Antova v Bokan

Supreme Court of NSW|2017-02-17|Before: Kunc J, Hallen J

Summary

There is an old saying that one should not spoil the ship for a ha'penny worth of tar. This judgment concerns the enforceability of a family provision settlement agreement that went awry for want of an interpreter. The agreement is binding and should be enforced. However, in the exercise of its discretion, the Court will stay its orders enforcing that agreement pending the determination of a late claim by the second plaintiff.

The parties

By a summons filed on 11 November 2015 the first and second plaintiffs sought provision from the estate of the late Ljubica Dimitrovska (the "deceased"). Without disrespect I shall refer to the other parties by their given names.

The issues

As is well known to family provision practitioners, the List Judge, Hallen J, regularly conducts what are referred to as judicial settlement conferences. His Honour speaks to the parties in open court in the presence of their lawyers and then leaves the parties to negotiate, if they can, a settlement.
These proceedings were the subject of such a judicial settlement conference. A settlement agreement (the "Agreement") was apparently reached in circumstances which are more fully set out below.
By notice of motion filed on 29 June 2016, Lidija seeks orders including: "1. A declaration that the terms of the document marked "A" to this Notice of Motion constituted a binding agreement ("the agreement") between the Plaintiffs and the Defendant (in her capacity as Executrix of the estate of the late Ljubica Dimistovska ("the deceased")) to compromise the Plaintiffs' claims against the estate of the deceased. 2. Order that pursuant to s73(1)(b) of the Civil Procedure Act, the Court makes the orders in terms of the document marked "A" to this Notice of Motion or in the alternative such other as it considers appropriate to give effect the agreement. … 4. Order that the Plaintiffs pay the Defendant's costs of this application. 5. The Defendant is authorised to deduct from the provision to the first named Plaintiff set out in the agreement the costs of this application as agreed or assessed."
The original of the document referred to in prayer 1 of Lidija's notice of motion is reproduced as Schedule 1 to this judgment (the "Orders"). To understand what occurred, it is necessary to have regard to the original, including being able to notice the signatures on it and the various changes made to it and initialled by the parties.
By notice of motion filed on 24 January 2017, Vase, supported by Radmila, seeks orders including: "1. A declaration that the document marked "A" to this Notice of Motion wrongly dated 23 March 2014, but signed 23 March 2016 ("Purported Mediation Agreement") is null and void and of no force or effect. Particulars: (i). No concluded agreement because Purported Mediation Agreement was subject to translation into the language of the plaintiffs and has not been translated and no translation certificate has been issued and approved; (ii). No concluded agreement because Purported Mediation Agreement was subject to releases under section 95 Succession Act (NSW) and such releases have not been provided; (iii). Further and in the alternative, Purported Mediation Agreement is void for mistake because plaintiffs did not know of existence of document dated 14 September 2009 headed "Contract for Gift" that purports to revoke all prior wills of deceased and further disposes of all the property of the deceased, the subject of the mediation; (iv). Further and in the alternative, Purported Mediation Agreement is rescinded because parties relied upon the fact that the property known as [X] Lewis Street, Granville NSW formed part of the estate of the deceased when in fact it had been disposed of under the said "Contract for Gift", the subject of the mediation. 2. Further and in the alternative, that pursuant to section 98 Succession Act (NSW), the Court in its discretion decline to make a family provision order in terms of the document marked "A" to this Notice of Motion. Particulars: (i) Particulars referred to in prayer 1 above are repeated. (ii) Parties do not consent to terms of annexure "A" at the time the Court is invited to enter such orders. 3. Costs."
Although it may be thought slightly unorthodox to have included particulars in prayer 1 of the notice of motion, those particulars usefully isolated the issues. By the end of the hearing, Mr Sahade had, if I may say so quite properly, abandoned Particulars 1, 3 and 4. He also accepted that if the Court was against Vase in relation to Particular 2, then the Agreement was binding and his argument fell back to the contention that the Court, in the exercise of its discretion, should not make orders to enforce the Agreement. That entirely appropriate example of responsible advocacy has enabled the Court to deal with the matter promptly by delivery of these ex tempore reasons.

