Supreme Court New South Wales Medium Neutral Citation: Leonard Gordan Ryan v Jennifer Anne Aboody & Anor [2012] NSWSC 136 Hearing dates: 14 & 15 November 2011 Decision date: 27 February 2012 Jurisdiction: Equity Division Before: Slattery J Decision: Gift set aside. Directions given for filing submissions on costs. Catchwords: EQUITY - equitable remedies - father gifts title to his residence to a daughter and son-in-law, retaining only a life estate - transferees provide no consideration - whether the plaintiff is under a special disability - whether defendants guilty of unconscionable conduct - whether gift should be set aside. Legislation Cited: Contracts Review Act 1980 (NSW) Legal Profession Act 2004 (NSW) Real Property Act 1900 (NSW) Cases Cited: Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447 Bridgewater v Leahy (1998) 194 CLR 457 Longmate v Ledger (1860) 2 Giff 157 Powell v Powell [1900] 1 Ch 243 Riz v Perpetual Trustee Australia Ltd & Ors [2007] NSWSC 1153 Category: Principal judgment Parties: Plaintiff- Leonard Gordon Ryan First Defendant- Jennifer Anne Aboody Second Defendant- Anthony Warren Aboody Representation: Plaintiff- M. McCall First & Second Defendant- H. Altan Plaintiff- David Robert Wolff, Walters Solicitors First & Second Defendant- Richard Harris File Number(s): 2010/393166 Publication restriction: No. Judgment 1Leonard Gordan Ryan was born in 1917. He volunteered for the second A.I.F. in July 1940 and undertook active service throughout World War II. In 1979 the Department of Veteran's Affairs awarded him a disability pension for injuries he sustained on active service. But by about the time of his 90th birthday in early 2007 he held an abiding fear. He was obsessed by the prospect that if the Australian Labor Party were elected to Federal government in 2007 and the then Liberal government defeated, that he would lose both his pension and the residential property he owned in the hamlet of Iluka on the north coast of New South Wales ("the Iluka property"). 2Mr Ryan had his own solution to this problem: he would transfer the Iluka property to his daughter, Jennifer Anne Aboody and his son-in-law, Anthony Warren Aboody. Mr Ryan carried through his plan on 30 January 2007 and transferred an interest in remainder in the Iluka property to Mr and Mrs Aboody for no consideration ("the transfer"), retaining for himself a life interest. Although the transfer recorded the receipt of $250,000 by Mr Ryan, it was acknowledged on all sides in the proceedings that Mr and Mrs Aboody paid nothing for the Iluka property and that this expressed amount of consideration was recorded on the transfer to show the value of the property being transferred for stamp duty purposes. 3But two years later Mr Ryan changed his mind. In 2009 he fell out with Mr and Mrs Aboody and reconciled himself with another of his three children, Mr John Ryan. He then asked Mr and Mrs Aboody to reverse the transfer. But they refused. So in 2010 Mr Ryan commenced these proceedings to set aside his gift, on the basis of what he alleged was Mr and Mrs Aboody's undue influence and unconscionable conduct. 4Mr and Mrs Aboody defend the proceedings on several bases, but principally with a contention that the firm Dakin Law gave Mr Ryan legal advice in December 2006 and January 2007 before Mr Ryan effected the transfer, and that advice neutralized any case of alleged undue influence or conscionable conduct. Mr Ryan's rejoinder is that the Dakin Law advice was not independent, because Dakin Law's principal, Mr Michael Dakin, acted both for Mr Ryan and for Mr and Mrs Aboody in relation to the transfer. Moreover, it is also said that Mr Dakin did not advise Mr Ryan according to the standard required of solicitors acting in such circumstances. 5At the time of the hearing Mr Ryan was aged 94. These proceedings were heard over two days, 14 and 15 November 2011 at Ballina, close to Iluka so that Mr Ryan did not have to attempt to travel to Sydney for the hearing. Mr M.McCall of counsel appeared for Mr Ryan. Mr H.Altan of counsel appeared for Mr and Mrs Aboody. 6Throughout these reasons Mr Len Ryan, the plaintiff, is referred to as "Mr Ryan", to distinguish him from his son Mr John Ryan, or as "the plaintiff". Mr and Mrs Aboody are also referred to as "the defendants". 7The issues narrowed in the course of the hearing. The plaintiff's pleaded case sought to set aside the transfer to Mr and Mrs Aboody on grounds of alleged unconscionable conduct, alleged undue influence and in the exercise of jurisdiction under the Contracts Review Act 1980. During the hearing the plaintiff abandoned its Contracts Review Act case, after Mr Dakin, the solicitor acting on the transaction, confirmed that Mr and Mrs Aboody had not paid any consideration for the transfer, that he had no instructions that there was a contract between Mr Ryan and Mr and Mrs Aboody, and that the consideration of $250,000 expressed in the transfer, was only so expressed on the basis of advice of agents dealing with the Land Titles Office. The plaintiff accepted that there was no "contract" to which the Contracts Review Act might apply; and so this part of the relief was abandoned. The plaintiff's undue influence case was only abandoned during the plaintiff's final submissions. 8But before commencing a narrative of relevant facts the Court finds, some account of the credibility of the parties and other witnesses is useful. Other credibility findings are made about witnesses in the course of the narrative of relevant facts found. The Credibility of the Parties and their Witnesses 9The Plaintiff . The plaintiff, Mr Ryan, was a surprisingly alert witness for his age. Although wearied by multiple medical problems at times his comprehension of questions, sometimes put to him with complex syntax, was good but a little slow. He was able to discriminate quite well between parts of alleged conversations with which he agreed and parts with which he disagreed. I found him to be a generally reliable witness. 10Mr Ryan was a man of strong likes and dislikes, fixed ideas and firm opinions. Powerful convictions had the capacity to cloud his recollections of events. Mr Ryan, for example, was very certain that Mr Dakin did not spend very much time with him in any of the December 2006 - January 2007 legal conferences advising about the transfer. He denied that Mr Dakin advised him alone in the absence of Mr and Mrs Aboody. In my view, he was mistaken about both of these things. Mr Dakin saw him alone and had a detailed conversation with him. Mr Dakin and Mr and Mrs Aboody attested to this. But after Mr Ryan shifted allegiance away from Mr and Mrs Aboody, he convinced himself otherwise. 11Mr Ryan's likes and dislikes changed over time. He did not seem readily able to get on with both sides in any debate. He seemed to have trouble reconciling himself with two people, who did not like each other. He felt his allegiances needed to be with one side or with the other, across any personal divide. Perhaps this was a function of his age. But Mr Ryan's opinion of and relationship with others could also change for apparently slight reasons that would not ordinarily cause a rift in other human relationships. His dislike of Mr and Mrs Aboody at the time of the hearing was only to be explained by the most trivial of reasons: Mrs Aboody had interrupted him with her personal visit, when he was receiving some medical attention at his home. That the interruption might possibly have been for his own good, did not trouble Mr Ryan. The detail of this incident is covered later in these reasons. 12Mr John Ryan . Mr John Ryan, the plaintiff's son, and one of Mrs Aboody's brothers, was a blunt and direct witness. Rather like his father he was a man of firm and apparently unshakeable opinions. He had no difficulty telling his cross-examiner how he disagreed with parts of his cross-examination. He denied the suggestion that he had influenced his father to change his mind to reverse the January 2007 transfer. From what I saw of the plaintiff in the witness box, he did not need much encouragement from his son John to change his mind or to launch this litigation. At hearing Mr Ryan was determined to set the gift aside and determined that Mr and Mrs Aboody had done him an injustice. Whilst the influence on his father's opinions of a son now living with his father cannot be discounted, the charge that Mr John Ryan was a major influence behind his father's decision to commence this litigation, and more importantly to have his father distort his evidence to favour Mr John Ryan, is not made out. 13Melissa Stanford . The only non-family member giving evidence in the plaintiff's case was Ms Melissa Stanford, a neighbour of the Ryans. She was a direct and helpful witness whose credit was not challenged in cross-examination, and whose evidence I accept. Although her evidence was only of peripheral relevance. 