Turner v Windever & Anor [2005] NSWCA 73

Turner v Windever & Anor [2005] NSWCA 73

By majority, the appellant did not establish that Mrs Lett was under the alleged special disadvantage in deciding to transfer the property: the evidence did not show that unawareness of rectification of the mortgage disabled her from judging her own best interests, and it was rational for her to want to be rid of the mortgage and avoid legal proceedings. The trial judge did not err in treating Mrs Lett's untested affidavit evidence with care. Santow JA agreed in the result on the basis that, although he considered Mrs Lett was at a special disadvantage, the respondents were not shown to have known of that disadvantage or of facts raising it, and therefore were not shown to have...

Jurisdiction
Australia
Judgment Date
22 March 2005
Procedural Posture
Appeal in Proceedings for Equitable Relief Against Unconscionable Dealing / Appeal From the Supreme Court of New South Wales, Equity Division
Outcome
Appeal dismissed with costs.
Legal Topics
['unconscionable Dealing' 'special Disadvantage' 'relief Against Improvident Transaction' 'mortgage Rectification' 'affidavit Evidence Where Deponent Died Before Trial' 'independent Legal Advice']
['equity' 'property Law' 'contracts'] ['unconscionable Dealing' 'special Disadvantage' 'relief Against Improvident Transaction' 'mortgage Rectification' 'affidavit Evidence Where Deponent Died Before Trial' 'independent Legal Advice']

Case Brief

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Procedural Posture

Appeal in Proceedings for Equitable Relief Against Unconscionable Dealing / Appeal From the Supreme Court of New South Wales, Equity Division

Legal Issues

  1. 1 ['Whether the trial judge erred in not accepting disputed affidavit evidence of Mrs Lett unless corroborated where she died before trial and could not be cross-examined.' 'Whether Mrs Lett was under a special disadvantage because she was unaware that the mortgage terms as to compound interest and repayment on demand could be rectified or were not binding according to the original arrangement.' 'Whether the respondents knew of any special disadvantage and unconscientiously took advantage of the opportunity presented by it when acquiring the property.' 'Whether the residence arrangement and the genesis of the transfer supported the claim of unconscionable dealing.']

Ratio Decidendi

By majority, the appellant did not establish that Mrs Lett was under the alleged special disadvantage in deciding to transfer the property: the evidence did not show that unawareness of rectification of the mortgage disabled her from judging her own best interests, and it was rational for her to want to be rid of the mortgage and avoid legal proceedings. The trial judge did not err in treating Mrs Lett's untested affidavit evidence with care. Santow JA agreed in the result on the basis that, although he considered Mrs Lett was at a special disadvantage, the respondents were not shown to have known of that disadvantage or of facts raising it, and therefore were not shown to have...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']