[2016] NSWSC 1472

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

See [60]

Catchwords

CONTRACTS- Whether contract “unjust”- where the defendant seeks pursuant to the Contracts Review Act 1980 (NSW) to set aside a Settlement Agreement on the basis of a claimed mental condition. HELD- The defendant failed to establish that she was suffering from a mental condition; HELD- Even if the defendant was suffering from the mental condition claimed in all the circumstances the Settlement Agreement was not unjust within the meaning of s.9 of the Act. HELD- Even if contrary to the above conclusions the Settlement Agreement was unjust within the meaning of the Act the Court would not exercise its discretion to set aside the contract- the plaintiffs had no knowledge of defendant’s condition-there was nothing harsh, unconscionable or unfair about Settlement Agreement and the defendant was throughout the process of negotiation and settlement legally represented.

Cases cited

Antonovic v Volker(1986) 7 NSWLR 151
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300;[1993] HCA 6
Beneficial Finance Corp Ltd v Karavas(1991) 23 NSWLR 256
Citicorp Australia Ltd v O'Brien(1996) 40 NSWLR 398
Dimarti v Dimarti[2015] NSWSC 97
Elders Rural Finance Ltd v Smith(1996) 41 NSWLR 296
Elkofairi v Permanent Trustee Co Ltd[2002] NSWCA 413; (2002) 11 BPR 20,841
Mbuzi v AGL Retail Energy Ltd[2016] FCA 590 at [31]
Nguyen v Taylor(1992) 27 NSWLR 48
Perpetual Trustee Co Ltd v Khoshaba[2006] NSWCA 41; (2005) 14 BPR 26,639
Riz v Perpetual Trustee Australia Limited[2007] NSWSC 1153; (2007) ANZ ConvR 615
Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell[2011] NSWCA 389; (2011) 15 BPR 29,699
West v AGC (Advances) Ltd(1986) 5 NSWLR 610

Legislation cited

Contracts Review Act 1980 (NSW)
Civil Procedure Act 2005 (NSW)

Judgment

[1]
These proceedings relate to the Estate of Mr Tomo Tomac who died on 5 July 2014 aged 86 years of age (“the Testator”). He left an estate worth approximately $1.7 million made up almost entirely by the value of the Ashfield house in which he lived.
[2]
The Testator made a will dated 11 March 2009 (“the 2009 Will”) and another will later dated 12 August 2011 (“the 2011 Will”).
[3]
The plaintiffs, William and Valnea Tomac, are two of the three children of the Testator. The third child, the defendant Mrs Antonia Papp (“Mrs Papp”), was a child of the Testator’s late wife and was brought up as a child of the marriage of the Testator and his late wife.
[4]
By the 2009 Will Mr Tomac divided the net estate into three equal shares to William, Valnea and Mrs Papp- but the bequest to Mrs Papp was for her life only. The plaintiffs were appointed executors of the 2009 Will.
[5]
By the 2011 Will Mr Tomac left the whole of his estate to Mrs Papp. Mrs Papp is also named as the executor of that will. Mrs Papp has lived in the Ashfield house for many years and since her marriage to her husband Mr Antonio Papp she and her husband have resided there with the Testator until the Testator’s death.
[6]
Mrs Papp sought to obtain probate of the 2011 Will but this was contested by the plaintiffs who had commenced proceedings seeking probate of the 2009 Will. The plaintiffs claim that the Testator did not have sufficient mental capacity to execute the 2011 Will, and that it was not properly explained to him.
[7]
Against the possibility that probate would be granted of the 2009 Will Mrs Papp filed a “Family Provision Act” (“FPA”) claim and against the possibility that probate would be granted of the 2011 Will the plaintiffs also filed FPA claims.
[8]
On 7 September 2015 the probate proceedings (which includes Mrs Papp’s FPA claim and the plaintiffs’ FPA claims) were referred to mediation.
[9]
On 14 October 2015 a mediation of the two Supreme Court proceedings took place before Mr John Armfield of Counsel. The plaintiffs were represented by Ms Anne Gibbon of Counsel and Ms Janice Williams, solicitor. Mrs Papp was represented by Dr Elizabeth Peden of Counsel and Mr Maurice Marshan, solicitor.
[10]
An agreement for the settlement of the proceedings was reached and reduced to writing: see Annexure “A” to the affidavit of 6 November 2015 “the Settlement Agreement.”
