Jones v Jones[2014] QDC 150

A. The defendant is her only son, from her only marriage. He was born on 16 February 1961. After she separated from her husband, her son remained living with his father, from age 4 to 17 years. She had little contact with her son from when he was aged 9 and he moved with his father to Queensland.

B. When he was 17, the defendant came to live with his mother in Sydney, in order to complete an apprenticeship as a motor mechanic.

C. In 1984 and after a suggestion by the defendant, the plaintiff came to reside in Queensland. After initially staying with a niece, she obtained employment and her own residence and later purchased the Buddina property. She paid $54,000 for that property and borrowed $40,000 from a bank.

D. In 1984, she lent $5,000 to the defendant, at his request and because she understood him to be in some financial difficulty. She described an incident occurring at a Christmas party, where in conjunction with her request for repayment of that loan, she was eventually assaulted by the defendant and knocked into the front garden at her niece’s house.

E. By 1996, the plaintiff had ceased her full-time employment but and until 2002, when she commenced receiving a pension, she did some casual work (“a few hours a day”) for a friend.

F. By 2002, the defendant and his wife, Sharon, had separated. Early in that year and due to disharmony between the plaintiff’s granddaughter, Kelly, and her mother and at the defendant’s request, Kelly came to live with her grandmother. Initially it was for three days a week before the plaintiff would take her back to her mother at the Sippy Downs property. There was no offer or discussion of any financial assistance for the care of Kelly, except that the plaintiff explained that he wanted this “because it would interfere with his social life” and the plaintiff further explained in relation to Kelly coming to live with her permanently:

“I felt sorry for Kelly. All I wanted to do was make her life a little bit better than it had been in the past. So I thought I was doing the right thing by looking after her to the best of my ability.”^[1]

G. Subsequently Kelly came to live more permanently with the plaintiff and she explained that this arrangement required her to drive Kelly to and from school at Sippy Downs and that she was finding the cost of fuel, in particular, difficult to bear and she requested assistance. That only came occasionally in amounts of $20 (and $50, on one occasion). In February or March 2002 and in a discussion with the defendant about the financial strain about caring for Kelly and the plaintiff’s suggestion that Kelly change to a closer school, the defendant said he would not agree to Kelly changing school and suggested that the plaintiff sell her home and move to the Sippy Downs property.

H. The plaintiff’s evidence was that the defendant said that if she sold her house and gave him $50,000, she could live at the Sippy Downs property for life. She approached a real estate agent and put her property on the market and it was sold under contract, dated 19 July 2002.^[2] When that contract became unconditional, the defendant said to her that:

“… he couldn’t consider me moving into the house for the 50,000 that he’d – that he’d first asked me for. He wanted a hundred thousand because he had to pay his wife the settlement. And the other 50,000 would help him out; he wouldn’t have to pay interest on the money if he had to borrow it.”^[3]

She:

“…didn’t think it was fair but I was in a position where I had to think of Kelly’s welfare and also my own. And if I hadn’t have agreed to what he suggested, well then we wouldn’t have had anywhere to live.”^[4]

I. Settlement was effected on 19 August 2002 and from the proceeds of the sale price of $179,000 for the Buddina property, $159,044.92 was paid to the plaintiff’s bank and $11,146.46 was paid to the Caloundra City Council, in respect of arrears of rates^[5]. Out of the money paid to the plaintiff’s bank, $18,419.23 was repaid as the balance owing on the loan for the purchase of the property and the plaintiff was also entitled to receive the balance of the deposit paid on the purchase of the Buddina property, being $8,500, less the agent’s commission.^[6] From the balance of the funds received by the plaintiff and by bank cheque dated 10 September 2002, she paid $100,000 to the defendant. By then she had been living in the Sippy Downs property, with Kelly, for about four to six weeks.

