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. ------------------ 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 PRIESTLEY JA: Background outline. 1 This section of my reasons sets out a brief version, very little of which is in dispute, of the chief events leading to this appeal. The appeal is against a judgment of Simos J. Before him Mr and Mrs Archer asked that the court set aside the transfer they had made to their son Trevor of a farming and grazing property. Their application was based on undue influence. Simos J refused to interfere with Mr Archer's transfer of his interest to Trevor, but granted Mrs Archer's application in part. The appeal has been brought by Trevor against the partial relief granted to his mother. Neither the father nor the mother cross-appealed. 2 Mr and Mrs Archer had three sons, Colin, born in 1949, Trevor, in 1952 and Neville, in 1955. (For clarity and brevity I will refer to the parents as Mr and Mrs Archer or the father and the mother, and to the sons by their first names.) All three sons were born on "Glenroy", a mixed farming and grazing property about 40 kilometres from Orange where their parents lived and worked, and which was owned by their father. 3 Of the three sons, Colin never worked on the farm as an adult. 4 Trevor, apart from the time he spent at a boarding school in Orange, grew up on "Glenroy" and worked there until he was twenty. From 1972 until July 1976 he was mostly living and working away from home. In August 1976 he returned home to live, and to work. He did not receive wages but had free board and was given money from time to time for his needs, until, as from 1 July 1978, he was taken into partnership with his parents. The partnership carried on the business of farming and grazing on "Glenroy". "Glenroy" was not a partnership asset. 5 In July 1979, Neville, who had been living away from "Glenroy" since about 1973, came home, and in 1980 a new partnership was formed in which the parents, Trevor and Neville each had a one quarter interest. 6 Mrs Archer's maiden name was Balcomb. She had grown up on her parents' property "Sussex", about twelve kilometres from "Glenroy". Her parents had five children, all daughters. When her father died in 1973, "Sussex" passed to his widow and their five daughters. The widow continued to live on the property. 7 Late in 1979 Mr and Mrs Archer became the owners, as joint tenants, of "Sussex". They borrowed the greater part of the purchase money. Trevor undertook part of the repayment obligations. 8 In November 1980 Trevor and Neville went to live in the workmen's cottage on "Sussex". (The widowed Mrs Balcomb continued to live in the main house until she died on 9 August 1987.) 9 The partnership of the parents and the two sons carried on business on both "Glenroy" and "Sussex". As with "Glenroy", "Sussex" did not become a partnership asset. The father was the decision maker and effectively the manager. 10 In 1982 Trevor married. His wife (whose given name was Gerritje, but who was called Sue, as I shall refer to her) had two sons from her first marriage, one born in 1972, the other in 1977. Shortly after the marriage Neville moved to live with his parents on "Glenroy". Trevor and his family lived in the workmen's cottage until 1987, when, after Mrs Balcomb's death, they moved into the main house. 11 On 1 July 1987 Neville retired from the partnership to join the police force. He was paid about $6,000 in respect of his partnership interest. 12 After Neville went, Trevor did most of the work on "Sussex" and Mr Archer most of the work on "Glenroy". The partnership agreement was changed so that Trevor had a one half share and his parents a quarter share each. The father was still effectively the manager of the partnership business. Trevor was receiving $400 a month from the partnership, together with "all running costs" and rent free living on "Sussex". The main residence on "Sussex" was improved and extended with partnership funds, most of the labour being supplied by Trevor. 13 On 1 March 1989 both Mr and Mrs Archer made new wills. Each left the whole of his or her property to the other, and each, in the event he or she survived the other, left "Sussex" to Trevor. 14 In September 1989 there were conversations between Trevor and his parents which later in evidence they all recalled differently. The conversations were about what was to happen to "Sussex". Trevor consulted a solicitor, Mr Cheney, of Messrs Cheney & Wilson, and later in the year, on a date which was subsequently disputed, Trevor and his parents went to Mr Cheney's office, where the parents signed papers transferring "Sussex" to Trevor. The transfer was registered some time about March 1990. 15 In 1992 when Colin and Neville raised the ownership of "Sussex" with Mrs Archer she told them that she had been tricked into transferring her whole interest to Trevor, and that she had only wanted to transfer one third of her half. Colin and Neville said she should take steps to correct the situation. 16 In December 1992 a firm of solicitors acting for Mr and Mrs Archer wrote to Messrs Cheney & Wilson saying they had instructions to overturn the conveyance. Family discussions followed but no agreement was reached. In 1994 Trevor gave notice of dissolution of partnership. In April 1995 Mr and Mrs Archer as plaintiffs began proceedings against Trevor as defendant to have the transfer of "Sussex" wholly set aside. The trial. 17 After a hearing covering twelve days, Simos J delivered judgment on 17 July 1996. He dismissed the claim by Mr Archer to set aside the transfer of his interest in "Sussex" and made a declaration that the transfer by Mrs Archer "was, as to two thirds of her notional one half interest ... procured by the undue influence of the Defendant". Simos J's central reasons for judgment: the appeal. 18 The following are the deciding parts of Simos J's reasons: "I accept that Mrs Archer would not be entitled to relief unless she had established that the signing of the relevant documents other than of her own free will was the result of the undue influence of the Defendant. In this connection I am satisfied on the balance of probabilities that it was, relevantly, the undue influence of the Defendant that produced the result that the documents were signed by Mrs Archer other than of her own free will. In my opinion, for relevant purposes, the Defendant was responsible for creating the situation in which Mrs Archer found herself, namely, in Mr Cheney's office with Mr Archer who had just recently suffered a heart attack, and Mr Cheney was the agent of the Defendant in 'unduly influencing' Mrs Archer to sign the documents." (AB 7/1587-8, J 64-65) 19 Simos J then cited Dixon J's explanation of undue influence in Johnson v Buttress (1936) 56CLR 113 at 134-135: "The basis of the equitable jurisdiction to set aside an alienation of property on the ground of undue influence is the prevention of an unconscientious use of any special capacity or opportunity that may exist or arise of affecting the alienor's will or freedom of judgment in reference to such a matter. The source of power to practise such a domination may be found in no antecedent relation but in a particular situation, or in the deliberate contrivance of the party. If this be so, facts must be proved showing that the transaction was the outcome of such an actual influence over the mind of the alienor that it cannot be considered his free act." 20 A little later, Simos J continued: "There is no doubt, in my opinion, that Mrs Archer signed the relevant documents, having been influenced to do so by Mr Cheney as agent for the Defendant, and that that influence was relevantly 'undue' in the sense of unconscientious, having regard to the circumstances leading up to the appointment in Mr Cheney's office, as well as what transpired in the course of the meeting with Mr Cheney. In particular, I have regard to the fact that, although, as I have found, Mr Cheney explained the nature of the documents to Mr and Mrs Archer, he made no effort to satisfy himself that Mr and Mrs Archer appreciated the significance from their point of view of what they were doing, namely, giving away their most substantial asset at a time when, having regard to their advanced ages, it was likely that they would have to retire in the near future and provide for themselves in their retirement. I note that Mr Cheney denied that he was aware at the time of the signing of the documents that Mr Archer had suffered a heart attack. Notwithstanding that Mr and Mrs Archer would have been left with 'Glenroy', or the proceeds of sale of 'Glenroy', to provide for themselves in their retirement, it is plain that they would have been in a much more secure position and able to live much more comfortably if they had, in addition, 'Sussex', or the proceeds of sale of 'Sussex'. These are matters that it could reasonably have been expected that an independent solicitor would have explained and discussed with Mr and Mrs Archer so as to satisfy himself that they were fully aware of what was involved in the making of this very substantial gift to their son at this particular stage in their lives. However, not only did Mr Cheney, with the knowledge of the Defendant, not suggest to Mr and Mrs Archer that they should obtain independent advice, but he also made no effort to discuss such considerations with Mr and Mrs Archer whilst they were in his office, and preferably in the absence of the Defendant. It is plain that, in substance, Mr Cheney, at least subconsciously, regarded himself as acting principally for the Defendant ..." 21 Simos J then repeated that in his view Trevor, during the visit to Mr Cheney's office, was "in a position of ascendancy or influence in respect of" both his parents "and made unconscientious use" of that situation (AB 7/1592, J 69). He also noted that a claim of undue influence may fail even if the donor received no independent advice, but said that he thought in the present case the absence of independent advice was an important factor. 