Solicitors:
Jackson Russell, P 0 Box 3451, Auckland
Simpson Western, P 0 Box 93533, Takapuna

[1] The plaintiffs, Mr and Mrs MacDonald, own a property at Aberdeen Road, one back from Aberdeen Road and with its own legal accessway (the MacDonald property). Mr and Mrs MacDonald obtain access to their property by using an adjoining accessway which is part of a property owned by the defendants (the Burgess property). The defendants, (the Trustees) are registered as proprietors of the adjoining property as the executors and trustees of the estate of the late Mrs Burgess. Mr and Mrs MacDonald seek an order directing the Trustees to complete the documentation necessary to enable registration of an agreed right of way against the title to the Burgess property. This claim is resisted by the Trustees on the basis that Mr and Mrs Burgess, when they entered into the agreement upon which Mr and Mrs MacDonald rely, did not intend to grant a permanent right of way to Mr and Mrs MacDonald and it would be unconscionable in the circumstances of this case to order specific performance.

Issues

[2] Although the Trustees in their statement of defence raise five affirmative defences, Mr Stewart ultimately only relied upon one of them. The issues for determination are:

(a) Did Mr and Mrs Burgess enter into an agreement with Mr and Mrs MacDonald which entitles Mr and Mrs MacDonald to obtain a registered permanent right of way over part of the Burgess property? and

(b) If there was such an agreement was it an unconscionable bargain in respect of which equity should intervene?

Background

[3] Mr and Mrs MacDonald purchased the MacDonald property in September 1989. It was a vacant section one back from Aberdeen Road with the access to Aberdeen Road being by way of a panhandle strip. The property fronting Aberdeen Road immediately in front of the MacDonald property has a registered right of way easement over this panhandle strip.

[4] The Burgess property is immediately behind the MacDonald property and therefore, two back from Aberdeen Road. It has its own independent panhandle access strip to Aberdeen Road which runs parallel to the north eastern boundary of the MacDonald property and therefore runs parallel to the access strip which is part of the MacDonald property. Mr and Mrs MacDonald, as owners of the MacDonald property, had, at the time of the purchase of their property, no legal right to use the accessway to the Burgess property.

[5] There were discussions between Mr and Mrs MacDonald and Mr and Mrs Burgess relating to the proposed building plans on the MacDonald property. These discussions were principally between Mrs MacDonald and Mrs Burgess. As a result of these discussions, Mr and Mrs Burgess offered to allow Mr and Mrs MacDonald to use their accessway during the construction of the MacDonald house. Mr and Mrs MacDonald's position is that the agreement was to allow them to use the accessway permanently, while the Trustees' position is that the agreement was only for the term of the construction of the MacDonald house.

[6] Mr and Mrs MacDonald changed their initial house plan and constructed an accessway from their garage, which is in the basement of their house, to the sealed accessway on the Burgess property. The eventual development of their property allowed Mr and Mrs MacDonald to construct a further entrance off the Burgess accessway to provide for visitor parking. Mr and Mrs MacDonald constructed their house on the basis that there would be two physical entrances to their property from the Burgess accessway.

[7] On 6 March 1990, an agreement (the right of way agreement) was signed by both parties in the following terms:

"THIS AGREEMENT is made the 6th day of March 1990

BETWEEN RORY MacDONALD and CHRISTINE MacDONALD both of Auckland (called "the MacDonalds")

AND FREDERICK BURGESS and AMELIA BURGESS both of Auckland (called "the Burgesses")

 

BACKGROUND

A. The MacDonalds are the registered proprietors of 7 Aberdeen Road, Castor Bay described in CT 73A1376.

B. The Burgesses are the registered proprietors of 9 Aberdeen Road, Castor Bay described in CT 1956/16.

C. The Burgesses have agreed to allow the MacDonalds a right of way over their driveway on the following terms and conditions.

 

NOW THE PARTIES AGREE

1. IN consideration of the sum of ONE DOLLAR ($1) the Burgesses agree to grant to the MacDonalds a right of way over the full length of their driveway as more particularly set out in the attached Memorandum of Transfer.

