Liu v Adamson

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

3376/2000 Adelene Mary Liu v Christopher Michael Adamson JUDGMENT 1 Master: The plaintiff brings these proceedings to set aside a costs agreement and a mortgage that she entered into with the first defendant. One of the other parties to the costs agreement and mortgage was her de facto partner, Peter James Miller. The plaintiff's claim is based upon the principles in Garcia v National Australia Bank Ltd (1998) 194 CLR 395, the fiduciary arrangement between her and the defendant and also upon the Contracts Review Act (1980) NSW. She did not seek to pursue her claim in the statement of claim that the costs agreement was contrary to the Legal Profession Act 1987. The matter came before me when I was an Acting Judge and I have continued to deal with it under s 37(3A) of the Supreme Court Act. Background history. 2 The plaintiff was born in Rabaul New Guinea. She worked as a bookkeeper for Hong Kong Island Shipping for some three years before she commenced a de facto relationship with her partner Mr Miller in 1984. That relationship has continued to the present day and they have five children aged between 7 and 15 years. For many years Mr Miller was employed in the information technology industry. In late 1997 or early 1998 he changed his occupation and became involved in a restaurant and nightclub business in Darlinghurst. 3 In the early part of 1998 Mr Miller changed his solicitor and engaged Mr Adamson the first defendant as his solicitor. Mr Adamson trades under the name of Paclaw Court Lawyers and that firm is named as the second defendant. In the first half of 1998 Mr Miller the plaintiff and a number of companies involved in the restaurant business entered into a costs agreement with the first defendant. That agreement was dated 13 March 1998 although there is some dispute on the evidence as to precisely when it was executed. According to Mr Miller the first defendant back-dated the agreement. 4 The costs agreement contained a guarantee by Mr Miller and the plaintiff of the liabilities of various companies to the first defendant for costs which they might incur with him. The costs agreement also contained provisions for the granting of security by the plaintiff and Mr Miller over their home at 45 Eton Road Lindfield in order to secure the guarantee that they gave under the costs agreement. 5 At the end of December 1998 there were discussions between Mr Miller and Mr Adamson about the execution of the mortgage pursuant to the costs agreement. It is apparent that Mr Adamson had been engaged on matters to do with the various companies involved in the restaurant and nightclub businesses throughout the year and indeed had been paid a retainer on account of costs amounting to $5,000 per month. 6 A mortgage was executed by the plaintiff and Mr Miller in December 1998. It was re-executed shortly thereafter as it was not properly witnessed and it was stamped in January 1999. Later that month it was registered and on the 22nd February 2000 Mr Miller entered into voluntary bankruptcy. 7 In due course Mr Miller's trustee in bankruptcy arranged the sale of the property. The sale was completed in late July or early August 2000 and very substantial secured creditors were paid out from the proceeds. In addition payment was made in respect of the amount claimed by Mr Adamson under his mortgage in the sum of $178,000. As there was no objection from the trustee in Mr Miller's bankruptcy one half of this amount was paid to Mr Adamson and the other half retained in a trust account pending the resolution of the present dispute. 8 The plaintiff admits signing the costs agreement although she cannot recall the circumstances in which it was executed. She also says that she executed the mortgage but that it was not explained to her at the time of execution. She found out several days later when she asked her partner what she had signed and he said that it was a mortgage. 9 There is a substantial dispute between the parties as to the circumstances surrounding the execution of both the costs agreement and the mortgage. The legal basis of the plaintiff's claims 10 After the first days hearing the plaintiff amended the claim to include a claim under the Contracts Review Act. I will deal with each claim in turn. The claim under unconscionability principles 11 In Yerkey v Jones (1940) 63 CLR 649 at 684 to 686 Dixon J distinguished between situations where there had been an actual exercise of undue influence during which the wife does understand what she is doing and those where the wife does not understand the effect of the document or the nature of the transaction. It was in respect of the second of these principles that the plaintiff seeks to proceed. 12 In the decision of the majority in Garcia v National Australia Bank Ltd (1998) 194 CLR 395 the relevant circumstances to be considered were stated in the following terms at 408: "It holds further, in the second kind of case, that to enforce it against her if it later emerges that she did not understand the purport and effect of the transaction of suretyship would be unconscionable (even though she is a willing party to it) if the lender took no steps itself to explain its purport and effect to her or did not reasonably believe that its purport and effect had been explained to her by a competent, independent and disinterested stranger. And what makes it unconscionable to enforce it in the second kind of case is the combination of circumstances that: (a) in fact the surety did not understand the purport and effect of the transaction; (b) the transaction was voluntary (in the sense that the surety obtained no gain from the contract the performance of which was guaranteed); (c) the lender is to be taken to have understood that, as a wife, the surety may repose trust and confidence in her husband in matters of business and therefore to have understood that the husband may not fully and accurately explain the purport and effect of the transaction to his wife; and yet (d) the lender did not itself take steps to explain the transaction to the wife or find out that a stranger had explained it to her." 13 There is a fundamental difficulty which presents itself with the plaintiff's claim in reliance upon these principles. That is that the relationship between the plaintiff and Mr Miller was not that of husband and wife. They were de facto partners having been in the relationship for some 18 years and having five children as a result of the relationship. 14 It was made abundantly clear in Garcia that the decision was only in respect of persons in a relationship of husband and wife in a situation where the wife had been prevailed upon to give a guarantee. In State Bank of New South Wales v Hibbert and Groom v Hibbert (2000) NSW SC 628 Bryson J held that the principles should not be extended to where the parties lived in a de facto relationship. His conclusions on the matter appear in paragraphs 58 to 60 of his judgment in the following terms: 58 The question whether a proposed guarantor is the wife of a proposed borrower is readily ascertainable; people usually behave responsibly in handling information like that. Their Honours in Garcia contemplated at 404 para [22] the possibility that the principles applied in Yerkey v. Jones would find application to other relationships, observed that that was not a question which fell for decision and said "The resolution of questions arising in the context of other relationships may well require consideration of other issues. Thus to take one example, if cohabitation is taken as a criterion, what should a lender know or seek to find out about the nature of the relationship between the parties? But those issues did not arise and were not debated on the hearing of this appeal."

59 At 442, para 109 Callinan J was unwilling to extend exceptional rules formerly applicable to guarantees by wives to co-habitees . On the other hand Kirby J was prepared to adopt a modified O'Brien principle which would apply to cases where there is a relationship of emotional dependence between the debtor and the person conferring the advantage; see p 433, para 78.

