[74]

58 On 1 November 2004, Helen and Eric attended on the solicitor, Ms MacKinnon. Before the conference the solicitor had drafted a will for Eric naming Adrian and Helen as the beneficiaries, apparently in accordance with Helen's prior instructions to the solicitor. However, at the conference Eric's instructions to the solicitor were to make Helen the sole beneficiary and executor of his will. At the conference Eric executed three documents: a will leaving everything to Helen and appointing her as his sole executor; a revocation of the earlier general power of attorney in favour of Richard; and a general enduring power of attorney in favour of Helen. Eric was anxious and very cautious about signing the documents. Helen did not mention in her affidavit evidence that Eric had executed a will in her favour. Richard did not know of that will until September 2006. 59 The solicitor's file note of the conference records that Eric was unable to hear anything the solicitor said, had very poor vision and that instructions were obtained by the solicitor directing Helen to write on a whiteboard. Eric read the words out aloud and then gave verbal instructions. The file note records Eric referring to the will he made in Richard's favour and complaining in that context that Richard had to come two days a week to look after him but would go away five or six weeks so that Eric had to get someone else to do the shopping, and that if Richard painted the house and mowed the lawns he should get some money on his death. Helen testified, and I accept, that Eric made statements to the following effect during the conference: a. My nephew, Richard, was supposed to look after me and the house, doing painting and lawn mowing and general repairs, but he has not done any of this. b. I have not transferred my property knowingly to my nephew Richard. The house is still my house as I have a life tenancy. c. One night at about 9.00pm, my nephew brought a woman from Social Services to my room. They told me to get out of bed and sign a pile of papers. I wondered why a Social Services employee would come so late. Anyway, they got me to sign a pile of papers. I didn't know what they were because I can't read. I was told they were something for the office at Gilroy Village. d. I have been robbed while I am still alive, and they didn't even give me my bootlaces. e. I do not want Richard to have my property and I do not want to leave it to him, because he has stolen it while I am still alive. f. Richard's father, Robert, did a similar thing thirty years ago with our aunt's will.

[94]

He replied a long while ago . He went on to say he has been in hospital and had not been well but he is all right now. He mentioned perhaps 3 years ago. 66 In September 2005, Helen commenced these proceedings as Eric's tutor. On 15 November 2005 the Guardianship Tribunal ordered that Eric's estate be subject to management under the provisions of the Protected Estates Act 1983 and that management of his estate be committed to the Protective Commissioner. The Protective Commissioner's consent to be Eric's tutor, dated 2 December 2005, has been filed. An order has been made by the Court that Helen be removed as Eric's tutor and that the Protective Commissioner be appointed as his tutor with effect from 2 December 2005. 67 Eric's friend Mr Small, who died before trial, swore an affidavit on 15 June 2006 prepared by the solicitors for Richard and Robert which was read in their case, as follows:

I am 87 years of age and have resided at the Cardinal Gilroy Village since about January 2003.
I have known Eric Janson for 80 years. I went to school with him and his two brothers Adrian and Robert at Merrylands Public School situated at Fowler Road, Merrylands.
I would see Eric, who is known to me as "Fatty", from time to time over the years as we have both lived in the Merrylands area.
By chance, I bumped into Eric three or four days after he was first admitted to the hostel.
I saw him every day when I was in the old building where we both resided at Cardinal Gilroy Villages and used to talk to him by way of writing on a board twice a week or more. This continued up to last Christmas 2005. I was then moved to a different building and due to my difficulties in walking, I cannot get to the old building very often. I only see him occasionally now. I saw him last week having tea.
When he [sic] spoke together, it was usually about teachers and old mutual friends, many of whom have passed away.
I first met Richard Janson when Eric first came to the hostel.
Richard comes to see Eric regularly. When I was in the same building with Eric, I would see Richard at lease [sic] once a week. Richard still comes to visit me regularly in my new room in the hostel. On one occasion Richard said to me: - I have been barred from visiting Eric. I got a letter from some solicitors saying I shouldn't see him.
During some of my conversations with Eric, I recall Eric saying to me on several occasions, in words to the following effect:- I have handed the land over to Richard in view of what he has done for me and on the condition that he sees me once every two weeks. Richard had a female JP with him.
On other occasions, Eric said, in effect:- Richard had done all the work.
From my conversations with Eric, I gained the impression that Eric regarded Richard as "Number 1".
I also gained the impression that everything about Eric was OK and peaceful until Helen and her daughter first came to visit Eric.
I have seen Helen visit Eric about 12 times and Helen has come to visit me and I am on good terms with her. If [sic] have also met Adrian 4 or 5 times with Helen.
Eric, in the course [of] our conversations, has told me:- Richard has sold all my chooks. He shouldn't have.
Eric has constantly complained, in words to the effect:- Adrian has never paid the rates. And:- I was cheated out my grandfather's and auntie's will. 68 In reply, the plaintiff tendered the following letter dated 16 October 2005 from Mr Small to the Guardianship Tribunal which was admitted into evidence pursuant to s 108A of the Evidence Act 1995: I have known Eric Janson for over eighty years, having grown up as boys together in Merrylands. I also have known Adrian and Bobby all my life. Eric and I are now both residents of John Woodward Apartments, Gilroy Village.

