Kavanagh v Londy[2024] QCA 140

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA AND MITCHELL AJA:  We have had the advantage of reading in draft the reasons for judgment of Davis J.
2. [2]
   We gratefully adopt his Honour’s summary of the evidence in this case and will adopt the terms used by his Honour in referring to the evidence and the issues in the appeal.  Similarly, we gratefully adopt his Honour’s explanation of the way in which the primary judge disposed of the case.
3. [3]
   We agree with his Honour’s analysis of issues 1, 2 and 3.  However we wish to express our own reasons in relation to issues 4, 5, 6 and 7.  Those issues were encompassed by the principal arguments advanced by Michael on appeal, namely:

   1. The primary judge erred in reaching the conclusion that the Agreement failed for want of consideration.
   2. The primary judge erred by concluding that the Agreement was procured by undue influence by Michael over Mary and/or by the unconscionable conduct by Michael towards Mary and should be set aside accordingly.
   3. The primary judge erred in rejecting Michael’s estoppel plea by rejecting Michael’s argument that he had acted to his detriment, in reliance upon the representation made by Mary in the Agreement.
4. [4]
   For reasons set out under separate headings below, we conclude that to the extent that it is necessary to consider them, those arguments should fail.  Accordingly, we agree with Davis J that the appeal should be dismissed with costs.

Whether the Agreement was supported by sufficient consideration

5. [5]
   The effect of the Agreement was to provide for Michael to receive $250,000 in cash from Mary, for Michael to purchase Thagoona House from Mary for $200,000 and for Mary to bequest Emerald View to Michael in her will.  During Mary’s lifetime, Michael received the $250,000 in cash from Mary and used $200,000 of that money to purchase Thagoona House from Mary.  The cash payment and ‘sale’ of Thagoona House provided for by the Agreement was a ‘round-robin’ transaction which, in substance, amounted to a transfer by Mary of Thagoona House without any payment by Michael together with payment of an additional amount to Michael which could be used to cover transfer costs.  The Agreement provided for Michael to receive, in substance, the benefit of a transfer of Thagoona House without payment and the bequest of Emerald View in Mary’s will.  Under the Agreement, Michael accepted these benefits ‘in settlement of all monies and accumulated interest owed to me’ and agreed not to contest ownership of Byrnes.
6. [6]
   The only consideration to which senior counsel for Michael pointed in oral submissions to this Court was the forbearance by Michael in suing Mary on the historical complaints.  Counsel accepted that all of Michael’s eggs were in that one basket and did not seek to identify sufficient consideration elsewhere in the Agreement.
7. [7]
   Counsel also accepted that, for forbearance in making a claim based on the historical complaints to constitute sufficient consideration, Michael must have held a subjective good faith view that he had a claim which he could enforce in court against Mary.  Counsel accepted that there would be no sufficient consideration if Michael considered that Mary merely owed a moral obligation which could not be pursued in court.  We accept the concession that, for forbearance of a claim to constitute consideration, the person must have a genuine belief in the existence of the claim.^[1]
8. [8]
   The primary judge expressed the relevant principle in the following terms:^[2]

“Where a person bona fide believes that they have a fair chance of success in an action or a reasonable ground for suing, their forbearance to sue would constitute good consideration.^[3]  To put it another way, forbearance of a non-existing claim would not be forbearance at all.^[4]  It is only if an intending litigant bona fide forebears a right to litigate a question of fact or law which is not frivolous or vexatious to litigate, that they give up something of value.^[5]” (emphasis added)

9. [9]
   The focus of much of the written and oral argument on appeal was whether the emphasised part of the passage just quoted is correct: ie whether forbearance of a frivolous or vexatious claim which the claimant genuinely but unreasonably believes themselves to have can constitute good consideration.  However, it is unnecessary for this court to resolve the debate about whether a subjective belief in the existence of a claim must be reasonable in some sense in order for forbearance of the claim to constitute sufficient consideration.  That is because, in this case, the primary judge found in effect that Michael understood that any obligation arising from the historical complaints amounted, in Mary’s hands, to no more than a moral, not a legal, obligation.^[6]  That is in substance a finding that Michael did not subjectively believe that he had a claim which he could pursue in court against Mary.
10. [10]
    The primary judge’s factual finding to the effect that Michael did not genuinely believe himself to have a legal claim which could be pursued against Mary in court should be upheld.
11. [11]
    The fact that there was no plausible basis for even a layperson to believe that Michael had a legal claim which could be pursued in court against Mary is relevant in supporting the inference that Michael did not genuinely believe that he had such a legal claim.  Michael accepted that he had no firsthand knowledge of events in the first half of the last century on which his historical complaints were based.  His grievances were based on what he had been told by family members who were all dead.  He accepted that he did not have documentary evidence establishing the claims.  The patent hopelessness of Michael’s claim, and his admitted knowledge of facts which would show a legal claim to be hopeless, support an inference that Michael did not genuinely believe that he had a legal claim which could be enforced against Mary in court when he signed the Agreement.
12. [12]
    It is significant that, despite discussing his grievances with Mary and others over two decades, Michael had never instituted any serious steps to take legal proceedings.  Nor did he ever threaten Mary with legal proceedings.  Given his fixation on the historical complaints, if Michael genuinely believed he could bring a claim against Mary based on those complaints he would be expected to have done so well prior to the time when the Agreement was signed.  The fact that he had never even threatened Mary with legal action suggested that he was not forbearing from bringing any claim which he genuinely believed could be enforced against Mary in court.  Forbearance of a legal claim that Michael appreciated he did not have, was never going to make and had never threatened to make gave nothing to Mary.
13. [13]
    In cross-examination, Michael described what he gave Mary as being a clear conscience.  Michael accepted that what he had was a moral not a legal claim.  It was well open to the primary judge to accept that concession as reflecting Michael’s true state of mind, in preference to his later statement in re-examination to the effect that he believed he had a right to take action against Mary and a prospect of winning a legal action.  We would reach the same conclusion on reading the transcript of Michael’s evidence.  In any event, this was a credibility-based finding which is not contrary to established facts, irresistible inferences and which is not glaringly improbable so that it would not be appropriate for this court to disturb the finding on appeal.  We do not accept the appellant’s submission that hearing and seeing the evidence could not have influenced the primary judge’s assessment of its meaning and the weight to be given to it.
14. [14]
    On the factual findings made by the primary judge, the Agreement was not supported by sufficient consideration, which was required to make the Agreement an enforceable contract.  The primary judge was correct to conclude that the Agreement was not enforceable by Michael for this reason.

Whether the Agreement procured by unconscionable conduct or undue influence

15. [15]
    In Gunn v Meiners,^[7] the Court of Appeal of Western Australia recently summarised the law in relation to the application of equitable principles relating to unconscionable conduct in these terms:^[8]

“Broadly speaking, the doctrine of unconscionable dealings involves: (1) a relationship that places one party at a 'special disadvantage or disability' vis-à-vis another party; (2) knowledge of that special disadvantage or disability by the stronger party; and (3) unconscientious exploitation by the stronger party of the weaker party's disadvantage or disability.  These considerations should not be understood as if they are to be addressed separately as if they are separate elements of a cause of action in tort.  The application of equitable principles relating to unconscionable conduct calls for 'a precise examination of the particular facts' and 'every connected circumstance' (including the 'mental capacities, processes and idiosyncrasies' of the vulnerable party) as well as 'a scrutiny of the exact relations established between the parties'.”

16. [16]
    The second and third sentences of the quote are of particular significance.  It is helpful to record the complete passage from the judgment of Keifel CJ, Keane and Gleeson JJ in Stubbings v Jams 2 Pty Ltd^[9] from which they derive:

“In Commercial Bank of Australia Ltd v Amadio, this Court held that unconscionability involves: a relationship that places one party at a "special disadvantage" vis‑à‑vis the other; knowledge of that special disadvantage by the stronger party; and unconscientious exploitation by the stronger party of the weaker party's disadvantage. But these considerations should not be understood as if they were to be addressed separately as if they were separate elements of a cause of action in tort. As Dixon CJ, McTiernan and Kitto JJ said in Jenyns v Public Curator (Qld), in a passage approved by this Court in Kakavas and Thorne v Kennedy, the application of the equitable principles relating to unconscionable conduct:

"calls for a precise examination of the particular facts, a scrutiny of the exact relations established between the parties and a consideration of the mental capacities, processes and idiosyncrasies of the [vulnerable party]. Such cases do not depend upon legal categories susceptible of clear definition and giving rise to definite issues of fact readily formulated which, when found, automatically determine the validity of the disposition. Indeed no better illustration could be found of Lord Stowell's generalisation concerning the administration of equity: 'A court of law works its way to short issues, and confines its views to them. A court of equity takes a more comprehensive view, and looks to every connected circumstance that ought to influence its determination upon the real justice of the case'." (citation omitted)

Special disadvantage

In this field of discourse, "special disadvantage" means something that "seriously affects the ability of the innocent party to make a judgment as to his [or her] own best interests". While the factors relevant to an assessment of special disadvantage have not been exhaustively listed, Fullagar J in Blomley v Ryan considered that special disadvantage may be inferred from "poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary". No particular factor is decisive, and it is usually a combination of circumstances that establishes an entitlement to equitable relief.”

