Sukkar v Sukkar

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mrs Sukkar’s affidavit also includes the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mrs Sukkar further deposed:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And then (at page 47):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mrs Sukkar deposed:

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

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

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

The plaintiff’s text message of 23 January 2017 prompted a response by Mrs Sukkar which included requests that the plaintiff’s proposal be put before “Steve Stanton or Greg” (presumably regarded as trusted neutral figures) so that a mutually beneficial agreement can be reached, and that the plaintiff put in writing “your money owed to this date”. The latter statement may be regarded as a recognition by Mrs Sukkar that money had been outlaid by the plaintiff for her benefit and perhaps also of an intention to make some repayment.

The plaintiff, who had already taken steps to have prepared a Schedule of “Loan Amounts and Amounts Expended for and on behalf of Rose Amanda Sukkar…”, promptly sent the Schedule to Mrs Sukkar as an attachment to an email. It seems to be common ground that Mrs Sukkar did not reply to the email. She gave evidence that she did not read the email, only glancing at it, and did not become aware that it included “a list of supposed loans”. Having requested something in writing about what the plaintiff claimed was lent, it is likely that Mrs Sukkar did read the email, the subject heading of which was “Monies advanced to you”. It is also likely that she opened the attachment and saw the list of amounts. Mrs Sukkar seemed to concede as much in cross-examination. I am nonetheless prepared to accept that she did not read through the list of amounts, or try to analyse it, or understand it in any detail. As noted earlier, the list runs for seven pages and does not contain a total of the listed amounts.

The evidence is not clear as to when the plaintiff gave instructions to Kalfus Legal to prepare the debt documents, and when the documents were provided to the plaintiff. More broadly, the evidence as to what occurred generally from late January to early April 2017 may fairly be described as sparse. It does appear, however, that the plaintiff had obtained the documents by early April 2017. It further appears that on about 3 April 2017 Mrs Sukkar had said that she was not going to sign the documents.

The respective versions of the discussion that occurred at that point are (as is commonly the position in this case) markedly different. I note, however, that on the plaintiff’s version he spoke about completing a property development and using the proceeds to purchase a house for his mother in the area; on Mrs Sukkar’s version the plaintiff said that the documents were in her best interests, and she would be able to keep her home which would not be taken away by Mr Saad or Mr Kazi. In any case, it seems that Mrs Sukkar stated that she did not want to sign the documents.

The text message then sent to her by the plaintiff effectively presented a stark choice between going to a lawyer’s office to sign the documents, or facing legal action brought by her son to recover his loans. The message concluded with the words:

Mrs Sukkar promptly responded stating that she would sign.

Within a few days an appointment had been made for Mrs Sukkar to see a solicitor, Mr Battersby, about the documents. I accept Mrs Sukkar’s evidence that the plaintiff told her that he had made the appointment. I further accept that the plaintiff spoke to her firmly about wanting the documents to be signed. I have no doubt that the plaintiff very much wanted the transaction that was embodied in the debt documents to proceed. I think it is likely that he spoke to his mother on several occasions about why she should sign the documents. I am prepared to accept Mrs Sukkar’s evidence to the effect that he spoke about the debts owed to Mr Saad and Mr Kazi (earlier mentioned in his text message of 23 January 2017), and said that he was trying to protect her. I think it likely that he said “trust me” on more than one such occasion. I think it unlikely, however, that the plaintiff told his mother not to ask any questions of the solicitor. The plaintiff’s text message of 3 April 2017 itself refers to the asking of questions if there was something not understood.

The plaintiff provided the documents to his mother and drove her to the appointment with Mr Battersby. I accept that Mrs Sukkar had not seen the documents beforehand.

Mrs Sukkar attended upon Mr Battersby. The plaintiff was not present. He had dropped his mother off outside the office. Mr Battersby was not called as a witness, and no notes he may have made were in evidence. The Court is left with only Mrs Sukkar’s uncorroborated account. Nevertheless, I think it likely that, as conceded by Mrs Sukkar, she ascertained during the meeting that one of the documents was a mortgage. Mrs Sukkar also conceded that when she left Mr Battersby’s office she knew she was being asked to acknowledge a debt of $1.6M. I infer that Mr Battersby spoke to her about what the documents were, and provided some explanation of their legal effect. I also accept that he told her that he was not going to allow her to sign the documents.

Mrs Sukkar left the meeting with the documents unexecuted. I accept Mrs Sukkar’s evidence to the effect that when she was collected by her son he was very angry, and used abusive language towards her. The denials given by the plaintiff in cross-examination (including his denial that he raised his voice) did not ring true. It is likely that Mrs Sukkar did feel scared and alone, as she testified.

It seems that later that day the plaintiff took Mrs Sukkar to Adams & Partners to see if a meeting with another solicitor could be arranged. I accept that there was no solicitor immediately available, so Mrs Sukkar made an appointment to see Mr Mazurkiewicz a few days later (on 11 April 2017).

Mrs Sukkar claims that her son drove her to the appointment with Mr Mazurkiewicz. The plaintiff denies that he did so. For the reasons given earlier, it is difficult to determine the true position. On this point I tend to think that Mrs Sukkar is correct. She gave a reasonably detailed account in her affidavit of the events leading up to the execution of the documents. The plaintiff, in response, essentially denied that the conversations occurred as put by Mrs Sukkar, but did not provide his own account of events. He stated that he relied upon his earlier affidavit, but this affidavit did not deal with the detail of what occurred on 11 April 2017 other than to refer to the fact that the debt documents were executed.