[97]

I have seen and heard Bobby and Richard arguing with Eric at the Hostel. Because of his disabilities, Eric is lonely and vulnerable and he needs to be looked after by someone he can trust. This is why I am supporting Helen's application to be his financial manager. 69 The impression created by Mr Small's letter is very different from that created by his affidavit. As Mr Small's statements could not be tested by cross-examination, I am disinclined to attach weight to them one way or the other. Resentments 70 Apart from the transfer issue, there are resentments among Eric and his relatives over various issues, which are mostly unnecessary to determine. Eric has made complaints about Richard not doing more for him. Eric and Robert resent that Adrian has not contributed to rates and other bills in relation to 12 Rupert Street, but Adrian says they are Eric's responsibility. Robert resents that Adrian and Eric have not paid him for the cost of obtaining their title deeds when the property was acquired and which he kept in his possession. Robert has been suspicious since, or in, the late 1990s that Adrian intended to transfer his interest and thereby stop Eric from continuing to live at 12 Rupert Street, contrary to an agreement between the brothers. There was a falling out between the brothers some years ago over their Aunt Zola's will. Helen thinks that Richard is responsible for Eric not receiving mail from her and Adrian. Helen thought at one time that Richard obtained the transfer through criminal misconduct and complained to the police. Richard feels that the transfer is fair compensation for everything he has done for Eric over the years and that Helen has made unjustified complaints and unfairly fuelled hostility by Eric towards him. LEGAL PRINCIPLES 71 Undue influence cases fall into two classes. First, cases where undue influence will be presumed from a relationship, thus throwing the burden of rebutting the presumption upon the party benefiting from the transaction. Secondly, cases where undue influence must be affirmatively proved. The first class is invoked in the present case. Its reversal of the onus of proof is of practical importance in many cases, such as the present, where the circumstances in which the transaction occurred are peculiarly within the knowledge of the recipient and the donor is under a disability. 72 There are two categories of presumed undue influence. First, certain types of relationships per se give rise to the presumption, without any need to prove more. They include solicitor and client, physician and patient, parent and child, guardian and ward, and religious advisers and their adherents: Louth v Diprose (1992) 175 CLR 621 at 628; Johnson v Buttress (1936) 56 CLR 113 at 119, 134 ; Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VR 573 at 577. There is authority that the presumption arises between express trustee and beneficiary (eg Johnson v Buttress at 119, 143 per Latham CJ and McTiernan JJ), but it has been argued that this requires qualification: Meagher Gummow and Lehane's Equity Doctrines and Remedies (4th ed) at [15-095]. The second category of presumed undue influence is where it is proved that the party benefiting from the transaction occupies or assumes towards another a position naturally involving an ascendancy or influence over that other, or a dependency or trust on the latter's part: Johnson v Buttress at 134-135 per Dixon J.