2. THE MacDonalds shall, so long as the Burgesses remain the registered proprietors of 9 Aberdeen Road, Castor Bay, be solely responsible for the upkeep and maintenance of the driveway.

 

EXECUTED by the parties as follows:
SIGNED by RORY MacDONALD and CHRISTINE MacDONALD in the presence of:	R MacDonald C MacDonald
SIGNED by FREDERICK BURGESS and AMELIA BURGESS in the presence of:	A M Burgess F A Burgess

[8] There was attached to the right of way agreement a form of Memorandum of Transfer in registerable form under which Mr and Mrs Burgess were for the consideration of $1, to grant Mr and Mrs MacDonald a right of access over the Burgess accessway, such right of way to be "forever appurtenant" to the MacDonald property. The portion of the Burgess property over which the right of way was to be created was shown on a plan which Mr and Mrs MacDonald's surveyor had approved by the North Shore City Council in July 1990.

[9] Construction of the house on the MacDonald property began in about March 1990 and was completed by the end of October in that year. On 30 November 1990, Mr MacDonald wrote to the solicitors for Mr and Mrs Burgess and relevant portions of that letter were:

"I refer to previous telephone discussions relating to the right of way between our residence and that of Mr and Mrs Burgess. Attached for your reference is a photocopy of an agreement which was entered into between my wife and Mr and Mrs Burgess dated 6 March 1990. I should point out that at the time I recommended Mr and Mrs Burgess bring the agreement to you for your perusal but Mrs Burgess informed me that that was not necessary and she was happy to execute the agreement as it stood.

I have subsequently had a plan drawn for the right of way and as you will see from the attached transfer the plan has been sealed by the Council pursuant to Section 348 of the Local Government Act 1974. You will also note that the transfer differs from the copy attached to the agreement in that it does not refer to the covenants on the third page as these are now implied by the amendment to the Property Law Act.

I mentioned to Mrs Burgess the other day that I was sending the document to you and I understand that she has recently been to see you about her will. One matter which does concern me is the mental capacity of Mr Burgess. The last time I spoke to him was about four weeks ago when we had a discussion about cricket and he seemed to be fairly alert but I understand that there are other times when his mental faculties fail him."

[10] Mr Western, Mr and Mrs Burgess' solicitor and one of the defendants, replied on 14 December 1990 in the following terms:

"We thank you for your letter of the 30th of November 1990. The writer has visited Mr and Mrs Burgess at their home and has obtained instructions from Mrs Burgess.

Mrs Burgess has stated quite plainly that she will sign no further documentation in relation to the right of way. The reasons for this are as follows:

1. A concrete wall has been back-filled so that it now acts as a retaining wall. The wall was not constructed for this purpose and now appears to be in danger of collapse. This would of course result in considerable damage to our clients' property.

2. Fill has been deposited on your section and the contour of the land has been altered considerably. The fill that has been used is a yellow clay and water now runs off it and onto our clients' property.

3. No consent was ever requested, nor was any given either impliedly or directly, to you installing two entrances onto your property from the right of way. Apparently both entrances are being used by yourselves and your visitors.

4. We have been instructed that our clients never intended to grant you a permanent right of way. We are informed that they signed the document in the belief that it allowed you access along their driveway for the purpose of constructing a dwelling for yourself by the least inconvenient means. Mrs Burgess is most concerned to learn that the document purports to grant a permanent right of access.

We would be grateful for your comments."

[11] Mr and Mrs Burgess did not complete the transfer granting the right of way. There was various correspondence between their solicitor and Mr MacDonald and his legal firm from December 1990 to December 1992. There was a formal but unsuccessful attempt to resolve the differences between Mr and Mrs MacDonald and Mr and Mrs Burgess by mediation.

[12] Mr Burgess died on 5 September 1992 and his interest in the Burgess property passed to Mrs Burgess. She died on 13 March 1999 and the Trustees now hold the MacDonald property as executors and trustees of her estate.

