Supreme Court of WA|2002-05-08|Before: Mr J, Lure J

Powell v Powell & Anor [2002] WASC 105 (8 May 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : POWELL -v- POWELL & ANOR [2002] WASC 105

Equity - Undue influence - Unconscionable conduct - Transfer of real property from adult son to mother - Whether a presumed or actual relationship of influence - Whether a special disadvantage - Transfer of real property at less than market value - Son's right to continue to reside at property

Rules of the Supreme Court 1971 (WA), O 21 r 5(5)

Allcard v Skinner (1887) 36 Ch D 145

Allen v Snyder [1977] 2 NSWLR 685

Baburin v Baburin (No 2) [1991] 2 Qd R 240

Barclays Bank plc v O'Brien [1993] UKHL 6; [1993] 3 WLR 786

Bester v Perpetual Trustee Co Ltd [1970] 3 NSWR 30

Brand v Chris Building Co Pty Ltd [1957] VicRp 91; [1957] VR 625

Bullock v Lloyds Bank Ltd [1955] Ch 317

Carson v Wood (1994) 34 NSWLR 9

Department of Social Security v James [1990] FCA 150; (1990) 95 ALR 615

Dewhirst v Edwards [1983] 1 NSWLR 34

Dow Securities Pty Ltd v Manufacturing Investments Ltd (1981) 5 ACLR 501

Fortex Group Ltd v MacIntosh, Cox & Forde [1998] 3 NZLR 171

Green v Green (1989) 17 NSWLR 343

Haas Timber & Trading Co Pty Ltd v Wade [1954] HCA 39; (1954) 94 CLR 593

Inche Noriah v Shaik Allie Bin Omar [1929] AC 127

Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] UKHL 12; [1996] AC 669

Wilson v Paniani [1996] 3 NZLR 378

1 McLURE J: At all material times until 16 August 1988 the plaintiff was the registered proprietor of the property at 80 Mackie Street Victoria Park ("the property"). He inherited the property from his father who died in January 1986.

2 The first defendant ("defendant") is the plaintiff's mother. Since 16 August 1988 the defendant has been the registered proprietor of the property.

3 The plaintiff's pleaded claim is to the effect that in or about July 1988 he agreed to transfer the property to his mother to be held by her on trust "thereby protecting the Property so that the plaintiff would always be able to reside in it" and that no consideration passed to him from his mother for the property ("the trust claim"). It is alleged that the defendant is obliged to transfer the property to the plaintiff on demand.

4 The plaintiff claims in the alternative that a contract in writing between the plaintiff and the defendant dated 14 July 1988 whereby the plaintiff agreed to sell the property to the defendant for a consideration of $40,000 ("the written contract") was vitiated by the undue influence, presumed or, in the alternative, actual of the defendant.

5 After the close of the defendant's case the plaintiff applied to amend his statement of claim to plead unconscionable conduct. I deal with that application later in these reasons.

6 The defendant denies the trust claim, relies on the written contract, says she paid the consideration of $40,000 in cash to the plaintiff on 14 July 1988 and denies presumed or actual undue influence. The defendant also relies on the plaintiff's "prolonged, inordinate and inexcusable delay" in bringing the proceedings and waiver.

7 The plaintiff did not reply to the defence. The plaintiff does not plead that the written contract does not bear his signature. Further, his pleading does not disclose the relationship between the trust claim and the written contract claim.

8 The evidence, to which neither party took objection, roamed beyond the issues identified in the pleadings. I will return to that matter later.

9 The plaintiff was born on 27 August 1947. He was nearly 41 years old in July 1988 and aged 54 at the time of the trial.

10 The defendant was born on 26 February 1928. She was 60 years old in July 1988 and aged 73 at the time of the trial.

11 The defendant married the plaintiff's father in 1947 and had two other sons, Warren and Brian. The plaintiff's parents separated whilst the plaintiff was in primary school and he lived with his mother. His parents were divorced in 1977.

12 According to the plaintiff, he attended Collier State Primary School and Kent Street High School where he was said to have completed year 8. His mother says the plaintiff went to school at Como and Hilton Park Primary School and Hamilton Senior High School and that he left school at 15.

13 After leaving school the plaintiff had a number of jobs including service station attendant, driver and a trades assistant. His mother says that at one stage the plaintiff studied nursing. He denies that and says he was an orderly at Hollywood Hospital.

14 At some stage the plaintiff became a merchant seaman employed initially by Australian National Lines and subsequently by State Shipping Service as a greaser.

15 The plaintiff has had three marriages. It appears he married his first wife when he was around 22 years old and that marriage lasted approximately five years. In 1976 he married his second wife and that marriage lasted approximately four years. In 1985 he married his third wife, Maria. They were divorced in November 1990.

16 The plaintiff and Maria lived at the property after he inherited it in 1986. The plaintiff has continued to live at the property since 1986. The plaintiff also inherited the sum of $12,000 from his father.

17 On 5 June 1988 the plaintiff had an accident on board the MV Irene Greenwood and broke his left ankle. He was admitted to Burnie Hospital (in Tasmania) and transferred to Launceston Hospital where internal fixation of his fracture was undertaken.

18 The plaintiff returned to Perth and was admitted to Sir Charles Gairdner Hospital (as it was then known) on 10 June 1988. He was discharged on 18 June 1988 with a below the knee cast and axillary crutches. The hospital records note that on discharge the plaintiff was prescribed two panadeine four hourly or as required. The hospital notes also reveal that during his admission the plaintiff was being managed primarily with panadeine and was not complaining of pain.

19 The events relating to the transfer of the property occurred in mid-July 1988, less than one month after the plaintiff's discharge from Sir Charles Gairdner Hospital.

The Events of July 1988 and Related Matters - The Evidence

20 The plaintiff's evidence-in-chief (primarily by way of admission of a written statement) was to the following effect. After his discharge from hospital on 18 June 1988 until early August 1988 he remained bedridden at his home on the property and did not leave the house. He returned to the hospital in early August 1988 to have the cast removed. In this period he was in a great deal of pain and required analgesics.

21 While he was lying in bed one day a few weeks after his discharge, his mother suggested to him that he should transfer the property into her name to protect it in the event of his death. She said she would hold the house in trust for the family.

22 At first he was reluctant to agree to his mother's proposal but eventually he agreed to what she had suggested. He said that he trusted his mother. She also told him at a later stage that the house would be transferred back to him, if and when he wanted that to happen.

23 He cannot independently recollect signing any documents to give effect to the transfer of the house into his mother's name but had since discovered that on 16 August 1988 the house was transferred into his mother's name.

24 The documentary evidence included a carbon copy of the written contract which purportedly contained three signatures of the plaintiff. In addition, there was a transfer of the property dated 14 July 1988 ("Transfer") also purportedly signed by the plaintiff and a handwritten receipt ("Receipt") dated 14 July 1988 prepared by a settlement agent, Mr Donald Campbell-Smith in the following terms:

"Received from Allan John Powell for

Mrs Rosemary Powell

67 Leonora St

COMO, WA

Certificate of Title

Vol 1779 Folio 746

14th July 1988

Sgd D C Smith

For CAMPBELL-SMITH

SETTLEMENTS

I acknowledge having received

consideration of $40,000 for

sale of 80 Mackie St Victoria Park Property.

