Baburin v Baburin (No 2) [1990] QSCFC 56 [1991] 2 Qd R 240

a > rx fi 10 30 30 40 50 60 CJ IN THE SUPREME COURT OF QUEENSLAND FULL COURT No.3908 of 1985 BEFORE: Mr. Justice Demack Mr. Justice McPherson w Mr. Justice Williams BRISBANE, 23 AUGUST 1990 REVISED COPIES ISSUED | Court Reporting Bureau : Date: 3/ °| /c j0 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.) BETWEEN: OLGA BABURIN (Plaintiff) -and- ALEXANDER BABURIN and GEORGE BABURIN as representatives of the Estate of VICTOR BABURIN (First Defendants) -and- ALEXANDER BABURIN (Second Defendant) -and- J. BABURIN & SONS PTY . LTD. (Third Defendant) Appellant First Respondents Second Respondent Third Respondent JUDGMENT MR. JUSTICE McPHERSON : In this matter the Court was constituted by Mr. Justice Demack, my brother Williams and me. I consider that the appeal should be dismissed, with costs . I also consider that the cross appeal should be dismissed but without an order as to costs. I deliver my reasons. j G i.Slfo 10 20 30 40 50 60 —Go\ , Q!d. l [1990] QSCFC 56 -- 1 of 42 -- MR. JUSTICE WILLIAMS': I would dismiss the appeal, with costs, and dismiss the cross appeal and make no order as to costs thereon. I publish my reasons. MR. JUSTICE McPHERSON : I am authorised by my brother Demack to say that he agrees with the reasons delivered by my brother Williams and also with the orders I have proposed. The orders are that the appeal is dismissed, with costs, and that the cross appeal is dismissed, no order as to costs being made with respect to the. dismissal of the cross appeal. -Gov Qid. 2 -- 2 of 42 -- to yofosb IN THE SUPREME COURT OF QUEENSLAND FULL COURT WRIT NO. 3908 OF 1985 BETWEEN: AND: AND: AND: OLGA BABURIN (Plaintiff) Appellant ALEXANDER BABURIN & GEORGE BABURIN as representatives of the Estate Of VICTOR BABURIN First (First Defendant) Respondents ALEXANDER BABURIN (Second Defendant) Second Respondent J. BABURIN & SONS PTY. LTD. (Third Defendant) Third Respondent DEMACK J. MCPHERSON J. WILLIAMS J. Reasons for judgment delivered by McPherson J. and Williams J. on the 23rd August, 1990 Demack J. agreeing with the reasons of Williams J. and the orders made. "APPEAL DISMISSED WITH COSTS. CROSS APPEAL DISMISSED AND NO ORDER AS TO COSTS WITH RESPECT TO THE DISMISSAL OF THE CROSS APPEAL." -- 3 of 42 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 3908 of 1985 Before the Full Court Mr Justice Demack Mr Justice McPherson Mr Justice Williams BETWEEN: OLGA BABURIN (Plaintiff) - and - ALEXANDER BABURIN AND GEORGE BABURIN as representatives of the Estate of VICTOR BABURIN (First Defendant) - and - ALEXANDER BABURIN (Second Defendant) - and - J. BABURIN & SONS PTY . LTD, (Third Defendant) JUDGMENT - MCPHERSON J. Delivered the Twenty-Third day of August, 1990. CATCHWORDS Equity - Defences - Laches - Delay Counsel: Mr S. Couper for the Appellant Mr J.S. Douglas Q.C. with him Mr D. Boughen for the Respondents Solicitors: Messrs Litster Mann & Ffrench for the Appellant Messrs Cannan & Peterson for the Respondents Hearing Date: 20th June, 1990. Appellant First Respondents Second Respondent Third Respondent -- 4 of 42 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 3908 of 1985 Before the Full Court Mr. Justice Demack Mr. Justice McPherson Mr. Justice Williams BETWEEN : OLGA BABURIN ( Plaintiff) Appellant AND: ALEXANDER BABURIN and GEORGE BABURIN as representatives of the estate of VICTOR BABURIN (First Defendants) First Respondents AND: ALEXANDER BABURIN (Second Defendant) Second Respondent AND: J. BABURIN & SONS PTY . LTD. (Third Defendants) Third Respondents JUDGMENT - G.N, WILLIAMS J. Delivered the 23rd day of August, 1990. CATCHWORDS : Equity - Unconscionable dealing - undue influence - sale of controlling shares from mother to sons - Trial Judge ' s assessment of witnesses of critical importance - conclusions of Trial Judge upheld. Equity - laches - 19 years from transaction to commencement of action - variation of rights - knowledge of relevant facts - evidence of what had occurred in intervening period - authorities reviewed - finding of laches upheld . Counsel : S. Couper for Appellant. J. Douglas Q.C. with D. Boughen for Respondents. Solicitors: Litster Mann & Ffrench for Appellant. Cannan & Peterson for Respondents. Hearing dates: 20th and 21st June, 1990. -- 5 of 42 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 3908 of 1985 BETWEEN : OLGA BABURIN (Plaintiff) Appellant - and - ALEXANDER BABURIN AND GEORGE BABURIN as representatives of the Estate Of VICTOR BABURIN (First Defendant) First Respondent - and - ALEXANDER BABURIN (Second Defendant) - and - Second Respondent J. BABURIN & SONS LTD. (Third Defendant) Third Respondent judgment - mcpherson j. Delivered the Twenty-Third day of August, 1990. I have had the advantage of reading the reasons for judgment of Williams J. I agree with his Honour's analysis of the facts and with his reasons for concluding that the findings of the learned trial judge on the questions of undue influence and unconscionability should not be disturbed. In this instance, far more than in cases of other kinds, those findings rest upon impressions formed of those who gave evidence at the trial. In particular, having seen and heard Mrs Baburin, the trial judge will have been able to assess, in a way that we cannot hope to do, the extent of Mrs Baburin's fluency in English, her grasp of matters of business, and the probable extent of her dependence on others for assistance in comprehending the nature and -- 6 of 42 -- 2 consequences of the transaction impugned. The difficulties of an appeal court in cases like this are amply demonstrated by the judgments in Jenyns v. Public Curator (1953) 90 C.L.R. 113 and Blomley v. Ryan (1956) 99 C.L.R. 362, in which Fullagar J. went so far as to say (at 409) the trial judge's view of the credibility of witnesses seen and heard by him "could hardly be challenged". Kitto J., while persuaded to a different view on this point by objective circumstances that he considered inescapable, acknowledged "the advantage which his Honour possessed in seeing the witnesses and having an opportunity to assess the character of each of the persons who took part in the material transaction". Here there are no such objective circumstances as can safely be relied upon to justify conclusions different from those reached by Kelly S.P.J. at the trial. In the end, however, the plaintiff failed in having the share transaction of 1966 set aside. The case was one in which the defence of laches, invoked at a late stage of proceedings, prevailed. Difficulties in accurately stating the doctrine of laches are compounded by the fact that it is a word not in common use about which unanimity is lacking even in the matter of its pronunciation. It is therefore not at all surprising to find that there are differences about its legal meaning, significance and effect. Returning to the subject after some absence, it is nevertheless disconcerting to discover how little progress has been made in identifying the essential features of the doctrine. Neither judgments nor texts succeed in elucidating its mysteries. Before us, Mr Couper of counsel for the appellant, fastened upon statements to the effect that the plaintiff's right to avoid the transaction could not have been barred until she was free of -- 7 of 42 -- 3 the circumstances leading to the transaction and able to make a "worthwhile" decision about the transaction. See Fvsh v. Page (1956) 96 C.L.R. 233, at 243, citing Roberts v. Tunstall (1845) 4 Ha. 257; 67 E.R. 645, at 649, per Wigram V.