PAUL GEORGE PTY LTD v GEORGE as Executor of the Estate of the Late GEORGE [1998] NSWCA 288

PAUL GEORGE PTY LTD v GEORGE as Executor of the Estate of the Late GEORGE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

POWELL, STEIN JJA and SHEPPARD AJA

17 June 1998, 16 December 1998

DEEDS — Execution of deed disposing of interests in land — Execution by 89 or 90 year old illiterate and mentally impaired woman (now deceased) unable to read or write in English or her native tongue, Arabic — Action by her executor to set aside deed on grounds of non est factum, undue influence and unconscionability — Deceased taken by members of her family to solicitor's office where the deed and a will, neither of which she had previously seen or had explained to her, signed by her in presence of solicitor, a person competent to speak English as well as Arabic and two members of her family — Conflicts in evidence about role played by solicitor and interpreter as well as members of the family — Conflicts also as to what, if any, explanation of the documents was given — Primary judge found non est factum, undue influence and unconscionability established — Findings of fact challenged on ground that they led to a result that was fundamentally improbable and implausible — Discussion of elements of non est factum.

Powell JA I agree with Sheppard AJA.

Stein JA I have had the opportunity of reading the draft judgment of Sheppard AJA. IT agree with his Honour's reasons and with the orders which he proposes.

Sheppard AJA This is an appeal from a judgment delivered in the Equity Division of the Court (Santow J) as a consequence of which, on 3 April 1996, his Honour made a number of declarations and orders. In substance the Court declared that a deed of agreement dated 14 September 1987 between the late Habsie George and the first appellant, Paul George Pty Ltd, was void from its inception and of no effect, and that a deed dated 7 March 1984 between the late Habsie George and the appellants, Paul George Pty Ltd (hereinafter referred to as "the company") and Mr Paul George who were the first and second defendants in the proceedings below, was valid and enforceable. The Court ordered that the company should, within thirty days from the date of the order, obtain a valuation for stamp duty purposes of the whole of the land in certificate of title folio identifier 12/772126, pay all moneys including stamp duty, valuation and registration fees as might be necessary to cause the respondent John Francis George as executor of the estate of the late Habsie George to become the registered proprietor of the land in the certificate of title, and to deliver to the first respondent's solicitor the original certificate of title and a stamped transfer in registrable form executed by the company as transferor to the executor of the estate of the late Habsie George. The Court also ordered that the company was to release and discharge the executor and the estate of the late Suzanne Mary Hall from complying with any of the obligations contained in para2(ii) of orders made by Bryson J on 8 March 1993 in proceedings No 1939/91 in the Equity Division. Additionally, the Court made certain consequential orders to which it is unnecessary to refer.