Sgd A Powell

14/7/88"

25 The Receipt was purportedly signed by the plaintiff. The plaintiff's evidence-in-chief was that the signatures were not his because he only ever signed his first name in full (ALLAN) rather than using the initial "A".

26 The defendant's evidence-in-chief (also by way of written statement) was as follows. The plaintiff was quite mobile after he came out of hospital. For a time his ankle was bandaged and he may have been using crutches. The plaintiff often drove to visit her at her house at 67 Leonora Street Como and occasionally he brought his wife Maria with him. The defendant visited the plaintiff at the property approximately twice a week.

27 In or about early July 1988 the plaintiff drove his brown sedan to see the defendant at Leonora Street. The plaintiff said he intended to sell the property and had obtained prices from a real estate agent. He mentioned several figures but the defendant could not remember what they were. The defendant said to the plaintiff "What do you want to sell it for?" The plaintiff said he was in some sort of financial trouble and wanted the cash. The defendant told the plaintiff that she would like to keep the property in the family. She offered to purchase the property from him for $40,000. She told him that she wanted him to have a roof over his head and that he could live at the property for as long as he liked provided he paid the rates and taxes including land taxes. According to the defendant they never discussed any transfer of the land back to the plaintiff.

28 The plaintiff told the defendant not to tell anybody about the purchase of the property, not even her other sons (the plaintiff's brothers) Brian or Warren. The plaintiff said he did not want everyone to know that he did not own the property. He also said that the sale had to be done quickly because he needed the cash. She told him that she had the cash that he wanted and he said good. At that time she had quite a bit of cash from the sale of various properties she owned which included 326 Preston Point Road Attadale, her mother's property at 52 Snook Crescent Hilton and Unit 1, Coventry Road, Safety Bay.

29 Whilst the plaintiff was with the defendant, she telephoned Mr Campbell-Smith of Campbell-Smith Settlements with whom she had previous dealings. She told him of the arrangement that the plaintiff and she had made and arranged an appointment. Mr Campbell-Smith told her to come over and then he spoke to the plaintiff on the phone.

30 On 14 July 1988 the plaintiff and the defendant attended at Mr Campbell-Smith's offices. They arrived separately and met at Mr Campbell-Smith's offices. The plaintiff drove himself. Before they got into the office she handed the plaintiff a bag of cash totalling $40,000. The cash was inside a paper bag within a plastic bag. The plaintiff sat down in the back of her car and counted that amount before they went in to see Mr Campbell-Smith. Mr Campbell-Smith helped them complete a standard offer and acceptance form which she and the plaintiff signed and Mr Campbell-Smith witnessed. They also signed a transfer of land document also witnessed by Mr Campbell-Smith.

31 The plaintiff handed the duplicate certificate of title for the property to Mr Campbell-Smith. The plaintiff took the money in with him to Mr Campbell-Smith's offices. When they went in, Mr Campbell-Smith said to the plaintiff words to the effect "have you been paid the money?" And the plaintiff said words to the effect of "Yes, I have it right here". Mr Campbell-Smith then asked the plaintiff "Have you counted it?" and the plaintiff said "Yes". Mr Campbell-Smith then asked the defendant to leave the room so that he could talk to the plaintiff alone. After a short while Mr Campbell-Smith called the defendant back into his office and asked the plaintiff to sign the Receipt. The plaintiff signed that in her presence. The plaintiff and the defendant then left the meeting and went their separate ways.

32 The defendant also gave evidence that the plaintiff did quite well academically at school, that she encouraged him to continue at school but the plaintiff insisted on leaving when he was about 15 years old and that the plaintiff and his first wife had purchased a house as did the plaintiff and his second wife. She described the plaintiff as always having been self reliant.

33 From July 1988 until December 1998 the defendant heard nothing from the plaintiff concerning the property.

34 The defendant's evidence is corroborated in material respects by Mr Campbell-Smith, a licensed settlement agent, who confirmed that he had done conveyancing work for the defendant prior to July 1988. Mr Campbell-Smith's evidence is to the following effect.

35 Mr Campbell-Smith confirmed that he was contacted in July 1988 by the defendant requesting his service as settlement agent for the sale of the property.

36 On 14 July 1988 the defendant and a man who introduced himself as Allan John Powell attended his premises at 20 Beatrice Avenue, Shelley. Mr Campbell-Smith witnessed both the plaintiff and the defendant sign the written contract. The plaintiff handed to Mr Campbell-Smith the duplicate certificate of title for the property.

37 Mr Campbell-Smith also recalls seeing a significant amount of cash in an envelope sitting on the table. He asked the plaintiff to count the money and check that it was correct. He left it to the plaintiff to satisfy himself as to the amount of cash.

38 Whilst the plaintiff was counting the money he left the room to prepare the Transfer. He returned to the room and gave the Transfer to the plaintiff and the defendant to sign. He witnessed their signatures on the Transfer.

39 Mr Campbell-Smith then prepared and signed the Receipt acknowledging receipt of the duplicate certificate of title from the plaintiff and wrote an acknowledgement for the plaintiff to sign for the receipt of the sum of $40,000. The plaintiff signed the document for that purpose.

40 According to Mr Campbell-Smith, the plaintiff was not in a wheelchair and he did not recall the plaintiff being under any disability. In cross-examination he said it was his recollection that the plaintiff "appeared to be normal".

41 Mr Campbell-Smith told the defendant that she would have to pay stamp duty on the Transfer and that the duty would be assessed at the market value of the property. He submitted the written contract, Transfer and an application for stamp duty valuation to the Commissioner of State Taxation for the purposes of assessment of stamp duty. The property had to be assessed by way of departmental valuation by the Valuer General because the plaintiff and the defendant were related parties for stamp duty assessment purposes.

42 In early August 1988 Mr Campbell-Smith received a notice of stamp duty assessment from the State Taxation Department. The Valuer General valued the property at $72,000. Based on Mr Campbell-Smith's experience, such valuations are conservative.

43 On 26 October 1999 the plaintiff together with his brother, Warren attended at Mr Campbell-Smith's offices in Shelley. They said they were looking for their mother. Mr Campbell-Smith said the plaintiff appeared to be the man whom he had met 10 years earlier.

44 The plaintiff and Warren returned to Mr Campbell-Smith's office on 29 October 1999 and he gave them copies of the Transfer and certificate of title to the property which he had searched. Mr Campbell-Smith's original file on the settlement and transfer of the property had been destroyed in accordance with his standard business practice. They told Mr Campbell-Smith that the plaintiff had not transferred the property and that the plaintiff claimed that either the signature was not his or that he was very sick at the time. Mr Campbell-Smith was concerned by these matters so shortly thereafter he recorded the events in a draft statutory declaration. In that draft statutory declaration he said he told the plaintiff he was unable on 29 October 1999 to identify him with absolute certainty as the one and the same person who had signed the transfer as the transaction had taken place almost 11 years previously. However, he subsequently states in that document that following his discussions with the plaintiff and on reflection on the available documents he was sure that it was the plaintiff who attended his office with the defendant on 14 July 1988.