17. [17]
    We agree with Davis J, for the reasons his Honour gives, that the appellant failed to demonstrate that the primary judge erred in reaching the conclusion that the Agreement resulted from Michael’s unconscionable dealing with Mary.  As Deane J observed in Commercial Bank of Australia Ltd v Amadio^[10], “[u]nconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so.”  We have no doubt that it was not consistent with equity or good conscience that Michael should attempt to enforce or to retain the benefit of the Agreement.
18. [18]
    The High Court has on many occasions explained the doctrinal distinctions between undue influence and unconscionable dealing.^[11]  This case does not provide an occasion to re-examine those distinctions.  Given that the former doctrine looks to the quality of assent of the weaker party, the evidence may have permitted more to be said in favour of Michael’s challenge to the primary judge’s conclusion that the Agreement was the result of Michael’s undue influence over Mary, than could be said about his challenge to the primary judge’s finding on unconscionable dealing.  However, we agree with Davis J that in light of the rejection of the challenge to the latter finding it is unnecessary to express a view on Michael’s challenge to the former finding.

Whether Michael suffered detriment as alleged

19. [19]
    Michael pleaded in his reply and answer that Mary, and therefore her personal representatives, were estopped from avoiding the Agreement on the basis of undue influence or unconscionable conduct because –

    1. by carrying out the terms of Agreement, Mary represented to Michael that she intended to perform the agreement in its entirety, including leaving Emerald View to Michael in her last will; and
    2. Michael relied on that representation to his detriment by performing the terms of the Agreement.
20. [20]
    The case was tried on the basis that Mary’s personal representatives had joined issue with Michael’s estoppel plea.
21. [21]
    In his written submissions at trial Michael argued “Ordinary doctrines of common law or equitable estoppel prevented Mary, and prevents the estate, from relying on those matters …”.  The argument was not developed in writing.  Michael’s written submissions gave no consideration to the juridical nature of the estoppel on which he relied.
22. [22]
    For their part, the first respondents’ written submissions at trial dealt with Michael’s case as an equitable estoppel.  They submitted that the case must fail, first, because Michael had not proved detrimental reliance and, second, because none of the matters pleaded constituted a detriment to Michael.  They contended that because Michael’s claims against Mary had no legal merit, his forbearance to advance them could not constitute a detriment.  They contended that Michael had not proved that he had suffered any detriment in fact by purchasing the Thagoona property for $200,000.  There was no evidence that the amount paid exceeded the market value of the property when acquired or that he had otherwise suffered a detriment having purchased it.
23. [23]
    The first respondents addressed first at trial.  Their oral submissions at trial did not develop further what had been asserted in their written submissions.
24. [24]
    Michael’s oral submissions at trial –

    1. asserted that the alleged representation was made not merely by Mary’s partial carrying out of the terms of the Agreement, but also by her taking no action to avoid the agreement and by not saying to Michael that the Agreement was void or voidable and that she was rescinding it;
    2. asserted that Michael acted to his detriment not merely by performing his side of the agreement by his forbearance to sue Mary; by not investigating his claims further and by improving the Thagoona property; and
    3. again gave no consideration to the true juridical nature of the estoppel alleged or developed the argument otherwise than by assertion.
25. [25]
    No attempt was made by Michael to amend his pleading to permit the changes to his estoppel case.
26. [26]
    There are many curiosities which would be involved in any rigorous consideration of Michael’s estoppel case.  First, how could he be asserting a common law estoppel by representation if the representation was not a representation of existing fact but rather was a representation of intention to do something in the future?  Second, how could equitable estoppel be relied on by Michael as a response to a case which, ex hypothesi, would have established that Michael had procured an Agreement by undue influence or unconscionable conduct?  Prima facie, the absence of clean hands would have been an obstacle to that course.
27. [27]
    However, this appeal is not an appropriate vehicle to explore those issues or any wider consideration of the merit or lack of merit of the estoppel claim.  The only ground of appeal advanced in relation to the way in which the primary judge dealt with Michael’s estoppel plea was that the primary judge erroneously found:

“… that [Michael] did not suffer real detriment in reliance on his assumption as to his future acquisition of Emerald View, which had been induced by representations made by [Mary].”

28. [28]
    On appeal the only submission advanced in relation to that ground was in Michael’s written submission on appeal, which identified three bases of alleged detriment.  He submitted:

“It is alleged that the appellant acted to his detriment, in reliance upon the representation made by the deceased in the Agreement, by entering into the Agreement, by refraining from pursuing his claims against the deceased, and by purchasing the Thagoona Property. Those matters constituted real detriment to the appellant and the learned trial judge erred in finding otherwise.”

29. [29]
    The argument must be rejected for these reasons.
30. [30]
    First, Michael could not argue that entering into the Agreement constituted his detriment.  Michael’s pleaded case was that the representation on which he relied to his detriment was made by Mary’s carrying out the terms of the Agreement.  Michael could not argue that he entered into the Agreement in reliance on that representation.  In any event, he suffered no detriment by entering into the Agreement.
31. [31]
    Second, Michael could not argue that his forbearance to sue on his historical claims constituted a detriment.  We have earlier referred to the evidence on this question and explained the hopelessness of those claims.  In argument before this Court and in response to questioning from the Court, Michael, by his counsel, expressly did not seek to persuade this Court of the objective legitimacy of Michael’s historical claims or otherwise to persuade this Court that the claims could be regarded as having any actual value.  Forbearing to sue on such claims could not amount to actual detriment for the purpose of an estoppel claim.  No attempt was made to persuade this Court how it could be so regarded.  We agree with Davis J that no basis was advanced as to why this Court would overturn the primary judge’s finding.
32. [32]
    Third, Michael could not argue that his purchasing the Thagoona property constituted a detriment.  No challenge was made to the primary judge’s finding that conditions (a) and (b) of the Agreement were to be regarded as creating a round-robin transaction the effect of which was that Mary transferred to Michael the Thagoona property and $50,000 and that could not be regarded as causing detriment to Michael.  We agree with Davis J that there is no basis to overturn the primary judge’s finding.

Conclusion

33. [33]
    The appeal must be dismissed with costs.
34. [34]
    DAVIS J:  The appellant, Michael Anthony Kavanagh (Michael), appeals against the dismissal of his claim and judgment given against him on a counterclaim.^[12]
35. [35]
    The proceedings concern a written agreement entered into between Mary Hilary Kavanagh (Mary), now deceased, and Michael.  Mary’s executors and trustees are the first respondents and were the counterclaiming first defendants in the proceedings.
36. [36]
    Stephen Joseph Kavanagh (Stephen) and Matthew Owen Kavanagh (Matthew) were brothers.  Their father was Hugh Kavanagh (Hugh Senior).  Stephen and his wife had six children, four girls and two boys, one of whom was Mary and one of whom was John Patrick Roache (Jack).  Jack’s niece Anne Lynette Londy is one of Mary’s trustees and executors.  The other, Gerard Philip Pender, is a solicitor.
37. [37]
    Matthew and his wife Agnes had four children, one of whom was Hugh Leo Kavanagh (Hugh Junior).  Michael is Hugh’s son, Matthew’s grandson and Hugh Senior’s great grandson.
38. [38]
    The Kavanagh family have held agricultural land in southern Queensland for well over a century.  There are four properties which are relevant to the current appeal.
39. [39]
    “Home View” is a parcel of land near Esk.  This was owned by Hugh Senior in the late 1800’s.  In 1905, he allegedly entered into an arrangement with Patrick O'Brien that Mr O'Brien and his wife would either own (or at least occupy; the position is unclear) Home View for the term of their lives and then it would pass in equal shares to Stephen and Matthew.  Michael alleged that Home View did not pass to Stephen and Matthew but was acquired in some way by Stephen alone who, in 1954, sold it to a relative of Patrick O'Brien.  It is alleged by Michael that Stephen retained the whole of the sale proceeds and those proceeds formed part of his estate which ultimately passed to his daughters, one of whom being Mary.
40. [40]
    Three properties of significance were owned by Mary, namely “Emerald View”, a property at 1 Kavanagh Road Thagoona (Thagoona House), and a property on Turnbull Road known as “Byrnes”.
41. [41]
    On 11 February 2012, Mary and Michael made the written agreement on which Michael based his claim (the Agreement).  The Agreement is in these terms:

“Agreement between Mary Hilary Kavanagh of 5 Kavanagh Road Thagoona, via Rosewood, Queensland, and Michael Anthony Kavanagh of 73 McMahon’s Road, Sladevale, via Warwick, Queensland, 4370.