The witnesses

Lidija relied on formal affidavits from her solicitor.
In addition to a solicitor's affidavit, Vase relied on evidence from himself, Radmila and Mr Boris Petrusev. Mr Petrusev is an experienced court interpreter who interprets from English into Macedonian and vice versa. He was retained by the plaintiffs to interpret for Radmila on the day of the judicial settlement conference.
Vase, Radmila and Mr Petrusev were all cross-examined.
Mr Petrusev was a careful and thoughtful witness. He has no interest in the outcome of the proceedings. I am satisfied he was a truthful witness and I accept his evidence.
Radmila gave her evidence through an interpreter. Her affidavit evidence was relatively straightforward to the effect, putting it broadly, that she did not understand everything that happened at the settlement conference, and that insofar as she signed the Orders and the document referred to in paragraph [33] below, she only did so to signify she had been in attendance at the settlement conference and not to evidence her agreement to the contents of those documents. However, once in the witness box, she took every opportunity to repeat her view as to how unfair the process had been at the settlement conference and how little she had in fact understood. In my view, she was clearly prone, at least, to considerable exaggeration. To the extent it is necessary for me to make any findings based on her evidence, I would only accept her evidence to the extent it was inherently likely, supported by independent evidence or contemporaneous documents, or was otherwise against interest.
Vase was a most unsatisfactory witness. His affidavit evidence included: "3. I arrived in Australia from Austria in 1997. I was 29 years old at that time and did not know any English at all. I started speaking English by listening to other people talk, but I still have only a limited understanding of English. 4. On about November 2015, I sought legal advice from CMM Quay Legal Group. … 8. CMM Quay Legal Group advised that I and my mother, Radmila Antova, had an "excellent" family provision case, but did not go into detail about how the matter would proceed. 9. At the Settlement Conference on 23 March 2016, I was informed by Rebecca Medcalf of CMM Quay Legal Group that agreement had been reached with the Defendant to settle my family provision claim and my mother's family provision claim. … 13. A Macedonian interpreter was present for part of the time during the Settlement Conference. 14. The interpreter left the Settlement Conference at about 1.00pm and before I signed the Orders. The Settlement Conference did not conclude until about 3.30pm. 15. The Orders were not translated into the Macedonian language for me before I signed the document. 16. The legal effect of the Orders was not translated into the Macedonian language for me before I signed the document."
Vase commenced giving evidence through an interpreter. It became apparent that he could speak English sufficiently well to enable him "to understand, and to make an adequate reply to, questions" that were put to him (see s 30 of the Evidence Act 1995 (NSW)). I therefore directed him to give his evidence in English unless he genuinely felt that he needed the assistance of the interpreter in order to give precise replies in Macedonian to the questions that he was being asked.
Vase resorted to Macedonian as his responses became more and more heated. In an extraordinary and lengthy outburst, he became increasingly extravagant in his allegations, ultimately asserting that he had been forced by his lawyers to assent to the Agreement and to sign the relevant documents in circumstances where he did not really understand their contents.
Vase's allegations in the witness box went well beyond anything that was in his affidavit. In resolving the present motions, it is not necessary for me to make any findings about those allegations and I expressly refrain from doing so. However, insofar as any factual finding depends upon his evidence, I do not accept it unless it was inherently likely, supported by independent evidence or contemporaneous documents, or was otherwise against interest.

