HILLSTON v BAR-MORDECAI [2003] NSWSC 89

New South Wales Supreme Court

CITATION : HILLSTON v BAR-MORDECAI [2003] NSWSC 89 9-12, 16-19, 23-24 & 30 September 2002; HEARING DATE(S) : 1-5, 9-11, 14-18, 21-25 and 28-31 October 2002; 18-22, 25-29 November 2002. JUDGMENT DATE : 28 February 2003 JURISDICTION: EQUITY JUDGMENT OF : Bryson J at 1 DECISION : Gifts set aside. Family Provision claim and claim to remove Administrator dismissed. see [274] - [276]

CATCHWORDS : FRAUD MISREPRESENTATION AND UNDUE INFLUENCE - Undue Influence - medical attendant - de facto relationship- F aged 72 and M aged 36 lived in shared households from about 1983 until she died in 1994 aged 83 M was medical practitioner and GP attending F throughout- treated her, referred her to Specialists and allowed access to medications- she gave him sums of money gifts, surgery, property by series of transactions including sale without payment of expressed consideration and later discharge of her mortgage, she paid purchase price of home purchased in his name as to one-third - no independent advice - no rebuttal of presumption of undue influence - M claimed (1) de facto relationship and (2) this answered the claim of undue influence. On large body of evidence of behaviour of M & F and knowledge and perceptions of relatives, friends and associates, held that there was no de facto relationship- further that relationship of H & W if it existed did not rebut presumption of undue influence. - FAMILY PROVISION - Claim by M failed- prescribed period exceeded and no cause shown to extend- not eligible person- on merits no prospect of success. - WILLS PROBATE AND ADMINISTRATION - Claim to remove administrator based on alleged false evidence relied on in proceedings in which administration granted- dismissed. Family Provision Act 1982 LEGISLATION CITED : Wills Probate and Administration Act 1898 Property (Relationships) Act 1984 Plunkett v. Bull (1915) 19 CLR 544 Johnson v. Buttress (1936) 56 CLR 113 Watkins v. Combes (1922) 30 CLR 180 Poosathurdi v. Kanappa Chettiar [1919] LR 47 IA 1 Linderstam v. Barnett (1915) 19 CLR 528 at Haskew v. Equity Trustees Executors and Agency Co. Ltd (1919) 27 CLR 231 Hartigan v. International Society for Krishna Consciousness Inc [2002] NSWSC 810 Mitchell v. Homfray (1881) 8 QBD 587 Dent v. Bennett (1839) 4 My.&Cr.269 CASES CITED : Gibson v. Russell (1843) 2 Y&CCC 104, 63 ER 46 Blackie v. Clark (1852) 15 Beav. 594 Ahearne v. Hogan (1844) Drury temp. Sug. 310 Billage v. Southee (1852) 9 Hare 532 Quek v. Beggs (1990) 5 BPR 11761 Yerkey v. Jones (1939) 63 CLR 649 Garcia v. National Australia Bank Ltd (1998) 194 CLR 395 Jenyns v. The Public Curator (Queensland) (1953) 90 CLR 113 Royal Bank of Scotland v. Etridge (No.2) [2001] 3 WLR 1021 Lewis v. Lewis [2001] NSWSC 321 PARTIES : Allan David James Hillston - Plaintiff in 3240/98 and Defendant in 1709/99 and 3039/02 Michael Jacob Bar-Mordecai - Defendant in 3240/98 and Plaintiff in 1709/99 and 3039/02 FILE NUMBER(S) : SC 3240/98; 1707/99 and 3039/02 COUNSEL : J. Whittle SC & B. Burke for A. Hillston M. Bar-Mordecai in person SOLICITORS : Shaw McDonald for A. Hillston M. Bar-Mordecai in person