-C. He submitted that there was no evidence that the plaintiff was aware that she had a right to set aside the share transaction of 1966 at any time before the action commenced. Implicit in this submission is an assumption that the onus of proof in this regard lies on the defendant. It is by no means clear that the assumption is correct. If that matter is disregarded, it must be said that in the somewhat analogous case of avoidance in equity for misrepresentation there is authority that the right to rescind is not lost unless there is not only knowledge of the relevant facts giving rise to the right but also of the existence of the right itself : see Coastal Estates Ptv Ltd, v. Melevende [1965] V.R. 433, at 443, 453-454. The differences of judicial opinion on the question were adverted to but not, I think, finally resolved by Stephen and Mason JJ. in Sargent v. A.S.L. Developments Ltd. (1974) 131 C.L.R. 634, at 644-648, and 655-658. Their resolution is not made simpler by the presence or intrusion into the field of a number of related doctrines, such as estoppel, acquiescence affirmation, and election, of which the essential ingredients continue to be the subject of learned disputation : see Meagher, Gummow and Lehane : Equity Doctrines and Remedies , 2nd ed., at 755-767. In this atmosphere of disharmony, it is tempting to look at what happened here between 1966, when the transaction was entered into, and 1985, when the subject proceedings were instituted. That represents a lapse of some 19 years. Delay by itself is -- 8 of 42 -- 4 said to be no bar to relief in equity. Of this the pace of proceedings in the Chancery courts of old no doubt afforded such a compelling example that it could not, in all honesty, have been ignored by adopting any other principle. At a time when those courts were absorbed almost exclusively in investigating details of settlements of landed estates of ancient demesne and trusts of investments at 5% in the consolidated funds, such an attitude was understandable and may have been tolerable. It is, however, ill-suited to a society grown accustomed to measuring accrual of interest in fractions of a day, and assessing the capacity to discharge it by reference to overnight fluctuations in the currency of payment. In any event, even if delay alone remains no bar, the accompanying events bring changes that courts are sometimes powerless to reverse. The passing of time begets expectations and assumptions on which parties reasonably act and order their affairs. In such circumstances even equity refrains from unravelling the transactions that lie at their foundation, or from doing so many years after the event. Fysh v. Page (1956) 96 C.L.R. 233 is, to my mind, a striking instance of this. The High Court was there confronted with a claim for rescission that rested on "the general jurisdiction of the court to set aside an alienation of property brought about by unconscientious and unfair dealing" (see 96 C.L.R. at 242). It concerned a small farming property at New Norfolk in Tasmania which was conveyed to the defendant, who in some respects bore the character of executor of the estate of the late owner, who in turn had been the plaintiff's husband. She knew the defendant was the -- 9 of 42 -- 5 purchaser at the time of conveyance in 1941; but it was not until 1954 that she commenced proceedings to have it set aside. The High Court confirmed a decision rejecting the plaintiff's claim. In doing so, their Honours thought "the point of most importance" was the character of the plaintiff's equitable title if any to relief. "What has been said", Dixon C.J., Webb and Kitto JJ. proceeded (95 C.L.R. at 242):- "makes it clear that she could not impeach the transaction except in virtue of an equity to set it aside to which she became entitled because of some unfair or unconscientious dealing. This means that the sale stood effective in law and equity unless and until she elected to avoid it and to seek rescission. But for a dozen years she stood by without attempting to do any such thing. In the meantime by 1952 the monetary expression of the value of the land had more than doubled. By the time of the issue of the writ the figure had grown still further. Since 1941 when Page made the purchase land sales control has come and gone. We have experienced a progressive loss in the purchasing power of money which is reflected in the expression of values. Rescission with restitutio in intecrrum would mean that Mrs . Fysh would receive back the farm possessing a value which if expressed in money is doubled or trebled, and Page would receive back the same amount of money he paid, viz. £4,600, without any adjustment on amount of the decreased purchasing power of the money. It is natural to suspect that the change in the monetary value of the land has seemed to Mrs. Fysh the most persuasive argument that in 1941 she must have been overreached." Citing what was said in Lindsay Petroleum Co. v. Hurd (1874) L.R. 5 P.C. 221, at 239 et . seq., and Lord Blackburn's speech in Erlanqer v. New Sombrero Phosphate Co. (1878) 3 App.Cas. 1218, at 1278-1279, their Honours enunciated the following general principle (95 C.L.R. at 243):- "if a plaintiff establishes prima-facie grounds for relief the question whether he is defeated by delay must itself be governed by the kind of considerations upon which the principles of equity proceed. If the delay means that to grant relief would place the party whose title might otherwise be voidable on equitable grounds in an unreasonable situation, or if, because of change of circumstances, it would give the party claiming relief an unjust advantage or would impose an -- 10 of 42 -- 6 unfair prejudice on the opposite party, these are matters which may suffice to answer the prima-facie grounds for relief." In the end, they concluded, essentially because of circumstances referable to such considerations, that the "unequal situation" which rescission would produce made relief of that kind at such a date "out of the question". The present case is, if anything, richer in circumstances for refusing relief to the plaintiff. Transfer of the shares took place in 1966. Twenty-four years will therefore have elapsed before the process of rescission and restitution can be undertaken. The consideration for the share transfer in . 1966 was $25,000 payable as to half each by the plaintiff's two sons, who were the transferees. These amounts had, his Honour found, been paid to the plaintiff by August 1968. Rescission will return to the transferees or their representatives no more than that sum, now greatly eroded by inflation, together perhaps with some nominal additional amount by way of interest. The plaintiff will be entitled in return to receive back the controlling "A" shares in the company. They are, it is true, what she transferred in 1966; but that is so only in the most abstract and theoretical sense. The shareholdings in the company have changed. In the interim different hands, some of them unaffected by any taint in equity, have held shares, and some have been sold. Rights attaching to shares have been altered. The fact that this occurred in 19 68 under circumstances said to raise doubts about the validity of the process tends, in my opinion, to increase rather than diminish the difficulties of effecting restitution. Above all the economic environment of the corporate business has changed -- 11 of 42 -- 7 almost beyond recognition. In 1966 Biboela was little more than a small rural town in central Queensland. Since then it has become the commercial centre of a district in which extensive and valuable coal mining and agricultural activities are carried on. The increase in population this has brought must inevitably be reflected in the returns and value of a business like that conducted by the company in this case. During the period in guestion, it was not the plaintiff but the transferees of her shares who took the commercial risks and invested their enterprise and efforts in conducting the affairs of the company. Now to insist upon revesting the shares transferred in return for a price fixed in 1968 would be to place the defendants in an "unreasonable situation" and, correspondingly, to confer on the plaintiff an "unjust advantage" operating to the "unfair prejudice" of the defendants, in circumstances that may fairly be compared to those that led the High Court in Fysh v. Page to refuse relief. Finally, it is not the least surprising feature of this litigation that in the course of it so little attention was given to the question of adequacy or inadequacy of the consideration. That is a matter that in cases of this kind was said by Fullagar J. in Bromley v. Ryan (1956) 99 C.L.R. 362, 405, to be "likely to be a matter of major, and perhaps decisive, importance". The only evidence on the point was that the price for the shares transferred was fixed in terms of the value for probate purposes in 1962. No attempt was made to challenge the propriety of the amount. It is scarcely credible that, if the fortunes of the company had gone the other way, these proceedings would ever have been instituted or even -- 12 of 42 -- 8 contemplated. As in the case of Mrs Fysh, it is difficult to resist the conclusion that the present prosperity of the company must appear to this plaintiff as the most persuasive argument that she must have been overreached. It is because of these matters, which are examined in more detail in the reasons of my brother Williams, that I would dismiss the plaintiff's appeal in this case. For the reasons he gives, I agree that the order of the trial judge