I, Michael Anthony Kavanagh, Sole Executor of the Estate of Hugh Leo Kavanagh, hereby agree to accept the sum of $250,000, (Two hundred and fifty thousand Dollars), in full settlement of all monies and accumulated Interest, owed to me, only son of the abovementioned Hugh Leo Kavanagh, of Sladevale, via Warwick, formerly of Milora, via Munbilla, Welwyn Crescent, Coorparoo, Townsville, and Lowood, only son of the late Matthew Owen Kavanagh of Lowood, subject to the conditions listed below.

The debt referred to, relates principally to the disposal by Stephen Joseph Kavanagh of a half share of a farming property, previously occupied by Patrick Joseph O'Brien, of Crossdale via Esk, which, on the Instruction of Hugh Kavanagh (Senior), his Uncle, who financed that original Property, was to be bequeathed in equal shares to Stephen Joseph Kavanagh and Matthew Owen Kavanagh, sons of the aforementioned Hugh Kavanagh (Senior).

Other items and events referred to in this agreement include:-

1. The transfer, registration and use of the cattle brand OB8, by Frances Cecelia Kavanagh, and the Individual Partners and the Partnership of “The Estate of S.J. Kavanagh”, who benefited from this action, and the subsequent refusal to return the said brands on several occasions, when requested by Hugh Leo Kavanagh, the lawful Registered owner of those Brands.

2. The disposal of any assets of the Estate of Mary Flynn which may have been due to Hugh Leo Kavanagh, as his share of the abovementioned Estate.

3. The Disposal by Stephen Joseph Kavanagh, or his Heirs and successors, of any share of any other Land, Cattle, Shares, Dividends or other items or assets which may have been due to Hugh Leo Kavanagh, or his Heirs and Successors.

This agreement is subject to the following conditions:-

1. Mary Hilary Kavanagh shall pay to Michael Anthony Kavanagh, the amount of $250,000. (Two hundred and fifty thousand Dollars), in settlement of all the above.

2. Michael Anthony Kavanagh shall Purchase from Mary Hilary Kavanagh, the House and Land situated on the corner of Kavanagh and McGeary Roads, known as 1 Kavanagh Road Thagoona, formerly owned and occupied by the late Margaret and Bill O'Connell, for the sum of $200,000. (Two hundred thousand Dollars). This Property has an area in the vicinity of two thousand square meters.

3. Mary Hilary Kavanagh honours the previous Agreement, to bequest the House, Land and Contents of the House known as “Emerald View” to Michael Anthony Kavanagh, or his Heirs and Successors. This Property is within the boundaries of Kavanagh Road, to the North, McGeary Road to the West, Turnbull Road to the South, and the Property owned by the Turnbull Family to the East. This property has an area in the vicinity of 27 Ha.

4. Michael Anthony Kavanagh agrees not to contest or otherwise attempt to gain ownership of the Property, owned by Mary Hilary Kavanagh, known as “Byrnes”, situated South of Turnbull Road. This property has an area in the vicinity of 57 Ha.

5. I, Michael Anthony Kavanagh, agree, without reservation, that any other unresolved issues between the family of the late Hugh Leo Kavanagh, and the family of the late Stephen Kavanagh both in Money and Kind shall be wholly and totally settled under the terms of this agreement, and that Mary Hilary Kavanagh shall be totally absolved from any implication of responsibility for any of the aforementioned grievances.

6. I agree that the terms and conditions of this Agreement shall remain private and confidential, and, where possible, not be disclosed or become public knowledge.”

42. [42]
    The evident intention of the Agreement was to settle grievances which Michael had harboured for acts allegedly committed by Stephen and members of his side of the Kavanagh family.  For convenience, I shall refer to those grievances as “the historical complaints”.  The historical complaints concern transactions alleged to have been effected between 1905 and 1954.^[13]
43. [43]
    By the terms of the Agreement, Mary was to:

    1. pay Michael $250,000.  This was done during Mary’s lifetime;
    2. sell Michael Thagoona House for $200,000.  That occurred during Mary’s lifetime; and
    3. bequest Emerald View to the appellant in her will.  This did not occur.
44. [44]
    Mary was close to her two sisters, Frances Cecelia Kavanagh (Celie) and Kathleen Roache (Kathy).
45. [45]
    Celie and Kathy died in 2008.  From that time, Michael had regular contact with Mary who made a number of wills.  One was made on 3 April 2008 and nominated Michael and Colleen Mary Fitzgerald as her executors.  Further wills were made on 6 May 2008, 9 October 2009 and 18 March 2010, all of which had Michael as both an executor and a beneficiary.  Three wills were made after the Agreement.  They were made on 24 April 2013, 28 May 2013 and 16 August 2013.  The will of 16 August 2013 was Mary’s last will.  Michael was an executor (with Mr Pender) and a beneficiary under the will of 24 April 2013.  He was not an executor in the will of 28 May 2013 but he was a beneficiary.  Under Mary’s last will (16 August 2013) he was neither an executor nor a beneficiary.
46. [46]
    By her will of 16 August 2013, Mary left Emerald View to John Dennis Byrne who is the second respondent.  The first respondents were named as executors and trustees.
47. [47]
    Mary died on 14 September 2016 at the age of 100.^[14]

The pleaded cases

48. [48]
    Michael’s claim is, apart from an estoppel claim, dependent upon the Agreement being valid and enforceable.  He pleaded the Agreement and alleged that Mary breached it by failing to bequeath Emerald View to him.  He alleged that the executors and trustees of Mary’s estate (the first respondents) held Emerald View on trust for him.  He claimed:

“1. A declaration that the first defendants^[15] hold Emerald View on constructive trust for Michael Kavanagh.

2. An order for an account to the plaintiff^[16] of any profits earned by the first defendants in respect of Emerald View from 14 September 2016.
3. Alternatively, damages for breach of contract to be assessed but not exceeding $750,000, with interest at the rate prescribed by section 58 of the Civil Proceedings Act 2011.
4. An order that the first defendants do all things necessary to transfer title of Emerald View to Michael Kavanagh.”^[17]

49. [49]
    When the proceedings were commenced, Emerald View had not yet been conveyed to Mr Byrne.  Mr Byrne was joined, presumably because his interests in Emerald View as beneficiary under Mary’s last will were inconsistent with Michael’s asserted rights in that property.  Peculiarly, no relief was sought against Mr Byrne, not even a declaration that Emerald View was held on constructive trust for Michael.
50. [50]
    At trial, the respondents relied upon their third amended defence and counterclaim.  By that pleading, the respondents challenged the Agreement on the following bases:

    1. the Agreement was voidable at the election of Mary as it was procured by the undue influence of Michael upon Mary who elected to avoid the Agreement by making her will of 16 August 2013;
    2. the Agreement was voidable at the election of Mary as it was procured by the unconscionable conduct of Michael towards Mary who elected to avoid the Agreement by making her will of 16 August 2013; and
    3. the Agreement was not a valid contract as it was not supported by consideration.
51. [51]
    The respondents contended that if the Agreement fell, the property divested by Mary purportedly pursuant to the Agreement should be restored to the estate.  The respondents counterclaimed seeking:

“(a) A declaration that the February 2012 Agreement is voidable as having been procured by the undue influence and/or unconscionable conduct of the plaintiff;

2. A declaration that the February 2012 Agreement has been avoided by the first defendants;

3. A declaration that the February 2012 Agreement is otherwise void or unenforceable at law;

4. An order that the plaintiff pay the first defendants the sum of $250,000;

5. Further, and in the alternative, a declaration that the plaintiff holds the Thagoona house on trust for the first defendants, and an order that the plaintiff transfer the Thagoona House to the first defendants.”^[18]

52. [52]
    Mr Byrne did not counterclaim presumably because, as already observed, no relief was sought against him in the claim.
53. [53]
    Michael filed a reply and answer in which he alleged that any right to avoid or rescind the Agreement was lost through delay.^[19]  He also alleged that the respondents were estopped from avoiding or rescinding the Agreement because Mary had partially performed the Agreement and thereby represented that she intended to fully perform it.  It was alleged by Michael that he relied upon that representation to his detriment by performing his covenants in the Agreement.

The decision below

54. [54]
    The trial was conducted in February 2021 in the District Court at Brisbane.  On 25 July 2022, the trial judge delivered reasons for dismissing Michael’s claim (the July reasons)^[20] and ordered the parties to provide a draft order in terms which would also conclude the counterclaim.  Her Honour made directions for the exchange of submissions in the event that agreement could not be reached.  That proved to be the case and in due course, written submissions were exchanged.  On 22 November 2022, her Honour delivered reasons (the November reasons) for making the following final orders:

“1. A declaration that the agreement is void.

