William Tomac & Anor v Antonia Elsa Papp; The Estate of Tomo Tomac [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)