Sukkar v Sukkar

[2019] NSWSC 691

Supreme Court

New South Wales

Medium Neutral Citation:	Sukkar v Sukkar [2019] NSWSC 691
Hearing dates:	15 – 17 April 2019
Date of orders:	11 June 2019
Decision date:	11 June 2019
Jurisdiction:	Equity
Before:	Darke J
Decision:	Relief granted to first defendant pursuant to Contracts Review Act. Plaintiff’s claim for appointment of trustees for sale dismissed.
Catchwords:	LAND LAW – co-ownership – statutory trust for sale – claim by the plaintiff under Conveyancing Act 1919 (NSW) s 66G(1) – where plaintiff is an “incumbrancer” within the definition of “co-owner” in s 66F(1) as the registered proprietor of a mortgage over the interest of the first defendant – appointment of trustees refused in circumstances where the mortgage is required to be discharged pursuant to the first defendant’s cross-claim CONTRACTS – unjust contracts – Contracts Review Act 1980 (NSW) – cross-claim by the first defendant to set aside contracts which include a deed of acknowledgement, loan agreement and mortgage – plaintiff and first defendant are son and mother respectively – plaintiff outlaid various amounts of money for the benefit of the first defendant over several years – where no binding agreement whereby first defendant obliged to repay monies to plaintiff – where the plaintiff sought to “confirm” legal relationship with the first defendant by entering into the contracts – contracts improvident from the first defendant’s perspective – where first defendant entered into the contracts as a result of undue emotional pressure applied by the plaintiff – contracts held to be unjust
Legislation Cited:	Contracts Review Act 1980 (NSW), ss 7, 9, 19 Conveyancing Act 1919 (NSW), ss 66F, 66G Evidence Act 1995 (NSW), s 128
Cases Cited:	Australia & New Zealand Banking Group Ltd v Karam (2005) 64 NSWLR 149; [2005] NSWCA 344 Australia & New Zealand Banking Group Ltd v Scott (1993) 6 BPR 97,446 Baltic Shipping Company v Dillon (1991) 22 NSWLR 1 Esanda Finance Corporation Ltd v Tong (1997) 41 NSWLR 482 Provident Capital Ltd v Papa (2013) 84 NSWLR 231; [2013] NSWCA 36 Thorne v Kennedy (2017) 91 ALJR 1260; [2017] HCA 49 West v AGC (Advances) Ltd (1986) 5 NSWLR 610
Category:	Principal judgment
Parties:	Marc Sukkar (Plaintiff/Cross Defendant) Rose Amanda Sukkar (First Defendant/Cross Claimant) Hamid Sukkar (Second Defendant)
Representation:	Counsel: Mr M W Young SC (Plaintiff/Cross Defendant) Mr A J L Bannon SC with Mr M Jaireth (First Defendant/Cross Claimant)   Solicitors: Coode & Corry Solicitors (Plaintiff/Cross Defendant) Clayton Utz (First Defendant/Cross Claimant)
File Number(s):	2017/360003
Publication restriction:	None

Judgment

Introduction

1. By a Summons filed on 28 November 2017 the plaintiff, Marc Sukkar, seeks an order pursuant to s 66G(1) of the Conveyancing Act 1919 (NSW) for the appointment of trustees for sale of a residential property in Emu Plains. An application of that character must be brought by a “co-owner” of the property. The Emu Plains property is owned jointly by the defendants, Rose Sukkar and Hamid Sukkar. They are, respectively, the plaintiff’s mother and father. However, the plaintiff claims to fall within the definition of “co-owner” found in s 66F(1) of the Conveyancing Act as an “incumbrancer” of the interest of a joint tenant (see Australia & New Zealand Banking Group Ltd v Scott (1993) 6 BPR 97,446). This claim is based upon the fact that the plaintiff holds a registered mortgage over his mother’s interest in the property.

2. Mrs Sukkar seeks to set aside the mortgage and other associated agreements (including a Deed of Acknowledgement of Debt) entered into in April 2017. By her Cross Claim, she seeks relief pursuant to the Contracts Review Act 1980 (NSW), and also at general law on the grounds of unconscionable conduct, undue influence and duress. If Mrs Sukkar succeeds in having the mortgage set aside, Marc Sukkar’s claim to be a “co-owner” within the meaning of s 66G of the Conveyancing Act would be defeated.

3. Mr Sukkar filed a submitting appearance, and played no active part in the proceedings.

4. In very brief summary, Marc Sukkar claims that various amounts of money were paid by him to or for the benefit of his mother upon the basis that the amounts were loans to be repaid by his mother with interest. The claimed amounts, said to have been paid at times in the period from late 2001 to early 2017, went towards renovations of the Emu Plains home, costs incurred in relation to lengthy Family Court proceedings between Mr and Mrs Sukkar, various chattels (including a Suzuki motor vehicle and household goods), and general living expenses (including Council rates, water and electricity charges, and insurance premiums).

5. Marc Sukkar further claims that in early 2017 steps were taken to confirm the loan arrangements in documents to be executed by the parties, culminating in Mrs Sukkar signing the requisite documents in a solicitor’s office after having obtained independent legal advice about them.

6. Mrs Sukkar gives an entirely different account of events. Indeed, it is fair to state that Mrs Sukkar and her son were markedly at odds concerning almost all aspects of their relevant dealings. Mrs Sukkar disputes that many of the claimed amounts were actually paid by her son. More significantly, she denied that any of the amounts were loans that she was obliged to repay, let alone with interest. Mrs Sukkar claims that she was coerced into signing the documents by threats made by her son, and that she did not receive any explanation of the documents by the solicitor who witnessed her signature upon them.

7. In these circumstances, both Marc Sukkar and Mrs Sukkar were cross-examined extensively about the versions of events they set out at considerable length in their affidavits. Unfortunately, for the reasons set out below, the Court is unable to regard either witness as generally credible or reliable. The Court has found itself unable to accept a number of aspects of the testimony of each of them. To the extent that it is necessary for the Court to make findings on matters in contest between Marc Sukkar and Mrs Sukkar, the Court has where possible endeavoured to rely upon the contents of seemingly reliable contemporaneous documents.

8. It should be noted that the plaintiff’s claim is not for the recovery of a debt; it is only for relief under s 66G of the Conveyancing Act. Accordingly, it is not strictly necessary for the Court to determine whether Mrs Sukkar was indebted to her son in any particular amount prior to the execution of the documents in April 2017. However, in view of the issues that arise on Mrs Sukkar’s Cross Claim, the Court is required to make findings as to the circumstances that existed at the time the agreements were made in April 2017. To at least some extent that involves making findings as to the legal relationship that then existed between Mrs Sukkar and her son.

Summary of Marc Sukkar’s affidavit evidence

9. Marc (or Massoud) Sukkar, now 44 years of age, is the only son and eldest of six children of Mr and Mrs Sukkar. He is a solicitor.

10. In his first affidavit, Marc Sukkar deposed that in about December 2001 he had a conversation with his parents at the Emu Plains property to the following effect:

Mr Sukkar:   The house is falling apart. Everything is either broken or run down. You should renovate the house.

Marc Sukkar:   Why should I renovate your house? What’s in it for me?

Mr Sukkar:   The house is yours anyway. When I die, it will pass to you. I don’t want my sons in law to get anything from me. It’s all going to you.

Marc Sukkar:   No, it isn’t all mine. My sisters have just as much right to an interest in the property as I do. Anyway, I want to buy my own property. You can borrow money yourself from the bank to fund the renovations. There is no mortgage on the property, so you shouldn’t have any problem getting a loan.

Mr Sukkar:   I can’t afford a loan. I don’t work full time; I can’t afford to pay the interest on a loan. You can afford to renovate it.

Marc Sukkar:   How much will it cost to renovate the property?

Mr Sukkar:   About $100,000 - $120,000.

Marc Sukkar:   Ok. If you want me to give you the money to renovate, you have to pay me back by giving me a percentage interest in the house.

Mr Sukkar:   I told you, the house is all yours.

Mrs Sukkar:   Hamid, you can’t do that. He can’t spend his own money on our house and you then say that it is his anyway. That isn’t fair. The interest in the property is for our son and daughters, not their spouses.

Marc Sukkar:   If I do this for you, I want a 30% share of the property if you sell it in the future or when you and mum die.

Mr Sukkar:   You can have 20%.

Marc Sukkar:   No, I want 30%. It will cost you $150,000 to renovate the whole house. You will end up with a new house with no mortgage and the value of the property will definitely increase.

Mr Sukkar:   Ok. You can have 30%.

11. The plaintiff deposed that a few days later his mother handed him the original Certificate of Title for the property. He says that he continues to hold that Certificate of Title. However, I note that the document exhibited to his affidavit is a new Certificate of Title issued on 3 May 2017.

12. In any event, Marc Sukkar deposed that between December 2001 and May 2002 he paid the total amount of $150,000 to his father in sizable instalments. He says that he did not ask for receipts because “I never believed or expected that my parents would not repay me”.

13. Marc Sukkar deposed that by late 2005 the relationship between his parents had completely broken down, and that his father had commenced proceedings in the Family Court at Parramatta. The plaintiff refers to a Financial Statement filed in those proceedings by his mother on 2 March 2006 which discloses a personal loan to her from her son. The amount of her 50% “share” of the loan is stated to be $180,000. (Later in his affidavit, the plaintiff refers to a Financial Statement filed in March 2009 which discloses that the amount of Mrs Sukkar’s 50% “share” of a personal loan from the plaintiff was $167,000.) A Response to an Application for Final Orders (also filed by Mrs Sukkar on 2 March 2006) seeks various orders including an order:

That the husband indemnify and hold blameless [sic] the wife in respect of the debt or liability of either or both parties to their son, Massoud Sukkar, in relation to monies lent to the parties either jointly or severally by the said Massoud Sukkar.

14. The plaintiff deposed that in about May 2006 he had a conversation with his mother in words to the following effect:

Mrs Sukkar:   Your father is denying that he owns any property in Lebanon and without proof of his Lebanese property holdings he will get half the house.

Marc Sukkar:   What are you asking?

Mrs Sukkar:   You know I don’t have the money to fight your father. I need your help to prove that he has property in Lebanon. Would you fund my case and when I get judgment from the court I’ll pay you back with interest?

Marc Sukkar:   From what you’re saying this is going to be a massive undertaking involving Lebanese lawyers and more than likely experts to value any properties dad may have. You know I’m leaving Sydney to reside in London. How are you going to manage it?

Mrs Sukkar:   Since you will be in London, you’ll be very close to Lebanon. You could travel when needed to assist the lawyers in Sydney.

Marc Sukkar:   Mum, I need to think about it. Let me sleep on it and get back to you with an answer.

15. Marc Sukkar deposed that a few days later they had another conversation in words to the following effect:

Marc Sukkar:   I’m not going to abandon you. I’ve decided to fund your case. This will include fees for Prime Lawyers and your barrister. I will help you find a Lebanese lawyer and pay his costs and if required an expert to value any of dad’s Lebanese property holdings.

Mrs Sukkar:   I will pay you back with interest at the end of the case.

Marc Sukkar:   Okay, thanks but this loan also includes any travel and accommodation expenses to Lebanon as and when required. With respect to my time let’s see what happens, but for now just pay my expenses.

Mrs Sukkar:   That’s more than fair. God bless you.