45 Mr Campbell-Smith accepted in cross-examination that his recollection of events would be hazy after the passage of 11 years, that payment of consideration in cash was in his experience unusual and that he did not ask the defendant to leave the room so that he could speak to the plaintiff. It was also unusual for the defendant to use Mr Campbell-Smith's address on the Transfer. Mr Campbell-Smith also recalled that the defendant advised him that her intention in taking a transfer of the property was to protect the plaintiff from his brother. However, in his draft statutory declaration Mr Campbell-Smith does not refer to the plaintiff's brother.

46 Although the plaintiff had obtained the services of a handwriting expert, none was called on his behalf at the trial. The defendant called Mr John Gregory, a relevantly qualified expert. Mr Gregory was asked to ascertain whether the signatures on the carbon copy of the written contract and on a copy of the Receipt had been written by the plaintiff. The witness was provided with a number of documents for comparison signatures which were also copies.

47 Because of the limitations imposed by the provision of copy documents, the witness concluded that the author of the known Allan John Powell signatures could neither be implicated nor exculpated as the author of the questioned signatures on the written contract and Receipt. He added the following comment:

"If signatures are simulated the perpetrator usually endeavours to follow one model signature. In this instance the three questioned signatures on the Offer and Acceptance document display a range of variation between them with no evidence of hesitation or patching strokes.

The receipt signature has some different letter forms used to those on the Offer and Acceptance and are indicative of the person signing introducing features found in the normal signature of the author."

48 Mr Gregory had worked in the field for 30 years and in his experience people who attempt to simulate signatures do not do so with speed. He generally found that patching and hesitation were absent from the questioned signatures in this case.

49 Mr Gregory's evidence was that he could find no evidence that the author of the R Powell signature had written the A Powell signature on the documents. Further, Mr Gregory in cross-examination said it was not material to the authenticity of the relevant signatures that the signatures on the documents in question used the initial "A" whereas the plaintiff's other signatures set out the plaintiff's first name in full. In his experience, it was not unusual to find such a variation in the way people sign their name.

50 The plaintiff in cross-examination showed significant deficiencies in recollection. He was unsure about his age when he married his first wife, where they lived, how long he was married to his second wife, where they lived, whether he purchased a unit in East Fremantle after his marriage to his first wife, whether he had signed a transfer for the purchase and sale of that property, how long he had worked for State Ships, whether he worked for State Ships when he was married to his second wife, whether he purchased or lived in a mobile caravan with his third wife before moving into the property and if so for how long, whether he was in a wheelchair after his discharge from hospital and whether he had physiotherapy during or after his discharge from the hospital.

51 Further, on some occasions the plaintiff initially denied a proposition put to him in cross-examination and subsequently retreated to being unsure of the answer. It was his evidence that following his accident he was unable to remember very much at all. Even his memory of more recent events in 1999 and 2000 appeared to be impaired. He was taken to an affidavit which he purportedly swore on 9 March 2000 in District Court Action 1785 of 1999 between Warren and the defendant. The document shows that Warren was represented by E & S Legal Group. The following exchange took place in cross-examination:

"The question I'm putting to you is that you knew in 1999 that your brother Warren was suing your mother, claiming that she'd stolen $80,000 from him?--- No, no. I didn't know until the beginning of 1999.

You knew that court case was going on, didn't you? --- I did not know.

Well, you did in 1999, didn't you?--- Vaguely.

Vaguely? Your brother Warren asked you to help him with the court case, didn't he?--- No, he did not.

Your brother's lawyer asked you to help, didn't he?---No, no.

So do you recognise this document as being one that you signed?---Well, at the time I was - you know, I'm still taking Panadeine - you know, still sick with it, you know. That is my signature but ---

Did you go and see Mr Fraser at E and S Legal Group about signing this document?--- I'm not sure.

Well, how did you signature come to be on it?--- Well, it is my signature but I don't know how I signed it unless, I mean---

You signed it, didn't you, Mr Powell? Didn't you?---Yes.

You signed it to help your brother Warren, didn't you?---No I did not.

Why did you sign it?--- Well, I can't remember doing it."

52 He could not recall whether he had read the affidavit and did not remember anybody witnessing his signature on the document. The plaintiff said "As I say, my mind has been very blank".

53 There are many examples in the plaintiff's cross-examination where he is non-responsive to questions or gives inconsistent answers. Either the plaintiff's comprehension skills are significantly impaired or he was being deliberately obtuse.

54 Of his schooling and education achievements, the plaintiff's evidence was as follows:

"You wanted to leave school when you were 14 or 15. Is that correct? --- Wanted to leave school?

Yes?--- Well, actually, I didn't have a very good education at the time.

But you wanted to leave school, didn't you?---Well, I couldn't - you know, I was put down in one class and I wasn't very happy with the children, or the children weren't very happy with me.

You wanted to leave school?---I wanted to leave school, yes.

Yes. But your mother wanted you to stay at school, didn't she?---I just left on my accordance.

It was your decision?---Pardon?.

It was your decision?---Well, I had no - you know, I had no decision at all."

55 The plaintiff denied being pretty good at spelling. There is no independent documentary or other evidence concerning the plaintiff's level of education or performance at school.

56 Further, there is very little evidence concerning the plaintiff's relationship with his mother. There is no clear evidence of when the plaintiff lived with his mother after becoming an adult. It appears to be common cause that she drove him to or from his leisure activities, which appeared to involve drinking and gambling. On the plaintiff's evidence, his mother would also indulge in those activities with him. She insisted that she was simply the driver. The plaintiff also said "She always domineers - you know, domineers me what to do". That response was in the context of questions about the purchase and sale by the plaintiff of a unit in East Fremantle. No time frame is put on that purchase but the evidence is that he was forced to sell it because he was unable to maintain mortgage payments on the property. According to the plaintiff he had a very good friendship and relationship with his mother and he trusted her. However, the plaintiff said all contact with his mother ceased from mid-1996 as a result of him giving his mother's address to a private investigator.

57 The plaintiff was also cross-examined about his relationship with his third wife, Maria to whom he was still married in July 1988. The documentary evidence establishes that they were divorced in 1990. I am unable from the plaintiff's answers in cross-examination to reach any understanding of the reason for or details surrounding the plaintiff's separation and divorce from his third wife. The following exchange took place:

"Why did you separate?---We didn't separate.

Well, you stopped living together, didn't you?---Yes. We were still living together.

But you got divorced so you must have separated?---After. We weren't separated.

You got divorced but you weren't separated?---Yes.

So you went to the Family Court and said, 'We're still living together but we want to get divorced'?---Yes, I think so, yes.

...

Why did you stop living in the same house together?---No, we were still living in the same house.

When did you stop living in the same house?---That is another - I just can't remember that one.

It was before you got divorced, wasn't it?---We were still living in the same house before we got divorced.

Yes, but after you got divorced you weren't living in the same house, were you?---Yes, we still remained good friends in the same house.

...

When did you cease living as friends in the same house together?---I can't remember the dates. I couldn't tell you the time.

Why did you decide to stop being husband and wife?---We still acted as husband and wife; you know, like, good husband and wife.

....

When did you decide that you didn't want to be married to each other?---That's another question I cannot ask (sic).

You decided that because you weren't getting on too well, didn't you?---No, we was getting on very well, very good, very good indeed."