14Mr Dakin . The defendants called Michael Gary Dakin to give evidence. In January 2007 he was the principal of the firm Dakin Law. Later that same year he was appointed a Magistrate of the Local Court. He gave evidence under subpoena about the instructions that he received in relation to the transfer and about his execution of those instructions. His Honour Magistrate Dakin will be referred to throughout these reasons by his title at the time of the events in question. 15Mr Dakin's capacity to give complete evidence about the transaction was hampered by the apparent incompleteness of the firm's file. At the time of hearing it was over 4 years since he had been appointed to the bench and sold his practice to another firm of solicitors, Vince Boss and Associates. His file was missing file notes of some of the meetings that had taken place between himself and Mr Ryan in December 2006 and on 22 January 2007. Although it was apparent from documentary evidence that he must have had meetings at those times. Also missing from his file were: (1) the valuations that had been obtained to show the value of the Iluka property to the Office of State Revenue for stamp duty purposes; (2) the usual correspondence file that Mr Dakin said that he would expect to accompany a transaction file such as this one; and (3) the fee disclosure and costs documents required under the Legal Profession Act 2004 between solicitor and client. Mr Dakin initially thought that the Certificate of Title and Transfer from Mr Ryan to Mr and Mrs Aboody were also missing; but these were located in the course of preparation of the proceedings and were tendered in evidence. 16The absence of these documents from the file was not the fault of Mr Dakin: the sale of the business and multiple handling of the files in the ensuing period seems to explain why they were not in the file. The missing material was not located. But its absence makes it difficult for Mr Dakin to say: what advice he had or had not given to Mr Ryan in relation to the transfer; what dates he had met Mr Ryan; and what correspondence issued on his behalf. 17Despite those limitations in my view Mr Dakin attempted to give the very best evidence he could of his dealings with Mr Ryan and Mr and Mrs Aboody. He frankly explained that he had no memory of the transaction or the parties. He could not summon up any mental picture of Mr Ryan or Mr and Mrs Aboody. He confessed that he had not even recognised the parties to the proceedings outside Court. With the apparently busy practice that he ran at the time, this is perhaps not entirely surprising. So he was left to draw inferences about what he was likely to have done in late 2006 and early 2007 from his extant file notes and his general practice. Because of his efforts in inferring from his usual practice, he was able to give a reasonably good account of what he expected that he did do in advising Mr Ryan in December 2006 - January 2007, an account I largely accept. 18I found Mr Dakin to be a witness who was clearly attempting to assist the Court to the extent that his memory and contemporaneous documents permitted. Much about what did and did not happen in his dealings with Mr Ryan can be determined from his evidence. He was quite candid in explaining what he did and did not say to Mr Ryan, when advising him. I have ultimately found that his advice was not adequate, in a demanding environment, but I was much assisted in this by his candour. 19Mrs Aboody. Mr Ryan's daughter, Mrs Aboody, was a good witness. She was frank and prepared to state things as they were. She had trouble recalling aspects of the transaction and did not recall parts of what happened. But this did not seem to me to be the result of deliberate obfuscation of the truth on her part. But I do not accept limited parts of her evidence, in relation to her perception of aspects of her father's opinions and behaviour. It was suggested that Mr and Mrs Aboody's affidavits showed "marked similarity" in places. That was true but I do not conclude that was the result of any inappropriate discussion of the evidence between them before they swore their affidavits. 20Mr Aboody . Mr Ryan's son-in-law was a reliable witness. He was very clear that he would have been quite happy if the transfer had been made to Mrs Aboody alone. I infer that Mrs Aboody asked Mr Dakin for his and her husband's names to be recorded as transferees on the January 2007 transfer of the Iluka property. I think this was important to her as she wished to formally express the joint nature of all their property as they had been married for 46 years at the time of this gift. 21Although I have ultimately found in these reasons and that the January 2007 transfer of the Iluka property should be set aside, this is not a case, unlike some others, where Mr and Mrs Aboody were urging the making of this gift upon Mr Ryan. The plaintiff himself was a powerful driving force by his insistence and persistence in the effecting of this gift. But Mr and Mrs Aboody's acceptance of the benefit of the gift was ultimately clouded by their knowledge of and taking advantage of the special disabilities from which he suffered when he made the gift. Mr Len Ryan and his family - 2006 to 2011 22These reasons commence with a survey of the parties' dealings, which survey sets out and make findings as to the uncontested facts and decides all contested questions of fact. 23The dealings between Mr Ryan, Mr and Mrs Aboody and other family members giving rise to the issues in these proceedings may be divided into three time periods. (a) The Ryan family until November 2006 (b) Mr Ryan gives instructions to Mr Dakin - December 2006 and January 2007 (c) Mr Ryan changes his mind - 2007 to 2010 (a) The Ryan Family until November 2006 24The plaintiff was born on 2 January 1917 and thus was 94 years of age at the time of trial. The plaintiff has three children, the first defendant, Mrs Jennifer Aboody, a son, Mr John Ryan and another daughter, Mrs Lorraine Margaret Serone. Mrs Serone took no part in these proceedings. It was common ground that the plaintiff had been estranged from her for about 30 years. 25The plaintiff served a comparatively lengthy period in the armed services during World War 2, from July 1940 to December 1945. As a member of the 2 nd A.I.F. he saw active service for a total of 795 days but he was overseas on service related duties for 896 days. He fought in a machine gun battalion in Middle East and in New Guinea and Borneo. He sustained many injuries as a result of his war service, including to his right elbow and his right knee. He contracted malaria whilst in New Guinea, a disease which still affected him from time to time into his 90s. He received an army disability pension about 1979 due to his injuries and the various conditions from which he suffered as a result of his war service. No precise evidence was given about the exact level of the plaintiff's veterans' benefits but it can be inferred from his war service and his consequent disabilities that the pension was of considerable financial benefit to him. 26The plaintiff was married to his wife Vera for many years until July 2002. Vera and the plaintiff purchased the Iluka property together in 1980 as joint tenants, funding it through the Defence Services Corporation. Mr John Ryan is a builder. After the plaintiff and Vera purchased the Iluka property, John Ryan built their residence on the site. After Vera Ryan died in 2002 title to the Iluka property passed to the plaintiff. Since his wife's death he has lived in the Iluka property alone. 27Looking especially at the calendar years 2004, 2005 and 2006 it is the plaintiff's recollection, which I accept is generally accurate in this respect, that he did not speak to his children John or Lorraine but he did have regular contact with Mr and Mrs Aboody. More explanation is needed of the plaintiff's closeness to Mr and Mrs Aboody. 