Archer & Anor v Archer [1999] NSWCA 286

New South Wales Court of Appeal CITATION : Archer & Anor v Archer [1999] NSWCA 286 FILE NUMBER(S) : CA 40455/99 HEARING DATE(S) : 19 July 1999 JUDGMENT DATE : 20 July 1999

Una Evelyn ARCHER PARTIES : Ernest Robert ARCHER v Trevor Robert ARCHER JUDGMENT OF : Mason P

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

COUNSEL : A: J Conomy R: J Trebeck SOLICITORS : A: Peter Adams & Co, Solicitors, Sydney R: Garden & Montgomery, Solicitors, Cowra CATCHWORDS : Application for stay - No question of principle. Bridgewater v Leigh (1998) 158 ALR 66 CASES CITED: Paringa Mining & Exploration Co plc v North Flinders Mines Ltd (1988) 165 CLR 452 Jesasu Pty Ltd v Minister for Mineral Resources (1987) 11 NSWLR 110 DECISION : Injunction granted, appeal expedited

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40455/99 MASON P

Tuesday, 20 July 1999

Una Evelyn ARCHER & Anor v Trevor Robert ARCHER

JUDGMENT

1 MASON P: The appellant, Mrs Archer, originally sought an order that a transfer by her to her son Trevor of a one half interest in a property known as Sussex near Cudal, be set aside on the ground of undue influence. That property has now been sold. However, Mrs Archer seeks an order that a sum of money being one third of the proceeds of sale of Sussex, being the same as two thirds of a one half interest, be paid to her. She seeks that relief on the grounds of the transfer of the two thirds of her one half share was obtained by undue influence or through unconscionable conduct on Trevor's part. 2 This is a sad and troubling case. It is sad because it is a family dispute. It is troubling because of the facts and the concern that the litigation is being persisted in in circumstances that will just cause wasted expenditure. The proceedings were originally brought by Mr and Mrs Archer against Trevor Archer on the basis that each claimed that the transfer by them of Sussex to Trevor was procured by undue influence. The original proceedings were heard over 11 days in 1995 before Simos J. Simos J dismissed the claim of Mr Archer, but upheld the claim of Mrs Archer, at least in part, and his Honour made a declaration that the transfer by her to Trevor of her one half interest in Sussex was as to two thirds of that one half procured by the undue influence of Trevor. 3 Trevor Archer appealed to the Court of Appeal against the finding of undue influence. That appeal was expedited and upheld in a judgment delivered on 23 February 1999. The orders made by Simos J relating to Trevor's undue influence were set aside and a new trial was ordered. The new trial was heard in May of this year before Windeyer J. 4 In the light of the High Court's decision in Bridgewater v Leigh (1998) 158 ALR 66, the issues were enlarged to include a claim based upon unconscionable conduct in the alternative to the claim based upon undue influence. Windeyer J dismissed Mrs Archer's claim. In doing so he made findings of fact based in large part upon credibility findings adverse to Mrs Archer. His Honour clearly distinguished between the claims based upon undue influence on the one hand and those based upon unconscionability on the other, although as his Honour correctly observed the factual matrix was similar and to a large extent overlapping as regards the two alternative claims. Mrs Archer has appealed and has sought in effect orders maintaining the status quo pending the resolution of that appeal. 5 In 1994 Trevor decided to sell Sussex. He had suffered a work injury and it is clear that his capacity to continue to work Sussex as a rural property was affected. In aid of the then pending claims based upon undue influence, caveats were lodged against the land. It may be doubted whether those claims gave rise to a caveatable interest, in that the rights based upon a claim of undue influence are as I understand it, more in the nature of what is described as a mere equity rather than an equitable interest. Nevertheless leave was given by Windeyer J in 1995 to lodge further caveats after lapsing notices had been served. As I have said Trevor wanted to sell Sussex. 6 On 19 November 1996 an order was made giving Trevor power to sell Sussex on condition that the one third of the net proceeds of sale, not making any allowance for the sums required to discharge any mortgage or encumbrance, be paid into an account in the joint names of the solicitors for the parties to abide the outcome of the appeal then pending against Simos J's orders. 7 In paragraph 24 of his judgment given on the 27 May 1999, Windeyer J observed that those moneys, with interest, now total something over $214,000. It would appear that these moneys which have been referred to as the "controlled account" are now under the control of the solicitors for Trevor, but nothing turns upon that. 8 On 7 July 1999, Windeyer J dismissed the application made before him for in effect the continuance of the injunction requiring the retention of the controlled moneys. I have had regard to the reasons given by his Honour. Nevertheless the application before me is a fresh application. It is one which the High Court has indicated is one properly to be considered afresh, desirably by a judge other than the trial judge whose judgment is under appeal (see Paringa Mining and Exploration Co PLC v North Flinders Mines Ltd (1988) 165 CLR 452 at 459). 9 There has been some debate about the nature of the present application. It was at one stage described as a motion for a stay. In my view it is more properly to be seen as a motion for an injunction being a form of interlocutory injunction to preserve the subject matter of an appeal. The relevant principles have been discussed in Jesasu Pty Limited v Minister for Mineral Resources (1987) 11 NSWLR 110. There at 117, Kirby P said, Where there is an appeal as of right to this court which the appellant has exercised, where no more relief is sought than to preserve the status quo pending the outcome of the appeal, where the appeal appears to raise an arguable point, where no special prejudice is alleged, where the court could deal with the questions promptly and where the failure to give relief may involve serious (and arguably irreversible) damage to the appellant and loss of valuable rights, the balance of convenience favours the issue of an injunction upon appropriate conditions.