concerning costs should not be disturbed. -- 13 of 42 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 3908 of 1985 BETWEEN : OLGA BABURIN (Plaintiff) Appellant AND: ALEXANDER BABURIN and GEORGE BABURIN as representatives of the estate of VICTOR BABURIN (First Defendants) First Respondents AND: ALEXANDER BABURIN (Second Defendant) Second Respondent AND: J. BABURIN & SONS PTY . LTD, (Third Defendants) Third Respondents JUDGMENT - G.N. WILLIAMS J. Delivered the 23rd day of August, 1990. The learned trial Judge found that the appellant, the plaintiff at trial, was aware of the nature of the share transfer transaction to which she was a party on 4th May, 1966, but he also concluded that there was unconscionable dealing on the part of the first and second respondents (the first and second defendants at trial), in that an unconscientious advantage had been taken of an innocent party who, though not deprived of an independent and voluntary will, was unable to make a worthwhile judgment as to what was in her best interest. Notwithstanding -- 14 of 42 -- 2 that finding, the appellant failed to obtain the substantial relief which she sought because the learned trial Judge found "there was unreasonable delay in commencing these proceedings and in view of what has occurred in the period which has elapsed since the transfer of the shares, the consequences of that delay are such that it would be unjust to grant the relief sought." Initially counsel for the appellant was prepared to limit his argument to the finding of laches, but when it became obvious that counsel for the respondents was in the alternative seeking to uphold the judgment by challenging the finding of unconscionable conduct, counsel for the appellant contended that on the basis of the findings of fact made by the learned trial Judge he should have found that there was actual or presumed undue influence operating on the appellant at the time she entered into the impugned transaction. In addition to seeking to uphold the substantive judgment, the respondents challenged the order made with respect to costs; as the defence of laches was raised "only at a very late stage by way of amendment" the learned trial judge considered that the proper exercise of his discretion warranted making no order as to costs. The learned trial Judge after hearing evidence from twelve witnesses, and receiving a large volume of documents, made extensive findings of fact. Before dealing with the questions of law raised on the appeal it is necessary to record those findings. The appellant was born in Manchuria in July 1910, and migrated to Australia in 1931 after marrying John Baburin in 1928. There were four sons born to the marriage; George in 1930, -- 15 of 42 -- 3 Alexander in 1932, Victor in 1935, and Leonard in 1947. Prior to the second world war John Baburin commenced operating a motor garage business in Biloela; though it is not entirely clear on the findings and evidence it would appear that the land in question was bought in joint names. In those days the appellant assisted her husband in the garage. The family moved to Melbourne during the war years and returned to Biloela at about the end of the war and again re-opened the garage business. The garage business was "very successful", and in 1948 a franchise to sell vehicles manufactured by General Motors-Holden was acquired. Each of George, Alexander and Victor received only a basic primary school education and then started an apprenticeship in the garage. Though there is no finding in this regard the uncontradicted evidence is that in about the decade after the war .each of those three boys not only worked in the garage but also spent a considerable amount of time at weekends working on rebuilding or remodelling or upgrading the premises. There is no express finding by the learned trial Judge as to the basis of their remuneration during this period, and the evidence on that topic is rather vague; there seems to be uncontradicted evidence that much of the work done by those three boys with respect to improving the premises was done for no specific remuneration. The learned trial Judge does refer to the business as conducted prior to 24th July, 1960 as a "family partnership", but he makes no finding as to who were the partners. The land on which the business was conducted was jointly owned by the appellant and her husband, but neither the findings nor the evidence make it clear whether or not -- 16 of 42 -- 4 immediately prior to 24th June, 1960 all or any of the three eldest boys were members of the partnership. Certainly on the findings Alexander and Victor were then still working fulltime in the business. After serving his apprenticeship in the business George left it in about 1952 in order to start his own panel-beating business. After discuss! <s between R.E. Hancock, a Bundaberg chartered accountant and John Baburin in about 1960 the decision was made to form a limited proprietary company which would operate the business. J. Baburin & Sons Pty. Ltd., the third respondent, was formally incorporated on 24th June, 1960, and it purchased the asse os the business previously carried on. The findings of the learned trial Judge went on:- "The issued capital of the company consisted of 1 2,000.0.0 Class A shares, all of which were held by John Baburin, and a number of Class B- shares which were held by John Baburin, the plaintiff, Alex and Victor. The Class A shares had the right to one vote for each share held and the right to a dividend at the rate of one pound per cent per annum whereas the Class B shares had the right to one vote for every 50 shares held and the right to receive such dividends as may from time to time be declared. All four shareholders in the company were directors, John Baburin being the managing.director ." That was the position in February 1962 when John Baburin died. On his death the shares he had owned were held in trust by his executors until May 1964 when they were transferred to the plaintiff. On the death of John Baburin his son Victor was appointed managing director. It should be noted that some time prior to this Victor had lost his arm in a motor vehicle accident and thereafter had primarily managed the office associated with the business. Alex continued working in the workshop. The learned trial Judge accepted the evidence that following the -- 17 of 42 -- 5 death of John Baburin there was a further allotment of Class B shares to Alex and Victor, each of whom also transferred some Class B shares to George who returned to work in the business in about 1963. George was associated with the business until about 1964 when he again left and resumed his panel-beating business. In March 1965 the shares which George had acquired were transferred in equal proportions between Alex and Victor. Thus as at April 1966 the appellant held all the A class shares and the B class shares were held by the appellant, Alex and Victor. The learned trial Judge found that around the time of the death of John Baburin the appellant's relationship with Victor was very good and she relied greatly on him, but she had a less friendly relationship with Alex. George and Alex were married, but Victor was not. For some time after her husband's death the appellant continued to live in the former matrimonial home but after about 18 months she sold it, and then lived for about 18 months with Victor before in about 1965 moving into a new house which she had built. From at least the time of the incorporation of the third respondent the accountancy affairs of the business were attended to by Mr. Hancock. He became more involved in the affairs of the company after the death of John Baburin. He attended to the personal financial affairs of members of the family, including the appellant, and he prepared her taxation returns. Though the learned trial Judge made no finding in this regard, and though it does not appear to have been included in any submission, it seems fairly obvious that the company's structure was of the kind frequently used in Queensland in the -- 18 of 42 -- 6 1960's to minimise the impact of succession and probate duty upon the death of the key personality in a business enterprise. It is understandable that consequent upon the death of John Baburin, Hancock, as the accounting adviser to the company, and Alex and Victor as the key personnel in the business, would have been concerned as to the position if the appellant, who then had the controlling interest in the company, should die. Though it was not spelt out in the reasons of the learned trial Judge it is obvious