28The relationship with Mr and Mrs Aboody in that three-year period, 2004 - 2006 was close. They would often come to the Iluka property to visit him and stay for a few days. Mrs Aboody would assist her father, cleaning around the house and tidying it up and undertaking those various tasks that the plaintiff himself found difficult to manage. Mrs Aboody would also take the plaintiff to dental and medical appointments. The plaintiff reciprocated by giving them baskets of food, vegetables that he had grown in his garden, and fish that he had caught. This closeness led to the conversations about giving the Iluka property to Mr and Mrs Aboody. But there was nothing feigned or artificial about this relationship. Mr John Ryan suggested in evidence that Mr and Mrs Aboody were deliberately getting close to the plaintiff so that he would prefer them over the other two children in his will or by gift. But I do not accept this contention. Mr and Mrs Aboody seemed to the Court to be solely motivated by the need to ensure that Mr Ryan was looked after, in circumstances where he was not having regular contact with his other two children, Mr John Ryan and Mrs Lorraine Serone. Ms Stanford did not think the defendants visited the plaintiff for very long but I do not believe she was in a sufficiently good position to observe exactly how long they stayed. 29In the period 2004 - 2006 and up until the hearing, the plaintiff and Mrs Serone continued their previous estrangement. The plaintiff hardly spoke to his son John Ryan in the three years 2004 - 2006. He and John had had a "difference of opinion over the phone and that was it, "according to Mr John Ryan. The minor nature of that misunderstanding led to a complete rift between father and son for many years, which reveals a mercurial yet stubborn aspect of the plaintiff's personality. But this rift did resolve by about mid-2007. 30The plaintiff is a member of the Returned Services League and a regular reader of its magazine Reveille . It was articles that he read in Reveille and discussions he held with other returned servicemen that led by early 2007 to him holding what he himself describes as, "deeply held fears that if the Labor Party was elected to government they would take my war pension off me because I owned the [Iluka] property and had some money in the bank or they would take the property when I died". The plaintiff says, and I accept, he would often discuss those views with other returned soldiers who told him that they shared similar views. He wore his political allegiances quite openly, "because of this I have never liked or trusted the Labor Party. I don't and never could". 31Mr Ryan says, and I accept, that in his discussions with his daughter Mrs Aboody about his concerns he began to outline a plan to her to defeat the threat from the Labor Party. He said to her words to the effect:- "Jenny, I'm thinking of giving the house to you so that if Labour's elected they can't take my war pension or the house off me if it's in your name." 32Mr Ryan also re calls, and I accept, that he had another discussion with Mrs Aboody in December 2006 in which he said to her:- "Look, I'm worried that if the Labour Party's elected they're going to cut my war pension right back if my house is worth too much. I don't know what this mob will do. I don't trust them. They might even take my house when I go. I don't know what to do but I don't want to lose everything I've worked for. Maybe, I could just give the place to you?'" 33This soon led to the instructions to Mr Dakin. But one curious aspect of Mr Ryan turning to Mr and Mrs Aboody to deal with his fears of the Labor Party taking his property, was that often in the past Mr Ryan had disagreed with Mr and Mrs Aboody about politics. Their views were considerably less conservative than were his, to the point that politics were a permanent "no go on" area in family discussions. Mr Ryan turned to Mr and Mrs Aboody, because his perception was that there was no one else close to him, who could help with his perceived need to protect the Iluka property from the Australian Labor Party. 34In late 2006, when these discussions took place, Mr Ryan's health was poor. I accept his evidence and that Melissa Stanford about this. Indeed it can be inferred from Mr and Mrs Aboody's evidence of their regular visits to the Iluka property and my findings as to the genuineness of their solicitude for Mr Ryan's welfare at that time, that he was suffering serious health problems by the second half of 2006. The extent to which Mr Ryan's health problems contributed to his holding the single-minded opinions that he did was not explored in evidence. But his poor health was connected, I infer, in his mind with the urgent need to protect his pension from external interference. His health and his opinions were, in my view, directly connected in this way. His poor health also made him more dependent upon carers for his daily needs. 35I accept Ms Melissa Stanford's evidence about the poor state the plaintiff's health in late 2006. Ms Stanford is a neighbour of the plaintiff. She noticed a "definite change and deterioration" in Mr Ryan's "health and mental well-being" following his 90th birthday in January 2007. She noticed that his behaviour was becoming erratic; he was involved in minor accidents and seemed to become inappropriately angry with children in the street. I accept all her evidence as to these matters. 36The plaintiff himself speaks of his poor health at this time and put in evidence his medical records from the Union Street Family Medical Practice he consulted between April 2006 and August 2010. The plaintiff's evidence, which I accept, and the objective medical materials support the findings about the plaintiff's medical condition made in the balance of this paragraph. The plaintiff suffered from recurrent painful and severe skin rashes and swelling of the feet. Whether this was from his malaria or shingles seems to be open on the medical evidence but he undoubtedly suffered these symptoms. These and his other medical problems caused him constant stress and irritability. He suffered cramps headaches, chest pain and chest swelling from time to time. Mr Ryan also suffered from constipation, a need to struggle for his breath, depression (not a clinical diagnosis), insomnia, a propensity to fatigue after physical activity and anxiety. He had suffered a condition involving massive swelling of his testicles for which he had some treatment but he was left with fluid and constant aching in that part of his body. Associated with this condition he had a fear of suffering from prostate cancer. A number of his friends had died from prostate cancer and he was afraid that he would die from it too. The plaintiff had impaired hearing. Although he was able to give evidence without any special amplification in the courtroom, it was clear that it was always necessary to speak very loudly and clearly for him to hear others. 37Because of his various health problems I accept that the plaintiff thought in January 2007 that he had only a limited time to live. This is supported by part of Mr Dakin's surviving notes of a meeting with the plaintiff on 30 January 2007, which records the plaintiff saying to Mr Dakin "I'm not terribly worried, I wanted them to have [the interest]. I don't think I'll be around much longer" after which Mr Dakin records "wants to proceed". I infer that one of the reasons Mr Ryan wished to proceed with the gift was a fear that because of his various medical conditions he did not have long to live. 38I accept Mrs Aboody's evidence that at first she resisted her father's wishes to gift to the lluka property to her. I accept that she arranged for her husband to check with Centrelink whether there was any possibility that Mr Ryan might lose his pension. I accept that as a result of those enquiries she explained to her father the result of Mr Aboody's enquiries, "dad Tony had spoken with Centrelink. They assured him in no uncertain terms that nobody would be taking away your war pension. They also said that you could have your own home to any value and have assets including a car, boat and cash up to around $700,000. They also explained that the War part of your pension was not means tested." 