22 At the trial, Trevor relied on other defences beside the denial of undue influence. These were rejected by Simos J. They were not raised by the argument presented to this court, although included in the notice of appeal. The appeal was thus concerned only with the appellant's criticism of the trial judge's findings of undue influence. 23 Simos J's reasons for his undue influence findings were clearly heavily influenced by a view of the facts formed after seeing the parents and Trevor examined and cross-examined, and affected by his assessment of their reliability and credibility. Judgments based on factual findings of this kind can rarely be disturbed unless it can be shown that the trial judge either did not use or palpably misused the advantage of seeing and hearing the witnesses, or acted on evidence either glaringly improbable or inconsistent with facts incontrovertibly established in the case: see Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. 24 In the present case, counsel for Trevor fully recognised the difficulties the Devries tests caused him. He also recognised that the central finding in the case was the trial judge's finding of the state of mind, and what was operating on the state of mind, of Mrs Archer, when she committed herself to the transfer transaction in Mr Cheney's office. 25 Counsel for Trevor put the principal ground of appeal in the following way. He submitted that there were a number of issues at the trial, bearing on the credibility of Mrs Archer, of sufficient significance for the trial judge's making of the central finding to require that he make findings on those issues in order to take them into account when considering the central question. Counsel then submitted that in regard to some of these issues the trial judge had explicitly refrained from making findings and in regard to others had passed them over without referring to them. It was submitted that had the judge dealt with these issues, he would or should have made findings favourable to Trevor. It was also submitted that some important findings were inconsistent with one another. 26 Finally, on this point, it was submitted that if the conclusions that should have been drawn in regard to the matters just referred to had been considered in the light of facts which were, for the purposes of the case, and in the Devries sense, incontrovertible, a quite different picture emerged of the state of Mrs Archer's mind at the critical time. 27 The group of interlocking submissions could be summarised as an assertion on behalf of Trevor that the trial judge had so significantly failed in using the advantages a trial judge is conventionally credited with, that his central factual finding could not stand. Counsel for Trevor acknowledged that success in this submission might achieve nothing more for his client than a new trial. A new trial would be likely to be very expensive for the parties and to draw out their unhappy litigation still longer. Approach to the appellant's submissions. 28 The appellant's submissions must nevertheless be carefully considered. I will try to do this by first listing in chronological order the factual matters which either clearly are of significant relevance to the trial judge's eventual central finding, or have been argued to be so, and noting the extent to which they were in issue at the trial, so that I can then consider whether the appellant's submission, that certain important matters were not dealt with by Simos J, is justified. To do this will be somewhat laborious, because of the way the evidence emerged. 29 The proceedings were commenced by statement of claim filed on or about 20 April 1995. The first affidavits of Mr and Mrs Archer were sworn on 27 April 1995. Mrs Archer's first affidavit, which set out some facts in detail, appears at AB 1/46-52, Mr Archer's appears at AB 1/43-45. 30 (I note here a feature of this case which may account in part for the differing memories of the main parties of what was said at various times. In his affidavit Mr Archer said he had read his wife's affidavit and agreed with it. This was typical of the whole of the evidence coming from the parents. Mr Archer appears to have been more willing at all times than his wife to agree to "Sussex" being transferred to the appellant and to have said so to him when Mrs Archer was not present. When the three of them were together and the subject of "Sussex" came up, Mr Archer said little and does not appear to have been as open about his views on the transfer of "Sussex" as when he was speaking to his son alone.) Paragraphs 3 and 4 of Mr Archer's first affidavit furnish another example: "3. In 1989 and 1990 I had serious medical problems and remember a further conversation with the defendant. My wife was not present at the time of this conversation. The defendant said, 'Dad, I'm not prepared to stay on unless I get something to call my own'. I said, 'We will see what we can do'. 4. I didn't mention this to my wife and no other discussions took place except for those discussions disclosed in my wife's Affidavit." 31 Further affidavits were made by Mr and Mrs Archer on 5 June 1995. Mrs Archer's second affidavit (AB 1/64-76) went into more detail of a number of events than her first affidavit. Similarly, Mr Archer's second affidavit (AB 1/77-85) went into more detail than his first. 32 In the middle of June four affidavits were filed in Trevor's case. One was by Mr Toner, a valuer, sworn 13 June 1995 (AB 1/216-17). Another was by Mr Cheney, the solicitor earlier mentioned, sworn 15 June 1995 (AB 1/201-14). The remaining two were by Trevor and his wife Sue, each sworn on 14 June 1995. This first affidavit of Trevor is at AB 1/101-33 and Sue's at AB 1/183-94. The affidavits of Trevor and his wife set out their account of the relevant history and also admitted or denied matters set out in the affidavits of Mr and Mrs Archer. 33 Affidavits in reply were then filed by Mr and Mrs Archer, both sworn on 13 July 1995, that of Mrs Archer appearing at AB 1/235-45 and that of Mr Archer at AB 1/222-231. In these affidavits specific matters asserted in the affidavits of Trevor and his wife were commented on, paragraph by paragraph. 34 A similar method was adopted by Trevor in his second affidavit, sworn 7 August 1995. 35 All the deponents I have mentioned gave oral evidence and were cross-examined. 36 As a result, in order to see whether there is any merit in the appellant's submissions that Simos J did not make findings of fact on disputed matters which were significant to his ultimate findings of fact, it has been necessary to trace the course of the evidence concerning each of those allegedly significant matters, first through the affidavit evidence, and then, when touched upon, the oral evidence. In the following section of my reasons I set out what seem to me the most relevant of the results of my examination of the materials. The list of factual matters . 37 (a) Mr and Mrs Archer bought "Sussex" as joint tenants in 1979 for a price of $120,000 (AB 1/134). Thirty-five thousand dollars was advanced to Mr and Mrs Archer and Trevor by the Commercial Banking Company of Sydney Ltd (AB 1/137). Thirty thousand dollars was advanced by the Rural Assistance Board (RAB) to Mr and Mrs Archer. Forty thousand dollars was advanced by the mother and four sisters of Mrs Archer. Repayments of the first two loans were made from the then partnership of the two parents and the appellant. 38 (b) In par 12 of his first affidavit Trevor said that before his parents bought "Sussex" it was proposed that it should be bought in the names of them and himself. The application for finance (AB 1/140-1) made to the RAB was in the name of all three. In one part of the application form it was said that one partner would reside at "Sussex" and two would reside at the present property. The application form was signed by the father. This document was dated 13 June 1978. A further form lodged with the RAB bearing the same date and signed by the mother as executrix of her father's estate affirmed that the land was under offer, for a price of $160,000, to her husband, herself and the appellant (AB 1/142). The RAB notified Mr and Mrs Archer by letter dated 21 August 1978 that approval had been given to them for an advance of $30,000. The letter said the title was to be taken up in either the name of Mr Archer or in the names of Mr and Mrs Archer (AB 1/145). The appellant said he was not aware of that condition until about twelve months later when his mother said to him that they could not get the farm in his name, it was just in the parents' names, and his father added that this was because it was a farm build-up loan and he could not be one of the owners because he did not own any land (AB 1/105). The father in his affidavit of 13 July 1995 agreed with this evidence of his son without qualification. The mother also agreed in her affidavit of the same date, in substance, subject to a minor variation. 39 (c) In Mr Archer's second affidavit, (AB 1/77) he said that from 1987 Trevor occasionally asked him what was going to be done with "Sussex" and that he would reply along the lines that nothing could be done until "we finish up with the RAB". He also said that he told his wife that Trevor wanted to know what was going to happen with the properties and that she said he would have to wait until we pay out the RAB (AB 1/80). 40 The mother's evidence (AB 1/48, par 12 of her first affidavit) was that at regular intervals she told Trevor that one day "Sussex" would belong to him and his brothers and that nothing could be done until the RAB had been repaid. She recalled that Trevor would say that that was not fair to which she would say in regard to Colin and Neville that they were still "our sons". 