Daher v Doulaveras [2008] NSWSC 583

Daher v Doulaveras [2008] NSWSC 583

The plaintiff was elderly, had severe communication difficulties, cognitive impairment and inability to read, relied on others for daily assistance, and did not understand the effect of the transfers. The transfers and the mortgage were brought about by the defendant, conferred substantial benefit on the defendant, gave no apparent benefit and financial detriment to the plaintiff, and were entered without independent advice. The requirements for undue influence were met, and in any event the defendant's conduct was unconscientious because of the plaintiff's significant disability and inequality of position. The transfers should therefore be set aside, and relief should be framed to...

Jurisdiction
Australia
Judgment Date
19 June 2008
Procedural Posture
Equity Proceeding Seeking to Set Aside Property Transfers and Mortgage on Grounds of Undue Influence or Unconscionable Conduct / Principal Judgment After Hearing
Outcome
Transactions set aside.
Legal Topics
['undue Influence' 'unconscionable Conduct' 'capacity' 'tutor' 'property Transfers' 'mortgage']
['equity' 'practice and Procedure'] ['undue Influence' 'unconscionable Conduct' 'capacity' 'tutor' 'property Transfers' 'mortgage']

Case Brief

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Procedural Posture

Equity Proceeding Seeking to Set Aside Property Transfers and Mortgage on Grounds of Undue Influence or Unconscionable Conduct / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the transfer of 16/100 of the plaintiff's 66/100 interest in the Newport property to the defendant was procured by undue influence or unconscionable conduct." 'Whether the subsequent transfer by the plaintiff and defendant of their equal shares as tenants in common to themselves as joint tenants was procured by undue influence or unconscionable conduct.' "Whether the mortgage over the Newport property as collateral security for the defendant's loan for the St Ives property was procured by undue influence or unconscionable conduct." 'Whether the defendant could raise as a defence that the plaintiff was not a disabled person needing a tutor, or whether the challenge had to be made by challenge to retainer.' 'What relief should be granted where no claim was brought against the bank mortgagee.']

Ratio Decidendi

The plaintiff was elderly, had severe communication difficulties, cognitive impairment and inability to read, relied on others for daily assistance, and did not understand the effect of the transfers. The transfers and the mortgage were brought about by the defendant, conferred substantial benefit on the defendant, gave no apparent benefit and financial detriment to the plaintiff, and were entered without independent advice. The requirements for undue influence were met, and in any event the defendant's conduct was unconscientious because of the plaintiff's significant disability and inequality of position. The transfers should therefore be set aside, and relief should be framed to...

Court Disposition

Transactions set aside.

Orders

  • ['The transfers should be set aside.' "So far as possible, orders should be made to ensure the discharge of the mortgage over the plaintiff's 66/100 interest in the Newport property and to protect the plaintiff in the meantime." "As between the parties, the amounts secured by the mortgage should be charged on the...