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9 Cards in this Set
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Presumed undue influence VS Actual undue influence (Proof of undue influence) |
ACTUAL: - evidence is adduced of something that has actually been done to twist the mind of the contracting (weaker) party PRESUMED: - focuses more on evidence of failure by the stronger party to protect the interests of the weaker - some cases where there is a presumption of undue influence will require just proof that the circumstances require an explanation - but some will require both |
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Hewitt v First Plus National Ltd |
FACTS: - wife mortgaged her interest in the matrimonial home to pay for her husbands credit card debts after he promised to start being financially responsible turns out he was cheating on her APPROACH: - evidence of actual undue influence here consisted of the deliberate suppressing of relevant information - HELD: - this was the exercise of undue influence - she put her trust and confidence in him that he was committed to their marriage etc - he used that to get her to help pay his debts whilst having an affair which put that all at serious risk |
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Allcard v Skinner |
- EVIDENTIAL PRESUMPTION OF UD - FACTS: - member of religious sisterhood who made substantial gifts of property to them - HELD: - the court was satisfied there was a relationship of influence and that the circumstances called for an explanation (1) - circumstances being that the gift was so large so as not to be reasonably accounted for one on the ground of friendship, relationship charity etc .. => in these circumstances the burden is on the plaintiff to rebut the presumption => distinction between small or large gifts that a person unfettered by vows or oppressive rules would unlikely make - small gifts would not entitle a claim for restitution |
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Re Craig |
- FACTS: - an aged widower in the last year of his life paid over most of his estate to his secretary/companion - HELD: - presumed undue influence |
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LEAD Training Trust Ltd v Evans |
- FACTS: - teacher and counsellor made a licensing agreement with a student which provided little value to the licensee but was significantly advantageous to the licensor - HELD - presumed undue influence |
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ASB Bank v Harlick |
FACTS: - parents guaranteeing bank loan to secure a mortgage for their daughter and her husband - parents lived independently, made their own decisions and there was no greater element of trust/confidence/reliance than usually expected between parents and adult children HELD: - on the facts was just a normal family relationship |
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UDC Finance Ltd v Down |
FACTS: - a sole shareholder and director providing guarantees as to the nature of the indebtedness of their company HELD: - there was nothing that called for an explanation - was entirely explicable |
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Public Trust v Ottow |
FACTS: - husband and wife both personally guaranteed the repayment of a loan of a family trust to which they were residuary beneficiaries - wife later tried to claim undue influence in giving the guarantee - the loan related to properties in which she lived or would live with her family, and owned by a trust of which she was both trustee and beneficiary - HELD - the transaction was entirely explicable |
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Re Brocklehurst |
- FACTS - a strong minded, eccentric and autocratic old man granted valuable shooting rights over his large property to the defendant - HELD: - the defendant was found to be his friend but nothing more, there was nothing in the evidence to show any dominance or ability to advise and influence - in actuality it was the other way around - No presumed influence |