41 (d) By letter dated 7 January 1988 the RAB notified Mr and Mrs Archer that the thirty thousand dollar loan should be paid by 30 September 1989 (AB 6/1305). In his reasons (p 12) the trial judge placed this letter in early 1989. The difference is not significant except for the fact that the timely reminder by the RAB of the need to repay the loan is likely to have caused the parents to be giving conscious attention to the way in which it would be done for a considerable period before a number of material events that took place in 1989. 42 (e) In par 19 of Trevor's first affidavit he set out a conversation with his mother at "Glenroy" in November or December 1988. He said that she had said that "Sussex" would be owned by him and his brothers one day; he replied that Colin had done nothing for "Sussex", Neville had left and been paid out and he (Trevor) had stayed on, and that he had then said: "You wouldn't have 'Sussex' if I hadn't stayed here and helped get the loans to buy 'Sussex' and helped to pay them off."; and that his mother had replied: "I suppose that's right. I'll have to think about that. Anyway, we can't do anything until we have paid out the Rural Assistance Board". 43 In his reasons Simos J set out the appellant's version of this conversation and then his mother's version from her third affidavit, which was to the effect that there had been discussions from time to time between herself, her husband and the appellant about "Sussex" in which she always said that it would go to the three sons but that in any event nothing could be done until the RAB had been repaid (AB 1/240). Mrs Archer did not deal directly with the assertion at the end of par 19 of Trevor's first affidavit that she had said "I suppose that's right. I'll have to think about that". She was asked about it in cross-examination (AB 1/467-8) and in answer (which I think probably but am not completely sure was referring to the words above quoted, at AB 1/468 K) said "I may have said it". I can find no passage in which she denied it. 44 Simos J did not make any direct finding about whether the words were said to Trevor by his mother. If he had found that they were, it would have been evidence of a reluctant indication by the mother that she would at least consider whether she would change her, until then, strongly held intention of leaving her share of "Sussex" to her three sons to that of leaving it to the appellant only. 45 (I note here that although Mr and Mrs Archer held "Sussex" as joint tenants, the evidence shows they tended to speak as if each owned half and could dispose of his or her half as it suited him or her. No point was made about this at the trial, and their assumptions were taken as correct for practical purposes. In any event each appears to have understood about survivorship.) 46 (f) As mentioned above, Neville withdrew from the partnership with his parents and Trevor on 1 July 1987. This was formally documented in a memorandum of agreement dated 3 March 1989. This recorded that as from 1 July 1987 the profits of the partnership were to be shared in the proportions of one half to Trevor and one quarter to each of his parents (AB 5/1121). The parents made wills also bearing the date 1 March 1989 (AB 6/1307-1313). The solicitor who witnessed the variation agreement was also one of the witnesses to the wills. The terms of the wills, which if unchanged, left "Sussex" to the appellant, have already been mentioned. Each parent gave the remainder of his or her estate to all their children as tenants in common in equal shares. Each also appointed as executors the surviving spouse and the appellant. 47 (g) In par 9 of her first affidavit Mrs Archer referred to her making the will dated 1 March 1989. She said: "In doing this I was keeping Bob [Mr Archer] happy. On the day Bob and I made our 1989 wills Bob had said to me: 'Trevor should be left Sussex as our other boys have left. The others can share in Glenroy.' I was not content with my decision to do this however I was confident I would outlive Bob and I had determined to alter the will at a later time." 48 (h) In par 21 of his first affidavit the appellant said that in March 1989 when talking to his parents, his mother had said to him that they had just made new wills and appointed him co-executor and asked whether that was all right with him; he said yes; she then handed him a copy of each will; he looked quickly at them and asked, "You're leaving 'Sussex' to me?"; his mother replied, "Yes, we've agreed to that"; and he said "Thanks". 49 Mr Archer, in his affidavit of 13 July 1995, said he never heard a conversation to the effect just set out. Mrs Archer, in her affidavit of the same date denied that she said the words attributed to her and denied also that she gave her son a copy of either her will or her husband's will. She added however that she was aware that her husband owned "Glenroy" which he had left to her and that "Sussex" would pass to her by right of survivorship if her husband died before her. This appears to be a reference to what she had said in par 9 of her first affidavit about her belief that she would survive her husband, in which event she would change her will. 50 According to Trevor, after he was given the copies of the wills he went home to "Sussex" and had a conversation with his wife. In par 6 of her affidavit sworn 14 June 1995 (AB 1/183), she said that in early March 1989 Trevor told her that his parents had renewed their wills and were leaving "Sussex" to him and that they had given him a copy of their wills. She said he then had some papers in his hand and later and possibly about mid 1989 she read the wills. 51 Simos J did not make a finding on the question whether copies of the wills had been handed to the appellant, nor did he say whether he accepted what Sue had said in par 6 of her affidavit and her oral evidence (AB 4/881-2). 52 (i) In par 23 of his first affidavit (AB1/109) the appellant said that in early September 1989 his mother told him that if his father died before her she would have to sell up "Glenroy" and "Sussex" to provide for her old age. He continued that a day or two later, when his father was at "Sussex", he had a conversation with him near the shearing shed, when Sue was present, in which he told his father what his mother had said; he (Trevor) then said this would make it very difficult for him and asked what the chances were of having "Sussex" transferred into his name; that his father replied "I suppose it's time we transferred it to you, you'd better make some inquiries with a solicitor to see what's involved and let me know". In her affidavit, Sue gave a similar account of the conversation, her version of the final part being: "Trevor said: Can you transfer Sussex to me now? Trevor's father said: I don't see a problem with that. You had better check it out and see what it will cost." Trevor's wife was not as precise in putting a date to this conversation as he had been. She said it was before the date (21 September 1989) when she and Trevor went to see Mr Cheney, pursuant, according to her, to what Mr Archer had said about checking out the cost of a transfer. 53 In par 4 of his affidavit of 13 July 1995, Mr Archer denied that the conversation near the shearing shed occurred at the time alleged or at any other time. In par 22 of the same affidavit, in answer to Trevor's affidavit evidence, Mr Archer said that from late August 1989 to 16 September 1989 his wife and he were holidaying in Western Australia. He also said the alleged conversation did not occur. 54 Trevor in his affidavit of 7 August 1995 agreed that his parents had been on holiday in early September 1989, giving the dates they were away as being from 24 August to 16 September. He said the conversation near the shearing shed happened before his parents had left for that holiday. To his affidavit he annexed a business card of Cheney and Wilson, solicitors, on the back of which was hand printed "Thursday, 21 Sept at 2.00 pm". He said the time written on the back was the time of the first appointment. 55 So far as I can see Simos J made no finding about whether the shearing shed conversation took place as described by Trevor and his wife. 56 (j) Trevor and his wife visited Mr Cheney on 21 September 1989. Mr Cheney's diary note of what was said at the meeting was in evidence (AB 6/1381-2). It has some imperfections (for example, it records incorrectly that the conference was on 22 September, rather than 21 September). However, the fact that it was made on the same or the next day was accepted (AB 3/670V, 673D). The note was as follows: "Mr Archer was seeking advice on the procedure and costs involved in the transfer of the title to the property 'Sussex' which is currently registered in the names of his parents. The property comprises approximately 1,000 acres and is situated near Toogong. It is estimated that its value is approximately $700,000.00 taking into account the improvements that are erected on the land. The property was purchased approximately 12 years ago by Mr and Mrs Archer senior. At that time they and Trevor were operating a three-way partnership in the business of primary production which included the property "Sussex" and also included another property known as 'Glenroi'. There have been funds borrowed on the security of the property over the years from both the Rural Assistance Board and the Commercial Banking Company. There is also a private mortgage at the present time. We are instructed that at least two of these mortgages are very close to being fully discharged. The clients are in the process of making investigations as to the best method of refinancing the property was a [sic] who with one mortgagee. Prior to doing so however we are asked to advise on the question of costs and procedure on transfer. The partnership between Trevor Archer and his parents has been ongoing for a period of 12 years. He has two brothers one of whom was previously involved in the partnership but now has been paid out. Trevor has been contributing towards the reduction in the borrowings on the freehold however these borrowings would