39I accept Mrs Aboody's evidence that after explaining the result of her husband's enquiries to her father, she said to him, "you can now put that to rest now, you do not need to worry. You have nothing to worry about if the Labor government is elected." But despite her saying this, in my view, she could not have been reassured that her father's mind was put at rest about this threat to his property. He continued to hold his fear of the Labor Party. I find that Mr Ryan did not at any stage clearly affirm that he accepted that there was, as a result of the Aboody's enquiries, no reason to him to fear on account of the election of a federal Labor government in 2007. Indeed, the timing of this gift is significant. As Australia prepared for a federal election at some stage in 2007 Mr Ryan's views never wavered. As Mrs Aboody herself said, "Dad was adamant what he wanted to do, and we went along with it." And again, when it was suggested by cross-examining counsel to Mrs Aboody that she did not have to go along with her father's wishes, she said "I did. I felt I did, for dad. It was what he wanted to do. It was his home. He was very adamant, very adamant." Mrs Aboody says that her father expressed other reasons to her for wanting to make the gift, such as the alleged ingratitude to him of Mr John Ryan and his lack of a relationship with Mr John Ryan. I accept that the plaintiff did say these things to Mrs Aboody. But the plaintiff was never freed of his fear of the election of a federal Labor government in 2007. And in my view Mrs Aboody was aware of that and of the fact that this fear was an important actuating force in the plaintiff's decision to gift the Iluka property to her. 40Mrs Aboody professed that she did not realise that Mr Ryan's fears were "something driven by the Labor Party" and therefore may not be cured by an inquiriy of Centrelink. Although she denies the suggestion that she thought her father was still driven by these concerns, in my view she knew of his continuing fear of the Labor Party, and what he thought its election might do to him. Politics remained a point of no discussions between them, "...we didn't talk about it a lot, like I said". 41Mr Aboody's evidence supports the same conclusion. Mr Aboody told the plaintiff the result of his enquiries with Centrelink. Mr Aboody said that he did not consider that the plaintiff might not have believed what Mr Aboody (and his wife) was telling the plaintiff. Mr Aboody denied believing that the proposed gift was "mixed up with [the plaintiffs] concerns" that the federal Labor Party was going to act directly against the plaintiff's property interests. I do not accept this part of Mr Aboody's evidence. The persistent and adamant nature of the plaintiff's opinions on the subject did not change. Mr Aboody could not in my view have believed this fear had somehow left the plaintiff's mind. 42Mr Dakin did not remember enough to confirm whether or not the plaintiff's fear of the election of a Labor government persisted. Although Mr Dakin's file note of 30 January 2007 says at one point, quoting the plaintiff, "I'm not terribly worried" the plaintiff's firm attitude that he wanted to proceed nevertheless comes through the note. 43Mrs Aboody's conversation with her father ultimately led to her making enquiries with solicitors about what might be done to give effect to his wishes. I largely accept Mrs Aboody's evidence recorded in the next section as to how this came about. (b) The Instructions to Mr Dakin - December 2006 and January 2007 44This section of these reasons includes findings about Mrs Aboody's and her husband's and Mr Ryan's contact with and instructions to Mr Dakin in the period December 2006 to January 2007. A later section analyses the precise evidence that bears upon the question of whether Mr Dakin was acting for both parties on this transfer. 45I accept Mrs Aboody's account that in about September or October 2006 Mr Ryan said to her, "I want to go ahead with the house. Who's that solicitor of yours?" She mentioned the name of Mr Richard Harris and said "...are you sure you want to do this?" He declared he had "given this a lot of thought" and encouraged her to initiate contact with a solicitor. She spoke with Mr Harris who wisely emphasised the need for an independent solicitor for her father. He was not involved after this. A referral from a friend, took Mrs Aboody to Mr Dakin. 46I further accept Mrs Aboody's account that she arranged an appointment to see Mr Dakin in December 2006. Mr Ryan does not recall this appointment but it must have taken place, on the basis of this contact, as Mr Dakin took instructions for Mr Ryan which Mr Ryan executed when he visited Mr Dakin's office on 22 January 2007. On this first December visit I accept Mrs Aboody's account: that a conversation involving herself, her husband and Mr Aboody occurred; that Mr Ryan expressed a view that Mrs Aboody was the one who had looked after him and that he wanted to benefit her by will and with a gift of the Iluka property. Mr Dakin then took some instructions from Mr Ryan on his own. These instructions were for a will, which gave the whole of his estate to Mr and Mrs Aboody and a statutory declaration explaining why Mr John Ryan and Mrs Serone were not included in the will. This was the will executed on 22 January, 2007. A further consultation on 30 January 2011, completed the execution of documents for the transfer of the Iluka property. The final conveyancing for the transfer was completed in the first half of February 2007. 47This history led to the principal contest in the proceedings as to whether Mr Dakin acted just for Mr Ryan as transferor, or whether he also acted for Mr and Mrs Aboody as transferees; if the latter his advice was not independent: Powell v Powell (1900) 1 Ch 243. Although there were many indications that Mr Dakin acted for Mr Ryan alone, and indeed that is what he tried to do in Mr Ryan's interests, in my view, the way that he took and then executed his instructions meant that he did act for both parties, to the transfer. As a result his advice was not independent. 48Mr Dakin went a long way towards giving Mr Ryan independent advice. Principally he did not advise Mr Ryan in the presence of Mr and Mrs Aboody. Mr Dakin saw him and took some instructions from him separately from Mr and Mrs Aboody. Mr Ryan's evidence was that Mr Dakin had not separately advised him at any stage in December 2006 - January 2007. But I do not accept Mr Ryan on this issue. Both Mr and Mrs Aboody and Mr Dakin say Mr Dakin had a separate conference with Mr Ryan. The Aboody's were likely to remember this. And I accept Mrs Aboody's evidence to the effect that Mr Dakin said to them all at their first meeting in December 2006 "Jenny and Tony, I need to see Len alone. Could you please wait outside while I do this?" Mr Aboody's evidence was to similar effect. Once Mr Dakin was with Mr Ryan he advised him from Mr Ryan's own perspective. The content and completeness of that advice are considered later in these reasons. Mr Dakin saw Mr Ryan on a number of occasions as part of a deliberate plan on his part to give Mr Ryan an opportunity to "cool off". He first conferred with Mr Ryan in December 2006 when he took complete instructions including instructions in relation to Mr Ryan's will. He did not arrange for them to meet again until 22 January 2007 before Mr Ryan communicated his final decision about the transfer, which decision is recorded in Mr Dakin's file note of that date as [client] "wants to proceed". I accept Mrs Aboody's evidence as to Mr Ryan's confirming on 22 January to Mr Dakin that he had not changed his mind and Mr Dakin then proposing to speak with him alone:- "Mr Dakin: 'Have you though this over Len, are you still happy to go ahead with it?' Mr Ryan: 'Yes. I have thought this over for a long time.' Mr Dakin: 'I have got all the documents here ready to go. But before we go any further, can I ask you Jenny and Tony to leave the room for a moment? I need to speak with Len in private'." 49But despite these procedural precautions Mr Dakin did end up acting for both parties in the transaction, a matter that can be inferred both from what he said and what he did. An important indication of this is how Mr Dakin described himself in the form of transfer. 