that at that time Alex and Victor were in a particularly vulnerable position. Each had devoted the whole of his working life to the business, and the goodwill which the business had largely revolved around them. Further, it would appear that they had not by then received the financial rewards which they deserved for the time and effort which they had put into building up and improving the business, including the premises in which it operated. The appellant was clearly not capable of running the business without their managerial assistance, and there was the real risk that if she died the A class shares would pass to Leonard who in 1966 was aged about 19. Lenny had worked in the business for a few weeks after leaving school but apparently left it of his own accord. Clearly on the whole of the evidence he would then have been totally incapable of managing or carrying on the business. It was against that background that the transaction in question occurred. On 4th May, 1966 the appellant executed a share transfer form transferring her 12,000 Class A shares to Alex and Victor for a consideration of $21,000.00. Each of Alex and Victor received 6,000 of those shares. The learned trial -- 19 of 42 -- 7 Judge found, and there was ample evidence to support the finding, that the share transfer form bore the signatures of the persons who purportedly signed it. He also found, rejecting the evidence of the appellant, that in May 1966 she had a reasonable command of both spoken and written English; when the learned trial Judge said in his reasons that he accepted the evidence of Mrs. Baburin on that point it was clearly a reference to Mrs. Barbara Baburin. The learned trial Judge also recorded that he was satisfied that at the material time the appellant "relied greatly on Victor for advice and that she trusted him" . She also trusted Mr. Hancock. I merely record without going into detail that the learned trial Judge did not accept the appellant's evidence as to the circumstances in which the share transfer document was executed. I now quote further findings made by the learned trial Judge "It appears that the proposal emanated from a desire by Victor and Alex for control and Alex eventually admitted in evidence that they wanted control. Mr. Hancock said that Victor and Alex were concerned about the voting rights of the Class A shares and what would happen if the shares were transferred to Lenny. He said that his recommendation to Victor and Alex was to acquire the Class A shares and he was asked to visit the plaintiff to discuss the matter. Mr. Hancock said he thought that the boys and also the plaintiff regarded him as a general adviser. Mr. Hancock saw the plaintiff regarding the transfer and he said that this was as a result of the request from Victor and Alex because of their concern as to what would happen on her death if the shares were left to someone like Lenny. Mr. Hancock said that he pointed out to the plaintiff the problems from her holding voting rights and the boys concern if they did not get the shares should something happen to her. He said that the plaintiff's concern was that she did not wish to see trouble among the boys. Mr. Hancock said that he was talking to the plaintiff as the accountant of the firm and that he saw no need to give the sort of advice given to people at arms length. He believes that she relied on his explanation and on his -- 20 of 42 -- 8 assessment of the price which was based on the valuation of the shares for probate purposes on the death of John Baburin. Mr. Hancock said that he explained to the plaintiff the concern of Victor and Alex about the possibility of losing control of the company. He said that the plaintiff instructed him to go ahead and do what had to be done with the shares and that she did not want there to be any trouble amongst the boys. He does not think he discussed alternatives to the transfer and he said that one of the problems was that the plaintiff was running out of funds for her house. Although the plaintiff says there was no discussion with her sons or with Mr. Hancock I am not prepared to accept that this was the case. I find that the share transfer form (ex. 1) was signed by the plaintiff with the understanding that it effected the transfer of her Class A shares to Victor and Alex, this much having previously been explained by Mr. Hancock. I find that at the time of signing the document the plaintiff had sufficient command of English to have been capable of reading it but am not satisfied that had she read it she was capable of understanding what it did. However this is perhaps unimportant in view of the finding that she understood what it did from the explanation given to her by Mr . Hancock . I find that discussions with the plaintiff regarding the sale of the shares were had by Mr. Hancock and more probably than not also with Alex and Victor. I find that the proposal to transfer the shares from the plaintiff to Victor and Alex emanated from Mr. Hancock and that he saw the plaintiff regarding their proposal at the request of Victor and Alex and he appeared more concerned with their interests than with those of the plaintiff. I infer that the effect of his advice was to go along with the proposal and that she agreed because she did not want trouble among the boys. I find that Mr. Hancock was not an independent adviser and was not concerned to safeguard the interests of the plaintiff. However I am not finding or even suggesting that he was in any way dishonest. It has not been shown that the consideration for the transfer was either adequate or that it was inadequate and there is no material on which to make a finding either way since no evidence on this matter was admitted in view of the state of the pleadings. I find that it is more probable than not that Victor paid $10,500.00 for the shares at or about the time of the transfer and I find that Alex paid the same amount in August 1968.. Although Alex claims that the plaintiff agreed to his deferring his payment I doubt that this was so." -- 21 of 42 -- 9 After the sale of her Class A shares the appellant still retained 6,949 Class B shares in the company; the evidence to that effect was uncontradicted. The learned trial judge also made findings with respect to a meeting of shareholders of the company held according to the minutes on 23rd September, 1968. The minute book of the company showed that only Alex and Victor were in attendance when a special resolution was passed altering the Articles of Association with respect to Class A shares. The effect of the alteration was to give the Class A shares the same right to receive dividends as applied to Class B shares. The learned trial judge found that he was not satisfied that the appellant had notice, verbal or otherwise, of that meeting. He pointed out that the alteration of the Articles was to the detriment of the appellant . In 1970 Alex transferred his Class B shares to his wife Barbara. The shareholding then remained unchanged until April 1985 when Alex left the business; on 29 th April,. 1985 he transferred his Class A shares to Victor for a consideration of $70,320.00 and on the same date his wife transferred her Class B shares to Victor for a consideration of $61,530.00. The appellant commenced this action by writ issued 27th November, 1985. Victor was then still alive and was named as a defendant. Victor died on 16th May, 1986 leaving a will in terms of which Alex and George were named as his executors. The necessary amendments were made to the action and Alexander and George as representatives of the estate of Victor are the first respondents. In terms of Victor's will, so far as is material, -- 22 of 42 -- 10 his estate was to be divided between Alex and George. Thus as at the date of trial all the Class A shares were held equally by Alex and George, and they held all of the Class B shares save the 6,949 owned by the appellant. The learned trial judge also expressly rejected the appellant's . claim "that it was only shortly before these proceedings were commenced that she learned that she had transferred the shares" . He observed that she claimed "to have brought the proceedings because Lenny found some papers when he was working in the garage" and ,.made the comment that Lenny was not called as ’ a witness although there was nothing to indicate he was not availabl . That observation has some significance because on the appellant's evidence she only became aware of relevant facts as a result of statements made to her by Lenny shortly before the proceedings were commenced. Though the learned