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. 2 UNREPORTED JUDGMENTS In addition to the company and Mr Paul George, the defendants sued below included Mr Peter Wayne George ("Mr P W George"). He is not an appellant but was joined in the appeal as the second respondent. He did not appear at the hearing of the appeal. The respondent to the appeal is Mr John Francis George ("Mr J F George") as executor of the estate of the late Habsie George ("Mrs George"). The estate was the only plaintiff in the proceedings at first instance. It will subsequently emerge that Mr J F George may have a personal interest in the outcome of the proceedings but it should be clear that he has not sued, nor has he been sued, in his personal capacity. His part in the proceedings is limited to his position as the personal representative of the late Mrs George. The learned primary Judge found that the deed of agreement dated 14 September 1987 was void and of no effect because he considered that a defence of non est factum pleaded by the estate in the proceedings below had been made out. Notwithstanding that his Honour's finding in that respect concluded the matter, he went on to make findings in relation to undue influence and unconscionability. He also dealt with laches and delay and estoppel and with certain other matters. All his Honour's findings were adverse to the appellants. His Honour's conclusion in relation to non est factum included the statement that the consequence of a successful plea of non est factum was that the deed in question was void ab initio or a nullity. When dealing with the defences of undue influence and unconscionability, his Honour said that, if these were the only defences to be made out, the deed would be voidable and not void. Laches and delay were relevant only to the defences of undue influence and unconscionability. They had no application in relation to the defence of non est factum because, his Honour having found that the 1987 deed was not Mrs George's deed, the deed was void ab initio. The Facts: Before coming to the submissions made on behalf of the parties, I should refer to the facts. The account I am about to give is taken substantially from his Honour's judgment. The late Habsie George was born in February 1897 or 1898 in Syria. In June 1919 she married Farrah George. They had six children, Paul (the second appellant), Anthony, Suzanne ("Mrs Hall") (now deceased) (sometimes referred to in the evidence as Susan Hall), Louis, Edmund and John (ie Mr J F George, the executor of Mrs George's estate and the principal respondent to this appeal). In 1924 Mr and Mrs George emigrated to Australia. His Honour said that the overwhelming evidence was that Mrs George was never able to read or write in English although "conceivably she may have been able to pick out one or two words". Neither could she write in her native Arabic language. His Honour referred to the evidence of Dr Henderson which he found to be cogent and reliable. Mr J F George gave evidence that Mrs George was totally unable to read, speak or understand English and that she had never been educated nor was she able to read or write in Arabic. This evidence was corroborated by Mr Peter George and Ms Judith George. Mr Paul George acknowledged that his mother was unable to read or write in English or her native language. Mr J F George gave evidence that in about 1960 he taught his mother to sign her name. He did this by writing out her name on a piece of paper which she copied. Mr George said that he observed his mother signing her own name on numerous occasions in this manner but did not observe her signing her own name WAWL GEORGE PTY LTD v GEORGE as Executor of the Estate of the Late GEORGB (Sheppard AJA) without copying another piece of paper on which her name had been written by someone else. He also observed her on numerous occasions writing her initials which she was able to do without copying. Mr John George's account was corroborated by Ms Judith George and, so his Honour said, further corroborated by events to which he later referred. Both the 1987 deed, which his Honour found to be void, and a will which Mrs George signed contemporaneously, were signed with an "X". His Honour said that the extent of Mrs George's understanding of English was a matter, to some extent, in dispute, although the dispute was really as to the degree of the impairment of her understanding rather than that she had impaired understanding of English. He referred to the detail of some of the evidence and said that Dr Henderson confirmed that she spoke very little English. Independent confirmation of this was found in the fact that it was necessary to read to Mrs George in the Arabic language the contents of a number of documents before she signed them. These were in affidavits she had sworn on 17 March 1983 in earlier proceedings, the 1984 deed and her last will dated 3 February 1989. The documents contain reference to the fact that they were translated by an interpreter to Mrs George before she executed them. The solicitor who "had her [Mrs George] sign the 1987 deed saw the need for an interpreter at the meeting of 14 September 1987". Mr Paul George thought it a good idea that an interpreter be used. After referring to further evidence his Honour said that he was satisfied that Mrs George spoke very little English and that, when speaking to her, it was necessary to speak very slowly and clearly in "basic English" using very short sentences. His Honour also said that there was ample evidence that Mrs George was commercially inexperienced. She did not go shopping by herself. All her grocery and household requirements were purchased by members of her family. She did not count out money for herself. This was always done by Mr J F George. Mrs Hall had sworn an affidavit before her death. It was tendered at the hearing. In it she said that her mother could not speak English and that whilst her father was alive he did all the shopping and attended to all matters involving business, money or the outside world. After her father died, she took over this role and did all the shopping for her mother. When Mrs George worked at the fruit stall owned by the family, she performed menial tasks such as packing and unpacking vegetables from boxes. She did not serve customers or deal with change. His Honour referred to evidence given by Mrs George in earlier proceedings about her commercial inexperience. She said that her husband had always attended to household accounts, shopping and all legal and business matters and that she worked hard all her life on the farm and in raising her family. His Honour added, "In essence then, as Dr Henderson put it in her evidence, she was not responsible for her own affairs". His Honour said that it was not inconsistent with these conclusions that from time to time Mrs George made statements to the effect that she understood "everything" or "the documents". He said that this evidence was entirely consistent with Dr Henderson's view that in her experience, Mrs George was very good at "putting on a front". She would frequently say, "Yes, yes, yes," about things she did not understand. This was the way, so his Honour said, that Mrs George had acted and behaved at the meeting held on 14 September 1987. 4 UNREPORTED JUDGMENTS His Honour said that Mr George Senior had died in 1960. He said that the kernel of the subsequent dispute between the parties had its origin in his will dated 5 September 1960. Under it he left the bulk of his estate to the son of Mr Paul George, Mr P W George, the third defendant in the proceedings below and the second respondent here. Mrs George was left nothing under her husband's will apart from a life tenancy. She made an application under the Testators' Family Maintenance and Guardianship of Infants Act 1916, which was then in force. In 1963 the application was settled by the transfer to Mrs George of two allotments of land. His Honour said that the property was, at the time of his judgment, and at the time of the transfer, a proposed subdivision along the Scenic Highway at Terrigal. He said it "represented land owned by her late husband". On 8 August 1979 Mrs George entered into a contract of sale with the company which was controlled by her son, Mr Paul George. Under the contract she agreed to transfer to the company one of the two allotments of land which had been transferred to her. She had no independent advice concerning the transaction which was without any adequate consideration. In 1981 she commenced proceedings in the Equity Division against Mr Paul George and the company seeking the transfer back to her of the allotment on the basis that she did not know or appreciate what she was doing when she entered into the contract. On 7 March 1984 the proceedings were settled by the 1984 deed referred to in his Honour's declarations. The parties to the deed were Mrs George, Mr Paul George, the company, Mr P W George and Mr J F George. The 1984 deed provided that the original allotment of land be subdivided into six lots numbered 12 to 17. Certificates of title for the new lots 12 and 15 were to be issued to Mrs George or her nominee. I do not refer to the detail of the provisions of the 1984 deed except to mention that it provided that, in the event that the certificates of title for lots 12 and 15 were not issued to Mrs George or as she may have nominated and directed within twelve months of the date of the deed or such extensions thereof as may have been granted in writing, Mrs George was thereupon to be entitled to take all such further steps to effect the subdivision and obtain the issue of certificates of title. The company authorised "and to the extent necessary to execute any documents", appointed Mrs George its attorney to take all steps necessary and incidental "to effecting the same". After the deed was entered into, a caveat was lodged on Mrs George's behalf in order to protect her interests. In 1985 Mrs George suffered from pneumonia. Her general condition deteriorated significantly. According to Dr Henderson she then developed short-term memory loss and suffered from short periods of confusion. Her hearing and sight were impaired. From that point on she became increasingly and considerably more blind. She was unable to look after herself, unable