50Mr Dakin had Mr Ryan sign the transfer himself as transferor. Then he expressly declared himself to be the transferees' solicitor by signing on behalf of the transferees in that capacity. When the transfer was accepted on behalf of the transferees the form provides for either the transferees personally or their solicitor to execute the instrument to indicate acceptance. The instrument at its foot actually provides as follows:- "Certified correct for the purposes of the Real Property Act 1900 by the transferor. Signature of transferor [signature of L.G.Ryan] Certified correct for the purposes of the Real Property Act 1900 by the person whose signature appears below. Signature: [signature of Michael Gary Dakin] Signatory's name: Michael Gary Dakin Signatory's capacity: transferee's solicitor" 51Real Property Act , s 117 (1A) authorizes the Registrar General to reject dealings if such certificates are not provided. Penalties are imposed for false or negligent certification: Real Property Act , s 117(2). 52When asked whether he could have asked Mr and Mrs Aboody to sign themselves rather than by him as their solicitor, Mr Dakin said that he had it executed the way that he did "for convenience". Undoubtedly, it was convenient to sign on behalf of the transferees. But he was certifying the instrument as "correct for the purposes of the Real Property Act ", as Mr and Mrs Aboody's solicitor. By doing so he took upon himself the role of solicitor for the transferees to at least the limited extent of certifying the correctness of the transfer for the transferees. But his actual role on behalf of the transferees went beyond a mere form of declaration. 53The arrangement with Mr Dakin was that Mr and Mrs Aboody would pay his fees although Mr Ryan remained the client to whom Mr Ryan would report. At the conclusion of the transaction on 2 March 2007 Mr Dakin did report to Mr Ryan by letter, thanking him for his instructions, and recording that Mr and Mrs Aboody would be paying his fees. He said, "you will see that your life estate over the property has been protected on registration. I have places the original title deed in safe custody pending any further instructions". 54But in the memorandum of fees he sent to Mr and Mrs Aboody he went a little further than just asking for payment. The narrative in the bill recorded that the time (of 1.75 hours) for which he charged included, "....further conference to ensure Mr Ryan was aware of effects of the transaction and reporting to you at the outcome of the proceedings " [emphasis added]. Mr Dakin felt an obligation to give a report to Mr and Mrs Aboody to complete his instructions. The evidence did not explore how extensive this report was but it is to be inferred from the form of this fee note that at least discharging a function of giving Mr and Mrs Aboody a summary of what had happened in the transaction, a function consistent with his acting for them in the transaction. 55There were other indications that Mr Dakin acted as a solicitor in relation to the transfer for Mr and Mrs Aboody. Mr Dakin acknowledged that ordinarily if he were acting as the solicitor for the transferee and not for the transferor on a transaction such as this that he would have: (1) attended to all aspects of the calculation and payment of stamp duty including obtaining a valuation for stamp duty purposes; (2) prepared the transfer for submission to the transferor for signature, so that it was in a suitable form when handed over at settlement; and (3) collected the Certificate of Title and lodged it, together with the transfer for registration. At each of these stages Mr Dakin did work that did not differentiate whether he was acting as the solicitor for Mr Ryan or as solicitor for Mr and Mrs Aboody. I will deal with each of these in turn. 56(1) Obtaining a Valuation. A number of aspects of obtaining a valuation were discussed jointly by Mr Dakin with Mr Ryan and Mr and Mrs Aboody. Mrs Aboody said, and I accept as correct, that Mr Dakin said to them all in December, 2006 (but mainly directed to Mr and Mrs Aboody): "Mr Dakin: 'Well there are a few things that need to be done. You will need a valuation for stamp duty, search of the title and you will have to pay stamp duty.' Mr Abood: 'Do you know anybody that does the valuation?' Mr Dakin: 'We use Bennett Frogley'." 57Bennett Frogley were engaged to perform a valuation for stamp duty purposes. This was not entirely left to Mr and Mrs Aboody to do. Mr Dakin took on the role of sending the Bennett and Frogley Valuation Report of 18 December 2006 together with Mr and Mrs Aboody's cheque for the expected amount of Stamp Duty of $7,242.00 to the Office of State Revenue. Obtaining the valuation was in the purchaser's interests and Mr Dakin collected the funds for stamp duty from them and sent it forward. It is difficult to explain this conduct as acting for the transferor. Mr Ryan did not specifically authorize Mr Dakin in undertaking those tasks. 58(2) Preparing the Transfer. Mr Dakin also prepared the transfer, a task that would normally be undertaken by the transferees or their solicitor. He had a discussion jointly with Mr Ryan and Mr and Mrs Aboody as to what the form of transfer would look like. I accept Mrs Aboody's evidence that the discussion was to the following effect:- "Mrs Aboody: 'I want Dad to have a legal right to live in the house for as long as he lives or would like to.' Mr Dakin: 'We could give Len [Mr Ryan] a legal right. Len do you realise that in giving the house to Jenny [Mrs Aboody] you will be giving it to Tony [Mr Aboody]?' Mr Ryan: 'Yes'. Mr Dakin: 'Len, is anybody pressuring you to do this?' Mr Ryan: 'No'. Mrs Aboody: 'Dad, are you sure you want to go ahead with this?' Mr Ryan: 'Yes'." 59Mrs Aboody had told Mr Dakin that she wanted her husband to be a co-transferee. Mr Ryan had his own issues with Mr Aboody and I infer would have been quite content if Mr Aboody were not a transferee. Mr Aboody felt much the same way. But Mrs Aboody wanted it this way. Mr Dakin accommodated her preferences on this and presented the decision to Mr Ryan as a fait accompli. In this important respect he was acting for the transferees. 60Mr Dakin prepared the draft transfer in consultation with Esperon Law Agents, his agents dealing with the Land Titles Office. He checked with them how best to draft the transfer to reflect the retention of a life estate by Mr Ryan. He liaised with Mr Cordingly at Esperon that in the Transferee box of the Transfer that Mr Ryan should be described "as to a life tenant" and that Mr and Mrs Aboody" should be described as entitled to an estate in remainder". Mr Dakin acted in accordance with Mr Cordingly's suggestions. 61One of the other decisions that needed to be made on behalf of the transferees was whether they would receive their interest in remainder as tenants in common or as joint tenants. This was really of no interest to the transferor. Indeed the draft transfer that Mr Cordingly sent to Mr Dakin after their discussion, on this subject said in draft "As? (JOINT TENANTS) or (T IN C)". Mr and Mrs Aboody gave instructions to Mr Dakin that their interest in remainder would be held by them as joint tenants. That is what the final form of transfer recorded. Neither Mr Dakin nor Mr and Mrs Aboody recalled giving specific instructions about recording the remainder interest as a joint tenancy. But this must have happened. Mr Dakin was not a person who would have just made such a choice without consulting his client. These were instructions that had nothing to do with the transferor and were given on behalf of the transferees. The instructions assume the couple were making more than just a joint commercial investment, but something with family significance. The taking and execution of such instructions is more than a mere ministerial act on behalf of the transferees. 62(3) Moving to Registration. Mr Dakin made all the necessary steps to achieve registration. He gave instructions to Esperon for that in a "Registration Memo" he sent to Esperon. He did so on 30 January 2007, once he had the transfer signed by Mr Ryan. He requested that Esperon attend to the Office of State Revenue and Land and Property Information, and he forwarded the following documents, the Certificate of Title, the Transfer, a cheque to the Office of State Revenue, the Bennett & Frogley Valuation, and Notice of Sale (to the Local Council). 63There is no evidence that Mr Ryan gave specific instructions to Mr Dakin that he wanted Mr Dakin, as part of the execution of his role as solicitor for the transferor, to take on a task of which would normally be done by the solicitor for the transferees. I infer that Mr Dakin did this on behalf of Mr and Mrs Aboody. 