NSW Caselaw
New South Wales Court of Appeal
CITATION: Johnson v Smith [2010] NSWCA 306
HEARING DATE(S): 8 July 2010
JUDGMENT DATE: 17 November 2010
JUDGMENT OF: Allsop P at [1]; Hodgson JA at [8]; Young JA at [11]
DECISION: The appeal is dismissed with costs.
CATCHWORDS: Equity- undue influence- whether son was in a position of influence and ascendency over mother- cheques bearing large sums signed by elderly woman in favour of son and late husband- son claiming that he holds funds beneficially as absolute gift- relationship of dependency and bonds of affection- mother suffering from special mental and physical disadvantage- progressive dementia- son principal carer- no independent legal or financial advice- no error in granting relief in circumstances- whether son exercised undue influence himself- son closely involved and received benefit. Equity- unconscionable conduct- whether transaction "fair just and reasonable"- whether honest subjective motivation determinative where son intending to act for the benefit of mother in carrying out transaction and retaining sums- not determinative where retention of benefit obtained from person with special disadvantage- detailed consideration unnecessary where assertion of absence of legally enforceable protection of mother's needs in transfer.
LEGISLATION CITED: Family Provision Act 1982 Protected Estates Act 1983
CATEGORY: Principal judgment
Allore v Jewell 94 US 506 (1876) Bridgewater v Leahy [1998] HCA 66; 194 CLR 457 Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; 151 CLR 447 Earl of Aylesford v Morris (1873) LR 8 Ch App 484 CASES CITED: Jones v Dunkel [1959] HCA 8; 101 CLR 298 Nichols v Jessup [1986] 1 NZLR 226 Re B [2000] NSWSC 44 Redgrave v Hurd (1881) 20 Ch D 1 Torrance v Bolton (1872-3) LR 8 Ch App 118
We try to embed the page this law was scraped from. If the site blocks framing, you still get the link and a local excerpt.
Last checked with source on —
Checking whether the official page can be embedded…
Plain-English simplify of this law: a short summary, key points, and both sides of the argument. Generated on first view via Replicate, then cached. Vote on what helps your study.
No study brief is cached for this law yet. Sign up to generate a plain-English brief.
Sign up to generate