to cook, unable to bathe herself and unable to do any housework. From then onwards it was necessary for her to have care on a daily basis. This was initially provided by her daughter Suzanne and subsequently by her son Anthony during the period 1986 through to 1987. During 1986 and early 1987, Mrs George made, or purported to make, nominations in respect of persons who were nominated to have the new lot 12 transferred to them at her direction. The nominations were challenged in the proceedings as ineffective on a number of grounds to which his Honour later referred. But, from 12 May 1986 to 22 January 1987, she made, or purportedly made, four nominations pursuant to clB(3) of the 1984 deed. This provided that, WAWL GEORGE PTY LTD v GEORGE as Executor of the Estate of the Late GEORGB (Sheppard AJA) within one month after registration of the plan of subdivision, the company would take such steps as might be necessary to cause certificates of title to issue in the name of Mrs George or as she might nominate and direct. Pending delivery of the certificates of title the company was to hold the land in trust for her. His Honour said the first nomination was made on 12 May 1986 by a letter from a firm of solicitors purporting to act for Mrs George requiring the certificates of title for lots 12 and 15 to be issued in the name of Anthony George. The second nomination was dated 3 June 1986 and was of Mr Anthony George, Mr J F George and the late Mrs Hall as registered proprietors of lots 12 and 15. The third nomination was dated 20 June 1986 and was of Anthony George as registered proprietor of lot 12 and Mr J F George as registered proprietor of lot 15. The fourth nomination was by letter dated 22 January 1987 by solicitors acting on behalf of Mrs George, this time indicating that lots 12 and 15 were to be registered in the name of Anthony George. The appellants submitted that the purported nominations were ineffective for a number of reasons. These were: (a) Mrs George did not have the capacity to make any such nominations after her return from hospital at the beginning of July 1985. Dr Henderson gave evidence that she was unable to understand the effect of legal documents even when explained to her in her own dialect. Dr Henderson said that she first suffered from this inability on her return from hospital at the beginning of July 1985. His Honour said that the evidence had not been effectively challenged or disputed. (b) There was no evidence that the firm of solicitors, RR Dawson & Co, which had purported to act for Mrs George, had authority to make any nominations on behalf of Mrs George. It was submitted that the nominations should have been under the hand of Mrs George and were not. The appellants contended that the Court could not be satisfied that the nominations were the result of Mrs George's free, voluntary and independent will or made with capacity to understand the nature of what she was doing. It was not open in any event for such nominations to be made since lots 12 and 15 were already held on trust by Anthony George for Mrs George. (c) On the proper construction of clB(3) of the deed of 7 March 1984 and the letters of purported nomination, the nominations related only to the legal title and did not convey or purport to convey the beneficial title to the nominees. (d) In any event there was said to be evidence that the nominations were never accepted so far as beneficial title was concerned by Anthony George or any other nominee. His Honour said that by 1987 Mr J F George took over the care of Mrs George on a daily basis as Mrs Hall's health was deteriorating and as Anthony had remarried. His Honour discussed some other matters to which I do not find it necessary to refer, but in the course of doing so said that he found Mr J F George an essentially reliable witness. He had "significant reservations" about the veracity of Mr Paul George. He gave reasons why he considered the evidence of Mr Paul George to be unreliable. Amongst other things he referred to the fact that he had been convicted of false pretences and sentenced to one year's imprisonment. He said that Mr George was not prepared to acknowledge, in the course of his cross-examination, that this conviction had been recorded against him. His Honour relied upon other matters upon which to base his conclusion. I do not refer to the detail of these but it would seem that his Honour's finding about the credibility of Mr Paul George is not one that could be disturbed. Except perhaps 6 UNREPORTED JUDGMENTS in the most general and indirect way, which I shall explain when dealing with the appellants' submissions, there was no challenge to his Honour's findings in this respect. Just prior to 14 September 1987 Mr John George was contacted by Mr Paul George and requested to arrange for Mrs George to come to the offices of a firm of solicitors, Bingham, Finlay & Turnell. Mr J F George understood that the meeting was to be held for the purposes of Mr Paul George and the company performing their obligations under the 1984 deed. These were in essence to effect the transfers of the new lots 12 and 15 either to Mrs George directly or on her behalf. His Honour said that the appellants refuted this saying that Mr J F George was fully aware of what he was to sign. Nevertheless, his Honour said that he was satisfied that, at the time of the meeting, Mr J F George remained unaware of the true contents of the deed. His Honour then made findings about what transpired at the meeting held on 14 September 1987. As his Honour said, the evidence was confused. It is important that his ultimate findings about what transpired at the meeting be understood. To this end, I need to set out some of the detail of what his Honour said were the conflicting accounts of the witnesses. His Honour's judgment in this respect was as follows: "John George says in paral0 of his affidavit of 13 July 1993 that he drove his mother to the offices of Bingham, Finlay & Turnell at Woy Woy on 14 September 1987. At the solicitor's office he and his mother met his brother Paul and his son, Peter George. The interpreter, Mr Baynie, arrive by a prior arrangement, and they went into Mr Turnell's office. The interpreter was introduced to Habsie George. They greeted each other in Arabic and enquired as to each other's health. Mr Turnell then briefly read out part of the document to the meeting and said: "This is a document by which you (referring to Habsie George) release a caveat for Paul and in return he gives you two blocks of land to be held in trust for you by John and Sue." The document was placed in front of Habsie George and she was asked to sign. The interpreter said words to the effect "He wants you to sign this". She replied in Arabic "I cannot sign my name very well". Following this a discussion ensued between Mr Baynie the interpreter, Paul George and Mr Turnell. The interpreter then said to Habsie George: "Just make a mark". She proceeded then to make a mark on the document. A second document was then placed in front of her and she was asked to sign that document. Mr Turnell said: "This is a will, stating that you give your house and everything to your son, John, for him to give a share to the rest of the family and that your son, Paul, be appointed the executor". The interpreter then claimed he said to Habsie George in Arabic, "This is a will whereby you give everything to John". John George said that his sister, Suzanne, was not in attendance at the meeting; see para4 of his affidavit of 10 May 1995. John George said that he was not given any documents to read or sign at the office; see para4 of his affidavit of 10 May 1995. He said that Mr Turnell opened the document at the relevant page where it was to be executed and never opened any other page of the document; para4 of John George's affidavit of 10 May 1995. John George denies that the deceased ever said: "Yes, Yes I know what it is. ''m signing a will leaving everything to John. I'm transferring one block to Suzanne and John and one to Paul" or words to that effect; see para4 of his affidavit of 10 May 1995. WAWL GEORGE PTY LTD v GEORGE as Executor of the Estate of the Late GEORGE (Sheppard AJA) John George says in paral0 of his affidavit of 13 July 1993 that he was present with his mother at all times during this meeting. He said he could speak and understand Arabic and he was able to say that at no time was either the 1987 Deed or the will read out paragraph by paragraph to his mother and that at no time prior to this meeting had the interpreter seen the documents or read them to his mother. He denied that the interpreter Mr Baynie translated any of the documents to the deceased; see para4 of the affidavit of John George of 10 May 1995. Importantly, at no stage in his evidence does Paul George say that Mr Baynie translated to his mother the terms of the 1987 Deed. Paul George said (Transcript at 141) that he could not recall what Mr Baynie had read out or how much he had read out. Indeed Paul George's account, to some extent, corroborates the recollection of others present at the meeting. He said that the deceased said to Mr Baynie: "What are you doing here?" To which Mr Baynie replied, "I am here to translate the documents and tell you what you are doing". The deceased then said, according to Paul George, "I know what I am doing - I've got my favourite son here, I trust him'; see para8 of Paul George's affidavit of 7 September 1995. At no stage did Peter Wayne George give any evidence suggesting that the terms of the 1987 Deed or the Will had been translated to Habsie George at this meeting." His Honour went on to say that Mr Paul George denied that Mr Turnell said to Mrs George, "This is a document by which you release a caveat for Paul and in return he gives you two blocks of land to be held in trust for you by John and Sue". His Honour said that Mr Paul George also denied that Mr Turnell said, referring to the will, that it was a will stating that Mrs George gave her house and everything to her son John for him to give a share to all the rest of the family, and that her son, Paul, be appointed the executor. Mr Paul George said that Mr Baynie, the interpreter, read out Mrs George's will and spoke to her in Arabic saying, "You are giving it to John". Mrs George replied, "Of