58 The plaintiff's evidence in cross-examination concerning matters relating to the sale of the property is also confused and confusing. Initially he denied having a conversation with his mother about the property. After conceding that a conversation did take place he said it was at his house and the defendant raised the matter. The plaintiff's evidence included the following:

"So what did she say to you?---She suggested to transfer the house into her name for safe - you know, if I was going to have any accidents - any more accidents with my leg, to keep it in the family, which means myself and Maria.

I beg your pardon?---To keep it in the family for myself and Maria if I had any more accidents.

And what did you say to that?---I didn't say nothing.

That was the end of the conversation then, was it?---Yes. I didn't say nothing.

And did you and she have any further conversation about it-about Mackie Street?---Well, I was - I was reluctant - at first I was reluctant on her ways and means about transferring the house because, you know, she was my mother and I trusted her as far as - you know, all the way.

Can you tell me whether you had another conversation with her about Mackie Street, or was there just the one? --- Just the one.

Well, you say that she came along and said, 'It would be a good idea if you transferred Mackie Street in case you have another accident' or something?---Transfer it?

Transfer it to her---But that's what she asked - or what she suggested.

And did you say, 'Yes, that's a great idea' or did you say, 'No, I don't want to do that'?---I was reluctant.

Well, what did you say? 'I'm reluctant'?--- I was reluctant.

Did you tell her you were reluctant?---Yes.

And did she pursue the matter further?---No.

So you had no further discussion after that point?---No, no."

59 The plaintiff continued to insist he had no further discussions with his mother after that. He also denied agreeing to her suggestion for the transfer of the property and insisted that he did not sign any documents.

60 The plaintiff was then taken in cross-examination to his witness statement where he said he agreed to the defendant's proposal. The following exchange occurred:

"When you say there that you agreed to what she had suggested, you've got it wrong there, haven't you?---(indistinct) wanted it to happen.

You didn't want it to happen, did you?---Yes, I did want it to happen if the house was transferred back into my name.

Mr Powell, you said in your evidence a few seconds ago that you never agreed to a transfer and you didn't sign anything?---I didn't sign any transfer at all.

You also said you didn't agree to the property being transferred?---Before I says I agreed to if it had happened, you know, if - - -

No. Mr Powell - - -? - - - If my mother was trustworthy and if it would happen - the transfer, it would happen.

Mr Powell, please listen to me carefully. I put it to you before I referred you to your statement that your evidence was that your mother approached you, she wanted you to transfer the property to her to protect you - your wife or you or the family or whatever - and you didn't agree to that. That was your evidence?---Well, yes. I agreed to some part of it.

You didn't agree to any transfer, did you? That was your evidence. No, don't worry about what is written there, just answer my question, please. I'm reminding you what your evidence was before I showed you that statement and your evidence was, according to you, Mrs Powell came to you, wanted you to transfer the property to her name, and you didn't agree?---I said I did agree that if it - you know, if it did happen - because I trusted my mother as long as what she says that in due course the house would be transferred back to me if it would happen.

So you did agree with her to transfer the house to her?---Yes.

What you said earlier was wrong?---But I can't - you know, I can't take any recollection of signing any papers."

61 After that exchange, the plaintiff again said that he did not want the transfer to take place, told his mother so and did not agree to transfer it to her.

62 According to the plaintiff the title deed for the property was kept in a drawer in his bedroom. He said he discovered the certificate of title was missing after 1988 and suspected his mother had stolen it but he did not refer the matter to the authorities.

63 The plaintiff said that he was aware in July 1988 that the property was worth about $100,000 and that information came from him questioning people in the area as to the value of their houses.

64 Following the transfer of the property, water rates and land rates notices were addressed to the defendant at the property. The plaintiff confirmed he paid the water bills even though they were addressed to the defendant. He said that he thought it was strange for the water authority to send bills to R Powell and he questioned his mother on this matter on numerous occasions but she just ignored him. He knew that if the property belonged to him the notices would be forwarded to him. He accepted that it was obvious from 1989 that the property was in his mother's name.

65 However, he said elsewhere in cross-examination that he first became aware in January 1999 that the property was not registered in his name when his brother, Warren brought the matter to his attention.

66 The plaintiff was also asked questions in cross-examination concerning a letter dated 15 September 1999 from a firm of solicitors, E & S Legal Group, purporting to act on his behalf. The letter states:

"We advise that we act on behalf of Mr Allan Powell.

We confirm that prior to 16 August 1988 our client was the registered proprietor of the property described as Lots 423 and 424 on Plan 4377 and being the whole of the land in Certificate of Title Volume 1779 Folo (sic) 746 ("the Property"). We confirm that on 16 August 1988 Mr Powell transferred the property to you.

We are instructed that at the time of the said transfer, our client was employed as a seaman. As this employment involved a number of risks, it was suggested by you and agreed by our client that the Property would be transferred to you. It was agreed that the Property would be held by you as trustee on trust for our client."

67 The plaintiff was cross-examined about the statement that he had transferred the property to his mother. Initially the plaintiff said he did not tell the solicitors to write the letter and then he said he did but he could not recall what he had told the solicitors. According to the plaintiff the reason he went to see the solicitors was because his brother, Warren enticed him to go with him so that both cases (Warrens and his) could be acted on.

68 Mr Neale Paterson, a solicitor employed by the defendant's solicitors was called by the defendant. He gave evidence of an approach to him by the plaintiff on 19 August 1999. The plaintiff handed a handwritten transfer of land document for the property to Mr Paterson and told him to get his mother to sign it. Mr Paterson said that the plaintiff said to him words to the effect of "She got me drunk at the time and I shouldn't have signed it over to her in the first place".

69 On 24 August 1999 Mr Paterson spoke to the plaintiff on the telephone. The plaintiff enquired whether Mr Paterson had given the transfer to the defendant and during the course of that conversation the plaintiff said words to the effect "The land was gifted to me under my father's Will. She got me intoxicated. She was frightened that my wife would take it. I signed it over to her temporarily until my divorce was over". Mr Paterson had prepared contemporaneous notes of his conversations with the plaintiff.

70 The defendant was also cross-examined. She denied that the plaintiff was a weak student and that he had to repeat a year. She maintained the plaintiff had taken flying lessons although he did not obtain his licence. It was put to the defendant that the plaintiff was "a slow learner", which she denied.

71 It was also suggested that the fact that he had married on three occasions indicated he was not a stable personality which she also rejected. She also denied that the plaintiff had a drinking problem at the relevant time and that she helped Maria look after the plaintiff after the accident.

72 According to the defendant, at the time of the plaintiff's engagement to Maria they were staying with her. After they married they purchased and lived in a caravan. Warren confirmed that the plaintiff had purchased a caravan at this time.

73 After her husband died the defendant engaged solicitors to advise her on whether she had a claim against her former husband's estate. She wrote to the plaintiff (and to Warren, Brian and the Public Trustee) asking whether the three of you (which I take to be a reference to the brothers) would be agreeable to her receiving a benefit out of the residue of his estate in the sum of $12,000. The letter made it clear that the defendant preferred not to take any steps under the inheritance legislation on the ground of the costs involved. The letter was not in threatening or demanding terms. Nothing came of her request.

74 The plaintiff's unchallenged evidence was that the car he was driving at the material time in July 1988 was a brown Holden manual car. However, when the defendant was asked in cross-examination to confirm that it was a manual car she said it was an automatic. She said that she did not tell her solicitor that fact because she did not regard it as relevant.

