Supreme Court New South Wales

• Medium Neutral Citation: Virginia Nemeth (by her tutor) v Australian Litigation Funders Pty Ltd and Ors [2013] NSWSC 529
• Hearing dates: 11, 12, 13, 14, 25, 27 February 2013, oral submissions 2 April 2013, further oral submissions 4 April 2013
• Decision date: 09 May 2013
• Jurisdiction: Equity Division
• Before: Sackar J

Decision

See paragraph [328].

• Catchwords: CONTRACTS - heads of agreement - whether binding arrangement - use of extrinsic evidence in determining formation of contract - construction of contracts - use of extrinsic evidence in construction of contract.; CONTRACTS - relief from obligations - relief under general law and consumer protection legislation from contractual obligations - whether contract is unjust under the Contracts Review Act 1980.; EVIDENCE - admissibility of non-expert evidence as to human condition, personal characteristics and behaviour - assessment of credibility of witness - discretion of judge to accept or reject evidence - whether appointment of tutor affects discretion to make findings as to credibility.; EQUITY - unconscionable conduct - whether defendant engaged in unconscionable conduct at general law.; TRADE AND COMMERCE - trade practices - whether defendant engaged in unconscionable conduct under the Trade Practices Act 1974 (Cth) - whether director of corporate defendants is liable as accessory.
• Legislation Cited: Fair Trading Act 1987; Uniform Civil Procedure Rules 2005; Australian Securities and Investments Commission Act 2001 (Cth); Corporations Act 2001 (Cth); Family Law Act 1975 (Cth); Trade Practices Act 1974 (Cth)
• Cases Cited: Aboody v Ryan [2012] NSWCA 395; Alievski v Cross Country Realty Victoria Pty Ltd [2010] VSC 316; Antonovic v Volker (1986) 7 NSWLR 151; Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (2000) 169 ALR 324; Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51; Australian Competition and Consumer Commission v Lux Pty Ltd [2004] FCA 926; Bakarich v Commonwealth Bank of Australia [2007] NSWCA 169; Azar (by her tutor Ibrahim) v Kathirgamalingan (2012) 62 MVR 462; Baltic Shipping Co v Dillon (1991) 22 NSWLR 1; Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256; Blomley v Ryan (1956) 99 CLR 362; Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; Bridgewater v Leahy (1998) 194 CLR 457; Collier v Morlend Finance Corp (1989) ASC ¶55-176; Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; Conley v Commonwealth Bank of Australia [2000] NSWCA 101; Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184; Cubillo v Commonwealth of Australia (2000) 174 ALR 97; Current Images Pty Ltd v Dupack Pty Ltd [2012] NSWCA 99; Elkofairi v Permanent Trustee Co Ltd [2002] NSWCA 413; Esanda Finance Corporation Ltd v Tong (1997) 41 NSWLR 482; Ferdinand Nemeth and Anor v Prynew Pty Limited and Ors [2005] NSWSC 1296; Fox v Percy (2003) 214 CLR 118; Franklins Pty Ltd v Metcash Trading Ltd [2009] 76 NSWLR 603; Fuji Xerox Finance Limited v CSG Limited & Ors [2012] NSWSC 890; Grace Shipping v Sharp & Co (1987) 1 Lloyds Law Rep at 207; Kowalczuk v Accom Finance Pty Ltd [2008] NSWCA 343; Legal Services Commissioner v Sing [2007] LPT 4; Louth v Diprose (1992) 175 CLR 621; McCourt v Cranston [2012] WASCA 60; Mumtaz Properties) v Ahmed and Others [2011] EWCA Civ 610; New South Wales Bar Association v Maddocks [1988] NSWCA 102; Onassis v Vergottis [1968] 2 Lloyds Rep 403; Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41; Provident Capital Ltd v Papa [2013] NSWCA 36; R v Turner [1975] QB 834; Riz v Perpetual Trustee Australia Ltd [2007] NSWSC 1153; S H Lock (Australia) Ltd v Kennedy (1988) 12 NSWLR 482; Schwartz v Hadid [2013] NSWCA 89; West v AGC (Advances) Ltd and Others (1986) 5 NSWLR 610; Spina v Permanent Custodians Ltd [2009] NSWCA 206; St George Commercial Credit Corporation Ltd v Collins Wallis Properties Pty Ltd (Rolfe J, 11 February 1994, unreported); St George Bank Ltd v Trimarchi [2004] NSWCA 120; Tame v New South Wales (2002) 211 CLR 317; Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315; Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389; Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111; Western Export Services Inc v Jireh International Pty Ltd (2011) 282 ALR 604
• Texts Cited: Lord Bingham, The Judge as Juror: The Judicial Determination of Factual Issues (2000) Oxford University Press; Honourable Justice P A Bergin, "Judicial Mediation Problems and Solutions", (2011) The Judicial Review 305; J R Peden, The Law of Unjust Contracts, (1982) Butterworths; Sir Owen Dixon, Jesting Pilate, (1965) The Law Book Company Ltd
• Category: Principal judgment
• Parties: Virginia Diroy Nemeth (by her tutor Salwa Elias) (Plaintiff); Australian Litigation Funders Pty Ltd (First Defendant); Australian Corporate Restructuring Services Pty Ltd (Second Defendant); James Byrnes (Third Defendant)
• Representation: Counsel: R Newlinds SC, J Muir (Plaintiff); B A Coles QC, A Horvath (Defendants); Solicitors: Coleman Greig Lawyers (Plaintiff); HWL Ebsworth Lawyers (Defendants)
• File Number(s): 2011/44884

Judgment

1 This case concerns an agreement entitled "The Funding and Consultancy Agreement" (the Agreement) entered into between the plaintiff, the first defendant (ALF) and the second defendant (ACRS) in January 2010. The Agreement primarily concerned the "funding" of proceedings then on foot in the Family Court of Australia between the plaintiff and her former husband Ferdinand Nemeth.

2 In particular the plaintiff and ALF and ACR entered into the Agreement on 18 January 2010. On 26 January 2010 the respective parties entered into what has been described as an Addendum to the Agreement (the Addendum).

3 The Agreement obliged the plaintiff to pay ALF 25% of any judgment or out of court settlement that she secured in the Family Court proceedings.

4 The plaintiff seeks to be relieved from the Agreement under the Contracts Review Act 1980 and unconscionable conduct at general law and under the Trade Practices Act 1974 (Cth) (the TPA) or alternatively the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act) and the Fair Trading Act 1987 (NSW) (the FTA) amongst other bases.

5 The plaintiff says that she did not understand the agreement and that its terms were on their face unjust. She also says that at the time she was ill and suffering from anxiety and depression and was effectively overborne by the third defendant, Mr Byrnes.

6 The defendants reject the various bases upon which the plaintiff asserts she is entitled to be relieved from her obligations under the Agreement. In any event the defendants contend that if the plaintiff was ill at the relevant time there is no evidence that the defendants were aware of her condition. They contend she is not entitled to any relief.

Factual background

7 The plaintiff was born in the Philippines and as married to her former husband Ferdinand Nemeth on 19 June 1989.

8 The plaintiff was an accountant and bookkeeper. She attended university in the Philippines and also went to secretarial school there as well. She obtained her accounting qualifications at TAFE in Sydney. Throughout the plaintiff's life she has purchased and sold numerous properties both here in Australia and in the Philippines.

9 Her husband, through one of his corporate entities, owned the Hampton Court Hotel in Kings Cross. The plaintiff was actively involved in the marketing and promotion of the hotel and successfully was able to increase its occupancy rate by about 75%. She also assisted in hotel renovations which took place from time to time. She managed the books for one or more of the Nemeth interests and was actively involved in the running of a number of Nemeth companies.

10 On 25 August 2006 the plaintiff executed and filed an application for final orders in the Family Court of Australia seeking an order for a property settlement. At the time she instructed a Ms Wendy Baker, solicitor, to act on her behalf. She decided however not to immediately inform her husband that she had commenced the proceedings as she did not want to upset him.

11 On 27 December 2007 the plaintiff made an amended application for final orders in the Family Court. By this time the plaintiff had changed solicitors and had retained York Family Law (a Mr Nabil Wahhab). At the same time the plaintiff sought $250,000 in interim funding to meet her legal costs. This was agreed to by Mr Nemeth finally in early February 2008 and consent orders were made on 12 February 2008. Shortly afterwards the plaintiff terminated her retainer of York Family Law and retained a Mr Trevor Hall of Hall Partners as her solicitor in the Family Court proceedings.

12 On 12 December 2008 as the result of a mediation the plaintiff and Mr Nemeth agreed on terms to settle the Family Court proceedings. Heads of Agreement were signed. The plaintiff however was dissatisfied with the proposed agreement and refused to implement the arrangements. In broad terms the arrangement involved the plaintiff receiving (amongst other things) $8 million plus the property at 46 Mona Road, Darling Point (unencumbered).

13 On 29 January 2009 the plaintiff retained a new solicitor, Mr Max Meyer of Meyer Pigdon, family lawyers. Mr Meyer continued to act for the plaintiff and he appeared on 19 August 2009 at the divorce hearing. Mr Meyer's retainer appears to have been terminated on 12 October 2009. The plaintiff indicated in an email to him of that date that she was taking that course "due to a lack of funds". She also indicated that she intended to represent herself thereafter.

14 In December 2009 the plaintiff asserts that she received an anonymous letter warning her that her stepson Anthony Nemeth had tried but failed to "get rid of you" and further warned her not to travel overseas because she was in danger of losing her life. This was apparently the sixth letter she had received in a similar vein since about December 2003.

15 In late 2009 it had been recommended she seek out the services of a Mr Roger Rogerson. A Mr Gordon Scurr made the recommendation. After Christmas 2009 the plaintiff asserts that her friend, a Ms Sarah Winter, arranged a meeting with Mr Rogerson.

16 In late December 2009 Mr Rogerson and Ms Winter came to the plaintiff's home. Mr Rogerson, according to the plaintiff, indicated that he would like the plaintiff to meet Mr Jim Byrnes. Mr Byrnes came to her house and a Felix Lyle, and a person who the plaintiff believed was Mr Lyle's driver also arrived at her home.

17 It is common ground that a conversation between a number of persons took place at the meeting. There is differing evidence about precisely what was discussed but it seems again to be common ground that the plaintiff prepared afternoon tea for her "guests".

18 The plaintiff asserts that Mr Byrnes represented to her that if she entered into a litigation funding agreement with him he would manage her family court proceedings; arrange for Anthony Nemeth to be offered $10 million to leave her and Ferdinand alone; negotiate the sale of the Hampton Court Hotel for $60 million; place a caveat on the hotel to prevent its sale to the Toga Group; arrange for Anthony and Ferdinand to allow her to withdraw $3 million from her loan account; and establish a charitable foundation on her behalf and make a donation to it.

19 It appears again common ground that at the afternoon tea the plaintiff was not asked to enter into any funding agreement or to make any decisions about entering such an agreement. There is no suggestion that any form of agreement was shown to the plaintiff on this occasion. Some three weeks later on 18 January 2010 she and her friend Ms Winter, and Mr Rogerson went to Mr Byrnes' house and it was there that she signed the Agreement.

