Aslanidis v Aslanidis [2020] NSWSC 110

Supreme Court New South Wales

Medium Neutral Citation: Aslanidis v Aslanidis [2020] NSWSC 110 Hearing dates: 3, 4 and 5 September 2019 Decision date: 21 February 2020 Jurisdiction: Equity - Family Provision List Before: Lindsay J Decision: Subject to a charge on the land for just allowances in favour of the defendant, he is obliged to reconvey to the plaintiff land which, by an exercise of undue influence, he induced the plaintiff to transfer to him. Catchwords: EQUITY — Undue influence — Actual undue influence EQUITY — Undue influence — Absence of independent advice Legislation Cited: Real Property Act 1900 NSW Succession Act 2006 NSW Cases Cited: A v N [2012] NSWSC 354 Blomley v Ryan (1956) 99 CLR 362 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 Johnson v Buttress (1936) 56 CLR 113 Quek v Beggs (1990) BPR [97405] Petelin v Cullen (1975) 132 CLR 355 Whereat v Duff [1972] 2 NSWLR 147 Texts Cited: - Category: Principal judgment Parties: Plaintiff: Savvas Aslanidis Defendant: Nikolaos Aslanidis Representation: Counsel: Plaintiff: AR Zahra and JR Anderson Defendant: C Hickey

Solicitors: Plaintiff: Sparke Helmore Lawyers Defendant: Michael E Bradstreet File Number(s): 2018/00213603

Judgment

INTRODUCTION 1. The plaintiff, Savvas Aslanidis, is an elderly man who sues (by his present wife, Tsabika, as tutor) to recover title to his residence (a property located in Blacktown), transferred to his adult son (the defendant, "Nick") on or about 26 August 2011. 2. The property is land registered under the Real Property Act 1900 NSW. The Memorandum of Transfer (which effected a transfer of the unencumbered fee simple in the property) was executed by the plaintiff and the defendant, in the presence of a solicitor (Mr VF Massey) who acted for both parties, on 26 August 2011. The Transfer, bearing that date, was registered (as dealing number AG 480407) on 7 September 2011. 3. In substance, the defendant contends that the transfer of the plaintiff's residence to him should be characterised as a gift or, perhaps more accurately, a gift conditional upon the defendant agreeing, which he says he did (or a transfer in consideration for which the defendant says he agreed) with the plaintiff that, if and when he sold the property, he would pay $100,000 of the sale proceeds to his sister (Maria, known as "Mary"), the other of the plaintiff's two children. 4. Tsabika is the wife of the plaintiff's second marriage. Nick and Mary are (adult) children of his first marriage, which ended with the death of his first wife in 1994.