Ana Lulic v Denise Lulic

District Court of NSW|2015-12-11

Judgment

By Statement of Claim filed on 18 March 2015, the plaintiff claims monies owed by the defendant pursuant to a deed dated 3 June 2013, in an agreed sum of $325,000.00.
By an Amended Defence the defendant seeks an order pursuant to s 7 of the Contracts Review Act 1980 (NSW) ("CRA") that the deed was unjust in the circumstances relating to it at the time it was made. The defendant has pleaded that the court should exercise its discretion and refuse to enforce any or all of the provisions of the deed. Thus, the parties agreed that the issues to be determined by the court are as follows: 1. "Whether the deed, signed on 03 June 13, or any provision of the deed was unjust in the circumstances relating to the contract at the time it was made. 2. Whether the court should exercise its discretion and refuse to enforce any or all of the provisions of the contract. 3. Whether the contract should be declared void in whole or in part. 4. Whether the court should make an order varying, in whole or in part, any provision of the contract; and 5. Whether the plaintiff had any moral or legal claim against the estate of the late Roni Lulic."
By [13] of her Amended Defence, the defendant alleges that the plaintiff is in breach of the terms of the deed in that, contrary to cl 3 thereof, the plaintiff made claims against a superannuation policy held by the deceased on 26 November 2014 and that this breach represents a fundamental breach of the deed. That pleading was not pursued by Counsel for the defendant at the hearing and no submissions were made in relation to it. The matter therefore falls to be determined within the defendant's reliance on the CRA.

Background to the plaintiff's claim

The following summary represents my findings of fact based on the evidence, unless stated otherwise. They are largely uncontroversial. On 16 April 2010, the defendant married Roni Lulic, the son of the plaintiff. The plaintiff was born in Croatia but had lived in Germany for many years with her extended family. Roni was her only son and they were close.
The defendant and Roni lived in Sydney and Roni had purchased a home for them with some financial assistance from his mother. On 15 July 2010, the defendant gave birth to her son, Lenny.
Sadly, in May 2011, Roni was diagnosed with cancer and he died on 13 November 2012. During his illness, the plaintiff visited the couple in Sydney in November 2011 for three months, returning in September 2012.
Before his marriage to the defendant, Roni, in 2008, made a will which had left his estate to his mother. That will became invalid upon his marriage to the defendant, and on 20 March 2013, she applied for Letters of Administration of his estate, which were granted to her on 26 April 2013.
On or about 5 May 2013, the plaintiff informed the defendant that she was to visit the defendant and Lenny in Sydney and stay for a period of five weeks. The purpose of her visit was very much in issue in the proceedings, the defendant claiming that the sole purpose was to acquire a substantial part of Roni's estate from the defendant.
The Letters of Administration listed the assets in the estate. They included an AMP superannuation policy of $500,000.00 and a refund on contributions from a REST superannuation fund of a little over $11,000.00.
What the Letters of Administration statement of assets did not disclose was that Roni was entitled to a term life insurance benefit pursuant to the REST superannuation policy of an undisclosed amount. The solicitor acting on behalf of the estate, Mr Wayne Lodge, was informed of this benefit by letter from REST in December 2012. The defendant denied any knowledge of it until May 2013, when she was advised of it by a financial planner she had employed, Mr James Fraser. The existence of that insurance benefit loomed large in the proceedings, as the defendant was not informed of it prior to signing a deed on 3 June 2013. All other assets in the estate were disclosed to her.
The defendant claims that the plaintiff exerted enormous emotional pressure and stress on her as follows: 1. On the occasions when the plaintiff visited before Roni died in November 2012, being at all times critical of her. 2. By exerting pressure on her, following Roni's death, to persuade her to agree to having Roni buried in Croatia in a family burial plot, and to otherwise ignore the defendant's needs or wishes. 3. By not allowing the defendant to visit that plot on her last day in Croatia before travelling to Germany with the plaintiff. 4. In Germany, by controlling the defendant and Lenny's activities. 5. Following the defendant's return to Australia with Lenny, by daily phone calls and insistence upon being informed of the financial position of the estate. 6. Upon her arrival in Australia in May 2013, by applying enormous emotional pressure on the defendant to disclose the assets in the estate and, ultimately, demand that she be paid a substantial amount of money.
The defendant alleges that the plaintiff demanded the proceeds of the AMP insurance policy of $500,000.00. The defendant's case is that by a process of negotiation, she had the plaintiff agree to receiving a lesser sum of $335,000.00, after the defendant had deducted from those insurance monies $100,000.00 that she had borrowed from her sister to pay for the funeral and other expenses, and re-payment of the mortgage owing on the matrimonial home of $65,000.00. That resulted in an amount of $335,000.00, of which the defendant paid the plaintiff $10,000.00 in cash prior to her return to Germany. Those discussions took place in the last week of May 2013, following which, the defendant, on 29 May 2013, proffered to the plaintiff a handwritten note evidencing her agreement to pay the plaintiff the sum of $335,000.00. The defendant asserts that the plaintiff insisted that the agreement be formalised with a solicitor and that that led the defendant to instruct Mr Lodge, who had been acting on behalf of the estate (and had previously been Roni Lulic's solicitor), to draft an appropriate agreement.
Those instructions were given on 28 May 2013, and on 29 May 2013 Mr Lodge forwarded to the defendant by email, a draft Deed of Family Arrangement. The defendant, on the same day, sent a number of emails to Mr Lodge with amendments to the deed. On the same day, Mr Lodge sent a letter addressed to the plaintiff by email to the defendant, urging the plaintiff to obtain independent legal advice and attaching an inventory of assets, which included no mention of the REST insurance benefit. On the defendant's case, the two women agreed on that evening to the terms of the deed and the plaintiff agreed to pay the legal costs involved. On 31 May 2013, an arrangement was made for the parties to attend the office of Mr Lodge, on 3 June 2013, for the purpose of executing the deed. The plaintiff declined the opportunity to obtain independent legal advice in relation to the deed. On 3 June 2013, at the solicitor's office, the deed was translated by the defendant for the plaintiff before she signed it.

The Deed

The deed signed by the parties was headed "Deed of Release". It provided as follows: "RECITALS A. Roni Lulic ("the Deceased") died on 13th November 2012 intestate. B. Denise Lulic is the widow of the deceased and as wife of the deceased is entitled by law to the entire estate. C. Ana Lulic is the mother of the deceased. D. Annexed hereto is a copy of the Letters of Administration granted to Denise Lulic. E. Notwithstanding that Denise Lulic as the wife of the deceased is entitled to the entire estate, Denise Lulic as administrator had agreed to alter the distribution of the estate as hereinafter provided. IT IS AGREED AS FOLLOWS 1. Denise Lulic shall to pay to Ana Lulic from the Estate the sum of $335,000.00 (Australian dollars) in full and complete satisfaction of any claim that Ana Lulic may have against the Estate of the deceased. 2. The said sum is to be paid as soon as funds are available but not later than 6 months from the date hereof. 3. Ana Lulic agrees not to make any further claims whatsoever against the Estate. 4. Each party has had the opportunity before executing this deed to seek separate and independent legal advice as to the effect the execution of this Deed will have upon that party's right and obligations. 5. Subject to clause 1 - Ana Lulic agrees that the provisions herein may be pleaded as a bar and complete defence to any claim commenced by her against the Estate or Denise Lulic. 6. This Deed contains the entire agreement between the parties with respect to the subject matter of this Deed. 7. The laws of New South Wales apply to this Deed."
The deed was dated 3 June 2013, signed by both parties and witnessed by Mr Lodge.

