The Hewett case is certainly a bit of a stretch. Husband was a bit of a

ratbag, financially speaking, with far more credit card debts than he

could cope with. The wife's trust and confidence in him in relation to

financial matters was eroded considerably, as she and her mother had

been bailing him out. But the CA siad trust and confidence can go beyond

the financial, and she trusted him to stick around and meet his

responsibilities. This created a duty of candour, which was breached by

the concealment of the affair. Whether that caused the wife to enter the

impugned transaction was irrelevant - Briggs J saw the issue as best

"addressed by asking whether a solicitor, consulted by Mrs Hewett for

advice about the wisdom of the transaction, would have thought it

relevant to know that her husband was, while asking for her unqualified

trust, at the same time conducting a clandestine affair. There can in my

view only be an affirmative answer to that question."

I don't find the decision at all convincing, and think that the CA did

exactly what our own CA (in New Zealand) warned against: let sympathy

for the victim get in the way of doing the job. The decision can be read

at http://www.bailii.org/ew/cases/EWCA/Civ/2010/312.html.

Still digesting the SCNZ decision on the need for subjective

consciousness of risk of harm before exemplary damages can be awarded,

haven't even started on Sunset Terraces.

Barry

________________________________________

From: Jason Neyers [jneyers@uwo.ca]

Sent: Friday, 26 March 2010 3:28 a.m.

To: obligations@uwo.ca

Subject: ODG:  Punitive Damages and Undue Influence

Dear Colleagues:

Some of you might be interested in two recent decisions.

The second, from the English Court of Appeal, deals with undue influence

and holds (I am told) that a failure to disclose an extra-marital affair

creates a presumption of undue influence. See HEWETT v. FIRST PLUS

FINANCIAL GROUP PLC [2010] EWCA Civ 312.

Happy Reading,

--

Jason Neyers

Associate Professor of Law

Faculty of Law

University of Western Ontario

N6A 3K7

(519) 661-2111 x. 88435