Motuzyshyn v Bissell [2005] NSWSC 1134

The plaintiff was an elderly pensioner (born in 1916) who owned a property in Randwick. In 2003 she transferred a 50% interest in her property to an acquaintance, Peter Bissell. He borrowed $660,000 from a lender, secured against his interest in the property, and then disappeared in 2004.

A geriatric physician assessed the plaintiff’s mental capacity. In his opinion at the time of the transfer she was suffering from Alzheimer’s and would not have been able to understand a long and complex legal document. That opinion was supported by the observations of lay witnesses, including a nephew to whom she said she did not know what a mortgage was when he confronted her about the transfer.

Justice Campbell concluded that she lacked capacity and made orders setting aside the transfer of the half interest in the property to Bissell.

After an out-of-court settlement the plaintiff remained liable to the lender for an amount of $82,500 (although it appeared that she would not have to make payment out of her own pocket). She sued Bissell for damages in the sum of $82,500. His Honour awarded her the damages.    

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