20 The plaintiff asserts that prior to going to Mr Byrnes' house, she went to Ms Winter's house in Double Bay. She further asserts that she told Ms Winter that she did not want to sign any agreement with Mr Byrnes.

21 The plaintiff asserts that although she observed Ms Winter and Mr Rogerson reading the Agreement she did not read the Agreement "properly". Assured by Ms Winter and Mr Rogerson that all was in order, she signed the document. Her signature was witnessed by Mr Rogerson.

22 The Agreement contained a definition of "cooling off" (clause 1.1) which provided a seven day period after the signing of the Agreement. The definition provided that the "client" could terminate the agreement or seek amendments to the Agreement in the relevant period. There is a dispute as to what took place at Mr Byrnes' house between himself and the plaintiff.

23 The plaintiff sought changes to the Agreement. The plaintiff asserts that at some point after she had signed the Agreement she realised that her home in Darling Point was included in the pool of assets from which the 25% commission would be calculated. She was concerned to exclude her home from any such agreement.

24 The plaintiff asserts she raised this matter directly with Mr Byrnes and he agreed to amend the Agreement accordingly. Hence the Addendum was brought into existence.

25 In the document described as "Addendum to Deed of Agreement and Consultancy Agreement", the defendants assert that the changes brought about by the Addendum were entirely to the plaintiff's benefit and at her request.

26 Following the signing of the Agreement the firm of Beazley Singleton Lawyer was retained to act for the plaintiff in the Family Court proceedings. A costs agreement was prepared in March 2010. Mr Beazley acted for the plaintiff during 2010 and a tax invoice (belatedly produced) shows work done on the plaintiff's behalf from 18 February to 17 September 2010 totalling $33,178.75 in costs and disbursements.

27 By about August 2010 the plaintiff believed that Mr Byrnes had told her a number of untruths about his status as a director of one or more of the defendants and she felt betrayed because he had failed (although he had promised) to pay the cost of an operation to be conducted upon her friend, Ms Winter. By 18 August 2010 the plaintiff asserts she had decided to terminate the Agreement with Mr Byrnes because he was not performing his promised contractual obligations. Importantly, he had not negotiated an out of court settlement with her former husband. Mr Byrnes for and on behalf of the first and second defendants has at all times denied any breaches and has insisted that the arrangements are binding. The defendants do not accept the Agreement was terminated.

28 Following the plaintiff engaging her current lawyers, Coleman Greig, she and the estate of her former husband reached a settlement of the Family Court proceedings of broadly $9 million, plus the property in Darling Point unencumbered.

A question of construction

29 Prior to coming to the various factual issues upon which the plaintiff relies for her various forms of relief it is important in my view to address the question of construction of the Agreement. However, as a preliminary issue, the plaintiff submits that by reason of the Heads of Agreement entered into at the mediation the plaintiff had an enforceable contract which could have been enforced at any time. The defendant submits the Heads of Agreement was not legally binding.

Principles

30 In Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 at [52], Bathurst CJ said:

The principles underlying the construction of written contracts are well established... A contract is to be construed by reference to what a reasonable person would understand by the language in which the parties have expressed their agreement having regard to the context in which the words appear and the purpose and object of the transaction: Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at [22]; Toll (FGCT) Pty Ltd v Alphafarm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at [40]; International Air Transport Assn v Ansett Australia Holdings Ltd [2008] HCA 3; (2008) 234 CLR 151 at [53]. At least in the case of ambiguity, resort can be had to the surrounding circumstances known to the parties in interpreting the particular provision: Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337 at 352; Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; (2011) 282 ALR 604.

In Current Images Pty Ltd v Dupack Pty Ltd [2012] NSWCA 99 at [47] the Chief Justice said:

A document may be construed otherwise than according to its literal meaning if the literal meaning results in absurdity: Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420 at 427. As was noted by Basten JA in Miwa Pty Ltd v Siantan Properties Pte Ltd [2011] NSWCA 297, with whom McColl and Campbell JJA agreed, the test of absurdity is not easily satisfied: "The courts have no mandate to rewrite agreements, so as to depart from the language used by the parties, merely to give a provision an operation which, as it appears to the court, might make more commercial sense", Miwa at [18]; see also Jireh International Pty Ltd v Western Export Services Inc [2011] NSWCA 137 at [55], upheld in Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45 above.

31 The conflicting views in Franklins Pty Ltd v Metcash Trading Ltd [2009] 76 NSWLR 603 and Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; (2011) 282 ALR 604 as to the use which can be made of surrounding circumstances for the interpretation of a contract was considered by the New South Wales Supreme Court in Fuji Xerox Finance Limited v CSG Limited & Ors [2012] NSWSC 890. In that case I adopted (at [58]) the approach suggested by the Western Australian Court of Appeal in McCourt v Cranston [2012] WASCA 60, where Pullin JA (with whom Newnes JA agreed) said (at [23]-[26]):

[23] In view of the pronouncements in Jireh, when an issue arises about the proper construction of a contract and there is evidence of surrounding circumstances known to the parties or evidence of the purpose or object of the transaction, that evidence will not be admissible unless the court determines that the contract is:

(a) "ambiguous"; or

(b) "susceptible of more than one meaning".

[24] Usually, the meaning of "ambiguous" is taken to include "open to various interpretations": see Macquarie Dictionary, but by using the phrase "ambiguous or susceptible of more than one meaning" perhaps Mason J wished to emphasise that not only a contract open to more than one meaning would allow in evidence of surrounding circumstances but also one where the contract is merely "difficult to understand". Once evidence of surrounding circumstances is allowed in, the restrictions on such evidence are clear. Evidence of subjective opinions are not admissible, nor is evidence of negotiations; the surrounding circumstances have to be objective facts and they have to be known to both parties.

...

[26] Until the High Court says more about the subject, it would be wise for trial judges, in cases where a party reasonably contends that the contract is ambiguous or susceptible of more than one meaning and there is relevant evidence of objective relevant surrounding circumstances known to both parties or objective evidence of the aim or object of the transaction, to allow that evidence in provisionally, even if the trial judge considers that his or her likely conclusion will be to reject the argument of the party contending that the agreement is ambiguous or susceptible of more than one meaning.

32 More recently, in Schwartz v Hadid [2013] NSWCA 89, Macfarlan JA (with whom Meagher JA generally agreed) discussed the relevance of factual background to the construction of a contract. In construing a contract, his Honour cautioned against adopting a business-like meaning unless that construction was open on the language of the particular clause under consideration (at [32]). His Honour said it was unnecessary on the case before him to consider the authority of Western Export Services Inc v Jireh International Pty Ltd (2011) 282 ALR 604 as to the permissible use of surrounding circumstances.

Enforceability of Heads of Agreement

33 The plaintiff requests the court to find that, as a matter of construction, the document entitled "Heads of Agreement" dated 12 December 2008 and signed by the plaintiff and Ferdinand Nemeth is a binding agreement. The plaintiff submits that it contains no conditions precedent to its formation or performance, and that none of its terms suggests that it is not immediately binding.

34 After the heading "Heads of Agreement", the first line of the document provides:

That subject to negotiation of appropriate security in respect of outstanding payments (which shall [require more than instructions?]):

There then follows a list of paragraphs stating what the parties propose to agree to:

35 It is open to me, for the purpose of determining whether there is a binding arrangement, to have regard to both the pre and post execution conduct of the parties (Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 at 163-164).

36 First, the text of the document indicates that the parties' negotiations were not concluded. The comments in the brackets indicated that the document was only in draft, that further instructions were required before it could be finalised and that there was still to take place further negotiation of appropriate security in respect of outstanding payments. The entire document was prefaced by the words "subject to negotiation of appropriate security". Further clause 13 of the document provided that it was an "essential" condition that each member of the plaintiff's family provides a release to Ferdinand Nemeth. These textual considerations persuade me that there was a condition precedent to either the very formation of the contract, or to the performance of the entire contract altogether.

37 The subsequent conduct of the parties also suggests that there was no binding agreement. Mr Meyer sent a letter to the plaintiff dated 16 April 2009 which stated that "it is now clear and Mr Paltos relies upon the last phrase of that paragraph that there will be no settlement unless you can get Jose and Virgie signed up to those releases, saying they will make no claim on Ferdy's estate." Also, a letter dated 23 April 2009 from Mr Paltos (Ferdinand's solicitor) to Mr Meyer stated "settlement with your client was conditional upon her providing releases... [W]ithout those releases the settlement will not proceed. There is irrefutable evidence that your side has always been aware of and agreed to [the requirement of provision of releases] as an essential part of the settlement." This is consistent with the advice given to the plaintiff by both Mr Meyer and Mr Richardson SC that "neither is bound at the moment by the Heads of Agreement".

38 The better view is that the Heads of Agreement was not intended by the parties to create a binding arrangement and they conducted themselves accordingly.

Relevant provisions in the Agreement

39 For ease of reference, the relevant terms of the Agreement are set out below:

2.3 Precedence

If there is any inconsistency between the provisions of this Agreement and the provisions of a Funding & Consultancy Term Sheet the provisions of the Funding & Consultancy Term Sheet prevails to the extent of the inconsistency.

...

5.1 Repayment of Costs

In any Funding Transaction the client must repay Costs paid by the Funder under clause 4.1 [Initial funding] and 4.2 [Further funding] on the Repayment Date. Subject to any qualifications contained within the Funding and Consultancy Term Sheet

5.2 Payment of Additional Sum

In addition to any amounts to be repaid under clause 5.1, the client agrees to pay to the Funder and the consultant the Additional Sum for the Funding Transaction and undertaking such work as may have been required by the consultant on the Repayment Date

...

9.2 Ability to terminate early without cause

...the Funder may at any time terminate a Funding Transaction on the giving of reasonable notice in writing...

...

9.6 Payments after termination

In the event that a Funding Transaction is terminated pursuant to [termination by Funder without cause under clause 9.2 or termination by client for breach by Funder]...the Additional Sum in respect of the Funding Transaction will remain payable to the Funder and or the consultant

...

40 The Terms Sheet referred to in clause 2.3 relevantly provides:

The final sum payable is 25% of the gross final settlement sum plus GST

Provided the settlement sum is in excess of $8 million dollars the fee includes the legal costs expended by the funder.

41 A number of expressions which are used in these provisions are defined in the Agreement at clause 1.1 as follows:

"Additional Sum" means in respect of any Funding Transaction the higher of: (a) The Percentage of the Net Final Amount received in Proceedings funded by the Funding Transaction [the definition ends here and it should be noted in particular that there is no subparagraph (b)].

...

"Costs" in relation to any Proceedings or an Examination means the aggregate of ["Legal Costs", "Enforcement Costs", other fees and expenses and government taxes].

...

"Final Amount" in relation to any Proceedings means the gross amount received by the Client, whether by way of settlement, orders made or judgment entered in the Proceedings.

...

"Maximum Amount" in relation to a Funding Transaction means the amount specified in the Funding Term Sheet as the maximum amount which will be available from the Funder in relation to the Funding Transaction subject to adjustment in accordance with clauses 6.1 to 6.3 [these clauses provide for an increase].

...

"Net Final Amount" in relation to any Proceedings means the balance of the Final Amount after deducting Costs and any applicable GST.

