Farrell v Stephenson [2008] NSWSC 1350

New South Wales Supreme Court

CITATION : Farrell v Stephenson [2008] NSWSC 1350

HEARING DATE(S) : 20-21 October 2008

JUDGMENT DATE : 17 December 2008

JURISDICTION : Equity Division

JUDGMENT OF : Young CJ in Eq

DECISION : Plaintiff's case dismissed with costs. In the cross-claim, order that transfers of the Nos 186 and 188 properties be set aside. Cross-Claimant entitled to proceeds of sale of the cross-defendants' Bilgola property.

CATCHWORDS : EQUITY [49]- Cross-claim alleges second and third defendants procured transfers of widow's properties to themselves with little or no consideration- Second and third defendants mortgaged those properties and used the money for a series of unsuccessful property investments- Widow never received independent legal advice- No defence to cross-claim ever pleaded- Held properties were obtained by equitable fraud and undue influence. SUCCESSION [26]- Testator's will left properties to the widow, but contained precatory terms that the widow bequeath those properties to the plaintiff and the second defendant upon her death- Whether widow is bound to make such bequests- Held that there is no evidence of a contractual obligation to make a will in the plaintiff's favour- Widow's solicitor's letter insufficient to amount to a declaration of trust nor a representation.

LEGISLATION CITED : Conveyancing Act 1919, s 23C

CATEGORY : Principal judgment

Baird v Smee [2000] NSWCA 253 Bigg v Queensland Trustees Ltd [1990] 2 Qd R 11 CASES CITED : Birmingham v Renfrew (1937) 57 CLR 666 Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130 Re Dale [1994] Ch 31 Stivactas v Michaletos (No 2) (NSWCA, 31/08/1993, unreported)