60 Extension of the principles acted on in Garcia from wives to all married persons, or to all women, or all persons who are living in de facto relationships, or all persons who share domestic relationships without consideration in detail of the circumstances of those relationships does not appear to me to be a development which the law can realistically be expected to take. The only extension which seriously falls for consideration if persons other than wives are to be protected appears to me to be an extension of the kind addressed by Kirby J and acted on by the House of Lords in O'Brien, that is, to all cases where one co-habitee stands surety for the co-habitee's debts and the creditor is aware that there is an emotional relationship between the co-habitees, and to other relationships where the creditor is aware that the surety reposes trust and confidence in the principal debtor. As a matter of judicial authority there has been no such extension." 15 It is necessary to consider the matter of principle to see whether there should be an extension in the circumstances of this case. At the time of drawing the costs agreement Mr Adamson was aware that the plaintiff was Mr Miller's de facto partner. He met her at her home when she signed the costs agreement. Over the period between the signing of the costs agreement and the execution of the mortgage Mr Adamson became aware of the domestic situation of the plaintiff and Mr Miller. Clause 2 of the costs agreement allowed Mr Adamson to receive instructions from the plaintiff through Mr Miller. The evidence of Mr Miller, which I accept on this aspect, was that he frequently gave instructions on her behalf to Mr Adamson without consulting her. To use his words, he felt he had "general authority" from her. It is apparent from the evidence and the cross-examination by Mr Adamson that he rarely ever checked such instructions with the plaintiff. I am satisfied that, by the time of execution of the mortgage, Mr Adamson was well aware that the plaintiff was aware of the emotional dependence by the plaintiff upon Mr Miller. At the time of execution of the costs agreement he knew sufficient to put himself on notice that she may well be emotionally dependent upon Mr Miller. 16 I return to the question of principle. In Garcia at page 404 the majority of the High Court commented on whether the principles with which they were dealing might extent to long term and publicly declared relationships, short of marriage, between members of the same or of the opposite sex. They said at paragraph 22 the following:- It may be that the principles applied in Yerkey v Jones will find application to other relationships more common now than was the case in 1939 - to long term and publicly declared relationships short of marriage between members of the same or of opposite sex - but that is not a question that falls for decision in this case. It may be that those principles will find application where the husband acts as surety for the wife but again that is not a problem that falls for decision here. This case concerns a husband and wife and it is to that relationship that the present decision relates, just as it is concerned only with the circumstance of the wife acting as surety for her husband. The resolution of questions arising in the context of other relationships may well require consideration of other issues. Thus to take one example, if cohabitation is taken as a criterion, what should a lender know or seek to find out about the nature of the relationship between the parties? But those issues did not arise and were not debated on the hearing of this appeal. 17 The majority clearly had left open the question of whether the principles can be extended to different categories. The majority rejected the conclusion of the Court of Appeal that the rule in Yerkey v Jones was not in fact a binding decision of the High Court and, in any event, had been subsumed in the general principles which were applied by the High Court in The Commerckial Bank of Australia Ltd v Amadio (1982 151 CLR 447. The majority identified the rationale and indeed the principle lying behind the rule in Yerkey v Jones in these terms:- To hold, as Yerkey v Jones did, that in those circumstances the enforcement of the guarantee would be unconscionable represents no departure from accepted principle. Rather, it "conforms to the fundamental principle according to which equity acts, namely that a party having a legal right shall not be permitted to exercise it in such a way that the exercise amounts to unconscionable conduct" It will be seen that the analysis of the second kind of case identified in Yerkey v Jones is not one which depends upon any presumption of undue influence by the husband over the wife. As we have said, undue influence is dealt with separately and differently. Nor does the analysis depend upon identifying the husband as acting as agent for the creditor in procuring the wife's agreement to the transaction. Rather, it depends upon the surety being a volunteer and mistaken about the purport and effect of the transaction, and the creditor being taken to have appreciated that because of the trust and confidence between surety and debtor the surety may well receive from the debtor no sufficient explanation of the transaction's purport and effect. To enforce the transaction against a mistaken volunteer when the creditor, the party that seeks to take the benefit of the transaction, has not itself explained the transaction, and does not know that a third party has done so, would be unconscionable. 18 The majority rejected the analysis made by Lord Brown-Wilkinson in Barclays Bank PLC v O'Brien (1994) 1 AC 180. In particular they rejected the theory of constructive notice which seems to be a part of the reasoning in that case. The majority considered that the only question of notice that arises is whether the creditor knew at the time of the taking of the guarantee that the surety was then married to the creditor. It said that other questions of notice do not intrude. 19 Having regard to the decision of the majority it would no doubt be open to me as a first instance judicial officer to find that the principle may apply in other circumstances so long as they are consistent with the principle as explained by the majority. It would not be appropriate for me to follow, for instance, the reasoning of His Honour Mr Justice Kirby which involves a rejection of the findings of the majority. 20 Two matters touching on principle should be noted. One of them is that the vulnerability is applied in the case of marriage to the wife and has not been applied to a husband. This is because of the tenderness which the Court feels in respect of the possibility of a woman not having matters properly explained to her by her husband. There is thus room, by analogous reasoning, to extend the principle to a man and a woman who are living in a de facto relationship. The second is the change in the community's acceptance of such relationships and the frequency of their occurrence. That such a relationships occur frequently is well recognised in legislation both at a Commonwealth and State level. For example at the Federal level the Social Security Act 1991 (Cth), s 4 adopts a definition of a marriage like relationship which includes a de facto relationship between a man and a woman and applies the provisions of the Act to such couples. The Federal personal income tax system, while notionally based on the individual as the unit of taxation has many aspects that are based on family relationships which include de facto couples. For example, the Income Tax Assessment Act 1997 (Cth), s 26-40 prohibits deductions for payments for maintenance of a taxpayer's family which is defined as a spouse and children. Under s 995-1 of the same Act, spouse extends to a de facto partner. In addition, under the Income Tax Assessment Act 1997 (Cth), s26-33 the tax Commissioner is entitled to disallow a deduction for payments to related entities that are not "reasonable". A related entity includes a spouse and thereby a de facto partner. 