[98]

73 In Johnson v Buttress the donor was 67, widowed, unable to read or write, unintelligent and on close terms with the defendant, the niece of his late wife's stepsister on whom he relied for advice and company. He transferred to her without value the house in which he lived, virtually his only asset. The transfer was prepared by the managing clerk of the defendant's solicitor. The defendant accompanied the plaintiff to the solicitor's office and was present at the interview with the managing clerk. The trial judge accepted the evidence of the managing clerk which showed that the deceased understood at the time that he was dealing with his property and that he was parting with his property. But nothing was said to direct his attention to the fact that he was in effect denuding himself of the whole of his property without obtaining any equivalent, and it was not suggested that the advice he received in the office of the defendant's solicitor was independent advice (at 121). The High Court held that a presumption of undue influence arose which the defendant had failed to rebut. The basis of equity's intervention on the ground of undue influence was comprehensively explained in the classic judgment of Dixon J at 134-135, which included the following: This burden is imposed upon one of the parties to certain well-known relations as soon as it appears that the relation existed and that he has obtained a substantial benefit from the other. A solicitor must thus justify the receipt of such a benefit from his client, a physician from his patient, a parent from his child, a guardian from his ward, and a man from the woman he has engaged to marry. The facts which must be proved in order to satisfy the court that the donor was freed from influence are, perhaps, not always the same in these different relationships, for the influence which grows out of them varies in kind and degree. But while in these and perhaps one or two other relationships their very nature imports influence, the doctrine which throws upon the recipient the burden of justifying the transaction is confined to no fixed category. It rests upon a principle. It applies whenever one party occupies or assumes towards another a position naturally involving an ascendancy or influence over that other, or a dependence or trust on his part. One occupying such a position falls under a duty in which fiduciary characteristics may be seen. It is his duty to use his position of influence in the interest of no one but the man who is governed by his judgment, gives him his dependence and entrusts him with his welfare. When he takes from that man a substantial gift of property, it is incumbent upon him to show that it cannot be ascribed to the inequality between them which must arise from his special position. He may be taken to possess a peculiar knowledge not only of the disposition itself but of the circumstances which should affect its validity; he has chosen to accept a benefit which may well proceed from an abuse of the authority conceded to him, or the confidence reposed in him; and the relations between him and the donor are so close as to make it difficult to disentangle the inducements which led to the transaction. These considerations combine with reasons of policy to supply a firm foundation for the presumption against a voluntary disposition in his favour. 74 Latham CJ said at 119-120: The jurisdiction of a court of equity to set aside gifts inter vivos which have been procured by undue influence is exercised where undue influence is proved as a fact, or where, undue influence being presumed from the relations existing between the parties, the presumption has not been rebutted. Where certain special relations exist undue influence is presumed in the case of such gifts. These relations include those of parent and child, guardian and ward, trustee and cestui que trust, solicitor and client, physician and patient and cases of religious influence. The relations mentioned, however, do not constitute an exhaustive list of the cases in which undue influence will be presumed from personal relations. Wherever the relation between donor and donee is such that the latter is in a position to exercise dominion over the former by reason of the trust and confidence reposed in the latter, the presumption of undue influence is raised ( Dent v. Bennet [(1839) 4 My. & Cr. 269; 41 E.R. 195] ; see also Smith v. Kay [(1859) 7 H.L.C. 750; 11 E.R. 299].

[100]

