New South Wales Supreme Court CITATION : Janson v Janson [2007] NSWSC 1344 HEARING DATE(S) : 5-9 November 2007 JUDGMENT DATE : 23 November 2007 JUDGMENT OF : Biscoe AJ CATCHWORDS : Undue Influence – voluntary transfer by old, deaf, almost blind, childless bachelor to his nephew of virtually his only asset, the house in which he had lived for almost his entire life – no independent advice – nephew held uncle's power of attorney and had given him care and assistance for many years – presumption of undue influence – presumption not rebutted LEGISLATION CITED : Evidence Act 1995, ss 64, 108A Protected Estates Act 1983 Bester v Perpetual Trustee Co Ltd [1970] 3 NSWR 30 Brusewitz v Brown [1923] NZLR 1106 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 Haskew v Equity Trustees, Executors and Agency Co Ltd (1919) 27 CLR 231 Hillston v Bar-Mordecai [2003] NSWSC 89 In Re Coomber [1911] 1 Ch 723 Johnson v Buttress (1936) 56 CLR 113 Law Society of New South Wales v Walsh (NSWCA, 15 December 1997, unreported, BC9706885) Linderstam v Barnett (1915) 19 CLR 528 Louth v Diprose (1992) 175 CLR 621 CASES CITED : Moxon v Payne (1873) LR 8 Ch App 881 Poosathurdi v Kanappa Chettiar (1919) LR 47 IA. Riz v Perpetual Trustee Australia Ltd [2007] NSWSC 1153 Royal Bank of Scotland plc v Etridge (No 2) [2002] 2 AC 773 Spong v Spong (1914) 18 CLR 544 Stivactas v Michaletos (No 2) (1993) NSW ConvR 55-683 Trevenar v Ussfeller [2005] NSWSC 582 Turner v Windever [2003] NSWSC 1147 Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VR 573 Watkins v Combes (1922) 30 CLR 180 Watson v Watson [2002] NSWSC 919 Eric Armstrong Janson by his Tutor the Protective Commissioner of NSW (Plaintiff) PARTIES : Richard John Janson (First Defendant) Robert Sepping Janson (Second Defendant) Adrian John Janson (Third Defendant) FILE NUMBER(S) : SC 4858/05 COUNSEL : Mr P D Doyle Gray (Plaintiff) Mr J A Loxton (First and Second Defendants) Legal Aid Commission (Plaintiff) SOLICITORS : Monte Gildea (First and Second Defendants) Adrian John Janson (litigant in person) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BISCOE AJ 23 November 2007 04858/05 ERIC ARMSTRONG JANSON BY HIS TUTOR, THE PROTECTIVE COMMISSIONER OF NSW v RICHARD JOHN JANSON & ORS JUDGMENT 1 HIS HONOUR: In the twilight of his years, aged 92, profoundly deaf and almost blind, the plaintiff Eric Janson claims that his gift by way of registered transfer of virtually his only asset, his interest in the home in which he had lived since he was a small boy, should be set aside on the ground of undue influence. The transfer, on 27 March 2004, was to his nephew Richard Janson, the first defendant. Eric is a bachelor and childless. 12 Rupert Street 2 The property is at 12 Rupert Street, Merrylands. In 2006 it was valued at $660,000. The property was owned by Eric and his younger brothers Adrian aged 88 and Robert aged 84, the second and third defendants, as tenants in common, one third each. Richard is Robert's son. Eric's claim is supported by Adrian and contested by Richard and Robert. 3 Eric's parents moved to 12 Rupert Street in about 1919, when Eric was very young. When Eric was about twelve, his father abandoned his family. Eric's mother brought up the children (there was also a daughter, Zelma, the eldest, who died a few years ago). Over the years their mother paid off the property, which was rented. Finally, in 1959, it was all paid off and she arranged for it to be transferred to her sons as tenants in common in equal shares. In 1961 certificates of title issued for their respective interests (volume 8282, folios 193 to 198). By that time, Robert and Adrian were married and living elsewhere. Eric continued to live at 12 Rupert Street with his mother until she died in 1972. He lived on there alone until September 2003 when he had a fall and entered hospital. Since then he has lived at an aged care facility just around the corner from 12 Rupert Street. 4 Adrian and his family used to live over the road from Eric. A long time ago, Adrian moved away to Port Macquarie. For some time Robert has lived at North Richmond. Richard has continued to live with his mother at their old family home, near Eric. Eric's disabilities 5 Richard's evidence as to Eric's deafness and eyesight, which I accept, is as follows: 11. I have always known that Eric was partially deaf. When I was young, he wore hearing aids but gave them up in the 1970's when he complained they only made a buzzing sound in his ear. 12. Eric has for many years communicated with people by pen and paper. He would leave paper and pens or pencils around the place so that if you wanted to say something to him, you had to write it down. He would read it and then verbally answer you. He always checked your spelling. If you misspelt a word he would say:- You got that word wrong. You don't spell it that way. He would then spell it correctly. Some of his friends got rather annoyed when he kept pulling them up for their spelling. 13. All the conversations I have related to in my affidavit, refer to comments and questions I would have written on a piece of paper. His responses were always verbal. He can lip read a little bit. He understands OK , That's right , Yes and No . The rest has to be written down for him. 14. Eric's eyesight has only deteriorated in the last few years. I first noticed that he was having trouble with his eyesight in about 1999 when he started to use a magnifying glass. In about 2001, Dr Ho diagnosed the cause of Eric's poor eyesight. He told me when I was visiting Dr Ho with Eric that Eric suffers cataracts and degeneration of the eyes. 15. When he went to the hostel, he was given a reading devise [sic] which I can describe as a plastic sheet which he could lay a sheet of paper and which magnified the writing. He now uses a whiteboard and a texta pen. 6 This is consistent with evidence from others as to Eric's deafness and eyesight. For example, a report dated 30 June 2005 by Dr Peter Sumich, eye specialist, stated that he was "as deaf as a post…I was not able to communicate with him except by writing very large on his whiteboard and moving it around so that it avoided his central scotoma". 7 In about 1950 Eric entered a mental hospital and had electric shock treatment for a mental condition. He has referred, at least in recent years, to having "valves" put in his stomach which seems to be related to this treatment. 8 Dr Peter Morse, consulting psychiatrist, saw Eric in June 2005. Dr Morse interviewed Eric by writing questions in very large letters on a whiteboard. He noted that Eric had profound deafness and very poor sight which markedly restricted many activities and made it impossible for him to communicate on an ongoing basis regarding his financial, property and legal affairs, although he was able generally to give directions regarding his property rights and financial matters. In Dr Morse's opinion, Eric had mild cognitive impairment that was age related, mild dementia (although the extent could not be tested), memory impairment and was confused about many issues in his recent past. He had an obsessional concern about certain matters. Dr Morse had a second consultation with Eric in October 2007, shortly before trial. Dr Morse did not indicate that anything arose from that consultation that affected his assessment based on the first consultation. Agreement that Eric could live at 12 Rupert Street for life 9 There is an allegation by Adrian, contested in part by Robert, that the brothers agreed in 1961 to the effect that Eric could live at 12 Rupert Street for the rest of his life on the basis that he look after their mother, pay the rates and insurance and maintain the property, and, upon his death unmarried, leave his interest to Robert and Adrian. In that regard, Adrian's affidavit evidence was as follows : As my brother, Robert, and I were already married in 1961 and had our own residences and, as Eric was unmarried and was a pensioner with hearing and sight problems, we decided to allow Eric to stay with my mother at the residence. I distinctly remember a conversation which took place with Eric in Robert's presence when it was said words to the effect of: You can stay here and look after Mum and stay here for the rest of your life on the proviso that you pay for the rates, insurance and maintain the property. As you are unlikely to marry upon your death the deal would be that you leave your share to me and Robert. 10 According to Adrian, as Eric had a problem with mental illness as well as physical handicaps, Adrian considered that allowing him to live at 12 Rupert Street was the best way to make provision for him. I accept this was Adrian's perception. 11 However, Adrian has made statements and engaged in conduct which seem inconsistent with his alleged agreement insofar as he alleges that Eric (if unmarried) was obliged to leave his share of 12 Rupert Street to Adrian and Robert: (a) on 29 October 1999 Adrian wrote a letter to Robert which suggested that Adrian wished to transfer his interest to enhance his pension entitlement, which was subject to an asset test. The letter included the statement "Depending on whether Eric passed on before me, seeing that he had had a free run for 30 years, I anticipate you and I may benefit equally and I told Pension people that". The words " anticipate " and " may " suggest not an obligation on Eric but an aspiration by Adrian; (b) in an undated letter to Eric, Adrian said: "I also have to put in declaration to pension people (Dept of Social Security) showing asset of portion of 12 Rupert Street and my pension is worked out on figures I give them. I have always told them there are 3 brothers joint owners and that the 1/3rd share could become 1/2 share only if my elder brother did not live as long as the others" . The word " could " suggests not an obligation on Eric but a possibility; (c) Helen Nabainivalu (Adrian's daughter) discussed with Adrian the note that Eric wrote and gave her in 2004 (" My share is to go to you and Adrian "). She gave instructions to a solicitor to draft Eric's will naming Adrian and her as beneficiaries, and she provided the solicitor with a copy of the note. Adrian appears to have acquiesced in this, which is inconsistent with an understanding on his part that Eric was obliged to leave it to his brothers. 12 Robert denies the agreement alleged by Adrian. Robert's evidence was to the following effect. He cannot remember what was said at the time because it was so long ago, but Eric lived in the house because their mother said he could. Their mother was a very religious woman and, in the absence of a husband, regarded her eldest son Eric as "the boss" notwithstanding his disabilities. On 30 November 1999 Robert lodged a caveat over Eric's title which described the estate or interest claimed as "Life tenancy granted to Eric Armstrong Janson pursuant to verbal agreement of all registered proprietors". The reference to "life tenancy" was intended by Robert to express their mother's wish that Eric always be allowed to live in the house and Eric's entitlement to do so. Eric has always expected Adrian and Robert to help him pay the rates and bills for the house and complained that Adrian did not do so. Over the years, Robert says, he has paid Eric money and supplied him with fowls. Robert's view is that Eric is entitled to live there for life, although he does not think Eric will be able to return because of poor health and the state of repair of the house. 13 Helen in cross-examination said that she had heard about the agreement alleged by Adrian not only from Adrian, but also from her grandmother who told her about it when she was ten or eleven. I am disinclined to attach much weight to her recollection of what she was told as a young girl by her grandmother on that occasion. 14 I conclude that there was an oral agreement between the brothers in or about 1961 when, out of respect for their mother's wishes, they agreed that Eric would live at 12 Rupert Street for his life. The agreement was concerned with Eric's accommodation, not with the creation of a life estate in the legal sense. I am not satisfied that the agreement included any provision that Eric would pay for rates, insurance and maintenance of the property nor that upon his death he would leave his share to Robert and Adrian. It is possible that Adrian has developed expectations in those respects, which he has subliminally elevated to the status of a recollected agreement. Eric's relationship with Richard 15 When he was in his 50s, Eric went on the invalid pension. He had bad legs. At 65 he went on the old age pension. After Eric's mother died in 1972, Richard began helping Eric, starting gradually. Eric has not been able to get around very well by himself since about 1981. Thereafter Richard became Eric's carer, and Eric came to rely on Richard, to a substantial degree. In particular, Richard helped look after the maintenance of Eric's property, drove him where he wanted to go (such as to doctors, shops and banks), helped look after Eric's many chickens of which Eric was fond, and helped repair the roof when it was blown off in a storm. Richard is a self-employed electrician and has also worked overseas on a mission. 