16. The plaintiff deposed that in about July 2006 he had a conversation with his mother in words to the following effect:

Mrs Sukkar:   I’m finding it difficult to maintain the house, pay the bills and support myself since your father and sisters don’t live here and no longer contribute. My pension is barely enough to pay for my groceries and fuel for my car. Could you extend the loan to include these expenses?

Marc Sukkar:   Sure, mum. I understand, no problem.

Mrs Sukkar:   That you, habibi [Arabic: my darling]. I pray that God gives you nothing but success. I love you.

17. The plaintiff deposed that from May 2006 to February 2014 he paid an amount of $438,917.98 towards his mother’s legal costs, and that those costs were listed in the annexure to the Deed of Acknowledgement of Debt she signed in April 2017. At the hearing, the plaintiff accepted that this figure was incorrect.

18. On 31 May 2006 Marc Sukkar sent letters to his mother and his father. The letters (which were not in the same terms) gave notice that he was making a claim to an interest in the property. The letter to Mrs Sukkar included the following:

I have to write to you, as you know, because the fact that you and Dad are now going through property proceedings under the Family Law Act means that I have to give you notice that I am claiming an interest in the property.

…

You will no doubt recall that I have expended considerable sums of money in improving the property, in the belief, which you and Dad induced in me and not otherwise, that in consideration of my spending money on improving the property, I would be given a share in it or alternatively an interest would be created to reflect my contribution, to ensure that I would be repaid from any proceeds of sale of the property in the future.

…

Nevertheless, I must formally make my claim upon the property and I hereby do so, indicating to you that I will be claiming 30% of the market value of the property in consideration of the contributions made by way of moneys invested into improvements that have been carried out on the property. I will certainly liaise with your solicitor concerning how my claim is made and how it should be progressed to finalisation in the knowledge that you and Dad are going to have a property settlement which will either be consented to or following determination of a hearing in the Family Court of Australia at Parramatta.

Accordingly, I enclose a copy of a caveat which will, in the first instance, give me the comfort that you acknowledge both the nature of my claim and its extent, and if you could complete the caveat so that I can attend to its lodgement, I would be grateful.

A copy of the letter and caveat was also sent to Mr Danny Saad of Prime Lawyers who were the solicitors acting for Mrs Sukkar in the Family Court proceedings.

19. Mrs Sukkar later consented to the lodgement of the caveat which claimed an equitable interest “equivalent to 30% of the market value of the property pursuant to an agreement with the registered proprietors to provide capital works, upkeep and maintenance to the property.” The caveat was lodged on about 27 June 2006.

20. In this regard, Marc Sukkar refers to an affidavit filed in the Family Court by his mother in March 2009. The affidavit contains an account of a conversation (in about November 2001) as follows:

Marc Sukkar:   I will loan you $150,000. For this I will obtain an interest in 30% of the property.

Mr Sukkar:   Ok.

Mrs Sukkar:   So if we sell Marc with [sic] get 30% of the money? And if we die before we sell, Marc will get 30% of the property and the rest will be divided between his sisters.

Marc Sukkar:   Yes that is right.

21. Mrs Sukkar’s affidavit also includes the following:

199.   Since separation my son Marc Sukkar has assisted me financially with my legal and living expenses.

200.   Marc has purchased items on my behalf pursuant to an agreement that I have with him that I will pay him back at the end of these property settlement proceedings.

201.   These items include:

(a)   1 Suzuki SX4 AWD in the amount of $27,100. A copy of agreement dated 22 April 2008 is annexed hereto and marked ‘P’.

(b)   1 year comprehensive car insurance with NRMA in the amount of $567.32. A copy of Certificate of Insurance and Amendment are annexed hereto and marked ‘Q’.

(c)   1 top loading washing machine in the amount of $1999.00. A copy of receipt dated 27 February 2006 is annexed hereto and marked ‘R’.

(d)   Legal fees and disbursements associated with my family law matter presently amounting to $36,550.00.

(e)   1 plasma television in the approximate amount of $3,000.

(f)   1 Fridge in the amount of $3420.00. A copy of receipt dated 22 April 2006 is annexed hereto and marked ‘S’.

(g)   1 oven in the amount of $500. A copy of receipt dated 27 February 2006 is annexed hereto and marked ‘T’.

(h)   1 Security system for the Emu Plains in the approximate amount of $25,000.

(i)   Lebanese legal costs and disbursements associated with valuations of Lebanese property in the approximate amount of USD$25,000.

(j)   Payment of instalments of Building and Contents Insurance up to 12 April 2009 in the amount of $144.93 per month, $1739.16. Copy of most recent instalment attached hereto and marked ‘U’.

(k)   Trip to Lebanon in 2005 in the approximate amount of USD$10,000.

(l)   Trip to Lebanon in 2008 in the approximate amount of USD$12,000.

(m)   Total approximately $143,868.16.

The agreement that was annexure P to the affidavit is a Deed Loan Agreement made on 22 April 2008. The agreement included the following terms:

1.   The Lender will purchase 1 x Suzuki SX4 AWD together with options which will amount to $27,100.00.

2.   In addition to Clause 1, the Lender will pay for and on behalf of the Borrower the first years’ comprehensive insurance with NRMA in the amount of $560.00.

…

5.   Further, the Borrower will repay to the Lender the amount loaned, which includes Clauses 1 & 2 and any other amount agreed between the parties at the conclusion of her family law property settlement case currently before the Family Court at Parramatta. The Borrower may repay this amount to the Lender at any time prior or at intervals that the Borrower sees fit. Any amounts paid by the Borrower during this period will be taken into account and deducted from the principal sum.

6.   Should the Borrower fail to repay the monies referred to in Clauses 1 & 2 at the conclusion of her family law property settlement, interest will accrue at the rate of 5% per annum for the principal or the balance of the principal, if payments are made by the Borrower prior to the conclusion of her family law matter, and is payable on the first day of every month.

22. Marc Sukkar also refers to the transcript of evidence given by his mother in the Family Court on 24 March 2011, particularly in relation to the amount of $143,868.16 (see at transcript 33 and 45-7).

23. The plaintiff deposed that between 2006 and 2016 he lived outside Australia. He says that he returned with his family to Sydney in October 2016.

24. I interpose that in the meantime, the Family Court proceedings had been determined by Coleman J, who delivered a judgment on 3 May 2013. It appears that the parties had agreed that the value of the Emu Plains property was $490,000. Orders were made that provided for Mrs Sukkar to acquire Mr Sukkar’s interest in the Emu Plains property for $174,297 within 90 days, failing which Mr Sukkar could within a further 60 days acquire Mrs Sukkar’s interest in the property for $315,703. An order was made that if neither party acquired the interest of the other, the parties were to co-operate in a sale of the property, with the proceeds to be divided on the basis of 64.43% to Mrs Sukkar and 35.57% to Mr Sukkar. However, none of those courses were followed. As stated earlier, the property remains in the joint ownership of Mr and Mrs Sukkar. Coleman J also made an order for the parties to indemnify each other as to half of any liability they or either of them may be held to have incurred to Marc Sukkar prior to the separation of the parties in March 2005. Later in 2013 a costs order was made in Mrs Sukkar’s favour against Mr Sukkar.

22. The plaintiff deposed that a few days after his return to Sydney he had a conversation with his mother in words to the following effect:

Marc Sukkar:   Mum, we need to confirm our agreement regarding all the money loaned to you. I have a family now and I want to make sure they have something just in case something happens to me.

Mrs Sukkar:   Of course, my love.

Marc Sukkar:   Thanks, hayetti [Arabic: my life]. I’ll get my lawyer to draft something shortly.

26. The plaintiff says that he subsequently instructed Kalfus Legal to prepare debt documents.

27. In his second affidavit, the plaintiff deposed that on 22 January 2017 he asked his mother to buy milk for his son Lukkas, but she failed to do so. It seems that an argument ensued. A number of vitriolic text messages were exchanged between the plaintiff and his mother. On 23 January 2017 the plaintiff sent a text message to his mother which included the following:

It seems that our relationship has reached its end. However, in the spirit of compromise and for the sake of the children I don’t want to argue with you in front of them anymore.

That said, I propose the following agreement so as to avoid any further tension or hostility between us.

1. You continue to tell me that this is my house and to take it and it’s all mine. Well, unfortunately that doesn’t mean anything. So, you will formally recognise and acknowledge all monies loaned to you by signing an acknowledgement of debt and mortgage in my favour as soon as the documents are prepared.

In it you will have all rights as mortgagor and the mortgage will not be called upon until either you decide to sell (but only if there is enough money to cover my debt and for you to purchase a home which decision will be solely my discretion), or we both agree to realise the property.

…

6. Danny Saad’s money is due and payable. His account was almost $200,000 not including interest from 2006. After discussions with Danny he has very kindly agreed to accept $120,000 in full and final payment for all services rendered to you for your family law property dispute with your ex husband so long as it is all paid on or before March 2016. This is not my debt and I can no longer fund your case in any event.

But before you go off to get a mortgage all costs issues must be finalised between you and your husband and Kazi Portolesi lawyers which I hope to finalise by early February. Then you will need to mortgage your home to pay Danny. He has waited long enough and must be paid. I’m tired of carrying his burden and having to continually apologise to my friend for your comfort.

So as not to burden you with the full brunt of a mortgage I am prepared to pay half the mortgage repayments which of course will be added to your loan with me. This is the best offer I can make.

Should you refuse to agree to all the above, then none of the above will be followed.

Furthermore, you will force me to take legal action to protect my loans to you from your ex husband and your daughters so I can recover all monies loaned to you over the 15 year period from 2001.

The orders sought from the relevant court will be exactly the same as sought above. I’m not interested in taking your house from you or taking my money back now. I’m more than happy to wait until the market changes so that we both can benefit from any sale.

I have been more than fair and generous and as reasonable as possible especially in light of my current financial situation which you are aware of. I trust that this is acceptable to you and look forward to your written reply confirming your acceptance of all the above terms.

28. Mrs Sukkar sent a message in reply in the following terms:

I would like your proposal to be proposed in front of Steve Stanton or Greg so we can come to an agreement which benefits both of us also please put in writing your money owed to this date

29. Later on 23 January 2017 the plaintiff sent an email to his mother. Attached to the email was a document described as “Schedule of Loan for R A Sukkar”. The email was in the following terms:

There are other items not included in this list. Depending on your response, I may choose to include them at a later date.

30. The attachment to the email is headed “LOAN AMOUNTS AND AMOUNTS EXPENDED FOR AND ON BEHALF OF ROSE AMANDA SUKKAR BY MARC SUKKAR AT __ % P.A. FROM DATE OF ADVANCE”. There follows a seven page list of amounts expended in the period from December 2001 to 24 July 2016. The first item is $150,000 for “Renovations of Emu Plains home”. The items include amounts ranging from $5 (for Office of State Revenue) to $96,493.89 (for Prime Lawyers – Danny Saad). In relation to that latter item, the schedule contains a note that Danny Saad had invoiced $208,015.88 of which Marc Sukkar had paid $78,015.88, leaving an amount of $130,000 due and owing to Mr Saad. The schedule includes a number of large amounts for trips to Lebanon and payments to a Lebanese lawyer, Mr El Bittar. The schedule does not contain a total of the listed amounts.

31. The plaintiff says that his mother did not reply to the email, and raised no objection with him.

32. The plaintiff deposed that on 3 April 2017 his mother threatened not to sign the debt documents. He says that there was a conversation to the following effect:

Mrs Sukkar:   When you sell the house will I be living with you?

