Kenneth Charles Ward v Brian Charles Ward & Anor [2011] NSWSC 107

Supreme Court New South Wales

Medium Neutral Citation: Kenneth Charles Ward v Brian Charles Ward & Anor [2011] NSWSC 107 Hearing dates: Friday 4 February 2011 Decision date: 04 February 2011 Jurisdiction: Equity Division Before: Brereton J Decision: Second Defendant is liable to pay the Plaintiff moneys owing according to loan agreement. First Defendant holds his interest in the Kings Park property on trust for the Plaintiff. Catchwords: EQUITY - general principles - unconscionable dealings - Plaintiff provides son with one-third interest in real property - father said to be under special disability because of alcohol abuse, assault by younger son and re-establishment of recent relationship with son - notice of special disability said to arise by improvidence of transaction - son fails to plead to allegations in statement of claim - deemed admissions - held: son unconscionably took advantage of special disability - declaratory relief - son holds interest in property on trust for father. LOAN AGREEMENT - agreement entered into on behalf of Plaintiff by son acting pursuant to Power of Attorney with grandson - maturity date reached - amount of advance and interest not paid pursuant to agreement - grandson fails to plead to allegations in statement of claim - held: loan advance repayable with interest. Legislation Cited: (NSW) Family Provision Act (1982), s32 Cases Cited: Bridgewater v Leahy (1998) 194 CLR 457 Louth v Diprose (1992) 175 CLR 621 Mirembe Pty Ltd v Dangar [2009] NSWSC 1268 MY Distributors Pty Ltd v Omaq Pty Ltd and Another (1992) 36 FCR 578 Sergi v Jurcevic (1999) 46 NSWLR 672. Tillett v Varnell Holdings Pty Limited & ors [2009] NSWSC 1040 Category: Principal judgment Parties: Kenneth Charles Ward (Plaintiff) Brian Charles Ward (First Defendant) David Brian Ward (Second Defendant) Representation: Counsel: Mr D Stewart (Plaintiff) No appearance (Defendants) Solicitors: Matthews Dooley & Gibson (Plaintiff) File Number(s): 2010/093471