...

"Percentage" in relation to a Funding Transaction means the percentage specified in the Funding Term Sheet as the percentage of Gross Final Amount to be paid to the Funder in consideration for its provision of the funding or other such percentage as is determined pursuant to clauses 6.1 to 6.3 [these clauses provide for an increase in the Maximum Amount] and clause 10.5 [this clause provides for an increase to the Percentage in the event of extending funding to an appeal].

42 The Agreement does not define the terms "gross final settlement sum", "gross amount", "gross final amount" or "settlement sum".

Analysis of the Agreement and Parties' Submissions

43 The critical provisions in the Agreement by which the plaintiff is made liable to make any payment to ALF are contained in clauses 5.1 and 5.2. Under those clauses, the plaintiff is liable to pay:

(1) the "Costs" paid by ALF; plus

(2) the "Additional Sum".

44 It is sufficient for the present analysis to identify that "Costs" is defined in clause 1.1 to include "Legal Costs", "Enforcement Costs", other expenses and government taxes. The "Additional Sum" is defined as the "Percentage" of the "Net Final Amount". "Percentage" is in turn defined as "the percentage specified in the Funding Term Sheet as the percentage of Gross Final Amount to be paid to the Funder". The relevant provision in the Terms Sheet provides "[t]he final sum payable is 25% of the gross final settlement sum plus GST". Therefore for the purposes of the definition of "Additional Sum" in the Agreement, the "Percentage" is 25%. "Net Final Amount" is defined as the "Final Amount", less "Costs". The "Final Amount" is defined as "the gross amount received [including] by way of settlement".

45 Therefore the effect of the matrix of definitions is that the plaintiff was liable to pay to ALF, on settlement, two sums, being:

(1) the "Costs"; plus

(2) 25% of the difference between "the gross amount received" by way of settlement and the "Costs".

46 The Terms Sheet contains operative clauses which do more than merely specify certain variables that are to be fed into the Agreement. As will become apparent, the Terms Sheet provides for arrangements which are inconsistent with clauses 5.1 and 5.2 of the main document. Under the Terms Sheet, the plaintiff is required to comply with one of two possible payment arrangements, depending on whether or not the settlement sum is in excess of $8 million.

47 If the settlement sum is $8 million or less, the "final sum payable" by the plaintiff to ALF under the Terms Sheet is:

25% of the gross final settlement sum plus GST; plus

the "Costs".

48 Importantly, unlike clause 5.2 of the Agreement, there is no mention in the Terms Sheet that the sum by reference to which the 25% fee is calculated would exclude "Costs". To the contrary, the Terms Sheet's 25% fee is expressly stated to be imposed on the "gross final settlement sum", and this is said to form part of the "final sum payable".

49 Alternatively, if the settlement sum is in excess of $8 million, then the 25% fee is deemed to include the "Legal Costs" (which is defined in clause 1.1 of the Agreement). In other words, if the settlement sum exceeds $8 million, the plaintiff is only required to pay to ALF 25% of that settlement sum, but no costs.

50 To summarise, under clauses 5.1 and 5.2 of the Agreement, the plaintiff would be liable to pay to ALF:

Costs + [(25%) X (Gross Amount Received - Costs)]

51 Under the Terms Sheet, if the settlement sum is $8 million or less, the plaintiff would be liable to pay to ALF:

Costs + [(25%) X (Gross Final Settlement Sum)]

52 Under the Terms Sheet, if the settlement sum is greater than $8 million, the plaintiff would be liable to pay to ALF:

[25%] X [Gross Amount Received]

53 There is an inconsistency between the method of payment calculation under the Agreement and the possible calculations under the Terms Sheet. The Agreement contemplates the possibility of a conflict between its own terms and the terms of the Terms Sheet, and it expressly provides for a resolution. Clause 2.3 of the Agreement provides that "the provisions of the [Terms Sheet] prevails to the extent of the inconsistency". This is corroborated by the inclusion of the sentence "...Subject to any qualifications contained within the Funding and Consultancy Term Sheet" at the end of clause 5.1 in the Agreement.

54 Clause 2.3 therefore provides clear expression of the objective intention of the parties, and therefore resolves the issue of inconsistency without need, at this stage, to resort to detailed application of the legal principles of contractual construction.

55 Therefore the critical provisions which govern the calculation of the plaintiff's liability are those set out in the Terms Sheet, and (once again) provide:

The final sum payable is 25% of the gross final settlement sum plus GST

Provided the settlement sum is in excess of $8 million dollars the fee includes the legal costs expended by the funder.

56 It is plain from the above wording of the Terms Sheet that:

(1) it actually gives rise to an obligation on the part of the plaintiff to pay a certain amount to ALF;

(2) "the settlement sum" in the second sentence is a reference to "the gross final settlement sum" referred to in the previous sentence; and

(3) "the fee" in the second sentence is a reference to "25% of the gross final settlement sum plus GST" referred to in the first sentence.

57 In order to determine whether the plaintiff's liability is calculated in accordance with the first or second sentence of the Terms Sheet, it is necessary to identify whether her "gross final settlement sum" is in excess of $8 million.

58 There is no definition of "gross final settlement sum" in any of the documentation. It is therefore necessary to consider the principles of contractual construction. As noted, the assessment of the quantum of the plaintiff's liability to ALF under the terms of the Agreement will depend on the meaning of the undefined term "gross final settlement sum" (I note again, for completeness, that there is also no definition of the expressions "gross amount", "gross final amount" or "settlement sum").

59 The expression "Final Amount" is defined in clause 1.1 of the Agreement as "the gross amount received [including] by way of settlement". There is an obvious similarity of language between the critical expression "gross final settlement sum" and the definition of "Final Amount". However, even if, as I accept, "gross final settlement sum" is identical in meaning to the defined term "Final Amount", it is still necessary to determine precisely what is meant by "gross amount received...by way of settlement".

60 The obvious commercial objective of the transaction was for ALF to fund the Family Court proceedings and to (effectively) receive in return a reimbursement of its costs plus some profit margin by reference to the plaintiff's proceeds from the litigation.

61 Mr Newlinds SC submitted that the use of the words "received" and "amount" (in the definition of "Final Amount") indicate that the scope of assets by reference to which ALF's 25% fee is calculated should exclude:

(1) all assets which did not need to be transferred to the plaintiff's name as a result of the settlement (this restriction was said to be based on the use of the word "received"); and

(2) all non-cash, that is, non-monetary assets (this restriction was said to be based on the use of the words "amount" and "sum").

(I note that Mr Newlinds also argues that the 25% fee should only be calculated by reference to the amount (if any) received by way of cash in excess of $8 million).

62 Mr Coles QC contends that the ultimate settlement of the Family Court proceedings was for $23 million. This is based on the more technical proposition that, in property settlement proceedings, the Family Court considers, and makes an appropriate division by reference to, all property of both parties. According to the defendants' submissions, the plaintiff's share from this broad pool of assets, namely $23 million (less the express carve-out of the Mona Rd property being $6,750,000), is the sum by reference to which ALF's 25% fee is calculated (i.e. 25% x $16,250,000 = $4,062,500 plus GST).

Discussion

63 The Addendum, which was executed within a seven day cooling off period following the execution of the Agreement and Terms Sheet, provided that:

In the calculation of fees or commission payable to the "Funder" and the "consultant" both parties will not take into account when determining the fees and or commission any benefit or settlement paid or provided to the client in relation to 46 Mona Rd Darling Point.

64 This is the only provision in the Addendum which is relevant to the present issue of construction.

65 Plainly, it would only be necessary to include this provision if, on a proper construction of the terms of the Agreement and Terms Sheet, the property at 46 Mona Rd, Darling Point was understood by the parties to the Agreement to be included as an item by reference to which ALF's 25% fee would be calculated. In other words, it is more likely than not that the parties understood that, apart from the Addendum, the Mona Rd property (which was to be transferred at least in part from Mr Nemeth to the plaintiff) was indeed to be included as one of the assets on which ALF's 25% fee would be imposed.

66 I agree with the defendant's submission that this disposes of Mr Newlinds' argument that objectively speaking the words "sum" and "amount" convey that the 25% fee could only be imposed on the cash component of the settlement.

67 The second issue is whether the 25% fee would only be calculated by reference to the items which needed to be "transferred" to the plaintiff's name. The Mona Rd property was held in the names of both Mr Nemeth and the plaintiff and required a transfer (at least in part) to the plaintiff. The Addendum therefore cannot shed any light on the correctness (or otherwise) of Mr Newlinds' submission about the significance of the word "received". On this issue the terms of the Agreement and Terms Sheet are ambiguous and susceptible to each of the meanings advanced by the parties.

68 Turning then to the surrounding circumstances, one of the critical elements would appear to be the offer of settlement in relation to the proceedings, which was encapsulated in a "Heads of Agreement" (see paragraphs [124]-[128] of the plaintiff's affidavit). It provided (among other things):

1. ...the husband shall transfer...to the wife the property at 46 Mona Road...

2. ...the husband shall pay to the wife the sum of $7,500,000...

3. ...the husband shall pay to the wife $500,000 which sum is in addition...

...

10. Husband to discharge any debt of wife to any company ...and the wife relinquish...any claim against the company...[Note: The loans which the wife had made to various companies totalled $3,237,540. This figure is based on Nemeth's financial statements used in Family Court proceedings]

11. ...the wife shall use her best endeavours to cause each of her family members...to release each company and the husband from any claim.

69 This represented an offer to the plaintiff of $8 million in cash and half of the matrimonial home (among other promises). In cross-examination, Mr Byrnes gave evidence as follows (Transcript, pages 147-148):

Q. May we take it you told your wife that this was a really good deal for the company?

A. Correct.

Q. Because there was on the table, to your knowledge, an offer from the husband that produced $8 million cash and half the matrimonial home?

A. There had been.

...

Q. You expected that whenever negotiations occurred, you would be able at least to get back to the position of that offer, didn't you?

A. Yes.

Q. And therefore may we take it you said to your wife: This is actually a really good deal because we are not going to do worse than 25 per cent of $8 million?

A. I can't - you are putting words in - you know you are generalising. But I told her it was - I thought it was a very viable deal and we should proceed with it.

Q. Did you tell her about the $8 million that you thought you couldn't do worse than?

A. I told her there had been a multi million dollars - I told her there had been an $8 million...

[Emphasis added]

70 The Heads of Agreement only concerned the $8 million and 46 Mona Rd (unencumbered) and was an important part of the context in which the Agreement came into being. That provides in my view compelling evidence that the plaintiff and the defendants did not take into account any assets otherwise held by the plaintiff.

71 If this analysis is correct, then the submission that ALF's fee should be based on what the plaintiff actually "received" should be accepted.

72 As for the submission that the 25% should only be imposed on any amount that rises above $8 million, I cannot find any support in the Agreement for adopting this construction. Even if I had regard to surrounding circumstances, I cannot see how such circumstances would support that position.

73 The fee of 25% should therefore be imposed on the assets which the plaintiff received as a result of the consent orders made by the Family Court (see Tab 11 of the Court Book - Volume 1). Importantly, Order 12 provides:

...save as otherwise provided herein, the wife is declared to be solely entitled to all assets and financial resources in her name, possession or control or to which she is or may become entitled.