Marc Sukkar:   No, mum. I was thinking of renting an apartment or a house for you in the area until I can purchase a house for you.

Mrs Sukkar:   I don’t live in rent.

Marc Sukkar:   Well for the time being we all have to make sacrifices. My family and I will also be renting until the first property development is completed and sold. With those sale proceeds I will buy you a house in this area as you have requested to be close to your friends and you like the community. My family and I will have to rent until the second development is complete. You’re the priority to get you settled.

Mrs Sukkar:   Why can’t I live with you?

Marc Sukkar:   Mum, I’ve already explained it to you. We need our space. You and Ana [my de facto] don’t get along. You have your way of doing things which is different to ours. We don’t want to live in Emu Plains. I want to be closer to my friends who live in the inner west and eastern suburbs.

Mrs Sukkar:   If I don’t live with you, I’m going to make trouble for you.

Marc Sukkar:   Why would you do that? I’ve supported you my whole adult life. I’ve been the most loyal son. Everyone abandoned you except me. You won’t sign the documents because you “don’t live in rent”? You’re being ridiculous. There is something wrong with you.

Mrs Sukkar:   I’m not signing the papers.

33. Marc Sukkar then sent a text message to his mother in the following terms:

I have been far too patient with you and your whole problems with your husband for the last 17 years. You loaned money from me that was used to fund your family law case and lifestyle. Well today it comes to an end.

There are two options for you.

1. Your [sic] attend the lawyers office this Thursday, listen to what he says, ask questions if you don’t understand and hopefully you will see reason and sign all documents. Or

2. If by Wednesday I don’t hear back from you that you seek to attend the lawyers office, then you leave me with no choice but to seek the intervention of the court to recover my loans. I don’t want to do this, but you leave me with no other choice. It’s not about you anymore, stop being self centred and selfish.

I hope you will see reason and logic make your decision. All the best in life.

34. About 15 minutes later Mrs Sukkar sent a message in reply in the following terms:

Give me the paper you promise and I well [sic] sign

35. Marc Sukkar deposed that a short time later he provided various documents to his mother, including a Deed of Acknowledgement of Debt, a Loan Facility Agreement and a Mortgage. There is no doubt that Mrs Sukkar signed the documents in the presence of a solicitor, Joseph Mazurkiewicz of Adams & Partners on 11 April 2017. However, there is a considerable dispute as to the events leading up to the signing of the documents.

36. It is not necessary at this point to refer to Marc Sukkar’s second affidavit in extensive detail. This affidavit is essentially a response to Mrs Sukkar’s first, lengthy, affidavit. Issue is taken with much, although not all, of her account.

37. However, it should be noted that the plaintiff’s second affidavit includes references to conversations about the costs of certain Local Court proceedings involving applications for apprehended violence orders. Those proceedings, which involved Mr and Mrs Sukkar and Marc Sukkar, were on foot from about June 2005 to November 2005. The plaintiff deposed that during a conversation with his mother about Danny Saad’s fees she said:

Can you pay him and I’ll pay you back from the sale of the house? You already have the title deed.

The plaintiff deposed that in a later conversation his mother tearfully accepted that the agreed fee of $14,000 would have to be paid back to the plaintiff. The plaintiff deposed that there was a further conversation in which his mother said:

Whatever it costs you know I will pay you back. Everything I have is for you.

38. It should also be noted that the plaintiff deposed in his second affidavit that he made three cash payments to Mr Saad totalling $70,000. These were payments of $20,000 in about March 2006, $30,000 in about April 2008 and $20,000 in about September 2010.

39. The plaintiff deposed that after Prime Lawyers ceased to act for his mother in about January 2013 (as a result of Mr Saad leaving the firm) arrangements were made for Kazi Portolesi Lawyers to be retained. The plaintiff says that in a conversation with his mother she agreed that Mr Kazi’s fees would become “part of the loan between us”.

40. The plaintiff further deposed that in about June 2008 he left $10,000 in cash with his mother to pay for household expenses for the next few years, and his mother said:

I’ll pay you back from the house when my case is finished.

41. The plaintiff deposed that in December 2012 he had a conversation with his mother about the cost of her visiting him in Venezuela in which she said:

Just put it on my loan. My case is almost finished and soon you’ll have your money from the house.

42. The plaintiff refers in his second affidavit to various other conversations in which his mother stated that she would pay money back to the plaintiff, and said words to the effect that “the house is yours”.

Summary of Mrs Sukkar’s affidavit evidence

43. Mrs Sukkar is now 63 years of age. She was born in Lebanon in 1955. She married Mr Sukkar in Lebanon in 1973, and shortly thereafter the couple migrated to Australia. She had six children between September 1974 and November 1985. The plaintiff was the eldest child, and only son. Mrs Sukkar was engaged full time on domestic duties. She and her husband purchased the Emu Plains property in 1986. Mrs Sukkar has been on a disability support pension since about 1993.

44. Mrs Sukkar says that her husband was violent towards her throughout the marriage, and that they separated at Easter in 2005 following an incident in which Mr Sukkar “pulled a knife” on her. It seems that after that incident, Mr Sukkar and the daughters moved out of the Emu Plains home. Mrs Sukkar deposed that the daughters had “sided with their father”.

45. Mrs Sukkar deposed that she was always very proud of Marc, her eldest child and only son, and particularly so when he graduated in law and became a lawyer. She says that she and Marc were very close and that he used to intervene to protect her from her husband. Mrs Sukkar deposed that throughout his adult life Marc always told her that he loved her, and said things like “I will never let you down” and “I will take care of you”. She says that during the Family Court proceedings he regularly said things like “I’m your son, I’m a lawyer, trust me. I won’t let you down”.

46. Mrs Sukkar deposed that prior to January 2017 she and her son had never discussed, let alone agreed, that he would lend her money or, if he paid for things on her behalf, then she would be required to pay him back with interest.

47. Mrs Sukkar deposed that there was a discussion around the end of 2001 about Marc paying money in return for a 30% interest in the property. She recalls saying to her husband and Marc:

So, if we sell the house, Massoud will get 30% of the money? And if we die before we sell, Massoud will get 30% of the house and the rest will be shared with his sisters?

Mrs Sukkar denied that she handed the Certificate of Title to the property to Marc after that conversation.

48. Mrs Sukkar deposed that she did not speak to her son about a loan to pay for costs in relation to the apprehended violence order proceedings, or about a loan to pay Mr Saad’s fees in relation to the Family Court proceedings. She specifically denied the conversations alleged by Marc to have occurred in about May 2006 and July 2006.

49. Mrs Sukkar deposed that until he left Australia in mid-2006, Marc was closely involved in the Family Court proceedings, and on a number of occasions said words such as “I don’t want you to worry about anything”; and “The law is my field. Let me take care of the legal matters”. Mrs Sukkar deposed, in effect, that it was Marc who wanted to pursue the issue of Mr Sukkar’s property holdings in Lebanon. She denied that Marc asked her to pay for any expenses involved with the Lebanese properties, and states that she did not offer to pay him in respect of those expenses.

50. Mrs Sukkar deposed that after her son left Australia he often called her to discuss the case and tell her what to say to her lawyers. She says that Marc himself did most of the talking with the lawyers, and draft documents were checked by him before she signed them.

51. Mrs Sukkar deposed that when Marc was away she changed her Will to leave all her property to him.

52. Mrs Sukkar denied that Marc said that he would lend her money to pay for the fees of Kazi Portolesi Lawyers. She says that she had nothing to do with instructing that firm about bringing the Family Court case to a conclusion.

53. Mrs Sukkar deposed that Marc never told her that he was lending her money for any travel to Lebanon, or that she would have to pay for any trip which he made to Lebanon. Mrs Sukkar further deposed that her son never suggested that he was lending money to her in respect of the costs of her own travel, or that she would have to pay back those amounts. She says that she did not ask him to pay for any of her overseas trips.

54. Mrs Sukkar deposed that when Marc returned to Australia in October 2016 he, together with his partner and two children, moved in with her at the Emu Plains property. She denied that there was a conversation soon thereafter about any debts or money arrangements.

55. Mrs Sukkar deposed that there was conflict between Marc and his partner, who left the home with the two children. Mrs Sukkar says that she borrowed $4,000 from a friend, Dorothy Lowes, and gave it to her son to use for his legal expenses. Mrs Sukkar says that she borrowed $3,050 in eight separate amounts from another friend (Connie Fava) and gave that money to Marc also.

56. Mrs Sukkar deposed that she had a conversation with her son in January 2017 in words to the following effect:

Marc Sukkar:   Danny Saad called. He wants his money. I don’t have any money so you will have to pay him.

Mrs Sukkar:   You told me not to worry and that Danny would not cost me anything. You said you would take care of it and Hamid was going to pay the cost of the Court.

Marc Sukkar:   The Court did not finish.

Mrs Sukkar:   That’s your problem, you didn’t finish it.

Marc Sukkar:   That’s because I don’t have any money.

Mrs Sukkar:   Well, what do you want me to do then? I can finish the Court, we will sell the home and we can pay Danny. We can buy a small home with what’s left over.

Marc Sukkar:   No, you have to borrow against your pension.

Mrs Sukkar:   I will not borrow against my pension. They won’t give me enough money against my pension. I will have to sell the home.

Marc Sukkar:   No, you’re not selling anything. That house is mine. I need it to stand up on my own two feet.

57. Mrs Sukkar deposed that after that conversation Marc became more and more difficult with her at home, and often used abusive and offensive language towards her. Mrs Sukkar says that there was an argument between them on 23 January 2017. She says that words to the following effect were said:

Marc Sukkar:   Ma, your home isn’t worth nothing. We should renovate the house and sell it. We can rent while we renovate the house and when we’re finished, I will buy a new home. If I fix and renovate the house, it will be worth $2 million.

Mrs Sukkar:   No, you don’t have any money to pay people to renovate the house. Why don’t we sell it the way it is?

Marc Sukkar:   You’re an idiot. You don’t know what you’re talking about. I need the house to stand up on my own two feet.

Mrs Sukkar:   It is your house when I die.

Marc Sukkar:   I will not wait for you to die. I want the house now. I’ve got a family to feed. You stole my children’s inheritance. You stole my home. The house is my property. You never worked a day in your life.

58. Mrs Sukkar says that she received the email sent by Marc later that day, but claims that whilst she glanced at it she did not read it.

59. Mrs Sukkar denied that a conversation occurred on 3 April 2017 as deposed to by Marc. She says that there was a conversation on the morning of 3 April 2017 to the following effect:

Marc Sukkar:   I have got Marcel Kalfus to draw up some papers. Do not worry – they are in your best interests. You will get to keep your home and it will not be taken away by Danny or by Kazi.

Mrs Sukkar:   I am not going to sign any papers.

60. Mrs Sukkar deposed that a few days later Marc told her that he had made an appointment for her to see a lawyer, Michael Battersby. She says that her son spoke firmly to her and said words such as:

You have to sign. Don’t ask questions. I want those papers to be signed. Don’t ask questions and don’t talk too much because I’m paying by the hour. Do it and get out quickly.

And:

Why don’t you listen to me? Danny and Kazi want to throw you out onto the street. Your ex is full of hate against you. I’m trying to protect you. I’m a lawyer, I know what I’m talking about.

