Supreme Court - Trial Division

Pinter v Pinter & Anor [2016] QSC 314 (13/8285) Douglas J 22 December 2016

Full-text: QSC16-314.pdf

Catchwords

EQUITY – GENERAL PRINCIPLES – UNDUE INFLUENCE AND DURESS – PRESUMPTION OF UNDUE INFLUENCE FROM RELATIONSHIP OF PARTIES – where a husband and wife, Eduardo Pinter and Giacomina Pinter (the parents), had two children: Marcello Pinter (first defendant) and Giuliano Pinter (plaintiff) – where the parents sold a block of flats that they owned at Mooloolaba to the first defendant and his wife, Marisa Pinter (second defendant), in exchange for a half interest in a new house that was to be constructed by the defendants in Robertson and in which the parents and the defendants were to live – where the parents lived in the house and were cared for by the defendants for a number of years before they needed nursing home care – where the parents each executed an enduring power of attorney appointing each other and the plaintiff and the first defendant as attorneys – where Giacomina executed the transfer of the Mooloolaba flats in her own right and in her capacity as attorney for Eduardo – where the plaintiff alleges that Giacomina lacked capacity at the time she signed the transfer as she was aged approximately 75 years of age and suffering from dementia and impaired cognition – whether there was a statutory presumption under s 87 of the Powers of Attorney Act 1998 (Qld) that Giacomina was induced to enter the transaction by the first defendant’s undue influence

EQUITY – GENERAL PRINCIPLES – UNDUE INFLUENCE AND DURESS – ACTUAL UNDUE INFLUENCE – where the parents’ solicitor was acting for the parents as well as the defendants in the transaction – where the parents were friends of the solicitor over many years – where there was no suggestion that the solicitor preferred the defendants’ interests to those of the parents – where the parents met with a financial adviser – where the parents obtained substantial consideration from the defendants for the transfer of the Mooloolaba property – whether there has been shown to be actual undue influence in the transaction

EQUITY – GENERAL PRINCIPLES – EQUITABLE REMEDIES – RESCISSION – UNDUE INFLUENCE OR DURESS – where the parents received care provided by the defendants during their later years that is not measurable simply in monetary terms – where the defendants were not conscious wrongdoers – where it would be practically impossible to rescind or unwind the transaction in such a way as to do equity to all the parties – whether there should be an exercise of discretion to unwind the transaction

ESTOPPEL – GENERALLY – where the plaintiff claimed that he had an agreement with the first defendant that the Mooloolaba property was transferred to the first defendant on the understanding that it would form part of Giacomina’s estate, passing equally to the plaintiff and first defendant upon her death – where the second defendant was not said to have been a party to the agreement – where Giacomina’s will left her estate equally to the plaintiff and the first defendant – where the plaintiff claimed that the rental proceeds from the Mooloolaba property would be used to provide care needs for the parents – where the defendants claimed that one reason for the transfer of the Mooloolaba property was to allow the parents to obtain Commonwealth pensions and this object would have been defeated if the parents were entitled to income from the rental proceeds – where the plaintiff claimed to have acted to his detriment by providing maintenance and renovation works at the Mooloolaba property in reliance upon the alleged agreement he reached with the first defendant – whether the defendants are estopped from denying the alleged agreement between the plaintiff and the first defendant regarding the Mooloolaba property