[11]
The Settlement Agreement was executed by the plaintiffs and by Mrs Papp on 14 October 2015.
[12]
On 21 October 2015 Mrs Papp indicated to the Court through a barrister that she was seeking independent advice about her position.
[13]
Mrs Papp admits that she signed the Settlement Agreement but contends that she is entitled by reason of the Contracts Review Act 1980 (NSW) (“CRA”) to have the Settlement Agreement set aside. The basis of that contention is that she claims that she was suffering from a mental condition on the day of the mediation which affected her ability to comprehend the significance of the Settlement Agreement.
[14]
The plaintiffs seek to enforce the Settlement Agreement.
[15]
Mrs Papp in resisting enforcement of the Settlement Agreement relies on her affidavit of 30 November 2015, her husband’s affidavit of 30 November 2015 and the affidavit of a psychiatrist Dr Adam Martin of 1 December 2015 whose report of 10 November 2015 is annexed to his affidavit.
[16]
The plaintiffs rely on their affidavits of 9 March 2016, and Ms William’s affidavits of 6 November 2015 and 30 July 2016. There is also an affidavit of an independent solicitor Ms Madeline Joyce Reid of 4 November 2015 by which Ms Reid consents to act as an administrator.
[17]
Mrs Papp accepts that if, contrary to her contentions, the Settlement Agreement is not set aside, the orders which the plaintiffs seek in order to enforce the Settlement Agreement are appropriate.
[18]
Mr Ellison did not concede that it was open to Mrs Papp to raise the CRA in answer to the plaintiffs’ Notice of Motion without formally commencing separate proceedings but I accept Mr Levet’s submission that s.73(1)(a) of the Civil Procedure Act 2005 (NSW) and Dimarti v Dimarti [2015] NSWSC 97 Lindsay J [1]-[6] provide support for that course.
[19]
Mrs Papp claims in essence she was afflicted by anxiety and panic attacks during the day of the mediation and that when she signed the Settlement Agreement her will was overborne by panic created by the stressful situation. There are matters about which she deposes that could only be known to herself, her husband, Mr Marshan and Dr Peden. She does not assert that the plaintiffs were aware of the condition from which she claims to have been suffering or that they took advantage of her or acted improperly. The only conduct of the plaintiffs which might have relevance is that before the mediation formally began they indicated that they did not want Mr Papp to be present at the opening session of the mediation because they felt (or claimed to have felt) intimidated by him. There is no dispute that Mr Papp left the opening session and returned some 20 minutes to half an hour later by which time Mrs Papp and her lawyers were in their room and the plaintiffs and their lawyers were in their room. There is no dispute that Mr Papp remained with Mrs Papp for the rest of the day up to and including settlement.
[20]
Neither Ms Williams nor the plaintiffs were cross-examined on their affidavits. Ms Williams deposes to the following:
1. (1)
  The mediation started at 10:00am and ended at approximately 5:15pm
2. (2)
  Ms Williams made contemporaneous notes during the course of the mediation: see Annexure A to her affidavit. The notes record inter alia the offers made on behalf of the plaintiffs and Mrs Papp and a transcript of the offers became Exhibit B.
3. (3)
  Mr Armfield’s notes of the settlement are found at p.13 of Ms Williams’ affidavit.
4. (4)
  The course of offers (from Exhibit B) were:
[21]
It will be observed that:
1. (1)
  In contrast with the plaintiffs’ opening position of 60% to them and 40% to Mrs Papp, and Mrs Papp’s position of 80% to her and 20% to both the plaintiffs, the position on settlement ended up as 51% to Mrs Papp and 49% to the plaintiffs.
2. (2)
  The fourth and subsequent offers and counter offers all addressed the question of how long Mr and Mrs Papp would have in the property before being required to vacate and the offers from the plaintiffs at 1:50pm and later (and Mrs Papp’s response) involved the plaintiffs agreeing to advance money to Mrs Papp to enable her to clean up the property (on Ms Williams’ affidavit) or to take up alternative accommodation (on Mrs Papp’s understanding).
3. (3)
  The Settlement Agreement reflected the terms of the eighth offer made on behalf of Mrs Papp which was accepted orally and then reduced to writing first as a note of the mediator and then in the Settlement Agreement.