74 It follows that the loans previously advanced by the plaintiff to F & V Holdings Pty Ltd of $2,945,287 and to F & V Nemeth Investments Pty Ltd of $292,253 do not form part of the assets which the plaintiff "received" for the purpose of the assessment of her liability under the Terms Sheet/Agreement.

75 The result in my view of the above exercise is that the plaintiff is obliged (subject to any relief she is otherwise entitled to) to pay to ALF 25% of $9 million, which is $2,250,000. In the defence to the cross-claim the plaintiff asserts that property in the Philippines should be included but I took what I regard to be the correct position in final submissions which would be to exclude that property from the calculation.

Legal principles governing the application of the Contracts Review Act

76 The general policy of the law that people should honour their contracts has been stated in a number of authorities (Baltic Shipping Co v Dillon (1991) 22 NSWLR 1 at 9 per Gleeson CJ). The Contracts Review Act was recognised fairly soon after its enactment as "revolutionary" (West v AGC (Advances) Ltd and Others (1986) 5 NSWLR 610 at 621 per McHugh JA with whom Hope JA agreed; Beneficial Finance Corporation Ltd v Karavas (1991) 23 NSWLR 256 at 267 per Kirby P; Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41 at [114] per Basten JA) and "likely to signal the end of much of classical contract theory" (West v AGC at 621 per McHugh JA and Hope JA, and 611 per Kirby P).

77 The Court of Appeal in West v AGC recognised that the Contracts Review Act had the purpose of overcoming the common law's failure to provide a comprehensive framework for dealing with "unjust contracts", and should therefore not be limited by reference to analogous doctrines at law or equity, and should be freed from preconceptions involved in earlier legal remedies for unconscionable conduct (West v AGC at 616 per Kirby P, and at 621 per McHugh JA; Beneficial Finance Corporation Ltd v Karavas at 277 per Meagher JA). The Court of Appeal also held that as the Contracts Review Act was "beneficial legislation" it should be "interpreted liberally" (West v AGC at 611 per Kirby P and at 631 per McHugh JA with whom Hope JA agreed).

78 In subsequent cases considering in further detail the position of the Contracts Review Act in relation to existing legal doctrines, the Court of Appeal indicated that the Contracts Review Act has a lower the threshold for relief than that of unconscionability at general law (Bakarich v Commonwealth Bank of Australia [2007] NSWCA 169 at [89] per Hodgson JA with whom Santow and Campbell JJA agreed), is of wider jurisdiction, and therefore sometimes will leave no work for analogous equitable principles (Spina v Permanent Custodians Ltd [2009] NSWCA 206 at [74] per Young JA with whom Tobias and Campbell JJA agreed), and may even permit relief in circumstances where the conscience of the defendant is not affected (Perpetual Trustee Co Ltd v Khoshaba at [115] per Basten JA).

79 The Court of Appeal has also indicated that an application of the Contracts Review Act involves two steps. The first involves a broadly based value judgment of whether the contract in question is unjust, and the second step involves an exercise of judicial discretion as to whether and if so what relief should be granted (Kowalczuk v Accom Finance Pty Ltd [2008] NSWCA 343 at [87] per Campbell JA with whom Hodgson and McColl JJA agreed; Perpetual Trustee Co Ltd v Khoshaba at [34] per Spigelman CJ; Riz v Perpetual Trustee Australia Ltd [2007] NSWSC 1153 at [51] per Brereton J). Sometimes the process is described as consisting of three stages, involving the additional initial step of making findings of primary fact as to the circumstances revealed in the evidence (Perpetual Trustee Co Ltd v Khoshaba at [99] per Handley JA and at [106]-[109] per Basten JA). Other descriptions have been given to the process (for example Antonovic v Volker (1986) 7 NSWLR 151 at 165-166 per Mahoney JA).

80 As to the meaning of "unjust", the Contracts Review Act defines it in s 4 to include "unconscionable, harsh or oppressive", and identifies in s 9 a number of matters to be considered by the court. The definition of "unjust" in s 4 is not exhaustive (Kowalczuk v Accom Finance Pty Ltd at [70] per Campbell JA with whom Hodgson and McColl JJA agreed; Perpetual Trustee Co Ltd v Khoshaba at [114] per Basten JA) nor are the factors listed in s 9 (Spina v Permanent Custodians Ltd at [105] per Young JA with whom Tobias and Campbell JJA agreed).

81 In a more recent decision of the Court of Appeal, the then President commented on the difficulty involved in the exercise of determining whether a contract was "unjust" for the purposes of the Act, and provided some guidance as to what this normative evaluation involved (Provident Capital Ltd v Papa [2013] NSWCA 36 at [7] per Allsop P with whom Sackville AJA agreed). The difficulty of determining the content of the concept of "unjust" for the purposes of the Act has also been recognised in other cases. For example, in Perpetual Trustee Company Limited v Khoshaba Spigelman CJ commented (at [64]) that when Parliament elects to adopt a general and inherently variable standard as that of "justness", it intends for courts to apply contemporary, and therefore changing, community standards about what is just. In fact, the Court of Appeal has already observed that the relevant standards may have changed from those applied in 1986 in West v AGC (Elkofairi v Permanent Trustee Co Ltd [2002] NSWCA 413 at [78]-[79]; Perpetual Trustee Co Ltd v Khoshaba at [65] per Spigelman CJ).

82 Despite these difficulties and the breadth of the language and concepts in the Act, the court is not (to borrow language used by the High Court in a different context) entering into pure abstraction where all principles are at large (Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 at [20] per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ; Perpetual Trustee Co Ltd v Khoshaba at [115] per Basten JA).

83 In the early case of West v AGC, McHugh JA reviewed the list of relevant considerations under s 9 of the Act and explained in what is perhaps now a classical passage, that for the purposes of the Act a contract may be "unjust" by reason of substantive injustice, procedural injustice, or both (at 620), and he explained the meaning of each of those expressions. His Honour went on to specify in some further detail some situations where he thought "unjustness" could not be found (at 621 and 622):

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.

...

If a defendant has not been engaged in conduct depriving the claimant of a real or informed choice to enter into a contract and the terms of the contract are reasonable as between the parties, I do not see how that contract can be considered unjust simply because it was not in the interest of the claimant to make the contract or because she had no independent advice.

...

[A] contract will not be unjust as against a party unless the contract or one of its provisions is the product of unfair conduct on his part either in the terms which he has imposed or in the means which he has employed to make the contract.

84 These comments have been extensively quoted in subsequent cases. However, in Perpetual Trustee Co Ltd v Khoshaba at [73] Spigelman CJ described McHugh JA's comments as "instructive" and "identifying relevant considerations entitled to significant weight", but "directed to issues in that case" and not to be taken as "rules". On reviewing the authorities, it appears that the Court of Appeal has, for obvious reasons, been careful to avoid introducing rigidity to the application of the Act.

85 Professor Peden, who was largely responsible for the drafting of the Act, said that the "omission of the term 'unfair' in the definition and in s 9 represents an important and conscious policy decision not to allow contracts to be reviewed simply on the ground that the contract favours one party unless there has also been an abuse of power or unconscionable conduct on his part" and that "the underlying purpose of the [Act is]...to prevent unjust dealings which offend against community standards of business morality" (J R Peden, The Law of Unjust Contracts, (1982) Butterworths at 109 and 122).

86 The authorities make it clear that one of the general legislative purposes of the Contracts Review Act is to protect people who, for one or more of a number of potential reasons, are not able to look after themselves and who are preyed upon by dishonesty, trickery and other forms of predation (Kowalczuk v Accom Finance Pty Ltd at [102] per Campbell JA with whom Hodgson and McColl JJA agreed; Provident Capital Ltd v Papa at [7] per Allsop P with whom Sackville AJA agreed; Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389 at [270]).

87 As Allsop P recently observed, some of the potential sources of vulnerability are a lack of education or of intelligence, gullibility, greed, loyalty and love. However, the authorities also establish that a contract will not be unjust merely because it was not in someone's interest to enter into it (Esanda Finance Corporation Ltd v Tong (1997) 41 NSWLR 482 at 491 per Handley JA with whom Santow and Simos AJJA agreed) or because it was inopportune or produced a loss (Elkofairi v Permanent Trustee Co Ltd at [78] per Beazley JA with whom Santow JA and Campbell AJA agreed), or because the party seeking relief was foolish, gullible or greedy (Perpetual Trustee Co Ltd v Khoshaba at [128] per Basten JA), or because the contract is burdensome, a hard bargain, strongly in the interests of the party against whom relief is sought, or in some sense unreasonable (Conley v Commonwealth Bank of Australia [2000] NSWCA 101 at [96] per Heydon JA with whom Handley JA agreed).

88 There has also been some discussion in the authorities as to the relevance of the knowledge of the person against whom relief is sought of the factors producing the alleged injustice. I consider the weight of judicial opinion favours the proposition that the absence of knowledge of factors producing the alleged injustice by the party against whom relief is sought does not prevent the characterisation of a contract as unjust (St George Bank Ltd v Trimarchi [2004] NSWCA 120 at [36] per Mason P with whom Sheller JA and Cripps AJA agreed; Beneficial Finance Corporation Ltd v Karavas at 277 per Meagher JA; Collier v Morlend Finance Corp (1989) ASC ¶55-176 at 58,433 per Meagher JA), but it may be highly relevant to whether the discretion conferred on the court by s 7 should be exercised to grant relief (Perpetual Trustee Co Ltd v Khoshaba at [119] per Basten JA; Beneficial Finance Corporation Ltd v Karavas at 277 per Meagher JA; Esanda Finance Corporation Ltd v Tong at 490 per Handley JA with whom Santow and Simos AJJA agreed). It is true that in Antonovic v Volker Samuels JA (with whom Kirby P agreed) found the relevant contract unjust and granted relief even though the party against whom relief was sought was found "innocent of fault", however, in that case, his agent's conduct was found to be "unfair" (at 157-158).

89 The authorities also appear to establish that the person against whom relief is sought need not take the initiative to ensure that any independent legal advice obtained by the party seeking relief is accurate or has been understood, but this may be different in circumstances where the party seeking to enforce the contract is actually aware that the advice has not been given or has not been understood (Esanda Finance Corporation Ltd v Tong at 491 per Handley JA with whom Santow and Simos AJJA agreed, approving comments in St George Commercial Credit Corporation Ltd v Collins Wallis Properties Pty Ltd (Rolfe J, 11 February 1994, unreported)).

90 Finally, where the court is minded to grant relief, it should not interfere with the rights of the parties any more than is necessary to remedy or to avoid the injustice to the party seeking relief (S H Lock (Australia) Ltd v Kennedy (1988) 12 NSWLR 482 at 487 per Samuels JA and at 492 and 493-494 per Priestley JA; Esanda Finance Corporation Ltd v Tong at 489 per Handley JA with whom Santow and Simos AJJA agreed).