The defendant's evidence

The defendant affirmed two affidavits, the first on 31 August 2015. She was born on 14 June 1977 in Germany. She met her future husband, Roni Lulic, in 2004 at his sister's wedding, and commenced a relationship, notwithstanding that, at the time, Roni lived in Sydney. He returned to Germany in 2005, and in March 2006 the defendant came to Australia for a three week holiday. In April 2007, the defendant moved to Australia, having taken leave without pay from her job in the finance department in the German courts. Upon her arrival, the couple commenced looking for suitable accommodation and eventually Roni purchased a property at Kirrawee, albeit with some financial assistance from the plaintiff. For a time, the defendant acted as homemaker, but eventually in October 2007, she secured a casual job as a packer. In January 2008, the defendant moved to a clerical job with the same company, where she worked until September 2014.
Roni had looked after all of the financial aspects of the purchase of their home. Although they had a joint bank account, they also had separate accounts and Roni was responsible for payment of the rates and mortgage on the property. Roni was a financial controller for a corporation in Sydney, however, his financial circumstances were not known to the defendant at any time up until his death.
The defendant deposed that the plaintiff came to visit in December 2010, and returned to Germany at the beginning of March 2011. The defendant stated that the plaintiff "provided valuable help during this time with babysitting and caring for Lenny, which allowed her to continue to work". However, the defendant also deposed that she had the sense that the plaintiff was judging her as both wife and mother. She felt constantly watched, and was criticised for doing things "the wrong way", which was any way "that was not her way of doing things".
The defendant deposed that her husband and the plaintiff had a very close relationship and they spoke frequently on the telephone. Because her husband tended to side with his mother whenever any issue arose, the defendant deposed that it was easier for her to accept what the plaintiff said rather than to resist or argue, and thereby create bigger problems. She therefore felt uncomfortable whenever the plaintiff was staying with them.
The defendant also outlined in detail the history of her husband's illness and untimely death.
In early 2012, the plaintiff visited the defendant and her husband in Sydney. Upon returning to Germany later that year, the plaintiff organised for the defendant's parents to come and stay with them. The defendant deposed: "Again, although I was quite happy for my parents to come and stay, Ana did not ask if this was okay or consult with me about my needs of wishes. She simply made the arrangements and then told us what she had done."
Later in September 2012, the plaintiff returned to Australia and lived with the defendant and Roni for two months. During that time, Roni was hospitalised and the defendant deposed that the plaintiff did not cope with her son's deteriorating state of health. She deposed: "She was very agitated during this time and would frequently lash out at me. She would say things to me like 'you should know that the apple slices go in the fridge'."
The defendant at that time felt under a lot of pressure. She wanted to spend time with her husband in hospital, but also had to work and look after her young son, as well as transport the plaintiff to the hospital to allow her to spend time with her son. Each night after dinner, she would return to the hospital where she stayed until about midnight. She felt obliged to return home because the plaintiff had told her, "I'm scared on my own at home. You have to come home tonight."
The defendant felt very unhappy, and described feeling like she was a prisoner in her own home.
About ten days before Roni's death, the defendant deposed that the plaintiff had said to her: "When Roni dies I won't be paying for the funeral, that's your job, you're the wife."
On the day he died, the defendant had rung the plaintiff from the hospital and said: "Roni is still unconscious. I cannot go to work today. I want to stay by his bedside." The plaintiff replied: "You go to work. Roni always wanted you to work. My sister Maria will come and stay with Roni."
The defendant deposed that she did what the plaintiff told her to do, and went to work. During the day she received a phone call from the doctor asking her to come to the hospital as soon as possible, but by the time she arrived there, her husband had died. She deposed: "I had only missed him by a few minutes but the guilt and shame I feel that I had left his side, in his final hours alive; to go to work hit me immediately. To this day I cannot forgive myself for breaking the promise I made to Roni that I would not leave his side. I am disappointed with myself that I gave into Ana and went to work."
On the following day, a meeting was held at the defendant's home to discuss the funeral arrangements. Present at the time were seven members of Roni's extended family and the defendant deposed that the plaintiff and her family took over the meeting, making the majority of the decisions. The defendant felt isolated and alone and was shown no emotional support by the plaintiff. The defendant was left with the impression that she was "just the wife".
The defendant deposed that her voice was not heard on several issues including the choice of coffin, and the decision to take Roni's body to Croatia for burial. The plaintiff had ties in Croatia, owned a property there, and there was a burial plot partly occupied by Roni's father. The defendant deposed that the plaintiff would say things like "it's Roni's wish to be buried with his father".
The defendant described a change in the plaintiff's attitude towards her immediately following her husband's death. The defendant deposed that the plaintiff: "Became cruel and even more demanding than before. She would bark orders to me and I was expected to simply do what she told me to. I did not feel like I had the strength to resist her and I just did what I was told."
Shortly after Roni's death, the defendant attended a meeting with Roni's solicitor, Mr Lodge. She had met him once before socially. At the meeting, Mr Lodge advised her that the will previously made by Roni was not valid and that she, the defendant, was entitled to everything, and that his mother was entitled to nothing from the estate.
Following that meeting, the defendant deposed that the plaintiff was very angry with her. When the defendant told the plaintiff about Mr Lodge's advice, she deposed: "At this, Ana got up off the sofa she'd been laying on and began to parade around the room, pretending to be me. She was puffing herself up, and making a gesture with her hand as though she was wiping something from her clothes and she started to say, 'Now you are the richest lady in the town'."
The defendant deposed that the plaintiff said to her: "We will share the estate between me, Suzy, Lenny and you."
The defendant had known that Roni had discussed major financial decisions with his mother before he made them, and that he never discussed those matters with her.
Following the funeral, the plaintiff, the defendant and her son, flew with Roni's body to Croatia, where he was buried next to his father. A service was conducted entirely in Croatian, a language that the defendant did not speak or understand. She deposed that no effort was made to ensure that, even if only in part, she and her son were able to understand what was being said.
The defendant had borrowed money from her sister to pay for the funeral expenses and travel. Before she drove back to Germany from Croatia on 20 November 2012, the defendant said to the plaintiff: "I will go back to the grave with Lenny so we can say goodbye." The plaintiff said: "No. In my culture you must let the body rest for four weeks or something bad will happen."
Again, the defendant deposed that she did what she was told, leaving without saying goodbye to her husband.
The defendant deposed that she and her son stayed for seven weeks in Germany with the plaintiff. During that time, the plaintiff was very controlling and would not let her spend time with, or speak with, her family.
Whilst in Germany, the defendant applied for a German widow's pension. She deposed that the plaintiff approached her and said: "It has been five weeks now since Roni died. Why haven't you spoken to me about how we are going to share the estate? I told you that we share. You, me, Suzy and Lenny."
The defendant described the pressure that she felt at that moment as "unbearable". She did not feel strong enough to say no to the plaintiff and felt like a prisoner. She had no idea what her financial position would be and did not know if she would be in a position to take care of Lenny, let alone share anything with the plaintiff and her sister-in-law.
The defendant deposed that the plaintiff told her to go back to Australia and sell everything, whilst Lenny would stay in Germany with her. However, the defendant decided to return to Australia and settle there, whatever her financial position might be.
Before she left Germany, the defendant was called by her brother-in-law, Suzy's husband, Axel. In that conversation he said to her: "Denise you know how much Ana hates someone who wastes money. Make sure everything goes the right way." He also said: "If you need help negotiating, I am here."
On 14 January 2013, the defendant and Lenny returned to Australia. She felt that for the first time she had time to grieve, and to reflect and think. She deposed that the plaintiff called her every day and would ask things like, "Where did you go today? Who did you see?"
The defendant deposed that during February and March 2013 the plaintiff continued to call her every day. She felt trapped in her own home and every time the phone rang she felt "sick, scared and panicked". On one occasion the plaintiff rang her and said to her "Come back to Germany so you can live with me", to which she replied, "I'm not ready yet". The plaintiff also asked the defendant for the proceeds of sale of Roni's car. She also said: "Your home is not yours. The house belongs to me and Roni. I don't care where you are buried, but I know that I'll be buried in the family grave."
The defendant deposed that those comments really upset her and that the following day, when the plaintiff called, the defendant said to her "What you said yesterday really upset me".
The defendant deposed that on or about 26 April 2013, Mr Lodge emailed her the Letters of Administration. This caused her to be in a state of panic as she was feeling anxious about the conversation she knew that she would have to have with the plaintiff, and it made her physically sick to think about it.
On 5 May 2013, the plaintiff telephoned her and said, "Do you have any news?"
The defendant responded that there was no news, The defendant deposed that she was physically shaking as she feared that the plaintiff had heard or knew something. The plaintiff then informed her that she would be visiting for a period of five weeks. The defendant deposed that that night she was "vomiting all night and could not sleep".
Prior to the plaintiff's arrival, the defendant collected all paperwork and correspondence in the house relating to Roni's finances and took them to her office. She also hid the key to his briefcase, which had approximately 500 Euros inside it. The plaintiff asked her for that money, however, the defendant did not respond to her request and did not give her the money.
The plaintiff arrived in Sydney on 12 May 2013. On 16 May 2013, the defendant showed the plaintiff the Letters of Administration. The defendant deposed that the plaintiff then said to her, "I knew you were hiding things from me", to which the defendant responded, "No, I have many other things I have to do as well".
The plaintiff then said: "You transfer to me $450,000.00 now and give me Roni's i-phone and laptop." The plaintiff also said: "You can go to work, you get help from Centrelink and you have your parents. You will be fine. But Roni's cousins are not in such a good position as you. I had to work all my life and you can do the same." The defendant said: "I can't give you that much money." The plaintiff said: "The house and $100,000.00 is more than enough for you. So you give to me $400,000.00 or you can transfer the house into my name."
The defendant said she was shocked at this conversation, but later said to the plaintiff: "I can't give you that much money. This is Lenny's money for his education. He is only two and a half. I can't give you that much money." The plaintiff then said: "You give me $350,000.00 immediately, I can stay longer and wait for the money to come through."
The defendant deposed that over the next few days there were three separate occasions when she said to the plaintiff: "I can't give you that much money." The plaintiff would say: "I give you my bank account details and you transfer the money to me. If you do not give me the money, I will take Lenny away from you." The plaintiff also said on one occasion: "If you do not give me the money I'll run down the street naked and wait for a car to hit me."
A week later, the plaintiff said to the defendant: "How do I know if you transfer the money to me? Ring Wayne Lodge to make the agreement. These sorts of things need to be through the lawyers."
At that time, the defendant deposed that she had still not agreed to give the plaintiff any money, but that it was clear to her that the plaintiff would not take no for an answer.
The defendant then telephoned Mr Lodge and said: "I have to give Ana $350,000.00 and it has to be in writing." Mr Lodge said: "I will draft a document and once I have finished, I will call you."
The defendant deposed that around 31 May 2013, Mr Lodge sent a draft Deed of Family Arrangement to her, which she read to the plaintiff. She deposed: "I was so ashamed by Ana's bullying and my inability to stand up for myself, that I did not tell anyone in my family about what was happening at that time. I just wanted to get her out of hair and hopefully out of my life."
The defendant deposed that around this time her financial planner, Mr Fraser, had also found out about a life insurance policy that Roni had taken out before his death.
The defendant deposed that on 3 June 2013, she and the plaintiff attended the office of Mr Lodge. She stated: "Mr Lodge did not explain or go through the document, but showed us each where to sign our names and he then witnessed our signatures. Ana and I were in the room together the whole time, there was no opportunity to express any concerns or reservations to the solicitor about the document or the arrangement, or generally."
The defendant then deposed: "I can say for certain that at no time did I ask for a deed to be drafted, as I had no idea what a deed was, or the legal effect of such a document, nor did Mr Lodge explain these things to me (or to Ana so far as I'm aware). No 'cooling off' period was discussed or advised by Mr Lodge, at this time, or at all during this process. I was uncomfortable the whole time I was in the office with Ana but did not feel as though I was given an opportunity, by Mr Lodge, to raise this with him before being asked to sign the document."
As to the period following the execution of the deed, when the plaintiff had returned to Germany, the defendant stated: "I was so concerned during this time that Ana or one of her family members would turn up to my home uninvited, that I had security cameras installed and the physical security of the property upgraded, including installing security windows and doors." The defendant annexed receipts for that work to the affidavit. "I never wanted to give Ana one third of my husband's estate, or anything near that amount, and only signed the deed because of the pressure that she, and her family, were putting on me at the time."
The defendant affirmed her second affidavit on 24 November 2015. That affidavit responded to the plaintiff's affidavit and an affidavit of Marina Gage. As that affidavit was not relied on by the plaintiff, that part of the defendant's affidavit is irrelevant.

