Creswick & Ors v Creswick

[2010] QSC 339

Supreme Court of Queensland

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For Australian Law.

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Interrogate

Catchwords

1. Equity
2. › Unconscionability
3. › Unconscientious dealing
4. › Special disadvantage
5. › Whether party in position of special disadvantage vis-à-vis other party
6. › Whether agreement improvident
7. › Family settlement agreement
1. Equity
2. › Undue influence
3. › Actual undue influence
4. › Presumption of undue influence
5. › Whether relationship of child and parent gives rise to presumption
6. › Categories of relationship not fixed
7. › Whether ascendancy established on facts
1. Equity
2. › Rectification
3. › Common intention of parties
4. › Evidence required
5. › Whether uncorroborated evidence of parties whose credibility was in doubt sufficient
1. Contracts
2. › Specific performance
3. › Family settlement agreement
4. › Whether specific performance should be ordered despite findings adverse to credibility of both parties

Quick Take

The relationship of child and parent (as distinct from parent and child) does not fall within the established categories giving rise to a presumption of undue influence, though the categories are not closed. A party who initiates settlement negotiations, secures improved terms through their own instructions, and is warned by an independent solicitor is unlikely to establish special disadvantage for the purposes of unconscientious dealing. Rectification will not be ordered on the uncorroborated evidence of witnesses whose credibility is in doubt.