77 Sir Frederick Jordan in his Chapters on Equity in New South Wales, (6th ed, 1947) p 138 wrote that the relationship of principal and agent is not per se one of influence, citing In Re Coomber. The relation of "confidential agent and his principal" was listed as one of the relationships of presumed influence by Salmond J in Brusewitz v Brown [1923] NZLR 1106 at 1110. Meagher, Gummow and Lehanes's Equity Doctrines and Remedies (4th ed, 2002) at [15-100] consider in this context that "[w]hether an agent-principal relationship is one of influence as well as fiduciary will depend upon the particular case" (citing Moxon v Payne (1873) LR 8 Ch App 881 which, however, was a case where a sale was set aside for fraud of the "gravest character"). 78 If the parties are not on equal terms, that is a relevant consideration when determining whether the presumption of undue influence arises. In Brusewitz v Brown [1923] NZLR 1106 at 1110 Salmond J addressed the rule concerning a presumption of undue influence as follows: The rule is illustrated by transactions between a trustee and his beneficiary, between a solicitor and his client, between a medical man and his patient, between a parent or person in loco parentis and a child who has recently attained his majority, between a guardian and a recently emancipated ward, between a confidential agent and his principal, between a priest and a person under his spiritual influence or domination, between a nun and her religious superior. The generality of the rule, however, and the fact that it is not limited to any closed list of recognized legal relationships, are best shown by the fact that it applies even to a case where the suspected relationship is merely that between a poor and ignorant grantor and a grantee of means and education. Thus in Baker v Monk (4 DeG J & S 388) a transaction was on this principle set aside whereby an old woman in a humble station of life sold to a substantial tradesman a small freehold in consideration of an inadequate annuity. Knight Bruce, L J., says: The question is whether - to repeat an expression used in several cases - the parties to the transaction were on equal terms. The purchaser was a substantial tradesman. The vendor was a single woman in humble life, of slender education, between sixty and seventy years of age, unprotected and unaided After some little chaffering, as I have said, she consented to accept this weekly payment during her life as the purchase money of the fee-simple. This transaction takes place between this gentleman and this poor woman without the intervention on her part of any other person. …The purchaser and vendor were in such relative positions as that, according to the known established doctrine of this Court, it lies on the purchaser to show affirmatively that the price he has given is the value. 79 The weight and nature of the burden of proof of rebuttal of the presumption was expressed strongly by Isaacs J in Watkins v Combes (1922) 30 CLR 180 at 193 - 194, citing with approval a passage in the judgment of the Privy Council in Poosathurdi v Kanappa Chettiar (1919) LR 47 IA.,1; which included the following: "the person in a position to use his dominating power has the burden thrown upon him, and it is a heavy burden, of establishing affirmatively that no domination was practised so as to bring about the transaction, but that the grantor of the deed was scrupulously kept separately advised in the independence of a free agent".

[104]

84 Evidence of subsequent statements by a donor are admissible for the purpose of showing the degree of mental capacity which he possessed: Johnson v Buttress at 122 per Latham CJ. 85 In Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 461 Mason J distinguished between the doctrine of undue influence and unconscionable conduct in the narrow sense, as follows: Historically, courts have exercised jurisdiction to set aside contracts and other dealings on a variety of equitable grounds. They include fraud, misrepresentation, breach of fiduciary duty, undue influence and unconscionable conduct. In one sense they all constitute species of unconscionable conduct on the part of a party who stands to receive a benefit under a transaction which, in the eye of equity, cannot be enforced because to do so would be inconsistent with equity and good conscience. But relief on the ground of unconscionable conduct is usually taken to refer to the class of case in which a party makes unconscientious use of his superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage, e.g., a catching bargain with an expectant heir or an unfair contract made by taking advantage of a person who is seriously affected by intoxicating drink. Although unconscionable conduct in this narrow sense bears some resemblance to the doctrine of undue influence, there is a difference between the two. In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position. 86 This distinction between undue influence and unconscionable conduct in the narrow sense was explained by Deane J in Commercial Bank of Australia v Amadio (at 474) as follows: Undue influence, like common law duress, looks to the quality of the consent or assent of the weaker party… Unconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so. 87 The similarities and differences between the two doctrines was noted in Turner v Windever [2003] NSWSC 1147 at [128]-[131] by Austin J: 128 It is well established that the equitable principles relating to unconscionable dealing and undue influence are closely related: Commercial Bank of Australia v Amadio, at 474 per Deane J. Recently it has been suggested that the time may be right for the acceptance and development by the common law of a unified doctrine of unconscionability: Capper D , 'Undue Influence and Unconscionability: A Rationalisation' (1998) 114 LQR 479, 504. But in Australia the conceptual division between the two equitable doctrines has so far been maintained.