[13] There is no evidence of any negotiation or contact between Mr and Mrs MacDonald and Mr and Mrs Burgess in respect of the right of way between the period from December 1992 until August 1998. During that time, Mi and Mrs MacDonald continued to use the access over the Burgess property and the access is still the physical access to the MacDonald property. An alternative access is legally available to the MacDonald property but this would require removal of trees, vegetation and trellis and certain earthworks. It would also detract from some of the amenities of the MacDonald property and decrease the value of that property.

[14] The present proceedings seeking specific performance of the right of way agreement were issued in September 2000.

The right of way agreement

[15] The evidence establishes and is not disputed by the Trustees that Mr and Mrs Burgess executed the right of way agreement. This fact was acknowledged by Mr Western in his letter of 14 December 1990 to Mr and Mrs MacDonald's solicitors. Mr MacDonald gave evidence of the circumstances surrounding the preparation and execution of the agreement. His evidence was that he told Mr and Mrs Burgess that he proposed sending the agreement to their solicitor so they could take independent advice. Mrs Burgess replied that she did not want it sent to her solicitors if that could be avoided. When Mr MacDonald had prepared the right of way agreement, he again contacted Mrs Burgess by telephone and suggested he should forward it to her solicitor. Her response was that she did not want to involve her solicitor and she was either unable or unwilling to give Mr MacDonald his name. Mr MacDonald therefore made a time to meet Mr and Mrs Burgess to sign the agreement. He took the agreement to their home on 6 March 1990 and offered to leave it with them to take such independent advice as they wished. They indicated, however, that they trusted him and they were happy to sign the document then and there. Mrs Burgess explained to him that they did not want to see a solicitor and told him of some difficulty and expense arising from a Court case which she had been involved in. Mr MacDonald's evidence was that he was most careful to explain what was involved should they sign, and the permanency of the proposed arrangement. After being advised of this, they both signed the document. Mr and Mrs MacDonald signed the document at a later date.

[16] On the face of it, the right of way agreement is valid and binding. Indeed, Mr Stewart did not contend otherwise. The draft transfer which was attached created a permanent right of way over that portion of the Burgess property shown on the plan subsequently approved by the North Shore City Council pursuant to a resolution passed on 2 July 1990. That transfer, if executed and registered, will create a right of way over the accessway on the Burgess property forever appurtenant to the MacDonald property. Mr and Mrs MacDonald are entitled to an order that the transfer be executed unless the Trustees are able to establish that the right of way agreement was an unconscionable bargain and that this Court in its equitable jurisdiction should intervene.

Unconscionable bargain

[17] The Law. The principle relied upon by Mr Stewart was that the entering into of the right of way agreement was an unconscionable bargain in that it was a bargain of improvident character made by disadvantaged persons acting without independent advice and cannot be shown to be a fair and reasonable transaction. Mr Stewart relied upon the principles in O'Connor v Hart [1985] 1 NZLR 159 (PC), Nichols v Jessup [1986] 1 NZLR 226, Nichols v Jessup (No.2) [1986] 1 NZLR 237, and Moffat v Moffat [1985] 1 NZLR 600. He adopted the summary given by Tipping J in Bowkett v Action Finance Ltd [1992] 1 NZLR 449 and 460, which was in the following terms:

"An examination of the case law leads me to the view that the following circumstances will normally be present when the Court finds an unconscionable bargain:

(1) The weaker party is under a significant disability.

(2) The stronger party knows or ought to know of that disability.

(3) The stronger party has victimised the weaker in the sense of taking advantage of the weaker's disability, either by active extortion of the bargain or passive acceptance of it in circumstances where it is contrary to conscience that the bargain should be accepted.

(4) There is a marked inadequacy of consideration and the stronger party either knows or ought to know that to be so.

(5) There is some procedural impropriety either demonstrated or presumed from the circumstances.

The foregoing does not purport to be a definitive or an exhaustive analysis. I do not suggest that all elements need necessarily be shown, but obviously elements (1), (2) and (3) are crucial and one could hardly have an unconscionable bargain without a disability in the weaker party and knowledge and taking advantage thereof by the stronger party."