trial judge used the expression "shortly before these proceedings were commenced" the appellant's evidence on the topic is rather vague and indeed in one answer she said "... recently I found out, only a few years before we start proceedings". In the action the appellant sought relief on the basis that the share transfer was obtained by Victor and Alex by fraud, or alternatively by undue influence, or alternatively as a result of unconscionable dealing, or alternatively that the transfer was executed under a mistaken belief as to its nature, or finally in the alternative that the shares were transferred for no consideration. The learned trial judge concluded that there was "no basis for a finding of fraud" and that the findings which he had made "do not support a plea of non est factum". He also -- 23 of 42 -- concluded that the "claim that the shares were transferred for no consideration has not been established". Norte of those conclusions was challenged by the appellant on the hearing of the appeal . His Honour in his reasons then analysed a number of authorities dealing with undue influence and concluded "In the present case, on the view which I take of the evidence and on the findings which I have made and applying the law as set out in the Australian cases to which. I have referred, actual undue influence on the part of either Alex or Victor has not been shown and, if it should be that a presumption of undue influence arises from the relationship of the parties, I would consider that such a presumption has been rebutted.■ In the end I am unable to be persuaded that it could properly be said that in entering into the transaction the will of the plaintiff was not independent and voluntarily because it had been overborne." The judgment then went on to point out that different considerations apply with respect to unconscionable dealing, and His Honour elaborated on the distinction between undue influence and unconscionable dealing by referring to Commercial Bank of Australia Ltd, v. Amadio (1983) 1 51 C.L.R. 447 especially at 461 and 474-5 and Blomley v. Ryan (1956) 99 C.L.R. 362. He then went on, and these are the critical passages for present purposes "This is a case in which the plaintiff was in a disadvantageous position as compared with Alex and Victor. She had no real understanding of matters relating to the business, she was accustomed to depending greatly on the advice of Victor whom she trusted and she was likely to be influenced by Mr. Hancock whom she appears also to have trusted and it is reasonable to infer that Alex and Victor were well aware of these matters. It is, I think, fair to say that, even if her will in doing so was ultimately independent and voluntary, she was nevertheless persuaded to enter into the transaction whereby she handed over voting control of the company to her two sons. ... In my view this is a case where there was unconscionable dealing and it comes within the category of dealings referred to by Mason J. in Amadio's Case at p. 461 where unconscientious -- 24 of 42 -- 12 advantage has been taken of an innocent party who, though not deprived of an independent and voluntary will, is unable to make a worthwhile judgment as to what was in her best interest." Based on those findings the appellant argued that the learned trial judge erred in not finding that the impugned transaction resulted from actual undue influence exerted by Victor and Alex at the material time. Conversely the respondents argued that properly analysed the findings did not justify a finding of unconscionable conduct. Much of the argument in that regard advanced on behalf of the respondents centred on the fact that there was nothing in the evidence, or the findings, to establish that the transaction was unfair, unreasonable or unjust from the appellant's point of view. On the findings the appellant obtained what she regarded as "big money" at a time when there was evidence that she needed money for her new house. The evidence indicated that the sale price was based upon the probate value of the shares, and the respondents contended that such being the only evidence on the point it could not be said that they were sold for other than fair value. One can readily see the force of those arguments advanced by opposing counsel. But ultimately I have come to the view that the conclusions of the learned trial judge ought not be disturbed. In a case such as this the assessment by the learned trial judge of the character of the principal players is of vital importance, and here a very experienced trial judge had the opportunity over some days of assessing those persons. In particular the trial judge's assessment of the appellant was of critical importance. She maintained at the trial that at the material time her understanding of English was very limited, that -- 25 of 42 -- 13 she had received no money in consequence of the transaction, and that she had only found out shortly before commencing the action what the true position was. On each of those matters the learned trial judge made findings adverse to the appellant. In so doing he must, of necessity, have been making an assessment of her character. Further, he made some findings adverse to the credibility of Alex, and (though he did not have the opportunity of seeing Victor in the witness box) it is clear that in his judgment he was making an assessment of the character of the appellant's two sons who were most involved in the transaction. Judges concerned with allegations of undue influence or unconscionable dealing frequently speak in terms of "the weaker party", "the stronger party", and persons under a disability (cf. Amadio at 47 4 per Deane J. ) . The trial judge is in a peculiarly advantageous position in making such a comparison between the disputing parties, and in such cases the advantage of seeing and hearing the witnesses assumes even greater significance. Given the particular advantage the learned trial judge had in the circumstances of this case I am not persuaded that he erred in arriving at the conclusions in question. On the basic findings of fact which he made his conclusions were clearly open, and in my view there is no basis on which an appellate' court could, or should, reverse them. I now turn to the reasoning of the learned trial judge on the issue of laches, the defence on which the respondents succeeded. He noted that there was a "delay of over 19 years" between the date of the impugned transaction and the commencement -- 26 of 42 -- 14 of the action. After observing that "mere delay does not constitute laches" he went on to consider "what has occurred in the intervening period". His relevant findings were as follows "Documents which may well have been of assistance are no longer available, in some cases, particularly that of Mr. Hancock, a key witness, recollection on significant matters is imperfect. Victor, who would also have been an important witness has died although admittedly not until some six months after the action had been commenced. However, as a result of his death the beneficial interest in the shares in question is now passed to Alex and George, the latter being an innocent party, and further the rights attaching to the shares have been varied since the transaction took place. There would obviously be questions of some difficulty relating to what financial adjustments should be made if the shares were to be transferred back to the plaintiff. If in all the circumstances it • were to be considered appropriate to grant equitable relief, to do so on just terms, whilst it may not be impossible, would certainly be extremely difficult. . . . On the findings which I have made the plaintiff was aware of the nature of the transaction into which she had entered and no reason has been advanced for her not seeking independent advice, for instance, legal adv : ce, as to her rights prior to 1985. There is a reft; her evidence to Lenny finding some papers, as . y about this time, but the matter was left somewin-..xn the air. There is in evidence correspondence which passed between the plaintiff, her solicitors, a firm of accountants of which Mr. Hancock is a member, Alex and Victor and also the solicitors ■ acting for Alex and his wife between December 1984 and April 1 985. In the course of that correspondence the plaintiff's solicitors suggested to Alex and Victor in 1985 that it would be prudent if further trading in the company shares be suspended pending finalisation of their investigations. ... In my view there was unreasonable delay in commencing these proceedings and in view