21 For many years at State level there have been statutes dealing with the property of de facto couples. By way of example, the 1999 amendments included in the Property (Relationships) Legislation Amendment Act 1999 effected consequential amendments to approximately twenty other statutes. The Property (Relationships) Act 1984 allows the division of property of de facto partners at the end of their relationship. Such method of division is admittedly different from that of husbands and wives but this is not of great moment in this context, see Evans v Marmont 1997 42 NSWLR 70. The concept is also found in industrial and labour laws. 22 The extension of the rule to the situation of a man and a woman living in a de facto relationship involves no difficulty with notice nor does it involve any constructive notice of the type rejected by the majority in Garcia. For a lender there is no more difficulty with enquiries than when the parties are married and the female is being asked to give a guarantee as she is shown on the title. The same trust and confidence which leads to the female surety receiving no sufficient explanation of the transactions purport and effect equally applies to a de facto relationship as to a marriage. 23 The matter before me involves a simple long standing de facto relationship between a man and a woman and, indeed, the circumstances of it and the role each plays would fit many marriages. It has endured seventeen years and the parties to it have five children. It is clear that Mr Adamson, given the way he drew the costs agreement, and the fact that he attended at the home of the plaintiff and Mr Miller to obtain her execution, well knew that they were living in a de facto relationship as a man and a woman. In these circumstances it seems to me that the principle in Yerkey v Jones should be extended to cover the situation presently before me. Factual matters arising on the plaintiff's unconscionability claim 24 This claim is made both in respect of the costs agreement and the mortgage. It is necessary to consider each matter separately in the first instance. I turn to a consideration of the relevant matters insofar as they affect the costs agreement. Costs agreement 25 The costs agreement is a document of some six pages in length to which are attached copies of various provisions of the Legal Profession Act. The six parties to the agreement who are described as clients are the following. Peter James Miller, Adelene Liu, Adrian Haigh Miller, Merlane Holdings Pty Ltd, Possam Holdings Pty Ltd, Kassavane Pty Ltd and Peter James Mellor entertainment Pty Ltd. The agreement provided for a basic rate of $200 per hour for Mr Adamson or $150 per hour in relation to work performed in conjunction with counsel. It provided for recovery of disbursements copying and also included a provision for a charge of 20 percent on account of care and consideration. Clauses relevant to the matter include those dealing with indemnity, guarantee and security and are as follows: "2. "Paclaw" shall communicate with and to receive instructions from all or any of the "client" from Peter James Miller and/or Adelene Liu (or their nominees) who warrant and guarantee "Paclaw" that they have the authority of each of the other "client" to enter into this agreement on their behalf and to issue the instructions on behalf of the "client". INDEMNITY 3. James Miller or Adelene Liu shall jointly and severally indemnify "Paclaw" in relation to any loss or damage or claim made by or on behalf of any person as a result of "Paclaw"s entry into and acceptance of instructions pursuant to this agreement and performance of every express or implied term this agreement. GUARANTEE 4. In addition to any right of recovery which "Paclaw" may have against a "Client", Peter James Miller and/or Adelene Liu Guarantee the payment of all accounts of "Paclaw" in relation to all work performed and disbursements incurred under this agreement and shall indemnify and shall keep indemnified "Paclaw" against any and all claims and charges or costs ordersmade against "Paclaw" by or on behalf of any person(s) as a result or arising out of this express or implied terns of this Deed. Security for costs and disbursements: 5. 'Paclaw" is granted security for the payment of all accounts for work performed and disbursements incurred under this Deed over the real and personal property of Peter James Miller and Adelene Marie Liu including the property at 45 Eton Road Lindfield NSW and also over any choses of action in existence against Benjamine and Khoury for refund of excessive payments of costs and outlays and also over the chose in action to recover any monies held on behalf of Peter James Miller and/or Adelene Marie Liu which were wrongfully transferred by Benjamine and Khoury for the payment of any clients account of Benjamine and Khoury, including their own. ASSIGNMENT OF CHOSES IN ACTION 6. As part of the security of "Paclaw" over the aforementioned choses of action of Peter James Miller and/or Adelene Marie Liu, "Paclaw" shall be entitled to elect to take an assignment of such chose in action at ant time by executing a Deed of Notice of Assignment and Christopher Michael Adams is hereby granted the Power of Attorney of Peter James Miller and/or Adelene Marie Liu to prepare and execute such Deed of Notice of Assignment. 7. Where security is given over real property under this agreement, "Paclaw" shall be entitled to register the security and/or mortgage over the property of Peter James Miller and/or Adelene Marie Liu and Christopher Michael Adamson is granted Power of Attorney to prepare and execute and to attend to all documents and matters necessary to effect registration of the security and/or mortgage and all costs and outlays in relation thereto shall be a debt due and payable to "Paclaw" upon delivery of an account. 8. "Paclaw" is entitled to lodge a caveat at any time in order to protect any security granted hereunder and all costs and outlays in relation thereto shall be a debt due and payable to "Paclaw" upon delivery of an account." ….. 30. The client has been advised to seek independent advice in relation to this agreement. " 26 The costs agreement was signed by Peter Miller and the plaintiff and not on behalf of the companies. Mr Miller and the plaintiff initialled each page of the cost agreement. 27 The first matter that I will consider is whether the plaintiff understood the purport and effect of the costs agreement. Unfortunately, in this case the three principal witnesses were not particularly satisfactory in the way they gave their evidence. The plaintiff's memory of events was poor and when she was cross-examined about her execution of prior mortgages she became evasive. Mr Adamson was obsessed by the case and he did himself no favours by acting for himself throughout most of the hearing. Mr Miller showed a disregard for the truth in signing letters on the part of the plaintiff and giving instructions in a Licensing Court matter. All these matters make it particularly difficult to discern the truth in this matter. 28 In her affidavit evidence in reply the plaintiff simply said that she did not remember signing the costs agreement although she agrees that it carries her signature and her initials. In her evidence the plaintiff denied that she had read through the document, that it had been explained to her and she said that she had never had any independent advice. She denied that she had ever been asked by Mr Adamson to seek independent advice and there is no evidence that she had obtained independent advice. 