[22]
Mr Tomac says at paragraph 11 of his affidavit:
[23]
Ms Tomac says that on 14 October 2015 Mrs Papp appeared to be calm and confident as usual at the initial opening meeting and that she did not notice any difference from Mrs Papp’s usual demeanour when Mrs Papp left the venue after the terms were signed. She also says (as does her brother) that she has never observed Mrs Papp unable to cope.
[24]
In her affidavit Mrs Papp deposed to a number of matters concerning the day of the mediation:
1. (1)
  She is 53 years of age and has been in receipt of a Disability Support Pension due to health problems namely cerebral palsy, asthma and chronic sinusitis.
2. (2)
  When her mother passed away in 2011 she began to “experience stress and anxiety” which she says she has continued to suffer since then.
3. (3)
  Dr Peden told her shortly before the mediation was about to start that the other side did not want Mr Papp in the room and that “he would have to leave” the explanation given to her was that the plaintiffs say that he is aggressive and she “began to feel palpitations” in her chest and “feelings of panic” and that she said to Dr Peden and Mr Marshan words to the effect:
4. (4)
  That Ms Gibbons (the plaintiffs’ barrister) said in her presence words to the effect:
5. (5)
  What must have been the opening session lasted for “about 20 minutes” according to Mrs Papp and she felt very stressed:
6. (6)
  Mrs Papp says that after lunch she heard the mediator saying to Dr Peden and Mr Marshan words to the effect of:
7. (7)
  Mrs Papp says that at one point there was discussion between Mr Marshan and Dr Peden about their holidays and their children’s schooling. Mrs Papp says of this:
8. (8)
  Mrs Papp says that:
9. (9)
  I set out the balance of Mrs Papp’s affidavit paragraphs 23-29:
[25]
Mr Papp in his affidavit says:
1. (1)
  That Dr Peden said to him in the presence of his wife that the plaintiffs did not want him present (at the opening session) and that his wife responded as Mrs Papp deposed. He says that Mr Marshan said:
2. (2)
  That the mediator said:
3. (3)
  He confirms that Dr Peden and Mr Marshan discussed holidays and their children’s schooling and that Dr Peden told Mr Marshan she would have to leave early as she had to catch a flight to Melbourne.
4. (4)
  He says that:
5. (5)
  That Mr Marshan then said:
6. (6)
  Mr Papp says that he then said to Mr Marshan and Dr Peden:
7. (7)
  That at 4pm Dr Peden said to Mr Marshan when an offer of 51/49 was made (by the plaintiffs):
8. (8)
  He says that Dr Marshan referred to the $20,000 offer “to rent a place or put a deposit on a house” and that Mr Marshan said to Mrs Papp:
9. (9)
  He says that when Dr Peden said she had to leave he observed his wife become more anxious,
10. (10)
  that he said three times to his wife:
11. (11)
  that Mr Marshan raised his voice to his wife and said:
12. (12)
  that,
[26]
The evidence is that on the day following the mediation Mrs Papp went to see her doctor. Her usual doctor (Dr Kochan) was not there so she saw Dr Kumaran who prescribed medication for her. Mrs Papp says that she did not take any of the medication prescribed.
[27]
Dr Kumaran’s medical certificate is in the following terms:
[28]
Dr Adam Martin is a psychiatrist. He was retained by Mrs Papp’s solicitors to provide an expert report. The report, dated 10 November 2015, is annexed to Dr Martin’s affidavit.
[29]
Dr Martin was asked to provide an opinion on a number of questions namely:
[30]
Dr Martin noted that Mr Papp was present during his interview with Mrs Papp. Much of what Dr Martin records in the history is the same as that deposed to by Mrs Papp in her affidavit. She did tell Dr Martin that:
[31]
Mrs Papp told Dr Martin that at the time she signed the document she had been experiencing an anxiety attack- that she was “shaking” and telling her solicitor she was anxious and that:
[32]
Dr Martin summarised the account as follows:
[33]
Mrs Papp told Dr Martin that she was currently taking St John’s Wort (which he described as an over-the-counter herbal remedy for anxiety and depression). He notes that Mrs Papp had been prescribed medication for anxiety attacks but that she had not taken it. He notes that Mrs Papp had not seen a psychologist or psychiatrist for treatment. She told him that she had developed “anxiety symptoms in the aftermath of her mother’s death.” She said that she had never been admitted to a mental health unit or that she had ever deliberately self- harmed or attempted suicide (p. 3). On p. 4 he described her mental state on examination:
[34]
I summarise various matters from the evidence (other than medical evidence) which are not in dispute:
1. (1)
  The defendant’s four offers (like the plaintiffs’ offers) all involved a division of the estate that could only be put into effect by the sale of the property in which Mr and Mrs Papp reside: T20-T21.
