Grace v Grace [2012] NSWSC 976

Supreme Court New South Wales

Medium Neutral Citation: Grace v Grace [2012] NSWSC 976 Hearing dates: 25 October to 2 November 2010; 4 November to 2 December 2010; 23-24 June & 22 July 2011 Decision date: 23 August 2012 Jurisdiction: Equity Division Before: Brereton J Decision: Plaintiff is entitled to have (a) transfer of shares to defendants set aside for undue influence or unconscionable dealing; (b) consent orders made by Family Court set aside pursuant to Family Law Act s79A Catchwords: PROPERTY - Transfers of property - undue influence - presumed undue influence - parent and child - evidence to rebut presumption - improvidence of transfer - divesting voting control of valuable company - whether explicable by ordinary motives - whether presumption rebutted

PROPERTY - Transfers of property - unconscionable dealing - whether transfer of shares procured by unconscionable dealing - relationship of special disadvantage - youth, inexperience, lack of knowledge, absence of advice, reliance on and trust and confidence in parent - whether defendant knew plaintiff was not in a position to look after his own interests

LACHES - whether plaintiff had relevant knowledge to justify commencement of proceedings

TRUSTS - breach of trust - transfer of shares held on trust

CORPORATIONS - oppressive conduct - whether defendants managed company so as to disproportionately benefit them and disadvantage plaintiff - failure to prove disproportionate benefits - whether defendants failed to provide information - no case of oppression made out

TRUSTS - dealing with trust property - whether wilful default on part of defendants - difference between account on basis of wilful default and common basis - wilful default requires evidence of failure to bring receipts to account - evidence of expenditure in breach of trust does not justify account on ground of wilful default - no evidence of wilful failure to get in an asset