2. The plaintiff’s claim is dismissed.
3. That the plaintiff pay compensation of $250,000 to the First Defendant.
4. That the plaintiff pay interest on the sum of $250,000 from 14 September 2016 in the amount calculated in accordance with Practice Direction 6 of 2013.
5. That the plaintiff pay the defendants’ costs of the proceedings to be assessed or agreed.”^[21]

55. [55]
    Michael gave evidence and was the only witness called in support of his claim.  The respondents called Mr Pender, a solicitor, who is one of the respondents.  The respondents also called a retired solicitor, Stephen Kavanagh.  The learned trial judge admitted into evidence written statements made by Mary before her death.^[22]  These documents were an affidavit sworn by her on 19 August 2013,^[23] a letter written by Mary to Michael on 30 May 2013^[24] and some notes from Mary’s diary.^[25]  The diary notes did not assume any importance in either the trial or the appeal and need not be discussed further.
56. [56]
    No objection was taken to the admission of Mary’s affidavit.  It was drawn by a solicitor (Mr Pender) and was witnessed by a solicitor.  In the affidavit, Mary explained various historical matters concerning properties held by her family, including those involved in the proceedings.  She explained that when her sister Kathy died, Michael attended upon her demanding to see Kathy’s will.^[26]  Mary explained that Michael became involved with her from that time and urged changes to the will which she made.^[27]  She explained that she made the wills of 9 October 2009, 18 March 2010 against the circumstances of Michael harassing her.
57. [57]
    As to the Agreement, Mary said in her affidavit:

“AGREEMENT 11 FEBRUARY 2012

62. Annexed hereto and marked “L” is a true and correct copy of an Agreement dated 11 February, 2012.
63. At time of entering into the annexed Agreement, I was continuously harassed and manipulated by my second cousin Michael Anthony Kavanagh.
64. I do not believe that the Agreement is legally binding.
65. I was coerced into signing the annexed Agreement by my second cousin Michael Anthony Kavanagh who consistently harassed me about his so-called “rightful share” and what he considered illegal dealings of my family, causing me great stress.
66. I signed the agreement without receiving adequate legal advice, and without my Solicitor’s knowledge. This was due to the constant harassment by my second cousin Michael Anthony Kavanagh to sign the document.
67. Any actions that I may have taken regarding the payment of $250,000.00 and the sale and transfer of property was to appease my second cousin Michael Anthony Kavanagh and relieve myself from his constant pressure.
68. My second cousin Michael Anthony Kavanagh has defamed the good name of my father Stephen Joseph Kavanagh and my sister Frances Cecilia Kavanagh.
69. My father Stephen Joseph Kavanagh and my sister Frances Cecilia Kavanagh obtained their properties including the share of “Buaraba”^[28] and the Brand OB8 legally and without undue influence.”

58. [58]
    As to the will of 16 August 2013, Mary explained:

“CURRENT WILL 16^th AUGUST 2013

80. Annexed hereto and marked “P” is a true and correct copy of my current Will dated 16 August, 2013.
81. I strongly believe that my second cousin Michael Anthony Kavanagh has no right or entitlement to any property that I own. Apart from recent years, he has had no family association with the properties or my family.
82. I believe that I was bullied and manipulated by him into making the changes to my previous Wills, as he had a strong influence over me in the years that my sisters were ill and subsequently died.
83. His threats of court action whereby he stated he would receive what he believed was rightfully his had made me concerned for the remaining Executors and Beneficiaries, and I did not want to leave them with trouble. This was the only reason for my previous Wills in which he was left a share.
84. As I no longer trust my second cousin Michael Anthony Kavanagh I have appointed my trusted close friend and niece of my sister Kathleen Roache, Anne Lynette Londy to be one of the Executors and Trustees of my Will.”

59. [59]
    Mary’s letter to Michael is dated 30 May 2013.  In it, Mary said to Michael:

“A few months after Celie died you were with me and I was feeling very lonely and grieving and we were talking about my affairs.  We talked of my will Michael as you were Executor and the words from your mouth Michael were I’ll fight Mary, not realising at the time what that really meant.  However I soon found out didn’t I.

You have got what you want and have really blackmailed me to get that, of which I feel you should not have.”

60. [60]
    Mary went on to refer to aspects of the historical complaints and said:

“You made me very unhappy when you accused Kathleen and Celie of making themselves Executor of my Grandfather’s Sister, Mrs Flynn and questioning whether the money left by her for masses were paid which had been given to the Ipswich Parish.”

61. [61]
    And later in the letter:

“Then you get me to sign an agreement you paid me $200,000.00 out of my money and kept $50,000.00 of my money for transfer fees.  So your really got the house for nothing Michael.

You also in the agreement you so cunningly compiled which I foolishly signed in Stuart Ross’s presence.”

62. [62]
    And later still:

“I am very angry and hurt, miserable enough Michael to really dislike the home of 80 yrs, my haven of security and safeness with a loving family.

You really are a greedy lousy person Michael and I hope my ghost haunts you.  I have no feelings for you, only resentment.  You must have been planning this for many years because you are so bitter.”

63. [63]
    Michael gave evidence of his understanding of his claim that his grandfather, Hugh Senior, had been deceived and lost his interest in Home View.  Michael also swore his belief that the claim to redress what he saw as an injustice could, as at 2012, be advanced.  He also gave evidence of his dealings with Mary, critically, in the period following the death of her sisters in 2008.  Some of that evidence is analysed later.
64. [64]
    Mr Pender gave evidence of his dealings with Michael and Mary in his capacity as Mary’s solicitor and as the author of her wills.  Without objection, Mr Pender gave evidence of being told by Mary that Michael had bullied and coerced her into signing the Agreement.  Mr Pender’s evidence was given with the benefit of contemporaneous notes that he had made.  When those notes were sought to be tendered, they were objected to.  That then raised an issue as to whether the oral evidence given by Mr Pender of the conversations that he had with Mary was admissible to prove the truth of what Mary had said to him.  The general rule is that unless objection is taken, evidence is admitted for all purposes.^[29]
65. [65]
    Her Honour ultimately admitted the notes.  They were strictly not admissible in Michael’s case.^[30]  They had no evidentiary value and were not admissible under s 92 of the Evidence Act 1977 (Qld) because the statements recorded within the notes were hearsay.  However, her Honour treated the oral evidence of Mr Pender as to what was told to him by Mary, and the notes themselves, as evidence only of the fact of the things being said, not as evidence of the truth of what was said.^[31]
66. [66]
    Stephen Kavanagh is a retired solicitor.  Mary was a cousin to his father.  He received a letter^[32]from Mary enclosing a copy of the letter which Mary had sent Michael.^[33]  He was told by Mary that she had not sought legal advice before signing the Agreement.  He then told her that she should seek advice from Mr Pender.
67. [67]
    Various attacks by the respondents upon Michael’s case were rejected.  Her Honour rejected the respondents’ submissions that Michael had no standing to bring the proceedings.^[34]  Her Honour dismissed the respondents’ submissions that the Agreement was not contractual in nature but simply recorded the making of some earlier agreement.^[35]  Her Honour rejected the respondents’ submissions that the Agreement failed through a lack of an intention to create legal relations.^[36]
68. [68]
    Her Honour found that the Agreement was voidable as being affected by undue influence^[37] and unconscionable conduct^[38] and that the Agreement failed through lack of consideration.
69. [69]
    Having found that the Agreement was voidable and that Mary had terminated it, her Honour went on to dismiss Michael’s submissions on the issues of estoppel and delay.
70. [70]
    There were various grounds of appeal.  As the appeal was argued, there were the following complaints:

    1. the trial judge should not have rejected Michael’s evidence (Issue 1);^[39]
    2. certain inferences which were drawn from the evidence were either not open or should not have been drawn (Issue 2);^[40]
    3. the statements made by Mary ought to have been given no or very little probative value (Issue 3);^[41]
    4. the Agreement was supported by consideration (Issue 4);^[42]
    5. undue influence ought not to have been found (Issue 5);^[43]
    6. unconscionable conduct ought not to have been found (Issue 6);^[44] and
    7. the estoppel claim ought to have been accepted (Issue 7).^[45]
71. [71]
    No notice of contention was filed challenging the conclusions reached on each of the issues of standing, intention to create legal relations and the nature of the Agreement.  Those issues are all now irrelevant.
72. [72]
    Issues 1, 2 and 3 all allege errors concerning the evidence and what the trial judge ought to have made of it.  Issues 4, 5 and 6 concern the bases upon which the trial judge determined that Mary was not bound by the Agreement.  Issue 7 raises Michael’s alternative case that if it is found that the Agreement is voidable, Mary was estopped from avoiding it.  Unless Michael is successful on Issue 7, the appeal will fail unless he wins on each of Issues 4, 5 and 6.