16 In 1988 Eric made a will bequeathing his entire estate to Richard. Richard arranged for a solicitor, Mr Seedsman, to attend on Eric to take instructions from him and to prepare and witness the will. 17 On 3 January 1997 Robert wrote to Adrian and his wife strongly communicating that 12 Rupert Street could not be sold while Eric was alive and that until then Robert would continue to hold the title deeds. The letter concluded with the words "EA Janson is boss". 18 In a note to Eric in, it seems, 1997, his sister Zelma wrote: "If you signed over to Richard your share as you said, when I saw you last, it's him that has to help you". Robert interprets this as evidencing that Eric had indicated that he intended to transfer his interest in the property to Richard. The note was not tendered or admitted into evidence to prove the truth of its contents. It is possibly referable to Eric's earlier will in favour of Richard. I do not propose to attach any particular significance to it. 19 In about 1999 Adrian was considering transferring his interest in 12 Rupert Street to his daughter Helen in order to maximise his pension which was reduced because of an asset test. In 1999, Eric told Richard that (a) Adrian had seen Eric and said he (Adrian) wanted to sell the house and (b) Eric had told Adrian he had to pay Eric for his share of rates and bills for the house. To Richard, Eric seemed upset by the visit. 20 Adrian's letter to Robert of 29 October 1999 (referred to at [11(a)] above) worried Robert because it made him think Adrian intended to sell the property or his share in the property, which Robert thought would require Eric to move or to share with another. To prevent this, Robert arranged for a solicitor, Mr Patrick Seedsman, to prepare a caveat dated 30 November 1999 over the title to 12 Rupert Street, which Richard lodged at the Registrar-General's Office. The caveat has been discussed above at [12]. Richard informed Eric that the caveat had been lodged so that Adrian could not sell the house. 21 At Eric's request, on 12 July 2000 Richard arranged for Eric to make a statutory declaration before Mr Richard Straker, a justice of the peace, which said that for 27 years Adrian had not paid Eric any money towards his share of council rates and labour towards the upkeep of 12 Rupert Street. According to Mr Straker, Eric wrote out the statutory declaration in his presence, Eric said that he wanted to give his share in this property to Richard, and Richard said to Eric not to worry about that now, he had left it to him in his will. This conversation was not corroborated by Richard. It seems highly unlikely that Richard would have said this to Eric because, as Richard well knew, Eric could hear nothing. This casts doubt on the reliability of Mr Straker's evidence as to what was said. Taking into account the absence of corroboration from Richard, I am disinclined to give it significant weight so far as it concerns oral communications. Richard, at Eric's request, sent the statutory declaration by post to Adrian. 22 In September 2003 Eric had a fall and was admitted to Westmead Hospital where he had a hip replacement. Richard at about that time moved into 12 Rupert Street. He says this was at Eric's request so that he could look after the place. 23 After Eric was admitted to Westmead Hospital, Richard had to pay some bills for him. He was told by someone that to operate Eric's bank account he would have to get a power of attorney. He acquired a standard form general power of attorney form at a newsagent, took it to Eric at the hospital, asked if there was a justice of the peace who could witness Eric sign it, and was introduced to Kaye Weaver who worked there as a nurse and was a justice of the peace. 24 On 3 October 2003, in the presence of Richard, Eric executed a standard form general power of attorney in favour of Richard. The enduring clause was struck out which would have continued the power notwithstanding that after its execution Eric suffered loss of capacity through unsoundness of mind. 25 Eric's signature was witnessed by Ms Weaver. In her affidavit (she was not cross-examined) she testified that she explained the effect of the power of attorney to Eric and watched Eric sign it. There is no suggestion that a whiteboard (or equivalent) was used. She testified that she witnessed Eric's signature at Richard's request and that she had no recollection of trouble communicating with Eric. She could not recall what she said to Eric but recounted her usual practice of explaining what a power of attorney entails and making sure that the individual knows and understands what they are signing. She said she probably spent ten to fifteen minutes with Eric explaining the form. Counsel for Richard and Robert suggested this evidenced that someone in Ms Weaver's position could genuinely form the impression that Eric was not stone deaf and that he could hear what he was told. The point of the submission was that it was then sought to apply the same conclusion to what he was told on 27 March 2004 by a different justice of the peace, Ms Kate Benson, who witnessed his signature to the transfer and who testified that she communicated with Eric orally. Thus, the submission ultimately sought to enhance Ms Benson's credit. I do not accept the threshold submission concerning Ms Weaver. Ms Weaver recounted her usual practice rather than her actual recollection. I am not satisfied that she has any actual recollection of communications with Eric. I am satisfied that, being profoundly deaf, he did not hear anything she said. 26 Following Eric's stay at Westmead Hospital, Richard made arrangements for Eric to be admitted for respite care to the nursing home at Cardinal Gilroy Village located near 12 Rupert Street, owned by Southern Cross Care (NSW & ACT) Inc. He was there from 17 November 2003 to 19 January 2004. 27 Given Eric's fall, his deafness and poor eyesight, Robert thought Eric would not be able to return to 12 Rupert Street nor continue to live alone. Robert and Eric agreed that Eric would live with Robert at North Richmond in a room which Richard and Robert would build. 28 The room or flat they built for Eric at North Richmond was not finished when Eric's two month stay at the nursing home expired. Thereafter Richard was informed by Mr Groundwater, an area manager for Southern Cross Care who worked at the Cardinal Gilroy Village, that if Eric wanted to stay, a permanent room had become available at the associated John Woodward Apartments at the Cardinal Gilroy Village. Eric confirmed to Richard that he wanted to stay. Eric moved to the new room in January 2004 and has resided there ever since. According to Mr Groundwater, whose evidence I accept, it was Richard not Eric who initiated the request to stay there permanently. 29 At his age and with his disabilities, 12 Rupert Street was really no longer a suitable place for Eric to live. Apart from anything else, its only toilet is outside, some way from the house. Eric appears to be content where he is. 30 Clinical notes dated 10 March 2004 record that Eric "told staff he has letter to take JP to sign about his property he showed letter to staff, it was a note for him to keep his feet up when he sit". Counsel for Richard and Robert suggested that this signifies an appreciation by Eric that he was about to sign a document concerning his property where he would need a justice of the peace. That appears to be so; but I do not think it is safe to conclude that he had in mind a transfer of 12 Rupert Street to Richard, in the absence of further description by Eric as to what he thought the letter dealt with. The evidence may suggest some impairment of cognitive functions given the divergence between Eric's description of the letter and its actual contents, but it is difficult to be confident even about that, for he may (or may not) have been intending to refer to another letter. 31 According to Richard, in February 2004 Eric told him that he could not go home, he would never be able to make it around the yard and "the best thing I can do is to sign over my share of the property to you. Go and get some legal advice. I want you to have the land. You've done the work. You're entitled to the place, Bluey. You take my place over there". According to Robert, before the transfer, Eric told Robert that he had to get rid of 12 Rupert Street, he couldn't pay the rates and bills or look after the place. 32 Richard obtained legal advice for himself from two solicitors concerning the transfer. Eric received no legal advice concerning the transfer. In cross-examination Richard gave the following evidence: Q. You consulted Professor Seggie for advice in relation to a proposed transfer of land from your Uncle Eric to yourself, didn't you? A. Yeah, that's basically it. Q. You consulted Mr McCann for legal advice in relation to the proposed transfer from your Uncle Eric to yourself, didn't you? A. Yes. Q. It was important that you obtained legal advice about the transfer, wasn't it? A. Um, yeah, Eric had asked me to bring somebody to the home, that he wanted to transfer his share to me, and I just sought advice as to how it could be done. Q. The advice you obtained was important to you personally, wasn't it? A. Well, it was important that it was done right. Q. You didn't bring Professor Seggie to see Eric, did you? A. No. Q. You didn't bring Mr McCann to see Eric, did you? A. No. Q. It was important, wasn't it, that your Uncle Eric should receive legal advice about the proposed transfer? A. Eric told me to go and get some advice, bring somebody to the home, and that he would transfer his share to me. Q. Are you saying that your Uncle Eric wanted to see a solicitor? A. No. Q. Are you saying that your Uncle Eric wanted to get some legal advice? A. No. He told me to go and get some advice. Q. Are you saying that your Uncle Eric directed you to obtain legal advice for your benefit? A. I can only tell you what he said was to go and get some advice as to transferring the property from him to me. Q. You interpreted that as a suggestion to you that you obtain legal advice for yourself, didn't you? A. No, I I just did what I was instructed to do by Eric. Q. Your Uncle Eric didn't receive any legal advice about the proposed transfer, did he? A. Not from a solicitor directly. Q. He didn't receive legal advice from anyone I withdraw that. He didn't receive legal advice from a barrister, did he? A. No. Q. Do you say that your Uncle Eric received legal advice from someone who was not either a solicitor or a barrister? A. No. Q. Are you saying that to your knowledge your Uncle Eric received legal advice in relation to the transfer? A. Not from a solicitor or a barrister. Q. Are you saying that your Uncle Eric received legal advice from someone who wasn't a solicitor or barrister? A. Well, a Justice of the Peace came and witnessed the transfer. Q. You understand the difference between giving legal advice and witnessing a document, don't you? A. Yes. Q. No one came to give your Uncle Eric legal advice about the transfer, did they? A. No. Q. Did it occur to you to arrange legal advice for your Uncle Eric about the proposed transfer? A. No, it didn't. THE TRANSFER 33 On 27 March 2004 at Cardinal Gilroy Village, Eric and Richard executed a transfer of Eric's interest in 12 Rupert Street to Richard. Their signatures were witnessed by Kate Benson, a justice of the peace. There are differing accounts from each of those three persons as to what occurred on this occasion. 34 Eric swore a short affidavit in 2006. It was a difficult, lengthy and tedious process to take an affidavit from him because of his disabilities. He was not cross-examined at the trial because it was common ground that it was not "reasonably practicable", within the meaning of s 64 of the Evidence Act 1995 (NSW), for him to attend for cross-examination. In his affidavit Eric said: 1. I grew up at 12 Rupert Street with my brothers Adrian and Bobby and my sister Zelma. 2. I lived at 12 Rupert Street until about 5 years ago. 3. I owned the house. 4. I had valves put in my stomach. I wanted social services to look after me. Instead of that Richard took me to my home and left me in the back yard. 5. My nephew Richard said "I'll look after you instead of social services". 