New South Wales Supreme Court CITATION : Jozef Sleboda v Joseph Jan Sleboda [2007] NSWSC 361 JUDGMENT DATE : 18 April 2007 JUDGMENT OF : Gzell J DECISION : Declataion that property held on a constructive trust for father and son as tenants in common in equal shares. Son ordered to do all things necessary to transfer the property to father and son. Son ordered to pay father's costs. CATCHWORDS : EQUITY - Undue influence and duress - Son instructed solicitor to transfer property from the father to him - Father said transfer was to be to both as tenants in common in equal shares - Father executed transfer documents - Solicitor said father advised to seek independent advice and documents read to him and explained - Father said son requested him to sign and he did so and solicitor did not speak to him - Son knew father placed trust in him and would do anything son asked in relation to the property - Father partially deaf, had difficulty reading English and 79 years old - Whether undue influence or unconscionable conduct established Calverley v Green (1984) 155 CLR 242 CASES CITED : Commercial Bank of Australia Ltd v Amadio (1982-1983) 151 CLR 447 Johnson v Buttress (1936) 56 CLR 113 Union Bank of Australia Ltd v Whitelaw (1906) VLR 711 at 720 PARTIES : Jozef Sleboda (Plaintiff) Joseph Jan Sleboda (Defendant) FILE NUMBER(S) : SC 1879/05 COUNSEL : Mr J E Armfield (Plaintiff) Mr L Ellison SC (Defendant) SOLICITORS : Hills Solicitors (Plaintiff) Laliotis Lawyers (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION GENERAL LIST GZELL J WEDNESDAY 18 APRIL 2007 1879/05 JOZEF SLEBODA V JOSEPH JAN SLEBODA JUDGMENT 1 Jozef Sleboda, the plaintiff, and his son Joseph Jan Sleboda, known as John, the defendant, bought a farm in Phoenix Park, New South Wales, as tenants in common in equal shares in 1979. In 1981, Mr John Sleboda faced the prospect of criminal charges and, on advice, his interest in the property was transferred to Mr Jozef Sleboda. In 2002, Mr Jozef Sleboda conveyed the entire interest in the property to Mr John Sleboda. He said he understood the documents he signed were to return the property to him and his son as tenants in common in equal shares. He seeks a declaration that Mr John Sleboda holds the property on a constructive trust for both as tenants in common in equal shares. Legal Principles 2 Mr Jozef Sleboda does not raise a case of non est factum. His case is put on two bases: undue influence and unconscionable conduct. 3 As to the former, reference was made to Johnson v Buttress (1936) 56 CLR 113. In that case, a 67 year old, who was wholly illiterate, of low intelligence and devoid of experience in business affairs, transferred his home by way of a gift to a relative of his wife. He was appreciative of the kindness shown to him after the death of his wife. The transfer was executed in the office of the donee's solicitor. The donor did not have independent advice. It was held that, because of the special relationship of influence that was shown by the circumstances to have arisen, the presumption of undue influence that arose from that relationship had not been rebutted. At 134, Dixon J explained the basis of the jurisdiction as the prevention of unconscientious use of a special capacity or opportunity: "The basis of the equitable jurisdiction to set aside an alienation of property on the ground of undue influence is the prevention of an unconscientious use of any special capacity or opportunity that may exist or arise of affecting the alienor's will or freedom of judgment in reference to such a matter". 4 If, before a transaction, one party is in a position of ascendancy over the other, the onus falls upon the party benefited to establish that the gift was the exercise of free judgment on the part of the donor. His Honour went on to say: "But the parties may antecedently stand in a relation that gives to one an authority or influence over the other from the abuse of which it is proper that he should be protected. When they stand in such a relation, the party in the position of influence cannot maintain his beneficial title to property of substantial value made over to him by the other as a gift, unless he satisfies the court that he took no advantage of the donor, but that the gift was the independent and well-understood act of a man in a position to exercise a free judgment based on information as full as that of the donee." 5 The principle was stated by Hodges J in Union Bank of Australia Ltd v Whitelaw (1906) VLR 711 at 720 thus: " 'Influence', as I understand the term in this connection, is the ascendancy acquired by one person over another. 