Legal principles governing unconscionability at general law

91 In the recent decision of Aboody v Ryan [2012] NSWCA 395 the Court of Appeal, comprising Bathurst CJ, Allsop P and Campbell JA, considered in some detail the governing general principles in respect of relief against unconscionable dealings. Allsop P (with whom Bathurst CJ and Campbell JA agreed) said (at [62]) that these principles were to be found in the well known cases of Blomley v Ryan (1956) 99 CLR 362, Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, Louth v Diprose (1992) 175 CLR 621 and Bridgewater v Leahy (1998) 194 CLR 457.

92 The President endorsed the expression of principle in these High Court cases and cautioned against introducing rigidity by focusing on subsequent single instances of the application of the principle. His Honour said (at [63]):

[63] ... there is an underlying general principle, the applications or exemplifications of which are impossible to describe fully. Thus, one should always be careful not to dwell over-technically or textually on individual expressions of general principle of normative values rooted in the remedying of injustice. It is general principle, not a precisely expressed rule, that operates. The principle is wide, and the danger in further textual definition (as opposed to exemplification or illumination) is that inaccuracy or undue restriction may be brought about... Equity's norms and values can be expressed as by Mason J in Amadio at 461-462, or by Deane J in Amadio at 474-475, or by Dawson J in Amadio at 489...

93 In Blomley v Ryan Kitto J said (at 415 and 428-429):

It applies whenever one party to a transaction is at a special disadvantage in dealing with the other party because illness, ignorance, inexperience, impaired faculties, financial need or other circumstances affect his ability to conserve his own interests, and the other party unconscientiously takes advantage of the opportunity thus placed in his hands.

...

The essence of the ground we have to consider is unconscientiousness on the part of the party seeking to enforce the contract; and unconscientiousness is not made out in this case unless it appears, first, that at the time of entering into the contract the defendant was in such a debilitated condition that there was not what Sir John Stuart called "... a reasonable degree of equality between the contracting parties"; Longmate v Ledger ... and secondly, that the defendant's condition was sufficiently evident to those who were acting for the plaintiff at the time to make it prima facie unfair for them to take his assent to the sale.

...

The fact that the defendant's condition was the result of his own self-indulgence could make no difference, for, as is shown by Cooke v Clayworth ... the principle applied is not one which extends sympathetic benevolence to a victim of undeserved misfortune; it is one which denies to those who act unconscientiously the fruits of their wrongdoing.

94 Fullagar J said (at 405):

The circumstances adversely affecting a party, which may induce a court of equity either to refuse its aid or to set a transaction aside, are of great variety and can hardly be satisfactorily classified. Among them are poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary. The common characteristic seems to be that they have the effect of placing one party at a serious disadvantage vis-a-vis the other.

95 In Commercial Bank of Australia Ltd v Amadio Mason J said (at 461 and 462):

... relief on the ground of "unconscionable conduct" is usually taken to refer to the class of case in which a party makes unconscientious use of his superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage...

...

...the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position.

...

Relief on the ground of unconscionable conduct will be granted when unconscientious advantage is taken of an innocent party whose will is overborne so that it is not independent and voluntary, just as it will be granted when such advantage is taken of an innocent party who, though not deprived of an independent and voluntary will, is unable to make a worthwhile judgment as to what is in his best interest.

It goes almost without saying that it is impossible to describe definitively all the situations in which relief will be granted on the ground of unconscionable conduct.

...

...the situations mentioned [by Fullagar and Kitto JJ in Blomley v Ryan] are no more than particular exemplifications of an underlying general principle which may be invoked whenever one party by reason of some condition or circumstance is placed at a special disadvantage vis-à-vis another and unfair or unconscientious advantage is then taken of the opportunity thereby created. I qualify the word "disadvantage" by the adjective "special" in order to disavow any suggestion that the principle applies whenever there is some difference in the bargaining power of the parties and in order to emphasize that the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his own best interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party.

96 Deane J said (at 474 and 475):

Unconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so. The adverse circumstances which may constitute a special disability for the purposes of the principles relating to relief against unconscionable dealing may take a wide variety of forms and are not susceptible to being comprehensively catalogued... [T]he common characteristic of such adverse circumstances "seems to be that they have the effect of placing one party at a serious disadvantage vis-à-vis the other".

97 In Louth v Diprose Deane J said (at 637):

... the jurisdiction of courts of equity to relieve against unconscionable dealing extends generally to circumstances in which (i) a party to a transaction was under a special disability in dealing with the other party to the transaction with the consequence that there was an absence of any reasonable degree of equality between them and (ii) that special disability was sufficiently evident to the other party to make it prima facie unfair or "unconscionable" that that other party procure, accept or retain the benefit of, the disadvantaged party's assent to the impugned transaction in the circumstances in which he or she procured or accepted it.

98 Brennan J made similar comments and discussed the relationship between equity's jurisdiction to set aside transactions affected by undue influence and transactions affected by unconscionable conduct (at 626-627).

Unconscionability under the Trade Practices Act

99 The plaintiff also alleges unconscionability under sections 51AA or 51AB of the Trade Practices Act. As s 51AA(1) does not apply to conduct that is prohibited by s 51AB it is necessary to consider the application of s 51AB first. If s 51AB is found to apply, s 51AA does not (Alievski v Cross Country Realty Victoria Pty Ltd [2010] VSC 316 at [11] per Bell J).

100 Section 51AB(1) relevantly provides that:

a person must not, in trade or commerce, in connection with the supply or possible supply of goods and services to another person, engage in conduct that is, in all the circumstances, unconscionable.

101 Section 51AB(2) lists, non-exhaustively, factors to be taken into account. A number of cases confirm the view that this section is not to be read down to apply only to conduct that would traditionally be regarded as unconscionable according to equitable principles (Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (2000) 169 ALR 324).

102 In Australian Competition and Consumer Commission v Lux Pty Ltd [2004] FCA 926, Nicholson J said (at [98]):

[98] The word unconscionable is not a term of art It is not limited to traditional equitable or common law notions of unconscionability: Australian Competition & Consumer Commission v Simply No-Knead (Franchising) Pty Ltd (2000) 104 FCR 253 at [31]. It bears its ordinary meaning of 'showing no regard for conscience, irreconcilable with what is right or reasonable': Australian Competition & Consumer Commission v Samton Holdings Pty Ltd (2002) 117 FCR 301 at [44]; Hurley at [19]-[20]; Qantas Airways Ltd v Cameron (1996) 66 FCR 246 at 262. What is required is 'serious misconduct or something clearly unfair or unreasonable': Hurley at [19]-[20]. It will be relevant whether advantage is taken of an innocent party who, though not deprived of an independent and voluntary will, is unable to make a worthwhile judgement as to what is in his or her best interests: Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 461.

103 In Tonto Home Loans Australia Pty Ltd v Tavares, Allsop P considered the meaning of "unconscionable" as used in consumer protection legislation and commented (at [291] and [293]):

[291] Aspects of the content of the word "unconscionable" include the following: the conduct must demonstrate a high level of moral obloquy on the part of the person said to have acted unconscionably: Attorney General (NSW) v World Best Holdings Ltd [2005] NSWCA 261; 63 NSWLR 557 at 583 [121]; the conduct must be irreconcilable with what is right or reasonable: Australian Securities and Investments Commission v National Exchange Pty Ltd [2005] FCAFC 226; 148 FCR 132 at 140 [30]; Australian Competition and Consumer Commission v Samton Holdings Pty Ltd [2002] FCA 62; 117 FCR 301 at 316-317 [44]; Qantas Airways Ltd v Cameron (1996) 66 FCR 246 at 262; factors similar to those that are relevant to the CRA are relevant: Spina v Permanent Custodians Ltd [2009] NSWCA 206 at [124]; the concept of unconscionable in this context is wider than the general law and the provisions are intended to build on and not be constrained by cases at general law and equity: National Exchange at 140 [30]; the statutory provisions focus on the conduct of the person said to have acted unconscionably: National Exchange at 143 [44]. It is neither possible nor desirable to provide a comprehensive definition. The range of conduct is wide and can include bullying and thuggish behaviour, undue pressure and unfair tactics, taking advantage of vulnerability or lack of understanding, trickery or misleading conduct. A finding requires an examination of all the circumstances.

...

[293] ... Spigelman CJ in World Best Holdings at 583 [121] referred to a "high level" of moral obloquy. Whether that is too stringent and whether "significant" or "real" may be preferable need not be decided. What is required is some degree of moral tainting in the transaction of a kind that permits the opprobrium of unconscionability to characterise the conduct of the party.

104 Turning then to S51AA, it relevantly provides:

A corporation must not, in trade or commerce, engage in conduct that is unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories.

105 The plaintiff indicated that it was yet to be decided whether the word "unconscionable" in that provision was broader than the concept of unconscionability at general law (Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51 at [9]-[10] and [45]-[46] per Gummow and Hayne JJ, at [75]-[77] per Kirby J, and at [160] per Callinan J).

The human condition

106 I was invited by counsel for the plaintiff to make certain findings and draw certain conclusions based upon what were said to be particular characteristics of the plaintiff which it was said constituted a disability and made her more vulnerable. I was referred to her greed, her rejection of advice given in her best interests and the fact she would only listen to things she wanted to hear. It is important to observe first that there was no cogent expert medical evidence supporting any psychiatric or psychological disorder from which the plaintiff suffered at any relevant point in time.

107 In Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111 at 119, Dixon CJ, Kitto and Taylor JJ said:

That ordinary human nature, that of people at large, is not a subject of proof by evidence, whether supposedly expert or not.

But particular descriptions of persons may conceivably form the subject of study and of special knowledge. This may be because they are abnormal in mentality or abnormal in behaviour as a result of circumstances peculiar to their history or situation.

108 The English Court of Appeal in R v Turner [1975] QB 834 at 841 also said:

A man's personality and mental make-up do have a bearing upon his conduct. A quick-tempered man will react more aggressively to an unpleasing situation than a placid one. Anyone having a florid imagination or a tendency to exaggerate is less likely to be a reliable witness than one who is precise and careful. These are matters of ordinary human experience. Opinions from knowledgeable persons about a man's personality and mental make-up play a part in many human judgments.

109 In determining whether and if so to what extent any of the plaintiff's characteristics made her especially susceptible or vulnerable even if expert evidence were available is a matter for the trier of fact, based upon such admissible evidence as is available and which probably in part involves an element of judicial notice. Tame v New South Wales (2002) 211 CLR 317 at [116] per McHugh J.

110 I should observe in passing that it has been said that there are a number of "truisms about human behaviour" that include amongst other things that people normally act out of self interest and do not like to be told what to do: the Honourable Justice P A Bergin, "Judicial Mediation Problems and Solutions", (2011) The Judicial Review 305, 312.

Credit issues

111 Counsel for all parties in the litigation candidly accepted that there were a number of unsatisfactory aspects that would emerge on both sides in relation to evidence but equally credit issues were placed high on the agenda.

112 Having heard and seen the principal witnesses give their evidence I am certain that there was an amount of exaggeration undertaken on both sides of the record in terms of the alleged ability to reconstruct the detailed history set out in the affidavit material seemingly without the benefit of contemporaneous documents, at least that which could be objectively relied upon.

113 Whilst a trial judge is entitled to make observations relating to the demeanour of certain witnesses it is a notoriously crude and inaccurate methodology. Its defects have been exposed on numerous occasions in recent years.

