S+P Walters is a commercial law firm servicing clients across Lismore, Ballina, Byron Bay, Casino and the greater Northern Rivers.
The firms provides advice to individuals and business on all kinds of transactional work – from leasing, domestic conveyancing and setting up partnerships, to drafting and advising on commercial agreements or administering large block residential subdivisions – with the kind of accessible expertise and in depth knowledge that only a local firm can provide.
We acted for an elderly Australian war veteran in a case claiming unconscionable conduct against his daughter and son-in-law. The matter was first heard in the Supreme Court of New South Wales by his honour Justice Slattery, who determined the matter in favour of our client. The defendants then appealed to the NSW Court of Appeal. The Court of Appeal dismissed the appeal with an order for costs.
In this case, our client transferred the interest in house to his daughter and son-in-law for no consideration. At the time of the transfer, he was 90 years old and his health was failing. He was becoming increasingly dependent on his daughter and son-in-law for care in his old age. His poor health led him to believe he did not have much longer to live. He also held an irrational belief that a newly elected Federal Labour government (with Kevin Rudd as prime minister) would take his pension and his house. This led him to believe that, if he gave his house to his daughter and son-in-law, the government would not be able to take it away.
The Court of Appeal held that the above factors combined to incapacitate our client from making a worthwhile decision as to what was in his own best interests and the transfer of his house was an “improvident transaction” because it was the only capital asset he had.
The Court of Appeal agreed with the trial judge that the daughter and son-in-law were guilty of unconscionable conduct in that they were aware of all our client’s special disadvantages and yet had still facilitated the gift to themselves. They had taken advantage of our client’s disadvantage. They had arranged for a Solicitor to facilitate the transfer but that Solicitor, acting for both parties, was found by the Court not to have given our client adequate and independent legal advice regarding the transfer.
The Court made orders declaring the transfer void ab initio (from the beginning) and gave orders to transfer our client’s property back into his sole name. An order for costs was also made against the daughter and son-in-law in both Courts.
To read more about this please see the Supreme Court decision in Ryan v Aboody, https://www.caselaw.nsw.gov.au/decision/54a636e03004de94513d9525 and the Court of Appeal’s decision in Aboody v Ryan, https://www.caselaw.nsw.gov.au/decision/54a638f03004de94513da327
If you have a query regarding an unconscionable conduct matter, please contact our Solicitor Clint Braid on (02) 6621 8833 or firstname.lastname@example.org
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