J. By reference to Exhibits 10, 11 and 12, the plaintiff’s evidence was that, at the defendant’s suggestion, false representations were constructed, so that the $100,000 given to the defendant was represented to Centrelink as only including a gift amount of $10,000. It was otherwise falsely represented that the payment was made in consideration of:

$40,000 to repay (with interest) the amount of a loan for the deposit for the purchase of the Buddina property;

$15,500 for the purchase of a motor vehicle; and

$34,500, as a loan and to assist the defendant with a divorce settlement payment.^[7]

K. As a consequence and in addition to her pension and the Family Tax Benefits A and B (which benefits she had been receiving in respect of her care of Kelly, since April/May 2002), the plaintiff then and from late 2002, also received a Rent Assistance Allowance from Centrelink. It would appear that the false representations are now understood to have been unnecessary, but clearly were provided on an incorrect understanding of the applicable tests for the plaintiff’s entitlements and therefore with dishonest intent to ensure the receipt of the allowance, which was received by the plaintiff and spent on living expenses for Kelly and herself. The dishonesty in respect of dealings with Centrelink continued, in that the allowance was paid upon periodic rent certificate declarations, which were made and provided to Centrelink by the plaintiff, with the defendant’s confirmatory declaration as landlord.^[8] The effect was that, at the defendant’s suggestion, it was represented that the plaintiff was, from 17 August 2002, paying $220 in rent per week, in respect of the Sippy Downs property, where she and Kelly lived. The plaintiff’s explanation for doing these things at the defendant’s direction was given as follows:

“Now, why did you allow Darren to persuade to you to say things to Centrelink which you knew weren’t true?-- Because I was frightened of Darren and I just did what he wanted me to do to just keep the peace.

You’ve told us in 1984 he struck you and you ended up in a garden bed as a result?-- Yes.

Prior to September 2002, are you able to tell the court how he treated you at times?-- Badly.

Well, what do you mean by that necessarily?-- Well, he - he’d sort of stand over me and say that I was an idiot and I couldn’t do this, and I wasn’t competent. He always put me down, always.

When you say he stood over you, do you mean that‑‑‑‑‑?-- Well, he’d get in my space and - and say, you know, what do you think you’re doing or what you I do think you’re saying, and all that sort of thing. He’d just - to my way of thinking, he didn’t have any respect for me at all. That’s only me.

What was the tone of his voice when those types of instances were occurring?‑‑ Very threatening.

How did you feel about that? What did you that make‑‑‑‑‑?‑‑ It used to make me feel sick and I was frightened of him. I didn’t know why he was like that, but he resented me always.”^[9]

L.From mid-2003, the plaintiff received group certificates from the defendant’s business, Coast Clean Pty Ltd, but she never worked for or received money from this company.

M.Kelly remained in the care and custody of the plaintiff from 2002 (when she was about 11 years old) until January 2008, when she left the Sippy Downs property. In that period, the plaintiff provided for her, including paying all school fees and clothing and other needs such as glasses. The defendant had given her his girlfriend’s old horse and the plaintiff paid for riding lessons and veterinary costs for the horse.

N. Following the departure of Kelly from the Sippy Downs property, the defendant told the plaintiff that he wanted her to leave that property and the plaintiff requested the return of her money. Subsequently the defendant wrote to the plaintiff, by a letter dated 6 June 2008 and in the following terms:

“With reference to our conversation on Wednesday 4^th of June

Re: your request for me to financially support you in regards to a place of residence and your request for $100,000.

Through previous experience you have proven your inability to manage resources and available funds to the detriment of all associated. Therefore you will receive $20,000 to assist in your relocation and a support payment of $140 per week, every week, to assist you with your living expenses. I will also set aside $10,000 which can be drawn upon should any emergency situation arise.

Funds will be available from 1^st of July 2008 for your relocation with the balance of $20,000 to be paid when you vacate 40 Bernheid Crescent; Sippy Downs.

40 Bernheid Crescent: Sippy Downs will soon be listed and sold to alleviate accumulated debt and must be vacated by 1^st August 2008.

Please forward any questions to PO Box 338; Buddina; 4575.”  

A further letter dated 7 July 2008 was then sent, in the following terms:

“Five weeks have now passed with no response or request for funds from you regarding your relocation from 40 Bernheid Crescent, Sippy Downs. With your total inaction it is obvious that you have again chosen to work against me and not with me on this matter.