29 Mr Adamson gave evidence in para 6 of his affidavit of 4 February 2002 as to the circumstances in which the plaintiff executed the costs agreement. In earlier paragraphs he recounted discussions with Mr Miller on 7 and 9 March about it and the need to get some independent advice on the agreement. In paragraph 6 he said the following:- "At about 7:00 pm on 13th March 1998 I attended the plaintiff's residence at 45 Eton Road, Lindfield. That was the first time that I had met the plaintiff. After exchanging pleasantries the following discussion took place: Adamson: "I know that you have both discussed the Costs Agreement and received legal advice however I will need to go through the document again with you." Adeline: "If you feel that you have to go through the document with me that is fine go ahead." After the above discussion I went through the document and highlighted the hourly rate and mortgage security requirement . Then I had the following discussion with Adeline: Adamson: "Is it all clear is there anything that you wish to ask me." Adeline: "No it is okay I fully understand the agreement." In my presence Peter Miller and Adeline Liu signed the Costs Agreement and initialled each page." 30 Leave was given to adduce further evidence in respect of the matter which I rejected which is shown by the two struck out lines. 31 There is evidence of a file note in which he discussed the subject matter of the costs agreement with Mr Miller on 7 March 1998 by telephone. Mr Miller says that the agreement was executed later in 1998 rather than on 13 March 1998 which was the day that the costs agreement was dated. Mr Adamson in cross-examination conceded it was only that the document bore the date 13 Mar 1998 that suggested to him it was executed on that date. He apparently did not give a copy to the plaintiff but to Mr Miller. He also conceded that it was Mr Miller who said that they would get independent legal advice in respect of the costs agreement. Mr Miller denied that there was ever any suggestion of obtaining independent advice. The substance of Mr Miller's evidence was that he was told that the agreement was a standard Law Society costs agreement and that he signed it on that basis without reading it in the second half of 1998. 32 Having regard to the terms of the file note, and clause 30 of the costs agreement, it is likely that the initial discussions occurred in early March with Mr Miller and that Mr Miller was told to get independent advice for himself and the plaintiff. As I have earlier recounted, the evidence in this case is notable for the fact that Mr Miller would give instructions on behalf of the plaintiff without consulting her. It seems likely to me that Mr Adamson relied on his discussions with Mr Miller in this respect and accepted that they both had independent advice. Mr Adamson did not give further evidence, pursuant to the leave granted, of his explanation to the plaintiff. However, there were tendered two defences to which he had sworn (Exhibits E and F) in which he stated in general terms that he read over the costs agreement and explained it to the plaintiff. They make no reference to his statement in his affidavit about his knowledge of her obtaining independent advice. The further explanation of the costs agreement is inconsistent with Mr Adamson's position that he advised them to get independent advice and was told by Mr Miller that they had such advice. Having regard to this fact and the generality of Mr Adamson's evidence, I am prepared to accept the evidence of the plaintiff that she had no explanation of the document. 33 There is absolutely no evidence of either the plaintiff or Mr Miller having had independent advice and Mr Adamson should have taken care to obtain a certificate of independent advice or to have himself verified that advice had been given. He gives no evidence of having tried to check up on the fact of independent advice. His simple reliance on Mr Miller's statement that the advice had been obtained was not, in the circumstances, reasonable. Is the plaintiff a volunteer? 34 The next matter to consider is whether the transaction was voluntary (in the sense that the surety obtained no gain from the contract the performance of which was guaranteed). It should be noted that the guarantee was for a number of companies in respect of the services to be rendered by Mr Adamson. The plaintiff was a shareholder in one of the companies in respect of which the costs agreement was made, namely, Possam Holdings Pty Ltd. She was also a director. She and her husband, Mr Miller, each held half of the shareholding in that company. Possam Holdings Pty Ltd was the company that owned and operated the Orb nightclub which is the one which I have referred to as being part of Mr Miller's business ventures when he changed from being involved in the IT industry. 35 Another company, Borgia Holdings Pty Ltd, was one in which the plaintiff and Mr Miller each had one share. The plaintiff was a director from 1985 and was the secretary up until 1 August 2000. The plaintiff recalled doing some occasional banking for that company. The company at some stage held an interest in a company Shannon Portfolio Pty Ltd. The precise details of the holding are not available and there seems to have been changes in the shareholding of that latter company. It apparently held an interest in Kassavine Pty Ltd. This company operated the La Busolla restaurant at 270-274 Victoria Road, Darlinghurst. The plaintiff and Mr Miller were involved through these companies in the profits from that restaurant. I mention that there were a number of other persons who were also interested in the restaurant and there were changes from time to time in these interests in the restaurant. It will be noted that Kassavine Pty Ltd was one of the parties to the costs agreement. 36 In the income tax returns for the plaintiff for the years ended 30 June 1997 and the year ended 30 June 1998 she is shown as having received a dividend of $55,000 from a company Shannon Investments Pty Ltd. Although the difference in name was not explained, Mr Miller said that she was entitled to dividends as she held preference shares issued in Shannon Portfolio Pty Ltd. She is recorded as a shareholder for 100 preference shares in this latter company and it is likely that the dividends may have been incorrectly described in her taxation return. 37 The nightclub and the restaurant under its former name had been carried on prior to the involvement of Mr Adamson with the plaintiff and Mr Miller. Prior to his involvement they had used Mr Khoury as a solicitor but were dissatisfied with his services. It is plain on the evidence that the plaintiff, herself, did not take part in the day to day management of the nightclub or the restaurant and that basically she was a homemaker. She had no other income and was clearly dependent upon the income which was generated from these activities by Mr Miller. There was some effort in cross-examination to elicit evidence about the plaintiff and Mr Miller each sharing their income and assets together. In a general sense this is probably true but the more correct situation seems to be that both the plaintiff and Mr Miller had shareholding interests in the company that operated the nightclub and that, through various companies, from time to time they had an indirect shareholding interest in the restaurant. I regard as more probable than not that the dividends which were received from Shannon Investments Pty Ltd were related to the restaurant and as the plaintiff said, such dividends were banked in the bank account operated by the plaintiff and Mr Miller. 38 If one looks at the matter as at the time of execution of the costs agreement which I will adopt as March 1998, it is clear that the costs agreement was to secure the future services of Mr Adamson for the benefit of a company which operated the nightclub and a company in which both the plaintiff and Mr Miller had some indirect interest. 