6. One night at 9pm, Richard came and pulled me out of bed and he had a lady with him from social services and he told me she was a JP or a Justice of the Peace and she had come to fill in some would keep it or give it to Richard, or give it to me to sign, well there was about 12. This is at 9pm at night. 7. Those forms they filled in were all forged, they took all my bills and everything and claimed and changed everything. 8. Someone told me that Richard now owns Rupert Street because I signed the papers. I did not want to give my share to Richard as a gift. 9. I want Rupert Street back. 10. I have been trying to get my house back for 5 years, but nobody will listen to me. 35 Counsel for Richard and Robert submitted that (a) Eric may not have been referring to the occasion when the transfer was signed because Ms Benson, who witnessed execution of the transfer was not from social services and the transfer was executed shortly after lunch time and not at 9pm; and (b)the social worker referred to in Eric's evidence may have been a social worker who, according to Richard, visited Eric in about 1990 when he was recovering from a medical procedure. It is possible that Eric confused Ms Benson's occupation with the occupation of the social worker who visited him long ago. If that is so, it tends to confirm the medical evidence (to which I have referred) that he suffers from cognitive impairment. He misstated the time. Whether that is attributable to sight impairment or memory impairment is unknown. Notwithstanding these points, I am satisfied that the occasion to which Eric intended to refer in his affidavit was the occasion when the transfer was executed. This conclusion is reinforced by his subsequent statements which came to be admitted into evidence, referred to below. 36 Richard's affidavit evidence as to the execution of the transfer on 27 March 2004 was short: 77. She came out to Eric's hostel on 27 March 2004. I had obtained a Transfer form from Penfolds at Parramatta. I meant to fill it in before Kate arrived but I didn't get around to it. Kate filled it out for me. 78. I remember that after I had given her the details to complete the form, I then showed it to Eric and wrote it out for him bit by bit on the whiteboard. He read out what I had written for him. 79. After I wrote out the form for Eric, Kate then said:- This is a Transfer for the property to Richard. Do you understand that? Eric said:- Yes. 80. Eric then signed the form and Kate witnessed his signature. I then signed it and Kate witnessed my signature. 81. I obtained a valuation of the land and took the Transfer to the Stamp Office. Annexed hereto and marked H is a copy of the Transfer and valuation. 82. I then went to the Lands Title Office to register the Transfer. 37 In cross-examination, it emerged that it was inaccurate to say that Richard wrote out the transfer "bit by bit" on the whiteboard, that he did not transcribe every bit of the transfer, and that what he meant to say was that he wrote out that this is a transfer of 12 Rupert Street, Merrylands. I accept that evidence. In cross-examination, Richard indicated that he wrote on the whiteboard the words that he attributed to Ms Benson in his affidavit. He explained that he did not record that in his affidavit because he could not recall it when he swore his affidavit but he recalled it now. There is no corroboration from Ms Benson that any of her words were written on the whiteboard. I am not satisfied that anything she said was written on the whiteboard. 38 Ms Benson's evidence concerning execution of the transfer was more detailed. Ms Benson's father and Robert had been friends and she occasionally visited Robert. In early January 2004, while visiting Robert, she met Richard who said Eric had to sign some documents before a JP. She offered to witness them if he let her know when. She had previously been a clerk in the Federal Court jurisdiction where she had acquired an appreciation of the significance of legal documents. On 27 March 2004 she travelled with Richard to see Eric. Richard told her he wanted her to witness Eric's transfer of his share of 12 Rupert Street to Richard. Richard introduced her to Eric. While Richard was looking through papers he had brought with him, Eric said: "Rick looks after Rupert Street for me – feeds the chooks and pays my bills". She saw that one of the documents Richard had was a power of attorney, which Eric signed. 39 She noticed that the transfer produced by Richard was blank. She advised him to complete it before Eric signed it. She said that if he would read out the details she would write them on the form. That occurred. In her affidavit she said that Richard then proceeded to read the transfer in a louder voice than normal and, using a large black texta and a whiteboard, wrote down "some passages on [sic] the Transfer". In cross-examination, she conceded that from her position in the room she could not see what Richard appeared to write except for the words "transfer for Rupert Street" and some other words which she cannot recall. Eric used a large rectangular magnifier to read these words (Richard also referred in his affidavit to Eric's use of a magnifier at the Cardinal Gilroy Village). He repeated some of Richard's words. It seemed to her that Eric was thereby demonstrating that he had understood what he had just been told and read. 40 Although she had been told Eric was hard of hearing, Ms Benson says that she was satisfied he heard and understood her comments. She says that in the conversation he asked her to speak up as he had been hard of hearing since his younger days. She did not attempt to use the whiteboard. She witnessed his signature and that of Richard on the transfer. While Richard was signing she remembers Eric saying: "I've only got a third share. My brothers Bobby and Adrian own the others. You have no idea! That Adrian is a ratbag – he's never paid a penny to me for the rates he owes me for years. He never comes near me. Bobby looked after me and then Rick here looks after my bills". 41 Prior to Eric signing the transfer, she says, she asked Eric in a louder than usual voice: "Eric, do you understand that I am here to witness your signature on this Transfer. If you sign this paper, once it is registered, the land at Rupert Street will belong to your nephew". He said "Rick looks after everything for me. I've always wanted him to have it". This was the sum total of her explanation of the transaction and his response. I am unable to accept Ms Benson's evidence that she (and Richard) communicated with Eric by speaking to him loudly or that he asked her to speak up because he was hard of hearing. Eric was profoundly deaf. It was impossible to communicate with him except by writing in large letters. This error in Ms Benson's recollection is large. It is highly unlikely that Richard proceeded to read the transfer in a louder voice than usual because, as Richard knew, Eric was deaf. Richard does not corroborate that he did so. Ms Benson's recollection of events as tested in cross-examination seemed to me to be not good and at times inconsistent. This is unsurprising given that she attended on this occasion as a favour to Richard to witness signatures. It appears that she was impatient that the process took so long and wanted to have her lunch. If she spoke to Eric, I am satisfied that he heard nothing that she said. Even on her evidence, there is a lack of congruence between her account of the questions she put to Eric and his answers which, of itself, raises doubt as to his understanding. 42 I accept that Richard wrote on the whiteboard "transfer for Rupert Street". I am also prepared to accept that he wrote on the whiteboard words to the effect that he was the transferee. 43 At Richard's request, Ms Benson visited Robert later that day and witnessed his signature on a statutory declaration in which, as the 1999 caveator, he consented to the transfer. She then delivered the statutory declaration to Richard's home. 44 Richard eventually acknowledged in cross-examination that he perceived it was a gift of the land to him, although he did not accept that the gift was out of proportion to what he had done for Eric. After the transfer 45 Richard lodged the transfer at the Registrar General's Office and informed Robert, but not Adrian, of the transfer. According to Robert, after the transfer, Eric told Robert he had got rid of the property, Richard was going to live there, and Eric wanted Richard to pay all the bills and look after the place. 46 Earlier, in about January 2004, Richard had completed a "Residential Aged Care Asset Assessment" form for Eric in relation to Cardinal Gilroy Village but left blank the related statutory declaration verifying it. This was a standard form for those who seek a reduction in the nominated bond for entry to an aged facility. Mr Groundwater chased Richard up by telephone from January to March 2004 to sign the statutory declaration but Richard did not do so until 1 April 2004, four days after the transfer. 47 At trial there was an attack on Richard's credit on the basis (inter alia) that he had falsely answered "no" on this form to two questions: whether Eric owned his own home and whether he had owned his own home within the last two years. Richard did not respond in his affidavit to statements in Helen's affidavit that those answers were false. Richard's explanation in cross-examination for those answers was that he did not consider that Eric had owned his own home because Eric's brothers were also owners. I have difficulty in accepting this explanation. It seems to me that the answers were incorrect for the very reason that Eric was an owner. 48 It was submitted against Richard that he gave those answers falsely in order to obtain a financial gain if the property ultimately was transferred to him because the bond, to the extent that it could not be reduced, would ultimately have to come from the sale of the property. I am not prepared to go so far. It may be that Richard was motivated by a desire to help Eric financially without looking further ahead to his own potential financial benefit. 49 A related point concerning Richard's credit arises from Mr Groundwater's evidence, which I accept, that he met with Richard so that the relevant paperwork could be completed, asked him about Eric's assets, and asked if Eric was able to pay a bond. Richard replied "No, Eric is a part owner of a house but his brother is still living there, so the asset is tied up". Richard's competing version of this conversation was that he told Mr Groundwater in November 2003, in answer to a question, that "Eric owns a one-third share in 12 Rupert Street which is just around the corner. He shares it with his brothers. One still stays there. It is all tied up". Richard explained in evidence that Robert sometimes did "stay there". To the extent of any inconsistency, I prefer Mr Groundwater's version as coming from an independent witness by whom I was impressed. Richard's statement was incorrect. One of Eric's brothers did not still live there. It seems to me that to causally link that (or even, on Richard's version, that a brother still "stays" there) to the conclusion that the asset was "tied up" was likely to mislead. 50 On 23 May 2004 a Residential Care Service Agreement was signed by Eric with Southern Cross Care (NSW & ACT) Inc. Eighty five percent of his pension is paid to that company. Thereafter there was repaid to Richard a deposit of $5,000 which he had paid to Cardinal Gilroy Village on behalf of Eric on 16 February 2004. 51 In 2004 Adrian received a council rates notice for 12 Rupert Street on which Richard's name now appeared instead of Eric's name. 52 On 17 September 2004 Adrian's solicitors wrote a letter to Robert alleging, substantially, the verbal agreement later alleged by Adrian in these proceedings. The letter also stated that that arrangement had an adverse effect on Adrian's pension and questioned whether Eric had the mental capacity to transfer his one third interest to Richard. 