Haskew v Equity Trustees Executors & Agency Co Ltd [1919] HCA 53; (1919) 27 CLR 231 (15 October 1919)

HIGH COURT OF AUSTRALIA

Haskew Defendant, Appellant; and The Equity Trustees, Executors and Agency Company Limited Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

15 October 1919

Barton, Isaacs and Rich JJ.

Starke and Dixon, for the appellant.

Bryant (with him Davis), for the respondent.

Barton J.

In this appeal the result turns upon the question of evidence of undue influence, for we hold that the relation between the old man and his daughter, the appellant, was not of a kind from which undue influence would be presumed. But we think, apart from any such presumption, that the learned Judge who presided at the trial had good ground for his finding that the affirmative evidence of undue influence was such as to impel him to the decision which he gave, and we ourselves quite agree with that decision upon the facts before His Honor. It is not necessary now, under the circumstances which have arisen, to give a reserved judgment upon those facts.

The result will be that the appeal will be dismissed without costs.

Isaacs J.

I agree with what my learned brother has just said, that the appeal should be dismissed without costs. The learned Judge from whom this appeal comes decided in favour of the respondent on two grounds. The first ground rested on the evidence of a fiduciary relation which imposed on the present appellant the onus of displacing the presumption of undue influence. His Honor held that that presumption could not be displaced unless she showed that the donor executed the documents which were in controversy of his own free will and with independent advice. His Honor thought that that was sufficient to dispose of the case. Then his Honor also held, and this is the second ground, that, if it were necessary to regard the onus as being thrown upon the present respondent, that onus had been discharged and that the respondent had affirmatively shown that undue influence had been exerted. As I have said I agree with what my brother Barton has said, namely, that the facts affirmatively show undue influence.

In ordinary circumstances I would not think it necessary to say any more, but, having regard to the very great importance of the subject and to the view which has been taken in the judgment under appeal of a case decided by this Court (Spong v. Spong[1]), which is supposed to decide that independent advice was necessary, I propose to say something about that case. It was decided by the learned Chief Justice, my brothers Gavan Duffy, Powers, Rich and myself. The head-note includes a statement that in the absence of independent advice the transaction should be set aside. But neither the decision nor the head-note must be understood as asserting a general rule of law that independent advice is requisite. There is a passage in the judgment of Griffith C.J., cited from Griffiths v. Robins[2], which would justify the opinion that in such a case the rule of law was that independent advice was necessary, but when the judgment in the case of Griffiths v. Robins is carefully examined and reference is made to the observations of the learned Judge who decided it in the later case of Pratt v. Barker[3], it will be found that there is no such rule of law laid down in Griffiths v. Robins. In the case of Linderstam v. Barnett[4] I had occasion to consider the question of independent advice, and I there referred to the decision of the Privy Council in Kali Bakhsh Singh v. Ram Gopal Singh[5], where it was laid down that there is no rule of law absolutely requiring independent advice. A fuller report of that case is to be found in the Indian Law Reports in 1914[6], and I will do no more than refer to pp. 89, 91 and 92 of that report. Besides stating the law on that subject, Lord Shaw for the Judicial Committee referred to a previous judgment of the Privy Council in Mahomed Buksh Khan v. Hosseini Bibi[7]. I refer to pp. 698, 699 and 700 of the Calcutta report without reading them. If those references are carefully read it will be found that the issue is, Was it really the act of the party comprehending what he did and the result of his or her own free will? and that the question of independent advice is a subsidiary question the answer to which frequently comes in to help to determine the ultimate issue in the case. I mention that, in the first place, so that no misconception may exist as to our decision in Spong v. Spong[8], and, secondly, for the benefit of those who hereafter may have to consider the question of undue influence.

Rich J.

I agree with what my brother Barton has said with regard to this case. In Spong v. Spong[9] I did not subscribe to any statement that independent advice was necessary. I there cited Smith v. Kay[10], referred to in Kali Bakhsh Singh v. Ram Gopal Singh[11], just mentioned by my brother Isaacs.

In cases such as this the principle on which relief is given by Courts of Equity applies to every case where influence is acquired and abused, where confidence is reposed and betrayed. In certain well-known relationships influence is presumed; in all other cases where those relationships do not subsist, the confidence and the influence must be proved extrinsically; but when they are proved extrinsically, the rules of reason and common sense, and the technical rules of a Court of Equity, are just as applicable in the one case as in the other.

Appeal dismissed. Order that all moneys and securities held by the appellant or her solicitor be delivered to the respondent.

Solicitors for the appellant, W. B. & O. McCutcheon.

Solicitors for the respondent, Harwood & Pincott.