'Undue influence' is the improper use by the ascendant person of such ascendancy for the benefit of himself or someone else, so that the acts of the person influenced are not, in the fullest sense of the word, his free, voluntary acts." 6 So far as unconscionable conduct is concerned, reference was made to Commercial Bank of Australia Ltd v Amadio (1982-1983) 151 CLR 447. In that case, two elderly migrants who were unfamiliar with written English were asked by their son to execute a mortgage in favour of a bank to secure an overdraft by the bank to a company controlled by their son. The son told them that the mortgage was to be limited to $50,000.00 and to be cleared in six months. The bank and the company had been selectively dishonouring the company's cheques to preserve the company's appearance of solvency. The bank and the company agreed that the overdraft was to be reduced and cleared within a short time. These matters were not disclosed to the prospective mortgagors. The mortgage contained a guarantee and both secured all moneys owing, or that might become owing, by the company to the bank. The mortgagors executed the deed mistakenly believing it to be limited to $50,000.00 and to be for six months. The bank was aware that they had been misinformed. It was held that the instrument should be set aside unconditionally. Mason, Wilson and Deane JJ put it on the basis that the mortgagors were under a special disability and that the disability was sufficiently evident to the bank to make it prima facie unfair or unconscientious for it to be allowed to rely on the guarantee. The onus lay on the bank to show that the guarantee should not be set aside and should fail to do so. At 461, Mason J explained the basis for the equitable jurisdiction, the difference between it and undue influence: "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, eg, 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". A similar view was expressed by Deane J, with whom Mason and Wilson JJ agreed, at 474. The evidence 7 Mr Jozef Sleboda said he paid $15,000.00 towards the purchase price of the property, he made the mortgage payments and ultimately discharged the mortgage and he paid all the outgoings. The purchase price of the property was $36,000.00. To the extent to which those contributions were in excess of 50%, a constructive trust might arise (Calverley v Green (1984) 155 CLR 242). Equally, a presumption of advancement in favour of Mr John Sleboda might arise. Mr Jozef Sleboda did not seek to rebut that presumption. 8 There was negligible documentary evidence supporting Mr Jozef Sleboda's contention that he paid the entirety of the purchase price of the property and he paid all the outgoings. He said that Mr John Sleboda had burnt all the documents. 9 On the other hand, Mr John Sleboda said that he purchased the property and paid all the outgoing and, with the exception of about $9,000.00, he paid for the construction of a new two-storied house on the property. He said he contributed $30,000.00 to the purchase price from moneys received from buying, repairing and selling motor vehicles. 10 Mr Jozef Sleboda said his son did not repair motor vehicles and Mr John Sleboda's sister, Wanda Victoria Stewart, never saw her brother repairing motor vehicles at the property in over 20 years. 11 There were no documents relating to the purchase and sale of motor vehicles. Mr John Sleboda said that all his transactions were made in cash. 12 The transfer of Mr John Sleboda's half interest in the property was said to be in consideration for the payment of $20,000.00. The transfer of the entire interest in the property by Mr Jozef Sleboda was said to be in consideration for the payment of $300,000.00. It was common ground that neither of these amounts was paid. 13 Mr Jozef Sleboda said that some time in 2002, Mr John Sleboda asked: "What about signing the farm back to me like it was before". He said he replied: "Alright, we go back half and half." 14 Mr John Sleboda said that while that was the initial proposal, his father later said he might as well transfer the lot to Mr John Sleboda. 15 Mr Jozef Sleboda also said that in 2002, his wife suggested that half the property should be given back to Mr John Sleboda and the other half should be divided between their three daughters. Mr Jozef Sleboda said he agreed with this idea. 16 Mrs Sleboda denied that she knew that the farm would eventually go to Mr John Sleboda. She said that was never discussed. She and her husband never discussed the farm. They did not talk about it. 17 Mr John Sleboda retained Harold Craig Lee of Reid & Reid, solicitors, to prepare documents for the sale of the property to him by his father for $300,000.00. Mr Lee drew up documents to do so. They were framed on the basis of a transfer for consideration. 18 The documents were executed at the property on the evening of 13 August 2002. Mr Jozef Sleboda was born in 1923. He was then 79 years old. Mr John Sleboda knew that his father had difficulty with the English language and that he was partially deaf. Mr John Sleboda knew that his father trusted him. In particular, Mr John Sleboda knew that his father was prepared to do whatever he asked him to do in relation to the property and he knew that his father was relying upon him to accurately convey to Mr Lee the terms of any agreement that had been reached between them as to how the title should be held. 19 Mr Jozef Sleboda said that his son and Mr Lee sat in the lounge room for some time. He said he could not understand what they were saying. Mr John Sleboda asked him to