course, I know that". His Honour said that, given the conflict between the accounts of the two brothers as to what happened at the meeting, he accepted that the evidence of the solicitor Mr Turnell and of the interpreter, Mr Baynie, were important in determining what was actually said. But he noted that Mr Turnell was to some extent concerned with preserving his professional reputation and integrity. Mr Baynie was not in a similar position. He went on to discuss the evidence of the two witnesses. Eventually, he concluded: "T have set out this earlier evidence in some detail since clearly it is crucial to determine whether Habsie George was in a position to understand the terms or effect of the 1987 Deed. I am satisfied on all evidence that she was not. I am satisfied that she was bluffing about understanding the documents. It is consistent with the way she acted and behaved at other times. In reality, I am satisfied that she would have had considerable difficulty understanding the documents even if translated. I am satisfied from Mr Baynie's evidence that they were not translated beyond paral. Indeed evidence of her previous state of mind is inconsistent with her intending to transfer Lot 12 to Paul George Pty Ltd. She had said to Peter George on a number of occasions from mid-1980 words to the effect: "Paul has just visited me. He is a thief and a liar. I do not trust him or his family. They are sneaky and foxy."; paraS of Edmund Peter George's affidavit of 9 June 1995. Such evidence is probative of her state of mind as at 14 September 1987; see paral120 Cross on Evidence Australian edition, Vol 1. 8 UNREPORTED JUDGMENTS I do not place much emphasis on evidence of her subsequent state of mind, including, for example, that her last will of 3 February 1989 declared that her estate was "to include Lots 12 and 15 which at the time of the making of this Will, stand in the name of Paul George Pty Ltd as trustee for me."; see Annexure H to the affidavit of John George of 13 July 1993. Nor do I think that anything she said around 3 December 1989 to Matthew Fraser, solicitor, to the effect that Lots 12 and 15 were still hers and that she regarded her son Paul George as a thief (Annexure B to the affidavit of Matthew Fraser of 6 April 1995) should be given particular weight. This is because, by then, it could be anticipated that her mental deterioration made any such statements intrinsically unreliable, though it is conceivable that she made them at a time when she was temporarily lucid." In due course, I shall refer to some of the detail of the evidence of Turnell and Mr Baynie. I shall also refer to further evidence given by Dr Henderson. His Honour then referred to the documents signed at the meeting on 14 September 1987. The first was the deed of that date. After a reference in the recitals to the 1984 deed, it provided: "AND WHEREAS Habsie [Mrs George] now wishes to completely reconcile her differences with P G Pty Ltd [the company] and to appoint P G Pty Ltd her Trustee to recover moneys from her son, Anthony George. AND WHEREAS P G Pty Ltd is the registered proprietor of land at Terrigal being Lot 12 in Deposited Plan 600554 and being the whole of the land comprised in Certificate of Tile Volume 13805 Folio 122 (hereinafter referred to as "the land"). AND WHEREAS P G Pty Ltd wishes to subdivide the land by way of a draft proposal annexed hereto and marked with the letter "A" (hereinafter referred to as "the proposed subdivision'). NOW THIS DEED WITNESSETH as follows:- 1 Habsie hereby rescinds any nominations pursuant to the 1984 Agreement in which her son, Anthony George was appointed her Nominee relating to Lots 12 and 15 in the proposed subdivision. 2 On registration of the proposed subdivision the parties hereto acknowledge that the Lots in the proposed subdivision will be dealt with as follows:- i) In respect of Lot 15 P G Pty Ltd undertakes to hold same in trust for Susan Mary Hall and John Francis George [Mr J F George] until they wish to dispose of same and thereupon P G Pty Ltd shall as Vendor sell the said Lot 15 and account to Susan Mary Hall and John Francis George for the proceeds of sale. ii) In respect of the balance of the proposed subdivision of the land namely Lots 12, 13, 14, 16 and 17, P G Pty Ltd shall be sole and unencumbered registered proprietor of same. iii) Prior to the lodgement of the Plan of Subdivision referred to in cl2 hereof Habsie agrees to hand to P G Pty Ltd a Withdrawal of Caveat in registrable form. 3 Habsie appoints P G Pty Ltd and John Francis George and P G Pty Ltd and John Francis George hereby accept the appointment, as her Trustees and P G Pty Ltd and John Francis George are empowered to collect from Anthony George any moneys previously held by Anthony George for Habsie and to take any legal action to recover such moneys and P G Pty Ltd and John Francis George are empowered to hold such moneys upon trust for Habsie." As his Honour remarked, the effect of this document was that Mrs George, for no benefit to herself, surrendered all her rights to the proposed lots 12 and 15 in favour of the company. The company undertook to hold lot 15 for Mrs Hall and WAWL GEORGE PTY LTD v GEORGE as Executor of the Estate of the Late GEORGE (Sheppard AJA) Mr J F George but retained sole and unencumbered ownership of lots 12, 13,14, 16 and 17. She also agreed to withdraw her caveat. Also executed on 14 September 1987 was a second deed to which the parties were Mr J F George, Mr Paul George and Mrs Hall. Under it Mr J F George agreed to transfer a one-third share of the net proceeds of the estate of Mrs George to each of Mrs Hall and Mr Paul George. His Honour noted that the agreement was only to have effect if the will of Mrs George, also dated 14 September 1987, was her last will and testament and valid and in force as at the date of her death. His Honour said that this suggested, because of the reference to validity, that there might well have been some doubt as to Mrs George's capacity. His Honour then dealt with some further matters which he thought tended to discredit Mr Paul George's evidence. I do not refer to the detail of these but, having considered what his Honour has said, I am unable to perceive any error in the various conclusions which he reached. There was no specific submission made on behalf of the appellants that there was. His Honour then returned to Mr Turnell's evidence. He said that he had clearly taken "on the role" of acting for all parties to the transaction though instructions had come only from Mr Paul George. His Honour said that, at the time of the meeting, Mr Turnell did not appreciate the dangers in the course he had taken, "though he came to realise them subsequently". His Honour added, "However, even at the meeting, when he found that she could not sign her own name but signed with a cross, this brought at least a sense of surprise and almost certainly considerable unease". In the course of his cross-examination Mr Turnell acknowledged that he began to have "'a bad feeling" about the whole matter. His concern was that the two documents signed by Mrs George, namely the first deed to which she was a party and her will might be challenged. His Honour said that he was not satisfied that Mr Turnell was in a position to appreciate Mrs George's lack of understanding of those documents and "perhaps was indulging in some wishful thinking in a context where his own professional position was potentially under scrutiny in so acting for all parties". An indication of his concern is to be found in a memorandum he wrote on 18 September 1987 to his then senior partner. I do not refer to the whole of it, but having referred to the fact that Mrs George signed by making an 'X', he said, "At the time, I think I went a whiter shade of pale when she indicated that she did not want to sign her signature and I then on the spot had to say that she could sign by way of a cross, trying to think back to my readings and lectures concerning the execution of wills". The memorandum suggests that he was more concerned about the execution of the will than he was about the deed. He did say that he had no doubt that Mrs George signed the will having understood it "and of her own free will". Nevertheless, one of the early paragraphs of the memorandum referred to the matter as being one which "for some reason I have a bad feeling about as in the future I can see a lot of litigation arising from the Agreement and the Will that I have prepared". Mr Turnell is not a party to this litigation and, in those circumstances, notwithstanding the fact that he gave evidence and was cross-examined, one needs to be a little cautious in making criticisms of him. But, when I come to the submissions made on behalf of the appellants, it will be seen that, in large measure, they suggest that the result of his Honour's conclusions was the finding of a factual situation which was wholly improbable. One of the matters upon which counsel for the appellants relied strongly was the fact that his Honour did 10 UNREPORTED JUDGMENTS not accept the evidence either of Mr Turnell or of Mr Baynie, the interpreter. It is thus necessary to refer to enough of their evidence to explain why his Honour felt able to put the evidence of these two witnesses aside. It is not possible to do justice to the respondent's case without making some remarks critical of Mr Turnell. Tam afraid Mr Turnell made an elementary and quite fundamental mistake in lending himself to the exercise which took place on 14 September 1987. In relation to both the deed and the will, Mrs George was the party, either divesting herself of property inter vivos or making provision for the disposal of her estate after her death. She was the person most affected by what occurred. Sound practice required Mr Turnell to have taken instructions directly from her in the absence of any member of her family. He should have satisfied himself by a discussion with her in the presence, perhaps, of his partner or of another solicitor in the firm, that he understood what Mrs George's instructions were. It was quite wrong for him to take instructions from Mr Paul George to prepare a deed having the effect that this one purported to have and a will for Mrs George without taking the instructions from Mrs George himself. If