Therese Violette McKenzie v Olivia Pearl Nydegger [2000] NSWSC 982

New South Wales Supreme Court

CITATION : Therese Violette McKenzie v Olivia Pearl Nydegger [2000] NSWSC 982 revised - 15/12/2000 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4378/1999 HEARING DATE(S) : 4, 5, 6, 7, 8 September 2000 JUDGMENT DATE : 25 October 2000

Therese Violette McKenzie (Plaintiff/First Cross Defendant) PARTIES : Olivia Pearl Nydegger (Defendant/Cross Claimant) Registrar General (Second Defendant) Colin McKenzie (Second Cross Defendant) JUDGMENT OF : Bergin J

COUNSEL : J Sexton SC/M Bradford (Plaintiff/First and Second Cross Defendants) A McInnes QC/A Hill (Defendant/Cross Claimant) SOLICITORS : Booth Brown Samuels & Olney (Plaintiff/First and Second Cross Defendants) Kenneth Harrison (Defendant/Cross Claimant) CATCHWORDS : EQUITY - Undue influence and duress - Whether transfers into joint tenancies from tenancies in common were executed under duress - Whether defendant was at a special disadvantage or under inappropriate pressure to execute transfers. ESTOPPEL - General principles - Whether promises were made to the plaintiff leading to an expectation upon which the plaintiff acted to her detriment - Promises made in circumstances with no reservation of capacity to change mind - Whether there was a common assumption or common expectation that the plaintiff would be left certain rural properties and cattle stud - Detrimental reliance by plaintiff - Requirement for court to decide in what way equity can be satisfied. Bridgewater v Leahy (1998) 194 CLR 457 Crabb v Arun District Council [1976] 1 Ch 179 Flinn v Flinn [1999] VSCA 109 (4 August 1999) CASES CITED : Giumelli & Anor v Giumelli (1999) 196 CLR 101 Louth v Diprose (1992) 175 CLR 621 Muschinski v Dodds [1984-1985] 160 CLR 583 Taylor v Dickens [1998] 1 FLR (UK) 806 DECISION : Promises made and expectation encouraged and acted upon to plaintiff's detriment. Trust imposed over defendant's interest in properties and cattle stud.