Tipping J noted that inadequacy of consideration was not mandatory but will almost always be present, and that procedural impropriety will often be a feature of these cases. His Honour also noted it would be hard to find a bargain unconscionable if the weaker party had received adequate independent advice. I respectfully accept the summary in Bowkett as a useful summary of the relevant principles and it is necessary to apply them to the circumstances of this particular case to determine whether the right of way agreement can properly be characterised as unconscionable so that equity should intervene.

[18] The Allegations of Unconscionability. The circumstances which are said to have made the entering into of the right of way contract unconscionable in this case:

(a) In March 1990, Mr and Mrs Burgess were both elderly, Mr Burgess being aged 80 and Mrs Burgess aged 83;

(b) Mr Burgess was suffering from Alzheimer's Disease at the time and would not have understood the nature of the right of way agreement that he signed;

(c) Mr and Mrs MacDonald gave no or inadequate consideration for the granting of the easement;

(d) Mr MacDonald, as an experienced solicitor, knew or ought to have known:

(i) The right of way agreement would be of little or no benefit to Mr and Mrs Burgess, and would have detrimental effects to the Burgess property both physically and value wise;

(ii) The right of way agreement would enhance both the physical attributes and value of the MacDonald property.

(e) In the circumstances Mr MacDonald should have insisted and ensured that Mr and Mrs Burgess obtained independent legal advice, should have left the right of way agreement with them so they could adequately consider the contents of it, and should have ensured that they understood the legal effects of the right of way agreement.

[19] Factual Findings. There are difficulties in making factual findings in this case. Some of the relevant evidence given by witnesses for the Trustees, particularly the evidence of statements made by Mrs Burgess, was hearsay. Some of this evidence is admissible under s 7 of the Evidence Amendment Act (No.2) 1980. Because Mr and Mrs Burgess are no longer living, caution needs to be exercised in accepting the evidence of Mr and Mrs MacDonald as to what Mr and Mrs Burgess said at the time. However, a Court should not disbelieve the evidence of a living witness merely because the other person to the conversation is no longer alive. There may be corroborating facts which indicate where the truth lies.

[20] Another difficulty relates to the onus in respect of the defence of unconscionable bargain. In Nichols v Jessup McMullin J stated at p234:

"These cases, including not least of all the opinion of the Privy Council in O'Connor v Hart, do not require proof of an active extortion of a benefit, an abuse of confidence, a lack of good faith by the party seeking to hold the bargain. Accepting the benefit of an improvident bargain by an ignorant person acting without independent advice which cannot be shown to be fair, may be unconscionable. Such a transaction may affect the conscience of the party who benefits from it. The burden in such circumstances of proving that the bargain is fair and reasonable may rest on the party seeking to take advantage of it."

While there is a burden on the plaintiff to prove a bargain was fair and reasonable in certain circumstances, this burden does not arise, in my view, until the defendants have established on the balance of probability that there was an improvident bargain by an ignorant person acting without independent advice which cannot be shown to be fair. In this case, the Trustees sought to establish some of these elements by independent evidence but in respect of some of them, they do rely on hearsay statements of Mrs Burgess.

[21] The first factual finding is whether or not Mr and Mrs Burgess intended in March 1990 to grant a permanent right of way in favour of Mr and Mrs MacDonald. The unconscionable bargain defence is more likely to be made out if they did not have any such intention. There was no evidence of Mr and Mrs Burgess having made statements of their intent at any time before December 1990, approximately six months after the right of way agreement was signed. Mr Western, in his letter of 14 December 1990, noted that Mr and Mrs Burgess had advised him that they never intended to grant a permanent right of way. Mrs MacDonald in her evidence said that when they showed Mr and Mrs Burgess the concept plans for their home, Mrs Burgess was concerned about the waterfiow as they were quite vulnerable to it, their house being below both the MacDonald property and the one in front of it fronting Aberdeen Road. The clearing of trees and the recontouring which was necessary to develop the right of way on the MacDonald property would mean that the waterflow on to the Burgess property would be adversely affected. Mrs MacDonald stated that Mrs Burgess:

"thought it unnecessary for there to be two driveways going side by side and was also concerned that we might wish to build a fence between the two which she did not want to happen. It was her suggestion that it would be silly to have two such driveways when one would adequately serve the two properties and eliminate her concern over increased waterfiow off our driveway and fencing."