Cross-examination of the defendant

In cross-examination, the defendant was asked about email correspondence she had with Mr Lodge on 22 November 2012. That email confirmed the solicitor's advice that the earlier will made by Roni was invalid. On 30 November 2012, she had emailed Mr Lodge in respect of the AMP superannuation monies. She accepted that there was nothing in that email relating any unhappiness she had with Ana. The defendant also agreed that she was able to complete the applications forms to obtain a German Widow's Pension on her own.
On 6 January 2013, the defendant sent an email to her neighbour. At the time she was in Germany and the email stated: "I'm always with somebody and I can feel so much pressure coming towards me." She also stated in the same email: "Baka's very sad." Baka was the name given to the plaintiff as grandmother of Lenny.
The defendant also conceded the following words in the email: "It's very sad and it'll be hard for us to see us leaving, but I have to look after me and Lenny first. Nobody can tell me in the future what to do. Whatever I do, they all have to accept and respect."
The defendant agreed that this reflected that she was going to do what she wanted to do from the time she left Germany.
The defendant agreed that she had, by 6 February 2013, some idea of what assets were in the estate. That included the house valued at $750,000.00, the AMP death benefit of $500,000.00 and the REST Industry Superannuation refund of $11,000.00.
The defendant had met her late husband's accountant, Mr Matt Bell, who introduced her to a financial planner, Mr James Fraser. Mr Fraser had found out that the REST benefit also included an insurance benefit. When asked whether she was told how much that life insurance policy paid out, the defendant answered: "I was scared to find out." When asked why, she gave this evidence: "I was scared to find out because I experienced the pressure from Ana and I was - if she would find out that there is more money coming in, I was scared she would take the money as well; that's why I was scared."
The defendant denied being curious to know how much the insurance benefit was.
The defendant was the applicant for Letters of Administration. She felt that she was able to act as administrator of the estate, and agreed that she did not tell Mr Lodge that she did not think she could cope with that responsibility. She agreed that the inventory of property attached to the Letters of Administration said nothing about the REST insurance policy.
The defendant was cross-examined on an email she wrote to Mr Lodge on 28 May 2013. That email attached a short note which read: "Hi, Denise Lulic is going to transfer Ana Lulic the amount of $335,000.00 … It will be signed from both parties."
The defendant accepted that she must have spoken to Mr Lodge before she sent that document by email. She agreed that she wrote: "As soon as the money comes in, I will transfer Ana Lulic $335,000.00." That money was to come from the AMP super fund. In the email, the defendant also agreed that she wrote: "And please do not mention anything else. We will get it done after she left."
The defendant gave evidence that she was worried about the REST insurance money and that she did not want Ana to find out that there was insurance money coming through. She gave this evidence: "Q: You instructed your solicitor to keep that away from her? A: I was scared. Q: You were scared that she would ask for it? A: She would want the money. Q: By that stage you knew that the insurance benefit was to be paid to Ana, she was the nominated beneficiary? A: I can't remember. Q: I suggest you knew that at that stage Ana was the beneficiary under the insurance policy, correct? A: I honestly can't remember what. Q: You didn't think you were going to get the money, did you? A: I can't. Q: I suggest to you, you knew at that stage that Ana was the nominated beneficiary under the REST insurance policy? A: Honestly I can't remember. … Q: You were concerned to make sure that Mr Lodge said nothing that might cause Ana to make a claim to the insurance proceeds? A: Yes, she would have wanted the money, more money, money from this insurance as well."
The defendant was challenged as to the conversation she deposed to whereby the plaintiff asked for payment of $350,000.00. She was also challenged on the evidence she deposed to, namely, that the plaintiff had said to her, "If you don't give me the money, I will take Lenny away from you." It was put to her that those words were not spoken, but the defendant denied that. When asked how the plaintiff was going to take Lenny away from her, she answered, "She would have found a way". She was asked: "Q: How do you think Ana was going to remove your two year old child living with you in Australia, remove that child to Germany? A: She manipulated me so much. Q: It's preposterous, isn't it? A: No."
The defendant was also challenged about her evidence that the plaintiff had threatened to run naked onto the street and wait for a car to hit her.
The defendant denied that it was always her idea to get a document prepared by Mr Lodge. As to her conversation with Mr Lodge, she was asked: "Q: Seems strange, does it not, Mrs Lulic, for your solicitor not to ask any questions about why you need to give her money? Why you feel you have to give the money? Do you agree? A: Wayne Lodge roughly knew that I sensed danger. Q: How did he know that you sensed danger? A: Because when I got the Letter of Administration, I, I was afraid to, to receive this letter because Roni's mother always said, 'You tell me everything and you don't hide anything from me', and, and I was saying to Wayne, to Wayne Lodge, I, I didn't want the day to come so now I have to show this to Roni's mother. And, and I put it off and I put it off, and I didn't want to tell her on the phone because I was scared. And then she told me she was coming and once she arrived a few days later, I told - I, I showed her the letter. But I felt very uncomfortable and scared."
The defendant could not remember how she told Mr Lodge that she was scared of the plaintiff.
The defendant gave evidence that Mr Lodge was responsible for inserting the clause in the deed that Ana wouldn't make any further claims on the estate. She gave evidence that all she told Mr Lodge was that she had to pay Ana $350,000.00 and it had to be in writing. She had no involvement in that document. However, she agreed that she printed out the first draft which was headed 'Deed of Family Arrangement' and read it to the plaintiff. When they agreed to reduce the figure from $350,000.00 to $335,000.00, she gave evidence that she must have contacted Mr Lodge with that change. The defendant agreed that in paragraph 148 of her affidavit she had stated that there were no discussions with Mr Lodge, however, she agreed that there were conversations in which the amount in the deed was reduced, but she could not remember those conversations. She gave evidence that it was Mr Lodge who decided that the payment would be made within six months of the date of the deed, and she denied giving him any instructions about that.
The defendant agreed that on 29 May 2013, she had sent an email to Mr Lodge, having checked his draft document and corrected a spelling mistake. She agreed that she did not write in the email, "By the way Wayne, I'm under so much pressure from her to pay this money I don't know what to do".
Nor did she tell her solicitor that she was unhappy with the document.
The defendant agreed that there was probably some discussion between her and Mr Lodge between the two emails in which she confirmed the transaction was progressing. She agreed that on 29 May 2012 she was spending quite a lot of time studying the draft deed and that she wanted to ensure that the agreement was correct.
The defendant agreed that in outlining her evidence concerning the deed, she wanted the court to believe that she had no involvement in the drafting of the deed.
However, the defendant did not agree that her affidavit evidence as to the execution of the deed was misleading to the court.
Prior to signing the deed, the defendant agreed that Mr Lodge had advised the plaintiff to obtain independent legal advice. The defendant also denied that she wanted to make sure that the document the plaintiff signed would prevent her from making a claim on the insurance money. She understood that that was what clause 3 provided for in the deed. She gave this evidence: "Q: You wanted to stop her from making a claim to the insurance money, correct? A: I didn't think at the time. Q: Are you telling his Honour that you didn't appreciate when you got this deed, that if Ana signed it, she would not be able to make a claim for the insurance money? A: Yes."
The defendant agreed that there was no reference to the insurance money in the inventory of property provided to the plaintiff. She did not agree that Mr Lodge had followed her instructions of keeping the existence of the insurance money away from the plaintiff, as follows: "Q: You kept the existence of the insurance money away from Ana's knowledge, correct? A: I can't answer this question." The defendant conceded that she in fact did keep it from her. She did so because she was scared.
The defendant agreed that she wrote back to Mr Lodge on 29 May 2013 thanking him for the letter and advising that she had showed it to the plaintiff and they were agreed. The defendant also agreed that Mr Lodge was acting in her best interests as far as she understood, not the plaintiff's, and that there was no pressure demonstrated in any of her emails to Mr Lodge. Nor did any of those emails suggest that there was any rush on her part to get the deed signed. When it was put to the defendant that the tone of her letter was quite relaxed, as to when she would come and see Mr Lodge, her answer was: "I did what I've been told."
The defendant also agreed that she was concerned that Mr Lodge might say something to the plaintiff about the insurance money. Ten days after the deed was signed, on 13 June 2013, the defendant sent an email to Mr Lodge saying "I'll call you next week for an appointment to sign the paperwork", which she acknowledged was to start the REST super claim. She was asked: "Q: Because now that you had Ana's signature on the deed, she couldn't make a claim for that money could she? A: True, yes. Q: Now you're able to pursue the claim against REST, correct? A: Yes."
The defendant was cross-examined about several significant changes to her defence to the plaintiff's claim. They were contained in the Amended Defence. The defendant ultimately acknowledged that the amendments were made because she became aware that the file of Mr Lodge had been subpoenaed for the purpose of the proceedings. The relevant amendments were as follows:

Paragraph 10i - which provided that the deed was prepared by solicitor, Wayne Lodge from Wayne Lodge & Associates on the instructions of the defendant, whereas the original defence had pleaded that the deed was prepared by Mr Lodge on instructions of the plaintiff, and without reference to the defendant.
Paragraph 10j - provided that the defendant gave these instructions to the solicitor by telephone at the insistence of the plaintiff at a time when the plaintiff was physically present in the defendant's house.
Paragraph 10k - provided that the solicitor witnessed the signatures of both the plaintiff and the defendant on 3 June 2013 at his office, whereas previously, it had pleaded that the solicitor purported to act on behalf of both the plaintiff and the defendant.
Paragraph 10l - was deleted. It had previously provided that the solicitor did not provide independent legal advice to the defendant with respect to her position under the Act or at all, and did not advise the defendant to get any such advice.
Paragraph 10m - was deleted. It previously provided that the defendant was not provided with an opportunity to seek independent legal advice in respect of the agreement prior to her signing the deed.

It was put to the defendant that the change to paragraph 10i, meant that the original pleading was false. The defendant's explanation was that it was due to a misunderstanding between her legal team and herself. She accepted that the original defence was wrong, but when questioned about the words "without reference to the defendant", appearing in the original defence, she refused to answer and eventually said she was instructed by the plaintiff to ring the solicitor and get the deed organised.
In respect of paragraph 10k, the defendant accepted that Mr Lodge was acting on her behalf and that he made that very clear in his letter to the plaintiff. The defendant agreed that he was not acting for both the plaintiff and herself. This was another misunderstanding with her solicitors.
The original pleading in paragraph 10l was also a mistake according to the defendant, because the solicitor did give her advice about the will in November 2012 and had sent her a letter confirming that advice.
In paragraph 10n of her Amended Defence, the defendant pleaded that the advice provided to her by her solicitor, to the effect that the plaintiff would have no claim under the Act, was "provided at a time when the defendant was distressed and emotional, and before the plaintiff had commenced applying pressure on her for payment out of the deceased estate". The defendant accepted that what she had originally verified in her original defence to be true, was wrong.
The defendant was also asked about her understanding of the deed. She agreed that she understood what was in the deed, but did not understand what would happen if the deed was signed. She gave this evidence: "Q: Did you not understand that when you signed the deed you were making a promise to Ana to pay her $335,000.00? A: I was heavily grieving at the time. Q: Did you not understand that if you signed the deed you would be making a promise to Ana to pay $335,000.00? A: No. Q: You didn't know that? A: I was heavily grieving and Wayne Lodge didn't advise me about the consequences if I signed this deed at this time in June 2013. Q: Are you seriously saying to his Honour that when you signed the deed you didn't know you were making a promise to pay Ana $335,000.00? A: I was under unbearable pressure, I was stressed … Q: You are saying to his Honour that you didn't understand that? A: Yes. Q: When did you come to understand that you had made a promise to Ana to pay her $335,000.00? A: As soon as I signed. Q: The moment you signed it you knew? A: Yes. Q: You knew it before you signed the deed, didn't you? A: The pressure was unbearable. I couldn't stand the pressure any more. Q: Let's leave the pressure aside for the moment. I'm only trying to understand what you knew and understood when you signed the document. Do you accept that you knew when you signed the deed that you are going to have to pay Ana $335,000.00? A: Yes. Q: So what you said just now to his Honour wasn't true, was it? A: I was under so much pressure and stress and heavily grieving, I didn't know what our future would hold. It was a terrible time."

Other evidence relied on by the defendant

The defendant relied on an affidavit of Mr James Fraser, affirmed on 3 September 2015, which was read subject to a direction pursuant to s 136 of the Evidence Act 1995 (NSW) ("Evidence Act") (pars 7, 8, 11, 13, 14, 17 and the last sentence in par 10). Paragraphs 19-24 of the affidavit were struck out by consent. Mr Fraser was the financial planner whom the defendant consulted in April 2013. He deposed that the defendant had sent him a draft copy of the Deed of Release, prepared by Mr Wayne Lodge, solicitor. Mr Fraser deposed that he gave the defendant advice that she must not sign the deed. Mr Fraser deposed that the defendant was distressed at the time of this advice and that he had advised her that she should ensure that the deed provided sufficient time for her to make the payment required.
In cross-examination, Mr Fraser confirmed that the defendant had spoken to him in May 2013 and advised that the plaintiff was staying with her and had seen the Letters of Administration. In that conversation, the defendant had said, referring to the plaintiff, "She's dancing around the house telling me I'm the richest lady." Mr Fraser agreed that that did not happen in November 2012.
Mr Fraser confirmed that he had advised the defendant to go and see the police if she felt scared. Mr Fraser also gave evidence of attending the office of Mr Lodge and Mr Lodge saying to him, "Denise shouldn't be paying her anything. Ana's not entitled to everything."
Mr Fraser was also cross-examined on his evidence that the defendant had installed approximately $15,000.00 worth of security equipment in her home, as a result of her fear of the plaintiff. Annexed to his affidavit were receipts for this work for items purchased in November 2014, almost one and a half years after the deed was executed.
The defendant also relied on the evidence of Ms Kristina Horvatovic, a friend, who affirmed an affidavit on 31 August 2015 which was admitted without objection. She deposed as to certain conversations that took place at the wake following Roni's funeral on 20 November 2012, in which the plaintiff had said to another relative, "Who will sell all of Denise's belongings while she is in Germany? House and all the furniture, pots and pans and cutlery sets."
Mrs Horvatovic also deposed to a conversation in May 2013 when the plaintiff asked her what government assistance the defendant would be receiving. In cross-examination, Mrs Horvatovic agreed that she worked for Centrelink but denied ever advising the defendant to ensure she had no money in her bank account so as to qualify for government benefits. She denied making up conversations set out in her affidavit and denied that she was there to support the defendant.
The defendant also relied on an affidavit of Ms Sherie Sayers affirmed on 3 September 2015. Ms Sayers was not required for cross-examination. Ms Sayers' evidence concerned conversations she had as to the defendant's belief and the plaintiff's motivation to obtain money from her. The evidence of those conversations was subject to a direction pursuant to s 136 of the Evidence Act.