75 The defendant confirmed that the plaintiff had informed her he wanted to sell the property because he was in financial trouble however she did not enquire into what kind of financial trouble because that was his affair and in any event, he would not have told her even if asked. When asked further about the plaintiff's financial position, and in particular the money he had inherited from his father's estate, the defendant said that that had been used up with Maria going to India to collect Maria's daughter.

76 It was put to the defendant and she agreed that she made the offer to buy the property after the plaintiff had indicated his intention to sell. However she did not accept that the amount of the purchase price was nominated by her. She said that the plaintiff would have mentioned that price. However, in an affidavit sworn on 3 March 2000 in the District Court action the defendant had said:

"In or about July 1988 Allan told me he needed some money and that he had put his property at Mackie Street, Victoria Park on the market with P. T. Peet & Son a real estate agent on Albany Highway. I told him that I wanted to keep the property in the family and offered to pay him $40,000 for it. I told him that if I purchased the property from him, he could stay there free of rent so long as he paid all rates, taxes and expenses for the property and maintained it. Allan agreed to this and on 14 July 1988 he signed a contract for sale by way of offer and acceptance for that amount ..."

77 It was suggested to her that she was aware in July 1988 that the property was worth far more than $40,000. She denied having any knowledge of land values in the Victoria Park area. She said that the Hilton property, which was larger than the property, sold for a gross purchase price of $36,000.

78 The defendant's recollection is that the figure of $40,000 was first mentioned by the plaintiff who said he wanted cash. She had that cash from the sale of the properties. In November 1986 the defendant sold the land in Hilton and in March 1988 and May 1988 sold the land in Attadale and Rockingham from which she received net proceeds totalling $58,600. She kept the cash in a mattress at her home. She said she followed her husband's example in this regard. The defendant was unable to recollect whether or not she had a cheque or bank account at that time.

79 She rejected the proposition that she wanted the deal finalised quickly because of the bargain she was obtaining. The defendant repeated that the plaintiff wanted the sale done quickly because he needed the cash. The defendant insisted that the reason for the haste originated with the plaintiff.

80 The defendant explained that her address shown on the Transfer was that of Mr Campbell-Smith, namely 20 Beatrice Avenue, Shelley because her property at 67 Leonora Street, Como was under offer at the time.

81 The defendant was unable to comment on the state of the plaintiff's relationship with his wife Maria in July 1988.

82 The defendant said she had no recollection of saying to Mr Campbell-Smith that the house was transferred into her name to protect the plaintiff. However, she rejected the suggestion that the plaintiff was at the material time incapable of looking after himself or attending to his own affairs. She described the plaintiff as a smart man but "when he was sitting here in the box here giving his evidence, I was quite amazed".

83 The plaintiff has lived rent free at the property since July 1988 and she has made no efforts to sell the property or remove the plaintiff.

84 The plaintiff called Dr David Syed, a general practitioner working in occupational medicine. Dr Syed worked at the Westport Medical Centre in Fremantle. At material times the plaintiff had attended that medical centre and it appears was primarily under the care of Dr Graeme Martin. Dr Martin was unavailable to give evidence at the hearing because of a serious illness. Dr Syed gave evidence based on Dr Martin's clinical notes and correspondence. Both parties were content for Dr Syed to give evidence based on those notes without them being tendered.

85 A letter dated 29 October 1999 from Dr Martin was in evidence. It notes that Dr Martin first saw the plaintiff in respect of his ankle injury, which he described as a second degree potts fracture, on 1 September 1988. The letter continues:

"At the time of my first consultation with him he still had grossly limited ankle movements and pain, swelling about the ankle and a considerable degree of bruising around the joint and required to take powerful analgesics on a regular basis.

He continued to suffer with severe disabling ankle pains and limitation of movement and burning sensation in the foot which was later diagnosed as corsalgia, a complication in the nerves around the area of the ankle following a fracture on rare occasions. He's continued to have significant corsalgic pain and limited ankle movements with pain associated with degenerative changes in the joint since that time and is currently on an invalid pension in respect to his left ankle disability."

86 According to Dr Syed, corsalgia is a post-injury development and a diagnosis is usually made months or even years after the injury was sustained. However, the symptoms may set in rapidly and the difficulty in diagnosis is caused because of the difficulty in distinguishing between the pain in the early stages of the injury and the pain of corsalgia.

87 In a letter dated 9 September 1988, Dr Martin states that the plaintiff was in plaster for approximately six weeks following discharge from Sir Charles Gairdner hospital. Dr Syed was unable to confirm from the notes the exact period of time the plaintiff's lower leg was in plaster but confirmed that six weeks would be an appropriate length of time for the plaintiff's ankle to be immobilised.

88 The Sir Charles Gairdner Hospital notes establish that during his stay in hospital the plaintiff sought information concerning worker's compensation which was pursued by the hospital's social workers. Dr Martin's files contain correspondence between Dr Martin and the plaintiff's then solicitors concerning worker's compensation matters and correspondence with the solicitors for the insurers for the State Shipping Service in relation to the plaintiff's worker's compensation claim. A medical practitioner at Sir Charles Gairdner Hospital signed a certificate dated 25 October 1988 under the Workers' Compensation Act to the effect that the plaintiff was fit to resume work from November 1988. Dr Syed agreed that the matter of the plaintiff's worker's compensation settlement was not resolved until 1989 at the earliest.

89 Dr Syed also confirmed that the plaintiff would have been mobile on crutches on discharge from hospital and that the use of a wheelchair in the context of this injury would be unusual and was not supported by the documents.

90 The plaintiff was discharged from hospital with panadeine which can be purchased over the counter without prescription and is used to treat mild to moderate pain. There is no documentary evidence that Dr Martin or anyone else prescribed analgesics (pain killers) for the plaintiff in 1988 after discharge from hospital. If medication had been so prescribed, documentary evidence would be expected. There is a document which discloses that Dr Martin prescribed panadeine forte in 1991 which appears to be the earliest prescription for painkillers. However, by at least March 1992 the plaintiff was being reviewed at the pain clinic at Sir Charles Gairdner Hospital and he was then prescribed powerful pain killing and anti-depressive medication. Dr Syed's evidence was that Dr Martin had been treating the plaintiff for depressive symptoms with medication but it is unclear when that commenced.

91 According to Dr Syed, patients are generally advised not to drive whilst the lower leg is in a plaster cast because the cast is bulky and does not allow safe operation of the brake, clutch and accelerator pedals in a manual vehicle. However, Dr Syed conceded that people in that position had been known to drive vehicles notwithstanding medical advice.

92 The plaintiff's brother Warren was called by the plaintiff. Warren is seven years younger than the plaintiff. Warren confirmed that he was angry and bitter at losing the District Court action in which he accused his mother of stealing $85,000 from him. He is self-employed and has a motor vehicle dealer's licence. Warren confirmed that the plaintiff would have left school at age 15 or 16.

93 Warren gave evidence concerning the relationship between the plaintiff and the defendant and the nature and frequency of their contact. However, it emerged in cross-examination that he only saw the plaintiff at Christmas and on other family type occasions and knew very little about the plaintiff's life at least from the time of the plaintiff's first marriage. For example, he was not aware that the plaintiff had purchased a unit in East Fremantle. Warren accepted that he was not able to say with certainty whether or not the plaintiff had acquired any property other than the property.