39 A convenient summary of the requirements in respect to whether or not a given transaction is voluntary has been set out by Einstein J in State Bank of NSW v Chia (2000) 50 NSWLR 587 at 601. There His Honour said:- "The second requirement is that the wife is a volunteer. It is not sufficient that the wife has received consideration as would be recognised in the law of contract: Bank of Victoria Ltd v Mueller (at 649). The consideration for the guarantee must be of "real benefit" to the wife: Garcia (at 412). Incidental benefit which accrues generally to the family of which the wife is a member is not sufficient benefit to render a transaction which does not otherwise contain a "real benefit", non-voluntary: Armstrong v Commonwealth Bank of Australia (1999) 9 BPR 17,035; [2000] ANZ Conv R 470; Cranfield Pty Ltd v Commonwealth Bank of Australia (Supreme Court of Victoria, Mandie J, 20 November 1998, unreported). Where the wife expects to reap direct profit from the transaction, the transaction cannot be said to be voluntary: State Bank of New South Wales Ltd v Vecchio (Kirby J, 10 November 1998, unreported). Neither can it be said to be voluntary where the moneys secured by the guarantee are used to purchase an asset in which the wife is equally interested with her husband: Commonwealth Bank of Australia v Khouri (Supreme Court of Victoria, Harper J, 4 November 1998, unreported). However, where the interest of the wife is a shareholding in the company through which her husband conducted his business and in which she has no real involvement, then a guarantee given by the wife over that company's debts will be voluntary: Commonwealth Bank of Australia v Khouri . But where the wife has an active and substantial interest in the conduct of, and the fortunes of, the business run by her husband, she will not be a volunteer in relation to any guarantee over the debts of that business: Radin v Commonwealth Bank of Australia (Federal Court of Australia, Lindgren J, 23 October 1998, unreported). Where the transaction is not ex facie for the benefit of the wife, then the onus will lie on the party seeking to enforce the security to show that the wife was not, relevantly, a volunteer: Warburton v Whiteley [1989] NSW Conv R ¶55-453at 58,288; (1989) 5 BPR 11,628 at 11,634, per McHugh JA." 40 On the evidence before me in this matter, the plaintiff had a substantial interest in the conduct of, and the fortunes of, the businesses run by Mr Miller. She was either a shareholder, director or secretary in some of the companies which were to benefit by the services of Mr Adamson as provided for under the costs agreement for which she stood as surety. Further, she received not inconsiderable financial rewards from those companies and, having no independent employment or profession of her own, relied upon the income which they generated. The plaintiff therefore had a substantial interest in the companies run by Mr Miller notwithstanding that she did not actively engage in running the business of the companies. 41 In these circumstances it is difficult to see that the plaintiff was a volunteer in executing the cost agreement. The costs agreement provided for services to be provided to her, her de facto partner and a number of companies in which they had interests. In the circumstances it seems to me that she was not a volunteer in respect of the costs agreement and accordingly the principles would not apply to her. In the circumstances it seems that there is no basis for the claim on this ground to set aside the costs agreement. Execution of the Mortgage 42 As it is relevant to other claims, I turn to a consideration of the execution of the mortgage. The affidavit evidence of the plaintiff, Mr Miller and Mr Adamson about the circumstances of the execution of the mortgage have nothing in common. Their accounts simply passed each other by. Fortunately there are some independent witnesses who can assist in resolving what is plainly evidence based upon faulty recollection or reconstruction. 43 The plaintiff in her affidavit evidence gave an account of an occasion which she placed in about December 1998 or early 1999 when she was cooking in the kitchen. She said that Mr Adamson came in with a sheet of paper and asked her to sign it. She asked Mr Miller what she was signing and he replied "it is a document Chris wants us to sign". She says she signed the document and Mr Miller witnessed her signature. She did not realise that it was a mortgage and a few days later she asked Mr Miller what she had signed and was told it was a mortgage. She says that she signed the document because she trusted Mr Adamson as he was Mr Miller's Solicitor and because Mr Miller told her to. She denied receiving any legal advice from Mr Adamson. 44 According to Mr Miller, Mr Adamson rang him in late 1998 and required a mortgage to be executed. A short time later he says he received a call from Mr Adamson who asked him to come downstairs to a coffee shop below his place of work in Clarence Street with a witness to sign the mortgage. He says that he had a work associate Helen Sheehan come downstairs and sign the mortgage which he then gave to Mr Adamson. He says a few days later by arrangement Mr Adamson arrived at their home at Lindfield and asked the plaintiff to sign. The plaintiff did so with Mr Miller saying "It is just something we needed to sign. It's in our best interests". He says she signed the mortgage he witnessed her signature and gave it back to Mr Adamson. 45 Mr Adamson in his affidavit refers to an occasion on 17 December 1998 when he attended the plaintiff's home and left with her a mortgage and part account for the sum of $220,000. He recounts a discussion about the mortgage in which he says that the plaintiff would need independent advice before it was signed. He says she said she would get that advice in the next few days. He gave evidence that on 20 December Mr Miller rang him to say that he and the plaintiff had obtained independent advice and would he come into Carrington Street Sydney. He says that when being handed the mortgage he noticed that Mr Miller had signed in the wrong position and that he had witnessed the plaintiff's signature. A discussion ensued in which he crossed out Mr Miller's signature and Mr Miller went upstairs to return later with the mortgage document signed and witnessed. He said that he made arrangements to have Adelene's signature witnessed later that day. It was a Sunday, being the 20th December 1998, and he went to their home in the evening. He recounts a conversation with the plaintiff about them having obtained legal advice and that he wished to go through the document again. He says that he went through the document again and made arrangements for her signature to be witnessed. A person named Mary Wells was a JP and lived in the same street as the plaintiff. He says that he accompanied her to see her and saw Mary Wells witness the signature of the plaintiff to the mortgage. 46 Such stories were propounded by the plaintiff and the defendants before the existence of various versions of the transfer became known. The original mortgage is now available it having been discharged on the sale. That original is Exhibit 11 before me. There is also in evidence a photocopy of the document made at a time part way through the whole process of execution. Copies of that document appear as exhibit 39 and exhibit G. The latter is more useful as the photocopy contains more detail of the stamping impression on the mortgage. This copy document became available when the trustee in bankruptcy of Mr Miller asked Mr Adamson to produce documents. Among the documents produced was a copy mortgage forward to him by Mr Adamson in support of his claims against Mr Miller's estate to be paid out his costs. Clearly the copy came from Mr Adamson's files. 47 Both documents are dated 20 December 1998. The earlier documents, namely, Exhibit 39 and Exhibit G, contain a number of signatures. There is a signature of the plaintiff as mortgagor witnessed by Mr Peter Miller. Peter Miller has also signed on the space for the signature of the mortgagee although that signature is crossed out. There has been superimposed above where the plaintiff signed, a further signature of Mr Peter Miller and the signature of Anne Sheehan with the words "witness to PJ Miller's signature Anne Sheehan 18 Maxwell Street Sth Turramurra". Mr Miller's signature has been crossed out where he signed in the wrong spot as mortgagee and Mr Adamson has signed as solicitor for the mortgagee. 