53 Following Eric's discharge from Westmead Hospital in late 2003, Adrian and his daughter, Helen Nabainivalu, made unsuccessful enquiries as to Eric's whereabouts. However, they made no enquiries of Richard or Robert. In mid September 2004 Helen discovered that he was at Cardinal Gilroy Village and visited him there on 19 September. She communicated with him on that and other occasions by writing in large letters on a whiteboard. I accept her following affidavit evidence: 17. On 19 September 2004, I went to visit Uncle Eric. It was a very emotional meeting at which we both cried. After talking about how I had found him after almost 12 months of searching, we came to talk about my cousin Richard: a. He said: Richard has dumped me here and has not been looking after me as he was supposed to do. He hasn't been visiting me either. I am very worried that my bills have not been paid. Can you Helen, go to the council, electricity and other providers and pay the various rates and bills? b. I said: You don't have to worry about the rates because you no longer own your share of the property and are not responsible for the rates. I said this because I believed that my father Adrian had received a Council Rates Notice with Richard's name on it and Eric's name missing. c. He said: How could Richard own my property? I have lived there for nearly 90 years! d. I said: Richard's name is on the latest rates notice, and your name is not on the rates notice. e. He said: I refused Richard permission to go to the Lands Department. I did not allow a transfer. I don't want Richard to have the property. f. He said: One evening when it was quite late, around 9 pm, Richard and a woman, whom Richard said was from Social Security, came in with a pile of papers for me to sign. They told me it was for the office at Gilroy Village. They got me out of bed and I just signed what they told me to sign. I couldn't read the papers but I signed. I trusted him. g. I explained, You have signed over your share of the property to Richard. h. Uncle Eric said: Richard has done something he shouldn't. Richard does not own my property. There's a lot of dirty work. Richard is telling a pack of lies. Put his solicitor in too, who Richard took me to see a few years ago to make out a Will in Richard's favour in return for Richard looking after me. Tell Richard I want my paperwork. Richard had better not show his face here. No-one gave Richard permission to take my property. i. Uncle Eric yelled: How can Richard own it? He cried, It is my home, I have lived there for 90 years and I was allowed to stay there until I died. He said, Am I living here for good? j. He said: Richard won't even bring in my big clock so I can see the time. I wanted him to bring my photograph album, but he wouldn't. He has been burning my mail. Please, Helen, get the police. 18. During this conversation, Uncle Eric appeared to be very angry and very upset. At times he was in tears. … (the words emphasised above are those underlined in her affidavit). 54 On 29 September 2004 Eric signed a piece of paper, witnessed by his friend Mr Small, which said "My share is to go to you and Adrian" and gave it to Helen. According to Helen, the 'you" refers to her. He asked her to pay some bills. Eric also wrote down and showed to Helen the words "last 3 years he has burnt all my mail". She understood this to be a reference to Richard. According to Helen, he described Robert and Richard as "con-men, robbing their living relatives' cut of the property". 55 On 30 September 2004 Helen took a solicitor Mr Chris Maley, to see Eric. She heard Eric tell Mr Maley that he did not transfer his property to Richard, he wanted his name back on the deeds, he did not realise he had signed his share to Richard, he was blind and could not read the documents Richard gave him, he did not know what he was signing, and that Richard and Robert were robbing con-men. After the meeting, he told Helen he wanted to put her in charge and they discussed a power of attorney. 56 On 30 September 2004 Adrian's solicitors wrote to Adrian enclosing their letters of 17 and 30 September to Robert and Richard and stating that when Eric spoke to Helen he had no idea that the property had been transferred and that the matter may now be referred to the police for criminal investigation. 57 On 28 October 2004, Helen faxed a letter to a solicitor, Anne MacKinnon, enclosing a copy of the transfer to Richard and Eric's note of 29 September 2004. In the letter she wrote: My share (refers to Eric Janson's 1/3 share of 12 Rupert St, Merrylands. " You " refers to me (Helen Nabainivalu) and Adrian (Adrian John Janson), Eric's brother and tenant in common. Also enclosed is copy of Transfer of share of some property which was not intentionally signed over – was told it was a paper to withdraw money to pay Council Rates. Richard has deliberately lied and abused his position as power of attorney to obtain property against Eric's wishes. 58 On 1 November 2004, Helen and Eric attended on the solicitor, Ms MacKinnon. Before the conference the solicitor had drafted a will for Eric naming Adrian and Helen as the beneficiaries, apparently in accordance with Helen's prior instructions to the solicitor. However, at the conference Eric's instructions to the solicitor were to make Helen the sole beneficiary and executor of his will. At the conference Eric executed three documents: a will leaving everything to Helen and appointing her as his sole executor; a revocation of the earlier general power of attorney in favour of Richard; and a general enduring power of attorney in favour of Helen. Eric was anxious and very cautious about signing the documents. Helen did not mention in her affidavit evidence that Eric had executed a will in her favour. Richard did not know of that will until September 2006. 59 The solicitor's file note of the conference records that Eric was unable to hear anything the solicitor said, had very poor vision and that instructions were obtained by the solicitor directing Helen to write on a whiteboard. Eric read the words out aloud and then gave verbal instructions. The file note records Eric referring to the will he made in Richard's favour and complaining in that context that Richard had to come two days a week to look after him but would go away five or six weeks so that Eric had to get someone else to do the shopping, and that if Richard painted the house and mowed the lawns he should get some money on his death. Helen testified, and I accept, that Eric made statements to the following effect during the conference: a. My nephew, Richard, was supposed to look after me and the house, doing painting and lawn mowing and general repairs, but he has not done any of this. b. I have not transferred my property knowingly to my nephew Richard. The house is still my house as I have a life tenancy. c. One night at about 9.00pm, my nephew brought a woman from Social Services to my room. They told me to get out of bed and sign a pile of papers. I wondered why a Social Services employee would come so late. Anyway, they got me to sign a pile of papers. I didn't know what they were because I can't read. I was told they were something for the office at Gilroy Village. d. I have been robbed while I am still alive, and they didn't even give me my bootlaces. e. I do not want Richard to have my property and I do not want to leave it to him, because he has stolen it while I am still alive. f. Richard's father, Robert, did a similar thing thirty years ago with our aunt's will. 60 Helen had earlier consulted the Guardianship Tribunal. On 2 November 2004 she told someone at the Guardianship Tribunal that she had been to see a solicitor with Eric, the power of attorney was revoked, a new power of attorney had been made in her favour, and Eric had made a new will. She was advised that she could act for Eric in financial matters, she should consult a solicitor, and could consult the police if she felt an offence might have been committed. 61 In November 2004 Richard was informed of the revocation of Eric's power of attorney to him. It emerged in Richard's cross-examination that on about 11 November 2004 he arranged for Eric to be examined by a Dr Clayton as to his capacity to freely and knowingly sign a document. That was because of doubts by Richard as to Eric's capacity in that regard arising out of Eric's revocation of Eric's power of attorney in favour of Richard. Dr Clayton was not called to give evidence. Counsel for the plaintiff submitted an inference arises that Dr Clayton could have said nothing to assist Richard's case. I accept the submission (however, my decision in the case is not dependent on that acceptance). 62 Helen made a complaint to the police about the transfer. On 25 November 2004 she accompanied Eric to the police station where he was interviewed using a whiteboard. A video and transcript of the interview are in evidence. Eric's statements during the interview included the following (asterisks indicate the point at which a question written on the whiteboard was shown to him): …well, when I left Auburn Hospital, see, I made a will out, I left me property to Richard Janson, this is the chap who's grabbed it see…he come 2 days a week and looked after me and the backyard and everything. Well, when I come home he never did come 2 days, he came about once every month…and I'm in the backyard and I'm dead …. …. women to come by …. …. shopping and he's doing the same now, the yard's all overgrown with weeds isn't it? He's supposed to have that all painted and everything, looked after for the council. He's not doing it. All he did was step in …. and how about the Lands Department he's liked [sic] to them, no-one was supposed to touch my property until I've died …and he's changed me name and everything… A …one night at 9 o'clock they came up to the home and he had a lady with him and she had, she had a stack of papers, I couldn't see what they was, but she'd look at one and she give it to Richard and Richard's saying no, he give it back to her, he'd look at another one, sign here, I'm signing all papers but I don't know what's on them, I'm blind I can't see…. but I trusted her. Who was that lady? I, he told me that that lady come from the Social Service, she was a policewoman or something like that …. but I don't think she was, but someone said, no and all that…. …. Q28 What did they tell you? A They had me sign the papers, see, like you …. …. …. …. well, I trusted them see, they cheated…. …. well…. he didn't tell me what they were for. He had to …. …. with the …. a lady come with him, Justice of the Peace, she took some, I signed for some …. he took …. and …. to the office. This is 9 o'clock pulling someone out of bed …. Q Did she …. A I don't know who she was. Q How long ago was that? A …. …. long ago it was …. …. …. the hospital, the police picked me up and …. and after I come out of hospital …. …. took me down to the hospital …. …. they gave me a …. down there, they made me …. …. now, we come up here and …. …. 12 months, down …. and they …. …. And it was, well, it would only be say 6 months ago when they come, see, …. fixing up papers to put me there, see. They wanted to send a man up from Sydney and sign the papers for me to live there, see, well, if I'd have did that and I'd have died, say that week, they'd have grabbed it. …. …. Q What did that lady look like? A. Just robbed me like they robbed me sister out of her all the property. * what did the lady, well she may have been blonde, she wasn't a fat woman… Q Mr Janson, who is Richard Janson? A … who is, who is Richard …. …. Richard Janson, Richard Janson, that's my, my brother's, that's, Richard Janson, that's Bobby Janson's son, … Q41 I'll show you transfer number A-A-5-2-7-7-2-2-2- A …*this is the transfer of this property like …. 12 Rupert Street, now, well, wait there, love, I've got think to get it right, see, I've got to go back, I've got to go, wait there, …. yeah, I want to make sure, see. Well, transfer, well, I, see, …. I mean to say, who did I transfer it to - - - You want me to … well, I signed so Richard gets the property, like, see, ….see, Q46 Can you read that transfer? A …. …. He's a conman, robbin his livin relatives …. They don't …. Q47 Can you read this transfer? A … no, I can't, I don't know what's on it. If, if you write that out - - - Q48 Can you see your signature? A…*the signature, no, I can't see. Wait there, wait, there, someone wrote something there. …unknown to me. Now, look, …. …. my …. signature is there, now you give me a bit of paper and I'll write my signature on it, and you have a look at that handwriting and my handwriting, you give me a bit of paper and I'll write my signature, the way I signed all me bank books since I was blind… Q You agreed to put Richard in your will. A ….Richard and …. yeah, yeah, like, you, yeah, yeah, I agreed to put him, if he came 2 days a week and look after me, that's what the solicitor said he had ….. but that's all changed now, like, the Lands Department …. everything has changed, put me name off everything, and put his name down. … Q65 Did you transfer the property to Richard? A …no, no, if it's been transferred, he's got me to sign papers, I must have signed … about 50 papers, I signed, couldn't see, I trusted him. I've had enough of him, how are you going to trust him now if I'd have died last night, he'd have grabbed the lot… Q66 Did you have a new will? A *no, no, i made no, no, no new will at all, i had no-one to look after me, that's why… 63 As Eric did not give oral evidence and was not present during the trial, the video illuminates his character, demeanour and state of mind. He appeared to understand that he had lost his property to Richard by signing documents and to be confused and bewildered as to how that had come about, complaining that he had trusted Richard and resorting to calling him a conman who had robbed him. I have no doubt from the video that, whether or not his memory of the circumstances of the transfer was impaired, he expressed himself genuinely. The last question and answer quoted above may indicate that Eric did not remember making the will in Helen's favour earlier in November 2004; but I am disinclined to make that finding because the question was in the past tense and may have been understood by him as referable to the time of transfer which was the subject of the immediately preceding question. 