[107]

I have referred to the defendant's evidence that the proposal to make the gift first came from the father. The learned Judge did not believe him. Even if we suppose that it did, it does not make any difference. 89 An analogous case to the present, in some respects, where a transfer was set aside for undue influence is Stivactas v Michaletos (No 2) (1993) NSW ConvR 55-683 (NSWCA). There the plaintiff, an elderly Greek lady, widowed and childless and with limited understanding of English, entered a nursing home following hospitalisation. Her nephew, the defendant, had been very close to her and a confidante about her marriage and financial affairs and had helped her in various ways. He was a constant visitor when the plaintiff was in hospital. She decided that she wished to give him her two properties and badgered him into making the necessary arrangements. The defendant consulted a solicitor who recommended that the plaintiff receive independent legal advice and made arrangements for another solicitor to attend on the plaintiff. That solicitor attended on the plaintiff and, in the solicitor's presence, the plaintiff executed a power of attorney and transfers of the properties in favour of the defendant. That solicitor was unable to recall what advice, if any, he gave the plaintiff before she executed the transfers. The plaintiff's other relatives knew of the power of attorney but not of the transfers. Waddell CJ in Eq held that the transfers were void on the ground of undue influence and ordered the nephew to re-transfer the property. An appeal by the defendant was dismissed. Set out above at [83] is a portion of the judgment of Kirby P as to why the legal advice provided was not adequate. Kirby P also held at 59,903: …the categories of relationship giving rise to a presumption of undue influence are not closed… I have much sympathy for the opinion that the categories expressed in earlier cases are simply illustrations of evidentiary or forensic circumstances in which the relationships of the parties, as proved, call for proof from the recipient of benefits that those benefits have been lawfully and properly received…courts of trial must look not to categories as such but to the nature of the relationship between the parties…the provision of independent advice is certainly an important ingredient in rebutting a presumption of undue influence although it is not essential. 90 Mahoney JA held at 59,904: The principle upon which equity intervenes to set aside transactions of the present kind is a broad principle of which cases of undue influence are only a species. Ordinarily, the vice in cases of undue influence lies in the fact that the defendant, by his influence, has brought about a transaction which is unacceptable because it is, in the accepted sense, inequitable, unconscionable or the like: see Commercial Bank of Australia Ltd v Amadio & Anor (1982-1983) 151 CLR 447 at 461. Here the situation arose essentially as the result of the desires and acts of the plaintiff herself and not those of the defendant. It is necessary to determine whether such a case attracts equitable intervention. (In putting the matter in this way, I am conscious that I am stating the matter at its best in favour of the defendant. Of course, the defendant did not merely stand by. He took steps to cause the plaintiff's wishes to have effect: he engaged solicitors and they effected the transfers for her and for him. And he did this knowing what he did of the plaintiff's condition. But there is a difference between the two kinds of cases.)

[109]

[counsel for the appellant] submitted that, since the equitable remedy depended upon a special relationship set up by the actual reposing of confidence, it was necessary to see the extent and nature of the confidence reposed and whether it involved any ascendancy over the will of the person supposedly dependent on the confidence. The argument was derived from the language of Dixon CJ and McTiernan and Kitto JJ in Jenyns v Public Curator (Q) (1952-1953) 90 CLR 113 at 133. I do not read this language as meaning other than that, to quote from the judgment of Dixon J in Johnson v Buttress at 134-135, the situation must be one where one party occupies or assumes towards another a position naturally involving an ascendancy or influence over that other, or a dependence or trust on his part . Their Honours were not restating the well-established basis for equity's intervention which had been comprehensively explained by Dixon J in Johnson v Buttress . The English Court of Appeal in Goldsworthy v Brickell (1987) Ch 378, particularly per Nourse LJ at 404 and following, has rejected the proposition that it is necessary to show that the relationship is one of domination by the donee of the donor. Proof of actual ascendancy or domination is compelling but not essential. A position of dependence or trust enabling the donee to influence the donor is enough to require the donee to demonstrate that the gift is not the consequence. 92 A presumption of undue influence was found in Trevenar v Ussfeller [2005] NSWSC 582, which is analogous in some respects to the present case. There the plaintiff was an 83 year old woman who was ill with heart disease and could not drive. The defendant was her close friend and confidante who lived across the road and provided the plaintiff with means of transport. The defendant held the plaintiff's enduring power of attorney and was the sole beneficiary and executor under the plaintiff's will. The defendant wrote large cheques on the plaintiff's bank account, which the plaintiff signed, in favour of the defendant and the defendant's husband and father. Gzell J set aside the gifts for undue influence. Of significance is his Honour's judgment that concessions were properly made on behalf of the defendant that there was a special relationship of confidence between the parties such as to give rise to a presumption of undue influence: at [47] - [48]. His Honour held that it did not matter whether the plaintiff was the moving party in the transaction (citing Stivactas); and took into account that no-one acted in the plaintiff's interest and no consideration was given to her being independently advised by a solicitor or accountant: at [52]. 93 Comparison may be made with the burden of proof and presumptions in undue influence cases under English law as propounded in Royal Bank of Scotland plc v Etridge (No 2) [2002] 2 AC 773 at 796 [13] - [14] and [18] by Lord Nicholls, in whose speech all the members of the House of Lords concurred: [13] Whether a transaction was brought about by the exercise of undue influence is a question of fact. Here, as elsewhere, the general principle is that he who asserts a wrong has been committed must prove it. The burden of proving an allegation of undue influence rests upon the person who claims to have been wronged. This is the general rule. The evidence required to discharge the burden of proof depends on the nature of the alleged undue influence, the personality of the parties, their relationship, the extent to which the transaction cannot readily be accounted for by the ordinary motives of ordinary persons in that relationship, and all the circumstances of the case.