61. Mrs Sukkar deposed that Marc then said words to the following effect:

Ma, I love you. I want to take care of you. I would die for you. Trust me. Did I ever let you down? I never let you down. I’m the only one who stood by you.

62. Mrs Sukkar deposed that she was scared and confused about what she should do.

63. Mrs Sukkar deposed that the next day Marc drove her to Mr Battersby’s office. She says that Marc gave her a bag containing a bundle of papers and told her not to ask any questions and to “sign the papers and leave”.

64. Mrs Sukkar deposed that when she met Mr Battersby he opened the papers and read them for a while. She says that when Mr Battersby asked her whether she understood the documents, she told Mr Battersby that she understood that she had to sign them. She says that Mr Battersby told her that the papers included a mortgage. She further says that this was the first time she had heard that that was the case. Mrs Sukkar deposed that Mr Battersby then said:

I’m sorry, I am not going to allow you to sign the papers. You don’t know what you are signing.

65. Mrs Sukkar deposed that she asked Mr Battersby to let her sign the documents but he again refused. She says that she now felt that Marc was not looking out for her and her interests, and she was worried that the documents might be dangerous for her.

66. Mrs Sukkar deposed that when she was collected by Marc after the meeting, he was angry that the documents had not been signed and used abusive language. She says that she felt scared and alone.

67. Mrs Sukkar deposed that Marc then drove her to another law firm, Adams & Partners. Mrs Sukkar says that there was no lawyer available to see her, so an appointment was made for her to return a few days later to see Mr Mazurkiewicz. She says that Marc was still angry towards her when he drove her back home.

65. Mrs Sukkar deposed that over the next few days she was in shock and terrified about what Mr Battersby had said, and felt lost and dumbfounded.

66. Mrs Sukkar deposed that on about 11 April 2017 she was driven by Marc to see Mr Mazurkiewicz. She says that she had still not read any of the papers. Mrs Sukkar deposed that there was a conversation in the car to the following effect:

Marc Sukkar:   You have to sign those papers today. Do you understand, slut? I need those papers to be signed.

Mrs Sukkar:   Why should I sign them? I don’t understand what I’m signing about. You said you want to protect me. What are you doing to me?

Marc Sukkar:   You have to sign them. You never worked a day in your life. That’s my home. That’s my inheritance. I need that home to stand up on my own two feet. I stood by you. It’s time for you to stand by me, do you understand?

Mrs Sukkar:   I can’t sign them. What if he doesn’t allow me to sign?

Marc Sukkar:   Listen, bitch, those papers need to be signed otherwise I will kill you. You go in there, you tell him, “my son insists on me to sign the papers in front of you”. You don’t open your mouth, you don’t ask questions, you don’t say nothing. Whatever he says, you just nod. Do you understand?

Mrs Sukkar:   Ok.

Marc Sukkar:   You stole my children’s inheritance. If I lose my children because of you, I will kill you.

70. Mrs Sukkar deposed that she took Marc’s threat to kill her very seriously, and was terrified. She says that before she went into the office Marc told her to say nothing other than “I understand, and I want to sign the documents” or, if questioned, “My son insists that these be signed today”.

71. Mrs Sukkar recalls Mr Mazurkiewicz saying that the papers included a mortgage. She says that she did not want to sign the documents as she was now “certain” that they were not for her protection. She deposed that nonetheless “I did not think that I had any real choice but to sign”.

72. Mrs Sukkar deposed that the meeting with Mr Mazurkiewicz lasted no more than about half an hour. She says that when Mr Mazurkiewicz asked her whether she knew what she was doing she said:

Yes. My son insists that I sign these papers in front of you.

73. Mrs Sukkar further deposed:

I did not read through any of the documents which I signed. At no point did Joseph [Mr Mazurkiewicz] give me any advice about the bundle of papers. At no point did he read out the documents to me, or explain what they meant. I was not told that some of the papers were a loan agreement and a deed acknowledging approximately a $1.1 million debt (with a further $500,000 of interest). I did not know what I was signing, or what effect they might have on me.

74. Mrs Sukkar also deposed that when she returned to the car after paying the bill, Marc noticed that some of the documents had not been signed and told her to go back in to get them all signed. Mrs Sukkar says that this occurred, but further says that it was later discovered that in fact the signing was still incomplete, necessitating yet another visit to Mr Mazurkiewicz on the following day.

75. The balance of Mrs Sukkar’s first affidavit is largely concerned with some of the documents relied upon by Marc Sukkar in his first affidavit, including various documents filed in the Family Court proceedings. In short, Mrs Sukkar says that the references in some of the documents to loans from her son were not drawn to her attention before she signed the documents. In relation to the evidence she gave in cross-examination in the Family Court proceedings, she says that Marc told her to say that she was borrowing money from him. She says, in effect, that Marc told her that she needed to say that in order to assist the case against Mr Sukkar.

76. Mrs Sukkar’s second affidavit is largely a response to Marc Sukkar’s second affidavit which was itself a response to her first affidavit. It is sufficient to note at this point that Mrs Sukkar disputes almost all aspects of her son’s account, and that the affidavit contains Mrs Sukkar’s response concerning many of the documents relied upon by Marc Sukkar in his second affidavit.

The documents executed on about 11 April 2017

77. Mrs Sukkar executed numerous documents in the presence of Mr Mazurkiewicz on about 11 April 2017. The principal documents were a Deed of Acknowledgement of Debt, a Loan Facility Agreement, and a Mortgage over her interest in the Emu Plains property. Various other acknowledgements and declarations were signed by Mrs Sukkar, as well as an authority to complete documents. One of the documents contained a declaration about having received independent legal advice regarding the loan and security documents; another contained a statement to the effect that she elected not to obtain independent financial advice notwithstanding advice from the Lender to obtain such advice.

78. The Deed of Acknowledgement of Debt (“the Deed”) contained a recital to the effect that between 2001 and 2017 Marc Sukkar had advanced to Mrs Sukkar “in aggregate the sum of $1,612,957.30 (inclusive of interest)”. It was further recited that the terms of the advance (referred to as the Aggregate Advance) have not been adequately documented so the parties have agreed to enter into the Facility Agreement to properly record the terms and conditions of the advance and to acknowledge its existence. It was also recited that the parties had further agreed that the advance will be secured by a first ranking mortgage over the Emu Plans property.

79. By cl 3.1 of the Deed, Mrs Sukkar acknowledged that she was “jointly and severally liable” for the full amount of the Secured Money (as defined). The definition of Secured Money included any amount owing as a consequence of the Facility Agreement and the advance. Clause 3.3 provided that if Mrs Sukkar defaulted in the punctual payment of any of the Secured Money when it becomes due and payable she must pay the whole of the Secured Money immediately on demand. Clause 5.1 contained an acknowledgement that interest payable on the Additional Advance (likely an erroneous reference to the Aggregate Advance) is as set out in the Facility Agreement.

80. There is no reference in the Deed to any annexure to it. There is nonetheless a document, described as Annexure “A” to the Deed, which contains a list of “LOAN AMOUNTS AND AMOUNTS EXPENDED FOR AND ON BEHALF OF ROSE AMANDA SUKKAR BY MARC SUKKAR AT AN EFFECTIVE RATE OF 6% P.A. FROM DATE OF”. The list spans a period from 1 December 2001 to 15 March 2017. The list contains a figure for Total Debt without Interest of $1,102,684.75, a figure for Total Interest of $515,600.52, and a figure for Total Debt with Interest of $1,612,957.30. It is not clear how those figures can be reconciled.

81. The Loan Facility Agreement (“the Agreement”) refers to an Advance (referred to as the Principal Advance) of $1,612,957.30. Curiously, cll 3 and 4 of the Agreement appear to require Marc Sukkar to make an advance of that amount to Mrs Sukkar. However, there is no suggestion in the evidence that any further advance was then in contemplation. It is likely that, as submitted by Senior Counsel for the plaintiff, the Agreement when construed alongside the other transaction documents would be taken as referring to an advance already made. In any case, the Agreement provided in cl 5 for Mrs Sukkar to pay interest on the Advance monthly in arrears at a Required Rate of 10% per annum but only 6% per annum if paid on time, and further provided in cl 6 for the aggregate of unrepaid Advances to be repaid to Marc Sukkar “upon the expiry of three months notice in writing” from him to Mrs Sukkar. Clause 10.2 provided that upon an Event of Default Marc Sukkar had the absolute discretion to make the aggregate of unrepaid Advances, and any unpaid interest or fees “immediately due for payment”. The definition of Event of Default included any failure on the part of Mrs Sukkar to pay interest under the Agreement on the due date.

82. The Mortgage given by Mrs Sukkar took the form of what is commonly referred to as an “all moneys mortgage” (see the definition of Secured Money). By cl 4.1, Mrs Sukkar agreed to pay the Secured Money to Marc Sukkar in accordance with any agreement that obliged her to do so (see also cl 5 concerning interest). The Mortgage became registered on about 3 May 2017.

Credibility and reliability of Marc Sukkar and Mrs Sukkar as witnesses

83. As mentioned earlier, having seen both Marc Sukkar and Mrs Sukkar cross-examined extensively, and having considered their affidavit evidence, I have concluded that neither of them can be regarded as a generally credible or reliable witness. The reasons for those conclusions are set out below.

84. That is not to say that I have in either case wholly rejected the evidence of the witness. In both cases there are aspects of their testimony which I am prepared to accept as truthful or accurate, or largely so. This is not a situation where the manifold differences between these witnesses can be resolved (to the extent that it is necessary to do so) on the basis of a clear preference for the evidence of one over the other. The Court is thus confronted with a much more difficult task of assessment.

85. I will deal first with the evidence of Marc Sukkar. Whilst he presented reasonably well as a witness, a number of matters give rise to serious concerns about his testimony. These include:

1. the plaintiff conceded at the outset that his first affidavit was significantly inaccurate in relation to the amounts claimed to be owing by his mother and in particular the amount he claims to have paid towards her legal costs (see paragraphs 17 and 50 of the affidavit). Shortly prior to the hearing the plaintiff prepared a revised schedule (which became Exhibit B) in which it was stated that the loan amount was $915,810.57 with interest of $590,620.81 giving a total of $1,506,431.38. I note that those figures are well below those that were contained in the Deed executed in April 2017. A comparison between Exhibit B and Annexure “A” to the Deed shows that numerous items in the latter have effectively been deleted or adjusted, and that some new items are included in the former. Marc Sukkar denied that he knew paragraph 17 of his affidavit was incorrect when he swore it. He said that at the time he was distracted with other things more important (see transcript 25). Marc Sukkar similarly denied that he knew Annexure “A” was wrong when he asked his mother to sign the Deed. He said that he hadn’t looked through the schedule thoroughly as he had other priorities at the time and was distracted with more important things (see transcript 26 and 110). I accept these denials, but his evidence in this regard tends to undermine the confidence that might otherwise be placed in the accuracy and reliability of his evidence. So, too, does his evidence about the number and cost of trips he made to Lebanon in relation to the Family Court proceedings. That evidence had to be significantly revised (see transcript 92 and 112). I should add that some of the documentary evidence adduced by Mrs Sukkar suggests that at least some of the payments claimed to have been made by the plaintiff (eg, for Council rates) were not paid by him;