The plaintiff's evidence

The plaintiff, who was a resident of Germany, gave evidence with the assistance of a Croatian translator. She had sworn two affidavits in the proceeding on 23 July 2015 and on 17 November 2015. In short, she relied on the Deed of Release signed on 3 June 2013. She deposed to the family history and her close relationship with her son, Roni. She deposed that she never intended to criticise the defendant or make her feel that she was being judged, nor did she intend to interfere in the marriage of her son and the defendant. On the contrary, the plaintiff deposed that she "always praised" the defendant and never told her what to do, as the defendant was always organised.
The plaintiff deposed that it was the defendant who offered to pay her the insurance money, less the money that she had borrowed from her sister and the house mortgage. On 29 May 2013, she deposed that she and the defendant had reached an agreement about payment of the insurance monies to her and that on that occasion the defendant had given her a handwritten document written in German confirming the debt of $335,000.00. The plaintiff said to the defendant, "Fine, but this is not a contract and it doesn't mean anything for me. Why are you giving me this?"
The plaintiff deposed that the defendant called Mr Lodge and asked him to draw up a contract, which the defendant translated for her. She did not obtain independant legal advice, but the defendant had suggested that her sister could join them at the solicitor's office. The plaintiff declined that offer and an appointment was made for 3 June 2013 for the plaintiff and defendant to attend the solicitor's office. She understood that the solicitor advised her, as translated by the defendant, that "everyone can go to another lawyer", but they both signed the document after the solicitor read it out loud and the defendant translated it for her.
It was the plaintiff's belief that there was no animosity between her and the defendant. She left Australia on 18 June 2013.
In cross-examination, the plaintiff denied that she had considered her relationship with Roni more important than his relationship with the defendant. It was put to her that she considered the defendant to be "just the wife". The plaintiff replied, "she was everything to me".
The plaintiff was cross-examined on Roni's wish to be buried in Croatia. She had been told by two people that that was his wish.
The plaintiff was cross-examined on bank statements which had been produced concerning her financial position. They included superannuation payments on a loan from Deutsche Bank. It was put to the plaintiff that, as at 19 January 2015, she owed her son-in-law 25,000 Euros, however, it was her evidence that she owed that money to Deutsche Bank. Further questioning revealed that the loan was in fact a line of credit.
In her affidavit the plaintiff deposed that she had recently sold her home and was able to rent it back from the owners. Cross-examination revealed that in fact she had sold that home to her daughter. Her explanation was because she could not get a loan. The sale proceeds were used to fund in part an order that the plaintiff provide a $50,000.00 security for costs in the proceedings.
The plaintiff denied the proposition that she came to Australia in May 2013 for one purpose, namely, that she came "determined to secure from your daughter-in-law, a promise for money." She denied further that she thought that she was more deserving of her son's estate because she had helped him during his life, and further denied that she was more deserving because he left a will in which she was named and the defendant was not (as a beneficiary).
The plaintiff was cross-examined on the conversation she alleged took place on 13 May 2013. It was put to her that that conversation did not happen, which she denied.
The plaintiff was further cross-examined about the conversation she deposed to that took place on 29 May 2013, as set out above, and the handwritten note. She agreed that she was not happy with the note, but denied that she insisted on it being reduced to a legal document. She agreed that she wanted the document produced by a solicitor as she was going back to Germany soon. She agreed that she was concerned that the defendant was not going to honour what she had written in the handwritten document.
The plaintiff was cross-examined as follows: "Q: You considered yourself entitled to those monies didn't you? A: No. Q: At 29 May, when you were having this conversation with her, you considered yourself entitled, that is why you weren't happy with the handwritten note? A: No, she made a promise. Q: But it was a promise that you wanted reduced to a legal document? A: Yes, but she organised it. Q: What I'm suggesting to you is that you wanted it locked in that way because you saw this as your entitlement? A: I wanted it confirmed, but she organised it. Q: I'm suggesting to you that from the moment you arrived in this country on 12 May until 29 May you were constantly asking her for money? A: No. Q: I'm suggesting to you that you initially proposed more than the $335,000.00 didn't you? A: No. Q: You said to her, 'You've got a house, you'll be fine'? A: No. Q: I'm suggesting to you that you initially suggested to her that she pay you $400,000.00? A: No. Q: I'm suggesting to you that she was able to talk you down to a figure of $335,000.00? A: No. Q: She begged you, didn't she, to consider the position of her son, Lenny? A: No she didn't. Q: She begged you not to take from her this large amount of money? A: She didn't. Q: I'm suggesting to you that you were not prepared to consider these requests, her requests? A: No, she organised everything. Q: It was this reluctance on her part, this reluctance that forced you to believe or cause you to believe, that she wouldn't give you the money you were demanding? A: No. Q: In these discussions with her, at no stage did you ever raise the suggestion that you had made loans to your son, did you? A: She knew about that. Q: My question to you is whether or not you raised them as loans? A: No. Q: When you say she knew about the, she knew that you had given Roni money in the past? A: Yes, she knew about that. Q: But you'd never suggested to Roni that they were loans, had you? A: No. Q: The fact is that you gave your son money from time to time? A: Yes. Q: You understood that they were gifts? A: Yes. Q: What you did understand is that your son had made promises to you that in your old age he would look after you? A: Yes. Q: In the same way that you looked after your mother? A: Yes. Q: You believed that you would receive assistance from your son for the rest of your life? A: Yes I did."
The plaintiff went on to agree that losing her son was a big shock for her, however, she believed everything would be alright between her and the defendant. She agreed that when she lost her son she also lost some of her future financial security, but denied that she came to Australia wanting to protect her future. She denied telling the defendant that she was "the richest woman in town", and denied telling her that "she'd be fine". She agreed that the defendant translated the deed at the solicitor's office on 3 June 2013. The plaintiff also agreed that the defendant translated advice given by the solicitor to the effect that she seek independent legal advice. She stayed with Mr Lodge because she did not know where to find another solicitor, although she made no enquiries and did not ask either the defendant or Mr Lodge to make enquiries about that. She denied that her failure to obtain legal advice was because, to do so, would take time. It was suggested to her that if the defendant were allowed the opportunity to obtain advice without her being present, "that you might have missed something in the body language or the tone, giving away she wasn't happy about the arrangement?" She denied that suggestion.
Further, the plaintiff denied that she considered the defendant's home to be partly hers.
The plaintiff agreed that she was given $10,000.00 by the defendant on 11 June 2013, out of which the solicitor's fees were paid by the defendant. She agreed that the money that she had given her son over the course of his life were not loans at all, but gave evidence that she had given him the money so he could repay the house and get rid of the loan on it.