Mr MacDonald's evidence was that when he heard of the proposal, he called upon Mr and Mrs Burgess at their home to make sure they were quite clear about the implications, and they confirmed this was indeed their wish. He said he thanked them and agreed that in return, Mr and Mrs MacDonald would always maintain the driveway.

[22] Mr and Mrs MacDonald were cross-examined on this evidence. I have no reason not to accept it. There are two other matters which tend to corroborate this evidence. First, it is apparent that Mr and Mrs MacDonald changed their house plans on the basis that they would have permanent access from the Burgess accessway. They did this and were ready to commence the erection of the house before Mr and Mrs Burgess signed the right of way agreement. They then had the surveyor prepare the appropriate plan and obtained the approval of the North Shore City Council. Secondly, there is no evidence or suggestion that Mrs Burgess, who was obviously the spokesperson for Mr and Mrs Burgess, raised the issue of the permanency of the right of way before December 1990. It would have been apparent to her well before that date that Mr and Mrs MacDonald intended to use the right of way permanently, and to construct two entrance ways off it. Even when the permanency issue was raised in December 1990, it was raised as the fourth and last of the concerns which Mr and Mrs Burgess had. Their first two complaints related to possible adverse effects on their property because of the backfllling of a concrete wall and depositing fill on the section, and altering the contour of the land. I am therefore satisfied to the required onus that Mr and Mrs Burgess did intend to grant a permanent right of way in March 1990. Their desire to do so had, in my view, been changed by experiences since March 1990.

[23] A finding that there was an intention to grant a permanent right of way does not preclude the possibility of a finding that there was an unconscionable bargain. Both Mr and Mrs Burgess were elderly but this factor alone does not place a person under a disability. The allegation that Mr Burgess had a type of dementia has substance. Mr MacDonald, in his letter of 30 November 1990, noted some concern at Mr Burgess' mental capacity. In a report from a house surgeon at North Shore Hospital to Mr Burgess' doctor in November 1988 given at the time Mr Burgess was discharged from a stay in that hospital, it was noted that he had a two and a half months history of acute confusion. The diagnosis was that this was attributed to multi-infarct dementia. Mr Burgess was admitted again to the North Shore Hospital in mid 1990 and the clinical summary records of the hospital noted that he had multi-infarct dementia. He was admitted with nocturnal confusion. Mr Burgess was subsequently admitted to Beachhaven Hospital on 30 July 1990. The hospital notes indicate that he was at times confused but did ask appropriate questions during his stay. He was also aggressive and wandered. Mr Burgess was released from Beachhaven Hospital on 24 January 1991 but was readmitted on 5 August 1992. At that time, he was diagnosed as having dementia. A doctor gave evidence that he examined Mr Burgess in June 1992 and his view at that time was that Mr Burgess was suffering from advanced Alzheimer's Disease and had severe cognitive impairment, both long term and short term memory loss, and aggressive behaviour. This doctor formed the opinion that Mr Burgess' mental condition had been deteriorating for several years.