he had done so, he would have soon ascertained that he could not communicate with her except with the aid of an interpreter. He would have ascertained also that she was incapable of writing or reading English and he should have been able to ascertain that she could not read or write Arabic except to a limited extent. Close questioning of her through an interpreter would have revealed to him her lack of business experience. She was then 88 or 89 years of age. Caution would have told him that he needed to examine her to ascertain whether she did understand what she was doing. He could have led into that process, as is customary, by asking a number of rudimentary questions such as her age, to whom she was or had been married, the members of her family, their financial circumstances and her understanding of their needs. He should have enquired about what previous dispositions of property she had made either inter vivos or by will and, although it may be thought to involve a degree of hindsight, to have endeavoured to ascertain whether she was under continuing medical treatment. He should have put himself in a position to make discreet enquiries of other members of the family about what her position was. No doubt there are many other suggestions that experienced practitioners would make in relation to what occurred. I do not need to go on. Instead of any of these things occurring, he prepared the documents in advance without taking any instructions from the person who was most concerned with their effect. He presented her on 14 September 1987 with the documents for execution for the first time. She had never seen them before. He had not been through them with her. If he had, he would have discovered her limited intellectual capacity. The reality was that he never acted in any true way as Mrs George's solicitor. He acted for Mr Paul George and did his bidding. That is where his problem lay and that is why his Honour, in perhaps a more kindly way than I have done, reached the conclusion that he could not take very much from his evidence. Subsequently, Mr Turnell came to realise this as the following passage from his Honour's judgment reveals: "Subsequently Mr Turnell briefed Counsel and obtained formal advice resulting in his sending two letters, dated 21 March 1988 in similar terms, the first to Paul George and the second to Paul George, Suzanne Hall and John George. In those letters he acknowledges, correctly, that both Paul George Pty Ltd and WAWL GEORGE PTY LTD v GEORGE as Executor of the Estate of the Late GEORGE (Sheppard AJA) Habsie George should have had separate solicitors and independent legal advice. He expresses concern that any third party could "overturn the deed because of the above conflict" and points to various difficulties in the drafting of the relevant deed. He referred in particular to the second Deed, whereby the estate was divided between three family members. However, that correspondence does not indicate the principle difficulties that have since emerged. This is understandable enough, given that I am satisfied that Mr Turnell was simply in ignorance of the position regarding Habsie George's state of knowledge of what was going on or of her incapacity to understand what was going on, at the time the Deed was entered into." His Honour concluded his treatment of the factual matters by referring to some subsequent events. On 13 November 1987 the caveat was withdrawn by Mrs George. A general power of attorney was granted by Mrs George in favour of Mr Paul George and Mr J F George. On 20 January 1988 the plan of subdivision relating to the original lot 12 was registered. On 3 February 1989 a general power of attorney was given by Mrs George in favour of Mr J F George and she made a fresh will "or purported to do so". His Honour noted that probate had been granted in respect of this will so that no argument was directed to the validity or otherwise of the document. Its validity is not, of course, in question in these proceedings. On 7 December 1989 Mrs George's solicitors wrote to Mr Paul George and the company stating that the deed dated 14 September 1987 was unenforceable and should be set aside. Mrs George died on 19 October 1992. Probate of her will dated 3 February 1989 was granted on 19 March 1993. These proceedings were instituted on 14 May 1993. His Honour then turned his attention to legal issues. He dealt, as mentioned, with non est factum, undue influence and unconscionability and with the discretionary matters of laches and delay. He also dealt with estoppel. I do not go to his discussion about these matters at this stage. It is better that I now come to the submissions of the parties. The Submissions: Counsel for the appellants said that the way the estate sought to challenge the validity of the deed of 14 September 1987 was to suggest that Mr Paul George had, "in effect, duped his mother, his brother John and his sister Susan" into believing that the document that was to become the deed provided only that the proposed lots 12 and 15 would go into the names of Mr J F George and Mrs Hall as trustees for Mrs George. Counsel said that, most implausibly, the estate made a case that Mr J F George, who was acting in effect as his mother's protector, was unaware that the deed conferred any benefits on him. Counsel said that the burden of Mr George's evidence went more to the deceptive conduct of Mr Paul George than to the mental capacity of Mrs George. His title to challenge the deed derived from a grant of probate of a will that the deceased executed in February 1989, ie seventeen months after she executed the deed. In this respect counsel said that the probate granted in March 1993 operated to estop the world in general from disputing that the instrument admitted to probate was a will, validly executed where the testator was domiciled and that the testator was of sound disposing mind when making it. Reference was made to Res Judicata, Spencer Bower & Turner, 2nd ed (1969) at 230. See now Res Judicata, Spencer Bower & Handley, 3rd ed (1996) para257 at 131-2. 12 UNREPORTED JUDGMENTS Counsel said that, in essence, the appellants' submission on appeal was that his Honour erred in finding that at the signing of the deed, Mrs George lacked mental capacity. Counsel said that it would be shown that all the evidence of those present on the occasion favoured capacity and countered any conclusion of incapacity with the result that, bearing in mind the fact that the deceased had lucid intervals and testamentary capacity in February 1989, it was not open to the Court to find that the deed was void for mental incapacity. In my opinion this submission is of no assistance to the appellants' case. The question in this matter is the validity of the deed executed on 14 September 1987. The matters relied upon by counsel go to the validity of the 1989 will made approximately eighteen months after the execution of the deed and the earlier will executed on the same day. Whatever presumptions may exist in relation to the validity of the 1989 will cannot have any effect in relation to the deed. I appreciate the will was executed after the deed, but the grant of probate cannot affect the right of Mrs George's personal representative to challenge the validity of the deed. It may be a matter which it is relevant to weigh in the balance but it can have no conclusive or overriding effect. Counsel for the appellants also said that the only way open to the estate to challenge the validity of the deed was: "the bizarre and improbable story, advanced in evidence, that despite the history of antagonism and distrust between Paul, on the one hand, and John and the deceased, on the other - distrust which had flowered again and again until litigation - John (a former police officer, experienced litigant, and his mother's guardian in legal affairs) had no idea what his mother was signing, neglected to read the document, and, with his mother, was duped by his devious brother and a solicitor into believing that the second deed did no more than confirm the first." Counsel said that one only needed to make the assertion to recognise its "patent untenability". Counsel then dealt with the signing of the deed. He emphasised that present at the signing were the solicitor who had drafted the three documents, Mr Turnell, Mr Paul George, his son, Mr P W George Mr J F George, Mr Baynie, the interpreter, and the deceased. Counsel said that there was nothing in the evidence of either Mr Paul George or that of Mr P W George which was capable of supporting a finding that at the signing the deceased was mentally incapable Mr J F George's account did not go to incapacity. Rather, his was a story of misrepresentation by Mr Paul George and by Mr Turnell in respect of a legal document which benefited him but about which he knew nothing having chosen not to read it - a matter which counsel said was hotly disputed. Mr George had said that he was anxious to ensure that there was an independent interpreter to help Mrs George understand what she was signing. He said that this was scarcely evidence supportive of the contention that Mrs George was, by then, mentally incapable. He referred to Mr Baynie's evidence which he said was very much to the effect that Mrs George knew exactly what she was about. Counsel said that it needed to be emphasised that Mr Baynie, although called by the defence, was "really the Estate's witness". He had been brought into the affair by Mrs Hall and had had no prior contact with Mr Paul George. Nothing in his cross-examination was capable of supporting a finding that the deceased was mentally incapable at the time she signed. Counsel said that Mr Baynie's account of events was to the contrary and "destructive of the suggestion that the deceased had been duped". WAWL GEORGE PTY LTD v GEORGE as Executor of the Estate of the Late GEORGB (Sheppard AJA) Counsel referred to the affidavit sworn by Mrs Hall. As mentioned, she had died before the trial. He said her affidavit made no suggestion of mental incapacity. That is correct, although she did say that Mrs George was unable to read Arabic. She could only speak a few words of English and certainly could not read English. At one time Mrs George did work in Mr Paul George's fruit shop and also in a take away food shop owned by