2. the plaintiff denied in cross-examination that his affidavits contained no account of conversations in which he suggested that his mother obtain independent financial advice. He maintained that incorrect position for some time before eventually conceding the point, and further conceding that he did not tell his mother to obtain independent financial advice (see transcript 27-30). This evidence was not satisfactory;

3. the plaintiff gave a number of answers in cross-examination on matters of importance which were not reflected in his affidavits. He asserted, for example, that his mother had “always promised” or “always agreed” to give him a registered mortgage over the property (see transcript 55). The plaintiff later said that there was a discussion about putting all the loans in a mortgage (see transcript 84). When pressed to state when the discussion occurred, Marc Sukkar could only say “over the years”, and refer to statements by his mother about the house being “yours”. Another example is the plaintiff’s evidence to the effect that his mother not only agreed that his claimed 30% interest in the property would become a loan, but also agreed to assume all of Mr Sukkar’s liability as well (see transcript 85; and also 88). I do not accept the evidence given by the plaintiff on these matters. I think it likely that the evidence has been invented by the plaintiff in an attempt to bolster his position in the case;

4. evidence about at least one important matter was absent from the plaintiff’s first affidavit. The affidavit contained no evidence of an agreement on the part of Mrs Sukkar to repay amounts paid in relation to the apprehended violence order proceedings in the Penrith Local Court. I note that there was also no reference to such an agreement in the letter sent by the plaintiff’s solicitors on 31 July 2017. I do not accept the plaintiff’s evidence in cross-examination that he had instructed his solicitor that the apprehended violence order proceedings had been funded on the same basis as the later Family Court proceedings (see transcript 76);

5. Marc Sukkar’s evidence about the making of a number of large cash payments to Mr Saad was unconvincing. None of the alleged payments is reflected in the accounts issued by Prime Lawyers. Mr Saad’s email to Marc Sukkar of 18 March 2016 refers to legal work “I did and I paid for a decade ago and haven’t been paid a red cent for since”. The plaintiff suggested that Mr Saad had “acknowledged” the payments by agreeing to accept the sum of only $130,000 (see transcript 110 and 124). However, the email from Mr Saad of 4 May 2016 refers to that amount as a “commercial compromise”. No mention is made of it being based on the receipt of any payments. I am unable to accept that the payments were made as alleged by Marc Sukkar. I have reached the conclusion that this is another example of evidence invented by him to assist his case; and

6. the plaintiff’s evidence in cross-examination (at transcript 58-60) to the effect that the transaction documents included a certain “protection” for his mother was in my view neither rational nor credible.

86. Overall, I have concluded that the plaintiff’s evidence should generally be treated with considerable caution unless it is corroborated by reliable documentary evidence or other reliable testimony, or given against his own interest.

87. I turn now to Mrs Sukkar. Her credibility is significantly undermined by the simple fact that she now maintains that certain documents relied upon by her in the Family Court proceedings and evidence given by her in those proceedings were false, insofar as it was asserted that she was liable to repay loans made to her by her son. In this situation, Mrs Sukkar chose to invoke the privilege against self-incrimination in respect of the evidence she gave in the Family Court proceedings. A certificate was issued to her pursuant to s 128 of the Evidence Act 1995 (NSW).

88. Mrs Sukkar conceded in cross-examination that she told lies in those proceedings to help her obtain money from her husband (see transcript 148). She conceded that she told certain lies in cross-examination in those proceedings (see transcript 162-3). Mrs Sukkar attempted to evade responsibility for such conduct by blaming, at least in part, her son. She said that she signed documents (including Financial Statements and affidavits) after her son had checked and approved of their contents (see, for example, transcript 151 and 153), and gave answers in court in accordance with what he had instructed her to say (see, for example, transcript 164-5). Of course, even if Marc Sukkar had played that role, that would not excuse her conduct.

89. In addition, there are many other matters that give rise to serious concerns about her evidence. These include:

1. at one point in her cross-examination Mrs Sukkar flatly denied that her son had assisted her financially with her legal and living expenses (see transcript 155), but she later conceded that he may have paid money directly to her lawyers (see transcript 172). Her initial unqualified denial was not in my view credible;

2. Mrs Sukkar also gave a number of answers in cross-examination about what had occurred in conferences with her solicitors, which were entirely at odds with the content of file notes apparently made contemporaneously by the solicitors (see, for example, transcript 156 and 157 in relation to file notes made on 2 March 2009 and 4 March 2009; and transcript 189 in relation to a file note made by Mr Mazurkiewicz on 11 April 2017). Those answers cannot be accepted against the content of the notes which I regard as inherently likely to be largely accurate. Mrs Sukkar’s attempts to explain that some of the notes may be the product of what her son told her solicitors over the telephone were not in my view credible;

3. neither was her denial (at transcript 168) that she wanted her son to investigate the properties in Lebanon. The content of a file note of her solicitors dated 14 November 2007 strongly suggests that she was keen to pursue that issue in the Family Court proceedings. Mrs Sukkar gave further evidence (at transcript 200-1) that was at odds with the content of that file note;

4. Mrs Sukkar’s evidence (at transcript 175-6) concerning what are apparently her signatures on an affidavit of 11 May 2017 struck me as ludicrous and incredible; and

5. Mrs Sukkar gave evidence (at transcript 186) that she did not read her son’s text message of 3 April 2017, yet it appears that Mrs Sukkar replied to the text message.

90. I have concluded that Mrs Sukkar’s evidence should likewise be generally treated with considerable caution unless it is corroborated by reliable documentary evidence or other reliable testimony, or given against her own interest. I regard the credibility and reliability of both witnesses as seriously deficient. The only other witness to be cross-examined was Joseph Mazurkiewicz, solicitor, who was called in Marc Sukkar’s case. I refer to his evidence later in these reasons (see at [134]-[142]. The remaining witnesses either gave evidence of a formal nature in relation to the claim for s 66G relief, or went to matters which I consider to be of only peripheral relevance to the issues to be decided. It is not necessary to make any further reference to that evidence.

The legal relationship between Mrs Sukkar and her son

91. The primary claim advanced by Mrs Sukkar is her claim under the Contracts Review Act. The determination of that claim requires an assessment of whether the relevant contracts are unjust in the circumstances relating to them at the time they were made in April 2017 (see Contracts Review Act, s 7(1)). An important element of the circumstances existing at that time is the nature of the legal relationship between Mrs Sukkar and her son, including whether she was under any legal obligation to repay any monies he had paid to or for her benefit.

92. Aside from the Deed of Loan Agreement made on 22 April 2008, no written contracts of loan exist prior to the April 2017 agreements. The agreements asserted by the plaintiff are otherwise said to arise from conversations between his mother and himself. Given the views I have reached concerning the evidence given by each of them, and having regard to the inherent difficulty of accurately recalling the terms of conversations that occurred many years earlier, the Court has very little confidence in the accuracy of the accounts of the conversations contained in their affidavits.

93. Some light is shed by the documentary evidence, including the documents signed by Mrs Sukkar in the course of the Family Court proceedings. That evidence suggests that at least some monies were regarded as in the nature of loans to be repaid by Mrs Sukkar, but provides limited insight into what, if anything, was agreed as to the terms upon which that would or might occur.

91. Some of that documentary evidence tends to confuse matters even further because it portrays a position which objectively appears to be contrary to the true position. The Financial Statements filed in the Family Court on 2 March 2006 and 6 March 2009 fall into that category. The first of those Financial Statements suggests that Mrs Sukkar’s 50% “share” of liability under a loan from Marc Sukkar was $180,000. There is no apparent basis for that suggestion. On any view, Marc Sukkar had not by that time advanced a sum of $360,000. His evidence, taken at its highest, is that by that time he had paid $150,000 to Mr Sukkar to effect renovations to the Emu Plains property, and met at least some of the costs of the apprehended violence order proceedings in the Local Court. Moreover, the weight of the evidence suggests that any amounts paid by Marc Sukkar in relation to renovations were paid not as a loan but in return for a 30% interest in the property. That is the position put by Marc Sukkar in the letters sent to his parents on 31 May 2006, and seemingly accepted by Mrs Sukkar when she consented to the caveat requested by him. Further, as I have said, I do not accept the plaintiff’s evidence that his mother agreed that his 30% interest would become a loan for which she would be wholly liable. The second of the Financial Statements suggests that Mrs Sukkar’s 50% “share” of liability under a loan from Marc Sukkar was $167,000. This statement suffers from similar difficulties. In addition, the apparent reduction of $13,000 in the amount of liability does not appear to be explained in the evidence.

92. The affidavit sworn by Mrs Sukkar in March 2009 refers (in paragraph 200) to Marc Sukkar having purchased items on her behalf “pursuant to an agreement that I have with him that I will pay him back at the end of these property settlement proceedings”. The affidavit then goes on to refer to items (totalling $143,868.16) including the Suzuki motor vehicle the subject of the Deed of Loan Agreement of 22 April 2008, various household items, and costs associated with the issue concerning the Lebanese properties. The $143,868.16 is also included in the March 2009 Financial Statement. It should be noted that on 5 March 2009, shortly prior to the swearing of the affidavit, Marc Sukkar sent an email to Mrs Sukkar in the following terms:

Hi Mum,

I hope you slept well.

From memory I have made the following list of monies loaned to you.

1. Renovations to Emu Plains $150,000

2. Legal Fees for AVO matter, Prime Lawyers and Counsel $35,000

3. Bills and expenses for the years 2005 – 2009 inclusive which include rates, water, electricity, phone, mobile, fuel, registration, insurance (home, contents & car), gardner [sic], etc $30,000

4. Car $30,000

5. Security system and back to base for Emu Plains $25,000

6. Current proceedings Australian Lawyers, Prime Lawyers & barristers – tell Danny or Elizabeth to check the file.

7. Lebanese lawyer plus experts, disbursements & expenses $US25,000 - $US30,000, not definite yet, but will know at the end of the proceedings.

8. Translator costs $20,000

9. Fridge $4,000, washing machine $3,000, Plasma $3,000, kitchen oven $2,000,

10. Trip to Lebanon 2005/2006 and spending money $US10,000

11. Trip to Lebanon 2008/2009 and spending money $US12,000

If there is anything else I forgot add it on.

Love you mum, xxx

Some of these amounts were included in Mrs Sukkar’s affidavit.

96. Mrs Sukkar was cross-examined in the Family Court about the amounts referred to in her Financial Statement and affidavit. In relation to the figure of $143,868.16, she clearly stated that she borrowed the monies from her son (see Family Court transcript, 24 March 2011, page 33). The transcript (at page 46) records that later in her cross-examination the following occurred:

Q:   Now, just going back to the position, your view is that this is a loan that you need to repay him?

A:   Yes.

Q:   Have you paid him any of that money back?

A:   Well, somehow I’m entitled to some share of the house.

Q:   No. Will you answer my question. Have you – because some of these debts appear to go back to, I think, 2008, and even before – have you paid him any of the money back?

A:   Not yet.

Q:   Why not?

A:   Well, we – the court didn’t finish yet.

Q:   But you say that there’s money you owe to your son?

A:   That’s correct.

97. And then (at page 47):

Q:   Yes. And it would be the case that your son has never requested any payments from you about the money that you say he has given you; he has never asked you for any money in return?

A:   I discussed it with him. I said after I finish, I will – we will talk about the returning of money. He said, “That’s okay, Mum. I understand.”

Q:   All right?

A:   In my book, if – if somebody give you a gift, that’s a gift, but when you ask for amount of money – certain amount of money – that’s borrowing.

