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The Facts
Daughter, son-in-law and mother live together in rented house
in town
A mother, daughter and son-in-law lived together in a house they
rented in town.
However, they all agreed that in order for the daughter and
son-in-law to provide accommodation and care properly for the
mother, they would need a larger house.
To achieve this objective, they signed a deed of family
arrangement.
Deed specifies benefits to mother in exchange for financial
contribution
The deed required the daughter and son-in-law to purchase a
specified property in the town "or some other suitable
accommodation". They would also allow the mother to live with
them.
The deed also required them to take care of the mother's
needs and to fund her transition to an aged person's unit or
care facility when necessary.
The mother agreed to provide her life savings of $220,000 to the
daughter and son-in-law to assist with the purchase of the
specified property, which was priced at $470,000.
In December 2011 the daughter and son-in-law completed the
purchase of the property and moved into it with the mother.
Relocation out of town leads to mother demanding return of
money
A few years later, the daughter and son-in-law informed the
mother that they were selling the house in town and buying a more
expensive house 25 kilometres outside of town.
In doing so they took out a large new bank loan.
The mother moved with them to the new house.
However, a short time later she moved out and demanded the
return of the $220,000.
The daughter and son-in-law refused, asserting that the mother
had agreed to the move.
Mother unsuccessfully seeks remedy in Supreme Court and lodges
appeal
The mother filed a statement of claim with the Supreme Court of
NSW, seeking the return of her $220,000 gift.
The Supreme Court rejected her claim, and she appealed to the
NSW Court of Appeal.
case a - The case for the daughter and son-in-law
case b - The case for the mother
Mum consented to moving with us to a house outside of town and
did so knowing that she wouldn't get her $220,000 back.
We discussed with mum selling the property in town and buying
the property 25 kilometres outside of town before we made the
purchase.
Mum even came with us three times to look at the new property
before we bought it and never made any objections.
Before buying the property, we specifically asked mum if she
wanted to move, and if she did not, whether she wanted her money
back. We made sure to have this conversation with mum because we
were taking out a large new loan and wanted to be absolutely
certain that there were going to be no complications in the future.
Mum told us that she wanted to move to the new property and that
she didn't want her money back.
If anything, mum was excited about the move. When she saw the
property, she said that "it ticks the vast majority of the
boxes".
We relied on mum's assurances that she consented to the
move, taking on a bigger mortgage in order to buy the new house.
Mum can't just change her mind now and demand her money back.
To do so would be detrimental to us.
Mum should be estopped (restrained) from breaking her promise
to us.
I never consented to the move out of town or said that I
wouldn't accept repayment of my $220,000 contribution.
In fact, I told my daughter and son-in-law right from the
beginning that I didn't want to move because the house
wasn't a suitable place for me as an 80-year-old.
The house is too far from town, where all my friends and other
relatives live. It's on a narrow, steep and windy road, and is
isolated, with no shops, hospitals or other medical facilities. It
also has no public transport available.
It's true that I saw the house three times before the
purchase, but while there, my daughter and son-in-law would take me
out to the open area and I would get roasted by them as a gradual
intimidation. I felt bullied and thought I had no choice but to
move.
The court should order that my $220,000 gift be returned to me,
because my daughter and son-in-law moved into unsuitable
accommodation without my consent.
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