come and sign and he did so, where indicated by his son, without reading the documents. He said his wife was in bed and Mr John Sleboda called her to come and sign. She came out of the bedroom and signed and returned to bed. Mr Jozef Sleboda said his son said he needed $8,000.00 for stamp duty and he went to his bedroom, obtained the cash and gave it to Mr John Sleboda who gave it to Mr Lee. 20 Throughout a searching cross-examination, Mr Jozef Sleboda did not depart from his often repeated answer that Mr Lee did not speak to him. 21 Mrs Sleboda said she was in bed when she was called to sign. She said she asked her son: "Why do I have to sign this I'm not on the farm?" to which the son said: "Just sign as witness", which she did. She said Mr Lee never spoke to her and she went back to the bedroom. 22 Mr John Sleboda said he, his mother and father and Mr Lee sat at the lounge room table and Mr Lee said: "Mr Sleboda, do you want this property signed over to your son?" to which his father replied: "Yes, sign it over to my son". He said Mr Lee then said words to the effect: "You know that the farm will be 100% signed over to your son. Do you understand?" to which his father replied: "Yes I do". He said Mr Lee then said: "These are the contracts to sign the deeds over to John" and his father said: "We will go ahead". Mr John Sleboda said his father then signed the documents and his mother witnessed his signature. 23 Mr Lee said he had no difficulty communicating with Mr Jozef Sleboda and he had no difficulty in making himself heard. The television was either turned down or turned off. Mr Lee said he introduced himself as Mr John Sleboda's solicitor and said that he was there to talk about the transfer of the property. A valuation had been obtained for the $300,000.00, he had prepared a contract for sale of the whole property from the father to the son and had a transfer and some conveyances and authorities and he was going to take them through them. Mr Lee said he suggested to Mr Jozef Sleboda that he should seek independent legal advice and Mr Sleboda said he did not want to do that, he was happy to go ahead and wanted it to be fixed up then. Mr Lee said it was a very important document and what was involved was that Mr Jozef Sleboda was transferring everything over and that if there was ever a fight, John could throw him out of the house. Mr Lee said he went through the valuation, talked to them about who the valuer was and he thought he had Mr John Sleboda and his father sign off as he went through. Mr Lee said he then went to the contract for sale and started at the front page explaining its contents point by point. He then took them through the inside of the contract and with the attachments to it which were searches and then again had them sign off. He said Mr Sleboda spoke during this process, but he did not recall what was said. He did not say that he did not understand or that something was not correct. Where Mr Jozef Sleboda's signature was witnessed, Mr Lee said he conducted the witnessing process. Mr Jozef Sleboda signed in Mrs Sleboda's presence and she then signed the documents. Mr Lee said that Mrs Sleboda did not come from somewhere else in the house. She was there at the table during the entire process. At the end, Mr Lee said he took those present through an authority to his firm that they were instructed not to carry out the usual searches and rate inquiries and not to obtain a survey and Council building certificate and that the parties would attend to the payment of all purchase moneys and the adjustment of rates between themselves. That they would also attend to transferring all the services and the insurance and that they had obtained accounting advice in respect of the tax implications of the sale and had satisfied themselves in respect to capital gains tax and other taxes and they confirmed that the sale documents were to show the sale as not being a taxable supply and that there was no GST on the sale. The document was signed by Mr Jozef Sleboda, whose signature was witnessed by Mrs Sleboda. It was also signed by Mr John Sleboda. 24 The only file note of the meeting of 13 August 2002 was a handwritten item by Mr Lee on a copy of a tax invoice addressed to Mr John Sleboda. It read: "- Attended on John and his father at home. - Confirm above instructions. - Father does not want independent advice. - Proceed – signed." Resolution 25 I reject the evidence of Mr John Sleboda where it conflicts with that of the other witnesses. There is no contemporaneous documentation which might support his evidence. It is the conflict in his testimony that leads me to this conclusion. 26 There were substantial periods of time in the 1980's when Mr John Sleboda was dependant upon unemployment benefits. Those periods of time exceeded periods during which he said he was repairing motor vehicles. He spent two periods of three months in gaol. He was treated in Morisett Hospital for alcoholism for six weeks. 