Attached is a RTA ‘Notice To Leave’ dated 7^th July 2008 which gives you 2 months to vacate 40 Bernheid Crescent, Sippy Downs, 4556. (8 September 2008)

Real estate agents will be contacted today regarding the sale for 40 Bernheid Crescent, Sippy Downs, 4556. They in turn will forward to you an ‘Entry Notice’ so as to view the property.

My previous response to your request for $100,000 to vacate currently still stands and is repeated below.”

The letter then proceeds to repeat the last four paragraphs of the contents of the previous letter.

O. The plaintiff accordingly vacated the Sippy Downs property, which was sold but she has not received any repayment from the defendant.

1. (a)
   There was a mutual benefit in the plaintiff becoming involved in Kelly’s care, in that and in addition to her feeling obligated to do so, as a grandmother, it also gave some value to her life, as she felt that she was of some need.^[10]

2. (b)
   In an affidavit prepared in respect of these proceedings,^[11] she had described the discussions and arrangements leading to the payment of $100,000 to the defendant, in the following terms:

“21. Sometime in either February or March 2002 I told Darren that I was experiencing financial difficulty and suggested to Darren that Kelly should move to a school closer to my home to help cut down on expenses associated with getting her to and from school.

22. Darren would not allow Kelly to change schools.

23. Darren suggested I sell my house at Buddina and move to a house he owned at Sippy Downs. There was no-one living in the Sippy Downs house at the time.

24. The conditions of this arrangement were as follows:

1. (a)
   I could live rent free at Sippy Downs for the remainder of my natural life; but

 (b) I should continue to raise Kelly; and

3. (c)
   I should give Darren $50,000 from the sale of my house.

25. I understood that for a payment of $50,000.00 I was securing a right to reside at the property rent free for life.

26. Darren said ‘if you give me $50,000 you can live in Sippy Downs forever’.

27. I was not otherwise considering selling my house at the time of the proposal.

28. On 19 July 2002 I signed a contract of sale for the Buddina house, with settlement to occur 30 days after that date. The house was sold for $179,000.

29. Once the contract of sale became unconditional and I could no longer get out of the sale, Darren demanded $100,000 from me.

30. I assented to Darren’s demands because by that time the contract for sale of the Buddina house was unconditional and I felt I was unable to back out.

31. Had I not paid as Darren demanded, I would have been left with neither my house nor sufficient money to purchase another residence.

32. I still believe that by co-operating with Darren I was securing a home for life and a place where I could care for his daughter.

33. In response to my protests about his demands for the $100,000 he said ‘if you give me the $100,000 you can live in Sippy Downs forever’. He told me that the money would help him out. Although I would have liked to help him I felt that I was being compelled by circumstances that Darren had created to comply with his demands.”^[12]

3. (c)
   On 26 June 2008, she signed the following statement, as prepared for her by a woman, at Centrelink:^[13]

“I loaned my son Darren Jones $100,000 on 10 September 2002. The information I gave in 2002 was incorrect and I am aware that I may have been overpaid and if so, will be required to repay this. My son repaid me some money and I advised of this in 2007. Re: rent assistance, no money changed hands – I didn’t pay any rent to my son because he didn’t pay me any money for looking after his daughter”.

She further explained that the repayment referred to was in respect of her need for an eye operation. She said “he paid it because he wanted me to be able to drive to take Kelly wherever she had to go and I deducted from the $100,000”.^[14]

4. (d)
   Although she agreed that she did not pay the defendant any rent for occupying the Sippy Downs property or for any rates or any insurance, she maintained the lawns, erected a shed and put up blinds and put in an air conditioner.^[15]

5. (e)
   Despite having lawyers acting for her in the conveyance of the Buddina property, she sought no legal advice about the arrangements with the defendant, even when the defendant requested $100,000 instead of $50,000. She said she had been happy to pay the $50,000.^[16]