of what has occurred in the period which has elapsed since the transfer of the shares, the consequences of that delay are such that it would be unjust to grant the relief sought by the plaintiff." In support of his approach to the question of laches the learned trial judge referred to Lindsay Petroleum Company v. Hurd (1874) 5 L.R.P.C. 221 at 240, Spry, Equitable Remedies (3rd edition) p. 220, and Meagher Gummow & Lehane, Equity Doctrines and Remedies (2nd edition) para. 3617. The appellant mounted a -- 27 of 42 -- strong attack on this part of the judgment and it is necessary to deal with a number of specific arguments advanced. It was contended that there was nothing to support the view that any evidence which might have assisted the defence had been lost. It is true that, although Victor had died, an affidavit by him in earlier proceedings was admitted into evidence (ex. 34) and it did touch upon a number of issues which fell for determination by the learned trial judge. But in my view it must be said that if Victor had been available as a witness much more of relevance than that contained in his four page affidavit would have been forthcoming. He was a key player with respect to the impugned transaction and he was managing director of the company from 1 962 until his death. The learned trial judge did not refer in his reasons to the recent High Court decision in Orr v. Ford (1989) 167 C.L.R. 316, where Wilson, Toohey and Gaudron JJ. said at 330: "The issue is not whether evidence may have been lost but whether evidence which may have cast a different complexion on the matter has been lost" . It is inconceivable to me that Victor's evidence would not have materially affected findings as to the impugned transaction and the relationship and dealings between the appellant and the company and the appellant and Victor from 1962 to 1985. Victor was managing director of the company during that period, the appellant remained throughout a shareholder of the company and received dividends, for a period the appellant lived with Victor, and on all accounts for most if not all of that time there was a close relationship between the appellant and Victor; in those circumstances I am persuaded that Victor's evidence may have materially assisted the case for the -- 28 of 42 -- 16 respondents and that the test laid down in Orr v. Ford is satisfied. In my view, bearing in mind what was said in Orr v. Ford , the learned trial judge was fully justified in observing that Victor would have been "an important witness". With respect to Hancock the learned trial judge found that he "did his best to give an account of what took place. In view of the lapse of time I am not satisfied that his recollection was completely accurate but I am prepared to accept it in substance." In his evidence Hancock had stated that the firm of which he was a member had a standard policy of retaining documents for seven years and th'en destroying anything "we consider are not needed any further". In consequence many documents relevant to the company's trading in the 1960's were unavailable. It is impossible not to come to the conclusion that evidence derived from such documentation or evidence from a memory refreshed by reading such material may have cast a different complexion on the questions in issue. Thus His Honour's reference in this context to the unavailability of documents and Hancock's imperfect recollection was apposite. There is another point not specifically dealt with by the learned trial judge which ought to be mentioned at this stage. Throughout the whole of the 19 year period in question the appellant held 6,949 Class B shares in the company. The minutes which are in evidence disclose regular payments of dividends to shareholders, including ‘Class B shareholders. In addition there is some evidence suggesting that throughout the period the appellant was paid a wage of $140.00 gross per week (at least that was the figure in 1985) though she did not appear to do any -- 29 of 42 -- 17 specific work entitling her to that income. Thus it seems clear that the appellant benefited financially from the company during the period 19 66 to 1985, but it is not possible now to calculate with precision the total amount she received because of the unavailability of records. But nevertheless it would appear that the appellant benefited materially from the company business carried on under the management of Victor and Alex. Then there was a challenge to the observation of the learned trial judge that as a result of Victor's death George had acquired a beneficial interest in shares and he was an innocent party. It is true that the disposition of shares to George took place after the action was commenced and there would be little or no difficulty in ordering George to transfer the shares he now holds to the appellant. Whilst there is validity in those submissions nevertheless the fact that Victor has died and half of his share holding has now passed to George is a circumstance which cannot be ignored. What is George to get now in return for giving up the shares? Why should George, an innocent party, bear any loss? Whilst such factors would not necessarily justify refusing relief they are matters which cannot be ignored; in determining whether or not there has been such delay that relief ought to be refused the court must take account of all facts which together constitute the circumstances in which an order granting relief would take effect. The learned trial judge also referred to a variation in rights attaching to the shares which had taken place since 1966. The appellant argues that that is a reference to what took place in September 1968. That is probably true. It is also correct -- 30 of 42 -- 18 that the learned trial judge did not consider it necessary for him to "examine the question of the validity of the alteration to the Articles: effected by the special resolution of 23rd September, 1968". There is some force in the appellant's argument that in those circumstances it was wrong to place any reliance on that matter. But the simple fact of the matter is that the company has operated for in excess of 20 years on the basis that such resolution was validly passed. Even if it be correct that the appellant was given no notice of that meeting it is doubtful whether a court could now declare the alteration to the articles a nullity. For over 20 years dividends have been paid and received on the basis of the validity of that alteration without any question. Against that background I do not consider that the learned trial judge erred in referring to this as a factor relevant to laches. One could also refer to the sale of shares by Alex and Barbara Baburin. Again it is beyond question that the consideration then paid took into account the dividend entitlement consequent upon the alteration to the articles effected in 1968. Further, the Class A shares sold by Alex were the very shares he obtained in the impugned transfer. It is virtually impossible to say what effect those transfers had on the conduct of the business, on the profitability of the business, and on the interrelationships between the various parties. Certainly in my view, and this was also the expressed view of the learned trial judge, it would be extremely difficult, if not impossible, now to do justice between all of the various parties whose shareholding in the company has been affected by, -- 31 of 42 -- 19 or has been in some way related to, the impugned transaction in 1966. There were two further points made by counsel for the appellants in his attack on the finding of laches. Firstly he submitted that the relevant period of delay was not the time lapse between the impugned transaction and commencement of the action, but the period from the date upon which the appellant was first free of the disability or first able to make a worthwhile decision about the transaction and the date of commencement of the action. The second point was really an extension of that; there was no evidence that the appellant was aware that she had a right to set aside the transfer of the shares before commencement of the action. Mos.t of the cases in which the relevant principles have been considered were cases of undue influence rather than cases of unconscionable conduct, but one would not expect there to be any major difference in the applicable principle. The best starting point, in my view, is the decision in Stafford v. Stafford (1857) 1 DeG. and J. 193; 44 E.R. 697. The case concerned a woman entitled to the income of a legacy for her separate use who, for