him. She said that, as far as she was aware, her duties involved the preparation of food, cooking and cleaning. She did not handle money or deal with customers. This latter part of what Mrs Hall said was admitted by his Honour only so far as it amounted to evidence of Mrs Hall's awareness. It was apparently rejected as evidence of the facts which are referred to. Mrs Hall's affidavit was sworn on 28 October 1993. She was then 71 years of age. She said that, for the greater part of her life, she worked with her husband in their market garden. She had suffered from chemical poisoning and chronic fatigue syndrome. The chemical poisoning was diagnosed in 1988. The disease had attacked her central nervous system and, at the time she swore the affidavit, she was "totally immobile". Counsel concluded this part of his submissions by saying that the finding that the deceased was so deranged in September 1987 as to render the deed void was "simply perverse and must be reversed". Counsel submitted that the respondent's case was, in essence, not a case about mental incapacity, but a case about fraud. He said that there was a considerable amount of material in the evidence which bore upon the "utter implausibility" of the story accepted by his Honour. He said it was a story of deception as to the nature of a document, rather than a story of undue influence in the usual sense of that expression. He said that his Honour's findings about Mr Paul George deliberately taking advantage of Mrs George's inability when "he got her to sign" were really no more than an elaboration upon the conclusions already reached on the question of capacity. He said that his Honour "does not really notice" the affirmative case of deception made by the respondent. He appeared to accept "the implausible story" of Mr J F George that he did not know what was being done at the meeting and thought it was so that "Paul George Pty Ltd could perform their obligations under the 1984 deed." Counsel said that any "character assassination of Mr Paul George (whatever weight you put upon it)" could not take away from the incredibility of the sort of story that the estate, really Mr J F George, was asking the Court to "swallow". Ignoring that story by turning to other matters such as incapacity, could not avoid the reality that the estate's case was so inherently improbable in itself and so at odds with the objective matrix of uncontroversial facts as to require rejection. Counsel concluded his submissions by saying, "With that circumstance at the forefront of one's mind - advancing a patently incredible case - a tribunal of fact, as a matter of logic and fairness, must dismiss the Estate's allegations". It may be observed that counsel in the submissions to which I have referred dealt with the matter by making a frontal assault on his Honours findings and conclusions. The attack was based upon the fact that no member of the family gave evidence to the effect that Mrs George was mentally incapable. That she was not was borne out, so it was submitted, by the evidence given by Mr Turnell and Mr Baynie. The case was in reality one under which an allegation of fraud was made which involved, not only Mrs George, but other members of her family having been deceived by the actions of Mr Paul George. It was highly improbable 14 UNREPORTED JUDGMENTS that members of the family other than Mr Paul George and Mr P W George would not have perceived the true nature of the transaction. If they were alarmed by it, they would have spoken up. In making his submissions, counsel did not come to the detail of the evidence of any witness, particularly the evidence of Mr Turnell and Mr Baynie. His submissions remained general ones designed to endeavour to persuade the Court that the findings made by his Honour were of a situation which was so improbable as to be not one worthy of acceptance. Furthermore, in his analysis of the problem, counsel did not make any submissions of any consequence based on what a party relying on non est factum must establish or on the essential differences between non est factum, undue influence and unconscionability. No submissions at all were made in relation to laches and delay, nor in relation to estoppel. The submissions to which I have referred are taken from the written outline lodged by counsel in advance of the hearing of the appeal. But a reading of his oral submissions discloses that the thrust of the submissions remained throughout the same as it had appeared in the written outline. Although counsel embellished what he had said in the written outline to a degree, the substance of his submissions was as I have stated it to be. In his submissions, counsel for the respondent, ie the estate of Mrs George, said that, if the mental incapacity of a person signing a document were such that it prevented that person from having any understanding of the document, then a plea of non est factum could be established since the mind of that person did not go with his or her signature. Reference was made to Crago v McIntyre [1976] 1 NSWLR 729 at 737 and to P T Ltd v Maradona Pty Ltd (1992) 25 NSWLR 643 at 673-5. Counsel said that Santow J was correct in finding that the mental incapacity of Mrs George at the time of signing the 1987 deed was such that it prevented her from having any understanding of the nature and effect of the contents of it. He referred to the evidence upon which the finding was based, particularly the evidence of Dr Henderson. He also referred to other evidence which established, so he submitted, that Mrs George, at the time of the purported execution of the document, a woman of 89 years of age, was unable to read or write in English or her native Arabic, spoke very little English and only understood basic words when spoken to her slowly, clearly and in very short sentences. Furthermore, her hearing and sight were significantly impaired, she was unable to look after herself on a day to day basis, she had developed short-term memory loss and suffered from periods of confusion. She was no longer responsible for her own affairs. Counsel also said that, if Mrs George indicated that she understood "everything" or "the documents", this was entirely consistent with Dr Henderson's view that Mrs George was very good at "putting up a front" and agreeing to things she did not understand. Counsel dealt briefly with the consequence of a successful plea of non est factum, laches, delay, estoppel and certain matters of detail relating to costs, the adjustment of stamp duty, rates, taxes and other outgoings and the joinder of additional parties. As he said, no submissions were made about these various matters by counsel for the appellants either in his written submissions or in his oral submissions. Before I come to conclusions about these submissions, I should refer to some of the evidence of Dr Henderson, Mr Turnell and Mr Baynie which has not so far been referred to. WAWL GEORGE PTY LTD v GEORGE as Executor of the Estate of the Late GEORGB (Sheppard AJA) The Evidence of Dr Henderson, Mr Turnell and Mr Baynie: Dr Henderson is a medical practitioner who has been in general practice since 1975. Mrs George was under her care during the period from 1982 until her death on 19 October 1992. She saw her regularly during this time. Dr Henderson said that when she first met Mrs George, she was a widow, was slightly deaf, had reasonable vision, but spoke very little English. She was able to cook, look after her house and do housework with some assistance from her daughter, Mrs Hall. She also kept a vegetable garden. Dr Henderson said that over the years that she treated Mrs George her condition deteriorated. She became considerably more deaf and considerably more blind. Prior to her death, she was unable to read or recognise figures at a distance. She was unable to look after herself, unable to cook, unable to bathe herself, and unable to do any housework. She had developed short-term memory loss and suffered from short periods of confusion. Mrs George was cared for by her daughter, Mrs Hall, and by her son, Mr Anthony George until about 1986 or 1987 when Mrs Hall became to ill to attend to her mother and Mr Anthony George remarried. Between 1987 and her death, Mrs George was cared for by Mr J F George. In para6 of her affidavit, Dr Henderon said that, in 1985, Mrs George suffered from pneumonia following which her condition deteriorated significantly. At this stage she began developing short-term memory loss and short periods of confusion. In November 1986 she was under the care of the District Nurse who attended at her home for the purpose of bathing her. On one occasion in November 1986 Mrs George attacked the District Nurse with a walking stick. Thereafter, it was arranged for her son to be present whenever the District Nurse attended to bathe her. Annexed to Dr Henderson's affidavit is a copy of her clinical notes covering the period during which Mrs George was under her care. The notes do not contain an entry relating to each of the occasions on which she visited Mrs George, but she said that one of her colleagues or Dr Henderson herself would visit Mrs George approximately every three months. Each visit would have been recorded on the home visits records but these had been destroyed. I should mention that I do not find the notes helpful. They are difficult to read but, so far as I can tell, they do not deal one way or the other, with Mrs George's mental condition. Some of the notes are dated after 1987. In a different category is a letter dated 9 July 1987 in which Dr Henderson wrote a report to the Department of Social Security concerning Mrs George. The report said that Mrs George was 89 years of age, mostly deaf, crippled with arthritis and had very poor vision. She spoke very little English. She was unable to read or write English and could only sign her name with difficulty. Dr Henderson continued, "In my opinion she is not responsible for her own affairs and would recommend that these be managed jointly by her daughter, Mrs Suzanne Hall, and her sons, Paul, John and Tony". In her affidavit, Dr Henderson said that she was informed and believed that Mrs George was a party to a deed of settlement dated 7 March 1984 and that later this deed was amended by a deed of agreement dated 14 September 1987 signed by her. Dr Henderson was at all material times aware of disputes within the family about these deeds. Eventually she said that, in her opinion, Mrs George probably would have understood the greater part of any document explained to her simply in her native tongue but that in 1987 she probably would not have been able to understand the effect of a legal document even if it were explained to her in her own dialect. 