114 I am of course mindful of the comments of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118 when they remarked:

It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly form the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Societe d Avances Commerciales (Societe Anonyme Egyptienne) v Merchants Marine Insurance Co (The "Palitana"):

"... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour."

Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility.

115 Statements to similar effect are to be found in many English decisions such as the dissenting speech of Lord Pierce in the House of Lords in Onassis v Vergottis [1968] 2 Lloyds Rep 403 at 431:

One thing is clear, not so much as a rule of law but rather as a working rule of common sense. A trial Judge has, except on rare occasions, a very great advantage over an appellate Court; evidence of a witness heard and seen has a very great advantage over a transcript of that evidence...

...

"Credibility" involves wider problems than mere "demeanour" which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance.

116 Discussions along similar lines may be found in Grace Shipping v Sharp & Co (1987) 1 Lloyds Law Rep at 207 at 215 - 216 per Lord Gough, in a recent statement of Lady Justice Arden in Wetton (as liquidator of the Mumtaz Properties) v Ahmed and Others [2011] EWCA Civ 610 at [11], [12] and [14] and in the extra-judicial writing of the late Lord Bingham of Cornhill in The Judge as Juror: The Judicial Determination of Factual Issues (2000) Oxford University Press, published in The Business of Judging, Oxford 2000.

117 It is important also to observe that a trial judge is in no way restricted in his or her assessment of a witness. He or she is not bound to accept any of that which the witness attests to or indeed may only accept part thereof: Cubillo v Commonwealth of Australia (2000) 174 ALR 97 at [188] to [123].

118 In addition in the present case the plaintiff conducts the litigation via a tutor. The procedure for the appointment of a tutor is set out in Division 4 of Part 7 of the Uniform Civil Procedure Rules 2005. The appointment of a tutor appears to be a unilateral exercise which does not require an order of approval from the court. A court order is only required where it is sought to substitute one tutor for another (UCPR, r 7.15(5)). The presence of a tutor cannot therefore constitute evidence of some sort of disability or inability to make decisions in a party's interest, at least for the purposes of affecting the issues in dispute between the parties.

119 In Azar (by her tutor Ibrahim) v Kathirgamalingan (2012) 62 MVR 462 the appellant conducted her case by a tutor. The Court of Appeal (Campbell JA with whom McColl and Basten JJA agreed) held that the appellant's submission that in circumstances where it was common ground that she had come to suffer from a serious mental illness the primary judge should not have made credit findings based on her evidence, or based upon things that she had said or done after developing that condition, should be rejected (at [87] - [91]).

120 Given the absence of any cogent medical evidence I do not consider that my ability to make credit findings about the plaintiff should be restricted on the basis that she has had a tutor appointed.

The context in which the plaintiff entered the Agreement

121 The plaintiff's case is that she was incapable of making an informed decision as to what was in her best interests in relation to the Family Court proceedings. It was further submitted that the plaintiff was obsessed with Anthony her stepson, such obsession being irrational. It was further submitted that her persistent rejection of considered legal advice and the sacking of lawyers because she did not like their advice was a further indication of her irrational behaviour. It is further accepted that the plaintiff is the kind of person who needed everything "sugar coated". In other words she liked people to tell her what she wanted to hear and would not listen to them when they told her something she did not want to hear. It was also submitted that she could fairly be regarded as greedy and manipulative. Further, it was submitted that at the time she met Mr Byrnes she did not need litigation funding and Mr Byrnes astutely assessed her personality and character and hence her vulnerability and took advantage of her by in fact telling her what she wanted to hear which had the effect of inducing her to sign the Agreement and the Addendum.

122 Before considering the evidence given by the witnesses in any detail it seems to me important to analyse and hence understand the history of the family law proceedings immediately prior to the plaintiff entering into the Agreement. That provides in my assessment at least a most pertinent context in which to view her actions when it came to entering into the arrangements with the defendants.

123 During her marriage to her former husband she assisted him in operating the Hampton Court Hotel in Bayswater Road, Kings Cross amongst what she describes as "other ventures". She was from time to time a director of a number of companies associated with her former husband's business interests. The description that she gives herself to the relationship with her former husband is at best described as volatile. There seems little doubt that the relationship between herself and her former husband probably deteriorated significantly from about May 2003 when, having obtained some DNA results, she announced to him that Anthony who no doubt her former husband believed was his son was in fact not his biological son at all.

124 This clearly created considerable tensions between herself, her former husband and her stepson Anthony. From the materials filed it seems she was extraordinarily jealous of the relationship between her former husband and his son Anthony. She became obsessed with her stepson and alleged he was behind some plot to have her murdered.

125 In an affidavit (11 February 2008) filed in the Family Court her former husband says that during the course of his marriage to the plaintiff he was engaged in the management of hotels, nightclubs and property development. He appears to have accepted the plaintiff's contention that Anthony was indeed not his biological son. He also asserts that part of the reason why the relationship between himself and the plaintiff became strained was by reason of the fact that the plaintiff insisted that because Anthony was not his biological son he should disinherit him. Unsurprisingly he refused to abide by her request. He describes himself as being "shocked and hurt" by the plaintiff's actions in apparently securing a DNA sample from Anthony and having it tested. He said that he pleaded with the plaintiff to accept Anthony as his son. Instead she insisted that he remove Anthony from his life. He asserted in his affidavit that "her motivations were purely financial". Further, in his materials, he presents himself indeed as long-suffering, having discovered the plaintiff's frauds perpetrated upon one or other of his corporate entities (and which were investigated by ICAC) and a long term affair which he discovered that the plaintiff had had with a Mr Greg Sealby, who was the Liquor Administration Board inspector. I will return to some of these matters later.

126 In any event in 2006 the plaintiff first commenced proceedings in the Family Court of Australia, it seems on the advice of a solicitor, Ms Wendy Baker. Apparently she did not inform her then husband about the commencement of the proceedings at least for a while because as she said in her evidence she did not want to upset him. She said she commenced those proceedings on advice from her solicitor, Ms Baker, in order to "secure herself". It was her decision not to inform her husband that she had commenced the proceedings.

127 In July 2007 she changed solicitors. There is no explanation why she did so. From that point at least she was represented by a Mr Nabil Wahhab, from a firm called York Family Law. In an amended application filed on 24 December 2007 by Mr Wahhab, where the plaintiff's usual occupation was described as "homemaker", a claim was made that the court order the husband to transfer his interest in the family home at Mona Road, Darling Point, to the plaintiff free of all encumbrances, and that the husband vacate the Darling Point property. Further, a claim was made that the husband be ordered to pay the plaintiff the sum of $30 million by way of property settlement. Other orders were also sought.

128 Further, in December 2007 in a lengthy affidavit, the plaintiff sets out in some considerable detail the history of the relationship between herself and her former husband. Unsurprisingly she refers to her assets and her good fortune in terms of both gifts and inheritances from a person she describes as her "adopted Australian mother" a Ms Mavis Johnston. Ms Johnston it seems gave the plaintiff in or about 1989 the sum of about $180,000 which she used towards the acquisition of property. Ms Johnston did not stop there. Apparently she gave the plaintiff a further $100,000 shortly thereafter. Sadly however when her "adopted Australian mother" died in June 1995 she nonetheless inherited her two properties, one at East Kurrajong comprising some eight acres, and the other of one acre. She was also fortunate enough to inherit approximately $300,000 in cash, artefacts and jewellery. In relation to the jewellery she inherited, she sold that for approximately $100,000 and also sold a silver frame which came from the "inheritance" for something in the order of $50,000. All this was by way of background to explain how she had been able to provide those monies or large portions of those monies to her former husband to assist him. She corroborates her former husband's evidence insofar as their relationship began to deteriorate soon after she was able to reveal the DNA test results concerning Anthony. In the body of the affidavit she says she requested a sum of money be released for the payment of her legal fees and disbursements in the proceedings. She indicated at [78] that she had been informed that potentially the case could cost between $100,000 and $250,000.

129 Notwithstanding the very long history given of the relationship between herself and her former husband, she was able along the way to point to alleged criminal activity on the part of Anthony and indeed her former husband in terms of forging signatures, fabricating evidence in various proceedings and, as she would have it, blatant breaches by them of the Corporations Act 2001 (Cth).

130 On 30 January 2008 the plaintiff filed an amended application in the Family Court. Amongst other things she sought injunctions restraining her husband and Anthony for that matter from dealing with various bank accounts concerning the husband's business activities. In addition, she sought the repayment of the sum of $2,845,287 which was said to be a loan owed by F & V Nemeth Investments Pty Limited advanced from the plaintiff to that entity. Interim costs were also sought in the sum of $250,000.

131 On 8 February 2008 the plaintiff sent a very long and detailed email to Mr Wahhab. Importantly she asked a number of very precise questions concerning the type of relief she hoped to obtain against her former husband and Anthony, effectively preventing them from mortgaging or adversely dealing with the Hampton Court Hotel contrary to her interests. She said:

1. To stop Ferdy/Anthony or Directors of IF & V Nemeth to mortgage the hotel.

2. To stop Ferdy and Anthony or the Directors of IF & V Nemeth Inv. P/l from any dealing with Fred Ayoub, Director of MFS Constructions P/L in relation with the Hampton court hotel.

(I believe that Ferdy is negotiating with Mr. Ayoub to make it out that the F & V Nemeth Inv. Owe so much monies to MFS constructions P/L and eventually make the F & V Nemeth Investment bankrupt)

3. To stop work at the Hampton Court.

4. To subpoena the accountants and lawyers.

132 In the same email, she made the following reference to her former husband's solicitor Mr Paltos:

I have a friend working for corporate lawyer. I mentioned about my case and she said "I am very concern about you that your husband engaged Paltos as his lawyer". They will give you hell and they will do all the dirty tricks to make sure that you will get the minimum amount of settlement."

133 The day before this email, namely 7 February 2008, she had already had a conference with Mr Trevor Hall, solicitor to whose firm she was soon to retain. In an email to the plaintiff dated 8 February 2008, Mr Hall referred to a meeting on 7 February 2008 and to his understanding of the current state of the proceedings. Mr Hall made note of the fact that there was a claim before the court for the $250,000 for future legal expenses and that he thought the matter was due to come before the court the following week (8 February being a Friday). He was going to try to arrange someone from his office to observe the proceedings. On 12 February 2008 the plaintiff's former husband filed a financial statement indicating as at that date the total value of property owned by him was in the order of $40 million.

134 On the same day her former husband signed what is described as a response to an application for final orders. He sought that the plaintiff vacate the home in Darling Point and transfer her interest to him. Other orders were sought, and further, the husband sought an order that he pay the wife an amount equal to 20% of the net assets of each of the husband and wife as determined by the court, subject to certain exceptions.

135 In response to the application for funding for her case, a response was filed by the former husband. The husband indicated that by way of interim and/or partial property settlement he would be prepared to pay to the plaintiff's solicitors $250,000, first by the payment of $100,000 within 14 days and the further $150,000 within three months of the date of the order. Importantly the husband also indicated, without any admission, that in the event of completion of the sale of the Hampton Court Hotel he was prepared to cause the relevant corporate entity to deposit the sum of $30 million to an interest bearing account and undertook not to allow the amount to go below that sum.