[24] Mrs MacDonald's evidence was that most of her discussions were with Mrs Burgess but when cross-examined, she was firmly of the view that at the times she spoke to Mr Burgess, he understood what was being discussed and gave no hint of disability. Mr MacDonald was not cross-examined on his view of Mr Burgess' mental ability at the time the agreement was signed. There were independent indications which suggest that although Mr Burgess may have been suffering from some form of dementia, he did have mental capacity at various relevant times and that it may not have been obvious to others, including legal persons, that he was suffering from dementia. Mr Burgess' final will was signed on 12 December 1990. It was prepared by Mr Western and he acknowledged in evidence that he probably took the will and the witnesses with him when he visited Mr and Mrs Burgess to consider a response to Mr MacDonald's letter of 30 November 1990. In response to a question from the Court as to whether he was present when Mr Burgess signed his will, Mr Western acknowledged he was but could not witness it himself because he was a trustee under it. He agreed Mr Burgess "appeared perfectly lucid." The solicitor also had no concerns about Mr Burgess' mental capacity during the period he acted for him. Mr Western's evidence also confirmed evidence of other witnesses in respect of the manner in which Mr and Mrs Burgess conducted their business affairs. It is quite clear that Mrs Burgess conducted the business of the couple and that Mr Burgess left all business arrangements to her. In these circumstances I accept there is no evidence that satisfies me that Mr and Mrs MacDonald should have known in March 1990 that Mr Burgess was suffering from dementia. Indeed, it appears likely that Mr Burgess was able at the time the right of way agreement was signed to have rational discussions on various matters. It is unlikely that his state of mind was known to Mr and Mrs MacDonald because of the practice of Mrs Burgess being the spokeswoman for both of them. Mr Burgess' own solicitor in December 1990 considered Mr Burgess lucid and had him sign a will.

[25] The Trustees allege that there was no or inadequate consideration. The relevant ingredient of the Bowkett formula is that there "is a marked inadequacy of consideration and the stronger party either knows or ought to know that to be so." I have no doubt that Mr and Mrs MacDonald did not give full consideration for obtaining the benefit of a permanent right of way. Uncontested evidence establishes that a permanent right of way will avoid the need for further site development on the MacDonald property. The use of the Burgess accessway has allowed Mr and Mrs MacDonald to develop an outdoor living court in an area that might otherwise have been required for access. The MacDonald property has the benefit of two driveway entrances which enable visitor parking. A further benefit upon which I place relatively little importance, because of the associated costs of achieving the end result, is the ability of Mr and Mrs MacDonald to sell their original driveway to the owner of the lot immediately in front of their property. On the other hand, there have been detrimental effects to the Burgess property. The owners of that property will lose the exclusive use of the driveway, the shared use of the driveway has increased the risk in terms of security and reduced privacy, there will be increased traffic congestion particularly considering the length of the driveway, and the use of the driveway has resulted in vehicles accessing the MacDonald property passing close to the Burgess property with consequential visual impact and noise factors. A valuer's uncontested assessment was that the overall sharing of the driveway will make the Burgess property less desirable to any future purchaser than it would have been if the driveway is used exclusively by the owners of the Burgess property and their invitees and licensees. The valuer assessed that the granting of the right of way in 1990 had the effect of increasing the value of the MacDonald property at that time by $15,000 and diminishing the value of the Burgess property by $10,000.

[26] There were, however, some benefits received by Mr and Mrs Burgess. The right of way is a lengthy one and the maintenance of the surface and sub-base may over a period of time incur a reasonable cost. The granting of a right of way will relieve the owners of the Burgess property from one half of these costs. In addition, the right of way agreement placed on Mr and Mrs MacDonald the obligation for the "upkeep and maintenance of the driveway" while Mr and Mrs Burgess remained the registered proprietors of the property. This upkeep included the control of the plants and trees running alongside the Burgess accessway. Photographs produced show there are plants on both sides of the long accessway and some trees. The upkeep of these would involve some continuing ongoing effort and time cost, if not actual cost, to Mr and Mrs MacDonald. I have no reason not to accept Mrs MacDonald's evidence to the effect that Mrs Burgess was concerned that if Mr and Mrs MacDonald created their own accessway, there may have been drainage problems which affected the Burgess property. In these circumstances, while I accept the evidence as to the valuation differences which arose from the right of way agreement, I am not persuaded that there was a marked inadequacy of the kind referred to in the Bowkett criteria. Mr and Mrs MacDonald got the better end of the bargain but I do not find marked inadequacy.