48 Anne Sheehan gave evidence before me and she swore to the fact that in late December 1998 she had a call from Peter Miller asking her to come downstairs and have coffee with him and Chris Adamson. At that stage apparently Mr Adamson was acting respect of matters to do with the restaurant in which she was also involved. When she went down she was asked to witness Mr Miller's signature and she noted it was a mortgage. She asked whether he wanted to and he indicated he wished to. She says that she saw Peter Miller sign the document. She saw the position for other signatures and because she was concerned not to witness other signatures she signed and wrote that she was only witnessing Mr Miller's signature. She had no particular recollection of what day it was. The fact that the 20 December was a Sunday was not of significance as they were so often working on the weekend. She said things as a genuine independent witness who did her best to recall the matters. She said that there did not appear to be signatures on the bottom of the document and this may well be the case because Mr Adamson's signature may not have been there at that stage. There was clearly the signature of Mr Miller there at the bottom of the document at the time. 49 In contrast the registered mortgage has a number of additions to what appears on the photocopy. Mr Miller's signature and his name and address where they appeared as a witness to the plaintiff's signature have been crossed out. The plaintiff's signature has also been crossed out and the plaintiff has re-signed the document. The document has also been signed by Mary Wells J.P. who has written her JP number and indicated that she was witnessing the signature of the plaintiff. The original document carries a red impression of the stamping of the document on the 11th January 1999. The document was registered apparently on 17 January 1999. If one looks at a copy of the earlier document, Exhibit 39, one can see the impression of stamping. This would seem to suggest that the additions to the registered document were placed on it after 11 January 1999. 50 Unfortunately, that is contrary to the evidence of a number of the parties and also the witness Mary Wells. Mary Wells has a travel agency in Eton Road, Lindfield, situated in her home. She identified her signature and said she would have written her name. She says that she has no specific recollection of the signing of the document. She said that she had witnessed documents on two occasions for Mr Miller and says that she did not recall ever being introduced to Mr Adamson or meeting the plaintiff in the company of Mr Adamson. She was directed to the date and it was suggested that she would not sign a document which carried an incorrect date. She accepted this proposition. The plaintiff denies that she has ever had a document witnessed by Mary Wells although they knew each other as neighbours as their children went to the same school. The plaintiff had no explanation of how Mary Wells came to witness her signature. 51 If one looks at the earlier versions it is perfectly plain that Mr Miller is a witness to the plaintiff's signature and signed by mistake as mortgagee. That is indicative of the document having been left with him or the plaintiff for execution. It is quite unlikely that Mr Adamson knowing the requirements for execution would allow the document to be executed in such a manner in his presence. This strongly points to the document having been left, perhaps as suggested by Mr Adamson, with the plaintiff. The additions to the earlier copy on the re-execution by Peter Miller are also quite consistent with the evidence of the occasion in the coffee shop. Plainly at some stage after the occasion in the coffee shop the plaintiff's signature has been crossed out and she has re-executed it. 52 There is no evidence to suggest that the re-execution by the plaintiff is a forgery although some differences in the signature can be perceived. It is likely that Mary Wells cannot be accurate about the date as her recollection of the whole affair is almost non-existent. The plaintiff's recollection of these events is also very vague. She says that there was only one occasion when she signed but clearly she appears to have signed twice. Her recollection may well be affected by the fact that the matter was not of importance to her as these business matters were not of great concern to her. She had more concern with raising the family rather than being involved in the business. 53 The desire of Mr Adamson to obtain a properly executed mortgage certainly would have spurred him on to have it properly executed. It seems to me likely that he did arrange to have the plaintiff re-execute the mortgage although it appears to have occurred after 11 January 1999. The plaintiff in her affidavit evidence in fact placed the occasion when she signed the mortgage as late 1998 or early 1999. I do not think the plaintiff had sufficient reason to recollect the detail and it seems to me more likely that she has re-executed it at a later stage in front of Mary Wells. 54 The precise details of the execution are not important and there is no claim to set aside the mortgage on the basis that it is a forgery. What is of importance is the plaintiff's understanding of what she was signing and any explanation that might have been offered to her. It seems highly probable to me that Mr Adamson did leave the mortgage with either the plaintiff or Mr Miller for execution on 17 December and later it came back improperly executed. He then had it properly executed by Mr Miller on 20 December and later re-executed by the plaintiff. It is plain, given the facts that have emerged, that Mr Miller's explanation of the circumstances in which the mortgage was signed, in his affidavit of 4 June 2001, can not be accepted. I also would not accept his blatant attempt to support the plaintiff's case in that affidavit. Explanation of the mortgage 55 I turn to the explanations said to have been offered in respect of the mortgage. I also note that there is no evidence of any independent explanations of the mortgage having been given to Mr Miller or the plaintiff. 56 There is in evidence file notes prepared by Mr Adamson in respect of the occasions of 17 December 1998 and 20 December 1998. The one of 17 December 1998 supports the account given by Mr Adamson about how he left the mortgage and a bill for $220,000 with the plaintiff and Mr Miller at their home on that day. Of importance it has a note that they were to obtain independent legal advice. It is apparent from the note that he required the mortgage to be finalised before Christmas and apparently agreement was reached on the amount secured of $150,000 plus interest. In paragraph 8 of his affidavit dealing with this occasion he does not suggest that he explained the terms of the mortgage and this is consistent with him wanting the plaintiff and Mr Miller to obtain independent advice. 57 In dealing with the occasion of 20 December 1998 in paragraph 9 of his affidavit, Mr Adamson commences by recounting that Mr Miller had told him that he and the plaintiff had obtained independent advice and signed the mortgage. He then goes on to deal with what occurred at Carrington Street. The file note of 20 December 1998 includes abbreviations and symbols and these were explained by Mr Adamson, at transcript 217 in these terms:- "Q. The last file note for 20 December, can you do the same thing with that, please? A. On the 20th the first word is - the first symbol is telephone from Peter Miller. "ARR" that's arranging conference. Which is "COF", conference. Carrington Street re - that's in respect of mortgage. The next line is conference. PM is Peter Miller. Re execution mortgage Eton Road and generally confer. The telephone then at that conference to Adelene Liu. Arranging conference re - in respect of mortgage re execution and the next line is attendance. "ATT" means attendance 45 Eton Road. A Liu, Adelene Liu re - that's in respect of execution or re-execution of mortgage, and the next line is reading and advising re annexure A and then there's a stroke. That means after that we - conference discussed annexure A. PM - Peter Miller and Adelene Liu to obtain independent legal-