64Mrs Aboody cannot recall any discussion about the possibility of her long time solicitor, Mr Richard Harris, acting for her and her husband and having Mr Dakin acting for Mr Ryan. Given the way the instructions were unfolding, engaging Mr Harris would have been the clearest way of ensuring that Mr Ryan was independently advised. (c) Mr Ryan changes his mind -2007 -2010 65It was only about four months before Mr Ryan began having regrets about his gift. In about May 2007, Mr Ryan recalls a conversation with Mrs Aboody, which I accept took place, in the following terms:- "Mr Ryan: 'I might want the place back in my name at some stage Jenny. What if I want the property back down the track?' Mrs Aboody: 'Don't worry Dad, the house is yours, it's always been yours. If you want it all back in your name, all you've got to do is give us the thirty grand back we paid for stamp duty and legal fees'." 66There was a contradiction in Mrs Aboody's early position which expressed some of the problems with the advice given to Mr Ryan. The house may have been "Mr Ryan's" but if he actually wanted to use it, "all you've got to do is give us the thirty grand back". Its possible use for his financial benefit without a retransfer and the incurring of further legal fees and stamp duty had not been discussed. 67Mr John Ryan was not aware of the transfer when it happened. Mrs Aboody said, and I accept, that Mr Ryan told her that he would tell Mr John Ryan. Mrs Aboody thought this was appropriate Mr John Ryan later found out about what had happened almost by accident in the following conversation, whilst he was fixing a screen door at the Iluka property. "Me: 'Let me fix this door Dad'. Dad: 'Don't worry about it John. It's not mine anymore. It's Jenny's'. Me: 'What the hell are you talking about?' Dad: 'The house is Jenny's now. If you want to fix the door do it or leave it for them to fix'. Me: 'Why the bloody hell did you do that, Dad?' Dad: 'I thought the Labour Government were going to take my pension off or something'. Me: 'Bloody hell Dad, they're not gonna do that. They should have told you that was not going to happen'." ... "Me: 'How come you never told me about the house being transferred to you? It's a bit rough that you didn't even bother to tell me'. Jenny: 'Dad didn't want you to know. He said he'd tell you himself'. Me: 'You should've told me Jenny. You're my sister. It's a bit rude, don't you think. Why wasn't I told?' Jenny: 'Well that's what Dad wanted to do. Dad said he would talk to you'." 68This conversation caused Mr John Ryan to act. He confronted his father, at first with little result. 69This conversation between John Ryan and his father took place in about August or September 2008. It took him some time but eventually he went over to see his sister, Mrs Aboody, in March 2009. Mr John Ryan expressed disquiet at the fact that she had not told him about the transaction with their father. I accept Mr John Ryan's evidence that Mrs Aboody said to him, "Dad didn't want you to know. He said he would tell you himself". I find that the plaintiff did tell Mrs Aboody that he, the plaintiff, would inform Mr John Ryan about the transaction but he failed to do so. These statements are quite consistent with Mrs Aboody's oral evidence in which she repeatedly says that she was "uncomfortable" with aspects of the transaction, including that her siblings had been excluded from it. Mr John Ryan says that he confronted his father with this later and was told that he did not undertake to tell John Ryan about the transaction. I do not accept that this is what happened. The plaintiff forgot what he had undertaken to do to inform his son. 70John Ryan undertook a title search of the Iluka property, found the transfer and discussed it with his father. This led to a confrontation shortly before Christmas 2009 between Mrs Aboody, the plaintiff and Mr John Ryan. I accept that Mrs Aboody said in the course of this conversation that she and her husband were prepared to transfer the property back if the plaintiff would give them the stamp duty back. 71By Christmas 2009 the plaintiff became unwell and Mr John Ryan began looking for legal advice, advice that ultimately led to the commencement of these proceedings in 2010. 72Perhaps the final turning point in the plaintiff's attitude to his prior transfer of the Iluka property was an argument that he had with Mr and Mrs Aboody in December 2009 at the property. As he recalls it, in his account that I largely accept, Mr and Mrs Aboody "came barging into my house" whilst he was having a medical checkup, under the care of a carer from the Department of Veterans Affairs. Offended at Mr and Mrs Aboody's intrusion, the plaintiff initiated hostilities by saying, "you two can bloody well wait outside until Trish has finished my checkup". He says that Mr and Mrs Aboody said, "There is nothing wrong with your heart since you have been back from hospital" and accused him of being a "cranky old bastard". I do not accept that Mr and Mrs Aboody said these things. But from here I find that the argument escalated, going over various past events, to the point that Mr and Mrs Aboody left the house. It was shortly after this that the plaintiff asked them for the property back. Independence and Adequacy of Mr Dakin's Advice 73Mr and Mrs Aboody say that Mr Dakin gave independent advice to Mr Ryan. Indeed they urge the conclusion that they did not engage in unconscionable conduct because they did all they could to ensure that the plaintiff had a consultation with an independent solicitor. This they submit negates any inference that they took advantage of any special disability of Mr Ryan. 74This raises the question whether Mr Dakin's advice was independent. In this section the Court concludes that Mr Dakin's advice was not independent and therefore considers whether the defendants achieved their purpose. It also concludes that the content of Mr Dakin's advice was not in fact sufficient to show "the propriety of the transaction" even if it were to be argued that Mr Dakin's intervention neutralized any special disability suffered by the plaintiff. 75The principles that decide whether legal advice is "independent" and sufficient may be concisely stated. A donee of a gift does not discharge the burden of showing that the donor has had independent advice by showing that the one solicitor acted for both parties; "the solicitor must be independent of the donee in fact, and not merely in name and this he cannot be if he is solicitor for both": Powell v Powell (1900) 1 Ch 243, at 246-247, and Bridgewater v Leahy (1998) 194 CLR 457 at 485, 486. I have already concluded that Mr Dakin acted both for Mr Ryan and for Mr and Mrs Aboody in this transaction in fact and not just in name. His advice to Mr Ryan was therefore not independent. Mr and Mrs Aboody have not demonstrated that Mr Ryan has otherwise had independent advice. 76The reason that a solicitor acting for both parties cannot discharge the burden of showing that a donee has received independent advice, follows from the demanding standard of the advice that a solicitor must give to a donee in order for the gift to be effective. Farwell LJ explained this standard in Powell v Powell (1900) 1 Ch 243, at 247, "the solicitor does not discharge his duty by satisfying himself simply that the donor understands and wishes to carry out the particular transaction. He must also satisfy himself that the gift is one that it is right and proper for the donor to make under all the circumstances; and if he is not so satisfied, his duty is to advise his client not to go on with transaction, and to refuse to act further for him if he persists". The solicitor must advise as to the propriety of the transaction from a basis of full information about the material facts: Riz v Perpetual Trustee Australia Ltd & Ors [2007] NSWSC 1153 at [116-126]. 77The advice Dakin Law actually gave the plaintiff also did not meet this demanding standard in my view. In my view, independent or not, Dakin Law should have advised, but did not advise, the plaintiff on the following matters; a question which was in issue in the proceedings, despite the defendants' contentions otherwise. 