64 On 23 December 2004, Helen organised through a solicitor for a caveat to be drawn up and lodged by Eric over Richard's title to 12 Rupert Street. The estate or interest claimed in the caveat was: "A constructive and/or resulting trust in part of the property arising out of an unconscionable transaction between the caveator and Richard Janson, which includes transfer AA 527722T". The stated facts giving rise to the estate or interest were as follows: "Caveator is 90, deaf and nearly blind, did not know he was signing a transfer of his share of the property to his nephew. Did not intend to transfer possession". 65 Reference has been made above at [8] to the evidence of Dr Peter Morse, consulting psychiatrist, who saw Eric in June 2005 and October 2007. At the first consultation Dr Morse asked Eric a number of questions to which he received replies touching on the transfer, including the following: Why are you here? He replied to get my name put back on the council rates. He said a con man put their name on the council rates and on everything I have . He then spoke at length in a discursive manner that he thought that he was signing a social security document. Richard and the woman came to his house thinking that she was from the Department of Social Security. He spoke of them getting their names on the property and there was 60 years of council rates that he had paid and he is concerned about other bills that haven't been paid. I asked him who are these people He said Bobby Janson, my brother and Richard Janson, his son . They are the two con men. He went on to state that one night about 9 o'clock he was pulled out of bed and Richard and another person told him that a woman from social security from head office wanted him to sign some matters. He said he trusted they were doing the right thing and went on to talk about them being con men. He also mentioned his concern at the unpaid gas bill in his father's name. I asked when did you sign. He replied a long while ago . He went on to say he has been in hospital and had not been well but he is all right now. He mentioned perhaps 3 years ago. 66 In September 2005, Helen commenced these proceedings as Eric's tutor. On 15 November 2005 the Guardianship Tribunal ordered that Eric's estate be subject to management under the provisions of the Protected Estates Act 1983 and that management of his estate be committed to the Protective Commissioner. The Protective Commissioner's consent to be Eric's tutor, dated 2 December 2005, has been filed. An order has been made by the Court that Helen be removed as Eric's tutor and that the Protective Commissioner be appointed as his tutor with effect from 2 December 2005. 67 Eric's friend Mr Small, who died before trial, swore an affidavit on 15 June 2006 prepared by the solicitors for Richard and Robert which was read in their case, as follows: 1. I am 87 years of age and have resided at the Cardinal Gilroy Village since about January 2003. 2. I have known Eric Janson for 80 years. I went to school with him and his two brothers Adrian and Robert at Merrylands Public School situated at Fowler Road, Merrylands. 3. I would see Eric, who is known to me as "Fatty", from time to time over the years as we have both lived in the Merrylands area. 4. By chance, I bumped into Eric three or four days after he was first admitted to the hostel. 5. I saw him every day when I was in the old building where we both resided at Cardinal Gilroy Villages and used to talk to him by way of writing on a board twice a week or more. This continued up to last Christmas 2005. I was then moved to a different building and due to my difficulties in walking, I cannot get to the old building very often. I only see him occasionally now. I saw him last week having tea. 6. When he [sic] spoke together, it was usually about teachers and old mutual friends, many of whom have passed away. 7. I first met Richard Janson when Eric first came to the hostel. 8. Richard comes to see Eric regularly. When I was in the same building with Eric, I would see Richard at lease [sic] once a week. Richard still comes to visit me regularly in my new room in the hostel. On one occasion Richard said to me: - I have been barred from visiting Eric. I got a letter from some solicitors saying I shouldn't see him. 9. During some of my conversations with Eric, I recall Eric saying to me on several occasions, in words to the following effect:- I have handed the land over to Richard in view of what he has done for me and on the condition that he sees me once every two weeks. Richard had a female JP with him. 10. On other occasions, Eric said, in effect:- Richard had done all the work. 11. From my conversations with Eric, I gained the impression that Eric regarded Richard as "Number 1". 12. I also gained the impression that everything about Eric was OK and peaceful until Helen and her daughter first came to visit Eric. 13. I have seen Helen visit Eric about 12 times and Helen has come to visit me and I am on good terms with her. If [sic] have also met Adrian 4 or 5 times with Helen. 14. Eric, in the course [of] our conversations, has told me:- Richard has sold all my chooks. He shouldn't have. 15. Eric has constantly complained, in words to the effect:- Adrian has never paid the rates. And:- I was cheated out my grandfather's and auntie's will. 68 In reply, the plaintiff tendered the following letter dated 16 October 2005 from Mr Small to the Guardianship Tribunal which was admitted into evidence pursuant to s 108A of the Evidence Act 1995: I have known Eric Janson for over eighty years, having grown up as boys together in Merrylands. I also have known Adrian and Bobby all my life. Eric and I are now both residents of John Woodward Apartments, Gilroy Village. I wish to support the application of Eric's niece, Helen to be Eric's financial manager. Eric never married or had children and I know he looks to Helen to look after his best interests, pay his bills, organise medical appointments and take him to these appointments. I am aware that Richard Janson has transferred Eric's share of the family home to himself without Eric's knowledge and for no payment. Eric is deaf and blind and was tricked by Richard Janson to sign the transfer documents which Eric was told to be something else requiring his signature. Eric was unaware that he had transferred his share of the property and is still adamant that 12 Rupert St is still his home. Eric is anxiously awaiting Supreme Court action to reverse the transfer. I have seen and heard Bobby and Richard arguing with Eric at the Hostel. Because of his disabilities, Eric is lonely and vulnerable and he needs to be looked after by someone he can trust. This is why I am supporting Helen's application to be his financial manager. 69 The impression created by Mr Small's letter is very different from that created by his affidavit. As Mr Small's statements could not be tested by cross-examination, I am disinclined to attach weight to them one way or the other. Resentments 70 Apart from the transfer issue, there are resentments among Eric and his relatives over various issues, which are mostly unnecessary to determine. Eric has made complaints about Richard not doing more for him. Eric and Robert resent that Adrian has not contributed to rates and other bills in relation to 12 Rupert Street, but Adrian says they are Eric's responsibility. Robert resents that Adrian and Eric have not paid him for the cost of obtaining their title deeds when the property was acquired and which he kept in his possession. Robert has been suspicious since, or in, the late 1990s that Adrian intended to transfer his interest and thereby stop Eric from continuing to live at 12 Rupert Street, contrary to an agreement between the brothers. There was a falling out between the brothers some years ago over their Aunt Zola's will. Helen thinks that Richard is responsible for Eric not receiving mail from her and Adrian. Helen thought at one time that Richard obtained the transfer through criminal misconduct and complained to the police. Richard feels that the transfer is fair compensation for everything he has done for Eric over the years and that Helen has made unjustified complaints and unfairly fuelled hostility by Eric towards him. LEGAL PRINCIPLES 71 Undue influence cases fall into two classes. First, cases where undue influence will be presumed from a relationship, thus throwing the burden of rebutting the presumption upon the party benefiting from the transaction. Secondly, cases where undue influence must be affirmatively proved. The first class is invoked in the present case. Its reversal of the onus of proof is of practical importance in many cases, such as the present, where the circumstances in which the transaction occurred are peculiarly within the knowledge of the recipient and the donor is under a disability. 72 There are two categories of presumed undue influence. First, certain types of relationships per se give rise to the presumption, without any need to prove more. They include solicitor and client, physician and patient, parent and child, guardian and ward, and religious advisers and their adherents: Louth v Diprose (1992) 175 CLR 621 at 628; Johnson v Buttress (1936) 56 CLR 113 at 119, 134 ; Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VR 573 at 577. There is authority that the presumption arises between express trustee and beneficiary (eg Johnson v Buttress at 119, 143 per Latham CJ and McTiernan JJ), but it has been argued that this requires qualification: Meagher Gummow and Lehane's Equity Doctrines and Remedies (4th ed) at [15-095]. The second category of presumed undue influence is where it is proved that the party benefiting from the transaction occupies or assumes towards another a position naturally involving an ascendancy or influence over that other, or a dependency or trust on the latter's part: Johnson v Buttress at 134-135 per Dixon J. 73 In Johnson v Buttress the donor was 67, widowed, unable to read or write, unintelligent and on close terms with the defendant, the niece of his late wife's stepsister on whom he relied for advice and company. He transferred to her without value the house in which he lived, virtually his only asset. The transfer was prepared by the managing clerk of the defendant's solicitor. The defendant accompanied the plaintiff to the solicitor's office and was present at the interview with the managing clerk. The trial judge accepted the evidence of the managing clerk which showed that the deceased understood at the time that he was dealing with his property and that he was parting with his property. But nothing was said to direct his attention to the fact that he was in effect denuding himself of the whole of his property without obtaining any equivalent, and it was not suggested that the advice he received in the office of the defendant's solicitor was independent advice (at 121). The High Court held that a presumption of undue influence arose which the defendant had failed to rebut. The basis of equity's intervention on the ground of undue influence was comprehensively explained in the classic judgment of Dixon J at 134-135, which included the following: This burden is imposed upon one of the parties to certain well-known relations as soon as it appears that the relation existed and that he has obtained a substantial benefit from the other. A solicitor must thus justify the receipt of such a benefit from his client, a physician from his patient, a parent from his child, a guardian from his ward, and a man from the woman he has engaged to marry. The facts which must be proved in order to satisfy the court that the donor was freed from influence are, perhaps, not always the same in these different relationships, for the influence which grows out of them varies in kind and degree. But while in these and perhaps one or two other relationships their very nature imports influence, the doctrine which throws upon the recipient the burden of justifying the transaction is confined to no fixed category. It rests upon a principle. It applies whenever one party occupies or assumes towards another a position naturally involving an ascendancy or influence over that other, or a dependence or trust on his part. One occupying such a position falls under a duty in which fiduciary characteristics may be seen. It is his duty to use his position of influence in the interest of no one but the man who is governed by his judgment, gives him his dependence and entrusts him with his welfare. When he takes from that man a substantial gift of property, it is incumbent upon him to show that it cannot be ascribed to the inequality between them which must arise from his special position. He may be taken to possess a peculiar knowledge not only of the disposition itself but of the circumstances which should affect its validity; he has chosen to accept a benefit which may well proceed from an abuse of the authority conceded to him, or the confidence reposed in him; and the relations between him and the donor are so close as to make it difficult to disentangle the inducements which led to the transaction. These considerations combine with reasons of policy to supply a firm foundation for the presumption against a voluntary disposition in his favour. 