94 Between 1996 and the end of 1998 the defendant lived with Warren and his family in Huntingdale. According to Warren, the defendant suddenly left his home and disappeared. He thereafter sought to establish her whereabouts. In January 1999 he went to the plaintiff's property for the purpose of enquiring whether he knew of the defendant's whereabouts. The plaintiff did not know. At that time Warren mentioned to the plaintiff that the property may no longer be registered in his name. Warren and Allan then went to the Department of Land Administration in Midland to search the titles of the property. Warren did a search and obtained copies of the certificate of title and Transfer for the property. Warren said that he became aware in 1996 from his former de facto wife, Donelle Feltham, that the property was no longer registered in the plaintiff's name

95 When the plaintiff swore affidavits in February and March 2000 in support of Warren's District Court action against the defendant, Warren said he suspected the plaintiff was under the influence of alcohol but did not really know. However, it is clear from Warren's evidence that the plaintiff "liked a few beers".

96 The plaintiff also called Donelle Feltham. She gave evidence that during September 1996 the defendant stayed with Warren and his family while she was recovering from surgery. During that period the defendant mentioned on two occasions that she was glad that the plaintiff had signed the house over to her because she would always be sure he would have a roof over his head. There was no mention that the defendant had purchased the house from the plaintiff and that any money had changed hands. Donelle informed Warren of what the defendant had told her. The witness was not cross-examined. However, the defendant denied in cross-examination having said anything to Ms Feltham concerning the property.

97 The plaintiff also called Mr Ross O'Neil who gave evidence concerning the market value of the property in July 1988. Mr O'Neil was a real estate agent who had been operating in the relevant area for 36 years.

98 He inspected the property in 2001. He described it as a brick and iron roofed house of 1930's vintage with two bedrooms, lounge, kitchen/dining and front and rear verandahs. It was situated on a 678 square metre block and may have been suitable for a duplex development.

99 He gave evidence of sales that took place in the later part of 1988 as follows:

100 Although Mr O'Neil was not aware of the condition of any of the sales evidence or indeed the house on the property, he concluded that the property would have had an approximate market value of $110,000 in 1988.

101 In cross-examination Mr O'Neil said that the area of the property was less than that required for a duplex development, however, development could have proceeded with the council approval. In any event, the relevance of this is unclear in light of Mr O'Neil's subsequent evidence that land did not sell as development property in those days but simply as residential property and that block size was not as significant then as it is today. Mr O'Neil agreed that the Valuer General's assessment of the property for stamp duty purposes at $72,000 was very conservative and conceded that he could not say with certainty what the market value of the property was in 1988 unless it had been tested in the market at the relevant time. He also conceded that the value of the property could have been $100,000. The defendant did not call any valuation evidence.

102 The plaintiff's case as conducted at trial raises for determination the questions whether the plaintiff:

(a) signed the written contract, Transfer and Receipt;

(b) attended at Mr Campbell-Smith's offices at the material time in July 1988 in connection with the transfer of the property.

103 These matters were not pleaded by the plaintiff. They should have been. However, the defendant had notice of these issues from the witness statements filed and served by the plaintiff prior to the trial. Further, the evidence was adduced and the plaintiff's case was conducted without objection.

104 The defendant's case at trial was that the written contract was supplemented by an oral agreement between the plaintiff and the defendant entitling the plaintiff to continue to live at the property provided he pay the rates and taxes. This was not pleaded by the defendant. It should have been. However, the plaintiff had notice of the evidence on this subject in the defendant's witness statement which was filed and served prior to the trial and the defendant's case at trial was consistent with the defendant's affidavit filed in the District Court action. Further, it was not in dispute that the plaintiff had continued to live in the property after the 1988 transaction as he had done since he inherited it in 1986. On the plaintiff's pleaded case, that was pursuant to an agreement with his mother. Finally, the evidence was adduced and the defendant's case was conducted without objection from the plaintiff.

105 Evidence that is irrelevant to the pleadings should be ignored for the purpose of deciding a case: Miller v Cameron [1936] HCA 13; (1936) 54 CLR 572 at 576-577 per Latham CJ. However, some (if not all) of the evidence was relevant to proof of the material facts on the existing pleadings. For example, the fact of and basis for the plaintiff's continuous and it seems exclusive occupation of the property after the transfer is relevant to the resolution of the plaintiff's trust claim. The central issue is one of procedural fairness to both parties. However, whether it be a matter of admissibility or fairness, the relevant principle is stated by the High Court in Gould & Birbeck & Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490 at p 517 as follows:

"Undoubtedly, as a general rule of fair play, and one resting on the fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting the case against him, pleadings should state with sufficient clearness the case of the party whose averments they are. That is their function. Their function is discharged when the case is presented with reasonable clearness. Any want of clearness can be cured by amendment or particulars. But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest."

106 At no stage of the trial did either party raise any objection based on the admissibility of the evidence, claim surprise as a result of the pleadings or seek an adjournment. I infer that to be because of their acceptance that they met each other on issues of which they had adequate notice and which were fairly fought out although perhaps not fully thought out. Accordingly, I will make findings of fact on these issues and rely on such facts where necessary for the purpose of deciding the case. Both parties failed to adduce expert evidence on the value of the plaintiff's right of residence, a matter clearly outside the expertise of the real estate agent Mr O'Neil. The defendant sought to take advantage of her omission in this regard to oppose the plaintiff's late application to amend to include an unconscionability plea. I now turn to that application.

107 At the conclusion of the evidence the plaintiff foreshadowed an application to amend the statement of claim to plead unconscionable conduct. That application was made before closing addresses and on the basis that no adjournment of the trial would be required.

108 The plaintiff's counsel (and solicitor) swore an affidavit in support of the application giving as the reason for its lateness the fact that it only became apparent to him during the evidence-in-chief and cross-examination of the defendant that based on that evidence, the defendant's conduct could be characterised as unconscionable.

109 It is necessary to consider the proposed amendments in the context of the existing pleading of undue influence. The existing and proposed amendments to the pleading (the latter being underlined) are as follows:

"10. Further or in the alternative, at all times material hereto:

10.1 there existed between the parties a special relationship of parent and child;

10.2 the plaintiff reposed trust and confidence in the defendant;

10.3 the defendant well knew that the plaintiff was the owner of the Property;

10.4 the Property had a market value $110,000.00.

11. By a contract in writing dated 14 July 1988 made between the plaintiff and the defendant, the plaintiff agreed to convey the Property to the defendant for a consideration of $40,000.00 of which $5,000.00 was allocated to chattels.

12. The plaintiff was induced to make the contract by the undue influence of the defendant and owing to the trust and confidence he reposed in her.

Particulars

(i) The plaintiff is the son of the defendant who had always dominated the plaintiff and had the capacity to influence him;

(ii) At the time that the contract was made the plaintiff had been severely injured in an accident and was recovering from his injury and using analgesics to still the pain;

(iii) Following the accident the plaintiff's state of mind was vulnerable and pliable and his independence of decision was substantially undermined;

(iv) The plaintiff was told by the defendant that the transfer of the Property was to protect it in the event of his death and that the Property would be transferred back to the plaintiff when he wanted that to happen;

(v) the plaintiff did not have an opportunity to obtain independent legal advice before making the contract.

