Turner v Windever & Anor

[2005] NSWCA 73

NSW Court of Appeal

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Interrogate

Catchwords

1. Equity
2. › Unconscionable dealings
3. › Special disadvantage
4. › Whether unawareness of legal rights constitutes special disadvantage
5. › Whether lack of legal advice as to rectification of mortgage created special disadvantage
6. › Whether stronger party knew of special disadvantage
1. Equity
2. › Unconscionable dealings
3. › Elements of unconscionable dealing
4. › Improvident transaction
5. › Equitable presumption of unconscientious advantage
6. › Whether presumption arose on facts
1. Evidence
2. › Affidavit evidence
3. › Witness deceased before trial
4. › Weight to be given to untested affidavit evidence
5. › Approach where deponent hostile and evidence disputed
1. Appeal
2. › Fact finding
3. › Appellate review of trial judge's findings of fact
4. › Whether incontrovertible facts or uncontested testimony demonstrated error
5. › Fox v Percy (2003) 214 CLR 118

Quick Take

Mere unawareness of a matter material to a party's interests in a transaction does not constitute a special disadvantage for the purposes of the equitable doctrine of unconscionable dealing. There is an important difference between a person under a condition or circumstance disabling them from making a sound judgment and a person who is able to make a judgment but fails to make a sound one due to incomplete knowledge or bad advice. Where a party has received legal advice, even if that advice was deficient, the consequences of bad advice should not readily be spread from the adviser to the other party to the transaction on the basis that the party was under a special disadvantage.