a period of 15 years, received income on the footing that the legacy was liable to contribute in favour of the residuary legatees to a loss occurring on the reinvestment on part of the estate. It was afterwards, decided that the legacy was not liable so to contribute but must be paid in full; hence the action in which she sought to recover from the residuary legatees the difference between the full amount of the income and the reduced -- 32 of 42 -- 20 income she had actually received. Knight Bruce L.J. said at 201- 2 : - "From that time to the present, a period of more than 15 years, she has continued to receive the income without objection, and she now claims the right to go back to the beginning, and take accounts from the commencement, with a view of having the difference of income made good, not by the trustees, but by those who, with her knowledge and approbation, have, from time to time, been receiving an amount of income which she, by her conduct, and more than by her conduct, admitted to be correct. This, it is said, is to be done, because the lady was ignorant of her strict and extreme rights. ... But if she has been a loser, to make her present demand on the ground of supposed mistake or on the ground of supposed ignorance of law, when at such a distant period she was apprised of all the facts, and being so apprised has allowed her sisters to shape their expenditure and their manner of living so long upon the footing of the income which she then acceded to, is rather too much. Generally when the facts are known from which a right arises, the right is presumed to be known; and I am not satisfied that in the present case, upon the materials before us, it would be right to ascribe to the lady any degree of ignorance of her rights." Lord Justice Turner agreed. A somewhat similar factual situation was considered by the High Court in Hourigan v. The Trustees. Executors and Agency Company Limited (1934) 51 C.L.R. 619. The reasoning of Knight Bruce L.J. in Stafford was applied by Dixon J. at 651; speaking of the facts in the case before him, he said:- "It is true that he did not 'know' his rights in the sense that he. .knew what interpretation would be judicially given to the will. But 'generally, when the facts are known from which a right arises, the right is presumed to be known'. ... He knew as much as was required in order to form a decision as to what he should do. The subsequent lapse of time and delay have materially affected the situation both by making a just ascertainment of the rights which would have arisen between himself and his mother almost impossible and by inducing testamentary dispositions which it would be most inequitable to disturb." -- 33 of 42 -- 21 Recent English decisions have not wholeheartedly adopted the statement quoted from Stafford . Many authorities were considered by Wilberforce J. in In re Pauling's Settlement Trust (1962) 1 W.L.R. 86 and by the Court of Appeal in Holder v. Holder (1968) Ch. 353; the latter was concerned with acquiescence rather than laches, but the relevant principles are not distinguishable. All members of the Court of Appeal in Holder approved and applied a passage in the judgment of Wilberforce J. at 108; after setting it out Harman L.J. concluded "There is therefore no hard and fast rule that ignorance of a legal right is a bar, but the whole of the circumstances must be looked at to see whether it is just that the complaining beneficiary should succeed against the trustee." (394) That proposition was assented to by Danckwerts L.J. at 399 (his remarks about his earlier decision in In re Howlett (1949) Ch. 767 at 775 should be noted) and by Sachs L.J. at 406. But Lord Selborne in delivering the judgment of the Privy Council in Lindsay Petroleum Company v. Hurd (supra) - which was concerned with rescission of a contract in consequence of fraud - stated that in "order that the remedy should be lost by laches or delay, it is, if not universally at all events ordinarily - and certainly when the delay has been only such as in the present case - necessary that there should be sufficient knowledge of the facts constituting the title to relief." (241). That was stated to be the test by Deane J. (with the concurrence of Mason C.J.) in Orr v. Ford at 353. That also appears to have been accepted by a majority in Allcard v. Skinner (1887) 36 Ch.D. 145, a case concerned with undue influence. Lindley L.J. at 188 emphasised that the plaintiff "knew all the facts" and that in the -- 34 of 42 -- 22 circumstances it would be "wrong and contrary to sound principle to give her relief on the ground that she did not know what her rights were". Bowen L.J. at 192 observed that it was "enough if she was aware that she might have rights and deliberately determined not to enquire what they were or to act upon them." At trial Kekewich J. used the expression "sufficiently acquainted with her rights" (163), and "sufficiently alive to her legal position" (164); he appears to have held that she was so acquainted or alive because she was aware of all relevant facts. The authors of Meagher, Gummow and Lehane Equities - Doctrines and Remedies (2nd ed.) para. 3617 state: "However, in the kind of laches which consists of a plaintiff's long delay leading to the defendant ... reasonably altering his position to his detriment in reliance thereon, there seems to be no reason why the fact that the plaintiff is ignorant of his rights should be a defence of laches." No authority is cited for that specific proposition but it seems consistent with the principles which emerge from the authorities I have referred to. Here the learned trial judge expressly found that the appellant executed the share transfer form with the knowledge and understanding that it effected the transfer of her Class A shares to Victor and Alex, and that at the time of so doing she was not deprived of an independent and voluntary will. There is also an implied, if not an express, finding that the appellant realised after May 1966 that Victor and Alex had, in consequence of that transfer, control of the company's affairs. She was living independently throughout much of the intervening period, and on her own evidence had frequent contact with her son Lenny and her -- 35 of 42 -- 23 accountant Hancock. There was no reason why she could not have discussed any concern with Hancock or with any independent legal or accounting adviser. On the findings of the learned trial judge this was not a case where the appellant was affected by some undue influence at the material time so that the period of delay did not commence to run until after she was freed from that influence (cf. Allcard v. Skinner ) . Here the unconscionable conduct found by the learned trial judge lay in the sons (Victor and Alex) using their superior bargaining powers (their knowledge of company affairs and the fact that the business could not in 1966 operate efficiently without them) to secure the transfer from their mother who suffered from the disability or disadvantage of not fully understanding the affairs of the company and not wanting to cause trouble amongst her sons. As time went on and she lived more independently of Victor and Alex, and as Lenny grew older, there was no factor for which the respondents were responsible which prevented, or tended to prevent, her from seeking independent advice as to her position. In the light of all that the learned trial judge was justified, in my view, in concluding that "the plaintiff was aware of the nature of the transaction into which she had entered and no reason has been advanced for her not seeking independent advice, for instance, legal advice, as to her rights prior to 1 985." He did not err in taking that into consideration on the issue of laches. In my view the learned trial judge was guite correct in giving weight to what had occurred "in the intervening period". -- 36 of 42 -- 24 Lord Selborne in Hurd at 240 had said that two circumstances were always important in such cases, namely "the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy." After quoting the passage in which that statement occurred Lord Blackburn in Erlanger v. New Sombrero Phosphate Company (1878) 3 App. Cas . 