27 Mrs Sleboda said that after working for about a year as a panel beater at O'Neills in Sandgate, from 1972 onwards, Mr John Sleboda was unemployed most of the time, living at home. Mr Jozef Sleboda took his son to Poland for three months after he retired in 1975. Upon their return, Mr John Sleboda got some casual work at the abattoir at Newcastle for some time. Mrs Sleboda said that in 1979, her husband decided to buy a farm to give John something to do. 28 Until she left home in 1972 to be married, Mrs Stewart observed that Mr John Sleboda who was also living at home at Devon Street, Wallsend, had very little money and always seemed to have a lot of fines to pay and no money to pay them with and her parents often helped him out. 29 I do not accept Mr John Sleboda's evidence that he paid for the purchase of the Phoenix Park property. I do not accept that he had the capacity to do so. 30 Mr Jozef Sleboda and Mr John Sleboda moved to Phoenix Park when it was purchased in 1979. Mrs Sleboda remained at Devon Street, Wallsend. She and Mr Jozef Sleboda spent time together at each property. Mr Jozef Sleboda said he and his son worked the property. About five years after purchase, he said that he and his son worked on the construction of a new house on the property. 31 Mr John Sleboda said he did 80% of the work. He obtained an owner-builder's permit and he said he made all the contributions to the purchase of materials and the paying of builders' fees in respect of the concrete slab and first storey and the roof. He said he then completed the second and third storeys and the loft. 32 That evidence was contradicted by Mrs Sleboda and Mrs Stewart. Both of them said they saw father and son working the property and constructing the house. 33 The property at Devon Street, Wallsend was sold in 2002 and Mr Jozef Sleboda received two cheques, one for $149,749.23. He said he decided to use that money to complete the top floor of the residence at Phoenix Park. He gave the cheque to Mr John Sleboda to bank and then to withdraw entirely in cash. Mr Jozef Sleboda said he put the cash in a plastic container which he kept in the wardrobe in the house and whenever Mr John Sleboda needed money to pay for building materials, he would give him cash. I accept that evidence in preference to Mr John Sleboda's evidence that he paid for the construction of the second storey and only $9,000.00 of the $149,749.23 was used for the kitchen. 34 Originally, Mr John Sleboda said the $149,749.23 was a gift to him. He said his father told him: "This is for you for looking after us all these years". It was put to Mr John Sleboda in cross-examination that he had told the Local Court in apprehended violence proceedings brought against him that he was given the moneys for the use of his mother and father. He said that he might have forgotten to bring that up. At one stage he said that the money was to be used for the benefit of his mother and father. When it was put to him that the kitchen was for his benefit if he owned the property 100%, he changed his testimony and said that the money was for the benefit of his mother, his father and himself. 35 In his affidavit, Mr John Sleboda said that when his mother moved to Phoenix Park after the sale of the house at Wallsend, she said at the breakfast table one morning: "Joe, it is time for you to sign the property back to John. He has not been in trouble for a long time. We are old now and if he loses it at his age, it is too bad". His father responded: "Yes, John, look in the telephone book and find a solicitor", to which he responded: "I want you to be sure about this" and his father said words to the effect: "I'm sure, go and see/get a solicitor". In cross-examination, however, Mr John Sleboda said that when the matter was first raised he said to his father: "What about signing the farm back to me like it was before?" and it was his father who later said he might as well sign the whole lot over. Mr John Sleboda agreed that the earlier conversation was not recorded in his affidavit. He could give no explanation why such an important conversation was not mentioned. 36 Mr John Sleboda said that he told Mr Lee no money was to change hands. Mr Lee said he understood the transaction was a transfer for consideration. Had he known no moneys were to be paid, he would have approached the documentation differently and he would have been more insistent upon Mr Jozef Sleboda seeking independent advice. 37 Mr Lee said he relied upon the only file note he had to refresh his memory but he said he had an independent recollection of what took place. I doubt that that was so. Mr Lee had an extensive conveyancing practice with approximately 150 conveyances a year. In the three year period between the event and the time he was asked to recall what had happened, he conducted many conveyances. He had a set routine and he followed that routine on this occasion. I have no doubt that Mr Lee was sincere in the evidence he gave, but I put it down to reconstruction on his part. 38 As I have said, Mr Sleboda was not shaken in cross-examination about his version of the events of 13 August 2002. His evidence was corroborated by Mrs Sleboda to the extent that she was called from the bedroom and signed and returned to it and, contrary to the evidence of Mr Lee, she was not involved in the discussions. Mrs Sleboda's recollection was proved to be inaccurate in cross-examination. But the fact remains that she said she was called from the bedroom, signed and returned there and that evidence was also given by Mr Jozef Sleboda. 