Aslanidis v Aslanidis [2020] NSWSC 110

Aslanidis v Aslanidis [2020] NSWSC 110

The plaintiff did not prove non est factum, but the transfer was liable to be set aside because the defendant had psychological ascendancy over the elderly, unsophisticated plaintiff, who had limited language skills and depended on the defendant in dealings with the solicitor. The defendant took improper advantage of that ascendancy to procure transfer of the plaintiff's only substantial asset for the defendant's own interest. The solicitor acted for both parties and did not provide independent legal advice sufficient to bring home to the plaintiff the significance of the documents.

Jurisdiction
Australia
Judgment Date
21 February 2020
Procedural Posture
Equity Proceeding in the Family Provision List Concerning Recovery of Registered Land Transferred by the Plaintiff to the Defendant / Final Hearing; Principal Judgment
Outcome
The transfer is to be set aside for undue influence; subject to a charge for just allowances in favour of the defendant, the defendant is obliged to reconvey the land to the plaintiff.
Legal Topics
['actual Undue Influence' 'independent Legal Advice' 'non Est Factum' 'unconscionable Dealing' 'constructive Trust' 'real Property Transfer']
['equity' 'property Law' 'succession'] ['actual Undue Influence' 'independent Legal Advice' 'non Est Factum' 'unconscionable Dealing' 'constructive Trust' 'real Property Transfer']

Case Brief

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Procedural Posture

Equity Proceeding in the Family Provision List Concerning Recovery of Registered Land Transferred by the Plaintiff to the Defendant / Final Hearing; Principal Judgment

Legal Issues

  1. 1 ["Whether the plaintiff's execution of the Memorandum of Transfer was void for non est factum." "Whether the transfer of the plaintiff's residence to the defendant should be set aside in equity as procured by undue influence." 'Whether the plaintiff was suffering from a special disadvantage or was psychologically dependent on the defendant in the transaction.' 'Whether the involvement of a solicitor acting for both parties amounted to independent legal advice or fully informed consent.' 'What just allowances should be made in favour of the defendant if the property is reconveyed.']

Ratio Decidendi

The plaintiff did not prove non est factum, but the transfer was liable to be set aside because the defendant had psychological ascendancy over the elderly, unsophisticated plaintiff, who had limited language skills and depended on the defendant in dealings with the solicitor. The defendant took improper advantage of that ascendancy to procure transfer of the plaintiff's only substantial asset for the defendant's own interest. The solicitor acted for both parties and did not provide independent legal advice sufficient to bring home to the plaintiff the significance of the documents.

Court Disposition

The transfer is to be set aside for undue influence; subject to a charge for just allowances in favour of the defendant, the defendant is obliged to reconvey the land to the plaintiff.

Orders

  • ['Order that the defendant reconvey to the plaintiff the fee simple in Lot 195 in Deposited Plan 27795, being the whole of the land contained in Folio identifier 195/27795 at Blacktown in New South Wales, subject only to a charge in favour of the defendant for just allowances to be agreed or determined by the...