Q. What's that? A. Independent legal advice.

Q. What is the symbol before it? A. I can't quite make that out. It's either an "and" or a stroke or something, but it is a - I meant to convey there Peter and Adelene Liu had obtained independent legal advice." 58 The file note is quite brief and there are differences between what is recorded on that note and the account given in paragraphs 9 and 10 of Mr Adamson's affidavit. Paragraph 10 refers to 17 December 1998 but he corrected that to indicate that it refers to 20 December 1998. Of importance the file note makes no reference to attending on Mary Wells for re-executing the mortgage. Clearly, given my earlier findings, this did not happen until after 11 January 1999. The notes in the file note about re-execution of the mortgage are equally consistent with arrangements then being made for a later re-execution of the mortgage. The part of the file note that deals with obtaining independent legal advice, in its symbols, does not necessarily support the amended version given by Mr Adamson in his evidence above. It appears equally consistent with the plaintiff and Mr Miller still having to obtain independent legal advice. 59 Given that I cannot accept Mr Adamson's affidavit explanation of when the document was executed by Mary Wells, I have great hesitation in accepting that he gave a detailed explanation of the mortgage and the terms of Annexure A. Mr Adamson, as his first file note indicates, was anxious to get a mortgage before Christmas. Clearly the motivation for this would have been the deteriorating situation of Mr Miller's fortunes. In addition, he has consistently maintained that he told the plaintiff and Mr Miller to get their own independent advice and was advised that they had received it. In these circumstances, as I have indicated before, I think it unlikely that he would then embark on a lengthy explanation of the document in the way in which he described in his evidence. 60 I am not satisfied that there was a detailed explanation of the document. The question is whether I should accept the plaintiff's evidence that at the time she signed the mortgage she did not know that she was signing a mortgage. This requires a consideration of her knowledge of mortgages. 61 It appears from the cross-examination of the plaintiff that there were approximately four prior mortgages which she had given over the property at Lindfield. In respect of one of them, which was a mortgage to the National Bank, there was an explanation given to her by Mr Woods, a solicitor. She agreed that she had had an explanation for that mortgage and that she knew that if she failed to make payments under the mortgage, the National Australia Bank might sell her house. That mortgage was given in February 1994. On 12 February 1998 she gave a mortgage to Mr Khoury, her earlier solicitor. Mr Khoury also gave evidence before me of the explanation that he gave to the plaintiff in respect of the mortgage given to him. Although he could not give the detail of his explanation he described the process by which he explained the mortgage and then had the plaintiff tell him her understanding of the matter. When giving her evidence about her knowledge, as at 20 December 1998, the plaintiff at first suggested that she knew it was a mortgage but she did not know what was the effect of the mortgage. Ultimately she changed her evidence to agree that she knew that if she had signed a mortgage document that if the monies were not paid then someone might sell the house. 62 Given the plaintiff's earlier history with dealings in respect of mortgages, it seems to me that, notwithstanding that she was not concerned with business matters, that she would well know the effect of a mortgage. She also knew that the failure to make payments could mean that the house would be sold. 63 The plaintiff's evidence was very general and she was vague about her recollection although she was emphatic that the document was not explained to her. The facts as they appear to me certainly show that the mortgage was originally left with the plaintiff and Mr Miller for them to consider and to obtain independent advice. No doubt this was not obtained and I have no doubt that Mr Miller probably indicated to Mr Adamson that it had been obtained. At some stage prior to 20 December 1998, the plaintiff signed the mortgage and then at some later stage after 11 January 1999 she re-executed it before Mary Wells. Even on the plaintiff's own story she knew a few days after she said she signed the mortgage at her home that it was in fact a mortgage. In the circumstances I find the plaintiff's evidence unhelpful and I conclude that at least by the time she re-executed the mortgage she would have known that it was a mortgage and that it had the effect that if any monies due were not repaid, the house could be sold. Conclusion on the claim under unconscionability principles 64 The submissions of the parties tended to treat the execution of the costs agreement and the mortgage and explanations in regard thereto as quite separate matters. However, it seems to me that they are linked in that under the costs agreement there was an agreement to grant a mortgage which no doubt could be specifically enforced. In the event that the costs agreement was to be set aside then there would be no obligation to give a mortgage. The question which would arise would be whether, in the absence of that obligation, it had any effect on the mortgage which was ultimately executed. Mr Adamson sought the execution of the mortgage pursuant to his rights under the costs agreement. He did not suggest that there was some separate agreement to give a mortgage made in December 1998. In these circumstances it seems to me that, if the costs agreement were set aside under this claim, the mortgage should also be set aside notwithstanding that the plaintiff knew she was signing a mortgage. 65 As I have found that the plaintiff was not a volunteer in respect of the costs agreement, she is not entitled to succeed on this ground. The plaintiff's claim under the Contracts Review Act 66 The Act allows the court to refuse to enforce or to declare void a contract where the court finds that a contract or a provision of a contract to have been unjust in the circumstances relating to the contract at the time it was made. The Act defines "unjust" to include unconscionable harsh or oppressive. 67 Section 9 provides for the matters to be considered by the court. The relevant provisions so far as concerns the submissions by the plaintiff in this matter are as follows: 9. Matters to be considered by Court (1) In determining whether a contract or a provision of a contract is unjust in the circumstances relating to the contract at the time it was made, the Court shall have regard to the public interest and to all the circumstances of the case, including such consequences or results as those arising in the event of: (a) compliance with any or all of the provisions of the contract, or (b) non-compliance with, or contravention of, any or all of the provisions of the contract. (2) Without in any way affecting the generality of subsection (1), the matters to which the Court shall have regard shall, to the extent that they are relevant to the circumstances, include the following: (a) whether or not there was any material inequality in bargaining power between the parties to the contract, (b) whether or not prior to or at the time the contract was made its provisions were the subject of negotiation, (c) whether or not it was reasonably practicable for the party seeking relief under this Act to negotiate for the alteration of or to reject any of the provisions of the contract, (d) whether or not any provisions of the contract impose conditions which are unreasonably difficult to comply with or not reasonably necessary for the protection of the legitimate interests of any party to the contract, (e) whether or not: (i) any party to the contract (other than a corporation) was not reasonably able to protect his or her interests, or (ii) any person who represented any of the parties to the contract was not reasonably able to protect the interests of any party whom he or she represented, because of his or her age or the state of his or her physical or mental capacity, (f) the relative economic circumstances, educational background and literacy of: (i) the parties to the contract (other than a corporation), and (ii) any person who represented any of the parties to the contract, (g) where the contract is wholly or partly in writing, the physical form of the contract, and the intelligibility of the language in which it is