39 Mr John Sleboda's version of what took place differed from that of Mr Lee. Mr John Sleboda made no mention of Mr Lee suggesting that Mr Jozef Sleboda take independent legal advice. 40 After the events of 13 August 2002, Mr Jozef Sleboda and Mrs Sleboda continued to live at Phoenix Park. Mr Jozef Sleboda had a triple by-pass operation in October 2004 and when he returned to Phoenix Park there was a disagreement between him and Mr John Sleboda about $64,000.00 that had been withdrawn by Mr John Sleboda from his father's bank account. At first Mr John Sleboda refused to give the money back according to Mr Jozef Sleboda and Mrs Stewart, but in the end he did so. Also in that month there was an argument about $100,000.00 in cash that Mr Jozef Sleboda kept in his wardrobe. Again, Mr John Sleboda initially refused to return the money but he subsequently did so. 41 In October 2004, Mr Jozef Sleboda had an argument with his son about his son's girlfriend. He told his son to get his girlfriend off the farm. Mr Jozef Sleboda said that his son said to him: "It's my farm and your signature means nothing". 42 Mr Jozef Sleboda said his wife gave him a scrap of paper with the name of a solicitor on it who Mr Jozef Sleboda thought was the name of the solicitor who came to their house in August 2002. He asked his daughter to visit Phoenix Park. He said to her: "John said the farm is not mine. When I told him to get his girlfriend off the farm, he told me my signature means nothing". He said he gave the scrap of paper to Mrs Stewart and said: "Phone him and find out what it's about". Mr Jozef Sleboda asked his son where the title deeds were. His son said they were in the bedroom and he produced them. Mr Jozef Sleboda said he gave the title deeds to his daughter saying: "Take these and find out what its all about". His daughter took them away and later returned them. She told him that she had spoken with Mr Lee and he had told her that the farm had been given to Mr John Sleboda 100%. He asked his son to transfer the half interest back to him, but his son refused. He asked his daughter to get him a barrister and get it back. Mr Jozef Sleboda said he asked Mrs Stewart to come to the farm to help him get the farm back. He said his daughter asked her brother to transfer the half interest back to their father. Mr John Sleboda refused and assaulted Mrs Stewart. He was arrested. 43 Apart from the arrest, Mr John Sleboda denied all of this evidence. 44 Mrs Sleboda said that in November 2004, her husband called Mrs Stewart to the farm and when she arrived said to her: "Will you help us get the farm back". He gave Mrs Stewart some deeds. Mrs Stewart asked Mr John Sleboda to talk about the property dispute, their father only wanted 50%. Mr John Sleboda refused: "No, you will never get it back." 45 Mrs Stewart said that in October 2004 she was asked to come to the farm by her father who said he needed her help. Her father said: "John said that the farm is not mine – I told him to get his girlfriend off the farm and John said 'It's not your farm – it's mine and your signature means nothing'." Her father handed her a scrap of paper and said: "This is the name of the solicitor who done a contract - phone him up and find out what the contract was about". The paper had the name of Mr Lee's firm and his name on it. Subsequently, over an argument that Mr John Sleboda had removed a biscuit tin with $100,000.00 in it, Mrs Stewart said her father asked Mr John Sleboda to give the money back and if he did, he could have the farm. Mrs Stewart said she rang Mr Lee who told her that the farm was in John's name. Later she went to the farm and told her parents that she had phoned Mr Lee and the farm had been given 100% to John. Her father asked her to get a barrister and get it changed. When Mr John Sleboda returned, her father asked him where were the deeds and he said they were in the bedroom and he returned with a plastic bag containing the deeds. Her father gave them to her saying: "Take these and find out what it's all about". Mrs Stewart asked her to brother give half the farm back to their father and her brother refused. Her father asked her would she help him to get the farm back and she said she would see a solicitor. 46 In November 2004, Mrs Stewart said her father telephoned her and asked her to come to the farm, he needed her. When she arrived her father said she had to help him get the farm back. He gave her the title deeds and asked her to take them away and check what he had signed. Mrs Stewart said she asked her brother to transfer half the farm back to their father. He refused. She said Mr John Sleboda became increasingly angry. He assaulted her. The police arrested him. Her father asked her would she help him. She said she would see a solicitor with him. She would read the deeds and see what it was all about. She subsequently photocopied the deeds and returned them to her father. 