Wardle v Wardle [2021] NSWSC 1529

Supreme Court New South Wales

Medium Neutral Citation: Wardle v Wardle [2021] NSWSC 1529 Hearing dates: 1 and 2 June 2021 Date of orders: 3 December 2021 Decision date: 03 December 2021 Jurisdiction: Equity Before: Slattery J Decision: See paragraph [213]. Catchwords: EQUITY – unconscionable bargains – undue influence - elderly person gives power of attorney to her adult daughter, the defendant – the defendant/daughter lives with her mother – using the power of attorney the daughter claims she assists her mother to sell her house, before relocating the mother into a nursing home – daughter applies the funds from the sale of the mother's house property to purchase her own property, claiming that the funds were an inter vivos gift from the mother to her – after the mother's death her will leaves her estate equally to the defendant and the plaintiff but little remains in the estate – the son challenges these transactions and claims a constructive or resulting trust on behalf of the estate over the defendant's property acquired with the proceeds of sale of the mother's house – whether the sale of the mother's property and application of the sale proceeds by the daughter was improvident – whether the mother received independent legal advice – whether the mother was suffering from dementia – whether the mother was dependent upon the daughter – whether the mother was in a position of special disadvantage in relation to the daughter at the time of the transactions – whether the transactions resulted from the unconscionable conduct or actual undue influence of the daughter over the mother. SUCCESSION – Family Provision – competing claims by two adult children for provision from the estate of their deceased mother under Succession Act 2006, Chapter 3 – the mother's will leaves her estate to her adult son and daughter – the deceased's estate is minimal, as a result of the sale of the mother's principal asset, her residence, six months before her death – not in issue that the proceeds of sale of the mother's residence are notional estate – the son brings proceedings for further provision from the mother's estate and notional estate – the mother gifted the son a property during her lifetime but he sold it to meet pressing financial obligations – whether the son requires further provision for his proper maintenance, education or advancement in life – the daughter brings a contingent claim for further provision for the mother's estate, in the event that property purchased with the sale proceeds of the mother's residence is held in trust for the estate – whether the daughter requires further provision from the estate for her proper maintenance, education or advancement in life. Legislation Cited: Civil Procedure Act 2005, s 56 Guardianship Act 1987 Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015, rr 11.1, 11.2, 11.3 Powers of Attorney Act 2003, ss 12(2), 13(2) Succession Act 2006, Chapter 3, ss 59(1)(c), 60, 91 Uniform Civil Procedure Rules 2005, rr 7.10, 7.10(2)(a) Cases Cited: Allcard v Skinner (1887) 36 Ch D 145 Bank of Credit and Commerce International SA v Aboody and another [1990] 1 QB 923 Banks v Goodfellow (1870) LR 5QB 549 Drury v Smith [2012] NSWSC 1067 Hewitt v Gardner [2009] NSWSC 1107 Heydon v Perpetual Executors Trustees & Agency Co (WA) Ltd (1930) 45 CLR 111 Singer v Berghouse (No. 2) (1994) 181 CLR 201 Torok v Becker [2020] NSWSC 1570 Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278 Whereat v Duff (1972) 2 NSWLR 147 Texts Cited: PW Young, C Croft, ML Smith, On Equity (2009, Thomson Reuters) Category: Principal judgment Parties: Plaintiff: Roderick William Wardle Defendant: Sharon Patricia Wardle Representation: Counsel: Plaintiff: N. Bilinsky Defendant: A. Blank