expressed, (h) whether or not and when independent legal or other expert advice was obtained by the party seeking relief under this Act, (i) the extent (if any) to which the provisions of the contract and their legal and practical effect were accurately explained by any person to the party seeking relief under this Act, and whether or not that party understood the provisions and their effect, (j) whether any undue influence, unfair pressure or unfair tactics were exerted on or used against the party seeking relief under this Act: (i) by any other party to the contract, (ii) by any person acting or appearing or purporting to act for or on behalf of any other party to the contract, or (iii) by any person to the knowledge (at the time the contract was made) of any other party to the contract or of any person acting or appearing or purporting to act for or on behalf of any other party to the contract, (k) the conduct of the parties to the proceedings in relation to similar contracts or courses of dealing to which any of them has been a party, and (l) the commercial or other setting, purpose and effect of the contract. (3) For the purposes of subsection (2), a person shall be deemed to have represented a party to a contract if the person represented the party, or assisted the party to a significant degree, in negotiations prior to or at the time the contract was made. (4) In determining whether a contract or a provision of a contract is unjust, the Court shall not have regard to any injustice arising from circumstances that were not reasonably foreseeable at the time the contract was made. (5) In determining whether it is just to grant relief in respect of a contract or a provision of a contract that is found to be unjust, the Court may have regard to the conduct of the parties to the proceedings in relation to the performance of the contract since it was made." 68 One of the matters raised by the defendant in respect of the contracts review act claim are the restrictions on relief contained in section 6 (2). That section is in the following terms: 6. Certain restrictions on grant of relief (1) The Crown, a public or local authority or a corporation may not be granted relief under this Act. (2) A person may not be granted relief under this Act in relation to a contract so far as the contract was entered into in the course of or for the purpose of a trade, business or profession carried on by the person or proposed to be carried on by the person, other than a farming undertaking (including, but not limited to, an agricultural, pastoral, horticultural, orcharding or viticultural undertaking) carried on by the person or proposed to be carried on by the person wholly or principally in New South Wales. 69 The section has been considered in a number of cases. In Toscano v Holland Securities Pty Ltd (1985) 1 NSWLR 145 His Honour Mr Justice McClelland had to consider a situation of whether a Mr or Mrs Toscano were carrying on a business at a certain date in 1981. Apparently they had originally carried on business in partnership but in 1979 they had transferred the business to a company F Toscano Enterprises Pty Limited. In those circumstances His Honour held that the particular transactions with which he was concerned were not entered into by them for the purposes of a business. His Honour's decision was reluctantly followed by Rogers J in Australian Bank Limited v Stokes (1985) 3 NSWLR 174-176. 70 In Ellison v Vukicevic (1986) 7 NSWLR 104 His Honour Mr Justice Young referred to and applied the statement by Lee J in Collins v Parker that:- "The expression "for the purpose of" has the meaning that the contract under consideration is entered into as an ordinary incident of the carrying on of the particular trade, business or profession then being carried on or proposed to be carried on." 71 The facts in the present case only indicate that the businesses which were carried on were carried on through certain companies. The nightclub was carried on by Possam Holdings Pty Ltd and the restaurant by Kassavine Pty Ltd. In these circumstances it seems to me that the plaintiff was not entering into the costs agreement or, indeed, the mortgage in the course of or for the purposes of a trade, business or profession carried on by the plaintiff or proposed to be carried on by the plaintiff. 72 I turn to a consideration of all matters which I must consider under s 9 in deciding whether the costs agreement or the mortgage was unjust in the circumstances relating to them at the time they were made. So far as the situation concerning the costs agreement is concerned, the following should be noted:-

1. The terms of the contract were not the subject of negotiation between the plaintiff and the defendant either at the time of the contract or beforehand. Such negotiations as there were, were between Mr Miller and Mr Adamson.

2. There is no doubt that the plaintiff would have been free to negotiate or to reject any of the provisions of the contract if they had been explained to her. Given that they had not and the role that her husband played in negotiating the contract, it could be said that it was not practicable for the plaintiff to seek to negotiate the provisions.

3. A question arises as to whether or not the clause in the costs agreement giving security over the home was not reasonably necessary for the protection of the legitimate interests of Mr Adamson in the contract. Given the extent of the work to be carried on, and which was in fact carried on, it seems to me that I could not say that the clause was not reasonably necessary for his protection.

4. Although the plaintiff reposed trust and confidence in Mr Miller there is no suggestion that because of her age or the state of her physical or mental capacity that she was not able to protect her interests.

6. The legal and practical effect of the contract was not explained to the plaintiff and, as I have found, she did not understand the nature of the provisions.

7. No undue influence, unfair pressure or unfair tactics were exerted upon the plaintiff to obtain the execution of the costs agreement.

8. There are no other particular matters under s9(2) which call for comment. 73 It is, of course, necessary to have regard to the public interest and there is the public interest involved in the upholding of contracts signed by parties. In the present case, Mr Adamson was a solicitor and was negotiating with prospective clients. He sought to obtain security and negotiated a position with Mr Miller where this was put in the contract. Although he suggested that his prospective clients obtain other independent advice he made no effort to check that they did and had the plaintiff, whom he met for the first time at the occasion of the signing of the contract, sign the contract without any explanation. It seems to me that in these circumstances, and the others that I have outlined above, that the obtaining of the provisions of clauses 4, 5, 7 and 8 of the costs agreement are unjust in the circumstances. 74 Accordingly, the Court should set aside those provisions. 75 I have earlier in these reasons pointed out that the mortgage which was taken later was not as a result of the negotiation of a separate agreement to give a mortgage. It was put forward pursuant to the costs agreement for execution by the parties. In these circumstances, it seems to me, that the mortgage should also be set aside. The plaintiff's claim for breach of fiduciary duty. 76 The plaintiff's claim, which appears in paragraph 29 of the statement of claim, merely alleges that there was a fiduciary duty from 13 March 1998. No breach is pleaded. The only claim for relief is No 5 which seeks a declaration that in breach of his fiduciary duty to the plaintiff the first defendant knowingly procured the mortgage from the plaintiff to his own benefit. In submissions the plaintiff suggested that out of her engagement of the defendant to deal with the Sheriff, who knocked on her door in December 1998, there was a fiduciary relationship between them. The submission was that it was "arguable that the duty extended to the taking of the mortgage". It was submitted that he put his interests in conflict with hers to her own disadvantage. Given that the mortgage will be set aside, it is not necessary to deal with this claim and it is undesirable to do so due to the lack of any real argument or submissions on the claim. Orders 77 I direct the parties to bring in short minutes. Unless there are any submissions to the contrary, I would propose to order that the defendant pays the plaintiff's costs. **********

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