78Option of a Separate Solicitor. I have found that Mr Dakin acted for both parties. It was necessary therefore for Mr Dakin to give the plaintiff the clear option to have a solicitor acting for him alone and with a separate solicitor acting for the defendants on the other side of the transaction. I conclude that this option was not brought to Mr Ryan's attention. Mr Dakin admitted as much in evidence. Mr Dakin did not offer the opportunity to Mr Ryan to have "the assistance of a disinterested legal adviser": Longmate v Ledger (1860) 2 Giff 157 at 163 [66 ER 67 at 69] and Bridgewater v Leahy (1998) 194 CLR 457 at 486 [100]; because he did not explain to Mr Ryan that one of his options was to have his own legal adviser, separate from his acting jointly for Mr Ryan and for Mr and Mrs Aboody. 79Identification and Analysis of the plaintiff's reasons for the gift. There needed to be an analysis with the plaintiff of the reasons he wanted to transfer the property to the defendants. Mr Dakin did not satisfy himself that the gift was one that it was "right and proper" for Mr Ryan to make under the circumstances ( Powell v Powell (1900) 1 Ch 243, at 247) in that he showed no evidence of having objectively considered whether or not the transaction was one justified by Mr Ryan's expressed reasons for making it, or whether it was an improvident one from Mr Ryan's perspective. The approach that Mr Dakin seems to have taken is quite well recorded in his final file note of 30 January 2007, "understands the nature and effect of documents...wants to proceed". This approach really involved an acceptance on Mr Dakin's part of the plaintiff's existing attitude to the proposed gift. It did not involve a real challenge to the plaintifff's attitude. With a client of sound mind and body who was not demonstrating any distorted thinking, Mr Dakin's approach may well have been appropriate. But with a client who was, demonstrating fixed but distorted thinking, proposing to undertake a transaction that on its face appeared to be improvident, and was obviously frail and had some dependence on the recipients of the gift, the circumstances called for such a challenge. Teasing out the plaintiff's reasons for the gift may well have resulted in demonstrating, even to this temperamentally stubborn plaintiff, that the transfer of the Iluka property to Mr And Mrs Aboody was not a good idea. 80Distorted thinking underlies the gift. The plaintiff's motive for this transaction was self evidently irrational. No amount of dark brooding about Australian politics in 2007 could have led to a rational view there was any risk that a newly elected Labor Government was likely to take Mr Ryan's Iluka Property before his death, or from his estate after his death. No evidence was adduced to suggest that this consequence for Mr Ryan was a part of Australian Labor Party policy for the 2007 election, or that there was any other sound basis for the plaintiff's belief on this matter. A primary duty of a solicitor in Mr Dakin's position therefore was to ensure, once he ascertained his client's distorted thinking, that no element of this irrational view was being acted out in Mr Ryan's decision to gift the property to Mr and Mrs Aboody. In the absence of being satisfied as to the propriety of the transaction in this sense, a solicitor should, "advise his client not to go on with the transaction" ( Powell v Powell (1900) 1 Ch 243 at 247). Indeed if the client continued with such irrational instructions the solicitor's duty is to "refuse to act further for him [the client] if he persists" ( Powell v Powell (1900) 1 Ch 243). 81An Improvident Gift. This transaction was improvident from the plaintiff's perspective. It was improvident in the simple sense of that word in that the plaintiff was not making adequate provision for his financial future. The gift advantaged Mr and Mrs Aboody. Objectively viewed, the gift demonstrated no financial or personal advantage to Mr Ryan. Independent legal advice about the propriety of the transaction, from Mr Ryan's point of view, would have involved his lawyer pointing out that: he did not have to make the transfer; that he would have received no tangible financial advantage from the transfer; that he would have to seek Mr and Mrs Aboody's permission to raise funds on the property in the future if the transfer occurred and if he needed to raise funds to pay his medical or care expenses; that should he ever reconcile with his other children, or any of them, that he may be unable to undo this transaction to demonstrate his revived affection for his other children. In giving away the Iluka property, his only significant asset, the plaintiff was placing all his future financial needs, such as for hospitalization or aged care, in the discretion of the Aboody's. It could be predicted that given his age and state of health, that hospitalization and more intensive aged care were "on the cards" for him within a few years. On the other hand it has been argued that the defendants were in a good position to look after the plaintiff. But there are many alternative structures for the benefit for the plaintiff, which legal advice may have caused him to consider. It was quite foreseeable that if the plaintiff did change his mind, he would wish to undo this transaction entirely and call the property back. Proper advice could have proposed a provision in the transaction that would have allowed that to occur with little cost to him. The defendants submitted that the gift was not improvident, but their submissions did not answer the plaintiff's case of improvidence, which is accepted. 82The very structure of this transaction shows its improvidence and that the plaintiff misunderstood his own financial needs. The transaction could not have gone ahead without him holding the view either that (1) his life estate and his pension would fully and adequately meet his future financial needs without further concern on his part, or (2) the Aboody's would always use their remainder in the property for his benefit during his lifetime. As to (1), the obvious possibility of unexpected adverse circumstances or the plaintiff changing his mind about his own financial requirements makes clear that the plaintiff had not really considered his own true future financial needs. As to (2), if future uncertainties were to be cured by the defendants' good will towards the plaintiff, without doubting their good intentions, there was no formal assurance in the terms of the gift that the defendants' remainder interest in the Iluka property would be made available to be used for the plaintiff's benefit. 83Alternative ideas. There were alternatives that should have been discussed with Mr Ryan. Examinig Mr Ryan's reasons for the gift may well have led to discussion about alternative structures for the transaction that could have been more beneficial to him: gifting the property to Mr and Mrs Aboody in his will but retaining it in the meantime; setting up a trust or some provision which allowed the property to be re-transferred in defined circumstances; the intervention of a third party such as the NSW Trustee to administer his affairs; or indeed some restrictions upon the defendants' dealing with the property while the plaintiff was alive, were all obvious possibilities. There was no discussion between Mr Dakin and the plaintiff of these alternatives to the one chosen of the plaintiff, simply transferring the property to the defendants, with a life estate. Proper advice would have involved an identification and exploration of these alternatives. Once identified Mr Dakin should have gone through each of those alternatives in detail, with the plaintiff, so that he could see which of them might serve his interests as well or better than the course that he was proposing to take. 84Need for Financial Advice. The financial consequences for the plaintiff and his estate needed to be discussed. The plaintiff had no financial advice. What the future would look like with the property transferred was not really discussed with the plaintiff. This was a product of the fact that Mr Dakin approached the matter on the basis that the plaintiff's wishes should be given effect. The inability to re-transfer the property without obstacle was a major disadvantage in this transaction. Mr Dakin should have made quite clear to the defendant that the property was not readily able to be legally retransferred to him without further significant legal and stamp duty costs being incurred, costs which he or the Aboodys would somehow have to fund. That alone may have brought home to the plaintiff's mind the fact that some disadvantages arose for him in this transaction. 