You Win Some, You Lose Some  

In Bampton v Vourlides (2023) QDC 248, the claimant sought to recover from his daughter a $300,000 payment he made to her following his winning almost $990,000 in a Golden Casket lottery.  The daughter, aged 69 at the time of the trial, argued that the $300,000 payment was a gift made in the exercise of free will, but the claimant, aged 91, argued that he had been induced to make the payment by the daughter’s undue influence or unconscionable conduct. 

Judge Sheridan observed that “undue influence” looks to the quality of the consent or assent by a party to a transaction, while “unconscionable conduct” looks to the conduct of a party who has retained a benefit from a party who is alleged to have been in a disadvantaged position. 

The $300,000 payment was made by bank cheque delivered by the claimant to his daughter in August 2018.  The claimant alleged that he and his daughter had argued and that feeling overwhelmed by his daughter’s behaviour including alleged leaning over him and shouting, he considered he had no alternative but to give in to what he said were her “demands” for the payment.  

The claimant was elderly and did not obtain legal or financial advice before making the payment.  However, he did make an equivalent payment to his son out of the lottery winnings.  

An expert psychiatrist reported that whilst the claimant had a mild degree of cognitive impairment, he still had testamentary capacity.  Another psychiatrist reported that the claimant suffered longstanding anxiety and depression.  

The judge found that the claimant had changed the terms of his Will in both 2019 and 2020 consistent with him having made the $300,000 payment to his daughter as a gift. 

The judge observed: 

“In the end, I am unable to accept that the cheque was presented as a result of Mr. Bampton being bullied into it. Mr Bampton was a strong and forceful personality.”   

Her Honour also observed that: 

“Mr Bampton gave his evidence in a very strident, forthright way.  It was clear that he was not a person who liked to be challenged. 

… In contrast, Mrs Vourlides appeared to be timid and lacking in confidence. 

… There was clearly a power imbalance with Mr Bampton being the strongest of the two.” 

In relation to the claim of undue influence, Judge Sheridan concluded that the daughter had discharged the onus of proving that her father (the claimant) had made a gift which was the independent and well-understood act of a person in a position to exercise free judgment.   

The judge did not find that the claimant’s age, medical conditions, or alleged emotional dependence on the daughter placed him at a special disadvantage sufficient to render the $300,000 payment unconscionable.  Her Honour remarked that the claimant was “physically and mentally in charge of all of his faculties” and noted the medical evidence was that he “well understood and was able to manage his financial affairs.” 

Her Honour was not persuaded that the daughter took unconscientious advantage of her father.  Noting of the claimant that “Clearly, he had a mind of his own” Her Honour remarked that she did not accept that the daughter was capable of bullying Mr Bampton into doing something he did not want to do.  

The judge concluded that: 

“I am prepared to accept that the gift was fair, just and reasonable in the circumstances.  The gift was made out of winnings from the lotto. Mr Bampton conceded he did not need the winnings.  The gift did not detract from his own financial needs.  It involved more or less equal treatment of his children. 

Accordingly, the father’s claim to claw back the gift was dismissed. 

The key lessons to be learnt from this case are that (1) when making a transfer of a considerable sum of money from one family member to another, it is best to document the purpose of the transaction before the payment is made; and (2) obtaining early advice from a lawyer experienced in this area is advisable before embarking on potentially expensive litigation arising from an intra-family transaction. 

If you have any queries involving family-related transaction disputes, telephone Senior Associate Chris Kohler at Croy Legal on 1300 123 876 or email [email protected]