1218 at 1279 observed: "I have looked in vain for any authority which gives a more distinct and definite rule than this; and I think, from the nature of the enquiry, it must always be a question of more or less, depending on the degree of diligence which might reasonably be required, and the degree of change which has occurred, whether the balance of justice or injustice is in favour of granting the remedy or withholding it." In turn that formulation by Lord Blackburn was regarded as a "classic statement of the law as to laches" by Gibbs J. (with the concurrence of Barwick C.J.) in B.M. Auto Sales Ptv. Ltd, v. Budget Rent-a-Car System Pty. Ltd. (1976) 51 A.L.J.R. 254 at 259. Interestingly Gibbs J. a little later on expressed the view that in deciding whether a defence of laches has been made out "it is of course necessary to have a close regard to all the circumstances of the case; the question is one of degree and the decision involves the exercise of something approaching, an exercise of discretion." Further, in his reasons Gibbs J. distinguished the case before him on its facts from the situation where the party was misled into supposing that his activities were permitted, and built up his business during the period of delay. That would -- 37 of 42 -- 25 appear to be in accordance with the principle to be derived from cases such as Norway v . Rowe (1812) 19 Ves . Jun. 144; 34 E.R. 472, Clegg v. Edmondson (1857) 8 De G.M. and G. 787; 44 E.R. 593 and Prendergast v. Turton (1841) 1 Y and C.C.C. 98; 62 E.R. 807. Each of those cases was concerned with what was regarded as a risky mining venture. In each case an equitable claim was defeated on the ground of laches; the party otherwise entitled to relief in equity stood by until the venture at great expense to the others became prosperous. In Clegg Turner L.J. asked the question at 808 whether the plaintiffs were "entitled to reap the benefit when they could not have been made subject to the loss?" Knight Bruce L.J. in that case at 813 noted that the party on the other side "was continually working the mines, expending money and bestowing his time, labour and skill upon them, with a view to his own profit alone." He went on at 814: — "A mine which a man works is in the nature of a trade carried on by him. It requires his time, care, attention and skill to be bestowed on it, beside the possible expenditure and risk of capital, nor can any degree of science, foresight and examination afford a sure guarantee against sudden losses, disappointments and reverses. In such cases a man having an adverse claim in equity on the ground of constructive trust should pursue it promptly, and not by empty words merely. He should show himself in good time willing to participate in possible loss as well as profit, not play a game in which he alone risks nothing." That learned judge, then Vice-Chancellor, made similar observations in Prendergast v. Turton at 109-111. That principle has been applied in other cases. In Glasbrook v. Richardson (1874) 23 W.R. 51, another colliery case, Jessel M.R. spoke of the "necessity of diligence in suits of this description." There the plaintiff was claiming specific performance, as was the plaintiff in Mills v. Haywood (1877) 6 -- 38 of 42 -- 26 Ch. D. 196 which concerned a tavern. The Court of Appeal there considered that the rule requiring promptness was specially applicable because of the "somewhat speculative and fluctuating value" of the tavern (p. 202). In Hass Timber and Trading Co. Ptv. Ltd, v. Wade (1954) 94 C.L.R. 593 at 602, Dixon C.J., Fullagar and Kitto JJ. said of delay as a defence to a claim in equity 11 It is necessarily a matter of degree and must depend on the circumstances of the given case. . . . The reasonableness of the course taken by the shareholder must be determined by reference not only to the facts affecting his conduct but also to its probable consequences upon the company and others." Boyns v. Lackey (1958) S.R. (N.S.W.) 395 was another case concerned with mining rights. Hardie J. in dealing with the defence of delay, after referring to Lindsay Petroleum v. Hurd , went on:- "The changes in the subject matter of the contract and the position of the parties during the period were so substantial that by July, 1956 it was impossible for the agreement, if still subsisting, to operate in the manner and with the incidence and consequences contemplated by the parties when the agreement was made at the end of April 1954." (402) He went on at 404 to conclude that applying: - "those principles I am satisfied that the length of the delay in this case and the nature of the acts done during the interval, when considered in conjunction with the contractual rights sought to be enforced in this suit, would cause a balance of injustice if the plaintiffs were now permitted to hold the defendants to a performance in specie of the contract made in April, 1954." Though many of the cases to which I have referred were concerned with risky mining ventures, nevertheless I am of the view that the principle recognised therein has wider application. Kekewich J. in Allcard v. Skinner at 163 observed that.a brief -- 39 of 42 -- 27 delay may suffice where the property was of a "special kind", and a tavern ( Mills v. Haywood) is hardly more a speculative business than a garage with a new vehicle dealership. The authorities I have referred to support the statement by the author of Spry Equitable Remedies (4th ed.) p. 226:- "Where, moreover, the material contract concerns a disposition of an interest in property of a fluctuating nature, such as shares in companies or other property of a varying nature or value, then greater expedition is appropriate then might otherwise have been the case, and delay that would otherwise be held not to be material may be held to give rise to laches ." In this case it is clear that the business operated successfully from 19 62 when John Baburin died until 1985 primarily because of the efforts of Victor, and to a lesser extent the efforts of Alex. For example, though the Holden dealership was granted to the company, it was dependent upon the company's assurance that Victor (whose capabilities were acknowledged by General Motors -Holden) would provide his personal services, (cf. ex. 34) It seems unchallenged on the evidence that if Victor and Alex had not put all of their time and effort into the business, and had therefore not put their own personal savings and livelihood at risk, the business would not have prospered. The appellant stood by during all of that period, drawing a wage which she did not earn by physical exertion, and receiving dividends from time to time on her Class B shares, and now after a lapse of approximately 20 years wants to be granted effective control of the company - that would be the consequence of the relief that she seeks . In the light of the principles that I have discussed I am of the view that the learned trial judge was correct in -- 40 of 42 -- 28 concluding that the consequence of the delay on the part of the appellant in commencing the proceedings was such that it would be unjust to grant the relief sought. I can see no reason for interfering with the conclusion which he reached. Finally I must deal with the cross appeal on the question of costs. The learned trial judge refused to give leave to appeal against his decision in that regard and the respondents seek to appeal against that refusal of leave and then against the order for costs in fact made. The defence of laches was raised at a reasonably late stage by way of amendment. It was pointed out for the respondents that when the original defence was delivered Victor was still alive, and the issue of laches assumed greater significance once the consequences of the unavailability of Victor as a witness were fully appreciated. Counsel for the appellant argued that there was no basis for interfering with the exercise of discretion by the learned trial judge, and in addition he pointed to authorities such as Fry v. Lane (1888) 40 Ch.D. 312 at 324-5 to show that in cases of this type costs are sometimes not awarded. The delay was considerable, and was clearly evident in 1985 when the action was commenced. In those circumstances, even if Victor remained alive, the defence would have been clearly open. In consequence there is merit in the proposition that the appellant carried on with the litigation after the pleadings closed partly in reliance on the absence of a defence of laches. In those circumstances I am not prepared to conclude that the learned trial judge erred in the exercise of his discretion in making the order which he did. -- 41 of 42 -- 29 So far as the appeal is concerned the appellant fails on all principal issues. In the end result the argument on the cross appeal took only a very short space of time. For those reasons I would dismiss the appeal with costs, and dismiss the cross appeal and make no order as to costs thereon. -- 42 of 42 --