85In final submissions the plaintiff abandoned his claim for relief on the basis of undue influence. The evidence was all in on both sides at the time that this abandonment occurred. But as a result it has not been necessary to determine such relief. Unconscionable Conduct 86The principles that govern the setting aside of transactions for unconscionable conduct may be shortly stated through two passages in the judgment of Mason J in Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447, at 461 and 462. His Honour said (at 461):- "Historically courts have exercised jurisdiction to set aside contracts and other dealings on a variety of equitable grounds. They include fraud, misrepresentation, breach of fiduciary duty, undue influence and unconscionable conduct. In one sense they all constitute species of unconscionable conduct on the part of a party who stands to receive a benefit under a transaction which, in the eye of equity, cannot be enforced because to do so would be inconsistent with equity and good conscience. 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." 87Then his Honour drew attention to the concept of "special" disadvantage:- "... the situations mentioned are no more than particular exemplifications of an underlying general principle which may be invoked whenever one party by reason of some condition or circumstance is placed at a special disadvantage vis-à-vis another and unfair or unconscientious advantage is then taken of the opportunity thereby created. I qualify the word "disadvantage" by the adjective "special" in order to disavow any suggestion that the principle applies whenever there is some difference in the bargaining power of the parties and in order to emphasize that the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his own best interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party. " 88In my view much of the plaintiff's case about his state of mind and outlook in December 2006 and January 2007 can be accepted. The plaintiff's age, poor health, dependence on the defendants and his irrational obsessions about losing the Iluka property to a newly elected federal Labor government combined to incapacitate him from making a worthwhile judgment as to what was in his own best interests at the time of the transaction. And as a result, he was in my view, a person under a special disability in relation to this transfer. 89The defendants took unconscientious advantage of the plaintiff's special disability because the defendants were aware of the plaintiff's special disability and yet facilitated the gift to themselves. I have found that the plaintiff was not separately and independently advised and that the defendants are not able to rely upon the fact of independent advice as overcoming the plaintiff's special disability. But this is an unusual case, as my reasoning below shows. Even if it were to be demonstrated (contrary to my findings) that Mr Dakin's advice was independent, the defendants were in my view aware that the legal advice to the plaintiff was unlikely to have made any difference in one important respect, namely the plaintiff's irrational political fears that underlay the gift. The plaintiff had not even recanted these fears at the time of the hearing. The defendants were continuously aware of them. 90The plaintiff was 90 years of age. Although he had quite an active mind for a 90 year old, he certainly had developed a number of very fixed ideas that he expressed in the course of his evidence. By the time of the hearing the plaintiff seemed as determined to undo the transfer as he had been in late 2006 to make it happen. Age had made him very rigid in thinking. Perhaps he was always someone who had trouble absorbing the ideas of others. But at 90 this was a pronounced feature of his personality. Age had impaired his sound thinking about his own best interests. Firm advice was needed to ensure that any important idea that conflicted with his pre-conceived preferences actually got through to him. It is not clear that Mr Dakin ever recognised this aspect of the plaintiff's personality or took any steps to deal with it. In any event Mr Dakin's advice was not independent. 91The plaintiff's health was very poor at the time of this transaction. He had suffered indifferent health for a number of years, as my findings above record. At hearing he appeared to be extremely frail. It is not difficult to infer that he was in a somewhat similar condition four years before, at the time of the transaction. The medical evidence at the time supports this inference. This in my view had a tendency to make him dependent upon anyone to whom he looked to sustain his health and daily living. But as I have also found above, his poor health also exacerbated his irrational fear of losing his pension and his property. 92The plaintiff was heavily dependent upon the defendants. Due to the plaintiff's estrangement from his other children he became heavily reliant upon the defendants for assistance, for company, and to look after his daily needs. This meant, in my view, that when he wanted to give effect to a plan, as he did here, it was natural that he would turn to the people upon whom he was so dependent. I am not of the view that the defendants deliberately misused that dependence. They did not appear to the Court to deal with the plaintiff with that approach. On the other hand, in my view, apart from Mr Dakin the plaintiff did place complete reliance upon Mr and Mrs Aboody at the time of this gift and they were well aware of that reliance. 93The plaintiff was obsessed by the prospect that if the Australian Labor Party were elected to federal government in 2007 he would lose his pension and the Iluka property. The plaintiff continued to express this fear in the witness box during the hearing. He swore to this fear in his affidavit evidence. I accept his affidavit and oral evidence as to this. The idea was plainly irrational. The defendants admitted as much. No one adduced evidence in the proceedings that then incoming Labor Government had such a policy. This belief was clearly the product of distorted thinking. I have no doubt that the plaintiff firmly believed in late 2006 and early 2007 that this is what a federal Labor Government would do if elected to government in 2007. He believed it so firmly that the idea was almost unshakeable by ordinary persuasion. It was not only a distorted idea but it was an idea that seemed to form the top of a hierarchy of ideas, subordinating all competing notions and governing his thoughts and actions. As a result, in my view the plaintiff was incapable of thinking rationally in his own best interests about subject matters related to this fear. All of this, in my view, remained obvious to Mr and Mrs Aboody, despite even Mr Dakin's advice. It was clear to the Court at the time the plaintiff gave evidence. 94The defendants sought to answer the implications of this influence on the plaintiff's mind by pointing out, correctly in my view that the defendants had tried to disabuse the plaintiff of his fears about the 2007 election. But the weakness of this submission, in my view, was that the defendants failed in their endeavour. 95The plaintiff was, in my view, a person under special disability of which the defendants were aware when they facilitated and accepted this gift. The defendants' conduct was legally unconscionable and the gift should be set aside. 96The circumstances of Mr Ryan's special disability were compounded by his lack of independent legal advice and the improvidence of the gift and the other matters identified above under the heading "Independence and adequacy of Mr Dakin's Advice". Conclusions and Orders 97The Court has found that the plaintiff's gift of the Iluka property was procured by the defendants' unconscionable conduct. The gift will therefore be set aside. 98Ordinarily costs would follow the event. But one or other party may seek a special costs order. I will list the proceedings on Monday 5 March 2012 at 9.30am to argue any issues of costs and to allow the entry of final orders in the proceedings. ********** 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. Decision last updated: 28 February 2012