also appear to relate to plant and equipment and stock. He therefore maintains that he had made a capital contribution to the acquisition of the property and that this should be taken into account in determining the amount of stamp duty payable on the transfer from his parents to himself. I advised him that in the first instance he should be prepared to pay ad volin [sic] stamp duty on the face of the Valuer General's valuation. Any application for a rebate of that duty would require very concise evidence as to the amount of money spent and the manner in which that money was applied during the course of the partnership to the acquisition of the property or improvement of the property. For example we are instructed that the cottage which Mr and Mrs Archer are living has been extended and improved as a result of finds which have been obtained from the partnership and work which has been undertaken by Mr Archer. The Archers are concerned should Mr Archer senior die prior to his wife. In these circumstances the property would pass automatically by operation of law to Mrs Archer senior. She apparently takes the view that the property should be divided among all three sons notwithstanding that the others haven't worked on the property and Trevor is concerned to protect his interest in this regard. She is also reluctant to transfer her interest in the property during her lifetime as apparently it was a property originally held in her family and she is concerned that in the event that she transfer her assets she will be left without assets in her old age. They are going to discuss the matter further with Mr and Mrs Archer senior with a view to try to establish a basis on which the transfer can be entered into. Our advice to Mr Archer was that to properly protect himself he should take all necessary steps, notwithstanding the amount of stamp duty payable, to transfer the property into his name as soon as possible. He should be prepared to pay the stamp duty and regard any refund of duty as a result of his contribution to the property as simply a bonus. He will consider the position further and get back to us." 57 On the following day Mr Cheney wrote a letter of advice to the appellant and his wife, headed "Proposed Transfer of the Property Sussex" which, omitting formal parts, was as follows: "We refer to your conference with the writer of the 21st September, 1989 and thank you for the opportunity of advising you in relation to this matter. As advised in our conference, having regard to the fact that Mr and Mrs Archer senior hold the property as joint tenants, it is important from your point of view to discuss with them the possibility of transferring the property to yourselves at the earliest possible time. While this course of action involves a substantial payment of stamp duty we are of the view that the long term protection and certainty that the transfer will ensure outweighs that cost. As advised it will also be possible to make some representations to the Department of State Revenue for a rebate of part of the stamp duty having regard to the money expended by you on the property over the years. We will take no further action at the present time however should you wish us to prepare a schedule of the cost involved in effecting the transfer we will be quite happy to do so." (AB 6/1383) 58 At the time when this letter arrived Mr and Mrs Archer and Trevor were taking steps to comply with a requirement by RAB that the amount outstanding under its mortgage, approximately $16,502, be repaid. The three of them went to the State Bank, Canowindra, on 26 September 1989 to make arrangements to pay out the RAB. The parents also went back the following day. Before they went to Canowindra on 26 September 1989, an important event had, according to Trevor, taken place. 59 (k) In par 27 of his first affidavit Trevor said that after receiving the solicitor's letter of 22 September he told his father the stamp duty on the transfer of "Sussex" would be about $27,000 and that he was prepared to pay that, the legal costs and the valuation fee, and that his father said that was okay and to go ahead. Trevor also (in par 28) said that on 26 September, before the three of them went to Canowindra, his parents had come to "Sussex" where the following occurred: "I said, I am relieved that you and Dad have agreed to transfer 'Sussex' to me. Mum said, I am prepared to give it to you but not to Sue. I won't have her name on the papers. We will give it to you but not to her. At this stage, Sue came into the kitchen and said: Put it in Trevor's name. It doesn't worry me at all. I said, I understand, the papers will be drawn up in my name only." 60 In her affidavit Sue gave a similar account (par 13). 61 She and Trevor both said that at an appointment with Mr Cheney on 16 October 1989 they reported to him the agreement of Mrs Archer to the transfer to the appellant and his mother's insistence that no part of the property was to go into Sue's name. (Paragraph 14 Sue's affidavit, par 31 of Trevor's first affidavit and par 7 Mr Cheney's affidavit.) 62 Mr and Mrs Archer denied that the conversation of 26 September took place. 63 All four were cross-examined about the conversation. 64 Simos J said that whether or not the conversation occurred as claimed by Trevor and Sue was a matter of some significance, but said also in a number of places in his reasons that he did not find it necessary to resolve the conflict in the evidence about the conversation (AB 7/1549, 1554, 1572, 1594). 65 (l) There was another event about this time which does not seem to have been treated as of any great significance at the trial. In the appellant's chronology it was listed as having happened on 24 September 1989. The evidence is not so definite. It seems to be mentioned first in par 30 of the appellant's first affidavit (AB 1/114) where he mentioned that at some time before 16 October 1989 his father said to him "We are in the process of paying out the girls", this referring to the amount owing by Mr and Mrs Archer to Mrs Archer's sisters under the mortgage to them securing the sum of $40,000 advanced at the time of the purchase of "Sussex" in 1979. The discharge of the mortgage (AB 1/161-2) is dated 23 October 1989. In par 39 of her third affidavit Mrs Archer she said that her sisters were paid on 24 September 1989 out of funds of her husband and herself, not out of partnership funds. In cross-examination Trevor could not remember when it was that his father had told him that the parents were paying out the girls. No date was put to him as being the date when this happened (AB 3/637-639). The precise date does not appear to have been taken up with Mrs Archer in cross-examination. Simos J referred in his reasons to the appellant's agreement that his father had told him that they were in the process of paying off the girls, but did not specify when the payment was made (AB 7/1568). 66 (m) When, as mentioned above, Trevor and his parents went to the State Bank of New South Wales, Canowindra on 26 September 1989, they arranged to borrow $16,502 to pay out the RAB. The loan was for five years. The total amount to be repaid was $26,426. The repayments were made out of partnership funds. The RAB mortgage was discharged. The State Bank's security was a mortgage given by Mr Archer over "Glenroy". (This meant that after the mortgage to Mrs Archer's sisters was discharged, "Sussex" was unencumbered.) 67 The various documents were before the court (AB 1/149-156). The fact that they are dated 27 September 1989 seems to be explained by the parents' return visit on that day. The documents bear out the account in the preceding paragraph. 68 The last sentence of par 29 of Trevor's first affidavit was: "My father said to the Bank Manager [at the State Bank, Canowindra] words to the effect: 'If the Bank requires security for this loan then you'd better put it on "Glenroy" because we're going to transfer "Sussex" to Trevor.'" 69 Mr Archer denied that he said this. Mrs Archer Snr did not remember. 70 So far as I can see Simos J did not make a finding on whether Mr Archer made this statement to the bank manager. 71 (n) I now come to the visit, briefly mentioned in par (k) above, made by Trevor and his wife to Mr Cheney on 16 October 1989. Mr Cheney made a diary note of what he was told (AB 6/1386-7). In his affidavit he gave evidence of the conversation. He said (AB 1/205-6) that he was told that "Mum and Dad" had agreed to transfer "Sussex" to Trevor but not to Sue. Further practical details were discussed of matters needed to be done to enable the transfer to go through. In par 14 of Sue's affidavit she gave evidence to the same effect. Her recollection was that Trevor had said to Mr Cheney "I have spoken to my parents since I saw you last. Mum will not agree to any part of the property going into Sue's name and it will all have to go into my name only" (AB 1/189). 72 As I read the cross-examinations of the various witnesses, the fact that a statement to the foregoing effect was made to Mr Cheney was not challenged. Nor, so far as I can see, did Simos J make any finding on the point. In view of Mr Cheney's diary note and evidence it seems probable that the fact of the statement having been made to Mr Cheney was simply accepted. The bearing this may have had upon the question whether Mrs Archer had previously made the statement to Trevor and his wife as reported to Mr Cheney was not directly considered by Simos J. 73 (o) On 6 November 1989 Mr Archer was admitted to Orange Base Hospital. He had suffered what was described as a serious heart attack on that day and on 8 November 1989 suffered a "second turn". He was discharged on 17 November 1989 and returned to "Glenroy". Simos J recorded in his reasons that Trevor claimed that, shortly after his father returned to "Glenroy", he said to both his parents that the papers were ready to sign "Sussex" over and asked whether they could sign them on 24 November as Mr Archer had an appointment to see his general practitioner, Dr Winkworth, on that day. (The doctor's surgery was quite close to the solicitor's office in Orange.) Simos J also recorded that Mr and Mrs Archer both denied that any such conversation occurred. 