2. (2)
  The plaintiffs’ offer which was accepted produced a result for Mrs Papp that was a considerable improvement for her on the provisions of the 2009 Will because:
3. (3)
  Mrs Papp was aware of what is in (2)(a)-(b) when she signed the Settlement Agreement: T22.22.
4. (4)
  Mrs Papp at all stages of the mediation had present with her Mr Marshan a solicitor who she had known for a number of years and whom she regarded as a friend: T22.11.
5. (5)
  Mrs Papp had Dr Peden present with her at all stages of the mediation including the acceptance of the eighth offer but not at the point when Mrs Papp signed the Settlement Agreement who she had met with several times for the purposes of the case: T17.36-39, 22.16.
6. (6)
  That although Dr Peden said she had to leave, on Mrs Papp’s evidence she did not leave until after Mrs Papp had accepted the eighth offer: T17.25-30.
7. (7)
  Mrs Papp at all stages of the mediation, except the opening session, had her husband present with her: T14.37-40, T27.10-17.
8. (8)
  Mrs Papp understood at all relevant times that there could in the forthcoming Court case be no certainty that the 2011 Will would be accepted as valid and that even if it was she would have to succeed in defending the plaintiffs’ FPA claims: T23.7-T24.6 and see T13.13-34.
9. (9)
  Mrs Papp was aware that to take the case to trial would involve further costs for her beyond the estimate of $80,000- $85,000 incurred to that point: T25.3-7.
10. (10)
  Mrs Papp can read English and Mr Marshan went through with her the document which she signed: T18.24-32.
11. (11)
  Mrs Papp was endeavouring to get the best possible settlement if the case was going to settle: T24.5-10 and see T20.1-3, and she accepted at T10.42 that she was told that she could not have everything she wanted if there was to be a settlement.
[35]
Mrs Papp does not claim that the Settlement Agreement was in any respect induced by unconscionable, harsh or oppressive conduct (or indeed any conduct) on the part of the plaintiffs. Further there is nothing to indicate that the settlement was anything other than a very appropriate settlement of litigation the outcome of which was uncertain and one outcome of which would have been far less advantageous to Mrs Papp than the settlement she succeeded in obtaining at the mediation.
[36]
A further significant matter is that it is not suggested by Mr Levet that the plaintiffs were aware of any of the matters of which Mrs Papp complains other than that it was their request that Mr Papp not be present in the opening session a request which Mrs Papp’s lawyers acceded to.
[37]
Clause 2 of the 2011 Will is expressed as follows:
[38]
The relevant sections of the CRA for present purposes are the following:
[39]
There are a number of Court of Appeal cases which provide guidance on the interpretation and application of the CRA: West v AGC (Advances) Ltd (1986) 5 NSWLR 610 (“West”), Antonovic v Volker (1986) 7 NSWLR 151 per Samuels JA Kirby P agreeing p.157 C-D, Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41; (2005) 14 BPR 26,639 (“Khoshaba”), Nguyen v Taylor (1992) 27 NSWLR 48 (“Nguyen”), Elders Rural Finance Ltd v Smith (1996) 41 NSWLR 296 (“Elders”), Beneficial Finance Corp Ltd v Karavas (1991) 23 NSWLR 256, Citicorp Australia Ltd v O'Brien (1996) 40 NSWLR 398 at p.420, Elkofairi v Permanent Trustee Co Ltd [2002] NSWCA 413; (2002) 11 BPR 20,841, Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell [2011] NSWCA 389; (2011) 15 BPR 29,699. In addition to these cases there is a decision of Dimarti to which Mr Levet made reference.
[40]
I have been assisted by the summary of the law found in Covell & Lupton’s Principles of Remedies (6th edition, Lexis Nexis 2015) at 16.4-16.7.
