La Selva v La Selva [2025] NSWSC 78

Supreme Court New South Wales

Medium Neutral Citation: La Selva v La Selva [2025] NSWSC 78 Hearing dates: 2 – 4 December 2024 Date of orders: 20 February 2025 Decision date: 20 February 2025 Jurisdiction: Equity Before: Pike J Decision: (1) Direct the parties to confer and seek to agree final orders to give effect to these reasons, including as to costs. (2) Direct the parties to provide any agreed orders, or competing orders, to my Associate by no later than 5pm on 3 March 2025. (3) In the event there is no agreement, including as to costs, direct the parties to provide to my Associate by no later than 5pm on 3 March 2025 any submissions and supporting material, such submissions not to exceed 3 pages. (4) Direct the parties to provide to my Associate by no later than 5pm on 10 March 2025 any submissions and supporting material in reply, such submissions not to exceed 3 pages, whereupon the remaining issues will be determined on the papers. Catchwords: EQUITY – unconscionable conduct – recovery of monies paid from elderly mother's account to carer son – whether mother was under a special disadvantage – whether this impacted her ability to make a judgment that is in her best interests – whether son took unconscionable advantage – whether transactions were fair, just and reasonable – no question of principle CONTRACTS – unjust contract – whether agreement supported by consideration - whether agreement voidable at general law or under Contracts Review Act 1980 (NSW) – agreement between elderly mother and carer son to transfer funds – funds then used to pay refundable accommodation deposit in nursing home – deposit then refunded to son upon mother's death via estate – finding that the agreement was an unjust contract EQUITY – breach of fiduciary duty – son appointed enduring power of attorney – various transactions carried out purportedly by elderly mother – whether son was subject to usual fiduciary duties having accepted power of attorney – whether breach of fiduciary duties by obtaining unauthorised benefit and being in a position of conflict Legislation Cited: Contracts Review Act 1980 (NSW) ss 4, 7, 9(1) and 9(2) Cases Cited: Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447; [1983] HCA 14 Hanna v Raoul [2018] NSWCA 201 Hospital Products v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64 Howard v Commissioner of Taxation (2014) 253 CLR 83; [2014] HCA 21 Jenyns v Public Curator (Qld) (1953) 90 CLR 113; [1953] HCA 2 Kakavas v Crown Melbourne Limited (2013) 250 CLR 392; [2013] HCA 25 Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61 Mentink v Olsen [2020] NSWCA 182 Nitopi v Nitopi (2022) 109 NSWLR 390; [2022] NSWCA 162 Provident Capital Ltd v Papa (2013) 84 NSWLR 231; [2013] NSWCA 36 Rydzewski v Rydzewski [2024] NSWSC 802 Stubbings v Jams 2 Pty Ltd (2022) 276 CLR 1; [2022] HCA 6 Taheri v Vitek (2014) 87 NSWLR 403; [2014] NSWCA 209 Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 Texts Cited: JD Heydon, Heydon on Contract: The General Part (2019, Thomson Reuters) Category: Principal judgment Parties: Milvia La Selva (First Plaintiff) Melissa Isaacs (Second Plaintiff) Angelo La Selva (Defendant) Representation: Counsel: N Simpson with A Green (Plaintiffs) M Pringle (Defendant)