The facts

I shall now set out the Court's findings of fact. They are either uncontroversial or have been established to my actual satisfaction on the balance of probabilities.
By his affidavit of 2 November 2016, Vase made the following admission against interest concerning the gift contract which I accept: "38. In about September 2009, I first became aware of the document titled "power of attorney Ljubica DIMITROVSKA" to which reference is made in paragraph 7 of this my affidavit … 39. I arranged for a lawyer, Mr Zarko Dabeski, to visit my grandmother. 40. After my grandmother spoke to Mr Dabeski, she said to me "I told Mr Dabeski about the papers Lidija got me to sign". 41. Mr Dabeski prepared a new power of attorney which appointed me as my grandmother's attorney, and another document titled Gift Contract. 42. Annexed hereto and marked with the letters "VA5" and "VA6" respectively are true copies of the said power of attorney and Gift Contract."
The "gift contract" (to which I shall refer as such) was in the following terms in English translation: "CONTRACT FOR A GIFT I, LJUBICA DIMITROVSKA of [X] Louis Street Granville NSW, Australia with a Unique Personal Identity Card Number: [X], issued by the Department of Internal Affairs - Skopje, hereby I recall all documents relating to my daughter Lydia Bokan from Zagreb, Croatia made in Australia and I revoke them entirely to not have any legal validity because of what she did to me. Specifically, my entire assets and real estate property I leave a gift to my grandson Vase Antov, Driver's Licence Number: [X] and Australian Passport Number [X]. Due to difficulties in signing - old age and poor vision, two witnesses are being present."
The deceased died on 17 November 2014 aged 85 years.
These proceedings were commenced on 11 November 2015.
The proceedings came on for a judicial settlement conference before Hallen J on the morning of 23 March 2016. On that occasion Mr Heath appeared for Lidija, instructed by Ms J Hutton, Solicitor. Radmila and Vase were represented by Ms M Pringle of Counsel instructed by Ms R Medcalf, Solicitor. Since the events of that day, Vase and Radmila have changed counsel and solicitors more than once.
Mr Petrusev met the plaintiffs and their lawyers at Ms Pringle's chambers around 9am on 23 March 2016. Mr Petrusev provided interpreting services to Radmila (some of his interpretations being overheard by Vase) throughout the court appearance and negotiation process up to around 12.30pm when Mr Petrusev had to leave to attend to another appointment.
After hearing Hallen J's opening remarks, the parties entered into negotiations. Offers and counteroffers were made between the lawyers.
While Mr Petrusev was present, I am satisfied that those offers and any instructions given by Radmila and Vase were interpreted by Mr Petrusev to Radmila. Vase also overheard those interpretations to an extent I am not able to determine. Vase communicated with his lawyers in English but also had the benefit of so much of Mr Petrusev's translations as he heard.
It is necessary at this point to make reference to what must necessarily be extensive extracts of the Court transcript of what occurred on 23 March 2016 when the parties returned to Court to report on progress to Hallen J. Those extracts are set out in Schedule 2 to this judgment.
Prior to or contemporaneously with the preparation of the Orders, Vase and Radmila signed a handwritten document prepared by one of their lawyers in these terms: "23/3/16 We agree to settle the proceedings numbered 2015/00331929 on the terms of settlement proposed at the settlement conference on 23 March 2016 namely (a) Radmila Antova to receive a sum equivalent to 42.5% of the net remaining distributable estate being the proceeds of sale of property situated at [X] Louis St, Granville (b) Vase's claim is dismissed (c) Costs of $33,000 inclusive of GST to be paid by consent by the estate (d) The defendant's costs of $38,000 inclusive of GST to be paid by consent by the estate (e) the remainder of the estate be distributed to Lidija Bokan (f) the property to be sold in accordance with the provisions of the consent orders executed by the parties and dated 23 March 2016. Signed Radmila Antov Signed Vase Antov Note: Radmila is not fluent in English but has had the services of a translator during the settlement negotiations"
I accept this affidavit evidence of Mr Petrusev: "8. I have been translating for about 20 years and have attended a number of settlement conferences. In each of thes settlement conferences I was requested to sign, date the agreement and state that I have translated the agreement and the party fully understood the agreement before they signed the agreement. In this matter I was not provided any agreement to translate to Radmilla Antova nor did I witness any agreement. … 10. Before I left the mediation I recall that some terms of agreement had been proposed and were being communicated by Ms Pringle to Radmilla [sic] Antova. I specifically recall a figure of 42.5% being offered by the representatives for Lidija Bokan and discussed. 11. I recall that I definitely left before 1pm after both Ms Metcalfe and Ms Pringle told me I could leave. We were in Margaret Pringle's chambers at the time I left so I do not know whether the legal representatives for Lidija Bokan or the Court was informed that I had left. 12. I do not recall if I was asked to translate any documents for Radmilla Antova during the mediation conference. …"