Relevant legislation

The CRA relevantly provides as follows: "4 Definitions (1) In this Act, except insofar as the context or subject matter otherwise indicates or requires: … Unjust includes unconscionable, harsh or oppressive, and injustice shall be construed in a corresponding manner. … (7) Principal relief (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. (2) Where the Court makes an order under subsection (1) (b) or (c), the declaration or variation shall have effect as from the time when the contract was made or (as to the whole or any part or parts of the contract) from some other time or times as specified in the order. (3) The operation of this section is subject to the provisions of section 19. (9) Matters to be considered by Court (1) In determining whether a contract or a provision of a contract is unjust in the circumstances relating to the contract at the time it was made, the Court shall have regard to the public interest and to all the circumstances of the case, including such consequences or results as those arising in the event of: (a) compliance with any or all of the provisions of the contract; or (b) non-compliance with, or contravention of, any or all of the provisions of the contract. (2) Without in any way affecting the generality of subsection (1), the matters to which the Court shall have regard shall, to the extent that they are relevant to the circumstances, including the following: (a) whether or not there was any material inequality in bargaining power between the parties to the contract; (b) whether or not prior to or at the time the contract was made its provisions were the subject of negotiation; (c) whether or not it was reasonably practicable for the party seeking relief under this Act to negotiate for the alteration of or to reject any of the provisions of the contract; (d) whether or not any provisions of the contract impose conditions which are unreasonably difficult to comply with or not reasonably necessary for the protection of the legitimate interests of any party to the contract; (e) whether or not: (i) any party to the contract (other than a corporation) was not reasonably able to protect his or her interests, or (ii) any person who represented any of the parties to the contract was not reasonably able to protect the interests of any party whom he or she represented, because of his or her age or the state of his or her physical or mental capacity; (f) the relative economic circumstances, educational background and literacy of: (i) the parties to the contract (other than a corporation); and (ii) any person who represented any of the parties to the contract; (g) where the contract is wholly or partly in writing, the physical form of the contract, and the intelligibility of the language in which it is expressed; (h) whether or not and when independent legal or other expert advice was obtained by the party seeking relief under this Act; (i) the extent (if any) to which the provisions of the contract and their legal and practical effect were accurately explained by any person to the party seeking relief under this Act, and whether or not that party understood the provisions and their effect; (j) whether any undue influence, unfair pressure or unfair tactics were exerted on or used against the party seeking relief under this Act: (i) by any other party to the contract; (ii) by any person acting or appearing or purporting to act for or on behalf of any other party to the contract; or (iii) by any person to the knowledge (at the time the contract was made) of any other party to the contract or of any person acting or appearing or purporting to act for or on behalf of any other party to the contract; (k) the conduct of the parties to the proceedings in relation to similar contracts or courses of dealing to which any of them has been a party; and (l) the commercial or other setting, purpose and effect of the contract. (3) For the purposes of subsection (2), a person shall be deemed to have represented a party to a contract if the person represented the party, or assisted the party to a significant degree, in negotiations prior to or at the time the contract was made. (4) In determining whether a contract or a provision of a contract is unjust, the Court shall not have regard to any injustice arising from circumstances that were not reasonably foreseeable at the time the contract was made. (5) In determining whether it is just to grant relief in respect of a contract or a provision of a contract that is found to be unjust, the Court may have regard to the conduct of the parties to the proceedings in relation to the performance of the contract since it was made."

Legal principles - application of the relevant provisions of the Act

In West v AGC (Advances) Ltd (1986) 6 NSWLR 610 at 620E, McHugh JA (as he then was), explained that unjustness in a contract may be substantive or procedural as follows: "Under s 7(1) a contract may be unjust in the circumstances existing when it was made because of the way it operates in relation to the claimant or because of the way in which it was made or both. Thus a contractual provision may be unjust simply because it imposes an unreasonable burden on the claimant when it was not reasonably necessary for the protection of the legitimate interests of the party seeking to enforce the provision: cf s 9(2)(d). In other cases the contract may not be unjust per se but may be unjust because in the circumstances the claimant did not have the capacity or opportunity to make an informed or real choice as to whether he should enter into the contract: cf s 9(2)(a), 9(2)(e), 9(2)(f), 9(2)(g), 9(2)(i), 9(2)(j). More often, it will be a combination of the operation of the contract and the manner in which it was made that renders the contract or one of its provisions unjust in the circumstances. Thus, a contract may be unjust under the Act because its terms, consequences or effects are unjust. This is substantive injustice. Or a contract may be unjust because of the unfairness of the methods used to make it. This is procedural injustice. Most unjust contracts will be the product of both procedural and substantive injustice."
His Honour went on to state that the definition of "unjust" in s 4 was not exclusive and that the provisions of s 9 do not exhaustively set out the criteria of what may be taken into account in determining whether a contract or any of its provisions is unjust. However, his Honour went on to say: "It is important to bear in mind that it is the contract or its provisions which must be unjust. As Professor Lang has pointed out, "it is not the transaction but the contract which must be initially examined … The Act regulates contracts not investments …"
In Riz v Perpetual Trustee Australia Ltd [2007] NSWSC 1153 at [51], Brereton J referred to the two-step process in determining relief under s 7 as follows: "51 Proceedings for relief under Contracts Review Act, s 7, involve two steps. The first is whether the contract was unjust in the circumstances in which it was made, having regard to the factors referred to in s 9. This is a conclusion of fact, albeit one of ultimate fact involving a broadly based value judgment (citations omitted). The second, which arises only if the first is resolved in the affirmative, is whether any and if so what relief should be granted; this involves the exercise of a judicial discretion [(Khoshaba, [34-36] (Spigelman CJ), [109] (Basten JA)]"
This approach was adopted by Ward J in A v N [2012] NSWSC 354 at [562].
In Provident Capital Limited v Papa [2013] NSWCA 36, Allsop P (as his Honour then was), identified the fundamental issue to be addressed under the Act as follows: "7. The broad evaluation of unjustness under the Contracts Review Act 1980, ss 4, 7 and 9 involves the normative evaluation of the totality of relevant circumstances. Inevitably minds may differ as to the conclusions about such questions. Also, it is often not fruitful to compare other cases with the particular circumstances at hand, lest one be deflected from an appropriate overall assessment by focus on the particular aspects relevant to any such comparison. Central to the normative evaluation is the recognition that there is a need for the protection of some people in some circumstances, who are not able to fully protect their own interest against factors that may cause injustice. That vulnerability may come from one or more of many circumstances, such as lack of education or of intelligence, from gullibility, from the predation of fraud and greed, and also sometimes from loyalty and love. The characterisation of a contract as unjust and the sheeting home to the other contracting party of the consequences of its unjustness may be a difficult evaluative exercise. At its heart, however, is the recognition of the inadequacy of one party to protect her or his interest in the circumstances …"
Section 9 of the Act, as set out above, is not an exhaustive list of criteria to be taken into account, but has been described as a "guide" or "list of the major factors to be considered" - see Spina v Permanent Custodians Ltd [2009] NSWCA 206 at [80] per Young JA (Tobias and Campbell JJA agreeing).

Findings of Fact

In addition to the findings outlined in [4] - [10] above, I make the following factual findings based on the whole of the evidence before me. I am satisfied on the balance of probabilities that: 1. The plaintiff and her son Roni had a close relationship during his life, which included the plaintiff providing him with financial assistance from time to time. 2. One of those occasions was when Roni purchased the home in Sydney that Roni and the defendant shared. 3. Both the plaintiff and defendant were grief-stricken after the untimely death of Roni on 13 November 2012. 4. Prior to that time, the plaintiff was a welcome guest of her son and daughter-in-law when she came to visit them in Sydney. When that occurred, she assisted them with child care and some household duties. 5. The defendant deferred to her husband's close relationship with his mother, rather than create conflict when he was alive. 6. That pattern having been established, the defendant's conduct was somewhat submissive towards the plaintiff following Roni's death, particularly concerning the funeral arrangements, his burial in Croatia and related matters. 7. Following the defendant's return to Sydney from Germany in 2013, the plaintiff remained in close contact with her by almost daily phone calls. 8. The sole purpose of the plaintiff's visit to Sydney in May 2013 was not for the plaintiff to acquire a substantial part of her son's estate from the defendant. However, I find that one purpose of her visit was to negotiate a share of the estate with the defendant. 9. Those negotiations were not the product of, or affected by, the matters relied on by the defendant that preceded May 2013 that she claimed placed enormous pressure and stress on her (see [11(i) - (vi)] above). Rather, they reflected the submissive role the defendant adopted in her relationship with the plaintiff, both before and after Roni's death. 10. Rather than being overborne by the plaintiff following Roni's death, the defendant was capable of attending to the following financial affairs and life decisions on behalf of her and her son: 1. She successfully applied for a widow's pension whilst in Germany in late 2012. 2. She returned with her son Lenny to live in Sydney. 3. She instructed solicitors to act on her behalf to administer the estate by applying for Letters of Administration. 4. She sought advice from her accountant who referred her to a financial planner. 5. Mr Fraser, the financial planner, advised her from April 2013. 6. She removed all of Roni's financial documents from the home prior to the plaintiff's arrival in May 2013. 7. She resisted the plaintiff's request to be paid 500 Euros cash contained in Roni's briefcase. 1. By the time the defendant discussed the estate with the plaintiff in May 2013, she knew that there was a further entitlement due from the REST superannuation fund that had not been included in the Schedule of Assets annexed to the Letters of Administration, and that the plaintiff was unaware of that entitlement. 2. There were a number of conversations between the plaintiff and the defendant about the estate. For the reasons set out below, I do not accept the defendant's evidence of the content of those conversations. I find that on 29 May 2013 the parties agreed that the defendant would pay the plaintiff $335,000.00. That is confirmed by the handwritten note written by the defendant in German. 3. I find that it was the plaintiff who requested that a document be drawn up by solicitors to evidence the agreement. 4. I find that the defendant instructed Mr Lodge to draft the document entitled "Deed of Family Arrangement". 5. I further find that the defendant instructed Mr Lodge to amend that document, and not to inform the plaintiff of the REST insurance entitlement. 6. The Deed of Release was designed to ensure the plaintiff would have no claim to the REST insurance entitlement, and the defendant knew that at the time the deed was executed. 7. Whilst the plaintiff was informed by the defendant that the solicitor advised they were both entitled to independent legal advice, given that both the defendant and Mr Lodge hid from the plaintiff the REST entitlement, the plaintiff's decision not to obtain advice was not an informed decision.

