ARCHER v ARCHER & ANOR [1999] NSWCA 24

New South Wales Court of Appeal CITATION : ARCHER v ARCHER & ANOR [1999] NSWCA 24 revised - 26/02/99 FILE NUMBER(S) : CA 40461/96 HEARING DATE(S) : 18 August 1998 JUDGMENT DATE : 23 February 1999

PARTIES : ARCHER v ARCHER & ANOR JUDGMENT OF : Priestley JA at 1; Meagher JA at 128; Powell JA at 129

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT FILE NUMBER(S) : ED 2040/95 LOWER COURT JUDICIAL OFFICER : SIMOS J

COUNSEL : Appellant - L. Robberds QC / J.A. Trebeck Respondent - J. Chippendall / G. McDonald SOLICITORS : Appellant - Garden & Montgomerie Respondent - Peter Adams & Co CATCHWORDS : Undue influence - appeal against findings of fact - factual issues undecided by trial judge DECISION : Appeal allowed - new trial ordered regarding the respondent's claims.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40461/96 ED 2040/95

PRIESTLEY JA MEAGHER JA POWELL JA

ARCHER v ARCHER & ANOR

UNDUE INFLUENCE - APPEAL AGAINST FINDINGS OF FACT - FACTUAL ISSUES UNDECIDED BY TRIAL JUDGE - The respondents transferred a farming and grazing property which they owned as joint tenants to their son, the appellant. They later sought to set aside the transfer on the grounds of undue influence. At the trial there was much conflicting evidence as to events leading up to and including the transfer. The trial judge dismissed the first respondent's application but granted that of the second respondent in part. This partial relief was the subject of the appeal. On appeal the appellant submitted : The trial judge, by not making findings of fact on disputed matters important for his ultimate findings of fact, and by failing to use the advantages attributed to trial judges, did not give appropriate consideration to the appellant's case and arrived at defeasible factual conclusions. Held: 1. As Simos J took the state of mind of the second respondent at the time of signing the documents as being the critical issue of her case, it was necessary to resolve the conflicts of fact relating to the second respondent's willingness to transfer her interest; 2. the trial judge, by not resolving conflicting facts on the material issues, did not use or palpably misused the advantage of seeing and hearing the witnesses, Devries; 3. had the trial judge resolved the conflicting questions of fact, it must be at least a possibility that he would have found in favour of the appellant and a new trial should be ordered. Bridgwater v Leahy (1978) 72 ALJR 1525 Devries v Australian National Railways Commission (1993) 177 CLR 472 Johnson v Buttress (1936) 56 CLR 113 ORDERS 1. Appeal upheld. 2. The orders made by Simos J in the partial upholding of the second respondent's claims set aside. 3. A new trial ordered regarding her claims. 4. The parties directed to make any submissions as to the costs of the trial and the appeal in writing and filed within seven days from today. ------------------