1. (a)
   That the $5,000 provided to him by the plaintiff, previously, was not a loan but a sum of money the plaintiff was concerned about keeping, because she was then in receipt of unemployment benefits and whilst he was abused by her, in connection with her demands for the return of the money at a family gathering, there was no physical altercation.^[17]

2. (b)
   The Sippy Downs property had been purchased consequently upon his separation from his wife Sharon, in 2000 and as a place for her and their children, Kelly and Matthew, to reside. They had purchased the property jointly but he had borrowed $100,000 to fund the purchase and Sharon’s share in the property was 33%. The situation did not work well, because of Sharon having post natal depression and her excessive consumption of prescription medication and alcohol. The children and particularly Kelly, were spending time with the plaintiff.^[18] The defendant was cross-examined as to the terms of settlement between he and his former wife, under s 79 of the Family Law Act (Exhibit 28), wherein the 33% interest of the wife in the Sippy Downs property was recorded, along with the reservation of a sole right of occupation, subject to the children remaining in her care and subject to specified divided responsibilities in respect of the expenses or outgoings in respect of that property and a requirement for rental payments by the wife, at the rate of $134 per week (expressly calculated at 67% of a market rate of $200, as at March 2000), during such occupation.^[19]

3. (c)
   He described the discussion in the respect of the arrangement whereby the plaintiff came to reside at the Sippy Downs property, as follows:

“… Kelly started living with Hazel, I would say, late January, early February… 2002… because Kelly wasn’t – no longer in the house at Chancellor Park, I basically had three households to look after… Hazel’s, Sharon’s and my own. So it became a burden. There’s another story behind that, business story. But it became a burden to keep the house at Chancellor Park. So I said to Sharon we’ll sell it up, you can take your money out of it and it’ll be gone. She was quite happy with that. So as time went on, and we’re probably talking, I would guess, May/June, something like that, Kelly was living with Hazel. We were having fairly regular contact because, obviously, Hazel wasn’t collecting any benefits for Kelly; Sharon still was. So we were having fairly regular contact. And I told Hazel that I was going to sell the house and she said, well, why don’t you keep it. I said well, I have to sell it. I – I don’t have an option. I – really, it needs to go. And she said, well, I could move into it. I went OK. So I went away and thought about it. … Hazel was happy to contribute to – monetary value to the property so the property could remain with us, I suppose you’d call it. That was pretty much it. … She really wanted to move to Sippy Downs property. She wanted to sell her property and move on… There are quite a few reasons. Clear debt. She was in trouble financially. She had mortgage repayments behind. She had rates behind… have a better lifestyle. She actually said to me she had something to live for, which was Kelly. Yeah and probably no responsibility on costs. Like, no – no more worrying about the mortgage, no more worrying about the rates, etc, etc…The discussion was always $100,000 and $100,000 was always regarding not going into her bank account… She told me that she didn’t want the money in her bank account because it would interfere with her pension incomes.”^[20]

4. (d)
   The defendant’s evidence was that there was no further discussion or agreement about the basis on which he would hold that amount of money.^[21] In cross-examination there was the following exchange:

“Well why did you take it?-- She said take it. What am I going to do. Here’s the money. I need it out of my bank account. It happened previously when she moved from Sydney to Queensland. Put $5,000 in your bank account, Darren, because I –I don’t want it in there. I don’t know.”^[22]

5. (e)
   He described receiving the cheque for $100,000, which he deposited and then dissipated from a bank account. In particular and in cross-examination, it was confirmed that the receipt of these funds had enabled him to pay out his former wife’s share in and also the mortgage over the Sippy Downs property and in December 2002 he transferred $35,000 into a line of credit account, to avoid exceeding the overdraft limit of $100,000, on this business account and enable other property investment.^[23] Earlier and although he then went on to cavil with there being any implication of financial strain, there was this exchange:

“At that particular point in time, how was your business going?-- 2002, it was actually fledging along. I just bought, around 2002, a business on the Gold Coast. Hence, the way things happened, they always happen at the same time at once, that’s why I didn’t have the facilities to keep the ChancellorPark house and run three households at the same time. I was - yeah, I - I was having a big dig. I was, you know, working long hours. And at the end of those two - year period, we - we really came out of the mire in 2004, 2005. But in - during that period of time, I had everything financed, everything going quite well, but I’d just taken another big chomp.”^[24]