74 So far as I can see, Simos J recounted the different versions in his reasons, but made no finding on the conflict between them. 75 (p) On 24 November 1989 Mr and Mrs Archer, Trevor and Sue went to Orange. There was a conflict of evidence about whether Mr and Mrs Archer knew in advance on that day that they were going to see the solicitor and sign papers. Again, Simos J recounted the different versions, but made no finding. Sue did not go to the solicitor's office. The solicitor, the parents and Trevor all gave evidence of what happened in the office. Simos J said he accepted "in general terms Mr Cheney's version of what transpired on the relevant occasion" (AB 7/1564-5). A little earlier he had said: "In summary, however, the Defendant and Mr Cheney say that Mr Cheney produced an agreement for sale of "Sussex" and explained its important terms to the Plaintiffs who then signed it. Again, according to the Defendant and Mr Cheney, Mr Cheney then produced a transfer of "Sussex", which according to Mr Cheney, he explained to the Plaintiffs, after which explanation the Plaintiffs each signed the transfer. According to the Defendant and Mr Cheney, Mr Cheney then produced an authority addressed to the State Bank at Canowindra, directing the Bank to forward the title documents to Mr Cheney, which, according to Mr Cheney, he explained to the Plaintiffs, indicating that it was an authority to obtain the title deeds from the State Bank at Canowindra, after which each of the Plaintiffs signed the form of authority. The authority is dated 24 November 1989 and Mr Cheney stated in his affidavit that the numbers and letters '24th' and 'November' were in his handwriting and were written by him on that day in the presence of the Plaintiffs." 76 Later in these reasons I will mention difficulties which seem to me to follow from Simos J's acceptance in general terms of Mr Cheney's account, and his conclusion that Mr Archer was not subject to undue influence at the time, whereas Mrs Archer was. At the moment I am simply setting out the chief aspects of the evidence and findings on the evidence referred to by the appellant's counsel in support of the submission that there are sound legal bases for setting aside Simos J's ultimate findings of fact. 77 (q) The evidence of Mrs Archer was that at about 11 pm on the day she and her husband had signed the documents in Mr Cheney's office she wrote an account of what had happened there and how she felt about it, later she made a fair copy of that account and no longer had the original. The copy (Ex 18) was as follows: "'Glenroy' Cudal 1st December 1989 Today I did something I will regret for the rest of my life, and to make matters worse neither Bob nor I had been told what was on. I know if Bob had known he would have said no I feel to sick to worry. Bob had an appointment today to see Dr Shannon to see how his heart was and if he would have to go to Sydney Trevor said he would take us up but to our surprise he pulled up in front of a solicitors which we have never heard of & I can't remember his name. Trevor asked us to go inside with him. I didnt wake up what was on. But he had made arrangements for us to sign Sussex over to him. We did talk about this one day down at Sussex. Bob seemed to be in favour but I said no. I wasn't. I pointed out that I didn't want to give my inheritance away to 1 son when I had 3 who should share it, half of 'Sussex' was all I had. All my share of Dads estate was left in the farm as well as my fifth share in the money Mum left in the farm. I would have nothing of my own after years of thinking how nice it would be to have something to shear with my 3 sons. The money which I left in the farm was $35000 from Dad & Mum. In September this year $40,000 (Mums remaining shear) had to be paid to the girls. Well Bob and I paid this not Trevor and another $25000 came from my money. I got $8000 back from the Law Society. This was a refund of the money that Stan Wall had spent out of Dad's probate. I put this on intrest and after 10 years it was $25000, but I didn't get that either so that was $60000 I put into the farm. Any way the solicitor had all the papers ready. I was just stuned because Trevor never said what he had done, so we were tricked into it. Anyway Bob signed he was far to sick to say anything & I thought what am I going to do if I say no, or even say something it would of upset him as he had already signed, so I signed but I was so hurt & mad to think he was in such a hurry to get that farm. He must think Bob is dying and he doesn't trust me to be fair in my will. Now I am home how I wish I had said something, but he new I wouldn't cause any trouble. (thats me) I know Trevor works on the farm, but we found the money he has only helped pay the bank's back and we still owe the State bank money, I bet he won't offer to pay that off. I only hope Trevor will come good as one day he said he would have to buy me a house. He should pay me or the 2 boy (Colin & Neville) back, because he has got over 800 acres and Bob only has 530 left, for myself & the boys. Trevor gets more from the farm that Bob & I, and he is working in Orange every week, & Bob is doing the work. Half of Sussex was all I had so I feel I have lost out He should pay 2/3 of my 400 odd acres to me or Colin & Neville when I am gone. I know he will sell the farm one day. When Bob is better I will talk to him about it I just hope and pray something can be done for the wrong I have done. Una Archer 11 pm 1-12-89" 78 Simos J accepted that Mrs Archer had written the first version of the note late in the evening of the day when she and her husband had signed the documents in Mr Cheney's office. One reason he gave for accepting her evidence in this respect was that the contents of the note were entirely appropriate for something written at that time. Another reason was that he could not accept that she would be so dishonest as to fabricate such a note at some later time and back date it to an earlier date. He thought her evidence in cross-examination about the note was truthful although because of the passage of time her recollection of some matters was uncertain and might be even in error. 79 Simos J found, in light of the words in the note "he had made arrangements for us to sign Sussex over to him", that at least at the time she wrote the note Mrs Archer Snr believed that she and her husband had signed documents transferring "Sussex" to the appellant. 80 Simos J also said that his opinion was that the note corroborated the evidence of Mrs Archer to the effect that she did not sign the documents of her own free will, even if she had been aware of what she was signing. 81 Simos J also seems to have inferred from his acceptance of Mrs Archer in these respects that she believed that the appellant "would have realised that in the situation in which he had placed her [she] was unlikely to refuse to sign the documents" (AB 7/1582-3). 82 (r) One of the three documents signed by Mr and Mrs Archer in Mr Cheney's office, the authority to the State Bank, Canowindra, to forward title documents to "our solicitors, Messrs Cheney & Wilson" was dated 24 November 1989. Mr Cheney's diary recorded a 12.30 pm appointment for 24 November 1989 "Archers to sign documents". Trevor's diary recorded the same date as the date of the visit to Mr Cheney's office (AB 6/1484). Simos J said "the evidence seems to establish that the meeting with Mr Cheney took place on 24 November 1989" (AB 7/1576). For the purposes of the appeal, it is very important that it was not argued for Mr and Mrs Archer that the meeting did not take place on that day; that is, this court must accept, (as the evidence in any event very strongly indicates, and as Simos J accepted "seems to establish") that the meeting was on 24 November 1989. 83 (s) In order to complete the transfer Trevor needed to raise money to pay (inter alia) the stamp duty of about $27,000. He proposed to borrow this on the security of "Sussex". This took some time to arrange. In the course of the arrangements, Mr Cheney wrote to Mr and Mrs Archer, by letter dated 26 February 1990, headed "Sale to T.J. Archer, Property: Sussex" in which he said it would be necessary for them to attend at the National Australia Bank, Orange, "to sign a Surrender of Deeds form to enable the Bank to hand the Deeds to the Commonwealth Bank on settlement of this matter" (AB 6/1407). Previously, the National Australia Bank by letter dated 6 December 1989 had written to Mr and Mrs Archer saying they had prepared a discharge of mortgage over "Sussex" in anticipation of settlement and that to enable settlement to proceed they should call at the Bank "to sign necessary settlement authority, and security release" (AB 7/1517). Both these letters were addressed to Mr and Mrs Archer at "Sussex" not "Glenroy". 