On the basis of the notation on the bottom of the document set out in paragraph [33] above, Mr Petrusev's evidence referred to in paragraph [34] above, and Ms Pringle's answer to Hallen J about interpretation set out in Schedule 2 ("possibly not"), I find that the document referred to in paragraph [33] above was not translated to Radmila but that one or both of her lawyers sought to explain it to her in English.
The Orders were prepared and signed by the parties and their solicitors. There was some further negotiation about costs which resulted in handwritten amendments initialled by the parties and their solicitors.
On the basis of Mr Petrusev's evidence referred to in paragraph [34] above and Ms Pringle's answer to Hallen J referred to in Schedule 2 ("possibly not"), I find that the Orders were not translated to Radmila but that one or both of her lawyers sought to explain them to her in English.
I also am satisfied that Vase was present during the explanations referred to in paragraphs [35] and [37] above. Before he became strident in his denials of understanding, he admitted under cross-examination that he at least understood what was going on in Court and during the negotiations in general terms even if he did not understand the fine detail. That conclusion accords with my own assessment of his capacity to understand English based on observing him answer questions in English as he gave evidence in the witness box.
As is apparent from the transcript set out in Schedule 2, the Orders were provided to Hallen J. His Honour read the papers over the luncheon adjournment. He pronounced (i.e. made) but did not enter the orders in the Orders that he could make. It is clear that his Honour intended to make the balance of the Orders (relating to the release referred to in Order 8 of the Orders) and then enter all of the Orders upon receipt of an affidavit going to the matters set out in s 95(4) of the Succession Act 2006 (NSW) (the "Act") (see paragraph [50] below).
The parties left Court in the expectation that such an affidavit would be forthcoming for Radmila in the very near future. Mr Sahade accepted that if an interpreter had been present after the luncheon adjournment, the Orders would have been made there and then as a result of Radmila giving the necessary evidence for the purposes of s 95(4) of the Act in the witness box.
The expected affidavit never came. The parties fell into dispute about the Agreement.
On 31 May 2016 (confirmed by letter from her solicitors on 30 June 2016), Lidija informed the Court that she was prepared to give effect to the Agreement without receiving the benefit of Order 8 of the Orders.
On 3 June 2016 the plaintiffs' new solicitors wrote to the defendant's solicitors: "Pursuant to the Orders that were made by the Court on that date, we are instructed to inform you that both of the Plaintiffs regard the purported settlement agreement of 23 March 2016 to be at an end."
On 28 June 2016 the defendant's solicitors replied: "We note your letter of 3 June 2016. In our view, the letter constitues a repudiation of the agreement reached on 23 March 2016. Our client elects to seek to enforce the compromise and you will be served with the relevant process shortly."
Lidija filed her notice of motion seeking enforcement of the Agreement on 29 June 2016.
Perhaps somewhat unusually from a procedural point of view, on 14 September 2016 Vase filed a statement of claim based upon the gift contract. That statement of claim seeks the following orders: "1. A declaration in the events which have happened, that the Defendant as executor of the estate of the late Ljubica Dimitrovska ("the Deceased") holds the property at [X] Louis Street, Granville (Folio Identifier [X]) ("the Granville property") upon constructive trust for the Second Plaintiff. 2. An order that the Defendant do all things and sign all documents necessary to transfer to the Second Plaintiff unencumbered titled to the Granville property. 3. A declaration in the events which have happened that the Defendant as executor of the estate of the Deceased, holds the balance of the Deceased's estate upon constructive trust for the Second Plaintiff. 4. An order that the Defendant by herself, her servants and agents, be restrained from interfering with the Second Plaintiff's quiet possession and enjoyment of the Granville property. 5. In the alternative to 1-3, compensation in equity. 6. In the alternative to 1-5, provision for the Second Plaintiff's maintenance and advancement in life out of the estate of the Deceased pursuant to s.59 of the Succession Act 2006. …"
On 21 October 2016 Lidija filed her defence to Vase's statement of claim.
On 2 November 2016 Vase filed a reply to Lidija's defence.
On 24 January 2017 Vase filed his notice of motion which, with Lidija's notice of motion, is the subject of these reasons.