74 Latham CJ said at 119-120: The jurisdiction of a court of equity to set aside gifts inter vivos which have been procured by undue influence is exercised where undue influence is proved as a fact, or where, undue influence being presumed from the relations existing between the parties, the presumption has not been rebutted. Where certain special relations exist undue influence is presumed in the case of such gifts. These relations include those of parent and child, guardian and ward, trustee and cestui que trust, solicitor and client, physician and patient and cases of religious influence. The relations mentioned, however, do not constitute an exhaustive list of the cases in which undue influence will be presumed from personal relations. Wherever the relation between donor and donee is such that the latter is in a position to exercise dominion over the former by reason of the trust and confidence reposed in the latter, the presumption of undue influence is raised ( Dent v. Bennet [(1839) 4 My. & Cr. 269; 41 E.R. 195] ; see also Smith v. Kay [(1859) 7 H.L.C. 750; 11 E.R. 299]. Where such a relation of what may be called, from one point of view, dominion, and from another point of view, dependence, exists, the age and condition of the donor are irrelevant so far as raising the presumption of undue influence is concerned. It must be affirmatively shown by the donee that the gift was (to use the words of Eldon L.C. in the leading case of Huguenin v. Baseley [(1807) 14 Ves. 273; 33 E.R. 526; White and Tudor's Leading Cases in Equity, 7th ed. (1897), vol. I., at p. 247] the pure, voluntary, well-understood act of the mind of the donor. 75 Was the relationship arising under the general power of attorney from Eric to Richard, per se, a presumptive relationship of undue influence? The plaintiff submitted that it was and counsel for Richard and Robert contested the submission. No authority in point was cited. The plaintiff submitted that the donee of a power of attorney is subject to fiduciary duties, is required to accord priority to the interests of the donor where there is a conflict between the two, and the use of the power by the power of the attorney contrary to the known wishes and directions of the donor is a breach of trust: Watson v Watson [2002] NSWSC 919; Law Society of New South Wales v Walsh (NSWCA, 15 December 1997, unreported, BC9706885). 76 The argument that any type of fiduciary or confidential relationship gives rise to the presumption of undue influence has been rejected: In Re Coomber [1911] 1 Ch 723. In that case, a mother assigned to her son a business of which he was the manager. The Court of Appeal forcefully rejected the proposition that there was a presumption of undue influence, which he had to rebut, merely because the son was the mother's agent in carrying on the business. It was held that the nature of the fiduciary relation must be such as to justify the presumption: at 726, 729, 730. 77 Sir Frederick Jordan in his Chapters on Equity in New South Wales, (6th ed, 1947) p 138 wrote that the relationship of principal and agent is not per se one of influence, citing In Re Coomber. The relation of "confidential agent and his principal" was listed as one of the relationships of presumed influence by Salmond J in Brusewitz v Brown [1923] NZLR 1106 at 1110. Meagher, Gummow and Lehanes's Equity Doctrines and Remedies (4th ed, 2002) at [15-100] consider in this context that "[w]hether an agent-principal relationship is one of influence as well as fiduciary will depend upon the particular case" (citing Moxon v Payne (1873) LR 8 Ch App 881 which, however, was a case where a sale was set aside for fraud of the "gravest character"). 78 If the parties are not on equal terms, that is a relevant consideration when determining whether the presumption of undue influence arises. In Brusewitz v Brown [1923] NZLR 1106 at 1110 Salmond J addressed the rule concerning a presumption of undue influence as follows: The rule is illustrated by transactions between a trustee and his beneficiary, between a solicitor and his client, between a medical man and his patient, between a parent or person in loco parentis and a child who has recently attained his majority, between a guardian and a recently emancipated ward, between a confidential agent and his principal, between a priest and a person under his spiritual influence or domination, between a nun and her religious superior. The generality of the rule, however, and the fact that it is not limited to any closed list of recognized legal relationships, are best shown by the fact that it applies even to a case where the suspected relationship is merely that between a poor and ignorant grantor and a grantee of means and education. Thus in Baker v Monk (4 DeG J & S 388) a transaction was on this principle set aside whereby an old woman in a humble station of life sold to a substantial tradesman a small freehold in consideration of an inadequate annuity. Knight Bruce, L J., says: The question is whether—to repeat an expression used in several cases—the parties to the transaction were on equal terms. The purchaser was a substantial tradesman. The vendor was a single woman in humble life, of slender education, between sixty and seventy years of age, unprotected and unaided After some little chaffering, as I have said, she consented to accept this weekly payment during her life as the purchase money of the fee-simple. This transaction takes place between this gentleman and this poor woman without the intervention on her part of any other person. …The purchaser and vendor were in such relative positions as that, according to the known established doctrine of this Court, it lies on the purchaser to show affirmatively that the price he has given is the value. 79 The weight and nature of the burden of proof of rebuttal of the presumption was expressed strongly by Isaacs J in Watkins v Combes (1922) 30 CLR 180 at 193 - 194, citing with approval a passage in the judgment of the Privy Council in Poosathurdi v Kanappa Chettiar (1919) LR 47 IA.,1; which included the following: "the person in a position to use his dominating power has the burden thrown upon him, and it is a heavy burden, of establishing affirmatively that no domination was practised so as to bring about the transaction, but that the grantor of the deed was scrupulously kept separately advised in the independence of a free agent". 80 Independent, competent and sufficient legal advice is the usual way of rebutting the presumption of undue influence, although, in principle, it is not necessarily the only way that the presumption can be rebutted in all cases: Linderstam v Barnett (1915) 19 CLR 528 at 531 per Isaacs J; Haskew v Equity Trustees, Executors and Agency Co Ltd (1919) 27 CLR 231 at 235 per Isaacs J; Stivactas v Michaletos (No 2) (1993) NSW ConvR 55-683 at 59,903 per Kirby P (NSWCA); Hillston v Bar-Mordecai [2003] NSWSC 89 at [35] per Bryson J. In Johnson v Buttress at 119 Latham CJ said: It may not be necessary in all cases to show that the donor received competent independent advice ( Inche Noriah v. Shaik Allie Bin Omar [(1929) A.C., at p. 135] and Haskew v. Equity Trustees, Executors and Agency Co. Ltd . [(1919) 27 C.L.R. 231]; the law as to this matter is still a subject of discussion ( Lancashire Loans, Ltd. v. Black [(1934) 1 K.B. 380, at pp. 404, 420]. But evidence that such advice has been given is one means, and the most obvious means, of helping to establish that the gift was the result of the free exercise of independent will; and the absence of such advice, even if not sufficient in itself to invalidate the transaction, would plainly be a most important factor in determining whether the gift was in fact the result of a free and genuine exercise of the will of the donor. In the case of an illiterate or weak-minded person it will be more difficult for the donee to discharge the prescribed onus of proof than in other cases. The burden will be still heavier upon the donee where the donor has given him all or practically all of his property… 81 The onus is on the grantee to prove that the grantor thoroughly comprehended, and deliberately and of his own free will, carried out the transaction. Two circumstances are traditionally regarded as weighing against that conclusion. First, the nature of the transaction itself where it is improvident so far as the grantor is concerned. Second, the absence of independent, competent and sufficient advice: Bester v Perpetual Trustee Co Ltd [1970] 3 NSWR 30 at 35. 82 As an antidote to an invalidating presumption of undue influence, it is insufficient for an independent solicitor giving such advice to ensure that the client comprehends the contents, nature and effect of the relevant documentation; the solicitor must also advise as to the propriety of the transaction: Riz v Perpetual Trustee Australia Ltd [2007] NSWSC 1153 at [116] – [128] per Brereton J, where the authorities are reviewed. His Honour held that "The role of independent advice in this context includes guarding against improvidence. Such advice is intended, amongst other purposes, to act as a reality check in respect of transactions which might be disadvantageous… Courts have repeatedly and stridently emphasised that lawyers who believe that they discharge their duty in that context by merely explaining the legal effect of a transaction are ill informed.": at [124]. 83 Thus, in Bester v Perpetual Trustee Co Ltd [1970] 3 NSWR 30 at 35 Street J held that advice was inadequate where a solicitor read a proposed deed through word by word and invited questions of a client, without advising whether she should enter into the transaction at all or discussing alternative means of arranging her affairs. Street J held at 35: "[the solicitor] was, I accept, most careful to read the document through, and to invite questions of the plaintiff. But it was not textual advice upon the engrossment which was of prime importance in this regard: rather, it was advice upon the more general topic of whether a settlement should be entered into at all, and, if so, the general nature of the settlement, which in my view ought to have been provided for the plaintiff ". Similarly, in Stivactas v Michaletos (No 2) (1993) NSW ConvR 55-683 (NSWCA) at 59,903 Kirby P said: The fatal flaw in the procedures put in place by the appellant, to guard against just the kind of challenge which later eventuated, was the inability of the independent solicitor to establish that he sufficiently drew to the respondent's attention, so that she understood, precisely what she was doing, the alternatives which were available to her in law to effect her wishes, the comparative advantages of those alternatives and that she nonetheless preferred to transfer her properties to the appellant. 