[41]
There was no dispute by Mr Ellison that the Settlement Agreement is a contract which comes within the purview of the CRA. Mr Ellison contended that the Court must first determine whether the contract in question is “unjust” or “unfair” unconscionable, harsh or oppressive but he conceded that “unjust in circumstances relating to the contract at the time it was made” appears to permit the Court to view the contract as “unjust” within the meaning of the CRA even if it is not shown to itself be unfair harsh, or oppressive in its terms. Another question of principle is whether an order can be made even where the other party to the contract in question has had no role in creating what is claimed to be the unjustness. Karavas per Meagher JA at p.277, Elkofairi at [78] and Nguyen p.55B per Kirby P. and p.71D per Sheller JA indicate that the Court can do so, and semble Meagher JA at p.61F.
[42]
The Court in Nguyen applied a dictum of Meagher JA in Karavas:
[43]
In Khoshaba Basten JA (with whom Handley JA agreed), formulated a two-stage approach to claims under the CRA once the primary facts have been determined i.e:
[44]
Thus in Nguyen, whilst the Court came to the conclusion that the contract was unjust because it gave the vendor no opportunity to get out of the contract within 30 days as the vendor’s real estate agent had told him he could, the Court unanimously denied relief to the vendor as a matter of discretion. The two reasons for that refusal were:
1. (1)
  The other party to the contract were entirely innocent of the unjustness.
2. (2)
  The plaintiff had very likely alternative remedies against the real estate agent.
[45]
The following principles can be derived from West:
1. (1)
  The CRA is “beneficial legislation” to be “interpreted literally:” West per Kirby P p.611, McHugh JA at p.631, Hope JA at p.618
2. (2)
  The Court can consider circumstances which were not known to the other contracting party but:
3. (3)
  A contract can be unjust because of the way it operates, or because it imposes an unreasonable burden on the claimant when it was not reasonable for the protection of the legitimate interest of the other party: McHugh JA p.620 (Hope JA p.618)- i.e what might be labelled “substantive injustice.” A contract may be unjust because in the circumstances the claimant “did not have the capacity or opportunity to make an informed or real choice as to whether he should enter into the contract” p.620F- i.e. what might be labelled “procedural injustice.”
4. (4)
  In relation to procedural injustice “if a contract or one of its relevant provisions is neither unfair nor unreasonable so far as the applicant is concerned it is difficult to see how the existence of inequality in bargaining power or lack of independent advice, for example, can render the contract or a provision of the contract unjust:” West p.621C per McHugh JA.
5. (5)
  The CRA regulates contracts not transactions: West per McHugh JA p. 621E.
6. (6)
  Lack of independent advice or the fact that the contract was not in the interest of the applicant is insufficient: West p.621F per McHugh JA.
7. (7)
  The CRA makes it plain that whether or not the contract or any provision of it is unjust “requires an examination of the position and rights of the party against whom relief is claimed:” West p.626D per McHugh JA.
[46]
The citation in [45](4) above provides some support for Mr Ellison’s contention referred to in [41] above but I accept that it does not necessarily follow and Nguyen seems to support the contrary view. I shall proceed on the basis that the CRA does not preclude relief from being given merely because the contract itself is not in any way unfair or unjust.
[47]
In West McHugh JA said:
[48]
In Tonto Allsop P. (with whom Bathurst CJ And Campbell JA concurred), emphasising the importance of public interest said:
[49]
I think that s.9(2) by specifically referring to the public interest requires that the Court must, in deciding whether or not a contract is unjust, take into account the public interest. I think it is clear from Tonto that it is a factor to be considered in every case. Where there has been dishonesty, trickery or other forms of predatory conduct the public interest in seeking that bargains are upheld is likely to weigh far less than where there has been no such conduct. I accept that in Nguyen the Court saw the innocence of the respondent as relevant to the discretion rather than the unjustness of the contract but the statute requires all of the circumstances to be considered in determining the s.9 issue. West I think demonstrates the importance of looking at whether the contract itself has any unfair or harsh terms and whether if there has been any procedural unfairness to the applicant the other party was responsible for, or aware of, that conduct.
[50]
There is a second element to the public interest which is relevant to this case. As the High Court has remarked Courts are keen to encourage settlement of proceedings. Mason CJ referred to “the public interest in the finality of litigation” see Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 at p.302 a dictum to which reference was recently made in Mbuzi v AGL Retail Energy Ltd [2016] FCA 590 at [31] per Edelman J.
[51]
There has been over the last 30 years a most significant push towards early resolution of cases and a massive increase in the use of mediation. I think that it is a very real disincentive to acceptance of mediation as a process to permit a party who agrees to a resolution and signs settlement documentation to be able to resile from the agreement as a result of matters for which the other party had no responsibility and no knowledge. Parties to a mediation ought be able to be confident that if the opposing party, represented by lawyers, makes an offer through his or her barrister or solicitor that the offer can be accepted and reduced to writing and which when signed will be final.
