Irvine v Irvine [2008] NSWSC 592

Irvine v Irvine [2008] NSWSC 592

The transfer was unjust under s 7 of the Contracts Review Act 1980 because the plaintiff, aged over 90 and in declining health, was led to depend on the first defendant and was not reasonably able to protect her own interests; the legal advice she received did not adequately explain that the oral assurance of lifetime occupation was unenforceable and that she would be left with no legal right to occupy the house; and the transaction took away virtually her only asset for nominal consideration. It was just to remedy the unjust consequences by requiring the defendants to transfer full and unencumbered title back to the plaintiff rather than declaring the registered transfer void.

Jurisdiction
Australia
Judgment Date
16 June 2008
Procedural Posture
Equity Proceedings Seeking Relief Concerning Transfer of House Property Under the Contracts Review Act 1980 and Equitable Doctrines / Principal Judgment After Hearing
Outcome
Judgment for the plaintiff; defendants ordered to transfer the house property back to the plaintiff and pay her costs.
Legal Topics
['unjust Contracts' 'contracts Review Act 1980 S 7' 'unconscionable Dealing' 'undue Influence' 'transfer of Land for Nominal Consideration' 'special Disadvantage' 'independent Legal Advice']
['contracts' 'equity' 'property Law'] ['unjust Contracts' 'contracts Review Act 1980 S 7' 'unconscionable Dealing' 'undue Influence' 'transfer of Land for Nominal Consideration' 'special Disadvantage' 'independent Legal Advice']

Case Brief

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Procedural Posture

Equity Proceedings Seeking Relief Concerning Transfer of House Property Under the Contracts Review Act 1980 and Equitable Doctrines / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the registered transfer of the plaintiff's home to the defendants for nominal consideration was a contract to which the Contracts Review Act 1980 could apply." 'Whether the transaction was unjust in the circumstances relating to it at the time it was made under s 7 of the Contracts Review Act 1980.' 'Whether the plaintiff received adequate independent legal advice about the legal and practical effect of the transfer and the oral assurance that she could remain in the house for life.' "Whether the defendants' retention of the property was unconscionable because the plaintiff was in a position of special disadvantage and the transaction was grossly improvident." 'What orders should be made to remedy the unjust consequences of the transaction.']

Ratio Decidendi

The transfer was unjust under s 7 of the Contracts Review Act 1980 because the plaintiff, aged over 90 and in declining health, was led to depend on the first defendant and was not reasonably able to protect her own interests; the legal advice she received did not adequately explain that the oral assurance of lifetime occupation was unenforceable and that she would be left with no legal right to occupy the house; and the transaction took away virtually her only asset for nominal consideration. It was just to remedy the unjust consequences by requiring the defendants to transfer full and unencumbered title back to the plaintiff rather than declaring the registered transfer void.

Court Disposition

Judgment for the plaintiff; defendants ordered to transfer the house property back to the plaintiff and pay her costs.

Orders

  • ['Order that the defendants do, within seven days after receipt by their solicitors from the solicitors for the plaintiff of an instrument of transfer under the Real Property Act 1900 between the defendants as transferors and the plaintiff as transferee and relating to the whole of the land in Folio Identifier...