84 (t) By a document dated 2 March 1990 addressed to the National Australia Bank, Orange, Mr and Mrs Archer authorised the Bank to hand over to Messrs Cheney & Wilson the deeds listed in the document, which were the deeds to "Sussex". There were some doubts raised in the evidence whether the document was signed on 2 March 1990, but there was no dispute about the genuineness of the signatures of Mr and Mrs Archer. It was thus established, that despite the misdirection of the letters mentioned in (s), Mr and Mrs Archer had received the request to go to the Bank and sign the authority, whether by delivery of the letters to them, or some other way. 85 (u) On 12 September 1990 Mr and Mrs Archer both made new wills (AB 6/1348-530). Mrs Archer appointed her husband and Trevor to be her executors and trustees. If she died before her husband she gave her estate to him. If she died after him her principal dispositions were of personalty to her children equally and as to the rest of her estate half each to her sons Colin and Neville. She declared that she had made no provision for Trevor as she had provided adequately for him during her lifetime. Her husband's will was, with appropriate transpositions, to the same effect as hers. 86 (v) The first date appearing in the evidence when Mrs Archer claimed to some other person that she and her husband had been tricked into signing the documents in Mr Cheney's office in 1989, is in 1992 following questions put to her by Colin. The word "trick" also appears in her note dated 1 December 1989 (Ex 18). In his reasons Simos J set out the explanations given by Mrs Archer of what she thought when asked to sign the documents in Mr Cheney's office and the reasons why she did not raise any protest at what she was being asked to do. I have set out previously the reasons given by Simos J for accepting that Mrs Archer Snr had written the first version of the note at about 11 pm on the day when she and her husband had signed the documents in Mr Cheney's office. -------------------- 87 This ends the section setting out my list of factual matters which seem to me the most material for the purposes of the appeal. I will mention later in a more general way some other matters happening after Mr and Mrs Archer made their wills of September 1990. At this point however I make some brief comments on matters touched on in (v) of this section. Comment on the trial judge's findings about Exhibit 18. 88 Simos J did not refer in his reasons to the cross-examination of Mrs Archer about Ex 18 and matters relevant to it. In that cross-examination she said a number of inconsistent things about her state of mind on the day she wrote the original note There were some matters which Simos J did not deal with when saying why he generally accepted her evidence about Ex 18. 89 One fundamental difficulty for Mrs Archer was that on her evidence the original version of Ex 18 had been made on 1 December 1989 and it referred to her husband's appointment that day to see Dr Shannon and that was the day of the impugned transaction, but, as was accepted in the appeal the evidence was virtually at the incontrovertible level that the transaction had taken place on 24 November, and, it was established with almost equal security, Mr Archer saw Dr Shannon on 1 December and Dr Ridge, standing in for Dr Winkworth, on 24 November. The conclusion was unavoidable that something was wrong with Mrs Archer's evidence on this subject, either with what she said in evidence at the trial, or with Ex 18 itself, or both. 90 Another matter not dealt with by Simos J was how the terms of the note could be reconciled with its author's evidence that she did not realise when in Mr Cheney's office that she was signing documents which would have the effect of transferring "Sussex" to the appellant. To my mind, one thing the note makes absolutely clear is that at the time she wrote it Mrs Archer knew she had signed documents transferring her interest in "Sussex" to Trevor. Simos J either accepted Mrs Archer's claim that she had not understood until years later that she had signed documents transferring (or permitting the transfer) of the whole of "Sussex" to Trevor or, which seems to me the better interpretation of his reasons, that Mrs Archer had not understood when in Mr Cheney's office what was happening but, on reflection between leaving the office and writing the note ten hours or so later she had realised the substance of what she had done. To my mind the whole tenor of the note is against either finding. To mention one matter only, the fact that in the office she thought about saying no, as recorded in her note, and in the general context of the note, seems to me to be a very clear indication that in the office she knew what was going on. 91 A further matter regarding Ex 18 is that Simos J does not appear to have considered the arguments concerning it in light of his finding (AB 7/1594, J 71) that Mr Archer's claim failed in light of "the consistent evidence as to Mr Archer's preparedness and willingness, prior to the signing of the documents, to give his one half share of 'Sussex' to the defendant and, by the absence of evidence from Mr Archer that his free will was overborne at the time of his signing of the documents in Mr Cheney's office." 92 This finding necessarily involves either rejection by the trial judge, or at least non acceptance, of a good deal of the evidence of Mr Archer which he gave to the same effect as that of Mrs Archer. When some of Mrs Archer's statements in Ex 18 are read bearing this in mind, along with the judge's general acceptance of Mr Cheney's account of what took place in his office, then further questions arise, not dealt with by the trial judge, as to the reliability of a number of things stated in the note. Events after September 1990 . 93 When cross-examined about the terms of her 1990 will, Mrs Archer sought to explain them by saying that when it was made she did not know that "Sussex" had been transferred to Trevor, or to the extent that she did understand there had been a transfer, so far as she was concerned she had only transferred one third of her half interest. If she were accepted on that, then her account of events might not be internally inconsistent (although the terms of Ex 18 would to my mind make it very difficult to see overall consistency in her account). After September 1990 and until the question of the ownership of "Sussex" was raised with Mrs Archer by Colin in 1992, Trevor carried out a number of the ordinary incidents of ownership of "Sussex". Mrs Archer sought to explain these by saying that she did not know of them, or to the extent that she did, thought that they fitted in with her notion that nothing more had happened in regard to "Sussex" than, at the most, a transfer by her to Trevor of one third of her interest. During this period and until some time in 1994 the partnership of Mr and Mrs Archer and Trevor was carrying on business on "Glenroy" and "Sussex" as before and it may well be that Mrs Archer had no reason to consider whether payments being made in respect of rates and like outgoings for "Sussex" were being made on Trevor's own account or on some other account. Events after September 1990 until Mrs Archer began to speak to other people of having been tricked in 1989 can be understood consistently with either Mrs Archer's claimed beliefs or with her in fact knowing that the ownership of "Sussex" passed entirely to Trevor. It therefore does not seem to me to be useful to examine those later events. What the case turns on is the history leading up to the signing of the documents in Mr Cheney's office on November 24 1989 and matters casting light on Mrs Archer's state of mind on that day and what it was that brought that state of mind about. In order to consider these matters I come back to the events I have summarised under the heading "The list of factual matters". Comments on the items in the list of factual matters. 94 Items (a) and (b) appear to show that in 1979 when Mr and Mrs Archer became the owners of "Sussex" as joint tenants, the original intention had been that the parents and Trevor would be the owners of the property and that it was only because of loan requirements of the RAB that that had not happened. The fact that the original intention was not completely abandoned is shown by Trevor's becoming responsible for part of the Commercial Banking Company's loan used to pay part of the purchase price. 95 Item (e) shows that in November or December 1998, if Trevor's evidence were to be accepted, his mother, who had had it firmly in her mind that she wanted her share of "Sussex" to be divided equally between her three sons, might consider changing her mind about that. 96 Item (f) shows that the parents were prepared on 1 March 1989 to make wills having the effect of leaving "Sussex" to Trevor after they had both died. Item (g) shows that Mrs Archer was prepared to go along with her husband's wish that "Sussex" should go to Trevor after they were dead although her true intention was then quite different. At that stage it was her husband's wishes she was giving the appearance of agreeing to while at the same time believing she would survive him and then be in a position to dispose of "Sussex" as she saw fit. 97 Item (h) seems to me to be of some importance. The materials I have referred to in dealing with that item would support, if the judge had been prepared to make the finding, the conclusion that Mrs Archer had made known to Trevor before the events of September to November 1989, that "Sussex" would belong to Trevor after the deaths of his parents. 98 The materials relevant to item (i) would show, if the version of Trevor and his wife were accepted, that Mrs Archer had made known to Trevor, at least in part, what she had in mind for both "Glenroy" and "Sussex" if Mr Archer died before she did. Those materials also show that Trevor then took up the matter with his father, and because of his father's encouragement made the first visit to Mr Cheney. 99 Item (j) appears to furnish a reliable account, via Mr Cheney's diary note, of what Trevor told Mr Cheney on 21 September 1989, this all being consistent with Trevor's overall account of matters at the trial. 100 If the trial judge had accepted the account of Trevor and his wife that on 26 September 1989 Mrs Archer agreed that "Sussex" would be given to Trevor but in his name only, not in his wife's name, then the subsequent part played by Mr Cheney, particularly on 24 November 1989, would have been explicable without the critical inferences drawn by the trial judge concerning Mr Cheney's part at that meeting; indeed, acceptance of the account of Trevor and his wife would have excluded those inferences. A similar comment applies to Trevor's evidence (denied by his father) that later on the same day his father told the bank manager at Canowindra that "we're going to transfer Sussex to Trevor". A somewhat similar comment can be made also in regard to item (n); if it is accepted that Trevor told Mr Cheney what Mr Cheney recorded on that day (and I see little alternative to this being accepted), then the trial judge would have been justified in taking the statement into account in assessing the likelihood of Mrs Archer having previously said to Trevor and his wife what they both reported to the solicitor. 