98. In the present proceedings, the plaintiff was cross-examined about when the alleged loans were to be repaid. The following evidence was given by the plaintiff (at transcript 51):

Q:   There was no discussion with your mother as to when, what you regard were advances, were to be repaid by her?

A:   Yes they were.

Q:   Well, what was the discussion?

A:   On the realisation of the property, they’d be repaid. There were many discussions actually. One at the conclusion of the family law proceedings, I’d be paid.

Q:   So that’s a different date, is it?

A:   That was during the Family Court proceedings.

Q:   Sir, is the position that prior to the execution of these agreements, as you understood it, that is in April 2017, she didn’t have to make any repayment, of what you say were advances, unless the property was sold?

A:   That’s correct.

The plaintiff later stated that the agreement was that he would have the right to demand repayment “as soon as her family court proceedings concluded”.

99. The cross-examination of the plaintiff continued (at transcript 52-3):

Q:   When did the family law proceedings end as far as you were concerned?

A:   2013.

Q:   So is this your position; you understood that you could claim payment of what you say were advances at any time from 2013?

A:   Yes I could, but there was a process. First we had to enforce the Family Court orders. My mother was awarded costs against my father, that would’ve had to play through, and once the bust [sic - dust] settled, and we knew exactly what was liable, then we would see where we stood, and that’s when the moneys would be repaid.

Q:   So is this right; that your evidence before lunch about the moneys had to be paid at the end of the proceedings is subject to the additional qualification you’ve just added. Is that right?

A:   Costs doesn’t – the judgment wasn’t the end of the proceedings, then there was a costs application, and then after the costs application, then there was an assessment of costs. That didn’t go through, and that was left to the wayside for a couple of years.

Q:   Well, come April 2017, is this right. That the end of the proceedings still hadn’t completed as far as you were concerned?

A:   That’s correct.

100. This evidence, together with the evidence given in the Family Court by Mrs Sukkar referred to above (at [97]), is in my view significant. It indicates that the arrangements between the plaintiff and his mother in relation to monies advanced included an agreement to the effect that they would talk about returning or repaying the money once the Family Court proceedings had finished and, the dust having settled, they could see where they stood. In my opinion, the likelihood is that the arrangements between the plaintiff and his mother were to that effect.

101. The evidence of the plaintiff in this regard was given under the pressure of cross-examination, and is contrary to the thrust of the account contained in his affidavits. It can be seen as evidence given contrary to his interest in these proceedings, and I am prepared to accept it. The evidence of Mrs Sukkar in this regard was similarly given under cross-examination (in the Family Court) and to a degree was contrary to the position taken in those proceedings that she was liable to repay a significant sum to her son. It is likely to be reasonably accurate.

102. The discussions between the plaintiff and his mother as to advances occurred in the context of the Family Court proceedings. In those proceedings Mrs Sukkar sought an adjustment in her favour in respect of the Emu Plains property, as well as a payment of $500,000 from Mr Sukkar (see paragraph 2 of the Reasons for Judgment delivered by Coleman J on 3 May 2013), and costs. Given the range of possible outcomes and the impact the outcome would have upon Mrs Sukkar’s financial position, and given further the undoubtedly close and supportive relationship that then existed between the plaintiff and his mother, it is readily understandable that the parties would want to wait until that outcome was known before making any firm agreement for repayment.

103. It is noteworthy that the subject matter of the Deed of Loan Agreement of 22 April 2008 is stated to include not only the Suzuki motor vehicle and related insurance costs, but also “any other amount agreed between the parties at the conclusion of her [Mrs Sukkar’s] family law property settlement case currently before the Family Court at Parramatta” (see cl 5). That deed was entered into well after discussions had taken place concerning the funding of the Family Court proceedings. Clause 5 is consistent with the parties having agreed in those discussions to wait until the end of the proceedings before coming to any firm agreement as to what amounts, if any, were to be repaid to the plaintiff. I note in passing that the Costs Agreement with Prime Lawyers signed by Mrs Sukkar in December 2007 provided for the costs to be paid at the conclusion of the matter. The Deed of Loan Agreement can be seen as an agreement designed to specifically cater for the new motor vehicle, as well as conform to the existing arrangements between the parties.

104. I am not satisfied that the plaintiff and Mrs Sukkar otherwise entered into any binding agreement whereby Mrs Sukkar became subject to a legal obligation to repay monies to the plaintiff. Whilst the parties may have in general terms regarded amounts spent by the plaintiff in relation to the Family Court proceedings as loans, and Mrs Sukkar might have considered herself as under some kind of moral obligation to repay her son, at least if the circumstances permitted such, they had not actually agreed in any binding fashion that any amounts would have to be repaid. They did no more than agree that the matter would be further discussed once the Family Court proceedings had finished and the parties could see where they stood.

105. That point does not seem to have been reached by early 2017. It is true that orders had been made by Coleman J on 3 May 2013, and a costs order against Mr Sukkar was made later in 2013. However, by 2017 those costs had neither been agreed nor assessed, or at least the process of assessment had not concluded. There was also a dispute concerning the costs claimed by Mrs Sukkar’s second firm of solicitors, Kazi Portolesi. Neither that firm nor Prime Lawyers had been paid the large amounts of costs claimed by them. Further, no transfer of the interest in the property of either Mr or Mrs Sukkar to the other had occurred as provided for in the orders made on 3 May 2013. Certainly, as matters stood in early 2017, Mrs Sukkar was not in a position to make any substantial payment to her son unless the Emu Plains property was sold, or she was able to borrow using her share in the property as security.

106. I am unable to accept the plaintiff’s evidence to the effect that in conversations with his mother:

1. she agreed to repay (with interest) amounts paid by the plaintiff in relation to the costs of the Family Court proceedings;

2. she agreed that the loan would be extended to various household or travel expenses met by the plaintiff; or

3. she agreed that the loan would be extended to the fees charged by Kazi Portolesi.

107. I am also unable to accept Marc Sukkar’s evidence to the effect that in 2005 his mother agreed with him that if he paid Mr Saad’s fees in respect of the apprehended violence order proceedings, she would repay him by selling the house.

108. I note in passing that the plaintiff agreed in cross-examination that even on his version of events, there was no discussion with his mother concerning any rate of interest.

The personal relationship between Mrs Sukkar and her son

109. This is another salient aspect of the circumstances existing at the time the relevant contracts were made. The nature of the personal relationship is not really touched upon in Marc Sukkar’s first affidavit. Mrs Sukkar deals with this matter at some length in her first affidavit. She deposed:

I was always so proud of Massoud, my eldest child and only son. He was good boy, who did very well at school. He studied law at Sydney University and graduated to become a solicitor. I was so happy when this happened. I kept thinking to myself that it was amazing that from our family, my son was able to get a proper education and become a lawyer and earn a decent name for himself.

After graduating, Massoud worked at a number of firms, including with Leigh Johnson, with John Marsden, and in partnership with his cousin Stephen Sukkar.

Growing up, Massoud was always considerate and caring towards me, and we were very close. He used to call me “Rose”. When Massoud got his driver’s licence, he used to drive me to the doctors’ appointments. When I needed surgery in around 1997, Massoud offered to pay for me to have elective surgery, so that I would not have to wait for a long time on the list for surgery.

During my marriage, Massoud intervened to protect me in the domestic violence by Hamid. I remember on one occasion after Hamid had found out that I had reversed our car into another car at a shopping centre, Hamid hit me and kicked me, pulled my hair and called me stupid. Massoud stepped into the room and said to his father words to the effect of: “If you lay your hand on her again, I’m going to break your car to pieces and I’ll take Mum to live with me in the city and you’ll never see me or her again”. When Massoud did this, I felt that he was my guardian angel.

Throughout his adult life, Massoud has always told me that he loved me, and said to me things such as: “I will die for you, Ma” and “I will never let you down”. He said to me many times after Hamid and I separated words to the effect of: “Mum I love you, I will take care of you. I will never abandon you, I will die for you”, and “I will never put you in a nursing home. I will bring the nurse to you”.

110. None of that evidence was disputed by the plaintiff, save that he denied that he ever said that he would die for his mother, and he denied that there was ever any talk of nursing homes. The plaintiff deposed that on many occasions (it seems during the Family Court proceedings) he said words to the effect:

I am still here, I am your son and I won’t abandon you or let you down.

111. He denied his mother’s assertion that during the Family Court proceedings he regularly said:

I’m a lawyer, trust me.

112. Even if he did not say those words, I consider it likely that he often provided words of reassurance to his mother about the conduct of the proceedings. The documentary evidence makes it clear that Mrs Sukkar permitted Prime Lawyers to take instructions from the plaintiff on her behalf. It is likely that Mrs Sukkar placed considerable trust in the plaintiff in that regard, but I should record that to the extent that she gave evidence to the effect that she had little or no involvement in or knowledge of the proceedings, I do not accept the evidence. Again, the documentary evidence, including the file notes made by her solicitors, shows that she maintained an active involvement throughout.

113. Mrs Sukkar deposed that until the events of 2017 she never doubted that the plaintiff loved her deeply. She further deposed that whilst the plaintiff was very loving towards her, he was also “very controlling” of her, for example in relation to her relationships with her daughters. The plaintiff deposed that he continues to love his mother, albeit that he is “saddened and disappointed with her actions”. He denied that he was controlling of his mother. He described her instead as “a strong, independent, driven and opinionated woman”.

114. It does seem to be the case that the plaintiff at least did not encourage his mother to continue relations with his sisters. He says that he never sought to stop his mother from having a relationship with any of his sisters, but deposed that he often said to his mother:

If you wish to have a relationship with any of your daughters I do not want to know about it, but at the same time all I ask is that you respect my privacy and not talk about me with them.

115. It also seems to be the case that for many years Mrs Sukkar has in fact only had very limited contact with her daughters, and almost no contact with at least one of them.

116. Mrs Sukkar deposed:

Massoud’s behaviour towards me changed after our arguments in January 2017. Some days Massoud would ignore me, some days he would abuse me. Massoud stopped me from using my car, by parking it on an angle in the garage which meant I was unable to drive it out. He would not let me use my car without his permission. On other days, Massoud would be very loving and say words like “Ma, I love you, I care about you, I’m the one who stood by you. Why don’t you trust me?”. I just did not know where I stood with Massoud.

117. This part of Mrs Sukkar’s affidavit was not specifically answered by the plaintiff in his second affidavit. Conceivably, this was due to oversight rather than a reflection of an acceptance of the truth of what his mother there alleges. However, I am inclined to accept that from about 23 January 2017 until the debt documents were executed in April 2017, relations between the plaintiff and his mother were volatile; sometimes being very strained, sometimes openly hostile, and at other times seemingly loving and supportive. I consider that Mrs Sukkar had a tendency towards exaggeration in the giving of her evidence. Nevertheless, I accept that the evidence set out above at [116] is broadly accurate.

118. In that regard, I note that in a text message sent by the plaintiff to his mother on 22 January 2017 he described her as “an evil vile selfish women [sic]”. I have little doubt that he would be capable of regularly directing abusive language towards his mother in the somewhat fraught circumstances that existed in the period leading up to the execution of the debt documents. I note further that the text message sent by the plaintiff to his mother on 23 January 2017 seems to me to contain a variety of signals, including a blunt statement that their relationship was finished, a demand coupled with an assurance, and an offer coupled with a threat of legal action.