6. (f)
   He denied attending with the plaintiff at Centrelink but agreed that there had been discussions about the issue:

“Hazel asked me how to do it. What do we do. I don’t want it in my bank account; what do we do. And I wrote on a piece of paper some roughly figures. It’s like why don’t you do that, why don’t you do that, why don’t you do that. And that’s basically what she did… Hazel wanted to collect rent assistance and – and then she organised the forms and asked me how to I fill these in. It was an extra $50.00 a week, I believe, that she was getting.”^[25]

He agreed that Exhibits 10 and 11 contained his handwriting and that what was recorded and later represented to Centrelink, was a “fiction”, to which he contributed. However, he maintained that it was his mother’s idea to do this and not his.^[26] Further and as to the payment of rent, his evidence was:

“Yes. And had your mother not paid you the sum of $100,000, what would you have done in those circumstances? --- She would have had to pay rent. I couldn’t afford to keep the house.

And by ‘rent’, what do you mean? --- As in a weekly or fortnightly commercial sum.”^[27]

7. (g)
   He maintained that his mother did work for his business:

“Yes. What sort of work did she do? --- Mainly tasks, you know. She used to check freight documents, for instance, where you get a statement with things that need to be checked off like a – yeah. Kelly also took a lot of work home that I know Hazel did, you know, stamping envelopes, etc, etc. Just things.”^[28]

In cross-examination and after agreeing that the plaintiff had received group certificates representing that she had received $52 per week, there was the following exchange:

“She never did $52 per week worth of work, did she?-- $52 a week worth of work, probably not, no. No.

But that was a deduction for your company, wasn’t it?-- It was deduction to the Centrelink payment.

She never was an employee, was she?-- She was.

Was she? Well, where’s the declaration?-- I probably paid her in cash.

Sorry, what do you mean, it was a deduction to the Centrelink payment?-- Well, the Centrelink payment, as we’ve discussed earlier, there was a lot of tax to be paid on that process. At the time it was there, it was available, I took it, and I just said it was $50 that I wasn’t paying tax on which, in my little mind, offset the extra tax I was paying on the rent payment.”

8. (h)
   And he also maintained that he had made no promises to his mother in respect of her moving to the Sippy Downs property and that there had been no discussion of an amount of $50,000 being paid.^[29]

1. (i)
   By formal order, he was divorced from Sharon on 23 April 2002.^[30]

10. (j)
    He explained that the letters sent to his mother in 2008 (exhibits 15 and 16) were sent because of his need to sort out the unaffordability of supporting three households and due to the difficulty in speaking to his mother about this^[31] and because:

“At the end of the day, she is my mother and, you know – and I just can’t say get out. You know, she needed to be relocated. She needed assistance. And, yeah, just, I don’t know, trying to do the right thing, I suppose.”^[32]

(k)In September or October 2008, he sold the Sippy Downs property for $375,000, from which he received $356,232.09 into a bank account and then used those proceeds to purchase a unit at Alexander Headlands in which he and Kelly were to reside.^[33]

1. (a)
   In support of his claim of the provision of regular payments to the plaintiff for the support of his daughter, particularly before she resided at the Sippy Downs property, the defendant produced a Collins account book and some associated bank deposit slips (exhibit 23) and which he asserted, had been maintained specifically for recording these payments, by his business office manager. Prior to their residence at the Sippy Downs property the defendant maintained that about $100 was regularly paid on a weekly basis and after that he paid for rates and insurance on the Sippy Downs property and for car repairs and the eye operation for the plaintiff and also paid $70 in cash, each week, as a budget in respect of keeping the horse for Kelly. However and in reference to Exhibits 29 and 30, it was established that the book which had been produced by the defendant to the Court and as a contemporaneous record of the payments recording in it, was in fact a rewritten or more recently constructed record and that copies of other versions of a similar record, did not contain many of the entries relied upon to evidence payments to the plaintiff. Although it was the defendant’s evidence that the handwriting in the records was that of his business office manager, it was also established that she was a business and property investment partner of the defendant^[34].

