Grant v Grant; Grant v Grant (No. 2) [2020] NSWSC 1288

Supreme Court New South Wales

Medium Neutral Citation: Grant v Grant; Grant v Grant (No. 2) [2020] NSWSC 1288 Hearing dates: 4, 5, 6 & 7, 10, 18 February and 15 April 2020 Date of orders: 24 September 2020 Decision date: 24 September 2020 Jurisdiction: Equity Before: Slattery J Decision: In the estate recovery proceedings orders made setting aside the transfer of real estate to the second defendant and the lease from the second defendant to the first defendant. Costs follow the event in the estate recovery proceedings. In the family provision proceedings the plaintiff's claim is dismissed. Costs follow the event in the family provision proceedings. Catchwords: EQUITY – unconscionable bargains – elderly person, since deceased, gives power of attorney to his eldest daughter – she uses the power of attorney to transfer the deceased's home to her own daughter, either for no consideration, or for named consideration of $900,000 – no formal security was given after the transfer of the property for the payment of the purchase price – deceased's eldest daughter also transfers money out of the deceased's bank accounts – these transactions left the deceased without the capacity to meet his nursing home outgoings – the deceased's estate now seeks recovery of the property and an account of moneys transferred from his accounts – whether transactions were in breach of fiduciary duty, or unconscionable, or beyond the authority conferred by the deceased's power of attorney to his eldest daughter. FAMILY PROVISION – a mother of five children leaves a will which failed to make any provision for her eldest daughter, the plaintiff – after the death of the mother the plaintiff claims that she has been left without adequate provision from the estate of the deceased for her proper maintenance, education or advancement in life – whether the plaintiff has received money during the lifetime of the deceased – whether the plaintiff by her conduct has disentitled herself from making a claim upon her deceased mother's estate – whether the plaintiff has been left without adequate provision from the estate of the deceased for her education, maintenance and advancement in life. Legislation Cited: Civil Procedure Act 2005, s 100 Evidence Act 1995, s 140(2)(c) Powers of Attorney Act 2003 Real Property Act 1900, s 42(1) Succession Act 2006, Chapter 3, s 59(1)(c) Uniform Civil Procedure Rules 2005, r 7.10 Cases Cited: An Elderly Plaintiff by his tutor the NSW Trustee & Guardian v A Daughter and A Granddaughter [2019] NSWSC 1747 Baden & Ors v Société Générale pour Favoriser le Développement du Commerce et de l'Industrie en France SA [1992] 4 All ER 161 Barnes v Addy (1874) LR 9 Ch App 244 Drury v Smith [2012] NSWSC1067 Ellem v Webber [2020] NSWSC 910Evans v Levy [2011] NSWCA 125Drury v Smith [2012] NSWSC1067 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Hagan v Waterhouse (No 2) (1992) 34 NSWLR 400 Heid v Reliance Finance Corporation Pty Ltd (1983) 154 CLR 326 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 Keaton v Gumulak [2020] NSWSC 943 Kiernan v Cranston and Purcell as Executors of will of Cranston (No 2) [2019] WASC 410. Merle Gwynneth Grant v Alan Grant [2012] NSWSC 725 Portis v Green [2017] NSWSC 1489 Simmons v NSW Trustee and Guardian (2014) 17 BPR 33,717 Singer v Berghouse (No. 2) (1994) 181 CLR 201 McFee v Reilly [2018] NSWCA 322 Merle Gwynneth Grant v Alan Grant [2012] NSWSC 725 Toscano v Toscano [2017] NSWSC 419 Underwood v Gaudron [2014] NSWSC 1055 Underwood v Gaudron (2015) 324 ALR 641 Category: Principal judgment Parties: In proceedings 2017/316190 ("the estate recovery proceedings"):