Unconscionable conduct and undue influence are equitable doctrines addressing unfair advantage in relationships of unequal power. Unconscionable conduct focuses on a stronger party exploiting another’s special disadvantage – involving age, illness, poverty, or dependence. Undue influence relates to the weaker party’s loss of free will through pressure or domination. It leads them to act against their true intentions. The former examines the fairness of the stronger party’s behaviour and the transaction itself. In contrast, the latter assesses whether consent was given freely. Though distinct, they can overlap when undue influence forms part of a broader pattern of unconscionable conduct.
Unconscionable conduct arises when a dominant party takes improper advantage of another’s vulnerability. This leads to a transaction so unfair it offends principles of equity and “good conscience.” Suppose the weaker party suffers from a special disability—for example, age, illness, or emotional dependence. The stronger party knowingly exploits this special disability for personal gain. In that case, the court can set aside the transfer. Once shown, the onus shifts to the stronger party to prove that the transaction was fair, just, and reasonable.
Essential Elements of Unconscionable Conduct
- Special Disability: The disadvantaged person suffers from a condition impairing their capacity to make independent, rational decisions.
- Knowledge of Vulnerability: The stronger party is aware (or ought to be aware) of this disadvantage.
- Exploitation: The dominant party uses that knowledge to secure an unfair advantage.
- Unfairness of Transaction: The resulting transfer is grossly one-sided and inconsistent with equitable standards of fairness.
Illustrative Examples
- An elderly homeowner, emotionally reliant on a caregiver, is persuaded to transfer their property to that caregiver.
- A child pressures an ageing parent to gift property. This action strips the parent of control or financial security.
- A transaction proceeds without the weaker party obtaining independent legal or financial advice, raising concerns of exploitation
Undue influence occurs when a person misuses their position of trust or authority. They overpower another’s free will. This leads the weaker party to act against their genuine intentions. This often involves transferring property or entering into a disadvantageous agreement.
If proven, the transaction can be invalidated. Alternatively, the gift can be reclaimed. Several cases support this. These cases include National Westminster Bank plc v Morgan [1985] UKHL 2. Another case is Johnson v Buttress (1936) 56 CLR 113. Lastly, there is Royal Bank of Scotland plc v Etridge (No 2) [2001] UKHL 44.
Key Features of Undue Influence
Exploited Relationship: The influence arises within a relationship of trust or dependency—like between family members, carers, or intimate partners.
Loss of Free Will: The weaker party’s decision-making is overwhelmed by the stronger party’s dominance or pressure. This leaves no room for independent judgment.
Vulnerability: The influenced individual is often in a frail or dependent condition due to age or illness. They may also rely on others for essential needs.
Improper Benefit: The dominant person uses their position to gain an unfair advantage. They obtain a property benefit at the expense of the vulnerable person.
Rowe v Van Den Ende [2025] NSWSC 1183
In October 2014, Robin Nardi Rowe (the deceased) transferred her Wahroonga home. She transferred the property into joint tenancy with her husband, John Charles Colussi. At that time, the property was unencumbered. They had been married for 24 years. The transfer occurred without receiving payment. The plaintiff considered that the deceased had a very successful career as a marketing researcher. She was university educated. She climbed the corporate ladder.
After the deceased died in 2021 and John died in 2022, a dispute arose between their estates. The deceased’s daughter, Nardi Maria Rowe (the plaintiff), sought to set aside the transfer on grounds of undue influence. The plaintiff also cited unconscionable conduct. Peden J ultimately found that the plaintiff was incapable of proving her claims.
Background and Family History
The deceased had two children: the plaintiff and Peter. These were from her first marriage to Pieter Bakker, which ended in the early 1970’s. The deceased later married Terry Rowe. He died in 1980. He left the Wahroonga property, superannuation, and life insurance to the deceased. The deceased used these funds to repay the mortgage and invest in other properties.
After Terry’s death, the plaintiff and the deceased were very close. The deceased provided the plaintiff with significant financial support including funding the plaintiff’s horse stud, car, and accommodation. After the deceased met and married John Colussi in 1990, the relationship changed. The plaintiff disapproved of John describing the relationship as “crazy” and “out of character.” Claiming that John had asserted ownership over the deceased’s money and attempted to dominate the family. The plaintiff refused to have anything to do with John causing a severe and lasting rift with the deceased.
Breakdown of the Relationship
Letters between the plaintiff and the deceased show an ongoing conflict from the late 1980s to the early 1990s. The deceased wrote of being hurt and disappointed by the plaintiff’s rejection of John and her decision to sever contact. At the same time, the plaintiff expressed anger, distrust, and finality, stating there was no hope of reconciliation. Their estrangement deepened, and later correspondence reflected litigation over horses and mutual accusations of materialism and betrayal.
