Brown v The NSW Trustee & Guardian & Anor [2011] NSWSC 1203

Supreme Court New South Wales

Medium Neutral Citation: Brown v The NSW Trustee & Guardian & Anor [2011] NSWSC 1203 Hearing dates: Thursday, 22 September 2011 Decision date: 23 September 2011 Jurisdiction: Equity Division Before: Brereton J Decision: Application dismissed with costs. Catchwords: TRUSTS - Deceased son said to have held real property purchased from proceeds of sale of deceased's father's cottage on trust - trust said to arise by way of express trust or resulting trust with presumption of advancement rebutted - express trust said to arise from terms on which proceeds provided to son - only evidence supporting existence of trust is solicitor's file note - note evidences only one element of circumstances pertaining to transaction - assessed in context of surrounding and subsequent circumstances note cannot be said to contain terms upon which son held proceeds of sale - evidence rebuts resulting trust - presumption of advancement -property vested absolutely in son. FIDUCIARY DUTIES - Agent and principal - son said to be father's agent - son father's agent in sale of father's house - no obligation in circumstances to act in father's best interests in dealing with proceeds of sale - father in fact authorised and consented to payment of proceeds to son - principal consented to agent's actions. UNCONSCIONABLE DEALING - Relationship of 'special disadvantage' said to arise by father being 'semi conscious' and in hospital subsequent to an operation at time of impugned transaction - no suggestion father lacked mental capacity - contemporaneous arrangement entered into with son illustrates ability to conserve own interests - father not at sufficient disadvantage to constitute 'special disadvantage' - son cannot be said to have taken unfair advantage. UNDUE INFLUENCE - Proved relationships of influence - no evidence that son exerted dominion, authority or superiority over father - no relationship of presumed influence - no evidence of actual undue influence. ESTOPPEL AND CONFIRMATION - Father fails to impugn transaction for period of approximately five years prior to his death - equity aids the vigilant not the tardy - father in fact considered his position and decided not to pursue claim - parties conducted affairs on basis of this decision - not fair or right for claim to be maintained. Cases Cited: Allcard v Skinner (1887) 36 Ch D 145 Anderson (formerly Lauridsen) v Lauridsen [2011] NSWSC 849 Bank of New South Wales v Rogers (1941) 65 CLR 42 Blomley v Ryan (1956) 99 CLR 362 Boardman v Phipps [1967] 2 AC 46 Brown v Brown (1993) 31 NSWLR 582 Calverley v Green (1984) 155 CLR 242 Commonwealth Bank of Australia v Amadio (1983) 151 CLR 447 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 Johnson v Buttress (1936) 56 CLR 113 Keith Henry & Co Pty Ltd v Stuart Walker & Co Pty Ltd (1958) 100 CLR 342 Napier v Public Trustee (WA) (1980) ALR 153 National Westminister Bank plc v Morgan [1985] AC 686 Nelson v Nelson (1994) 33 NSWLR 740 Tillett v Varnell Holdings Pty Ltd & Ors [2009] NSWSC 1040 Whereat v Duff [1972] 2 NSWLR 147 Winfield v Clarke [2008] NSWSC 882 Texts Cited: Cope, Duress Undue Influence and Unconscientious Bargain, 1985 Category: Principal judgment Parties: Felicity Anne Brown (plaintiff) NSW Trustee & Guardian (first defendant) State of New South Wales (second defendant) Representation: Counsel: Mr Ash (plaintiff) Mr Hill and Ms Pringle (first defendant) Solicitors: Burt & Allen Lawyers (plaintiff) NSW Trustee & Guardian (first defendant) File Number(s): 2010/313444