2. (b)
   Although and as the defendant admitted, he realised a prospect of getting Sharon out of the Sippy Downs property at the time, he maintained that he did not suggest that the plaintiff move there. However, he conceded that the issue of the sale of his mother’s property at Buddina was raised in late April of May of 2002.^[35]

3. (c)
   Further, the essential context for that arrangement was established in respect of the defendant’s obligations under the family law settlement with Sharon (Exhibit 28). Because of Kelly moving to the care of the plaintiff and the defendant’s son Matthew also substantially not being cared for by his mother, Sharon no longer retained a right of occupancy of the Sippy Downs property and with the money paid to him by the plaintiff, the defendant was able to pay out his former wife’s share in that property (after subtracting a debt calculated on the basis of her failure to entirely meet her obligations to contribute to expenses such as rates and insurance and to pay rent). Further and by these rearrangements^[36], the defendant became the sole legal owner of the Sippy Downs property and was relieved of any further obligation to Sharon and particularly in respect of child support payments. In these circumstances, it is, at the very least, difficult to place any credence on the defendant’s assertions to the effect that his mother was the driving force behind her move to the Sippy Downs property.

4. (d)
   Also, it is difficult to place any substantial reliance upon the defendant’s assertion of financial disadvantage for him in the final arrangements due to his confirmation that he signed, as landlord, the rent certificates that the plaintiff provided to Centrelink, to obtain the rent assistance payment.^[37] Only a limited insight into the full financial and taxation implications, for the defendant, was provided in the evidence and an explanation for his accounting in respect of his taxation obligations, was:

“When Hazel got involved with Centrelink on the – collecting the rent rebate from them, or whatever you want to call it, I had to declare income to cover the receipts. Obviously, they’re government departments; you just can’t have one thing without the other.”^[38]; and

5. (e)
   A further difficulty arose from an implication in part of the defendant’s evidence as to the discussions with his mother as to her contributing the sum of $100,000. The point is encapsulated in the following passage:

“Well, you gave it in your evidence-in-chief – the observation that if she made the $100,000 contribution, she was happy to, because it would keep the property for “us”, you and her?---That’s correct.

That suggests that she expected it – to get an interest in that property. It doesn’t?--- How long’s that interest last for?

Well, in this case, she said she wanted to live in the Sippy Downs property. You offered to let her live in the Sippy Downs property for life for the payment of $100,000. That’s how long the interest lasted for?--- No, I didn’t.

HIS HONOUR: I’m Sorry. I’m now confused about that. Are you accepting that you understood that the plaintiff expected to have some interest in that property, as a result of paying you the $100,000?--- Definitely. From the beginning, I was – told Hazel that the property wasn’t available. It was to be sold. Hazel wanted to put some money into the property so she could move into the property.”^[39]

 In re-examination there was a further attempt at expanation:

“Right, and that under cross-examination by my learned friend you mentioned that Hazel had said – or expressed an interest in buying part of the property?---I asked---

I may have misunderstood?--- - - - her if she wanted to buy part of the property, yes.

You asked her?---I asked her, yeah.

Yes, right. Having regard to those three things that I’ve just outlined then: an interest in property and that sort of thing, would you just explain to the court your involvement in any discussions with your mother about having any interest in the property?---She never wanted any interest in the property.

Yes, but you suggested to her that she could?---Oh definitely, yes.

Yes, and she definitely said no?---Definitely said no.”^[40]

1. (a)
   the extent to which the parties had become estranged in 2008 was evident in the defendant claiming, through one of his businesses, an invoiced amount of $990 for cleaning the Sippy Downs property on vacation of it by the plaintiff^[41] and her seeing fit to take and therefore being able to produce to the court, an extensive bundle of photographs to show the premises left in a neat and tidy and apparently clean state^[42]; and

2. (b)
   there was conflicting evidence given as to another incident which involved some injury being caused to the plaintiff and the attendance of ambulance, if not police, assistance for her. It was common ground that there had been such an incident at a family wedding at Chambers Island, in 2003. However and ultimately not much was pressed in respect of this, for the obvious reasons that quite apart from considerable dispute and conflict as to what actually occurred, the incident arose out of an emotional exchange in respect of Kelly and the plaintiff’s authority in respect of her and particularly and instrumentally involved another person, being the defendant’s then girlfriend or partner.