Events leading up to the execution of the debt documents

119. The plaintiff’s text message of 23 January 2017 was sent shortly after he and his mother had argued. The message commences with the dramatic statement that the relationship seems to have “reached its end”. It goes on to propose an agreement which would include formal recognition and acknowledgement of “all monies loaned” by signing an acknowledgement of debt and a mortgage. The mortgage was not to be called upon until either Mrs Sukkar decided, in certain circumstances, to sell the property, or both parties agreed to realise the property. Somewhat confusingly, the message goes on to refer to a mortgage over the property in favour of Mr Saad (who had agreed to accept $120,000 – later corrected by the plaintiff to $130,000 – for his outstanding fees). The message then goes on to state that if Mrs Sukkar refused to agree to all of what was proposed above, the plaintiff would be forced to take legal action “to protect my loans to you…so I can recover all monies loaned to you over the 15 year period from 2001”.

148. The parties made submissions in writing as well as orally at the hearing. Understandably, many of the submissions on the question whether the contracts were unjust rested upon an assumption that the evidence of the party would be essentially accepted over that of the other party. That was particularly the case in relation to the submissions of Marc Sukkar, in which Mrs Sukkar was, amongst other things, described as a perjurer. The conclusions I have reached concerning the evidence of both Marc Sukkar and Mrs Sukkar means that those assumptions were not made good. Nevertheless, the submissions identified the principal features of the relevant circumstances sought to be relied upon by each party.

149. The submissions on behalf of Mrs Sukkar emphasised the following matters:

1. Mrs Sukkar’s personal circumstances and financial position, including the fact that her interest in the Emu Plains property was her only asset of value;

2. the relationship between Mrs Sukkar and her son, particularly the trust she placed in him and the influence he had over her;

3. the imbalance in bargaining power in favour of Marc Sukkar, arising from the parties’ respective levels of education and legal knowledge and experience, and a lack of opportunity to negotiate the terms of any agreement;

4. the improvident nature of the transaction from Mrs Sukkar’s point of view. It was submitted that the agreements provided very substantial benefits to Marc Sukkar including the Mortgage which had never been the subject of discussion, but no benefit to Mrs Sukkar. It was put that there was no rational reason for her to enter into the agreements;

5. the inability of Mrs Sukkar to comply with her obligations under the agreements in respect of monthly interest payments and repayment of the principal sum, which made default inevitable;

6. the pressure placed upon Mrs Sukkar by her son to enter into the agreements, including by making physical and emotional threats; and

7. the legal advice received by Mrs Sukkar was not adequate to provide her with a good understanding of the transaction documents and the consequences of entering into the transaction, and not sufficient to overcome her son’s influence over her.

150. The submissions on behalf Marc Sukkar emphasised the following matters:

1. Mrs Sukkar understood that she had borrowed money from her son and that significant amounts of money were due to him;

2. Mrs Sukkar asked Marc Sukkar for a proposal in that regard, and, having received the list of loan amounts, failed to challenge it in any way;

3. any pressure exerted upon Mrs Sukkar to sign the documents was legitimate;

4. Mrs Sukkar was in reality at the mercy of her son, and she chose to proceed, probably because she saw it as being in her interests to keep him happy;

5. Mrs Sukkar received independent legal advice about the documents so that any undue influence was overcome;

6. Mrs Sukkar understood the nature of the transaction and should be regarded as having entered into it freely; and

7. even if some aspects of the agreements might be considered harsh or unfair (such as the provision for monthly interest payments) Mrs Sukkar was seeking nothing less than the setting aside of the agreements in their entirety, and this was not warranted.

151. I note in passing that both sides took the view that the relevant contracts, namely the Deed, the Agreement and the Mortgage were each part of a single transaction and should be considered as such.

152. Section 9(1) of the Act mandates that in determining whether those contracts were unjust in the circumstances relating to them when they were made, the Court must have regard to the public interest and to all the circumstances of the case.

153. When the contracts were entered into in April 2017 Mrs Sukkar was 61 years of age. She was divorced from her husband, Hamid Sukkar. She was and had for many years been a disability pensioner. Her only financial asset of significant value was her interest in the Emu Plains property. The value of that interest was affected by the terms of the orders made in the Family Court which, in substance, gave her a 64.43% interest in the property. She had lived in the Emu Plains property since about 1986.

154. There was evidence, which I accept, that over many years Mrs Sukkar endured domestic violence from her husband, and she continues to receive counselling in relation to it.

155. Following the breakdown of the marriage in 2005, Mrs Sukkar has had little or no contact with the five daughters of the marriage, although it appears that she maintained “some contact” with two of them (Yola and Hila).

156. The relationship between Mrs Sukkar and her only son remained intact. It appears that this was a close and loving relationship, and that on occasions Marc Sukkar sought to protect his mother from Mr Sukkar. Mrs Sukkar, who had left school when she married Hamid, was enormously proud that her son completed a degree in law and became a lawyer.

157. It is evident that Marc Sukkar was closely involved in his mother’s Family Court case. As noted earlier, he had been authorised to give instructions on her behalf. I have no doubt that Marc Sukkar provided considerable assistance to his mother in relation to those proceedings, including by offering informal advice from time to time. That was so even after he left Australia in 2006. It is clear that Marc Sukkar provided a great deal of assistance in relation to the gathering of evidence about Mr Sukkar’s property interests in Lebanon. I think that both Mrs Sukkar and Marc Sukkar were keen for that issue to be pursued as it was seen by both of them as important in obtaining a favourable result in the proceedings.

158. I suspect that both were similarly keen to advance the case that Mrs Sukkar owed debts or otherwise had liabilities to her son. Whilst I accept that Marc Sukkar did make various payments for his mother’s benefit, and further that there were discussions about returning or repaying monies once the Family Court proceedings had finished, I have found that (apart from the Deed of Loan Agreement of 22 April 2008) no binding agreement was reached whereby Mrs Sukkar became obliged to repay any monies to the plaintiff. The arrangement between them was rather that they would talk about returning or repaying money at the conclusion of the Family Court proceedings (including the assessment of costs) when they could see where they stood. As conceded by Marc Sukkar, that point had not been reached by early 2017.

159. Marc Sukkar nevertheless raised the issue of the “loans” shortly after his return to Sydney in late 2016. On his version of events he told his mother that they needed to “confirm” their agreement regarding the money lent “just in case something happens to me”. In his text message of 23 January 2017, sent in the wake of a major argument, the plaintiff demanded that his mother sign an acknowledgement of debt and a mortgage, at the same time assuring her that the mortgage would not be called upon until there was some agreement to sell the property. He also threatened to sue her if she did not agree with what he proposed. Mrs Sukkar’s response was to seek to put the proposal before some trusted third parties “so we can come to some agreement which benefits both of us”. It seems that this course was not followed, or at least there is no evidence that it was.

160. I note in passing that the text message includes a reference to Mrs Sukkar telling the plaintiff on occasions that the house was his. The likelihood is that Mrs Sukkar did make such statements, and that they refer to or reflect the fact that she had made a will in favour of her son.

161. In any event, the plaintiff proceeded to provide his list of amounts expended in the period from December 2001 to 24 July 2016. The list was significantly inaccurate, and misleading insofar as it purported to reflect the true position. Even allowing for the note concerning the amounts said to have been paid to Mr Saad, the plaintiff’s own evidence shows that the list included amounts that should not have been included (for example in relation to a number of trips to Lebanon). In addition, it included the $150,000 which, even if paid to Mr Sukkar, was not in the nature of a loan. Further, to the extent that the document suggested that a binding agreement had been reached to repay the listed amounts, it was misleading; it was also misleading to the extent that it suggested that a binding agreement had been reached to pay interest on amounts advanced.

162. Mrs Sukkar did not make any specific response to the list. I do not think that should be taken as an acceptance on Mrs Sukkar’s part that the list was an accurate reflection of the position. Neither do I think that Mrs Sukkar should be taken to have had an understanding that significant amounts of money were due to be repaid to her son. At most, she may have considered herself to be under some kind of moral obligation to repay her son if the circumstances permitted. Her response to the 23 January 2017 text message suggests a willingness to come to some agreement that would be of mutual benefit. It is not clear whether there were any discussions that might be characterised as directed towards achieving such an outcome.

163. It does seem that Mrs Sukkar initially resisted the notion of signing documents. However, on 3 April 2017 Marc Sukkar sent a text message to her which contained an ultimatum: either agree to go to a lawyer and sign the documents (which had by that time been prepared by Kalfus Lawyers) or face court proceedings. The concluding words of the message were:

All the best in life.

164. Mrs Sukkar seemed to have acquiesced at that point, quickly offering to sign “the paper you promise”. Mrs Sukkar had not seen the documents at that stage. As submitted by Senior Counsel for the plaintiff, it is likely that Mrs Sukkar did want to keep her son happy. He was the only member of the family with whom she maintained any real relationship. Mrs Sukkar remained close to him. She was full of admiration for him and his achievements, and it is plain that she placed a deal of trust in him. The plaintiff himself told her on more than one occasion that he was trying to protect her, and that she should trust him.

165. A few days later Mrs Sukkar attended upon Mr Battersby. Mrs Sukkar learned that one of the documents was a mortgage. Her evidence on that matter (at paragraphs 230 and 231 of her first affidavit) suggests to me that Mrs Sukkar already had some awareness of the nature of a mortgage. Mrs Sukkar was also aware by the time she left Mr Battersby’s office that she was being asked to acknowledge a debt of $1.6 million. I accept that Mrs Sukkar then felt that her son was not looking out for her and her interests, and was worried that the documents might be dangerous for her. As already stated, I further accept that Marc Sukkar was very angry and abusive towards his mother when he collected her on that occasion, and that she felt scared and alone.

166. An appointment was made later that afternoon for Mrs Sukkar to see Mr Mazurkiewicz on 11 April 2017. I am prepared to accept that in the intervening period Mrs Sukkar did indeed feel lost and uncertain about what to do.

167. On 11 April 2017 Marc Sukkar told his mother that she must sign the documents. He spoke to her in an angry and aggressive manner, and I think that she was afraid about what might happen between her son and herself if she did not go ahead and sign the documents. It is likely that these concerns impelled her towards proceeding, even though she was simultaneously concerned about the documents which she now thought were not for her protection.

168. I think it is likely that in these circumstances Mrs Sukkar had made up her mind to proceed before she met Mr Mazurkiewicz. It is evident from his testimony that Mrs Sukkar was keen to portray that she was “well aware” of the provisions of the documents. She deflected Mr Mazurkiewicz’s query, about how the loan could be repaid, with an answer which she must have known was fanciful. It was not realistic to suggest that the outcome of the Family Court proceedings (i.e. enforcement of the Court’s orders including as to costs) would enable her to pay more than $1 million to her son. No evidence was adduced as to the value of the Emu Plains property in early 2017. The agreed value of the property for the purposes of the Family Court proceedings was only $490,000. Even if the property was worth double that figure, a 64.43% interest would be valued at only about $630,000. There was no way that there would be “plenty of money” as a result of those proceedings. It is likely that Mrs Sukkar was wanting to avoid a repeat of the episode when she emerged from the solicitor’s office without having executed the documents.

169. It is telling that at some point Mrs Sukkar told Mr Mazurkiewicz that she trusted her son, a solicitor. That is probably a reflection of a belief or a hope that regardless of what the documents might provide and the plaintiff’s recent conduct towards her, he would ultimately protect her as he had assured her on numerous occasions.