[52]
In Dimarti Lindsay J was dealing with a defendant who had entered into a compromise agreement and sought to have that agreement and orders made pursuant to it set aside in reliance on the CRA. Lindsay J noted at [29] that the parties had agreed that both sides of the dispute had a bona fide case to advance and that it was neither necessary or appropriate to explore the merits of the claim and cross-claim which had been settled by the agreement. His Honour rejected the defendant’s case saying inter alia:
[53]
There was no point on which Mrs Papp was demonstrated to have given false evidence. There are however a number of matters which lead me to doubt the veracity of her and her husband’s version of what occurred at the mediation:
1. (1)
  She claims that she suffered an anxiety or panic attack on that day and that she had suffered anxiety since 2011 yet,
2. (2)
  Dr Martin expressed the view that Mrs Papp was able as at 9 November 2015 to give effective instructions in relation to the legal proceedings. Having regard to her performance in the witness box I have no doubt that she was able on the day of the hearing before me to properly instruct her solicitors and Counsel. It is difficult to conclude that were she able to do so on Monday 5 September 2016 and on 9 November 2015 she was not able to do so on 14 October 2015 when it is clear that she has taken no prescription medication nor had any treatment between then and now. It is likely that her appearance on 5 September 2016 and being subject to cross-examination was stressful for her but she was able to answer questions and indeed embark upon a forceful expression of her position and her view about the plaintiffs: (see T11.15-24, T12, T21 ). I accept that she may have found the mediation stressful and even that she may have been anxious but the real question is whether she was so affected by the stress and anxiety as a result of a condition that she could not properly make decisions about the settlement offers and most particularly the last offer made by the plaintiffs accepted by her through her lawyers and then recorded in an agreement.
3. (3)
  She asserts that she always intended to uphold the 2011 Will. That contention is quite inconsistent with the offers that were made on her behalf at mediation, and see T23.15 – T24.10. At T17.25-35 Mrs Papp said in relation to the eighth offer from the plaintiffs, “we fought for it, yes but yeah, they had to go into it otherwise it would not finish.”
4. (4)
  The fact of the offers made on her behalf (and not said to be made without her instructions) undermines her contention that her anxiety was an impediment to her giving fully informed consent to the settlement: see T29.15-28 where she agreed that she had negotiated a deal after a number of hours of discussion T14.17-19.
5. (5)
  She asserts that she had decided to leave the mediation because of her anxiety but she did not do so. Her explanation for not doing so is that her solicitors told her not to worry. Similarly later in the day she says she wanted to leave but the fact is she did not do so. A desire to leave the mediation if there were such a desire is not necessarily indicative of panic or anxiety but is consistent with frustration at the pace of negotiation.
6. (6)
  Mr Papp says he told Mrs Papp to think about the Settlement Agreement before signing it: T39.16-47, but Mrs Papp did not say in her affidavit that he told her that.
7. (7)
  There is no evidence from Mr Marshan or Dr Peden corroborative of Mrs Papp’s claim that she and her husband told them she was experiencing a panic attack, or debilitating anxiety. Mr and Mrs Papp’s’ evidence is that Mr Marshan and Dr Peden effectively ignored Mrs Papp’s condition even when she was, on her evidence, shaking and on Mr Papp’s evidence that he said to them “look at her she is having one of those- look I know her and I don’t think she is fit to be signing anything” T30.6-26. I find that unlikely. I should add that the allegations involve a serious breach of professional obligation on the part of Mr Marshan and Dr Peden and to make findings of such conduct would require persuasion to a level that takes into account their seriousness. Were I however to accept that Mr Marshan and Dr Peden were informed of, and did not take heed of, Mrs Papp’s proclaimed discomfort and unfitness to proceed that could give rise to claims against them - a matter relevant on discretion.
8. (8)
  Mrs Papp when asked about whether a settlement involves a compromise said, “Yes. Well, I had to do it because you know they just wouldn’t let it go. That is the problem” T20.5-8.