The defendant's submissions

As the defendant was seeking relief pursuant to the CRA, the hearing proceeded by way of the defendant's case being brought first, and the plaintiff then giving evidence. Counsel for the defendant submitted that the relevant period for determination of the issues in the matters was the period between 12 May 2013 and 18 June 2013. It was submitted that in the period prior to 12 May 2013, the plaintiff, who had a close relationship with her son Roni, played on that relationship and dominated the defendant. That was demonstrated by the decisions that were made by the family in respect of the burial of Roni.
It was the defendant's submission that the plaintiff's conduct leading up to the execution of the deed, was conduct by which the will, thoughts, feelings and desires of the defendant were overborne by the plaintiff. This occurred in both subtle and very blatant ways. Further, it was submitted that the evidence had to be placed in the context of their relationship, for example, the evidence of the defendant where the plaintiff had said to her, "the apple slice goes in the fridge". It was said that this otherwise simple direction ignored the dynamic of the relationship between the two women and, when seen in the context of their relationship, was an example of the plaintiff dominating the defendant within her own home.
It was submitted that the dominating relationship also underlined the threats made by the plaintiff to the defendant that she would remove the defendant's son, Lenny, from her. This, it was submitted, was to create an impression that the plaintiff either could or would try to remove Lenny from the defendant. Similarly, was the threat that the plaintiff would "run naked down the street and throw herself in front of a car". It was submitted that what was important was the fact that those threats were made and that the court would accept the defendant's evidence about those matters.
Counsel for the defendant submitted that the change in position of entitlement under the deceased's 2008 will, whereby the plaintiff was the sole beneficiary, to the position where, by operation of law, the defendant became the sole beneficiary, led to what counsel characterised as "a change in her attitude and behaviour towards the defendant". That change involved the plaintiff subjecting the defendant to a campaign of, at times, subtle, and at other times, blatant bullying, intimidation and emotional blackmail. It was submitted that a repeated theme of that campaign was the description of the defendant as "the richest woman in town". It was further submitted that the pressure applied by the plaintiff was persistent and relentless.
It was submitted that during the plaintiff's visit to Australia in May 2013, the psychological and emotional pressure applied to the defendant by the plaintiff reached "its unbearable crescendo".
It was submitted that the defendant relented and agreed to pay the plaintiff an amount of money in order to stop the pressure on her.
The defendant submitted that the contract is unjust both in terms of procedural and substantive fairness.
Counsel for the defendant made submissions with respect to the applicable law. It is unnecessary to summarise those submissions, as there was no dispute between the parties as to the law to be applied, as outlined above.
It was submitted on behalf of the defendant that she provided the handwritten note to the plaintiff only to stop the pressure being applied to her, and that further, had there been no other contract signed, "this story may have had a very different ending".
In relation to the absence of Mr Lodge as a witness in the proceedings, the defendant submitted that the court would find "that he might have some reluctance in giving evidence in to the benefit of the defendant in this case" (sic). That was the full extent of the submission. It was then further submitted: "However, what you can do is you can say that a reasonably prudent solicitor might take it upon himself to import into a deed a release clause. And what you will also see is that my friend says that there is no suggestion in this case that Denise didn't understand the contents of the document, and I accept that. But what she did say is that she did not understand the effect of the deed."
Counsel for the defendant conceded that the defendant would not have been under any misapprehension about what the deed contained, however, on her evidence, she did not understand the full force and effect of the document.
It was further conceded by counsel for the defendant that she was highly concerned about what the plaintiff's position would be if she learned that there was more money coming to the estate by way of the REST insurance entitlement.
Counsel for the defendant submitted that the refusal of the plaintiff to obtain independent legal advice when invited to do so by Mr Lodge on 3 June 2013, gave rise to an inference that the plaintiff: "Wanted this thing done now, she did not want to take any more time than was absolutely necessary to get done what she had come to this country to get done."
This, it was submitted, gave rise to procedural unjustness in respect of the contract as referred to by McHugh JA (as he then was) in West v AGC Advances Ltd, supra. It was the pressure of events between 29 May and 3 June 2013 that gave rise to the pressure on the defendant to execute the deed. It was submitted that she "hardly had time at all to consider her position", notwithstanding the email correspondence between her and Mr Lodge in respect of the draft deed. Further, because of the presence of the plaintiff at the solicitor's office, it was submitted that the defendant was prejudiced by being unable to speak freely with her solicitor, notwithstanding that only the defendant and the solicitor spoke English.
It was submitted by counsel for the defendant that the plaintiff had no knowledge of the Succession Act 2006 (NSW) ("Succession Act"). Her expectation was that her son Roni would look after her in her old age and that that expectation died with him. This was all the motivation the plaintiff required to exert pressure on the defendant to pay her money from the estate.
It was submitted by counsel for the defendant that the plaintiff's case that it was the defendant's right to gift the plaintiff the sum of $335,000.00 was highly implausible and therefore resulted from unconscionability on the part of the plaintiff.
Counsel submitted that the plaintiff tailored her evidence deliberately so as to create a false impression as to her current financial circumstances.
The defendant and her witnesses, Mr Fraser and Ms Horvatovic, on the other hand, were not tailoring their evidence and the defendant was entitled to the relief she sought under the Act on the basis that the contract must be found to be unjust, and that the outcome of the contract is unjust.
For the reasons set out below, I do not accept the defendant's submissions.

Determination - the defendant's credit

The defendant accepted, through her counsel, that the onus was on her to prove her entitlement pursuant to the CRA, based on the two-step process referred to above. She relied, as the basis for her entitlement, on her evidence of the conduct of both herself and the plaintiff, and the conversations regarding the estate set out above. As outlined above, I do not accept the defendant's evidence as to the content of the relevant conversations. The principal issue in the proceedings concerns whether the contract was unjust, and as defined in s 4, that expression includes concepts of unconscionability and harsh or oppressive conduct. In a case concerning a claim based on misleading or deceptive conduct pursuant to s 52 of the Trade Practices Act 1974 (Cth), McLelland CJ in Equity said relevantly: "Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all), the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience." See Watson v Foxman (1995) 49 NSWLR 315 at 318-319. Notwithstanding that the case concerned different subject matter, this dicta is apposite to the approach the court should take to the evidence here.
Here, I find that the defendant's evidence was subject to the vagaries of memory and self-interest in the outcome of these proceedings and could not be accepted unless corroborated by objective evidence. An example of this was her omission to refer to her handwritten document which was produced as part of the plaintiff's case.
I am fortified in this conclusion by the following matters which reflected adversely on the defendant's credit: 1. Her assertions of unfair pressure relying on previous acts (for eg the "apple slices" conversation) were embellished. 2. Her evidence that she maintained a fear of removal of her child by the plaintiff was not credible. 3. She concealed the REST entitlement from the plaintiff at all times prior to the execution of the deed. 4. She also had her solicitor conceal that entitlement. 5. She made significant amendments to her verified defence, only after she became aware that the file of Mr Lodge had been subpoenaed, and that the allegations contained in her defence that were subsequently amended, would have been shown to be false. I reject her explanation that these matters arose from a misunderstanding with her solicitors (see [89] and [90] above). 6. She withheld information in her affidavit about getting financial advice from Mr Fraser about the deed. 7. Her evidence in relation to the REST insurance entitlement and particularly her evidence relating to the post-deed correspondence with the plaintiff about it revealed a willingness to put her own self-interest before that of the plaintiff in order to conceal from the plaintiff the true situation. 8. The defendant's evidence about her own financial position was deficient, and deliberately so. 9. The defendant's evidence about her need for home security based on her fear of the plaintiff was entirely misleading. The invoices for the relevant work showed that work was completed nearly 18 months after the plaintiff returned to Germany. 10. She was not prepared to make concessions in cross‑examination to propositions which were plainly against her own self-interest.

Determination - was the contract unjust?