170. The transaction embodied in the documents executed by Mrs Sukkar was plainly improvident from her point of view. In short, she acknowledged the existence of a debt of more than $1.6 million which did not exist. Mrs Sukkar also granted a mortgage over her interest in the property even though she had not previously agreed with the plaintiff to grant any mortgage. The Agreement provided for Mrs Sukkar to pay interest each month on the Advance at the rate of 10% per annum, reducible to 6% per annum if paid on time. (The Advance is likely to be construed as a reference to the Aggregate Advance the subject of the Deed: see [81] above.) The Agreement further provided that the aggregate of unrepaid Advances were to be repaid by Mrs Sukkar “upon the expiry of three months notice in writing” from the plaintiff. If there was an Event of Default (e.g. a failure to pay interest when due), the plaintiff had the absolute discretion to make the aggregate of unrepaid Advances and any unpaid interest “immediately due for payment”.

171. Mrs Sukkar’s financial circumstances were such that there was no possibility that she could meet the interest obligations. There was also no possibility that she could repay the Aggregate Advance the subject of the Deed. Mrs Sukkar gave a mortgage over her interest in the Emu Plains property to secure the performance of obligations she could not meet.

172. In cross-examination, the plaintiff accepted that if there was an obligation to pay monthly interest, it was “of course” not in his mother’s interest. He conceded that it would be quite unfair and unjust to her to have to sign up for a monthly interest obligation. He gave evidence that he would never impose monthly repayments, and tried to suggest that those clauses were not wanted and in some way did not apply. His evidence amounts to a recognition that, even on his case, the interest provisions were not reasonably necessary for the protection of his legitimate interests.

173. In relation to the obligation to repay within three months, the plaintiff accepted that he had the discretion to require repayment in that time. However, the plaintiff tried to suggest, incredibly in my view, that his discretion was in some way equivalent to a provision that the Mortgage would not be called upon until either Mrs Sukkar decided to sell (but only if the plaintiff decided there was enough to cover the debt) or they both agreed to sell. The documents contain no such limitation. As it turned out, on 13 July 2017 the plaintiff gave his mother a notice under cl 6 of the Agreement requiring her to repay the outstanding principal, together with interest, within three months. (Later in 2017 the plaintiff sued his mother in the Local Court on the Deed of Loan Agreement dated 22 April 2008.)

174. The plaintiff was unable to identify any benefit his mother obtained by signing the documents. He maintained that the documents were merely a confirmation of the position in respect of monies already advanced but, as I have found, that was not the case at all.

175. Viewed objectively, there was no good reason for Mrs Sukkar to enter into the agreements. It was clearly not in her financial interests to do so. By entering into the agreements Mrs Sukkar placed the Emu Plains property, her only significant asset and her longstanding place of residence, at risk of being sold with the proceeds being applied towards liabilities which greatly exceeded the value of her share in the property.

176. In my opinion, Mrs Sukkar’s decision to proceed was essentially the product of the influential position the plaintiff held in relation to her, and the pressure he placed upon her.

177. The influential position of the plaintiff derived from a combination of factors. His relationship with his mother was a close and protective one, which endured after Mrs Sukkar’s other family relationships had broken down or diminished. The relationship was characterised on Mrs Sukkar’s side by pride and admiration for her lawyer son. The conduct of the Family Court proceedings showed that she was willing to place considerable trust in the plaintiff, and he willingly provided assistance and informal advice throughout.

178. The relationship between the plaintiff and Mrs Sukkar clearly came under great stress in the early months of 2017. As stated earlier (at [116]-[117]), relations were volatile, sometimes very strained, sometimes openly hostile, and at other times seemingly loving and supportive. In that context, the plaintiff placed pressure upon his mother in a variety of ways. He stated that their relationship was at an end; he demanded that she sign an acknowledgement of debt and a mortgage and at the same time provided assurances to her about the mortgage not being called upon until there was an agreement to sell; he threatened to take legal action against her; he spoke to her firmly about wanting the documents to be signed, and said that he was trying to protect her and that she should trust him; and he directed abusive or aggressive language towards her, including after her meeting with Mr Battersby, and prior to her meeting with Mr Mazurkiewicz.

179. I accept that Mrs Sukkar proceeded knowing that she was acknowledging a debt of $1.6 million and signing a mortgage. She had the benefit of independent legal advice concerning the documents even if that advice did not extend into the territory of how in practical terms Mrs Sukkar might meet her obligations under the documents. However, I consider that her decision to proceed was truly the result of a fear of what might happen between her son and herself if she did not go ahead, coupled with a belief or hope that, regardless of what the documents might provide, her son would ultimately protect her as promised. In the end, as she said to Mr Mazurkiewicz, Mrs Sukkar trusted her son.

180. Mrs Sukkar cannot simply be regarded as having freely entered into the agreements. The agreements, which together constituted an improvident transaction from Mrs Sukkar’s point of view, were the product of a combination of the plaintiff’s influential position and the pressure applied by the plaintiff.

181. The pressure applied by the plaintiff was in my view unfair in circumstances. It may be broadly described as a form of emotional pressure applied by one party to a relationship to the other. It was unfair because of the nature of the relationship, in particular the enduring bond between Mrs Sukkar and her son, and the position of influence he held vis-a-vis his mother. Mrs Sukkar was in my opinion vulnerable to that type of pressure, and in the circumstances was not able to fully protect her own interests.

182. Viewing the circumstances of the case overall, I have come to the conclusion that the agreements made on 11 April 2017 were unjust at the time they were made within the meaning of s 7(1) of the Act. In reaching that conclusion I have had regard to the public interest, including the public interest in contracting parties observing their contractual obligations (see Baltic Shipping Company v Dillon (1991) 22 NSWLR 1 at 9B-C and 20E). In my view, the improvident nature of the agreements from Mrs Sukkar’s perspective, coupled with the manner in which her assent to the agreements was obtained, means that it would not be in the public interest for these agreements, made in a domestic setting, to be enforced against her.

164. The relevant agreements are the Deed, the Agreement and the Mortgage. The conclusion that the agreements were unjust within the meaning of s 7(1) of the Act means that the Court may, if it considers it just to do so, and for the purpose of avoiding as far as practicable an unjust consequence or result, give relief in accordance with the section.

165. Section 7(1) provides:

7(1)   Where the Court finds a contract or a provision of a contract to have been unjust in the circumstances relating to the contract at the time it was made, the Court may, if it considers it just to do so, and for the purpose of avoiding as far as practicable an unjust consequence or result, do any one or more of the following:

(a)   it may decide to refuse to enforce any or all of the provisions of the contract,

(b)   it may make an order declaring the contract void, in whole or in part,

(c)   it may make an order varying, in whole or in part, any provision of the contract,

(d)   it may, in relation to a land instrument, make an order for or with respect to requiring the execution of an instrument that:

(i)   varies, or has the effect of varying, the provisions of the land instrument, or

(ii)   terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the land instrument.

185. Mrs Sukkar seeks orders to the effect that the agreements are void and unenforceable in their entirety. In that regard, Senior Counsel for the plaintiff referred to the decision of the Court of Appeal in Esanda Finance Corporation Ltd v Tong (1997) 41 NSWLR 482. In that case Handley JA (with whom Santow A-JA and Simos A-JA agreed) said at 489:

The judge does not appear to have considered whether it was just to set aside the mortgage entirely and to relieve the Tongs of personal liability. At least his reasons fail to indicate that he considered this issue. In my judgment these were separate issues which required separate consideration. Although Esanda’s conduct in removing the limitation clause fully justified the insertion of that limitation, there can be no question of punishing Esanda. Section 7 gives the Court powers to grant civil remedies to remove injustice. These powers are neither penal nor disciplinary, and should not be exercised for such purposes. Once injustice to the weaker party has been remedied, the Court should not further interfere with the rights of the parties. Interference beyond that point will cause injustice to the other party, and is not authorised by the section. This question was considered in S H Lock (Australia) Ltd v Kennedy (1988) 12 NSWLR 482 at 487, where Samuels JA said:

“If the Court were now to vary the contract of guarantee by reducing the amount of the respondent’s liability it would not be relieving the respondent from the consequences of injustice, but punishing the appellant for having brought about an injustice…I do not consider that this would be an authorised use of the powers which the Act provides: see the opening words of s 7(1).”

Similarly, Priestley JA said (at 492, 493-494):

“…Once the Court finds a contract unjust…it is faced with the next and quite separate task, for which the Act provides less guidance: the relief the court is empowered to give is, if it considers it just to do so, to make appropriate orders ‘for the purpose of avoiding as far as practicable an unjust consequence or result’. As I understand s 7(1), wide though the court’s powers are to find a contract unjust, the remedies it may grant in respect of such injustice are strictly limited to avoiding an unjust consequence or result of the unjust contract….”

186. Here, where the Court has found that, apart from the Deed of Loan Agreement of 22 April 2008, Mrs Sukkar was under no legal obligation to repay any monies to the plaintiff, and where no monies were advanced to Mrs Sukkar when the agreements were made (or since they were made), the making of orders to effectively set the agreements aside in their entirety would not in my view involve any punishment of the plaintiff. Orders to that effect would appropriately serve the statutory purpose of avoiding as far as practicable unjust consequences or results, namely, Mrs Sukkar being bound by the contractual obligations contained in the agreements. I should note that Senior Counsel for the plaintiff accepted that if there was no debt then setting aside the documents in their entirety would be appropriate.

187. Section 7(3) of the Act provides that the section is subject to s 19 of the Act. Section 19 provides, inter alia, that s 7(1)(b) or (c) has no effect in relation to a contract so far as a contract is constituted by a land instrument that is registered under the Real Property Act 1900 (NSW). The Mortgage is such an instrument. In these circumstances, it seems to me that in relation to the Mortgage, an order should be made under s 7(1)(d) requiring the plaintiff to provide to Mrs Sukkar a duly executed Discharge of Mortgage. Further, insofar as the plaintiff’s claim for relief under s 66G of the Conveyancing Act might constitute enforcement of the Mortgage (by an “incumbrancer”), the Court may refuse to so enforce it. The relief to be granted to Mrs Sukkar in respect of the Mortgage removes the basis for the plaintiff’s claim for relief under s 66G of the Conveyancing Act. Accordingly, the Summons will be dismissed.

188. As far as the Deed and the Agreement are concerned, it would be appropriate for the Court in each case to make an order under s 7(1)(b) of the Act declaring the contract to be void.

189. The above conclusions render it unnecessary for the Court to proceed to determine Mrs Sukkar’s general law challenges to the agreements. The Court will not proceed to determine those claims save to record that I am not satisfied that the plaintiff spoke to his mother in such a way, or made threats to her, that amounted to threatened or actual unlawful conduct as would be required in order to make out a case of duress (see Australia & New Zealand Banking Group Ltd v Karam (2005) 64 NSWLR 149; [2005] NSWCA 344 at [66]; noting the observations made by Nettle J in Thorne v Kennedy (2017) 91 ALJR 1260; [2017] HCA 49 at [70]-[72]).

190. Finally, there seems to be no reason why the costs of the proceedings should not follow the event. The Court will therefore order that the plaintiff/cross-defendant pay the first defendant/cross-claimant’s costs of the proceedings.

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Decision last updated: 11 June 2019