47 There are some discrepancies between the versions of the three witnesses as to what happened. For example, in cross-examination, Mr Jozef Sleboda denied that he told his son that if he gave him back the money he could have the farm. But there is sufficient coincidence between the testimonies of the three for me to accept that Mr Sleboda reacted to the statement by his son. In cross-examination, Mrs Stewart said her father was very worried. He had the impression that he owned the full farm. She subsequently learnt that her father was of the belief that he should own 50% and Mr John Sleboda should own 50%. 48 It was not put to Mr Jozef Sleboda, Mrs Sleboda or Mrs Stewart that these events did not occur. I accept that Mr Jozef Sleboda reacted in the way described. That reaction is inconsistent with knowledge on the part of Mr Jozef Sleboda that he had transferred the entirety of the property to his son. If Mr Lee had, as he had said, explained to Mr Jozef Sleboda that the documents he was asked to sign transferred the entirety of the property to his son, he would not have reacted in the way he did when his son told him he owned the farm 100%. 49 It was submitted that the conduct of Mr Jozef Sleboda on being told by his son that the farm was his, was consistent with a transfer of 100% of the property to Mr John Sleboda with the knowledge that Mr Jozef Sleboda had some sort of informal right to continue living there and any suggestion that Mr John Sleboda could remove him was an affront. I reject that submission. The reaction of Mr Jozef Sleboda was one of surprise, inconsistent with knowledge that he had transferred the entirety of the property to his son. 50 In June 2005, Mrs Stewart took her parents out for a visit. When they arrived back, the locks to the house had been changed and Mr John Sleboda would not let them back. Mr Jozef Sleboda and Mrs Sleboda have since lived elsewhere. Conclusion 51 I find that Mr Jozef Sleboda was under a special disability in dealing with his son. I find that the relationship between them was such that Mr John Sleboda had such influence over his father that Mr Jozef Sleboda's decision to sign the documents without taking independent advice, without having them read to him and without explanation was not voluntary but was overborne by Mr John Sleboda's instruction to his father to sign the documents. His decision to do so did not arise from an independent and well-understood act on his part. Mr John Sleboda cannot rely on the transfer unless he satisfies the court that he took no advantage of his father. He has not done so. 52 I also find that in October 2002, the relationship between Mr Jozef Sleboda and Mr John Sleboda was such that Mr John Sleboda was in a superior position to his father. He was aware that his father trusted him and that that trust was such that his father would do anything he asked him to do with respect to the property. I find that Mr John Sleboda made unconscientious use of his superior position to the detriment of Mr Jozef Sleboda. I find that Mr Jozef Sleboda was in a special situation of disadvantage. He was partially deaf following his heart by-pass operation to the knowledge of Mr John Sleboda and he had difficulty reading English, again to the knowledge of Mr John Sleboda. He placed his complete trust in his son. I find that Mr John Sleboda unconscientiously took advantage of that situation by calling on his father to sign the documents. 53 In arriving at this conclusion, I do not overlook the fact that Mr Jozef Sleboda had commercial experience. He had bought and sold realty previously and had instructed solicitors with respect to those conveyances. But his partial deafness and difficulty in reading the English language led him to place complete trust in his son and, so doing, he was in such a disadvantageous position as made it unconscionable for Mr John Sleboda to rely on that trust in asking his father to sign the documents without them being read to him or explained to him. 54 The remedies of undue influence and unconscionable conduct are not mutually exclusive. Relief on both grounds is open. On either or both of them, I declare that Mr John Sleboda holds all the land being lots 1, 2 , 4, 5, 7, 9, 11, 13 and 15 in deposited plan 975644 and lots 17 and 18 in deposited plan 1053405 on a constructive trust for Mr John Sleboda and Mr Jozef Sleboda as tenants in common in equal shares. I order Mr John Sleboda to execute all documents and do all things necessary to transfer to Mr Jozef Sleboda a half interest in the above property such that it be held by Mr Jozef Sleboda and Mr John Sleboda as tenants in common in equal shares. I order Mr John Sleboda to pay Mr Jozef Sleboda's costs. I certify that this page and the 16 preceding pages are a true copy herein of the reasons for judgment of the Honourable Justice I V Gzell Ms Amanda Last Date: 18 April 2007 Tipstaff 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.