The Act

The following two provisions of the Act are relevant: "95 Release of rights under Chapter (1) A release by a person of the person's rights to apply for a family provision order has effect only if it has been approved by the Court and to the extent that the approval has not been revoked by the Court. (2) Proceedings for the approval by the Court of a release of a person's rights to apply for a family provision order may be commenced before or after the date of the death of the person whose estate may be the subject of the order. (3) The Court may approve of a release in relation to the whole or any part of the estate or notional estate of a person. (4) In determining an application for approval of a release, the Court is to take into account all the circumstances of the case, including whether: (a) it is or was, at the time any agreement to make the release was made, to the advantage, financially or otherwise, of the releasing party to make the release, and (b) it is or was, at that time, prudent for the releasing party to make the release, and (c) the provisions of any agreement to make the release are or were, at that time, fair and reasonable, and (d) the releasing party has taken independent advice in relation to the release and, if so, has given due consideration to that advice. (5) In this section: release of rights to apply for a family provision order means a release of such rights, if any, as a person has to apply for a family provision order, and includes a reference to: (a) an instrument executed by the person that would be effective as a release of those rights if approved by the Court under this section, and (b) an agreement to execute such an instrument. …. 98 Mediation, orders with consent and costs (1) The object of this section is to encourage the settlement by affected parties of disputes concerning the estate of a deceased person. (2) Unless the Court, for special reasons, otherwise orders, it must refer an application for a family provision order for mediation before it considers the application. (3) The Court may make a family provision order in terms of a written agreement (a consent order) that: (a) is produced to the Court by the affected parties in relation to an application after mediation, or on the advice of a legal practitioner, and (b) indicates the parties' consent to the making of the family provision order in those terms. (4) The regulations may make provision for or with respect to the following: (a) mediations and consent orders under this section, (b) regulating or prohibiting advertising concerning the provision of legal services in connection with mediations and other proceedings under this Chapter in relation to the estate or notional estate of a deceased person. (5) In this section, legal services has the same meaning as in the Legal Profession Uniform Law (NSW)."

Was there a concluded settlement agreement?