101 If Simos J had accepted what Trevor claimed in item (o), then the credibility of the mother's later account of her shock at being taken to a strange solicitor's office without any knowledge of what was going to happen there, would be distinctly undermined. This would be the more so as Trevor's account might well be thought to have a greater air of likelihood about it than his mother's. Trevor's account explains why the trip to Orange started at a much earlier time than would have been necessary simply to keep the medical appointment. Mrs Archer's account has the trip beginning much earlier than necessary, for no apparent reason. The same general considerations apply to item (p). 102 Item (q) is concerned with Ex 18. I have already given some reasons for thinking that the trial judge's general acceptance of Mrs Archer's account of this document did not take into account certain considerations which could lead to its being quite differently regarded from the way the trial judge did. 103 Matters (t) and (u) are as consistent with the overall accounts of Trevor and his wife as they are with that of Mrs Archer. The weight to be given to Mrs Archer's account of them would be affected by acceptance or rejection of earlier evidence by the parties which was in dispute such as the conversation alleged by Trevor and his wife of 26 September 1989. Trial judge's reasoning on critical point . 104 Although I have already referred to the way in which Simos J reasoned towards his conclusion, I will here set out his reasoning in a little more detail. He took the state of mind of Mrs Archer at the time of signing the documents as being the critical issue in her case to have her gift to her son set aside. He correctly recounted her frequently stated view that her interest in "Sussex should be divided among her three sons. He pointed out that the appellant was relying on one conversation only to support his assertion that his mother had agreed to "Sussex" being transferred to him. (He did not refer to what Trevor claimed had been said to the Bank Manager at Canowindra on the same day.) He said he need not decide whether that conversation had occurred as the appellant asserted. He said, in effect, that it was sufficient that he was convinced after reading the mother's evidence and seeing and hearing her in the witness box that she had not wanted to transfer her interest in "Sussex" when she did. He said that Mr Cheney as agent for the appellant exercised undue influence over her in the sense of unconscientious influence having regard to the circumstances leading up to the meeting in Mr Cheney's office as well as what happened in the course of the meeting. 105 The reference to the circumstances leading up to the meeting seems to me to indicate acceptance by Simos J of the allegation by Mrs Archer that she had been tricked into going to the meeting and there being put under the influence of Mr Cheney in circumstances in which Trevor foresaw she would not feel able to resist. Discussion of the trial judge's reasoning . 106 If Simos J had laid a sound basis for coming to the conclusion mentioned in the preceding paragraph, then, as counsel for the appellant recognised in the hearing before us, his decision would be impregnable. If it were possible to infer from Simos J's reasons that necessarily implicit in his reasoning was a rejection of the evidence of the appellant and his wife that Mrs Archer Snr had agreed to transfer "Sussex", then again I would think his conclusion impregnable. 107 However, Simos J expressly held back from making a finding against the appellant that he and his wife were not to be accepted in regard to communicated agreement of Mrs Archer. It would not have been impossible for him to make such a finding, but there would have been difficulties in doing so. He would then have had to account for the appellant and his wife telling Mr Cheney on 16 October 1989 that Mrs Archer was now agreeable to the transfer. Such a conclusion would have involved a finding either that the appellant and his wife were somehow mistaken about what they thought Mrs Archer had agreed to, or that, knowing Mrs Archer had indicated no such agreement, they agreed to tell Mr Cheney untruthfully that such an agreement had been made. That might well have been regarded as an unlikely thing for them to have done; such a deception would have been quite foolish because pointless. If Trevor knew that his mother had not agreed to transfer "Sussex" and was still, as she later claimed, firmly opposed, there is nothing in the evidence to suggest any reason for him to think his mother might be brought to agree by the time the documents were ready to be signed. 108 This seems to me to be why Simos J refrained from making the earlier fact finding decision, and adopted the position that he would treat it as possible that Mrs Archer had said what she was supposed to have said but either had not meant it at the time or had changed her mind afterwards. The trouble with this approach however is that so long as the fact finder left open the possibility that Mrs Archer had told the appellant and his wife she was agreeable to the transfer of "Sussex", the further possibility was also necessarily left open that the appellant correctly told Mr Cheney that his mother had agreed to transfer "Sussex" and that both he and Mr Cheney went ahead towards the signing of the documents with no reason to think that Mrs Archer would not willingly sign them when the time came. Also, if Mrs Archer had said she would agree, it would not be improbable, indeed it would seem probable, that the appellant told his parents before they went to Orange on 24 November 1989 that they were going to the solicitor's office before going to the doctor's surgery, and there would be no reason for Mrs Archer to have been surprised when the solicitor produced the documents for her and her husband to sign. 109 In what I have been saying I have not been intending to make or indicate any factual findings of my own. In all the areas I have been discussing, fact finding was the business of the trial judge. What I have been saying is intended to explain why, in my respectful opinion, it was necessary for Simos J to resolve the various conflicts of fact relating to the willingness of Mrs Archer to transfer her interest in "Sussex" to the appellant in the period leading up to and ending on 24 November 1989. 110 The method adopted by Simos J of accepting the truthfulness of Mrs Archer about her state of mind in Mr Cheney's office on 24 November 1989 and making other factual findings, or finding it unnecessary to make other factual findings, in the light of that acceptance, might be logically open (although to my mind in a not very satisfying way) were it not for his apparently having treated the circumstances leading up to the appointment in Mr Cheney's office as part of the unconscientious situation created by the appellant of which his agent, Mr Cheney, was unconsciously taking advantage in getting Mrs Archer to sign the documents. That element in his reasoning however seems to me to deprive his method of logic because the situation in the office could only have been unconscientiously been brought about by the appellant if he had not believed that his mother had agreed to the transfer. That is, this aspect of the case does not look merely at the state of Mrs Archer's mind but rather at whether the motivation of the appellant had unconscientiously brought it about by undue influence. 111 In my opinion there could be nothing unconscientious in his having instructed the solicitor to prepare the documents for his parents to come and sign if they had led him to believe, and he believed, that they were indeed willing to transfer "Sussex" to him. 112 Amongst the real possibilities the trial judge would have had to consider if he found that the appellant's account of conversations on 26 September 1989 was acceptable, but that subsequently Mrs Archer had gone back to her earlier intention of leaving two thirds of her half interest in "Sussex" to her other two sons, but had not made this change of heart known either to her husband or Trevor, is the following. On such a state of facts, Mrs Archer would have found herself in Mr Cheney's office on 24 November 1989 knowing that she had led her husband and Trevor (and through Trevor Mr Cheney) to believe that she was content to join with her husband in transferring "Sussex" to Trevor. The other three persons in the room would each have had proper reason to believe that Mrs Archer was willing to transfer her interest in "Sussex" to Trevor. In her own mind, as she later vividly expressed it in Ex 18, she was not willing to transfer the whole of her interest in "Sussex" to Trevor. At that point, she knew that her husband wished to transfer "Sussex" to Trevor and was expecting that she would join in doing so. According to Ex 18, what acted on her will at that stage, to bring her to sign, was fear of her husband's distress if she did not. What she said in Ex 18 in this respect would have to be considered together with what she said in cross-examination when giving her account of what happened in Mr Cheney's office on the day the documents were signed: "We walked into the building and Mr Cheney was waiting for us. It was Mr Cheney. Trevor said: This is my parents like that (indicating) and Mr Cheney said: Please to meet you. I hear you have had a heart attack. You look like you have weathered the storm very well. Please sit down. You know what you were here for. He said: The transfer into Trevor's name. And Bob said: Yes. I never said a word. He said: I have the papers here, Mr Archer. Bob signed the paper and pushed it across to me and I thought what am I going to do. I am not going to give my portion to Trevor. I have three sons and I want them all to have a share of my portion. I debated. I thought Bob could have another heart attack with the shock. I thought and I thought. He promised he will buy me a house if I went ahead and so I signed it thinking if we had that in the agreement, that if we sold - gave - him the place he would buy me a house." (AB 2/413) 113 This would all have to be considered in the context that Simos J dismissed Mr Archer's claim that he was subject to undue influence. Simos J found that Mr Archer was willing for "Sussex" to be given to Trevor. 