84 Evidence of subsequent statements by a donor are admissible for the purpose of showing the degree of mental capacity which he possessed: Johnson v Buttress at 122 per Latham CJ. 85 In Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 461 Mason J distinguished between the doctrine of undue influence and unconscionable conduct in the narrow sense, as follows: Historically, courts have exercised jurisdiction to set aside contracts and other dealings on a variety of equitable grounds. They include fraud, misrepresentation, breach of fiduciary duty, undue influence and unconscionable conduct. In one sense they all constitute species of unconscionable conduct on the part of a party who stands to receive a benefit under a transaction which, in the eye of equity, cannot be enforced because to do so would be inconsistent with equity and good conscience. But relief on the ground of unconscionable conduct is usually taken to refer to the class of case in which a party makes unconscientious use of his superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage, e.g., a catching bargain with an expectant heir or an unfair contract made by taking advantage of a person who is seriously affected by intoxicating drink. Although unconscionable conduct in this narrow sense bears some resemblance to the doctrine of undue influence, there is a difference between the two. In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position. 86 This distinction between undue influence and unconscionable conduct in the narrow sense was explained by Deane J in Commercial Bank of Australia v Amadio (at 474) as follows: Undue influence, like common law duress, looks to the quality of the consent or assent of the weaker party… Unconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so. 87 The similarities and differences between the two doctrines was noted in Turner v Windever [2003] NSWSC 1147 at [128]-[131] by Austin J: 128 It is well established that the equitable principles relating to unconscionable dealing and undue influence are closely related: Commercial Bank of Australia v Amadio, at 474 per Deane J. Recently it has been suggested that the time may be right for the acceptance and development by the common law of a unified doctrine of unconscionability: Capper D , 'Undue Influence and Unconscionability: A Rationalisation' (1998) 114 LQR 479, 504. But in Australia the conceptual division between the two equitable doctrines has so far been maintained. … 130 An important feature of both doctrines is that they employ equitable presumptions. In the case of undue influence, a presumption arises out of the anterior relationship of the parties. In the case of unconscionable dealings, the presumption that unconscionable advantage is being taken of a disability arises out of the position of the parties at the time of the transaction and the nature of the benefits passing under it: Meagher, Gummow and Lehane , at [1602]. 131 The similarities in operation of the two doctrines can engender false assumptions about similarity of scope. It is essential for a judge at first instance to bear in mind the different evidentiary foundations of cases invoking the doctrines, the one focusing on evidence of the prior relationship and the domination and dependence said to have been engendered, and the other focusing on the position of special disadvantage of one party and the other party's knowledge of it at the point of transaction… 88 An illustration of the application of the doctrine of undue influence appears in Spong v Spong (1914) 18 CLR 544. There a father succeeded on the ground of undue influence in a suit against his son to set aside a voluntary transfer of land. Griffiths CJ said at 549: According to the defendant's own version this transaction was hurriedly and secretly entered into on a day when the plaintiff's wife had not been twelve hours dead. During the morning the son came to the conclusion, as he says, that his father was incapable of managing his own business and ought to entrust the management of it to him, the son. The father acceded to that suggestion; and the first thing the son did under these circumstances was to take the father to a solicitor whom he had never seen before, and allow him to execute the transfer now sought to be impeached, without telling the solicitor of the father's condition, or what he had done in the morning. If there were no more in the case than that, I think that under the circumstances it was the son's duty not to allow him to execute the transfer in his (the son's) favour without independent advice. It is manifest that the defendant would not have allowed his father to execute such an instrument in favour of any other member of the family. It is clear that a voluntary transfer made under such circumstances without independent advice cannot stand unless it is made abundantly plain that the father fully understood what he was doing. I have referred to the defendant's evidence that the proposal to make the gift first came from the father. The learned Judge did not believe him. Even if we suppose that it did, it does not make any difference. 89 An analogous case to the present, in some respects, where a transfer was set aside for undue influence is Stivactas v Michaletos (No 2) (1993) NSW ConvR 55-683 (NSWCA). There the plaintiff, an elderly Greek lady, widowed and childless and with limited understanding of English, entered a nursing home following hospitalisation. Her nephew, the defendant, had been very close to her and a confidante about her marriage and financial affairs and had helped her in various ways. He was a constant visitor when the plaintiff was in hospital. She decided that she wished to give him her two properties and badgered him into making the necessary arrangements. The defendant consulted a solicitor who recommended that the plaintiff receive independent legal advice and made arrangements for another solicitor to attend on the plaintiff. That solicitor attended on the plaintiff and, in the solicitor's presence, the plaintiff executed a power of attorney and transfers of the properties in favour of the defendant. That solicitor was unable to recall what advice, if any, he gave the plaintiff before she executed the transfers. The plaintiff's other relatives knew of the power of attorney but not of the transfers. Waddell CJ in Eq held that the transfers were void on the ground of undue influence and ordered the nephew to re-transfer the property. An appeal by the defendant was dismissed. Set out above at [83] is a portion of the judgment of Kirby P as to why the legal advice provided was not adequate. Kirby P also held at 59,903: …the categories of relationship giving rise to a presumption of undue influence are not closed… I have much sympathy for the opinion that the categories expressed in earlier cases are simply illustrations of evidentiary or forensic circumstances in which the relationships of the parties, as proved, call for proof from the recipient of benefits that those benefits have been lawfully and properly received…courts of trial must look not to categories as such but to the nature of the relationship between the parties…the provision of independent advice is certainly an important ingredient in rebutting a presumption of undue influence although it is not essential. 90 Mahoney JA held at 59,904: The principle upon which equity intervenes to set aside transactions of the present kind is a broad principle of which cases of undue influence are only a species. Ordinarily, the vice in cases of undue influence lies in the fact that the defendant, by his influence, has brought about a transaction which is unacceptable because it is, in the accepted sense, inequitable, unconscionable or the like: see Commercial Bank of Australia Ltd v Amadio & Anor (1982-1983) 151 CLR 447 at 461. Here the situation arose essentially as the result of the desires and acts of the plaintiff herself and not those of the defendant. It is necessary to determine whether such a case attracts equitable intervention. (In putting the matter in this way, I am conscious that I am stating the matter at its best in favour of the defendant. Of course, the defendant did not merely stand by. He took steps to cause the plaintiff's wishes to have effect: he engaged solicitors and they effected the transfers for her and for him. And he did this knowing what he did of the plaintiff's condition. But there is a difference between the two kinds of cases.) In my opinion, it does. Mahoney JA added at 59,906: As the cases illustrate, the reason why equity intervenes may lie, not in the fact that the defendant has brought about the transactions, but in his accepting them and the benefits of them. What will be sufficient to warrant equitable intervention in such circumstances will in the end depend upon the court's judgment of the circumstances of the case and what currently is seen as unacceptable. There is, I think, no single factor which is necessary and sufficient to bring about the application of the principle. 91 Sheller JA said at 59,907 – 59,908: That the respondent instigated the idea of making the transfers is not, in my opinion, significant in this case. The fact that a client urges a solicitor to accept a substantial gift which the solicitor does accept, does not, in my opinion, absolve the solicitor, if the gift is challenged, from satisfying the court that it was made of the client's free will after proper advice. No more is a donee absolved by the insistence of the donor if the relationship is one of trust or dependence and imposes upon the donee a duty to manage or advise. In Spong v Spong (1914) 18 CLR 544, where the defendant's evidence was that it was the plaintiff who raised the matter of his transfer to the defendant of the property in question (546), Griffith CJ treated the case as one of undue influence and said that from whatever point of view the evidence was considered it was a transaction that could not stand; at 549. See also per Isaacs J at 551-552 and Rich J at 552. … [counsel for the appellant] submitted that, since the equitable remedy depended upon a special relationship set up by the actual reposing of confidence, it was necessary to see the extent and nature of the confidence reposed and whether it involved any ascendancy over the will of the person supposedly dependent on the confidence. The argument was derived from the language of Dixon CJ and McTiernan and Kitto JJ in Jenyns v Public Curator (Q) (1952-1953) 90 CLR 113 at 133. I do not read this language as meaning other than that, to quote from the judgment of Dixon J in Johnson v Buttress at 134-135, the situation must be one where one party occupies or assumes towards another a position naturally involving an ascendancy or influence over that other, or a dependence or trust on his part . Their Honours were not restating the well-established basis for equity's intervention which had been comprehensively explained by Dixon J in Johnson v Buttress . The English Court of Appeal in Goldsworthy v Brickell (1987) Ch 378, particularly per Nourse LJ at 404 and following, has rejected the proposition that it is necessary to show that the relationship is one of domination by the donee of the donor. Proof of actual ascendancy or domination is compelling but not essential. A position of dependence or trust enabling the donee to influence the donor is enough to require the donee to demonstrate that the gift is not the consequence. 92 A presumption of undue influence was found in Trevenar v Ussfeller [2005] NSWSC 582, which is analogous in some respects to the present case. There the plaintiff was an 83 year old woman who was ill with heart disease and could not drive. The defendant was her close friend and confidante who lived across the road and provided the plaintiff with means of transport. The defendant held the plaintiff's enduring power of attorney and was the sole beneficiary and executor under the plaintiff's will. The defendant wrote large cheques on the plaintiff's bank account, which the plaintiff signed, in favour of the defendant and the defendant's husband and father. Gzell J set aside the gifts for undue influence. Of significance is his Honour's judgment that concessions were properly made on behalf of the defendant that there was a special relationship of confidence between the parties such as to give rise to a presumption of undue influence: at [47] – [48]. His Honour held that it did not matter whether the plaintiff was the moving party in the transaction (citing Stivactas); and took into account that no-one acted in the plaintiff's interest and no consideration was given to her being independently advised by a solicitor or accountant: at [52]. 