By 2007, the deceased’s draft letters show continued resentment and frustration. They accuse the plaintiff of hypocrisy. The plaintiff accepted the deceased and John’s financial help while publicly criticising him. The deceased insisted that the plaintiff had received a large share of her financial support. She reminded the plaintiff that personal responsibility determined one’s life outcomes, not others.
The plaintiff maintained that John’s actions were manipulative causing emotional distress. Yet evidence suggested John had tried to keep peace for the deceased’s sake.
Later Developments
The plaintiff has been on a disability pension since 1994. She received a significant settlement from family provision proceedings after her partner died in 2007. This included $600,000 held on trust for her daughter Lauren and over $170,000 personally. The deceased also contributed financially to the acquisition of the plaintiff’s unencumbered home in Kurrajong.
Throughout the correspondence, the deceased’s position remained consistent. The deceased viewed the plaintiff’s hostility to John as the source of their estrangement. Meanwhile, the plaintiff believed John had alienated the deceased.
Ultimately, Peden J’s decision, based on a comprehensive review of the evidence, provided a clear resolution to the matter. Her Honour found no undue influence. There was also no unconscionability. The plaintiff couldn’t meet the burden of proof.
In June 2014, the plaintiff underwent surgery. The deceased stayed with the plaintiff and her daughter, Lauren, for several weeks. She helped during recovery. The deceased did not return to her home in Wahroonga until mid-September 2014. Shortly before this, she transferred the property into joint names with John Colussi. The plaintiff later challenged this transfer.
Signs of Possible Marital Separation
While staying with the plaintiff, the deceased appeared to be contemplating separation from John, registering for a single-aged pension. Yet, there was no evidence that the deceased had finalised the application. John’s personal notes later claimed the deceased was eligible. She had spent her money supporting her children. Nonetheless, financial records were missing.
On June 28, 2014, the plaintiff made a report to the police. She alleged that John was upset because the deceased was staying with her. John had threatened to come to the plaintiff’s house. The police recorded no concerns for her safety, and the deceased wanted only to have the incident documented. Two days later, on June 30, the plaintiff accompanied the deceased to the lawyers. There, she executed a new Will. The new Will excluded John entirely. It left her estate to the plaintiff and her son, Peter.
Differing Accounts of Robin’s State and Intentions
John wrote to the plaintiff on July 5, 2014. He expressed concern for the deceased’s health and stress. He asked her to come home and offered assistance. Two of the plaintiff’s friends, Heather Cumming and Michelle Darlington, recalled the deceased saying that she had left John. She intended to divorce him. She wanted her children to inherit the family home. Nevertheless, Ms Cumming also noted the deceased seemed timid and uncertain when with the plaintiff—unlike her usual confident self.
Around the same time, the plaintiff took the deceased to the office of solicitor Audrey Diliberto. The firm sent John a letter. It demanded he vacate the Wahroonga property. The letter also indicated the deceased would seek a property settlement. There was no evidence of any follow-up proceedings. The plaintiff was aware that her mother would need to compensate John if she were to pursue this.
Domestic Violence Allegations and Counselling
The Victims Rights and Support Act 2013 (NSW) outlines the rights of victims of violent crimes. It establishes the Victims Support Scheme, which provides eligible victims with financial assistance, counselling, and recognition payments for trauma. The accompanying Regulations 2013 specify the highest payments available for various categories of victims and types of losses. Still, it’s important to note that the Act does not cover property damage resulting from criminal acts.
The scheme aims to help victims recover. It reimburses expenses arising from the violence, including medical and lost income. Justice and funeral costs are also covered. Yet, it does not cover property damage resulting from criminal acts.
In August 2014, the plaintiff sought help from a Women’s Cottage. She recorded “DV” as the reason for attendance. She claimed John had changed the locks. This prevented the deceased’s return home. Still, the plaintiff offered no proof. The deceased was approved for counselling under the Victims Rights and Support Act 2013 (NSW). Yet, there is no record of her attending any sessions. The plaintiff continued counselling until 2019.
Evidence from John’s Friends
John expressed concern about the deceased’s welfare to close friends. Geoffrey Surgeon (the second defendant) was John’s executor. He testified that John was never aggressive. John was deeply worried when the deceased stayed away. Another friend, Ian Dobson, confirmed the deceased had long said the plaintiff disliked John. The deceased also mentioned that her children only contacted her for money.