Issue 1 – The rejection of Michael’s evidence

73. [73]
    This appeal is one by way of rehearing.  The Court’s function is to conduct a real review of the evidence and draw its own inferences.^[46]  That function is subject to well established limitations based on the advantage held by a trial judge in seeing and hearing the witnesses give evidence.
74. [74]
    Where, as here, the trial judge’s findings are influenced by impressions gained from seeing and hearing the witnesses give evidence, interference on appeal with factual findings is only justified where the findings are “glaringly improbable” or “contrary to compelling inferences” or “inconsistent with facts incontrovertibly established by the evidence” or “the trial judge has failed to use or has palpably misused [their] advantage”.^[47]
75. [75]
    Michael points to paragraph [165] of the July reasons which is in these terms:

“[165] This submission is rejected.^[48] First, the evidence of Michael does not justify the submission. In cross-examination, Michael explained that he used $200,000 of the money given to him by Mary to pay for the acquisition of the Thagoona property. When asked about the other $50,000, Michael responded that it was used for other things, and added that a lot of it was used to repair the house. He said he would have spent $30,000, which subsequently changed to $40,000, repairing the house. In re-examination, he explained that he had to re-screw the roof, the plumbing was in a bad way, a lot of the stumps underneath the house had to be levelled, there was a problem with the electricity, and he had to recarpet the house. His comments made it clear that some of this work was in response to matters raised with him by the tenants. When asked about whether he engaged tradesman or did it himself, Michael responded that he did most of it himself. No other details, let alone documentary proof, were provided of the time taken to do the work or the costs of any materials. Michael is prone to exaggeration and hyperbole. I am not satisfied that Michael spent a considerable amount of time and money on the property. Secondly, if any costs were incurred, they were, of course, taken out of the funds provided by Mary.” (emphasis added)

76. [76]
    At paragraph [18] of the July reasons, this appears:

“[18] Most of the admissible evidence from Michael concerned his dealings with Mary from about 2008. Michael expressed himself forcefully in giving this evidence and denied any suggestion that he had influenced Mary unduly or improperly in relation to the agreement or her wills. Unfortunately, such was the manner of his giving evidence, that in the end I found his protestations unconvincing and rather tended to reinforce the opposite of his denials.” (emphasis added)

77. [77]
    It is submitted by Michael that the trial judge erred in paragraph [165] of the July reasons by finding that Michael was prone to exaggeration and hyperbole.  There are, it was submitted, no reasons expressed for such a conclusion.  It was submitted that error was also shown in paragraph [18] of the July reasons in that it was illogical to conclude that the forcefulness of Michael’s evidence given in 2021 could be probative of events which occurred years previously.
78. [78]
    It was submitted that there was no basis to conclude that Michael’s evidence should only be accepted to the point where it was corroborated.  This is what was concluded by her Honour in paragraph [108] of the July reasons:

“[108] It was submitted on behalf of Michael that his case was stronger than appeared. It was submitted that, if he had pursued his claims, Mary would have been forced by the pleading rules to make admissions consistent with those she and her sisters had made to Michael during the course of their conversations, or potentially may not have contested the claim at all. I am not persuaded that I should place any reliance upon what Michael says unless there is independent documentary or other proof. I certainly am not inclined to accept that Mary or her sisters made any admissions of misconduct by them or family members. Michael was overborne by his view of the world to such an extent that he had no capacity to listen to or for an objective statement by anyone. I reject the suggestion that Mary would not have contested any claim. The submission is quite inconsistent with her other conduct: her conversations with her solicitors, her change of wills and her affidavit.” (emphasis added)

79. [79]
    The comments of the trial judge in paragraphs [18], [108] and [165] of the July reasons can not be considered in isolation.  When the July reasons are considered in their entirety, they evidence a solid body of reasoning justifying her Honour’s rejection of Michael’s evidence.
80. [80]
    Her Honour was faced with two competing case theories.  The first was that evidenced in Mary’s statement; that she had been bullied and coerced into signing the Agreement.  Michael’s version was that Mary acknowledged the wrongdoing from years ago and was keen to redress it.  That led to her signing the Agreement.
81. [81]
    Her Honour concluded in paragraph [18] of the July reasons that the forceful way in which Michael gave evidence tended to support the respondents’ case.  That was not a finding made in isolation.  At paragraph [17], her Honour observed:

“[17] Evidence was led from Michael to explain, from his point of view, the past events which are referred to in the agreement. This evidence was admitted solely on the basis that it went to his belief at the time or shortly before the agreement. He was also cross-examined on these matters with a view to it being shown that he had no basis for his claims. Notwithstanding the absence of any documentary or first-hand proof of them, Michael was steadfast and persistent in his claim that he and his father had been wronged. All this reinforced in my mind the probability that he behaved in a similar way in his dealings with Mary.” (emphasis added)

82. [82]
    Her Honour formed the view that Michael had become fixated about the alleged injustice and that was motivating him.  Her Honour took that from Michael’s own evidence.  Her Honour observed:

“[141] Michael painted the picture in his oral evidence of Mary, knowing of the problems that had occurred between the families, of her wanting to make up for or recompense his side of the family for what had happened in the past. I do not accept that evidence. There is plenty of evidence that Michael felt that Mary should do so, but I am unable to accept Michael’s evidence that Mary reciprocated. Michael was so caught up with his own view of the circumstances that I find it unlikely that he could give an objective or completely truthful account of any statements made by Mary in relation to those events.

[142] Michael specifically denied harassing Mary about his rightful share and the illegal dealings with her family, but his own evidence suggests that he constantly raised the subject with Mary and her sisters and made clear to them his sense of grievance. Michael said in his oral evidence that he had been hearing about the issues since at least the age of four and said he had been discussing them with Mary and her sisters from about 1990s. In his letter to Stephen and in documents given to Mary, Michael had listed the grievances. The grievances included allegations of family members being liable for fines and criminal penalties. Michael admitted that the sort of stuff he was raising would be “pretty overwhelming” to a 90-year-old lady.”

83. [83]
    There was evidence led without objection from Mr Pender which described Michael as determined and overbearing. These observations were accepted by her Honour as consistent with her own observations of Michael while he was giving evidence:

“[145] In the course of his evidence, Mr Pender described Michael as a very determined man, and said, “He was determined throughout his dealing with her that things should be the way he wanted them to be”.

[146] Mr Pender described Michael as a person with an “overbearing personality”.

[147] These were also the impressions I had from the manner and the way in which Michael gave his evidence. It was clear that he had a fixation about the past dealings of which he spoke and that he was very angry about them.”

84. [84]
    These findings explain and justify the observations made in [108] of the July reasons that Michael had lost objectivity.
85. [85]
    Analysis of various individual issues also led her Honour to reject Michael’s evidence.
86. [86]
    Mr Pender’s evidence was relevant to some of these issues.  Mr Pender was admitted as a solicitor in 1979.  It was not suggested that he was not giving his evidence honestly.  His evidence was given by reference to contemporaneous notes.  Her Honour accepted Mr Pender’s evidence as reliable.^[49]  There is no complaint from Michael as to the acceptance of Mr Pender’s evidence.
87. [87]
    Mr Pender gave evidence that he had a conversation with Michael on 11 February 2010.  In that conversation, Michael, according to Mr Pender, asserted that Mary was acting in a confused state.  Michael gave contrary evidence at the trial.  Her Honour found:

“[39] On 11 February 2010, Mr Pender said that Michael rang him and told him that he was not happy about the changes to Mary’s will and that he would consider contesting Mary’s sister, Celie’s estate. Mr Pender said that Michael told him that there had been numerous occasions in the last twelve months, and in the recent will, where Mary “was acting rash and confused and in an inconsistent manner”. Mr Pender said he told Michael that he was not aware of any of those issues and that he was satisfied as to Mary’s capacity. Although Michael said he did not think this conversation occurred, he accepted that he was concerned and had expressed to Mr Pender his concern about Mary’s failing state sometime after he found out about the change in the will. I accept Mr Pender’s recollection of events; which was aided by his diary note.”

88. [88]
    Mr Pender’s evidence was indirectly supported by that of Stephen Kavanagh.  Michael wrote to Stephen Kavanagh on 10 December 2011.^[50]  There, Michael said:

“Stephen, as I mentioned the last time I spoke to you, overall, Mary is showing signs of a steady deterioration, both in mind and body.”

89. [89]
    Later in the letter to Stephen Kavanagh, Michael said:

“I have spoken to Gerard Pender at length concerning Mary’s condition and the current situation of the Power of Attorney.”

90. [90]
    Her Honour heard evidence from Michael that it was Mary who suggested that an agreement would have to be prepared.  Her Honour carefully considered that evidence coming to the conclusion that it was contrived:

“[43] According to Michael, Mary subsequently said to him that they will have to do an agreement, “because of things that had happened in the past” and “to make sure … that you don’t get cut out of everything”. He said that Mary re-iterated that Emerald View had been in the Kavanagh family since 1922, that the Kavanagh family paid for it and that we want to keep it in the Kavanagh family.

[44] He said that nothing was done about an agreement that day, but a week later Mary rang him up, and doing an agreement up was discussed. According to Michael, he said that they should get a solicitor, but that Mary said she did not want solicitors involved and specifically did not want to go near Mr Pender “because the whole district would know about it before the end of the day and we want to keep this quiet”. He said that he also suggested Mr Carruthers and that Mary said that was worse. He said, Mary said there were too many local people, who talk about things.

[45] Michael said that in about 2011 he “coincidentally” came into contact with a solicitor he knew in Warwick, Mr Lyons, who he said he had used over the time. Michael said he told him about his dilemma and that the solicitor gave him oral advice on what had to be in the agreement and how it had to be signed and witnessed.