136 Again on 12 February 2008 a number of orders were made which included the payment of the $250,000 on account of legal costs and disbursements as suggested by the husband.

137 By 25 February 2008 Mr Hall became the solicitor for the plaintiff. There is no contemporaneous documents which indicate why it was that the plaintiff terminated her relationship with Mr Wahhab although she does make an assertion that he in some way or other discriminated against her. She certainly did not, so it seems, terminate that relationship by reason of any advice she got which she did not wish to accept. There is only the plaintiff's word for the assertion of some form of discrimination. Although I will return to this matter, I have been invited by her counsel to regard virtually everything said by the plaintiff (unless otherwise corroborated) as entirely unreliable. So far as this matter is concerned, I am simply unable to say anything but the fact that she simply came to a decision to terminate Mr Wahhab.

138 It seems that the person who she describes as a "close friend" (plaintiff's affidavit of 9 September 2011, [125], or her "dear friend" at [T73]) had in about February 2008 introduced her to Mr Trevor Hall and as a result she thereafter instructed him, [97] and [98]. Mr Hall appears to have acted for the plaintiff for most of 2008 and into early 2009.

139 On 12 December 2008 a mediation was held. Mr Hall has had, it seemed, retained Mr Grahame Richardson SC, a leading family law practitioner to represent the plaintiff at the mediation. Mr Hall however did not attend personally. The mediation was held before Mr Lindenmayer, a former Family Court judge.

140 As the result of the mediation Heads of Agreement were drawn up and signed. The Heads of Agreement provided that the husband would, within 14 days of the date of any final order, transfer unencumbered to the wife the Darling Point property. Within 12 months or the date of completion of the sale of the Hampton Court Hotel, whichever occurred first, the husband agreed to pay the plaintiff $7.5 million and within 14 days he was to pay the plaintiff $500,000 which was to be a sum in addition to the payment of $7.5 million. The former husband agreed to give certain indemnities to the plaintiff in relation to his corporate entities, other releases were to be provided and then the plaintiff was to use her "best endeavours" to have each adult member of her family execute certain releases. In passing I should observe that the plaintiff had previously organised for the employment of a number of members of her family at the Hampton Court Hotel.

141 The plaintiff asserts that she had a conversation with Ms Sarah Winter in early 2009. She told Ms Winter that although she had reached a settlement with her former husband she was not happy with it, because there was a condition that her family release her former husband from any claims. In effect she asserts that Ms Winter agreed with her. What concerned the plaintiff were her family's potential claims for unpaid wages as they, she asserts, worked at the hotel for below the minimum award wage.

142 On numerous occasions in her evidence (at T42 and T53) she asserted that she was advised not to go ahead with the Heads of Agreement. It became clear that she attributed the "advice" to Ms Winter. She accepted however that she did discuss the Heads of Agreement with Mr Richardson SC. It is plain that she was certainly advised by her lawyers at the time to implement the Heads of Agreement, at the time she signed them.

143 She was concerned about the prospects of her family providing releases and therefore missing out on their proper entitlements to wages and other entitlements. However it seems clear also that she simply thought that the amount of money that she was being offered was not enough. She made that clear subsequently to Mr Byrnes when she met him and I have little doubt that weighed heavily on her mind especially given the claim she had been advised previously to make for the unencumbered property in Darling Point together with $30 million.

144 She was clearly unhappy about Mr Hall's role in the mediation and his non-attendance. In his email to her of 10 January 2009 he was at pains to emphasise the level of his engagement both with Mr Richardson SC and with the mediation more generally. He told the plaintiff the level of Mr Richardson SC's involvement in preparation for the mediation and how he (Mr Hall) had written the first draft of the position paper.

145 The plaintiff was clearly concerned that her lawyers had failed to appreciate the significance of what has been described as the Prynew proceedings and its inter-relationship with the Family Court proceedings. The reference to the Prynew proceedings was a reference to the alleged damage which had occurred to the matrimonial home as the result of their neighbour, a Mr Tsu, undertaking excavation work on his land. Prynew was the name of the corporate entity associated with Mr Tsu. The plaintiff alleges that although the damages were only around $240,000 she and her former husband had spent approximately $2 million on legal fees. The plaintiff asserted that her former husband and Anthony had contrived the case and were involved in acts of dishonesty in relation to the litigation.

146 Mr Hall also told the plaintiff that he had checked with Mr Richardson SC and Mr Richardson SC did not believe that Mr Hall needed to be at the mediation. He said "I never abandoned your matter". The email is very lengthy but importantly contains the following statements:

In answer to your question as to if the settlement can be undone, the answer is that it probably can be, by just not entering into it. An avenue would be the comments that Ferdinand Nemeth made to you that the proceeds of sale of the Kings Cross Road property were not properly accounted for by him. Be this as it may, the advice of Richardson SC and of Mr LindeMeyer is that the settlement is in your best interests and that you should accept it.

The alternative is to go to trial and the other side will do their best to make you look like an absolute liar. I am telling you that they will make it their business to destroy you ruthlessly in the witness box. They will take you through everything you have ever said and done with one sole purpose of causing you as much damage as possible. Anything that is not supported by detailed financial records will be denied. There are findings in the ICAC report that you effectively stole money from the Nemeth Family companies and you were involved in defrauding the State Treasury. There are numerous possibilities if the Taxation Department becomes involved. Frankly, you don't want to know where your matter could end up if you go to trial.

Just remember that when you came to us you were offered $10,000,000 and not the house. You now have the house and about $7,500,000 to $8,000,000. The house is an appreciating asset. I suggest that you should look at what you have got out of this, not what you have not gotten out of. It is the best that we can do for you.

It would be great to be able to get you the largest proportion of the estate but the advice we are receiving is that putting your case at its heighest, $18,000,000 washes it up.

I am unsure if you are aware - but there was the bizarre case where Richardson SC was advising a settlement of $42,000,000 in another matter. The wife refused and as a consequence of margin calls on shares, received nothing. This dissipated the marital estate.

In your matter you could be made to look an absolute liar and a person motivated by money and nothing else. If the tax office becomes substantially involved, you could receive also, nothing. There are years and years of improperly accounted for taxes and revenues that would consume this estate if it were ever rigorously audited by the tax office. That would be a disastrous outcome for you, and for this and a host of other reasons you must take steps to avoid it and settle the proceedings.

My advice to you is - go and ask York Family Lawyers, the supposed experts in this area if you should accept the current settlement. Otherwise, go and ask Mr Lindenmayer or Mr Richardson SC. Don't ask me if you don't want my opinion, ask these people. They know.

147 Clause 14 of the proposed Heads of Agreement was in the following terms:

That the parties undertake to each other that in relation to the Supreme Court proceedings (Prynew-Tsu Litigation) each will:

14.1 Not seek any costs order against the other;

14.2 Not put any contention to the court in the event that any defendant seeks a costs order against them that the other should be required to contribute or that the order should be made against the other;

and each shall indemnify the other in respect of any loss occasioned from the breach of this undertaking.

148 In the Prynew litigation the plaintiff and her former husband were co plaintiffs and Prynew Pty Ltd and Mr Tsu were the first and second defendants (Ferdinand Nemeth and Anor v Prynew Pty Limited and Ors [2005] NSWSC 1296). It is clear that, along with other concerns the plaintiff had, she was concerned about the nature of the indemnity she was being asked to agree to in relation to the undertaking.

149 There is no doubt that it seems the much more significant matter that was weighing upon the plaintiff's mind was the possible exposure to costs in relation to the Prynew matter. There is no doubt that Mr Hall thought the matter should be settled, as did Mr Richardson SC for a combination of reasons. An important reason though is that Mr Richardson SC and for that matter Mr Hall had formed the view that the plaintiff was likely to be found in a number of respects to be a dishonest witness and hence in their opinion would present as an unattractive face for the purposes of making a very substantial claim in the proceedings.

150 In the email from Mr Hall he had invited her to double check his advice with York Family Lawyers, the plaintiff's previous solicitors. She chose not to do that but instead to instruct a Mr Max Meyer said to be an accredited family law specialist at the firm of Meyer Pigdon. An appointment was made for 29 January 2009. In anticipation, Mr Meyer sent the plaintiff a schedule of his and his staff's charge-out rates. There is not material before the court which indicates precisely what it was that Mr Meyer discussed with the plaintiff. However there seems little doubt that the plaintiff wished to continue to retain Mr Richardson SC. It seems a fresh retainer agreement was prepared on behalf of Mr Richardson SC and sent to the plaintiff on 23 February 2009 by Mr Meyer.

151 On 24 February 2009 the plaintiff responded to Mr Meyer indicating that she had read the proposed retainer agreement together with other materials including the "Supreme Court judge decision re Prynew" and requested a meeting with Mr Meyer the following week. Mr Meyer and the plaintiff met on 17 March 2009. At that meeting the plaintiff provided Mr Meyer with a copy of the Heads of Agreement and there was clearly a discussion between the two of them about its terms. Mr Meyer wrote a letter to the plaintiff on 18 March 2009 which records their discussions and the plaintiff's then view as to the various paragraphs, it seems, in the document. It is not entirely easy to reconcile the paragraphs referred to in Mr Meyer's letter of 18 March with the paragraphs in the Heads of Agreement. It is clear that he is making a reference to paragraph numbers of "your note" meaning a note from the plaintiff. This would not appear to be in evidence. However what is clear from the letter of Mr Meyer of 18 March 2009 is that the plaintiff was now content with a number of matters in the Heads of Agreement, indeed a substantial number or so it appears. She still had some reservations, as is also clear from his letter. What this shows though, was that she was collaborating with Mr Meyer and in turn Mr Richardson SC and working (albeit slowly) through the various items that concerned her. Again, it is by no means clear what the plaintiff had requested but she clearly wanted some interim payment, to which Mr Meyer responded in his letter of 18 March 2009 in the following terms:

In answer to your questions:

1. No: The family court will deal with the matter only on a final hearing basis. There is no case for an interim payment of that magnitude...

2. ...

152 On 19 March 2009 Mr Meyer again wrote to the plaintiff. Again, although it is a somewhat long letter, in my view it is important to set out the details relevantly as follows:

Next, I confirm that we attended the conference with Mr Richardson of Senior Counsel and your friend Sarah. We discussed the question of security for the performance by Mr Nemeth of the obligation he accepts or accepted to you to pay you $8,000,000. It was expressly left open Mr Richardson said, and Mr Nemeth's lawyers were advised that you would not accept only injunctions restraining Mr Nemeth and the companies from disposing of their assets: there would need to be more than that. Therefore it would be open to you to approach the question of security without putting the whole of the settlement at risk.

However, Mr Richardson, and I both expressed the view that if you were to pursue the other matters that you raised and I confirmed in my letter yesterday, there was a serious risk that Mr Nemeth would walk away from the settlement. I confirm we both advised you that neither is bound at the moment by the Heads of Agreement and each of you can walk away.