9. (9)
  Mrs Papp in her affidavit referred to the mediator’s comments but she did not actually say she was influenced by them. Under cross-examination she said that Mr Marshan and Dr Peden told her that “the only way out is this way” and she asked Mr Marshan “is it ok to sign it” and “so I signed it thinking he knew better than I did. That makes me upset:” T18.40-45 and see T30.35. She also spoke of her trust in Mr Marshan and Dr Peden: T22.20. Such reliance is a quite different matter to a claimed inability to properly consider the proposed settlement.
10. (10)
  Whilst Mrs Papp claimed in her affidavit that she could recall little from what occurred at the mediation Mr Ellison elicited a number of concessions about what had occurred during the course of the day.
11. (11)
  What is recorded by Dr Martin and referred to at [31] is not contained in her affidavit and nor is the evidence she gave in cross- examination at T30.6-13.
[54]
There is no doubt regret by Mrs Papp, that she agreed to settle because she felt afterwards and on further reflection that she could have successfully resisted the plaintiffs’ claims or even that she ought to have resisted those claims whatever the outcome.
[55]
The matters to which I have referred in [34]- [36] [53] –[55] leave me unpersuaded that Mrs Papp had a condition which precluded her from giving proper consideration of the settlement proposal and giving instructions to, and understanding the advice of, her solicitors.
[56]
The failure of Mrs Papp to establish that she was not able to properly consider whether to enter into the Settlement Agreement by reason of a mental condition leads inexorably to the conclusion that she is not entitled to have the Settlement Agreement set aside pursuant to the CRA. I shall however consider the matter on the basis that she has established that she was overcome by panic and or anxiety and was not able to properly consider the effect of the settlement.
[57]
Even accepting Mrs Papp’s evidence that she experienced a panic attack and was not properly able to consider the effect of the settlement I am not persuaded that the Settlement Agreement was unjust in all the circumstances relating to the contract because of the following matters which s.9 requires to be considered:
1. (1)
  the plaintiffs had no knowledge of her anxiety problem,
2. (2)
  the plaintiffs were entitled to understand that the offers which were made by them to Mrs Papp and offers made by Mrs Papp to them were properly considered and the subject of appropriate advice and assistance to Mrs Papp. The need for the plaintiffs to move from their opening position to 51:49 and with other terms favourable to Mrs Papp would have generated an impression that Mrs Papp was well advised and actively protecting her position,
3. (3)
  Mrs Papp had legal representation- not only a solicitor but also a barrister,
4. (4)
  there is nothing to indicate that there is any unfairness in the Settlement Agreement itself and there was no suggestion to the contrary. It appears on its face reasonable giving Mrs Papp a result considerably better than the position she would have been in if the 2011 Will was not upheld. Further the Settlement Agreement clearly reflected what had been proposed by the plaintiffs by their eighth offer and accepted by Mrs Papp,
5. (5)
  there was absolutely no inequality of bargaining power,
6. (6)
  the provisions were all the subject of intense negotiations with the benefit of legal advice,
7. (7)
  it was entirely practical for Mrs Papp and those advising her to reject or have altered any of the provisions,
8. (8)
  Mrs Papp was literate and understood what was offered by her and what was contained in the Settlement Agreement,
9. (9)
  no undue influence was exerted by anyone on Mrs Papp,
10. (10)
  there was no dishonesty, deception, trickery or predatory conduct on the part of anyone and the public benefit considerations strongly favour the conclusion that the contract was not ‘unjust’ within the meaning of the CRA.
11. (11)
  The public interest considerations to which I have earlier referred favour the conclusion that the Settlement Agreement should stand.
[58]
If I am in error in concluding that in all the circumstances of the case the Settlement Agreement is not unjust, then I would for the same reasons articulated in [57] above not exercise my discretion in this case to set aside the Settlement Agreement. That was the approach of the Court of Appeal in Nguyen (and the trial judge in that case) and whilst in that case the applicant had been misled by his vendor whereas here the applicant relies on her mental state I think that similar considerations apply: i.e. the plaintiffs had no knowledge of the condition of Mrs Papp nor had they taken advantage of Mrs Papp by accepting her offer and there is nothing harsh or unconscionable or unfair about the Settlement Agreement. Mrs Papp, unlike Mr Taylor in Nguyen, had the benefit of legal representation throughout the day.
[59]
It follows that Mrs Papp’s application to set aside the Settlement Agreement should be dismissed and the orders sought by the plaintiffs for enforcement should be made.
[60]
Mrs Papp should pay the plaintiffs’ costs of the plaintiffs’ Notice of Motion as agreed or assessed.