[46] Michael said he started writing notes but “wasn’t pushing anything” and that he “just let it go” but Mary asked again, “How far have you got with the agreement?” He says that he started to put it together properly in “November or so in 2011”.

[47] All of this sounds contrived. Given the closeness and trust which Mary evidently placed in Mr Pender and the numerous times that she saw him to change her will, I do not accept that she would have been so disparaging of the likelihood that he would act inconsistently with his duty of confidence. There is nothing which corroborates the evidence of Michael that Mary accepted that there had been wrongs done in the past or that she wished to keep Emerald View in one particular side of the family. Given the terms of the will executed by Mary in March 2010, any agreement was superfluous. At that time, Mary did not need to execute an agreement to ensure that Michael was not “cut out of everything”. I do not accept at face value that the conversations alleged by Michael occurred.” (emphasis added)

91. [91]
    Similarly, at paragraph [140] of the July reasons:

“[140] Michael says that Mary said that she did not want lawyers involved and that she impugned the ability of Mr Pender to keep any arrangement confidential. I reject that evidence. It is inconsistent with the fact that Mary went to see Mr Pender a number of times over the years about her will, and the frank discussions that I accept that she had with him about Michael and her affairs.”

92. [92]
    There is no complaint about her Honour’s reasoning in these paragraphs.  Stephen Kavanagh, like Mr Pender, was a solicitor of long experience, although Mr Kavanagh has retired.  There was no suggestion that Mr Kavanagh was not being truthful in his evidence.  His evidence conflicted with that of Michael and her Honour accepted Mr Kavanagh’s evidence:

“[52] Michael said that a week later Mary rang and said she had spoken to Stephen (and Sue). Michael gave evidence that Mary said that Stephen was “happy about it”.

[53] Stephen gave evidence that Mary did not speak to him about the agreement before it was entered. I accept that evidence without hesitation and am not inclined to accept Michael’s evidence that Mary said something to the contrary.”

93. [93]
    Her Honour thought that aspects of Michael’s evidence were illogical.  One of these circumstances concerned Michael’s evidence about his last conversation with Mary:

“[84] Michael gave evidence that after the agreement was entered, Mary never said to him that she wanted to end the agreement. He said, “On the contrary, the last time I spoke to her, which was 8 or 9 days before she died, she asked me if I still had my copy of the agreement” and he responded that he did and said, “If necessary, I’ll be using it”. Michael said that Mary responded, “Well, you’ve got to do what you’ve got to do”, or words to that effect. If said, bearing in mind that I have not found Michael’s evidence persuasive, both the inquiry and the answer, do not suggest that Mary did not want to end the agreement. They suggest that she felt that she had ended the agreement, she was tired of Michael and if he wanted to persist with what was not rightfully his that was his problem. It is also odd, in the context of what Michael says was a considered agreement by Mary and him, if the oral evidence is true, that Michael thought that he had to say that if necessary he would be using the agreement.”

94. [94]
    Another example was her Honour’s consideration of Michael’s evidence that he consulted a solicitor about the claims between 2002 and 2004:

“[112] In this case, Michael says he consulted a solicitor about the claims in 2002, 2003 or 2004, but the solicitor did not open a file. There is nothing to suggest that Michael sought or obtained serious legal advice or took any steps to pursue any claim. Michael says he had been discussing these matters with Mary and her sisters from the 1990s, but says he never threatened legal proceedings of any kind against Mary. It is true that in examination in chief, and in re-examination, when his mind was turned back to historical grievances, Michael said he did think he had a right to take action against Mary, but in cross-examination he accepted that his view that Mary was liable for the debt incurred by her father, Stephen Joseph Kavanagh, amounted in her hands to no more than a moral, not a legal, obligation.”

95. [95]
    The July reasons evidence a careful and conventional analysis by her Honour of the evidence leading to the conclusion that Michael’s evidence should not be accepted unless corroborated.  That conclusion was drawn not purely from the observations by her Honour of Michael’s demeanour, but by reference to other evidence which her Honour was entitled to accept and by a course of reasoning of what her Honour thought was most likely to have occurred.  There can be no valid criticism of her Honour’s rejection of Michael’s evidence.

Issue 2 – Inferences

96. [96]
    Paragraph [84] of the July reasons appears in paragraph [93] of these reasons.
97. [97]
    Michael complains that it was not open to her Honour to conclude from the conversation referred to in paragraph [84] that Mary believed that she had ended the Agreement.  The submission ignores the significance of other findings in the reasons.
98. [98]
    The very next paragraph is:

“[85] Mary died on 14 September 2016; with her last will being that signed on 16 August 2013 which left Emerald View to John Byrne.”

99. [99]
    The Agreement provides for Emerald View to be left to Michael.  As observed in paragraph [85] of the July reasons, three years before her death, Mary had changed her will so that, contrary to the Agreement, Emerald View was left to Mr Byrne.  Mary had clearly by that stage decided not to comply with the terms of the Agreement.  Against that context, the words “well, you’ve got to do what you’ve got to do” could only reasonably be taken to mean that Mary considered the Agreement was not binding upon her and that if Michael wanted to persist with it, that was a matter for him.  That is precisely what her Honour found.
100. [100]
     Further, the evidence otherwise supports the logic of her Honour drawing the inference that Mary considered that the Agreement was not binding upon her.  There were findings that Mary considered that she had been coerced into signing the Agreement.^[51]  There was her letter to Michael.^[52]  There were her statements to Mr Pender.^[53]  While those statements were not admitted as to the truth of what Mary said, the fact that she said them was relevant to her state of mind.^[54]  Mary made various complaints to Mr Pender in the lead up to the making of the will of 16 August 2013.  Upon Mr Pender’s advice, she swore her affidavit.  In that affidavit,^[55] she says at paragraph [64] “I do not believe that the Agreement is legally binding”.
101. [101]
     There is no valid complaint as to the inferences drawn by the trial judge at paragraph [84] of the July reasons.
102. [102]
     Michael further submits there is error in paragraph [123] of the July reasons:^[56]

“[123] As to the first act relied upon, although the agreement expresses in mandatory terms that Michael was obliged to purchase the Thagoona House, as I have already observed there is no evidence that Mary wished to sell it and it is clear that Michael considered that much of her property was rightfully his anyway. The effect of the payment of $250,000 by Mary to Michael in cash was essentially a round-robin of transactions for which Mary received no benefit and Michael suffered no detriment. There is, in any event, nothing which shows that the purchase of the Thagoona property has any relationship with the promise to bequest the Emerald property.” (emphasis added)

103. [103]
     Michael’s complaint is that, contrary to what is said in paragraph [123] of the July reasons, there was evidence that Mary wished to sell Thagoona House to him; she entered into the Agreement and she conveyed Thagoona House to him.
104. [104]
     Her Honour was obviously aware of the fact that Mary entered into the Agreement and that the Agreement contained a covenant that she would sell Thagoona House to Michael.  Her Honour was also obviously aware that Mary did in fact convey Thagoona House to Michael.  In the July reasons, her Honour recorded:

“[3] By the agreement Mary agreed to bequeath to Michael a property known as Emerald View. The agreement included a gift by Mary to Michael of $250,000, which Michael then utilized to purchase Thagoona House, another property owned by Mary. Thagoona House was sold to Michael for $200,000.”

105. [105]
     In paragraph [123] of the July reasons, her Honour refers to an earlier observation.  Her Honour says “… as I have already observed there is no evidence that Mary wished to sell [Thagoona House] …”.  That earlier observation is made in paragraph [104]:

“[104] Although the agreement expresses in mandatory terms that Michael was obliged to purchase the Thagoona property, there is no evidence that Mary wished to sell it and it is clear that Michael considered that he was entitled to much of the property then owned by Mary. The effect of the payment of $250,000 by Mary to Michael in cash essentially meant that there was a round-robin of transactions; with Mary getting no benefit from the transaction itself. Michael suffered no detriment either. There is also nothing moreover which shows that the purchase of the Thagoona property has any relationship with the promise to bequest the Emerald property.”

106. [106]
     In paragraph [104], her Honour is observing that there was no evidence that Mary had a general wish to sell the property in the sense of disposing of it for value.  Her Honour explains, in that paragraph, that Mary effectively gifted Thagoona House to Michael.  That is the sense in which her Honour made the observations which she did in paragraph [123] and no error is shown.

Issue 3 – Mary’s statements

107. [107]
     The evidence of Mary’s statements was admitted under s 92 of the Evidence Act as an exception to the hearsay rule.  The effect of s 92 is that, provided prescribed conditions are fulfilled, evidence which could be given in court by the maker of the statement can be received through the statement(s).
108. [108]
     Section 102, which is in the same part of the Evidence Act as s 92 provides:

“102 Weight to be attached to evidence

In estimating the weight (if any) to be attached to a statement rendered admissible as evidence by this part, regard shall be had to all the circumstances from which an inference can reasonably be drawn as to the accuracy or otherwise of the statement, including—

1. the question whether or not the statement was made, or the information recorded in it was supplied, contemporaneously with the occurrence or existence of the facts to which the statement or information relates; and

2. the question whether or not the maker of the statement, or the supplier of the information recorded in it, had any incentive to conceal or misrepresent the facts.”

