Luscombe v Hammond [2007] NSWSC 479

New South Wales Supreme Court

CITATION : Luscombe v Hammond [2007] NSWSC 479

HEARING DATE(S) : 8 May 2007

JUDGMENT DATE : 8 May 2007

JURISDICTION : Equity Division

JUDGMENT OF : Windeyer J at 1

DECISION : Held that transactions between defendant and plaintiff were unconscionable. Order that defendant holds car on trust for plaintiff and that the defendant pay the plaintiff $9,000.

CATCHWORDS : EQUITY – Equitable fraud – Unconscionable dealing – Plaintiff 101 years old and living in nursing home – Defendant 58 year old woman who visited him at the nursing home – Series of transactions between plaintiff and defendant – Defendant claims transactions were for the benefit of the plaintiff – Plaintiff traumatised and in a position of vulnerability and disadvantage when transactions took place – Whether or not plaintiff intended to she did take advantage of the age and medical condition of the plaintiff – Transactions were unconscionable

PARTIES : Athelstan Walter Luscombe (Plaintiff) Carolyn Judith Hammond (Defendant)

FILE NUMBER(S) : SC 1129 of 2007

COUNSEL : Mr G McGrath (Plaintiff) In person (Defendant)

SOLICITORS : Lobban McNally Lawyers (Plaintiff) In person (Defendant)

- 7 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

TUESDAY 8 MAY 2007

1129/07 ATHELSTAN WALTER LUSCOMBE v CAROLYN JUDITH HAMMOND

JUDGMENT

1 HIS HONOUR: This is an unfortunate matter which, in my view, has not been terribly well handled by anybody and should never have ended up here. As a start, it appears to be a claim by the plaintiff against the defendant based on unconscionable conduct which ought to have been pleaded and certainly should never have been brought by summons in the way it has been. That may have been partly my fault. When the matter came for an expedited hearing I did not direct the matter proceed on pleadings, but lawyers acting in these matters ought to know that it is quite undesirable to proceed on a matter such as this without the issues having been properly articulated in some pleaded manner. 2 The plaintiff is 101 years of age. The defendant, as I understand it, is 58 years of age. The plaintiff was living in a hostel run by the Harbison organisation at Bowral. He was subsequently, I think on 21 November last year, moved into the Harbison nursing home. The defendant came to know him in March 2006. She found him to be a nice old man who needed some companionship. She proceeded to visit him and her visits became more regular. 3 It appears that the plaintiff is a man of some substance, although there is no evidence whatsoever before the court on which it could find that he has an estate worth the amount put to the defendant in cross-examination. The plaintiff and his brother, who is 99, are the owners as joint tenants of property 26 Kings Road, Moss Vale. The area of that property is almost impossible to tell from the evidence, as I still cannot tell how the two properties are contiguous, but if they are, they would appear to have a total area of about five and a half acres. There is a home erected on the land in question which, according to the defendant, is very dilapidated. 4 The plaintiff apparently was not happy being moved from hostel accommodation to nursing home accommodation. According to the defendant the move was quite traumatic for him. According to his nephew, who held a power of attorney from his uncle, that was the position, and he (the nephew) was also concerned about the move. He says that the hostel authorities insisted on it happening. 5 The defendant, who considers that she is well versed in health matters and who is a proponent of the use of minerals, part of the purpose of which is to stop the onset of prostate cancer, considered that she was helping the plaintiff by obtaining minerals for him and attending to some of his needs. Whether that was or was not the position I am quite unable to tell. 6 In any event, what happened was that on the day of the move, at a time when this 101 year old man was in what the defendant described as a traumatised state, he signed on his account at least four cheques in favour of the defendant. There is nothing particularly untoward about most of those in that two were for $20 each, one was for $200 and the other was for $500. It is not entirely clear what was done with those cheques, but I am prepared to accept that the defendant applied the moneys which she obtained for the benefit of the plaintiff. 7 There were other cheques which appear to have been signed by the plaintiff on his own account in the next three or four days. Three of those cheques were in favour of Harvey Norman, one for $4,416.90, one for $2,237.02 and one for $1,439.85. There is no doubt, on the evidence, that those cheques were primarily for the purchase of two television sets for the plaintiff. One of those sets was inappropriate in it being too big for the plaintiff's room at the nursing home, and the defendant apparently has that set at her home. As I understand the evidence, the other is probably in the nursing home. The other cheque for $4,416 appears to have been applied first towards a washing machine, and second towards other items which the defendant says she purchased for the benefit of the plaintiff, including a juicer and two Walkmans. The washing machine was to be used, so she says, when they went together to live at the Kings Road, Moss Vale property. She says that the plaintiff said that he would be happy if he and she could live there and she cared for him. 8 On 21 November 2006 the plaintiff signed a letter under which he said that he would like the defendant to have his home for a health centre - [a]s I am no longer able to live there. She has my full consent to have the property Long Cause 26 Kings Road Moss Vale and develop as she sees fit.