16 UNREPORTED JUDGMENTS The appellants were not represented by Mr Motbey at the trial. They were represented by Mr Ellison and Ms Cruse. In cross-examination it was put to Dr Henderson that there was no doubt that, as her general practitioner, whatever her limitations, Dr Henderson was able to communicate with her in "'a broken sort of way" for the purposes of dealing with her complaints or comments that she wanted to make. Dr Henderson agreed that that was so. She said that she frequently had the benefit of a family member to assist in interpreting what Mrs George wished to say. Counsel referred to para6 of her affidavit to which I have referred. The cross-examination continued: "Q: In other words at various times one could meet her and think that she was totally incoherent as to her surroundings and recent events and at other times in 1985 one could meet her and she would appear like a normal old lady? A: Yes, that is so. Q: That sort of as it were drifting in and out continued up until immediately before her death in 1992, would you agree with me? A: Yes except that her periods of confusion and difficult behaviour increased in frequency and duration. Q: So the nature of the condition stayed the same, the degree of it increased, would that be another way of putting it. A: Not strictly because initially loss of memory is a feature of dementia and eventually there are a lot of physical manifestations. Q: Those physical manifestations would have come out more so in the early nineties or in the very late eighties in the few years before her death? A: Yes, I would think so." Later, her evidence proceeded as follows: "Q: Would you agree with me that some two years after July 1985 and to be precise September 1987, she would have still had, from your point of view these frequent periods when she would appear perfectly lucid and not confused? A: Yes, I suppose that is so, yes, that is probably correct. Q: On a day when she was having one of these lucid periods without confusion she would have been able to, in her own way, communicate in Arabic or broken English with those to whom she could communicate? A: As far as I understand, her memory loss was not something that came for a day here or there. It persisted on or off throughout the day so that she would have hours that were clear and hours that were not. Q: During the hours that were clear and she did not have the memory loss and she did not have the confusion, would you agree with me she would be able to communicate in the fashion that she ordinarily communicated, that is her broken English, her simple Arabic? A: I think by 1987 her communication was not as clear as it had been initially. Q: But you would agree she was still able to communicate? A: To a certain extent, yes. Q: From your point of view from 1985 until death the condition steadily deteriorated over time but presumably at times quickly, at times slowly? A: Yes, that is so. Q: By February 1989 would you agree with me that there would have been clear physical signs of deterioration? A: Yes, that is so but in Mrs George's case that was complicated because she had other physical conditions other than those caused by dementia." WAWL GEORGE PTY LTD v GEORGE as Executor of the Estate of the Late GEORGE (Sheppard AJA) In the course of her re-examination, Dr Henderson was asked questions by his Honour. These and her answers to them were as follows: "His Honour: Assume that at this meeting the translation was not of all the material matters and the agreement she was then said to have signed. Would it be your view based on your experience of her that she would not have been able to appreciate what it was she was signing? A: I think then there are two problems, one of them being that legal documents often are particularly long and involved and I think she would have had great difficulty understanding a long and involved document but I think if it was in simplistic terms that everybody understood in the room and yet captured - Q: I am asking you to assume that the document was not translated? A: Oh no, no, I don't think she would have any chance of understanding. Q: Or partially translated but not all the material? A: If only the important parts of it were translated that would be very difficult for anybody to understand." In his affidavit Mr Baynie said that he witnessed certain documents signed by Mrs George at the offices of Bingham, Finaly & Turnell on 14 September 1987. He said that he was a friend of Mrs Hall who asked him to go down to Mr Turnell's office to witness some documents. He said that Mr J F George, Mrs Hall and Mrs George came by car to his house to pick him up. He had a conversation with Mrs George in which he said that he was coming down to interpret the documents she was to sign. According to Mr Baynie, Mrs George said, "What's the good of that. I know more English than you do". Mr Baynie said that he arrived at the solicitors' office with Mrs George, Mr J F George and Mrs Hall. It should be mentioned in passing that Mrs Hall was in fact not at the meeting. Whether she accompanied her mother and Mr J F George in the car is not the subject of any finding by his Honour. The matter has little relevance except perhaps as an indication that Mr Baynie's recollection that Mrs Hall was present at the meeting was faulty in this respect. Mr Baynie remembered that Mr Paul George was present. The solicitor, ie Mr Turnell, produced the documents which were to be signed. They were handed out to the persons present. Mr J F George, Mr Paul George and Mrs George had the opportunity, so Mr Baynie said, of reading the documents. Mrs George said, "Yes, yes, I know what it is. I am signing a will leaving everything to John. I am transferring one block to Suzanne and John and one to Paul'. After the documents were signed Mr J F George took Mr Baynie home. Mrs Hall and Mrs George were also passengers in the car. Mr Baynie said that he had become aware that an allegation had been made that Mrs George did not understand what she was doing on the day of the events described. He said that he disputed this allegation. He said that Mrs George was alert and involved in the discussion of the documents. He said that he had been asked by both sides to make a statement, and that he had told them both the same thing. What strikes one from a reading of the affidavit is that Mr Baynie does not appear to have translated anything to Mrs George. In a moment it will be seen that his evidence in this respect was in conflict with that of Mr Turnell. But, so far as Mr Baynie's evidence is concerned, one is left with the impression that, because of what she said, and the opportunity she had of reading the documents, he thought he could safely leave matters as they were. Mr Baynie was called in the appellants case. He is a builder by occupation. He came to Australia from Lebanon in 1949 and learnt English here. 18 UNREPORTED JUDGMENTS In his oral evidence in chief Mr Baynie said: "The deceased - she said, 'What are you doing here?' And I said, 'Just only to witness some documents.' She said, "What do you mean? Would you explain to me?' in native language, in Lebanese, and I said, 'Susan asked to translate to you in English if you don't understand the document you are going to sign.' She said to me, 'Look, you sit on the side. I understand. I been here many, many years and I understand everything. You shouldn't have come up here. You shouldn't have come here. I know what I am doing.' I then said, 'Well, whatever you want, she understand everything, and all the parties was there'." Mr Baynie was asked whether he read any parts of the documents to Mrs George. He said that Mr Turnell had read the document; he did not. Mr Baynie was asked whether Mr Turnell read the documents in English. His answer was not an answer to the question but he said, "Sir, she said she understand". In cross-examination Mr Baynie was asked whether he had said to Mr George - Tam not sure whether this is a reference to Mr J F George or to Mr Paul George - that he did not remember what had happened at Mr Turnell's office. He said, "I don't have to tell him that". He also said, "I told him I remember what I signed for, what happened. I don't know what is the difference, what I signed for and what happened. He didn't ask me what I sign for, but what I go for. I don't know what I going for until we got there". Later Mr Baynie said, "I remember the document, I can't remember - the solicitor read them for me and I sign it. I can't say I don't remember signing it, but I can't remember the date". When Mr Baynie speaks of signing a document he is speaking about the fact that he witnessed the documents. Later, Mr Baynie was asked whether at any stage he translated to Mrs George, in the Lebanese language, any of the contents of the documents Mr Turnell had prepared. His answer was, "No, I tried to explain in English and she said, 'I understand. I know everything', she said, 'and that is the truth and nothing but the truth'." He added that he had never read any documents and that the solicitor had read them "for us". He had said, "Do you understand?", and she said, "Yes", "and all we do is sign". It should be mentioned here that most of the evidence refers to the family's native tongue being Arabic. It would appear, however, that it was in fact Lebanese. The two languages may be similar. Nothing turns on the question whether the language was Arabic or Lebanese if, indeed, there be any substantial difference between the two. Mr Baynie said that he understood the purpose of coming to the meeting was merely to witness the documents. It was suggested that he was not asked to translate any of the documents. He said, "I did, but she didn't accept it. Sue [Mrs Hall] asked me and she said, 'I want you to come down to solicitor's office and explain to my mother in case she doesn't understand English document', if she