CAPACITY — presumption of sanity — test of capacity is 'issue specific' — relevant issue was whether there was capacity to enter into March Deed — HELD — onus of proof to displace presumption not satisfied on balance of probabilities — EVIDENCE — whether Court bound to accept expert evidence where the expert is not called for and hence challenged in cross-examination — HELD — general principle that Court is not bound to accept such evidence although it may be given more weight depending on the balance of the evidence before the Court — uncontradicted evidence is still be to assessed in light of all other lay and expert evidence — UNCONSCIONABLE CONDUCT — two allegations of unconscionable conduct — first, that plaintiff took advantage of her position vis-Ã -vis the second defendant to induce him to enter the deed — second, that plaintiff took advantage of first defendant's concern that she would be denied access to the second defendant to induce her to enter the deed — HELD — unconscionable conduct not established in relation to either allegation — UNDUE INFLUENCE — no presumption of influence between husband and wife — evidence of increasing dependence of second defendant on plaintiff giving rise to a presumption of influence — relevant consideration is the quality of consent by the donee — second defendant had independent legal advice — context in which gift is given is also relevant, including any benefits which are obtained by the donee — HELD — benefit to plaintiff was not procured by undue influence over the second defendant — DURESS — conduct alleged to amount to duress being alleged threats made against the person of the first defendant and an alleged threat to deny first defendant access to the second defendant — consideration of Karam and whether the alleged conduct must be unlawful to establish duress — alleged threats against person made two years before the deed entered into — no evidence aside from the first defendant's testimony that alleged threats to deny access to second defendant were made — HELD — duress not established by first defendant — DEED — non est factum defence not pleaded — even if first defendant succeeded in making out a vitiating factor the deed was only voidable and not void — whether deed would have been set aside in the circumstances of the case — OBITER — deed would not have been set aside — CONTRACTS REVIEW ACT — whether deed was 'unjust' — whether first defendant had standing to plead 'unjustness' insofar as the injustice pleaded was not suffered by the first defendant — HELD — first defendant had standing under the Contracts Review Act 1980 (NSW), however none of the allegations of injustice made out — EQUITY — equitable maxims — relief sought was approximate to specific performance as deed was executed rather than executory — whether plaintiff disentitled to relief due to unclean hands — where unclean hands alleged in relation to a putative breach of the deed by the plaintiff — where the relief sought would affect the interests of the second defendant as another party to the deed, the second defendant's interests are relevant to whether relief is denied — HELD — not satisfied that alleged conduct of the first defendant amounted to unclean hands
Case Details
Citation[2012] NSWSC 354
CourtNSWSC
JurisdictionNew South Wales
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