[112]

The proposition in this last passage that the law presumes "irrebuttably" that one party had influence over the other in certain types of relationships does not represent the law in Australia: Hillston v Bar-Mordecai (above) at [48]. SUBMISSIONS 94 In summary, the plaintiff, supported by Adrian, submitted: (a) there is a presumption of undue influence because Richard owed Eric a fiduciary duty arising from the power of attorney: Watson v Watson , Law Society of New South Wales v Walsh (above), and the transaction was not in Eric's best interest; (b) alternatively, there is a presumption of undue influence arising from the special relationship between Eric and Richard: Johnson v Buttress (above); Stivactas v Michaletos (above). 95 In summary, Richard and Robert submitted that: (a) no presumption of undue influence arises from the relationship of uncle and nephew, nor from the general power of attorney given by Eric to Richard particularly given the striking out of the enduring clause whereby it would have applied in the case of mental incapacity. No relationship giving rise to the presumption has been proved; (b) the dependence of Eric on Richard was limited to physical care and assistance. There is no evidence of any emotional dependence by Eric on Richard or influence by Richard in Eric's life. Richard was at the beck and call of Eric who was his own man; (c) the Court should not be satisfied that the incident of signing of documents referred to by Eric in the police interview was the signing of the transfer. It could refer to an event in 1990 when someone from social services visited Eric. (I have addressed this submission above at [35]). The trust mentioned in the police interview by Eric relates to trust in being told the correct information, in particular, being given the correct document to sign and not substituting another pretending it to be the document described; (d) a transfer and gift to Richard were within the mind of the plaintiff since the 1988 will and there is no evidence that that intention was revoked prior to the transfer; (e) Eric's power of attorney to Richard was given to facilitate the operation of Eric's bank account following his admission to Westmead Hospital in 2003. Eric's welfare was settled prior to the transfer being signed. There are no claims on Eric's estate. Eric's emotional or psychological attachment to the property is not broken because the property remains within the control of the family. Eric is not going back to live at 12 Rupert Street because it is no longer suitable for him and he has found a suitable place to live. He probably still wishes to visit the place, which he can still do; (f) 12 Rupert Street had become a financial burden for Eric. The old age facility takes 85 percent of his pension. There is no benefit in him getting the property back (except that he might want to give it to somebody else). 96 One of Eric's alternative prayers for relief is that Eric has a life tenancy in 12 Rupert Street. However, counsel for Eric expressly declined to make any submission in support of such a finding and no other party submitted that such a finding should be made. DECISION 97 The issues are: (a) whether a presumption of undue influence by Richard arises in Eric's favour either because of the nature of their agent-principal relationship under the general power of attorney from Eric to Richard; or, alternatively, because of the position of influence by Richard over Eric or the dependence or trust on Eric's part; and (b) if so, whether Richard has failed to rebut the presumption. 98 It is unnecessary to decide whether the relationship arising under the general power of attorney from Eric to Richard was a presumptive relationship, of itself and without more, because there is more. 99 Applying the principles and authorities to which reference has been made, in my opinion, the case falls within the second category of presumed undue influence. That is, Eric had a dependence or trust on Richard or Richard was in a position of influence over Eric.

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