John asked Dobson to call the deceased. He mentioned that the plaintiff blocked communication. John even said the plaintiff called the police when he tried to visit.
When Dobson phoned, the plaintiff often intercepted the calls, questioned his motives, and once launched into a tirade against John. When Dobson reached the deceased, she seemed nervous. She appeared hesitant and said she couldn’t speak freely. The plaintiff was there and “didn’t want me to speak to John.”
Evidence from Juniper van den Ende
Another witness Juniper van den Ende regarded the deceased as a family friend. She corroborated long-term tension between the plaintiff and the deceased. Over many years, the deceased confided that the plaintiff issued ultimatums demanding the deceased leave John. The plaintiff refused to let John visit using financial dependence as leverage. When Juniper called during the deceased’s stay, the plaintiff took over the call. She ranted about John. Then she shouted that the deceased was leaving him. The deceased sounded exhausted but thanked Juniper for her support.
After the deceased returned home, she told Juniper she had felt like a hostage at the plaintiff’s house. She described bullying and confusion. These feelings were worsened by early Alzheimer’s symptoms. Saying she trusted John to care for her as her condition declined. The plaintiff did not see the deceased again from late 2014 until 2019.
Overall Summary
Conflicting narratives characterised this period:
- The plaintiff claimed the deceased sought independence from an allegedly domineering husband.
- John and his friends described the plaintiff as controlling and obstructive, isolating the deceased and interfering with her communications.
Ultimately, the deceased made temporary moves suggesting separation. Yet, the surrounding evidence indicated the deceased was conflicted and vulnerable. Influenced by tension between her daughter and husband rather than clearly acting under duress or coercion by John.
In September 2014, the deceased and her husband, John, returned to the Wahroonga home. They then unexpectedly visited solicitor Audrey Diliberto’s office. The deceased appeared dishevelled and withdrawn. She was barely speaking. John, described as loud and accusatory, claimed Ms Diliberto had colluded with the plaintiff to make the deceased leave him. Shocked by his behaviour, Ms Diliberto received a formal complaint made by John (later dismissed) to the Legal Services Commissioner. She never saw the deceased again after that meeting.
Attempts by Friends to Contact the Deceased
After the deceased’s return, the plaintiff’s friends Heather Cumming and Michelle Darlington tried to reach her by phone.
Heather said John often answered first, questioned her identity, and accusing her of being involved with the plaintiff. When Heather eventually spoke with her the decease apologised for the misunderstanding and asked Heather to reassure John. Heather suspected that later text replies from the deceased’s phone were actually sent by John making no further contact.
Michelle Darlington reported similar experiences: a man answered calls and refused to let her speak with the deceased. On one occasion, Michelle reached the deceased, who sounded quiet and stammered, seemed distressed, but gave no response when offered help. Michelle took no further action and did not inform the plaintiff.
John’s Letter to the Plaintiff
Around this time, John wrote to the plaintiff, asking her to respect his marriage and to refrain from spreading malicious gossip. He urged her to be courteous and show restraint, warning the plaintiff that her behaviour was hurting the deceased, damaging the plaintiff’s daughter, Lauren, and humiliating everyone involved. He accused the plaintiff of feeding off hatred, with Lauren, the real victim.
The plaintiff’s Response and Lack of Action
The plaintiff later claimed the deceased told her, “John and I are going to give it another go.” Police confirmed the deceased had chosen to stay with John. The plaintiff insisted she feared for the deceased’s welfare. Still, she did not try to see her again until 2019.
The Property Transfer
On October 20 2014, the deceased and John met solicitor Susan Kirkby after being referred by a financial planner. Ms Kirkby recalled that John did most of the talking in a direct tone, with the deceased appearing overawed and saying little. Peden J found this description neutral. There was no sign of coercion or disagreement. John asked about the title to the Wahroonga property.
The next day, October 21 2014, the deceased executed the transfer, making herself and John joint tenants. A justice of the peace witnessed the transfer. No independent legal advice was provided. Yet, the deceased was experienced in property transactions and had earlier dealt with lawyers and a financial planner.
Further Events
Later in 2014 or early 2015, the deceased and John visited Adelaide. They went to see John’s son, Simon van den Ende (the first defendant). Simon was close to them and considered the deceased as his stepmother. The deceased and the first defendant discussed making him the executor of the Will. The first defendant testified without challenge. John explained the deceased had added him to the property title to protect their home from her “money-grabbing” children.
The Plaintiff, meanwhile, had considered applying to the Guardianship Board wanting to regain power of attorney and guardianship over the deceased to “get help against John.” But, the plaintiff did not follow through. The first defendant confirmed that he had a private conversation with the deceased, verifying that he understood her wishes correctly.