It will be recalled that Particular (ii) in paragraph 1 of Vase's notice of motion states: "(ii) No concluded agreement because Purported Mediation Agreement was subject to releases under section 95 Succession Act (NSW) and such releases have not been provided;"
Mr Sahade supported that particular as follows.
Order 8 of the Orders was for an order pursuant to s 95 of the Act that "the agreement by [Radmila] to release her rights to make any further application in relation to the state or notional estate of the deceased be approved." Mr Sahade drew attention to the decision of the Court of Appeal in Pavlovic v Universal Music Australia Pty Limited (2015) 90 NSWLR 605; [2015] NSWCA 313, which he submitted stood for these propositions: 1. Where parties have reached agreement as to the terms of a contract, but have also agreed that a further, formal agreement is to be executed, whether the parties intend to be immediately bound is to be determined objectively, having regard to the "outward manifestations" of their intentions. 2. The three classes set out in Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 are not to be applied as strict categories into which cases must fall. Rather, the decisive issue is always the intention of the parties, ascertained objectively from the terms of the agreement, read in the light of the surrounding circumstances. 3. Regard may be had to the subsequent conduct of parties to determine whether, at an earlier juncture, the parties intended to enter into a binding agreement.
The well-known passage in Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 at 360 is: "Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract."
Mr Sahade submitted that the requirement for the release and affidavit arising from Order 8 in the Orders, and Mr Heath's affirmative answer to Hallen J's enquiry whether the release was "essential", demonstrate that the parties did not intend to be bound by the Agreement until the release and affidavit to satisfy s 95 had been provided. Until those things happened, it was submitted that the Agreement was not binding upon the parties. He contended that the need for an affidavit for the purposes of s 95 of the Act put the Agreement into the second category identified in Masters v Cameron.
Alternatively, Mr Sahade submitted that when what occurred in front of Hallen J was taken into account, it was apparent that the parties had agreed that the Orders would be held in "escrow" to the extent that, if Radmila subsequently decided to give the release and the affidavit (things which she was not, on this view, bound to do), the Orders would be given effect.
I do not accept those contentions, in large part, but not completely, for the reasons advanced by Mr Heath. I will set out my conclusions in what follows.
It is first necessary to identify the Agreement. In my view it is not just the Orders. The Court finds that on 23 March 2016 the parties by themselves and by their solicitors and counsel agreed to compromise the proceedings by asking this Court to make, and by each party consenting to, the Orders. This gave rise to an implied obligation in each party to do all that was reasonably necessary to give the other the benefit of the Agreement: see, for example, Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596; [1979] HCA 51 at [24]-[30] per Mason J, as his Honour then was, and with whom all other members of the Court agreed.
In the case of Order 8, this implied obligation required Radmila to give the release and provide the evidence to enable the Court to determine whether or not to make the order under s 95 of the Act.
All of the objective circumstances point to the parties intending to be immediately bound. None of the categories of Masters v Cameron, including the so-called fourth category (see Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 at 628), are relevant. Radmila and Vase admitted they understood the purpose of the day was to settle the case if possible. It is apparent from the transcript of what occurred before Hallen J that an immediate settlement of the proceedings was the mutual intention of the parties. A formal document - the Orders - was solemnly entered into and signed. The parties presented the Orders to the Court so they could be made. The whole pattern of events before Hallen J as disclosed in the transcript after the luncheon adjournment is a series of outward manifestations that the parties regarded themselves as bound by the Agreement and that they had embarked upon performance of the Agreement but were delayed in completing it by the lack of evidence for the purposes of s 95(4) of the Act.
The Court will not lightly conclude, in the absence of clear language, that parties do not intend to be immediately bound by a settlement agreement reached at mediation: see, for example, Jingalong Pty Limited v Todd [2015] NSWCA 7 at [78] per Sackville AJA; Meagher and Leeming JJA agreeing.
The fact that the agreement involves the Court making orders such as those approving the release does not mean that there is any less an immediately binding agreement: Morrison v Abbott [2012] NSWSC 320 at [86] per Hallen AsJ (as his Honour then was).
Nothing in the language of Order 8 specifically, or the Orders generally, supports the contention that Order 8 demonstrates a lack of intention to be immediately bound. Nor does the plain language of the Orders support the conclusion that Order 8 is a condition precedent to the Agreement coming into existence. If there were any doubt about it, the Court would, in any event, prefer a construction that it was a condition precedent to performance rather than to the Agreement itself coming into existence: Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537; [1982] HCA 29 at [16]-[17] per Mason J (as his Honour then was).
Mr Heath's statement that his client "needed" the release, in answer to Hallen's query whether it was "essential", is not to be understood as accepting it was "essential" in its strict legal sense, where such a characterisation is relevant to rights on breach or whether a term can be severed. It was no more than telling Hallen J that his instructions were that Lidija wanted what she had bargained for. In any event, an exchange between bench and bar about whether or not a term is essential in the technical sense does not make it so. That is a matter to be objectively determined on the proper construction of the agreement in question.
The Court finds that the parties were bound by the Agreement on and from 23 March 2016 and that the Agreement remains on foot. The fact that Hallen J was waiting for an affidavit from Radmila does not mean the Orders were being held in "escrow". Lidija is entitled to waive compliance with Order 8 and its attendant implied obligation on Radmila because it is a provision for the benefit of the deceased's estate. If further legal analysis is required, the letter of 3 June 2016 (see paragraph [43] above) is a repudiation of the Agreement. By her solicitor's letter of 28 June 2016 (see paragraph [44] above) Lidija has accepted that repudiation but has sought enforcement of the Agreement, as she is entitled to do.