doesn't understand and, as I told you, she understand everything - she doesn't want me to come to the office - I said, 'I come here to help you, love' and I stayed; the four of us". There was some further conversation but I am at the usual disadvantage of not having been present at the trial. I must say, however, that a reading of what follows suggests a degree of confusion in the witness's mind. I do not refer further to his evidence. Mr Turnell was called in the appellants' case. He was admitted as a solicitor in 1976. His original file was opened on 12 May 1987 and a later file was opened on 10 October 1987. Both files were in Court. WAWL GEORGE PTY LTD v GEORGE as Executor of the Estate of the Late GEORGE (Sheppard AJA) He said that he had only met Mrs George on one occasion. That was on 14 September 1987. He also met Mr J F George for the first time that day. He said that he recollected that he was told by one of the George brothers - his recollection was that it was Mr Paul George - that another firm at Gosford acted for the family and, for whatever reason, they, the Georges, were referred to Mr Turnell's firm. He said that about 15 or 20 minutes passed before the documents were executed. He saw Mrs George first of all in the waiting room at his office. He said that Mr Paul George, Mr J F George and Mr Baynie were present. Mr Turnell was asked his observation of Mrs George when he first saw her. He said: "T remember her as being dressed in black and being elderly, and I remember her walking with a walking stick. When I say elderly, I meant she was quite elderly, and I subsequently found out she was 90. She was bright and animated and seemed to be, like, at least she smiled. she seemed a happy lady, if I could put it that way." Mr Baynie said that the deed signed on 14 September 1987 had been typed. He read the document "concept by concept" to Mrs George but "in short enough phrases to allow Mr Baynie to interpret it which he then did. He then took her through the document reading it to her in that way. From time to time, he could not exactly say at what point of the document, but from time to time, he would say, "Do you understand that?", and that was interpreted and Mrs George would either nod or answer, "yes", or smile, "or sometimes all three". However, when Mr Turnell was asked whether he ever heard Mrs George speaking in Arabic to the interpreter "as you were going through, doing the translation", he said that he could not recall. He said that he dealt with the will in the same manner. Later, however, Mr Turnell said that the will was translated. Obviously there is a serious conflict in the evidence of Mr Turnell and Mr Baynie as to whether or not the documents were translated. I point out, however, that, on Mr Turnell's own evidence, the whole process, ie the execution of the two deeds and the will, occupied but twenty minutes from the entry of the family into his room until the execution of the documents. The conflict is not one which his Honour resolves. But the fact that there was such a conflict on such a fundamental matter would provide a sound reason why his Honour may have decided to put the evidence of the two witnesses aside. Mr Turnell later said in the course of his cross-examination that he had not given any thought, at the time he prepared the first draft of the documents, to the question whether Mrs George should be independently advised. The first draft was produced in the middle of July 1987. It was sent to Mr Paul George on 21 July 1987. Mrs George, as mentioned, the person most affected by what was afoot, was apparently not consulted. Mr Turnell agreed that he had been told before 14 September 1987 that Mrs George was an elderly lady and was poorly educated. It was suggested to Mr Turnell that to all intents and purposes Mr Paul George was his client. He said: "He was the person with whom I had most of the conversations and who gave the instructions. But, I regarded my client, if you like, as being that part of the George family involved in the deeds, in the transactions as a whole. I took the instructions from him, certainly, by way of the telephone conversations and the 20 UNREPORTED JUDGMENTS conference, but my understanding was that it was something that those members of the family had agreed to and that the documents were being prepared for them." Later he said that he had not regarded Mr Paul George as his client because he was giving him, ie Mr Turnell, instructions and purporting to speak for other members of the family. He did not take any steps to confirm anything that Mr Paul George had said to him with any other member of the family, least of all Mrs George. He said that his understanding was that the instructions given for the preparation of the documents were given with the knowledge or the consent of the other members of the family; in other words, Mr Paul George was speaking for them. It has to be said that, by the time Mrs George came to Mr Turnell's office on 14 September 1987, the amber light, which had been showing for some weeks, had turned red. At the time the documents were executed, Mr Turnell was a partner in a firm of solicitors. He had been in practice for eleven years. Yet the evidence, considered as a whole, reveals Mr Turnell to have had an appalling lack of knowledge of the requirements of proper legal practice. It may be hoped that matters have changed since 1987, but the kindest thing that can be said about the way Mr Turnell approached this matter is that, at least in this area of the law, he was fundamentally incompetent. Mr Turnell eventually said that he acknowledged that each of the Georges should have gone to separate solicitors, although he would not acknowledge that his conduct was in any respect wanting. I am afraid, however, that it was. If he had done his job, none of this problem would have arisen. There is more of Mr Turnell's cross-examination that could be referred to but I see no purpose in this. The position that he was in is made abundantly clear by the evidence to which I have referred. For present purposes, the conclusion that must be drawn from all this is that his Honour was amply justified in putting aside Mr Turnell's evidence and also that of Mr Baynie. The Law: As mentioned, counsel for the appellants did not, in his submissions, make any submission of law. He restricted himself to the facts putting his faith entirely in his submission that the primary Judge's findings yielded a result which was improbable or implausible. The primary Judge did discuss the law. The area is not free from difficulty even in what may, at first sight, appear to be a clear case. There are numerous authorities. Some are referred to in the respondent's written submissions. In the absence of submissions by counsel for the appellants about the applicable law, it is unnecessary to say anything about it, but I should refer briefly to the nature of the defence of non est factum. In Petelin v Cullen (1975) 132 CLR 355 the High Court said (at 359) that the problem is that the principle must accommodate two policy considerations which pull in opposite directions: first, the injustice of holding a person to a bargain to which he has not brought a consenting mind; and, secondly, the necessity of holding a person who signs a document to that document, more particularly so as to protect innocent persons who rely on that signature when there is no reason to doubt its validity. The Court continued (at 359-360): "The class of persons who can avail themselves of the defence is limited. It is available to those are unable to read owing to blindness or illiteracy and who must rely on others for advice as to what they are signing; it is also available to those who through no fault of their own are unable to have any understanding of the purport of a particular document. To make out the defence a defendant must WAWL GEORGE PTY LTD v GEORGE as Executor of the Estate of the Late GEORGE (Sheppard AJA) show that he signed the document in the belief that it was radically different from what it was in fact and that, at least as against innocent persons, his failure to read and understand it was not due to carelessness on his part. Finally, it is accepted that there is a heavy onus on a defendant who seeks to establish the defence. All this is made clear by the recent decision of the House of Lords in Saunders v Anglia Building Society (Gallie v Lee) [1981] AC 1004, esp at 1019." The decision of the House of Lords in Saunders was its decision in relation to the appeal from the judgment of the Court of Appeal in Gallie v Lee [1969] 2 Ch D 17.1 shall hereafter refer to the case in the House of Lords as Gallie v Lee. In his speech in that case Lord Hodson said (at 1019-20) that the plea of non est factum was originally available only to the blind and illiterate. He referred to Thoroughgood's case (1582) 2 Co Rep 9b. He went on to show how, by the middle of the nineteenth century, the law had extended the scope of the defence to a person who for some reason (not implying negligence) forbears to read a contract, has it read over to him, the reader misreading it to such a degree that the written contract is of a nature altogether different from the contract pretended to be read. Then at least, if there be no negligence, the signature so obtained "is of no force". The document is invalid not merely on the ground of fraud where fraud exists, but on the ground that the mind of the signer did not accompany the signature. Reference was made to the decision of Byles J in Foster v Mackinnon (1869) LR 4 CP 704 at 711-12. Earlier Lord Hodson had said (at 1019) that the plea of non est factum required clear and positive evidence before it could be established. The burden of proving the defence is on the party disowning his signature. This includes proof that proper care was taken. In passing, I also mention that Lord Hodson deals with estoppel. He points out (at 1019) that there can be no estoppel by deed if the deed is void ab initio. In those circumstances there is no foundation for the doctrine to be invoked since there was no conduct by way of representation to a third party that the questioned deed was good. In Petelin the High Court went on to say (at 360) that the insistence on proof of the absence of negligence or of carelessness