114 Because of these possibilities, it seems to me to have been essential for Simos J to have made findings of fact on matters dealt with in items (e), (h), (i), (k), (n) and (o) in the list I have earlier discussed, before arriving at any conclusions about the state of Mrs Archer's mind on 24 November 1989 and on the question what persons or circumstances had led her to be in the state of mind that he found. In not deciding these factual matters, it seems to me that Simos J unintentionally disabled himself from finding that it was the appellant's conduct in bringing about the meeting in the solicitor's office that produced the state of mind in his mother which led her to sign the transfer documents against her will and also disabled himself from finding that that conduct was unconscientious and that Mr Cheney was, on that day, unconsciously exercising undue influence over Mrs Archer on Trevor's behalf. 115 These conclusions accept what seems to me to be the heart of the appellant's case in the appeal. I therefore think the appeal should be upheld. 116 A subordinate point is that had Simos J decided the questions of fact which in my respectful opinion he should have done, it must be at least a possibility that he would have found in favour of the appellant that Mrs Archer had told him she was agreeable to transferring "Sussex". That this was a real possibility is shown by the fact that such a finding would not rest on the evidence of Trevor alone. His wife gave evidence of the same fact and there was further evidence (if accepted) of what was said to the Bank Manager at Canowindra on 26 September 1989 to support such a finding. I do not understand Simos J to have made any findings adverse to the credibility of Trevor's wife. 117 Had the trial judge made a finding that Mrs Archer had told Trevor and Sue that she was agreeable to transferring "Sussex" on an occasion before 24 November 1989, he may well have been led to a different view about the credibility of the various inconsistent accounts Mrs Archer gave about issues that arose in her cross-examination, such as her state of mind at the meeting in Mr Cheney's office and the circumstances of the writing of the fair copy of Ex 18. Simos J does not seem to have taken into account all the difficulties created for Mrs Archer by Ex 18 and her evidence about it, and by her evidence about the fair copy. (As to the fair copy, she said it was written two or three days after the original, the next day, a week, not more than six months, some months, three weeks or more, and two, three or four or even twenty days (AB 2/1408, 445, 454, 455, 457, 458, 3/523). Bridgewater v Leahy : undue influence: unconscionability . 118 The oral argument in this appeal was heard on 18 August 1998. Judgment was reserved. On 22 October 1998 the High Court delivered judgment in Bridgewater v Leahy (1998) 72 ALJR 1525. Because it appeared to the court that it was possible that the parties might wish to put further submissions to the court arising from Bridgewater, they were informed by letter dated 30 October 1998 to file any such further submissions in writing within a limited time. In the event submissions were filed for the appellant on 19 November 1998, for Mr and Mrs Archer on 25 November 1998 and for the appellant in reply on or about 27 November 1998. 119 The position taken up by the appellant was that the majority in Bridgewater (Gaudron, Gummow and Kirby JJ) had reaffirmed the long standing distinction between the (sometimes overlapping) equitable doctrines of undue influence and unconscionability and had decided the appeal on the basis of unconscionability and not undue influence; by contrast, the present case when before Simos J was contested throughout as an undue influence case. For the appellant it was then said that the case would have been conducted differently had unconscionability been relied on by Mr and Mrs Archer and it was therefore not open to them to seek to rely on unconscionability in the appeal. 120 For Mr and Mrs Archer it was submitted that the general similarity between the facts in the present case and those in Bridgewater was such as to justify the court in coming to the same conclusion as in Bridgewater. This submission relied upon the factual findings made by Simos J. 121 In my opinion counsel for the appellant are right in their submission that it is not open to this court, in view of the way in which the case was conducted at the trial, to permit Mr and Mrs Archer now to rely on unconscionability. 122 Further, even if it were open to Mr and Mrs Archer now to rely on unconscionability, this court would be in the same difficulty on contested factual matters as has led me to the conclusion that the appellant is entitled to a new trial on the undue influence case. This is because, on issues raised by the appellant at the trial, and not the subject of decision by Simos J, the appellant could argue he had done nothing unconscionable. A possible sequence of events left open on the undecided issues was as follows. Looked at from the appellant's point of view, his father was generally favourable to his becoming the owner of "Sussex". His mother for a considerable time was not agreeable. Then, for a time she became agreeable and during this period the transfer was effected. Later, (and on one available and undecided version of the facts, considerably later) the mother, under pressure from her other sons, came to regret, with feelings of bitterness, her earlier agreement to the transfer. Depending on the trial judge's decisions on the many ancillary issues within this broadly stated sequence, it might or might not be possible to find the appellant had acted unconscionably, or exercised undue influence, but the trial judge never reached a position where he could decide the questions that would have arisen from the necessary fact finding. Because of his acceptance of the mother's evidence of her state of mind on 24 November 1988, and his non consideration of the difficulties facing the mother in her assertions of her state of mind on that day, the foregoing possible versions of the facts were never properly adjudicated on. 123 As mentioned towards the beginning of these reasons, the appeal has been concerned only with submissions directed to the trial judge's conclusions on Mr and Mrs Archer's undue influence claim. The appellant's submissions have been directed entirely to the trial judge's fact finding in the way earlier described. This has meant that it has not been necessary to discuss any of the authorities concerning undue influence. It has been sufficient, in my opinion, to take as an authoritative statement of the law, relevant for present purposes, the passage from Johnson v Buttress cited by Simos J and reproduced above in these reasons. No question was raised in the present case about the continuing authority of that statement of the law by Dixon J. Conclusion . 124 In my opinion Simos J did not decide factual matters which if decided, may have been decided in the appellant's favour, and if so decided would not have left it open to the trial judge to conclude, reverting to the words of Dixon J in Johnson v Buttress, that Trevor had, on 24 November 1989, made unconscientious use of some special capacity or opportunity affecting his mother's will or freedom of judgment in regard to the transfer of "Sussex" or that the situation in Mr Cheney's office on that day enabled him to practise unconscientious domination over his mother's will or that he deliberately contrived to bring such a situation about. (The undue influence relied on was that alleged to have been exercised on 24 November 1989. No other case was litigated against Trevor.) 125 Because this court is not in a position to make the findings of fact from which Simos J held back, the court is not in my opinion in a position itself to decide the whole case on the merits. The only remedy the court can give in the circumstances is to order a new trial. If this should come about with the same outlay of work, time and expense devoted to the previous trial it is likely to prove very expensive to all three parties. This court can do nothing more about that undesirable outcome than point out to the parties that it may well be to the advantage of all of them to see if they can come to an agreement between themselves not based upon what they believe to be their strict rights but upon a mutually generous compromise of what they believe those rights to be. 126 In my opinion the formal orders of the court should be that the appeal be upheld, the orders made by Simos J in partially upholding Mrs Archer's claims set aside and a new trial ordered of her claims. 127 If any of the parties wish to make submissions as to the costs of the trial and the appeal, they should be put in writing and filed within seven days from today. The court will after that time, whether submissions are received or not, make costs orders. The other orders I have proposed should take effect from today. 128 MEAGHER JA: I agree with Priestley JA. 129 POWELL JA: I agree with Priestley JA. ------------------------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.