Tillett v Varnell Holdings Pty Ltd & ors [2009] NSWSC 1040

New South Wales Supreme Court

CITATION : Tillett v Varnell Holdings Pty Ltd & ors [2009] NSWSC 1040

HEARING DATE(S) : 2-6, 23, 24 March 2009

JUDGMENT DATE : 30 September 2009

JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

DECISION : Proceedings dismissed with costs

CATCHWORDS : EQUITY – general principles – unconscientious dealing – where plaintiff claims transfer of property to defendants at an undervalue of about 15% in return for discharge of defendants' mortgage brought about by unconscientious dealing – whether plaintiff subject to a special disadvantage – where plaintiff psychotic and depressed, alcoholic and in poor financial circumstances - whether plaintiff unable to conserve his own interests or vulnerable to exploitation – where psychosis not related to transaction – where transaction not complex - whether illness, circumstances and lack of advice exposed plaintiff to exploitation – held: plaintiff not at special disadvantage - EQUITY – general principles – undue influence – where plaintiff claims transfer of property brought about by undue influence – categories of presumed influence – parent/child relationship – whether child continues to be under control of parent – whether child "emancipated" – 38 year-old adult living independently – held: emancipated from mother's influence - "Proved" relationships of influence – where not established that plaintiff reposed trust and confidence in or relied unquestioningly on advice of defendants – where defendants had power over plaintiff as mortgagee of his property - held: powers of defendants arose from status as mortgagee and not from relationship of influence - EQUITY – Laches and Delay – whether plaintiff had sufficient knowledge of facts founding potential claim for equitable relief - whether plaintiff's delay in bringing action caused defendants to change position – where defendants would not have provided financial assistance to plaintiff had they known transaction was impugned – held: plaintiff disentitled to equitable relief by laches - EQUITY – Remedies – where prima facie remedy is avoidance of transaction subject to reinstatement of defendants' mortgage – where prima facie remedy would be inequitable – minimum equity necessary to do justice would be the difference between market value and mortgage debt at date of transaction plus interest.