In [10] of the Amended Defence, the defendant has pleaded that the contract is unjust for the following reasons: "a. The Defendant's husband, Roni Lulic passed away on 13 November 2012 (the Deceased); b. The Defendant was entitled to the Deceased's entire estate in accordance with section 112 of the Succession Act (NSW) 2006 (the Act); c. The Plaintiff was not entitled to a share of the estate under the provisions of the Act; d. At the time that the Deed was signed the Defendant was grieving the loss of the Deceased; e. The Plaintiff moved into the Defendant's home for a period of time shortly after the death of the Deceased on or about 12 May 2013 and during the time that she resided there, the Plaintiff subjected the Defendant to sustained pressure with respect to the estate of the Deceased; f. During this time the Plaintiff continued to make demands of the Defendant with respect to the estate, which did not reflect her rights in law; g. The Defendant initially resisted the Plaintiff's demands but on or about 27 May 2013 she gave in to them in order to obtain relief from the pressure being applied by the Plaintiff at that time. The "agreement" alleged by the Plaintiff was induced by this sustained pressure and did not amount to genuine consent on the part of the Defendant to the arrangement as proposed by the Plaintiff. h. The Plaintiff moved out of the Defendant's home on or about 18 June 2013; i. The Deed was prepared by a solicitor, Wayne Lodge from Wayne Lodge & Associates (the Solicitor) on the instructions of the Defendant. j. The Defendant gave these instructions to the Solicitor by telephone at the insistence of the Plaintiff and at a time when the Plaintiff was physically present at the Defendant's house. k. The Solicitor who prepared the Deed witnessed the signatures of both the Plaintiff and the Defendant on 3 June 2013 at his office; l. deleted m. deleted n. Shortly after the death of the Deceased, the Solicitor advised the Defendant that the Plaintiff would have no claim under the Act. This advice was provided at a time when the Defendant was distressed and emotional, and before the Plaintiff had commenced applying pressure on her for payment out of the Deceased's estate; o. The Solicitor did not repeat the advice, or confirm the Defendant's understanding of it immediately prior to her signing the Deed; p. The Solicitor failed to provide advice to the Defendant about the purported agreement (Deed), her rights and obligations under the terms of the Deed or the effect of entering into a Deed at that time or at all; q. The Defendant was not provided with a cooling off period before the Deed was entered into; and r. There was no consideration by the Plaintiff to the Defendant under the Deed."
In 10c, the defendant asserts that the plaintiff was not entitled to a share of the estate under the provisions of the Succession Act. That has not been determined by hearing on the merits made under the relevant provisions of that Act. It is arguable that the plaintiff was entitled to make such a claim as being a person who was partly financially dependent on the deceased, or was going to be in the future. In any event, the plaintiff agreed not to make any further claims against the estate by clause 3 of the Deed. I accept the plaintiff's submission that even if the plaintiff had absolutely no legal entitlement to make any claim against the estate whatsoever, it would not lead to the conclusion that the contract itself would be unjust in the circumstances it was entered. Those circumstances included the fact that she had provided financial support for her son over the years and was now of an advanced age and some physical impairment. Further, her son's previous will had made her the sole beneficiary.
As to clause 10d, I find that both the plaintiff and defendant were grieving the loss of the deceased at the time the Deed was made, but that that grief did not affect the process by which the contract was concluded, nor does it of itself make the contract unjust.
The grounds set out in paragraph 10e and 10f, are the substance of the defendant's claim under the CRA, namely, that the defendant was overborne by the conduct of the plaintiff, who constantly made demands for money, which the plaintiff was unable to resist. On the facts, as I have found them, that claim has not been made out. Rather, the contract was brought about by a process of negotiation between the plaintiff and defendant, following which, it was the defendant who instructed her solicitor to prepare the document and it was the defendant who withheld relevant information as to the assets of the estate, from the plaintiff. Further, the defendant received independent legal and financial advice before entering into the Deed, and took no steps to set it aside. I do not accept the defendant's evidence as to the circumstances in which the deed was made as set out in [59] and [60] above, or her evidence at [61] and [116] that she only signed the deed because of the unbearable pressure the plaintiff put her under. Paragraph 10j has not been made out on the evidence.
Paragraphs 10n, 10o and 10p concern the advice provided to the defendant by her solicitor. This is a clear case for the application of the principle in Jones v Dunkel (1959) 101 CLR 298. As there is no proper explanation for the absence of Mr Lodge, an inference arises that his evidence would not have assisted the defendant's case. In those circumstances, the court cannot make findings underlining the matters set out in those paragraphs as to advice given by the solicitor. No evidence, such as written advice from the solicitor, was adduced corroborating the allegations. In any event, the failure or otherwise of the solicitor to properly advise the defendant as to her rights generally does not amount to the contract being unjust in the circumstances where it was the defendant who instructed the solicitor to draft the deed and to make various amendments to it.
The defendant clearly understood the effect of the deed, and her obligation to pay money pursuant to it. I do not accept the defendant's evidence set out in [93] above, that she did not understand the consequences of signing the Deed before she signed it, but as soon as she signed it, she knew those consequences, the reasons being, that the pressure on her to sign was unbearable. In Toll (FGTC) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, the High Court said at pp 180-181: "It should not be overlooked that to sign a document known and intended to affect legal relations is an act which itself ordinarily conveys a representation to a reasonable reader of the document. Representation is that the person who signs either has read and approved the contents of the documents or is willing to take the chance of being bound those contents, as Latham CJ put it, 'whatever they might be'. That representation is even stronger where the signature appears below a perfectly legible written request to read the document before signing it." The court was referring to Latham CJ's judgment in Wilton v Farnworth (1948) 76 CLR 646 at 649.
The fact that the defendant chose not to be bound by the deed does not mean that the deed itself was unjust in the circumstances in which it was made. Further, whilst it is clear that no cooling off period was provided for in 10q, none was required by operation of law.
I am not satisfied that the defendant was deprived of a real or informed choice to enter into the Deed. Rather, it was her decision to do so in circumstances where she deprived the plaintiff of relevant information concerning the REST insurance benefit. Further, the terms of the contract are reasonable and could not be considered unjust simply because it was not in the interest of the claimant to make it after she had herself received both independent legal and financial advice - see West v AGC Advances Ltd, supra, and Esanda Finance Corporation Ltd v Tong; Leo Muggleton v Esanda Finance Corporation Ltd (1997) 41 NSWLR 482 at [491] per Handley JA (with whom Santow and Simos AJJA agreed).
On the whole of the evidence, I am not satisfied that there was any material inequality in bargaining power between the plaintiff and the defendant. Nor am I satisfied, for the reasons outlined above, that the defendant's will was overborne by the conduct of the plaintiff, or that the defendant was under unbearable pressure to sign the deed. I therefore reject her evidence to that effect (see [116] above), and I accept the plaintiff's evidence as to how the deed came about, as set out in [132] and [133] above.
Thus, in determining the first step, namely, whether the contract was unjust in the circumstances, applying the legal principles above to the facts as I have them, I have concluded that it was clearly not so unjust. Therefore, the second step, which involves the exercise of a judicial discretion to determine what relief, if any, should be granted (see Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41 at [94] - [96]), does not arise here.
I further find, however, that even if that second step did arise here, I would not exercise my discretion to provide any relief under the CRA. The conduct of the defendant in concealing from the plaintiff the true situation concerning the assets of the estate, and ensuring that her solicitor did not disclose that situation, would mitigate against the exercise of that discretion. Notwithstanding that the defendant was, as I have held, submissive in her relationship with the plaintiff in the circumstances in which this deed was made, there was no imbalance of bargaining power that weighed against the defendant. Rather, she ensured, by her conduct, that the true situation was not revealed to the plaintiff. The matters set out in para [152(10)] above, confirm that the defendant was capable of looking after her own self-interest financially, and did so whenever the opportunity arose. In all of the circumstances of this case, the court, had the first step been satisfied, would have declined to exercise its discretion to grant the relief sought by the defendant.

Conclusion

For the above reasons, the Amended Defence relied on by the defendant has not been made out and the plaintiff is entitled to the relief sought in the principal proceedings, namely, the payment of $325,000.00 pursuant to the Deed, together with interest and costs. The issues set out in [2] above are therefore resolved as follows: 1. No 2. No 3. No 4. No 5. Does not arise for determination.

Orders

I make the following orders: 1. Verdict and judgment for the plaintiff in the sum of $325,000.00. 2. Defendant is to pay the plaintiff's interest as agreed in the sum of $45,465.00 on the judgment sum. The total judgment will be in the sum of $370,465.00. 3. The defendant is to pay the plaintiff's costs on the ordinary basis up to and including 18 May 2015 and thereafter on an indemnity basis. 4. Plaintiff may uplift Security Deposit of $50,000.00 paid into court on 26 June 2015. 5. Exhibits to be returned forthwith.

Amendments 29 February 2016 - Paragraph [153(12)] the word 'plaintiff's' changed to 'defendant's' (third line) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 February 2016

Trade Practices Act 1974(Cth)

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