Overall Summary
John and the deceased’s brief separation was followed by the transfer of their home into joint tenancy. The plaintiff viewed this as evidence of manipulation. Yet, others saw no proof of coercion including the first defendant and professionals. The pattern of evidence suggested the deceased remained mentally capable and reconciled voluntarily. Continuing to trust John, despite the plaintiff’s ongoing estrangement.
The plaintiff’s Background and Credibility
The plaintiff described that her life had a “history of violence and grief” during periods of trauma. Claiming to have seen her father, Mr Bakker, abuse her younger brother, following the deceased’s marriage to Terry Rowe, the plaintiff changed her surname from Bakker to Rowe in 1975. Believing that Terry had given her “the opportunity to correct [her] father’s image.” However, the plaintiff intensely disliked the deceased’s third husband, John and had no desire to be linked with him. Their relationship was hostile and long-standing. The plaintiff was disappointed. After Terry’s death, the plaintiff received less attention and financial help from the deceased.
Peden J accepted that the plaintiff believed her own version of the events. Nonetheless, her Honour found the plaintiff to be an unreliable witness with rambling evidence and a lack of factual support. Making several unsubstantiated claims, including that:
- John hated the plaintiff, and considered him “dangerous,” never explaining why.
- During a 1990s visit, John forced the plaintiff to eat food she disliked, which she characterised as “degrading.”
- John’s later letters updating her on Robin’s health were manipulative. They were “power games.”
Still, the plaintiff never visited the deceased to verify them. The Court found the deceased desired contact with the plaintiff and her granddaughter. Yet, the plaintiff refused unless the deceased excluded John.
The Letters and Alleged Control
The plaintiff argued that John wrote the deceased’s letters, showing he controlled her. The plaintiff relied on a June 2014 handwritten letter where the deceased noted John had dictated it. Yet, the deceased later provided a typed version with significantly different wording, better reflecting her own voice. It aligned with views the deceased consistently expressed since the late 1980s. The plaintiff particularly insisted that her children respect John as her husband. Peden J concluded there was no evidence that John routinely dictated the deceased’s correspondence or that she lacked independence. The deceased had been a successful and intelligent businesswoman, capable of writing her own letters and making her own decisions.
Evidence of Witnesses
Heather Cumming and Michelle Darlington:
Their evidence did not show John mistreated the deceased or influenced the property transfer. John appeared suspicious. He was protective when they tried to contact the deceased after her return home. This was not proof of coercion.
Audrey Diliberto (Solicitor):
The Court accepted her account that John had been rude and confrontational during a meeting, but rejected the inference that this behaviour meant he pressured the deceased into transferring the property. John may have genuinely believed that the plaintiff had encouraged the deceased to leave him, which explained his hostility, although it did not excuse it.
John’s Friends:
John’s close friends—Mr Dobson, Ms. a’Donau-Szpindler, and Mr Surgeon—testified consistently that in mid-2014, John was worried and distressed because the deceased had not returned home and could not be contacted while staying with the plaintiff. Their evidence suggested concern rather than control.
John’s Affidavit and the Competing Narratives
Before his death, John signed an affidavit in August 2022, included in Peter Rowe’s family provision case, describing the strained relationship between the deceased and her children. Although not all his recollections were accurate, his version of events was largely supported by other witnesses and documents, providing a narrative that contradicted the plaintiff —one of reconciliation and mutual care between John and the deceased.
Unconscionable Conduct
The plaintiff alternatively argued that John Colussi took unconscientious advantage of the deceased’s vulnerability or “susceptibility” when transferring the Wahroonga property. However, instead of addressing the legal requirements of unconscionable conduct, the plaintiff’s submissions repeated the same “snippets of events” relied upon for undue influence, suggesting that John’s “overbearing nature” caused the deceased to sign the transfer.
The Court held that this blurred the distinction between undue influence and unconscionable conduct, which are separate doctrines (Thorne v Kennedy(2017) 263 CLR 85; Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447).
Unconscionable conduct arises where:
One party suffers from a special disadvantage or disability that seriously impairs their ability to act in their own best interests; and
The other party knows of or wilfully ignores that disadvantage and takes advantage of it (Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; KakaKakavas v Crown Melbourne Ltd (2013) 250 CLR 392).
Knowledge—actual, wilful, or possibly constructive—of the weaker party’s condition is essential.
The plaintiff relied on cases such as:
Louth v Diprose(1992) 175 CLR 621 – where emotional dependency and infatuation rendered the plaintiff vulnerable, and
Thorne v Kennedy (2017) 263 CLR 85– where coercive urgency and lack of choice amounted to special disadvantage.