“(1) the party seeking relief must, at the time of entering into the transaction, suffer from a special disability vis-à-vis the other party;

3. (2)
   the special disability must seriously affect the disabled party’s capacity to judge or protect its own interests;

3. (3)
   the other party must know of the special disability;

3. (4)
   that party must take advantage of the opportunity presented by the disability; and

3. (5)
   the taking of advantage must have been unconscientious.” 

 It was further recognized that, as stated in the same publication, there may be a sixth or further consideration, in that notwithstanding a presumption of unconscientious dealing upon the establishment of those five elements, such presumption may be rebutted by proof (by the defendant) that the transaction was otherwise fair just and reasonable. That consideration may be particularly traced to the decision in Fry v Lane^[48] and was and may, for convenience, be referred to as a “Fry v Lane defence”.

1. (a)
   In the majority judgment in Bridgewater v Leahy^[49], to the effect that the equity to set aside a transaction “may be enlivened not only by the active pursuit of the benefit it conferred but by the passive acceptance of that benefit”; and

2. (b)
   To the effect that the categories of special disability are not closed; and

3. (c)
   It was sought to characterise the plaintiff’s special disability in terms of her emotional attachment to the care of her granddaughter, in the context of an emotional dependence upon her relationship with the defendant, in terms of a need to be accepted and valued by her son.

1. (a)
   the plaintiff made a voluntary decision to sell her own home;

2. (b)
   the arrangement for her residence in the Sippy Downs property was mutually beneficial to the parties; and

3. (c)
   she had ample opportunity to but did not take any independent advice in respect of the transaction.

It must be recognized that although an implication from the evidence, the last consideration is complicated, in that a more usual application is that a defendant may also rebut a presumption of an unconscionable transaction or dealing, by establishing the taking of independent advice before concluding it.

“[32] In Hungerfords v Walker, Mason CJ and Wilson J observed:

‘Equity has adopted a broad approach to the award of interest. It has long been accepted that the equitable right to interest exists independently of statute: Wallersteiner v. Moir [No. 2]. Equity courts have regularly awarded interest, including not only simple interest but also compound interest, when justice so demanded, e.g., money obtained and retained by fraud and money withheld or misapplied by a trustee or fiduciary: La Pintada. In admiralty, simple interest has been awarded in a variety of cases standing outside the authority conferred by statute. As Sir Robert Phillimore said in The Northumbria:

“The principle adopted by the Admiralty Court has been that of the civil law, that interest was always due to the oblige when payment was not made, ex mora of the obligor; and that, whether the obligation arose ex contractu or ex delicto.”’ (citations omitted)

[33] In The Commonwealth v SCI Operations Pty Ltd, McHugh and Gummow JJ referred to the above passage in Hungerfords saying:

‘It is true that in the administration of its remedies, equity followed a different path to the common law with respect of the award of interest. In cases of money obtained and reduced by fraud and money withheld or misapplied by a trustee or fiduciary, the decree might require payment of compound interest.’

[34] The learned authors of Jacobs’ Law of Trusts in Australia, state the following proposition in relation to the awarding of compound interest against defaulting trustees:

‘In certain circumstances trustees will be charged with compound interest instead of simple interest. It is a matter entirely in the discretion of the court.

3. (1)
   Compound interest is allowed where there is a direction to accumulate or where, from the circumstances, it was the duty of the trustee to reinvest the interest.

3. (2)
   Compound interest is also allowed against a trustee where he had employed the trust funds in trade or speculation for his own benefit.

3. (3)
   Compound interest may be allowed in other cases where the court considers the circumstances justify such interest.’”^[57]