Should the Agreement be enforced?

Mr Sahade relied on the general discretion of the Court to decline to enforce settlement agreements (see Bartlett v Coomber [2008] NSWCA 100 at [28] and [55]-[58] per Mason P and [73] per Hodgson JA) and the Court's discretion under s 98 of the Act (see paragraph [55] above). He submitted that two matters warranted the Court not enforcing the Agreement by making and entering the Orders: 1. The evidence justified the Court concluding that the Court had "lost confidence" in the mediation process which had given rise to the Agreement; and 2. Vase was entitled to have the matters raised by his statement of claim resolved. The making of the Orders would render his claim futile.
The first reason advanced by Mr Sahade requires the Court accepting, even in general terms, Radmila's and Vase's assertions of inappropriate pressure being applied to them in connection with making the Agreement and their lack of understanding of it. It is neither necessary nor appropriate for the Court to make findings about those matters.
It is not necessary for at least two reasons. First, as is explained in paragraph [73] to [75] below, the Court accepts the second reason advanced by Mr Sahade. Second, it is not necessary for the Court to investigate the level of assent or understanding which Vase and Radmila brought to the Agreement because their solicitor and counsel clearly had both implied and ostensible authority to enter into the Agreement on their behalf. An agreement made between legal representatives to settle litigation in those circumstances is sufficient to bind their clients unless one side had notice that the ostensible authority of the other side's lawyers had been limited or withdrawn by reason of express instructions given by their clients: Donnellan v Watson (1990) 21 NSWLR 335 at 342 per Handley JA.
Nor is it appropriate for the Court to make findings on these matters in an application of this kind because they are serious matters which have not been fully explored. There has been no evidence from the lawyers involved and the issues could, conceivably, be ventilated in later proceedings between Radmila and Vase and their former legal representatives, should they choose to bring such proceedings. In making that observation I am not to be taken as expressing any view as to whether such proceedings should be brought or whether they would have any prospects of success.
For these reasons I expressly decline to make any findings about the serious allegations made by Radmila and Vase concerning the level of their understanding of the Agreement and their allegations about the conduct of their lawyers.
The second ground raised by Mr Sahade, relying upon the claims made by Vase in his statement of claim, gives rise to a different consideration. A defence and a reply have been filed so it would appear that the issues in relation to that claim have now been defined. If he enjoys complete success in the statement of claim, Vase will be beneficially entitled to the sole asset of the deceased's estate, being her former home.
However, it is extraordinary that Vase has raised that claim so late in the proceedings, given that by his own admission he has known about the basis for that claim - the gift contract - since 2009. Vase is asking the Court for a substantial indulgence. Without explanation of the reasons for the delay or his silence about the gift contract at the judicial settlement conference, he asks the Court for the opportunity to agitate his claim to the sole asset of the estate where it is clear that, after a formal and considered procedure, the parties otherwise entered into a settlement of these proceedings.
But for the presence of the claim asserted in Vase's statement of claim, the Court would have no hesitation to complete the process begun by Hallen J of making, and then entering, orders which would give effect to the Orders. Lidija is entitled to the benefit of the Agreement which the Court has found is, and always has been, binding upon the parties.
On the other hand, Vase has pleaded a claim that in practical terms would render the Agreement nugatory.
Whether it is the general discretion of the Court in relation to giving effect to settlement agreements or the Court's powers under s 98 that is invoked, I have come to the view that when those two considerations are weighed against each other, justice requires that the Court should make and enter the Orders to give effect to the Agreement. However, in the exercise of those same discretions, justice also requires that the orders which the Court makes must be on terms that their effect is stayed pending resolution of Vase's claim.
I will hear the parties as to the form of the orders to be made to give effect to these reasons and as to costs.

Schedule 1 Antova v Bokan 2015-331929 (87.2 KB, pdf) Schedule 2 - Antova v Bokan 2015_331929 (34.9 KB, pdf)

Amendments 22 February 2017 - Para [32] first line, words "set out" deleted 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: 22 February 2017

Succession Act 2006(NSW)ss 95, 98

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