I consider it likely that on 11 April 2017 the plaintiff did speak to his mother about the signing of the documents, and in so doing told her in effect that she must do so. I also think it likely that he spoke to her in an angry and aggressive manner. I doubt that he threatened to kill his mother, but even if he used such extravagant language, I am unable to accept Mrs Sukkar’s evidence that she believed he might actually do so. In my opinion, Mrs Sukkar’s evidence on this matter in the witness box was exaggerated. I would not be prepared to go further than find that she felt afraid of what might happen as between her son and herself if she did not go ahead and sign the documents as urged by him. I accept that at the same time Mrs Sukkar was concerned about signing the documents, as she had come to believe that they were not for her protection.

I am also unable to accept her evidence that the plaintiff told her to tell the solicitor that her son was insisting that she sign the documents. The plaintiff was evidently conscious of a need to have the documents signed by his mother after she had obtained independent legal advice. The making of statements such as that would hardly assist the achievement of that outcome. Similarly, I doubt that the plaintiff would have told his mother to “just nod” and not say anything other than “I understand, and I want to sign the documents”.

Mr Mazurkiewicz was called as a witness. He deposed that his meeting with Mrs Sukkar went for one hour. Mr Mazurkiewicz recalls that Mrs Sukkar “did not in any way seem distressed”. He said that she appeared to have a good understanding of English. Mr Mazurkiewicz denied that she had said that her son insisted that she sign the papers. Mr Mazurkiewicz stated that he reviewed and explained all of the documents to Mrs Sukkar “who acknowledged she understood and then signed each of the documents”.

Mr Mazurkiewicz deposed that he told Mrs Sukkar that the interest rate was 6% but if she fell behind 10% was payable. He says that Mrs Sukkar replied:

Mr Mazurkiewicz further deposed that he asked Mrs Sukkar how she was going to repay in excess of $1M, to which she replied:

Mr Mazurkiewicz also recalls Mrs Sukkar saying:

Mr Mazurkiewicz made a file note of the meeting. The file note reads:

In cross-examination, Mr Mazurkiewicz said that every time he asked Mrs Sukkar about something she said she was “well aware”. He could not recall the matter about which Mrs Sukkar said she was trusting her son. Mr Mazurkiewicz said that he made no inquiry about that. He agreed that he did not ask Mrs Sukkar how she was going to meet the monthly interest payments. He accepted that he did not turn his mind to how she was going to meet those payments. Mr Mazurkiewicz also gave evidence that initially he was not entirely comfortable about Mrs Sukkar signing the documents. It seems that this lack of comfort was due to the amount of the debt. Mr Mazurkiewicz explained that he raised that issue with Mrs Sukkar, and was told about the Family Court proceedings. He agreed that he did not consider, or ask any question about, when those proceedings might be resolved. He accepted that it could have been years away. Mr Mazurkiewicz said that he had no indication that Mrs Sukkar was being bullied into signing the documents.

I accept that Mr Mazurkiewicz was a truthful witness who attempted to accurately recall the events. His recollection is no doubt assisted by the content of his file note. The file note itself is likely to be a reasonably accurate, albeit brief summary, account of what occurred at the meeting.

I generally prefer the evidence of Mr Mazurkiewicz to that of Mrs Sukkar. In particular, I do not accept that she told Mr Mazurkiewicz that her son insisted that she sign the papers. I reject her evidence to the effect that Mr Mazurkiewicz did not give her any advice about the papers, or give any explanation of what they meant. I am satisfied that after reading through the documents, Mr Mazurkiewicz provided an explanation of the legal effect of the documents, including the Deed, the Agreement and the Mortgage, and in each case Mrs Sukkar said words to the effect that she was well aware of and understood the provisions of the document. Mrs Sukkar made a declaration to the effect that she had received independent legal advice concerning the documents.

It appears, however, that Mr Mazurkiewicz did not discuss in any depth how Mrs Sukkar might in practical terms meet the legal obligations she would assume under the documents. The discussion went no further, it seems, than an inquiry about how the debt the subject of the Deed would be repaid, and Mrs Sukkar’s answer that the Family Law proceedings would yield sufficient funds. It appears that there was no discussion at all about how Mrs Sukkar might be able to meet the obligation to pay interest each month. Mrs Sukkar did not obtain any independent financial advice about the transaction. She signed a waiver in that regard.

Section 7(1) of the Contracts Review Act (“the Act”) provides:

The term “unjust” is defined in s 4 of the Act to include “unconscionable, harsh or oppressive”.

Section 9 of the Act provides:

The applicable principles were not the subject of dispute. It is only necessary at this point to refer to two authorative decisions in order to show how the statute is to be understood and applied. First, in West v AGC (Advances) Ltd (1986) 5 NSWLR 610 McHugh JA (with whom Hope JA agreed) stated at 620:

Secondly, in Provident Capital Ltd v Papa (2013) 84 NSWLR 231; [2013] NSWCA 36 Allsop P stated at [7]:

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

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

The submissions on behalf Marc Sukkar emphasised the following matters:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 7(1) provides:

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

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

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

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

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

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