13. The transaction pursuant to which the Property was transferred to the defendant was to the manifest disadvantage of the plaintiff.

Particulars

The plaintiff received no consideration from the defendant for the Property. Alternatively, and only in the event of this Honourable Court finding that the plaintiff received the amount of $40,000.00 as consideration for the Property (which is any event denied), the Plaintiff received insufficient consideration for the defendant having regard to its market value at the time of the contract.

14. Further, an only in the event of this Honourable Court finding that there was not a special relationship of trust and confidence between the plaintiff and the defendant such that undue influence of the defendant over the plaintiff can be presumed, then the plaintiff says that the actual undue influence of the defendant caused him to make the contract.

15. Further and in the alternative, at the time that the transaction pursuant to which the Property was transferred to the first defendant was made, to the knowledge of the first defendant, the plaintiff was under a special disability in his dealings with the first defendant:

Particulars

(i) The plaintiff, who is poorly educated and unsophisticated, is the son of the defendant who had always dominated the plaintiff and had the capacity to influence him;

(ii) At the time that the contract was made the plaintiff had been severely injured in an accident and was recovering from his injury and using analgesics to still the pain;

(iii) Following the accident the plaintiff's state of mind was vulnerable and pliable and his independence of decision was substantially undermined;

(iv) The plaintiff did not have an opportunity to obtain independent legal advice before making the contract;

(v) The plaintiff abused alcohol

16. As a consequence of the special disadvantage:

16.1 there was an absence of any reasonable degree of equality between the plaintiff and the first defendant; and

16.2 the plaintiff was the weaker party to the transaction;

16.3 the first defendant had superior bargaining power.

17. The plaintiff transferred to the first defendant the property to the plaintiff for no consideration, alternatively for a grossly inadequate consideration of $40,000.00 and in taking transfer of the Property from the plaintiff the first defendant took unconscientious advantage over the plaintiff.

Particulars

The Property was worth approximately $100,000.00 at the time of the transaction.

18. In the premises it would be unconscionable for the first defendant to retain the Property and the plaintiff is entitled to have the transaction pursuant to which the Property was transferred to the first defendant set aside."

110 The defendant opposed the application to amend on the ground that she would want to call actuarial evidence as to the value of what counsel described as the "licence to remain in the property for as long as [the plaintiff] continued to pay the rates and taxes" to test the allegation of inadequacy of consideration.

111 The defendant's counsel accepted that the very same issue arose in par 13 of the existing pleading yet the defendant had not pleaded a positive case to the plea and had not led any valuation evidence at trial. However, it was submitted that a plea of inadequacy of consideration assumed far greater importance in a plea of unconscionability than undue influence.

112 When asked whether, if the application was granted, the defendant would seek an adjournment, her counsel informed the Court that it would not necessarily follow that an adjournment would be sought. Further, the defendant had closing submissions in writing which addressed the unconscionability plea. Both parties were content to address on the unconscionability plea the subject of the proposed amendment on the basis that I rule on the application at a later stage.

113 The Court has jurisdiction at any stage of the proceedings, even after judgment, to grant leave to amend: O 21 r 5(5) of the Supreme Court Rules ("Rules").

114 It was not suggested that it would have been necessary to recall any witness who had already given evidence if the amendment was allowed. The defendant did not unequivocally state that an adjournment would be required if leave was granted. Further, there is no substance in the defendant's submission that a plea of inadequacy of consideration in the context of a plea of unconscionable conduct carries more significance than the existing plea of inadequacy of consideration for the purposes of undue influence. With the exception of the pleading that the plaintiff abused alcohol, all the other particulars of special disability are in substance included in the present pleading of undue influence. The defendant did not object to the amendment on the basis of the inclusion of the alcohol allegation.

115 There are differences of substance between the equitable doctrines of undue influence and unconscionable conduct. In particular, the focus in undue influence is on the quality of the assent of the transferor (usually expressed in terms of the person's will being overborne so that it is not independent and voluntary) whereas in unconscionable conduct the act may be independent and voluntary but result from a position of disadvantage: Commercial Bank of Australia v Amadio [1983] HCA 14; (1983) 151 CLR 447 at p 461. However, the two equitable doctrines are not mutually exclusive and may overlap. This is best illustrated in Louth v Diprose [1992] HCA 61; (1992) 175 CLR 621. Notwithstanding the differences between the two equitable doctrines, having regard to the factors listed above I propose to grant leave to amend in terms of the minute of further amended statement of claim dated 24 January 2002.

116 The plaintiff characterised the claim as one for a remedial constructive trust (as to which, see Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 at 111-114). I do not regard that as an exhaustive or accurate statement of the relevant legal principles which govern.

117 When X transfers property to Y without consideration with the intention that beneficial ownership of the property remain in X, the property is held by Y in trust for X, either because of the creation of an express trust or because the circumstances raise a presumption that a resulting trust exists: Nelson v Nelson [1995] HCA 25; (1995) 184 CLR 538.

118 If reliance is placed on an express trust, enforceability issues arise because the alleged agreement was oral: see s 34(1)(b) of the Property Law Act 1969 ("PLA"). However, on failure of an express trust, the trustee holds the property on resulting trust for the beneficiary: Re Vandervell's Trusts (No 2) [1974] Ch 269. The statutory formalities required of an express trust do not apply to resulting (or constructive) trusts: s 34(2) of the PLA.

119 In this case an express trust is inconsistent with the written contract. Further, before a resulting trust could arise, the plaintiff would have to prove that the expression of consideration was false and that the transfer was intended as a voluntary conveyance: Wirth v Wirth [1956] HCA 71; (1956) 98 CLR 228 per Dixon CJ at p 236-237.

120 The equitable doctrine of undue influence is divided into two categories. The first is actual undue influence. The second is presumed undue influence.

121 Actual undue influence is established when it is proven that the impugned transaction was the outcome of such an exercise of influence over the mind of the claimant that it is not considered a free act: Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113 per Dixon J at 134.

122 Presumed undue influence can arise in two ways. Firstly, from proof of a relationship which is recognised as giving rise to a presumption of influence. Secondly, from proof of circumstances which establish as a fact that the complainant reposed complete trust and confidence in the other party to the transaction (who I will refer to as the "dominant party").

123 If there is a relationship of influence, presumed or proven, the onus may or will shift to the dominant party to prove that the impugned transaction was the independent and voluntary act of the claimant.

124 The statement is qualified because of the uncertainty as to whether the claimant must prove that the impugned transaction is to the claimant's manifest disadvantage before the onus moves to the dominant party. When the impugned transaction is a gift the disadvantage is evident and the onus is irrelevant. Not so where the impugned transaction is one for value.

125 The law in England is settled. A claimant impugning a transaction must show that the transaction was manifestly disadvantageous before the presumption of undue influence arises: National Westminster Bank plc v Morgan [1985] UKHL 2; [1985] AC 686.

126 There is also Australian support for that position: James v ANZ Banking Group Ltd [1986] FCA 41; (1986) 64 ALR 347 at 389 per Toohey J; Farmers Co-operative Executors & Trustees Ltd v Perks (1989) 52 SASR 399 at 404.

