William Tomac v Antonia Elsa Papp - [2016] NSWSC 1472

Supreme Court

New South Wales

Medium Neutral Citation: William Tomac & Anor v Antonia Elsa Papp; The Estate of Tomo Tomac [2016] NSWSC 1472
Hearing dates: 5 September 2016
Date of orders: 30 September 2016
Decision date: 30 September 2016
Jurisdiction: Equity
Before: Rein J
Decision:
See [60]

Catchwords: CONTRACTS- Whether contract “unjust”- where the defendant seeks pursuant to the Contracts Review Act 1980 (NSW) to set aside a Settlement Agreement on the basis of a claimed mental condition.
HELD- The defendant failed to establish that she was suffering from a mental condition; HELD- Even if the defendant was suffering from the mental condition claimed in all the circumstances the Settlement Agreement was not unjust within the meaning of s.9 of the Act.
HELD- Even if contrary to the above conclusions the Settlement Agreement was unjust within the meaning of the Act the Court would not exercise its discretion to set aside the contract- the plaintiffs had no knowledge of defendant’s condition-there was nothing harsh, unconscionable or unfair about Settlement Agreement and the defendant was throughout the process of negotiation and settlement legally represented.
Legislation Cited: Contracts Review Act 1980 (NSW)
Civil Procedure Act 2005 (NSW)
Cases Cited: Antonovic v Volker (1986) 7 NSWLR 151
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6
Beneficial Finance Corp Ltd v Karavas (1991) 23 NSWLR 256
Citicorp Australia Ltd v O'Brien (1996) 40 NSWLR 398
Dimarti v Dimarti [2015] NSWSC 97
Elders Rural Finance Ltd v Smith (1996) 41 NSWLR 296
Elkofairi v Permanent Trustee Co Ltd [2002] NSWCA 413; (2002) 11 BPR 20,841
Mbuzi v AGL Retail Energy Ltd [2016] FCA 590 at [31]
Nguyen v Taylor (1992) 27 NSWLR 48
Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41; (2005) 14 BPR 26,639
Riz v Perpetual Trustee Australia Limited [2007] NSWSC 1153; (2007) ANZ ConvR 615
Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell [2011] NSWCA 389; (2011) 15 BPR 29,699
West v AGC (Advances) Ltd (1986) 5 NSWLR 610
Texts Cited: Covell & Lupton’s Principles of Remedies (6th edition, Lexis Nexis 2015)
Category: Principal judgment
Parties: William Tomac (1st Plaintiff)
Valnea Tomac (2nd Plaintiff)
Antonia Elsa Papp (Defendant)
Representation:
Counsel:
L. Ellison SC, A. Gibbons (Plaintiffs)
B. Levet (Defendant)
Solicitors:
Janice Williams Solicitor (Plaintiffs)
Kinghan & Associates Lawyers (Defendant)

File Number(s): 2015/194100; 2014/266843
Publication restriction: Nil

Judgment

These proceedings relate to the Estate of Mr Tomo Tomac who died on 5 July 2014 aged 86 years of age (“the Testator”). He left an estate worth approximately $1.7 million made up almost entirely by the value of the Ashfield house in which he lived.
The Testator made a will dated 11 March 2009 (“the 2009 Will”) and another will later dated 12 August 2011 (“the 2011 Will”).
The plaintiffs, William and Valnea Tomac, are two of the three children of the Testator. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWSC 1472
Decision Date: 30 September 2016

CaseChat Overview and Summary

William Tomac sought relief from the Supreme Court of New South Wales in relation to a Settlement Agreement that he had entered into with Antonia Elsa Papp. The defendant sought to have the Settlement Agreement set aside on the basis that she was suffering from a mental condition at the time of entering into the contract. The court was tasked with determining whether the defendant had established that she was suffering from a mental condition and whether the Settlement Agreement was unjust within the meaning of the Contracts Review Act 1980 (NSW). The court found that the defendant had failed to establish that she was suffering from a mental condition and that even if she had, the Settlement Agreement was not unjust within the meaning of the Act. The court further found that even if the Settlement Agreement was unjust, it would not exercise its discretion to set it aside given the circumstances of the case. The plaintiffs had no knowledge of the defendant's condition, there was nothing harsh, unconscionable or unfair about the Settlement Agreement and the defendant was legally represented throughout the negotiation and settlement process.

The court considered the evidence presented by the defendant and found that it was insufficient to establish that she was suffering from a mental condition. The court also found that even if the defendant was suffering from a mental condition, the Settlement Agreement was not unjust within the meaning of the Act. The court noted that the Settlement Agreement was negotiated between two parties with legal representation and that the terms of the agreement were not unfair or unreasonable. The court also found that the plaintiffs had no knowledge of the defendant's condition and that there was nothing harsh, unconscionable or unfair about the Settlement Agreement.

The court concluded that even if the Settlement Agreement was unjust, it would not exercise its discretion to set it aside. The court found that the defendant was legally represented throughout the negotiation and settlement process and that the plaintiffs had no knowledge of the defendant's condition. The court further found that the Settlement Agreement was not harsh, unconscionable or unfair and that the defendant had not established any grounds for setting aside the agreement. The court dismissed the defendant's claim and ordered that the Settlement Agreement remain in effect.

Orders