93 Comparison may be made with the burden of proof and presumptions in undue influence cases under English law as propounded in Royal Bank of Scotland plc v Etridge (No 2) [2002] 2 AC 773 at 796 [13] – [14] and [18] by Lord Nicholls, in whose speech all the members of the House of Lords concurred: [13] Whether a transaction was brought about by the exercise of undue influence is a question of fact. Here, as elsewhere, the general principle is that he who asserts a wrong has been committed must prove it. The burden of proving an allegation of undue influence rests upon the person who claims to have been wronged. This is the general rule. The evidence required to discharge the burden of proof depends on the nature of the alleged undue influence, the personality of the parties, their relationship, the extent to which the transaction cannot readily be accounted for by the ordinary motives of ordinary persons in that relationship, and all the circumstances of the case. [14] Proof that the complainant placed trust and confidence in the other party in relation to the management of the complainant's financial affairs, coupled with a transaction which calls for explanation, will normally be sufficient, failing satisfactory evidence to the contrary, to discharge the burden of proof. On proof of these two matters the stage is set for the court to infer that, in the absence of a satisfactory explanation, the transaction can only have been procured by undue influence. In other words, proof of these two facts is prima facie evidence that the defendant abused the influence he acquired in the parties' relationship. He preferred his own interests. He did not behave fairly to the other. So the evidential burden then shifts to him. It is for him to produce evidence to counter the inference which otherwise should be drawn. … [18] The evidential presumption discussed above is to be distinguished sharply from a different form of presumption which arises in some cases. The law has adopted a sternly protective attitude towards certain types of relationship in which one party acquires influence over another who is vulnerable and dependent and where, moreover, substantial gifts by the influenced or vulnerable person are not normally to be expected. Examples of relationships within this special class are parent and child, guardian and ward, trustee and beneficiary, solicitor and client, and medical advisor and patient. In these cases the law presumes, irrebuttably, that one party had influence over the other. The complainant need not prove he actually reposed trust and confidence in the other party. It is sufficient for him to prove the existence of the type of relationship. The proposition in this last passage that the law presumes "irrebuttably" that one party had influence over the other in certain types of relationships does not represent the law in Australia: Hillston v Bar-Mordecai (above) at [48]. SUBMISSIONS 94 In summary, the plaintiff, supported by Adrian, submitted: (a) there is a presumption of undue influence because Richard owed Eric a fiduciary duty arising from the power of attorney: Watson v Watson , Law Society of New South Wales v Walsh (above), and the transaction was not in Eric's best interest; (b) alternatively, there is a presumption of undue influence arising from the special relationship between Eric and Richard: Johnson v Buttress (above); Stivactas v Michaletos (above). 95 In summary, Richard and Robert submitted that: (a) no presumption of undue influence arises from the relationship of uncle and nephew, nor from the general power of attorney given by Eric to Richard particularly given the striking out of the enduring clause whereby it would have applied in the case of mental incapacity. No relationship giving rise to the presumption has been proved; (b) the dependence of Eric on Richard was limited to physical care and assistance. There is no evidence of any emotional dependence by Eric on Richard or influence by Richard in Eric's life. Richard was at the beck and call of Eric who was his own man; (c) the Court should not be satisfied that the incident of signing of documents referred to by Eric in the police interview was the signing of the transfer. It could refer to an event in 1990 when someone from social services visited Eric. (I have addressed this submission above at [35]). The trust mentioned in the police interview by Eric relates to trust in being told the correct information, in particular, being given the correct document to sign and not substituting another pretending it to be the document described; (d) a transfer and gift to Richard were within the mind of the plaintiff since the 1988 will and there is no evidence that that intention was revoked prior to the transfer; (e) Eric's power of attorney to Richard was given to facilitate the operation of Eric's bank account following his admission to Westmead Hospital in 2003. Eric's welfare was settled prior to the transfer being signed. There are no claims on Eric's estate. Eric's emotional or psychological attachment to the property is not broken because the property remains within the control of the family. Eric is not going back to live at 12 Rupert Street because it is no longer suitable for him and he has found a suitable place to live. He probably still wishes to visit the place, which he can still do; (f) 12 Rupert Street had become a financial burden for Eric. The old age facility takes 85 percent of his pension. There is no benefit in him getting the property back (except that he might want to give it to somebody else). 96 One of Eric's alternative prayers for relief is that Eric has a life tenancy in 12 Rupert Street. However, counsel for Eric expressly declined to make any submission in support of such a finding and no other party submitted that such a finding should be made. DECISION 97 The issues are: (a) whether a presumption of undue influence by Richard arises in Eric's favour either because of the nature of their agent–principal relationship under the general power of attorney from Eric to Richard; or, alternatively, because of the position of influence by Richard over Eric or the dependence or trust on Eric's part; and (b) if so, whether Richard has failed to rebut the presumption. 98 It is unnecessary to decide whether the relationship arising under the general power of attorney from Eric to Richard was a presumptive relationship, of itself and without more, because there is more. 99 Applying the principles and authorities to which reference has been made, in my opinion, the case falls within the second category of presumed undue influence. That is, Eric had a dependence or trust on Richard or Richard was in a position of influence over Eric. 100 At the time of the transfer Eric was almost 90, without a family and living in an aged care facility. He had virtually no property or income apart from his interest in 12 Rupert Street and his old age pension. He was profoundly deaf, almost blind and frail. He had mild cognitive impairment, mild dementia and memory impairment. He was unable to communicate on an ongoing basis regarding his financial, property and legal affairs. He had some history of mental illness, albeit long ago. Richard was Eric's trusted agent and carer, the holder of his general power of attorney and, since 1988, the sole beneficiary of Eric's entire estate under his will. Eric was reliant on him in many ways. They were not on equal terms. Richard was and Eric was not, in full possession of all his faculties and in possession of legal advice. 101 It is not significant that Eric, according to Richard and Robert, instigated the idea of making the transfer. Of course, Richard did not merely stand by. He took all the steps to bring about the transfer of Eric's only asset for his own benefit. 102 It is for Richard to rebut the presumption of undue influence, if he can, by satisfying the Court that the gift was the independent and well-understood act of a man in a position to exercise free judgment based on information as full as that of Richard. Richard must not only prove that Eric thoroughly understood what he was doing and its significance, but that Eric deliberately and of his own free will executed the transfer free from Richard's influence. 103 Two circumstances, in particular weigh against the conclusion that the presumption is rebutted. First the transfer was improvident so far as Eric was concerned. Eric finally, irrevocably and absolutely placed virtually his only asset and lifetime home beyond all recall when he executed the transfer. It is true that he thereby shed responsibility for payment of rates and maintenance, but the voluntary transfer of his title to his nephew was a grossly disproportionate response. 104 Secondly, in entering into the transaction Eric did not have independent, competent and sufficient advice to protect him from undue influence. Independent legal advice, had it been obtained, should have drawn to his attention, so that he understood, precisely what he was doing, the alternatives available to him, the comparative advantages of the alternatives, and that he nevertheless preferred to transfer his interest to Richard. 105 The absence of independent legal advice for Eric was in contrast to 1988 when Richard arranged for a solicitor to advise Eric in relation to Eric's will appointing Richard as his sole beneficiary, and to draw and witness its execution. It was important that Eric obtain competent independent legal advice – and this should have been apparent to Richard – not only because of their relationship but because (a) this was a gift to Richard of virtually Eric's only asset; (b) Richard obtained legal advice for himself in relation to the transfer; and (c) Richard had procured legal advice from a solicitor for Eric on the earlier occasion when Eric had executed a will in Richard's favour (and, as Richard knew, the same solicitor had assisted his father Robert to prepare the 1999 caveat over Eric's title). It is one measure of the inequality between Eric and Richard that Richard had received legal advice in relation to the transfer but Eric, as Richard knew, had not. Indeed, on Richard's own evidence, set out above at [31] and [32], it appears that Eric indicated to Richard (who should have understood it in this way) that he wanted Richard to arrange for someone to give Eric advice about the transfer. 106 No independent solicitor or other professional person was present when the transfer was executed. The only relatively independent person whom Eric saw was Ms Benson, who was present to witness his signature. She was not entirely independent because she had a family bond with Richard through her friendship with his father which brought about her attendance. Parts of the transfer document were written on the whiteboard before Eric signed it in the presence of Ms Benson and Richard, including words to the effect "transfer for Rupert Street" and that Richard was the transferee. She testified that she inquired orally of Eric whether he understood that she was there to witness his signature on the transfer and told him that once he signed it, the land at Rupert Street would belong to his nephew. As discussed above at [39] – [41], I am not satisfied that this was communicated to him, nor that he heard anything that she said, nor that he understood from her that he was divesting himself of his main asset. Even if it was communicated to him, it does not, in my opinion, amount to independent, competent and sufficient advice. There was no advice as to whether he should enter into the transaction at all, the propriety of the transaction or discussing alternative means of arranging his affairs. Nor was Ms Benson an independent solicitor, or someone in a similar professional position. 107 The presumption of undue influence has not been rebutted by proof of independent, competent advice. Nor, in my opinion, has it been rebutted by any other evidence. Eric is now confused as to how he came to lose his interest in the property. On the evidence, as it has ultimately unfolded, Richard was good to Eric over many years prior to the transfer and there is no reasonable basis for any longer suggesting that he acted fraudulently (a suggestion at one time pursued by Helen, arising out of Eric's confusion as to what had happened). However, such considerations do not rebut the presumption. Orders 108 For these reasons, the Court grants the following relief: (1) Declaration that Transfer AA527722T by the plaintiff, Eric Armstrong Janson, to the first defendant, Richard John Janson, of his interest in the land in certificates of title volume 8282 folios 193 and 196, was obtained by the exercise by Richard John Janson of undue influence over Eric Armstrong Janson. (2) Order that the said transfer is now set aside. (3) Order that Richard John Janson deliver up the certificates of title in respect of the said land to the Registrar-General. (4) Order that the Registrar-General cancel the current certificates of title and issue fresh certificates of title with respect to the said land. (5) Order that the defendants Richard John Janson and Robert Sepping Janson pay the plaintiff's costs of the proceedings. (6) Liberty to apply, including for orders for the enforcement of any entitlement of the plaintiff to the said land. (7) The exhibits may be returned. 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.