127 It appears the Australian courts have historically approached the matter in a slightly different way but with a similar outcome. On this approach the existence of a presumed relationship of influence or proven influence does not of itself give rise to the presumption of undue influence. Content is given to the requirement that the influence be "undue". In Poosathurdi v Kanappa Chettiar (1919) LR 47 Ind App 1 at 4, Lord Shaw of Dunfermline, speaking for the Privy Council, said that, even though influence had been proved, such influence:

" ... may be used wisely, judiciously and helpfully. But... more than mere influence must be proved so as to render influence, in the language of the law, 'undue'. It must be established that the person in a position of domination has used that position to obtain unfair advantage for himself, and so to cause injury to the person relying on his authority or aid."

128 Lord Shaw's statement has been accepted as correct by the High Court in Watkins v Combes [1922] HCA 3; (1922) 30 CLR 180 at 194 per Isaacs J and in Harris v Jenkins [1922] HCA 54; (1922) 31 CLR 341 at 368 per Starke J. Further, Lord Shaw's statement in Poosathurdi is relied on in National Westminster Bank v Morgan (supra)

129 However, it is clear that the question of disadvantage is not solely a question of inadequacy of consideration. There is no doubt that proven inadequacy of consideration is a material factor: Johnson v Buttress (supra) per Dixon J at 135-136. However, a transaction may not be in a person's best interest even when the transaction is for full value. I do not understand Lord Shaw or the English authorities to suggest that disadvantage is synonymous with inadequacy of consideration where the impugned transaction is for value. With that qualification I propose to follow the law as stated by Lord Shaw.

130 I turn now to the question of relationships of influence. A relationship of parent and child is a presumptive relationship of influence. Gifts and benefits to a parent from a child (but not vice versa) are subject to the presumption: Johnson v Buttress (supra) per Dixon J at p 134.

131 However, the presumption ceases to apply once the child has become "emancipated" from the control and authority of the parent. That is a question of fact. The authorities are not consistent on the question of who bears the onus of establishing emancipation. However, the balance of authority in Australia (which I propose to follow) is to the effect that the onus is on the parent: Lamotte v Lamotte (1942) 42 SR (NSW) 99 at 102; West v Public Trustee [1942] SASR 109 at 119-120; Phillips v Hutchinson [1946] VicLawRp 39; [1946] VLR 270; cf Powell v Powell [1900] 1 Ch 243 at 245-246; In re Pauling's Settlement Trusts [1964] Ch 303 at 337.

132 Relevant factors in determining emancipation include age and the nature and extent of the child's financial and emotional independence. Matters relevant to the question of emancipation overlap to some extent with matters relevant to whether there is a proven relationship of influence. As stated by Gillard J in Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VicRp 69; [1971] VR 573 at 577, they include inter alia:

(a) the standard of intelligence, education, character and personality of the claimant;

(b) the age, state of health, experience or lack of it in business affairs of the claimant;

(c) the relevant strength of character and personality of the dominant party

(d) the opportunity afforded the dominant party to influence the claimant in business affairs.

133 There is also an overlap between the factors which put a person at a special disadvantage or disability and those which render a person more vulnerable to a relationship of influence: Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457 at 490; Louth v Diprose [1992] HCA 61; (1992) 175 CLR 621. Further, inadequacy of consideration or other substantive unconscionability may be used to support an inference of a relationship of influence or a special disability: Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362 at p 405 per Fullagar J.

134 As stated earlier, the dominant party bears the burden of proving that the transaction was a voluntary and well understood transaction. That burden can be discharged in a variety of ways. The facts which must be proved in order to satisfy the court that the claimant was free from influence vary because of the different types of relationships in which the relevant influence may vary in kind or degree: Johnson v Buttress (supra) per Dixon J at 135.

135 It will be relevant to know whether the transaction was justified by any sufficient reason which is usually linked to the question of whether it was an improvident transaction. The presence or absence of independent advice is also a relevant factor.

136 The equitable doctrine of unconscionable conduct, like undue influence, is a species of that genus of equitable intervention to refuse enforcement of, or to set aside transactions which, if allowed to stand, would offend equity and good conscience: Bridgewater v Leahy (supra) at 477-478.

137 The equitable jurisdiction arises whenever one party to a transaction is at a special disadvantage in dealing with the other because illness, ignorance, inexperience, and impaired faculties, financial need or other circumstances affect his ability to conserve his own interests, and the other party unconscientiously takes advantage of the opportunity thus placed in his hands: Blomley v Ryan (supra) at 415 per Kitto J.

138 The various strands of the doctrine are identified by Deane J in Commercial Bank of Australia Ltd v Amadio (supra) at 474. He said:

"The jurisdiction is long established as extending to circumstances in which (i) a party to a transaction was under a special disability in dealing with the other party with the consequence that there was an absence of any reasonable degree of equality between them and (ii) that disability was sufficiently evident to the stronger party to make it prima facie unfair or 'unconscientious' that he procure, or accept, the weaker party's assent to the impugned transaction in the circumstances in which he procured or accepted it. Where such circumstances are shown to have existed, an onus is cast upon the stronger party to show that the transaction was fair, just and reasonable."

139 The disabling condition or circumstance must be one which "seriously affects the ability of the innocent party to make a judgment as to his or her own best interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party:" Commercial Bank of Australia Ltd v Amadio per Mason J at 462.

140 Inadequacy of consideration is not an essential element in order to ground relief for unconscionable conduct: Blomley v Ryan (supra) per Fullagar J at 405; Commercial Bank of Australia Ltd v Amadio (supra) per Deane J at 475.

141 Further, in determining whether a transaction if fair, just and reasonable the presence or absence of independent advice is also relevant. The role of independent advice in this equitable doctrine and undue influence was compared by the High Court in Bridgewater v Leahy (supra) at p 485.

142 The word "laches" is used in two senses. In the first sense it means delay with acquiescence. In this context, acquiescence refers to the action of a plaintiff over a long period with full knowledge of his or her rights refraining from exercising the rights in circumstances where it can properly be inferred that they are abandoned. The conduct is sometimes described as waiver. It does not mean abstaining from interference while the violation of the person's rights is in progress which is the province of estoppel.

143 The second kind of laches is delay which causes prejudice. There is no limit on the circumstances that may constitute prejudice. However one example is where evidence is lost as a result of delay: Orr v Ford [1989] HCA 4; (1989) 167 CLR 316 at 330; Crago v McIntyre [1976] 1 NSWLR 729.

144 The question of whether mere delay, without more, is capable of constituting laches has not been authoritively determined (see Meagher, Gummow, Lehane, "Equity Doctrines and Remedies", Butterworths, 3rd ed, 1992, pars 3613-3616). The authors also suggest (at par 3617) that where the defendant relies on that category of laches based in substance on waiver, the party against whom the defence is urged must know of the facts on which his rights depend and what his rights are (at par 3617). That would appear to be correct in principle.

Powell v Powell & Anor [2002] WASC 105

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (239 paragraphs)

Powell v Powell & Anor [2002] WASC 105 (8 May 2002)

The Events of July 1988 and Related Matters - The Evidence

Parties

Legislation Cited (1)

Cases Cited (21)