was a condition of making out the defence when it was asserted against an innocent person. But the Court added (at 360): "Tt is otherwise when the defence is asserted against the other party to the transaction who is aware of the circumstances in which it came to be executed and who knows (because the document was signed on his representation) or has reason to suspect that it was executed under some misapprehension as to its character. In such a case the law must give effect to the policy which requires that a person should not be held to a bargain to which he has not brought a consenting mind for there is no conflicting or countervailing consideration to be accommodated - no innocent person has placed reliance on signature without reason to doubt its validity." That is the position here. No innocent third party is involved. In passing, I should mentioned that there is a helpful discussion of the authorities to which I have referred and some others by Gyles J in P T Ltd v Maradona Pty Ltd (supra) (at 673-5) which, as mentioned, is referred to in the respondent's submissions. There is a question, on the face of the authorities, whether the defence of non est factum will apply in cases where, no matter how mentally disabled and how illiterate a person who signs a document may be, the person signing the document 22 UNREPORTED JUDGMENTS is not led to believe that its effect is essentially different from that which that person was led to believe. The High Court in Petelin, in the first of the passages earlier quoted from the judgment in that case, seems to have regarded misrepresentation as to the essential nature and effect of the document as a necessary element of the defence. But, bearing in mind what Lord Hodson said about the origin of the defence, I have some reservations whether it is, in any absolute sense, correct to say that the defence cannot be relied upon unless there is a fundamental misunderstanding about the nature and effect of the document which is signed. In his judgment in Gallie v Lee in the Court of Appeal, Salmon J discussed this matter (at 43-4). He gave some examples intended to show that in some circumstances the distinction which the law appears to draw can lead to quite absurd results. But in the speeches of Lord Reid (at 1015, 1016, 1017), Viscount Dilhorne (at 1022), and Lord Wilberforce (at 1026), there are strong statements to the effect that the defence will not be available unless, to use Lord Wilberforce's expression (at 1026), the transaction which the document purports to effect is essentially different in substance or in kind from the transaction intended. He referred to other expressions or adjectives which could be used, namely "basically" or "radically" or "fundamentally". It is clear from his Honour's judgment in this case that he took the view that the defence was available to persons who had suffered mental deterioration of the extent he found was suffered by Mrs George and who, at the same time, were quite illiterate and unable to understand matters of any complexity, particularly legal documents. In his view, a document signed in these circumstances is not the deed of the party executing it. With respect, although I have some sympathy for that view, I do not think that it is a correct reflection of the law. Conclusions: I have given consideration to what appears to have been said to Mrs George about the nature of the document she was signing and considered it in the light of what in fact the document does provide. What concerns me is whether it can truly be said that the nature and effect of the document was so fundamentally different from what Mrs George was told about it that she was misled as to its legal effect. I have done this notwithstanding that there was no submission made on behalf of the appellants specifically raising this matter. I do not think that it was because of any oversight. For reasons which I shall develop a little later, I think counsel for the appellants realised full well that the only hope of success his clients had in this appeal was to persuade the Court that his Honour's critical findings of fact were wrong. Counsel realised, no doubt, that that would be a difficult task. But I think it explains why he decided to make a head-on assault on his Honour's factual findings his only submission. A starting point for the consideration of the question whether the deed of 14 September 1987 was fundamentally different in its effect from what Mrs George may have believed, is the fact that his Honour substantially accepted the evidence of Mr J F George and rejected that of Mr Paul George. So it is to Mr J F George's account of what transpired on 14 September 1987 that one must turn. According to Mr J F George, Mr Turnell said, "This [the deed of 14 September 1987] is a document by which you [Mrs George] release a caveat for Paul [Mr Paul George] and in return he gives you two blocks of land to be held in trust for you by John and Sue [Mr J F George and Mrs Hall]" - see p9 ante. That seems to me to be the essence of what his Honour found Mrs George was told. In contrast, the effect WAWL GEORGE PTY LTD v GEORGE as Executor of the Estate of the Late GEOR@B (Sheppard AJA) of the deed of 14 September 1987 was that, on registration of the proposed subdivision, the parties acknowledged that the lots in that subdivision would be dealt with as follows: (i) in respect of lot 15, the company undertook to hold it in trust for Mrs Hall and Mr J F George until they wished to dispose of it. Thereupon, the company would sell lot 15 and account to Mrs Hall and Mr J F George for the proceeds of sale; (ii) in respect of the balance of the proposed subdivision of the land, namely lots 12, 13, 14, 16 and 17, the company was to be the sole and unencumbered registered proprietor of them; (iii) prior to the lodgment of the plan of subdivision for the new subdivision, Mrs George agreed to hand to the company a withdrawal of caveat in registrable form - see p12 ante. As his Honour said, Mrs George derived nothing from the deed. Furthermore, only one lot, not two, was disposed of to persons other than the company. That was lot 15 which was to be held in trust for Mr J F George and Mrs Hall. Mr J F George's evidence is in conflict, not only with that of Mr Paul George, but also with that of Mr Turnell. I agree with counsel for the appellants that it seems astounding that a solicitor would misrepresent the effect of a document. But the analysis of Mr Turnell's evidence which I have undertaken shows that there were circumstances which justified his Honours taking the view he did. His finding in that regard ought not be disturbed. Another matter put by counsel for the appellants was that it was highly unlikely that a man of Mr J F George's experience would have been deceived. I see the force of this submission, but Mr J F George had not seen the documents before he went to Mr Turnell's office on 14 September 1987. He claims to have been deceived. This seems to have been accepted by his Honour. Again, I would not disturb his finding. But, in any event, as was said at the outset of these reasons (at p2), Mr J F George has not himself brought any action against the appellants in his personal capacity. He sues as personal representative of Mrs George. He represents her estate. In these proceedings he seeks to do, after her death, what she may herself have done if she had been alive. I do not gainsay that Mr J F George's claim to have been deceived was not a matter that was relevant for his Honour to take into account in determining his credibility. But, subject to that matter, whether Mr J F George was deceived or not is not to the point. The question is whether Mrs George was deceived by what she was told about the nature of the document. His Honour has made findings that she was and I am satisfied that they should not be disturbed. What then should one's conclusion be in relation to non est factum? Was the deed of 14 September 1987 fundamentally different in its effect from that which Mrs George was led to believe? I think it was. She was told she was to receive two allotments of land. In fact, she received no benefit at all. His Honour's conclusion was therefore correct. If, nevertheless, it should be thought that the defence of non est factum was not available, little would change. I leave aside the defence of undue influence. The facts of this matter plainly reveal a most shocking situation in which a mentally impaired illiterate woman was taken to a solicitor's office and had placed in front of her a deed and a will without any prior consultation and without having herself given any instructions to anyone for their preparation. The documents were prepared, whatever Mr Turnell may say, by him on the instructions of Mr Paul George. He procured the meeting and he retained Mr Turnell. In those 24 UNREPORTED JUDGMENTS circumstances, as his Honour found, the defence of unconscionability was plainly made out. In the circumstances of this case, there could not be any question about that. There is a difference in effect that a finding of unconscionability would have as opposed to a finding of non est factum. The latter means the avoidance of the deed ab initio. In the former case the deed is voidable, not void. But that makes no difference in this case. His Honour did deal with the discretionary defences of laches and delay. But there was no submission put to us in relation to those matters nor, for that matter, did we have any submission on the question of estoppel. In this respect it may be noticed that, although laches, delay and estoppel were the subject of grounds of appeal, neither unconscionability nor undue influence was. There were other grounds of appeal dealing with some consequential matters but no submissions were developed about them. In all the circumstances I have reached the conclusion that his Honour's orders were rightly made and ought not be disturbed. I would dismiss the appeal with costs. 1 The appeal be dismissed. 2 The appellants pay the respondents costs of the appeal. Counsel for the appellants: S Motbey Solicitors for the appellants: Stephen Hodges, Sydney Counsel for the first respondent: A Martin; Ms M Painter Solicitors for the first respondent: Carneys, Sydney No appearance for the second respondent