However, Peden J found no parallel between those cases and the deceased’s situation.
The plaintiff claimed the deceased was “susceptible to John’s influence” but did not explain how this constituted a legal disability.
There was no evidence that John pressured the deceased, created a sense of urgency, or exploited any mental or emotional weakness.
Even if the deceased were vulnerable, there was no proof John was aware of any such disadvantage.
Accordingly, the Court found no basis for finding unconscionable conduct, especially given that the transfer was reasonable, fair, and consistent with a 24-year marriage.
Laches
In equity, laches is a defence that prevents a claimant from enforcing a right or seeking relief after an unreasonable and inexcusable delay that has caused prejudice to the other party. The doctrine rests on the maxim “equity aids the vigilant, not the negligent,” meaning that a claimant who fails to act promptly may lose the right to equitable relief. It requires more than the mere passage of time; the delay must have created unfairness—typically because the defendant has changed their position or lost the opportunity to defend themselves effectively.
Laches has no fixed limitation period, unlike statutory limitation laws. What constitutes an unreasonable delay depends on the facts of each case, including the claimant’s conduct and the circumstances surrounding the delay. The defendant must also show detriment or prejudice, such as loss of evidence, unavailable witnesses, or a significant change in financial or personal circumstances. As an equitable doctrine, a Court applied laches to ensure fairness and prevent injustice where it would be inequitable to enforce a stale claim.
As a secondary issue, the Court addressed the defence of laches (delay in bringing an equitable claim). Laches requires:
- Delay in seeking relief, and
- Unconscionable prejudice to the other party caused by that delay (Sze Tu v Lowe (2014) 89 NSWLR 317; Lindsay Petroleum Co v Hurd(1874) LR 5 PC 221).
Initially, the defendants argued that the plaintiff knew of the transfer by June 2022, with claims that it was made “under duress.” However, during closing submissions, the plaintiff conceded that the relevant delay was only the short period between May/June 2022 (when the plaintiff’s lawyers raised the issue) and John’s death in September 2022, acknowledging that this was “not [their] strongest point.”
Peden J rejected the defence entirely, finding that the plaintiff acted promptly once there were legal grounds to proceed. Delays were due to the plaintiff’s solicitor’s health problems, not inaction.
Moreover, there was no evidence of prejudice to John or his estate. Although the plaintiff knew John had cancer, she was unaware of his terminal prognosis until January 2023, after his death. Therefore, the plaintiff’s timing in commencing proceedings was reasonable, and there was no unconscionable delay.
Conclusion
The Court concluded that:
- The unconscionable conduct claim failed because the deceased’s transfer was made freely and explained by ordinary motives of affection and estate planning.
- The defence of laches also failed, as the plaintiff’s actions were timely and caused no prejudice to John’s estate.
Court’s Findings and Conclusion
The Court found that, at the time of the 2014 property transfer, the deceased and John had reconciled, and the deceased wished to live with and be cared for by him. The deceased had earlier explored legal advice about separation and domestic violence, but later told both the plaintiff and the police she wanted to stay with John.
While John could be angry or defensive, there was no evidence that his conduct affected the deceased’s decision to execute the transfer. There was also no medical proof that the deceased suffered cognitive impairment at the time.
Peden J concluded that the transaction was consistent with rational estate planning, not undue influence:
- The deceased’s main asset was the Wahroonga home.
- She had supported the plaintiff and Peter financially for decades despite their strained relationship.
- The deceased had consulted a financial planner and lawyers, later executed a Will, and spoke with the first defendant about him acting as executor.
- The transfer ensured that, if the deceased died first, John would inherit their shared home of 24 years, a typical arrangement between long-married spouses.
Orders
Accordingly, Peden J held that the plaintiff failed to prove any actual undue influence. The transfer was readily explicable by ordinary motives of trust, affection, and financial planning within the marriage.
For the reasons already given, Peden J made the following orders:
- Dismissal of the plaintiff’s requests for relief numbered 2, 3, 4, and 5 in the Statement of Claim filed on May 16 2024.
- The plaintiff must pay the defendants’ legal costs.
- Grant the parties liberty to apply for a different costs order within seven days of this judgment, providing any supporting evidence and submissions not exceeding three pages.
- If a party files such an application, the responding party must file any opposing evidence and submissions, limited to three pages, within seven days of receiving the application.
- The Court will consider and determine any alternative costs application on the papers, if suitable.
- The matter is listed for directions before the Probate Registrar on October 30 2025.