[27] The matter of most concern from the factual point of view was the absence of legal advice, particularly in view of the benefits which accrued to Mr and Mrs MacDonald. Mr MacDonald was very foolish in handling the matter in the way he did and he should have, and in my view could have, insisted that Mr and Mrs Burgess took independent legal advice. There were obvious benefits to Mr and Mrs MacDonald in obtaining the written agreement of Mr and Mrs Burgess to the right of way and he laid himself and his wife open to the allegations which have now been made by conducting the matter in the manner he did. Although I do not consider it to be relevant to the issues I have to decide, the manner in which an employee of the law firm in which Mr MacDonald was then a partner tried to persuade Mrs Burgess to execute the memorandum of transfer, after her husband died, was undesirable conduct. It is difficult to accept Mr MacDonald was not aware of what was happening at that time. The importance which I place on Mr MacDonald's actions in having the right of way agreement executed in the manner which it was is related to my assessment of Mrs Burgess.

[28] It is common ground, amply supported by the evidence, that Mrs Burgess conducted the business matters on behalf of herself and her husband. She was an elderly independent person who conducted some type of business as a seamstress for years. One witness who knew her well thought she may have been naive in legal matters although she was obviously not naYve in a business sense as she had run a successful business for many years. Mrs Burgess' solicitor said that when he saw Mr and Mrs Burgess it was Mrs Burgess who did the talking with Mr Burgess always agreeing with what she said. Her solicitor saw her as a trusting person. Mr Barnes, one of the Trustees and a nephew of Mrs Burgess, agreed that Mrs Burgess was the spokesman for herself and her husband in business matters and if she told him to sign an agreement, he would sign it. She had her mental faculties in 1990 and indeed had them until the end of her life. The picture which emerges is that Mrs Burgess was the don-iinant person in the marriage partnership, had run a successful home business during her career and had dealt with lawyers prior to March 1990. She had signed a drainage easement agreement two years earlier. While she was not well versed in legal matters she did not have any significant disability. I did not form the view from the evidence that she would sign a legal document without being aware of what she was signing. Mr MacDonald's evidence that he asked Mrs Burgess to get legal advice was not challenged. If he had not asked her to do so, it is surprising that Mr Western in his letter of 14 December 1990 did not challenge Mr MacDonald's statement in his letter of 30 November 1990, when he said he did so advise her.

[29] Conclusions. In applying the legal principles to the factual findings, it is convenient to utilise the Bowkett criteria. Although Mr Burgess was obviously suffering a form of dementia in March 1990, Mrs Burgess who, in effect, conducted the business affairs for the couple, was not under a significant disability although I accept she was a weaker party. Mr and Mrs MacDonald did not know of Mr Burgess' disability and there is no suggestion that they victimised Mr and Mrs Burgess in the sense of taking advantage of any disability either by active extortion of the right of way bargain or passive acceptance of it in circumstances where it was contrary to conscience that the bargain should be accepted. In these circumstances the first three criteria of Bowkett which were said to be crucial do not apply in this case. There was some inadequacy of consideration but, in my view, it was not marked. The fourth criteria of Bowkett does not apply. There was some procedural impropriety in the manner in which Mr MacDonald had the right of way agreement signed. The issue is whether on the basis of not insisting that independent legal advice be obtained, the bargain can be properly characterised as unconscionable so that equity should intervene. In the circumstances, I am not persuaded that equity should intervene. The offer of the permanent right of way was made by Mrs Burgess. She foresaw benefits to her and her husband from the arrangement. There were some tangible benefits in respect of maintenance costs and upkeep, and possibly also in waterflow directions. Mrs Burgess was requested to get independent legal advice and declined to do so. Although Mr MacDonald should have, in my view, gone further, his failure on this count is not sufficient to characterise the arrangement as unconscionable. This Court should not therefore intervene.

Result

[30] There will be an order in accordance with the prayer for relief. Although I do not see there should be any difficulties, leave is given to either party to apply for further directions if necessary in settling the form of the Memorandum of Transfer to create the easement.

Costs

[31] Costs are reserved. There are circumstances in this case which would suggest that the normal rule that costs follow the event should not be given its normal and full application. If the parties are unable to agree costs, leave is given to file memoranda.