109. [109]
     Michael complains that some of the assertions in the statements are matters of opinion and therefore not admissible.  It is also submitted that the trial judge did not properly assess the evidence by reference to the various circumstances prescribed by s 102.
110. [110]
     As earlier observed, the statements, including the affidavit, were admitted without objection.  This was a considered step as is shown by footnote 23 to the final written submissions made on Michael’s behalf at the trial:

“The admissibility points that the plaintiff was going to raise related to the conclusory language of the affidavit and letters. For the statements to be admissible, the evidence in them must have been admissible if it were given in direct oral evidence (section 92(1) of the Evidence Act 1977). As has previously been observed by Judge Koppenol^[57] in relation to the affidavit, those parts of the affidavit alleging “harassment”, “coercion” and the like are conclusions and opinions and inadmissible: See Cross on Evidence, LexisNexis online edition, at [29130]. Additionally, the plaintiff intended to bring an application under section 98 of the Evidence Act 1977 to exclude the evidence on the basis that the relevant evidence was opinion and conclusory and it would be prejudicial to receive it in circumstances where the provenance of the documents was questionable and the affidavit was deliberately drafted using vague language in circumstances where the very dispute before the court was contemplated. The plaintiff was [content] to allow the documents to be admitted, but maintains those points in submitting that the statements should be given no weight.”

111. [111]
     The time has long past for the making of objections to the admissibility of Mary’s statements.  They were received into evidence for all purposes.^[58]
112. [112]
     At paragraph [28] of the July reasons, her Honour observed:

“[28] There was a letter from Mary and an affidavit sworn by her which was admitted into evidence under s 92 of the Evidence Act 1977 (Qld). It is more convenient if I deal with the admission of that evidence during the course of discussing the evidence. It is sufficient to note that the letter and the affidavit were evidence in the case, and I propose to rely upon them, notwithstanding the limitations about them which were submitted on behalf of Michael.”

113. [113]
     No submissions were made orally at trial as to the way the trial judge should approach Mary’s statements.  Written submissions were received.  In those written submissions, it was said on Michael’s behalf:

“12. The evidence relied on by the defendants in Mary’s affidavit should be given no weight. Despite having the benefit of legal advice anticipating the very dispute that is now before the court, Mary couched her evidence in conclusory terms and did not descend into any detail in her affidavit about the conduct alleged against Michael. There is no evidence of the “harassment” and “coercion” alleged. The conclusory terms of the passages of the affidavit are not evidence at all. Additionally, Michael’s unchallenged evidence as to the drafting of the affidavit and Mary’s letters, coupled with the circumstances surrounding their preparation raise serious questions as to its reliability which remain entirely unanswered by the defendants. The affidavit and letters are wholly unreliable.” (footnotes omitted)

114. [114]
     Section 102 of the Evidence Act is not mentioned in either the text or the footnotes of the written submissions.
115. [115]
     It is not the trial judge’s function to consider every imaginable argument which might be raised.  The system is an adversarial one.  Her Honour was required to deal with those issues raised on Michael’s behalf.
116. [116]
     In the written submissions, the criticism of Mary’s affidavit was:

     1. the affidavit is couched in conclusory terms;
     2. it did not descend into detail of the harassment and coercion; and
     3. Michael’s evidence as to the drafting of the affidavit and Mary’s letters affected their reliability.
117. [117]
     Her Honour was alive to the fact that these were the arguments raised by Michael in respect of Mary’s statements.  Her Honour observed:

“[74] An affidavit was subsequently prepared in Mr Pender’s office and sworn by Mary on 19 August 2013. The affidavit was tendered as an exhibit under s 92 of the Evidence Act. Although counsel for Michael submitted that the affidavit should be given no weight given the circumstances surrounding its making, Michael’s observations about its contents and that it contained opinion and swearing of the issue, it was not submitted that it was inadmissible. This is consistent with the authority as to the admissibility of statements as to opinion to which I was referred by counsel for Mary. It is also consistent with the authorities to which I have referred to earlier, and for similar reasons as regards the letter dated 30 May 2013, I propose to act upon it.”

118. [118]
     Her Honour considered those submissions and concluded:

“[80] There are certainly conclusory statements in the affidavit, but that is not unusual in affidavits and it was reasonable in my view for a 95-year-old person to express themselves in those terms and for a solicitor, not knowing whether the affidavit would have to be used, to take the affidavit in that form. Leaving all that aside, I consider that it is appropriate that I rely upon it as truth of its contents. The contents are consistent with what Mr Pender said he was told by Mary, Michael’s involvement with Mary’s accountant, the changes in Mary’s wills and my own view of the likely conduct of Michael.”

119. [119]
     No error has been identified in relation to the way her Honour dealt with Mary’s statements.

Issue 6 – Unconscionable conduct

120. [120]
     It is convenient to deal with the complaints about her Honour’s consideration of unconscionable conduct as it is unnecessary to consider Issues 4^[59] and 5^[60].
121. [121]
     Undue influence and unconscionable conduct both give rise to equitable defences against the enforcement of contracts.  Both doctrines concern the conduct of the stronger party to the impugned bargain.  Undue influence will render the contract voidable where the conduct of the stronger party has overborne the will of the weaker party.^[61]
122. [122]
     Unconscionable conduct “looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, a dealing with the person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so”.^[62]  Four elements must be proved in order to establish the equitable defence:

     1. a party must be at a special disadvantage, condition or circumstance in relation to the other party;
     2. the stronger party must have notice of the special disadvantage;
     3. the stronger party must take advantage of the special disadvantage; and
     4. the stronger party must do so unconscientiously.
123. [123]
     The learned trial judge correctly directed herself as to the relevant legal principles and then:

“[152] The actions of Michael, in pressing his view of the history of the family dealings, clearly seriously affected the ability of Mary, a person of advanced age and frailty, to make a judgment as to her own best interests. Michael knew the age and frailty of Mary; as appears by what he said to Stephen and Mr Pender. Michael surely by these means knew that Mary was at a serious disadvantage to him. He took advantage of the situation by typing up a very one-sided agreement where Mary got nothing in return except, on his case, absolution from him for the sins of her father. Michael got her to sign the agreement and had the signatures witnessed by a person close-by to where the agreement was made and before she had any opportunity to discuss it with her cousin, Stephen, who was also a lawyer or her usual solicitor, Mr Pender.”

124. [124]
     Mary was in a position of disadvantage.  She was 96 years of age at the time she signed the Agreement.  Fullagar J in Blomley v Ryan^[63] identified advanced age as a factor which might establish or contribute to establishing a position of disadvantage.  Mary had lost her two sisters in 2008 and had never married or had children.  She therefore had no immediate family.  Michael was a broader family member who, the trial judge found, was a forceful personality.  The trial judge accepted Mr Pender’s evidence that over the relevant period Mary “… was becoming increasingly frail and … increasingly vulnerable”.^[64]
125. [125]
     Michael knew of Mary’s position of disadvantage.  He had known her for many years, knew her age and knew that she had lost her remaining siblings in 2008.  Indeed, the death of Kathy marked the beginning of the period where Michael commenced contact with Mary and began discussing with her what he saw as the resolution of the historical complaints.
126. [126]
     Michael told Mr Pender on 11 February 2010 that Mary was acting in a confused manner.^[65]  In his letter of 10 December 2011 to Stephen Kavanagh, Michael said that Mary was showing signs of “steady deterioration both in mind and body”.^[66]
127. [127]
     Michael took advantage of the position of disadvantage of Mary.  He knew that Mr Pender acted for her in matters of her estate planning.  He had discussed Mary’s wills with Mr Pender.  Michael though prepared the Agreement himself and had Mary sign it without first reference to Mr Pender.  This is against the backdrop of Michael’s persistence in pursuing resolution of the historical complaints.  As the trial judge accepted, Mary was being coerced and harassed by Michael.
128. [128]
     The Agreement completely favours Michael to the disadvantage of Mary.  By an artificial contrivance whereby Mary gave Michael money to then purchase the Thagoona property from her, Michael effectively obtained an inter vivos gift of that property.  He also secured a contractual promise to the bequest of another property upon Mary’s death.
129. [129]
     The only consideration which is suggested to be passed to Mary in exchange for the two properties and the right to the brands was Michael giving up claims based more on family legend than evidence and which concern events over 70 years ago.  It is not necessary for a party who is claiming unconscionable conduct to show inadequacy of consideration.  Inadequacy of consideration in itself will not necessarily establish unconscionable conduct.^[67]  However, inadequacy of consideration may be an important feature in the assessment of conduct.^[68]
130. [130]
     A finding that in those circumstances the contract had arisen from Michael’s unconscionable conduct was not only open but all but inevitable.  No error in making such a conclusion by the trial judge is shown.
131. [131]
     Michael’s case depended, subject to the estoppel case, upon the Agreement being enforceable.  Given that the Agreement falls as a result of Michael’s unconscionable conduct, there is no need to consider Issues 4^[69] and 5^[70].

