Turner v Windever & Anor [2005] NSWCA 73

New South Wales Court of Appeal

CITATION: Turner v Windever & Anor [2005] NSWCA 73

HEARING DATE(S): 20 October 2004

JUDGMENT DATE: 22 March 2005

JUDGMENT OF: Giles JA at 1; Santow J at 90; Bryson JA at 103

DECISION: Appeal dismissed with costs.

CATCHWORDS: Relief against unconscionable dealings - elderly widow mortgages home to one son-in-law to secure a loan - arrangement for simple interest and no payment until sale or death - mortgage erroneously provides for compound interest and payment on demand - widow finds out and becomes distressed and concerned about "foreclosure" - son-in-law does not allay her concerns - adverse stance in correspondence - widow wished to be rid of the mortgage - transferred home to another daughter and son-in-law who paid out the mortgage - transaction improvident - widow died before trial - whether judge erred in not accepting her affidavit evidence where disputed unless corroborated - whether widow under special disadvantage because unaware that mortgage could be rectified - whether transferees took advantage of opportunity presented by the disadvantage - no error as to affidavit - on facts, not shown that under special disadvantage or that advantage taken. D

Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419; Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51; Blomley v Ryan (1956) 99 CLR 362; Bridgewater v Leahy (1998) 194 CLR 457; CASES CITED: Clyne v Law Society of New South Wales (CA, 4 September 1987, unreported); Commercial Bank of Australia v Amadio (1983) 151 CLR 337; Fox v Percy (2003) 214 CLR 118; Louth v Diprose (1992) 175 CLR 61; Wilton v Farnworth (1948) 76 CLR 646.