Issue 7 – Estoppel

132. [132]
     The estoppel case was pleaded in Michael’s reply and answer.  The representations alleged to be made by Mary were pleaded as:

“By carrying out the terms of the February 2012 Agreement, Ms Kavanagh represented to the plaintiff that she intended to perform the agreement in its entirety, including leaving Emerald View to the plaintiff in her last will”.^[71]

133. [133]
     Michael’s case was put in his final written submissions as:

“42. In answer to the defendant’s arguments in respect of consideration and in answer to the defence in its entirety, the plaintiff pleads that the estate is estopped from rescinding or avoiding the February 2012 agreement because:

1. By carrying out the terms of the February 2012 Agreement (i.e. by paying the money under the agreement, carrying out the Thagoona sale, observing all other terms and not taking any step to avoid the agreement) Mary implicitly represented to Michael that she would abide by the agreement and gift Emerald View to him upon her death;

2. Michael relied on that representation to his detriment by himself abiding by the terms of the agreement.

43. In reliance on Mary’s actions and inaction in her lifetime, Michael bought the Thagoona property, improved it and, amongst other things, refrained from further investigating and pursuing his claims. Had Mary sought to avoid the agreement in her lifetime Michael would have been able to defend that action or take his own action (either to enforce the February 2012 Agreement or enforce some or all of the underlying claims). By remaining silent, Mary has deprived Michael of that opportunity, but also deprived him of the advantage of her own evidence and admissions as well as several years of time to investigate and prove his case, not to mention his efforts in improving the Thagoona property.
44. The defendants cannot escape the consequences of Mary taking no step to avoid the agreement in her lifetime. Ordinary doctrines of common law or equitable estoppel prevented Mary, and prevents the estate, from relying on those matters pleaded in defence to this claim, as do the principles of waiver, affirmation and laches outlined earlier in these submissions.”

134. [134]
     Michael’s reliance and detriment were pleaded in the reply and answer as:

“Ms Kavanagh was during her lifetime estopped from avoiding the agreement and, consequently, the first defendants are estopped from avoiding the agreement.”^[72]

135. [135]
     Her Honour dismissed the estoppel claim upon a finding that Michael suffered no detriment in relying upon the representations constituted by Mary entering into the Agreement and part performing it.^[73]  It is that finding which is challenged on appeal.
136. [136]
     Whether it was necessary for her Honour to consider detriment must be a matter of some doubt.  The doctrine of promissory estoppel is based upon unconscionability.  Following a line of authority commencing with the judgment of Dixon J (as his Honour then was) in Thompson v Palmer^[74] and concluding with Walton Stores (Interstate) Ltd v Maher,^[75] Deane J in Commonwealth v Verwayen^[76] observed:

“2. The central principle of the doctrine is that the law will not permit an unconscionable — or, more accurately, unconscientious — departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that other party’s detriment if the assumption be not adhered to for the purposes of the litigation.”^[77]

137. [137]
     Where a person to whom the relevant representation is made has, to the knowledge of the person making the representation, relied upon the representation and suffered detriment, and it is unconscionable for the maker of the representation to resile from the representations, equity intervenes and an estoppel arises.
138. [138]
     The trial judge’s findings that the Agreement was a result of unconscionable conduct of Michael was, in my view, correct for the reasons already explained.  Therefore, Mary lawfully avoided the Agreement.  Where the Agreement is vitiated by Michael’s unconscionable conduct, Michael’s case that it is unconscionable for Mary to avoid it faces obvious difficulties.
139. [139]
     However, the respondents fought the estoppel case both at trial and on appeal on the basis that no detriment was shown.
140. [140]
     What Michael was required to prove was not only detriment, but a material or significant detriment or disadvantage.^[78]
141. [141]
     Because an estoppel arises to remedy the effect of unconscionable conduct by the representor, it follows that the detriment must be one that makes it unconscionable for the representor to resile from the representation.^[79]  The representations here were contractual in nature.  The detriment to Michael allegedly flows from the failure of Mary to fulfil contractual promises extracted from her by Michael’s unconscionable conduct.  It must be doubtful that is a relevant detriment.
142. [142]
     One alleged detriment relied upon by Michael is that, by the terms of the Agreement, he gave up any claims arising from the historical complaints.  Her Honour dismissed that submission on two bases:

     1. Michael did not give up the claim in reliance upon the promise of receiving Emerald View or the $250,000 paid in cash;^[80] and
     2. there was no evidence to suggest that there was any substance in the historical claims.^[81]
143. [143]
     Both these findings are, in my view, clearly open and ought not be disturbed.  Michael had known of the historical dispute for decades.  He had never taken any steps to address these alleged wrongs until he began agitating the issue with Mary in 2008.  In any event, if the Agreement is set aside, then Michael’s covenant not to sue is not extinguished.  The only possible impediment to him instituting proceedings might be a limitations defence.  If that is a problem now, then it would surely have been a problem in 2012.
144. [144]
     As to the lack of value of the claim, her Honour found:

“[126] It is also doubtful whether there was anything to pursue. As I have already commented, on Michael’s version the wrongs were done to his grandfather and father; wrongs which Michael said he was aware of since at least the age of four and wrongs which he had been discussing with Mary and her sisters since about the 1990s. The claims are based on transactions which occurred well before Michael was born and seem largely founded on things he had been told by his aunts and father when he was a very young person. All of these people are deceased. As already noted, it does not even appear as if the things he was told were based on any first-hand knowledge of the tellers. Further, on their own, any documents, such as they are, do not enable any positive conclusion to be drawn as to prospects.

[127] As became clear during the course of the evidence, there was little or no evidentiary basis for the allegations recorded in the agreement or stated by Michael. Whether he believed that his father or grandfather or himself or his family had been wronged is not to the point. The question is whether the Court can find that he suffered real detriment by not pursuing these claims. In my view, the evidence in support of the claims is so poor, particularly against Mary, that it is impossible to conclude that Michael suffered any real detriment in reliance on the representation that Mary would bequeath Emerald View to him.”

145. [145]
     The observations made by her Honour as to the lack of an evidentiary basis for the claims are clearly correct.  Once that is accepted, her Honour’s conclusions that the claim has little or no merit are clearly open and I would not draw any contrary conclusion.  There is no real detriment suffered by Michael as a result of any compromise of claims arising from the historical dispute.
146. [146]
     The second alleged detriment concerns Thagoona House.  It was alleged by Michael to be detrimental to him that he bought that property and improved it.
147. [147]
     It cannot be that the actual acquisition of Thagoona House was detrimental to Michael.  By the terms of the Agreement, Mary was obliged to pay $250,000 to Michael and Michael was obliged to purchase Thagoona House from Mary for $200,000.  Those two obligations were clearly interdependent.  The fulfilment of the bargain whereby Michael is effectively gifted Thagoona House could not be detrimental to him.
148. [148]
     In the submissions made to her Honour on the question of final orders, the respondents sought either:

     1. the transfer of Thagoona House to the estate and payment of $50,000; or alternatively
     2. payment of $250,000 to the estate with Michael retaining Thagoona House.
149. [149]
     In the November reasons,^[82] her Honour records:

“[11] Michael submits that the appropriate order is simply that he pay the sum of $250,000 to the trustees. In support of that submission, Michael says that whilst the purchase of the Thagoona property was referred to in the agreement, it was a separate transaction and there was no evidence, nor was it the case for the trustees, that the property was purchased at undervalue.

[12] The only evidence on the subject was from Michael. Michael gave evidence that a valuation of the property had been obtained at the instigation of Mary, prior to entering into the agreement.”

150. [150]
     It can be seen in paragraph [12] of the November reasons that her Honour refers to evidence given by Michael of Mary obtaining a valuation.  Michael’s evidence on that topic was:

“Right?---And I went in and saw Mr Ross. And as I said, I had only – I picked up a valuation off him which Mary had arranged and met - - -

That’s for the Thagoona house that you’re purchasing for 200?---Yeah. Yeah, that’s - - -

Yes. Was t hat before the signing of the agreement or after?---It would have been prior to signing the agreement.

Okay?---She wanted a valuation on her house. Mr Ross gave the valuation. Yeah.

Okay?---On her instigation, not mine.”^[83]

151. [151]
     No written valuation of Thagoona House by Mr Ross was tendered in evidence at the trial.^[84]  However, there was no evidence that Thagoona House was worth less than $200,000.  As can be seen from the November reasons, Michael’s position was that he wished to retain Thagoona House and pay the estate the $250,000 which, by the terms of the Agreement, was paid by Mary in extinguishment of any claims arising from the historical complaints.
152. [152]
     In all of those circumstances, it can be concluded that no detriment was suffered by Michael as a result of his acquisition and improvement of Thagoona House.  Her Honour was right to dismiss the estoppel claim.

Conclusions

153. [153]
     There is no substance in any of the matters raised by Michael and consequently the appeal should fail.  I would dismiss the appeal with costs.