I confirm also:

1. Mr Richardson advised that if the matter went to trial everybody would lose because of the tax problems.

2. Because of the ICAC findings against you, there was a serious risk that your evidence would not be accepted unless it were corroborated by independent arms length evidence from others and if it was merely you against Ferdy then he would be believed and you not: the ICAC findings Mr Richardson described as hugely damaging to you.

3. There is also a huge question mark on the realisation of the Hampton Court Hotel project.

4. In relation to Mr Nemeth's staying in the home it was your proposal that he do so.

5. The claims that may be made by your relatives: you said that it was highly unlikely that any of these would be pursued. Mr Richardson confirmed they certainly could not be pursued in the Family Court. In any event you are required only to use your best endeavours under the Heads of Agreement and you must do so in good faith.

6. The attempt to reopen the question of occupation of the home and continuation for further period of the spouse maintenance would also run the serious risk that Mr Nemeth will want to reopen the negotiations and also security may be harder to negotiate than it might otherwise be.

7. The Court will not give you security if the result were obtained after a defended hearing.

8. As to the question of your risk of costs in the Supreme Court proceedings this was discussed but we could reach no conclusion because we were not really fully aware of those issues even now. There does appear to be an application that you pay costs of the defendants because of the offer of settlement and you have provided us with the document showing this by way of submissions. Mr Richardson suggested, and I shall follow this up if you want me to, that I speak to the barrister who appeared for you in the Supreme Court proceedings as to any cost risk.

At the end of the conference you instructed me to approach Mr Paltos, once I was on the record for you, and to pen a dialogue with him as to the question of security by inviting his proposals on behalf of Mr Nemeth. I shall now do so.

153 This by no means shows that the plaintiff had rejected her lawyer's advice, but again shows she was carefully working her way through the various matters involved in the proposed settlement. Certainly by this stage at least she had been told that the Heads of Agreement were not binding and that each party, if they chose, could walk away. She clearly was looking at resolving issues without a contested hearing.

154 Again on 19 March 2009 Mr Meyer sent a further email to the plaintiff. He informed the plaintiff that Mr Hall had informed him that all of the money in Mr Hall's trust account (and then some more) went on account of Mr Hall's fees. It is clear from paragraph 2 of Mr Meyer's email that the plaintiff raised the possibility of tax evasion on the part of her former husband in relation to dealings with his superannuation fund. Mr Meyer indicated that as Mr Nemeth was well over 65 he had been entitled, without tax penalty, to draw monies out of his super fund. In any event this shows in my view an attention by the plaintiff to the financial detail together with her seeking to obtain some forensic advantages on the basis of the accounting for her former husband's superannuation fund. In his email, Mr Meyer pointed out that the delay in implementing the Heads of Agreement was considerable and it was now difficult to know whether or not the settlement was still on foot given the delay. He stated:

You have quite properly formed the view that the existing settlement is very much in your interest and both of us (Richardson and I) have confirmed your view. Obviously the course of safety in relation to understanding your exposure to the costs orders is to await the outcome but that needs to be balanced against the possibility of losing the settlement and we do not yet know what the risk of that might be. As Mr Richardson pointed out there is also the question of Ferdinand's age and health and your having to deal with his executor about these matters if he should die before the settlement is implemented by the way of making court orders.

155 Mr Meyer also said:

As to whether we need Mr Richardson if we go ahead with the agreement that is largely a choice for you. Given the very significant sums of money and the risks involved you may feel more comfortable if once documents have reached close to final form having Mr Richardson provide final advice.

156 Again this material does not show the plaintiff unequivocally rejecting advice given, but rather suggests that in broad terms at least she had come to the view at that point that the settlement was in her best interests. It is also clear however that there was work to be done and perhaps further negotiations and indeed further documentation before the arrangements could be consummated. It will become apparent that the reference to "costs orders" is a reference to the Prynew litigation.

157 Mr Meyer formally went onto the record on 19 March 2009. On 30 March 2009 he again sent an email to the plaintiff. Again, it is on the lengthy side but it is important to set it out.

1. My firm will not become involved in the Supreme Court proceedings. The only relevance of those proceedings is to the Family Court proceedings, and the Heads of Agreement, insofar as they relate to indemnities and the need to understand the Supreme Court proceedings as a background to the exposure that you might suffer in relation to costs.

2. There is a response from Trevor Hall and a response from me to him, each of which has not been copied to you.

3. It is disappointing that you do not want to proceed in relation to the Heads of Agreement and that you are now once again talking about trying to deal with negotiations on behalf of your family. This is directly contrary to the advice given by Mr Richardson of Senior Counsel in conference, and also would seem to be directly contrary to the Heads of Agreement to which you agreed at the mediation in relation to members of your family.

4. The problem is there is no real accounting of the trust account yet.

5. Thank you for being straight forward with us about the budget for your legal costs and I agree that there is every need to be careful. In any event I have yet to receive any response from Dennis Paltos as you know.

6. Mr Hall has so far refused to hand over his file.

7. You have already provided me once before with Sarah's statement.

8. You are perfectly well aware that Mr Hall says there is no balance of the trust funds to be transferred to our account: quite the contrary, all the money has been spent in payment of his fees and those of Counsel presumably, and not only is there no money left but a reasonably substantial debt is claimed to be owed by you to him.

158 At this point clearly the plaintiff was resisting the advice previously given to implement the Heads of Agreement. It is also plain that she was experiencing financial difficulties both in relation to a budget for her legal costs going forward and for what is described as a substantial debt claimed by Mr Hall in relation to unpaid fees. There seems little doubt that she was concerned about Mr Hall's accounting and presumably was concerned about the level of fees said to be outstanding. She was still concerned about the Prynew proceedings and her family's claims.

159 On 25 March 2009 the plaintiff wrote to Mr Meyer. In that letter the plaintiff informed Mr Meyer that she proposed to speak directly with her former husband and that she would rather negotiate with him than litigate. This statement was made in relation to her family's claim for unpaid wages. The plaintiff then stated:

I was very depressed then and vulnerable and trusted Trevor and Nella Hall until I realised that I was caught up between unsettled couple and only became that they did not have enough experience to deal with my case when Mr Hall was unable to attend the court and conferences and written a letter to Judge Macready.

160 On 1 April 2009 Mr Meyer again emailed the plaintiff. He indicated, amongst other things, that he had not been able to get any response from Mr Paltos. In that email, Mr Meyer concluded that Mr Richardson SC believed that the settlement was a very good one for the plaintiff.

161 On 20 April 2009 the plaintiff sent an email to Mr Meyer on a whole range of issues. Among them, she indicated that she had met with her family (ten members of whom had been working at the hotel) and that they were willing, as it were, to provide a release in relation to any claims. She also indicated that she had an old will that she wanted to update to put her affairs in order, as she believed that she had been in fact receiving threats on her life. She also informed Mr Meyer that she was proposing to go away for a month.

162 On 23 April 2009 Mr Paltos wrote to Mr Meyer. He made it clear that the release referred to in the Heads of Agreement was an essential part of any settlement being implemented.

163 On 18 June 2009 Mr Meyer sent an email to the plaintiff. He referred to a telephone mention for both lawyers before the Registrar on that day. Mr Meyer said:

I telephoned Mr Paltos to find out what had occurred. He of course told me in the meantime his fax arrived in any event.

I also took the opportunity to discuss with him where things were heading. I must say I am deeply concerned about what I perceive to be a level of game playing and evasiveness on both parties' parts.

On your part I cannot get any instructions as to whether and if so how to proceed other than that you wish to adhere to the overall heads of agreement.

However in recent communications you have wanted me not to take any further steps.

From Mr Paltos's part and arising not only our phone conversation today but previous communications it seems that:

He interprets the Heads of Agreement as requiring you to produce the releases from your family members as conditions precedent to any settlement. In my view this is not an available reading of the Heads of Agreement and indeed makes no logical sense.

However and subject to what follows if there is a settlement and if we have to give the releases as part of the settlement it seems to me to make no difference if you obtain those releases now instruct me to advise Paltos that we have them but they are to be held by me in Escrow against any final settlement and to be provided at the time of settlement.

However I could not get Mr Paltos to commit to the rest of the settlement even if those conditions were fulfilled. Neither would he say what his client's reservation was.

164 Mr Meyer clearly perceived that both parties were, for their own particular reason, as he put it, involved in "game playing". Certainly it is difficult to fathom precisely what the motivations of each side were at this point.

165 On 19 June 2009 the plaintiff sent an email to Mr Meyer. She makes it plain that she was prepared to go ahead with the Heads of Agreement when she and Mr Meyer had met with Mr Richardson SC, but she was concerned that members of her family who worked at the company and made a huge contribution to the business had not been properly compensated. She went on to indicate that she may have to litigate the matter because of the requirements in relation to the releases and then stated:

As you are aware I have no funds to meet further legal cost.

166 On the same day Mr Meyer responded in a lengthy email. Mr Meyer perceived at least that the plaintiff was having difficulties in dealing with her family about the releases. Given the number of her family who had been involved at the hotel this is perhaps not surprising. Mr Meyer however said as follows:

Last it is not correct that I am aware that you have no funds to meet further legal costs. It is rather fundamental to the nature of the agreement between us that you would keep me advised about your financial position and your ability to meet our fees as they become due.

It is inconsistent for you at the same time to ask whether "we can arrange a hearing" for release of more funds to cover my legal costs.

Mr Richardson and I both pointed out to you that should Mr Nemeth die before this settlement is concluded and implemented it may be significantly more difficult for you to deal instead with Anthony as an executor of Mr Nemeth's estate.

167 On 7 July 2009 the plaintiff sent an email to Mr Meyer. She invited Mr Meyer to debit her Mastercard with any outstanding fees. She also made reference to the fact that she had requested Mr Meyer to make a claim for additional funding from the Family Court. She also informed Mr Meyer that although she had attempted to have her family sign the releases, they had decided to take legal action against her former husband and the company. She also informed Mr Meyer that as far as she was concerned, the neighbour (Mr Tsu) was appealing the decision of the Court and presumably she was concerned again about some costs issue in relation to those proceedings.

168 On the same day, Mr Meyer reminded the plaintiff that she owed $9,443.50 by way of outstanding fees.

169 On 8 July 2009 the plaintiff again instructed Mr Meyer to make application to the Family Court to have $250,000 ordered for legal expenses because of her former husband's unreasonableness in failing to implement the Heads of Agreement without releases from her family. She also wanted him to have the deposit of $30 million which had been placed in an ING account in the name of F & V Nemeth Investments Pty Ltd transferred to her trust account. She also informed Mr Meyer that her family had instructed lawyers to bring a claim for their unpaid wages (amongst other things). Further she informed Mr Meyer that her neighbour was definitely going to appeal and she required an indemnity in relation to the costs of those proceedings.

170 On 10 July 2009 Mr Meyer responded. It is plain from his email that upon his analysis of the financial statement of Mr Nemeth, the only liquid funds disclosed in his view were $11,694 in a Westpac Account and $6,441 in the solicitor's trust account. He identified a number of loans and then concluded that in his view there was no liquidity against which a court could order Mr Nemeth to make demand upon either company for repayment of the loan amounts and therefore there was no funds available against which a court could order Mr Nemeth to pay the amount. He observed that the company at one stage had cash at the bank of $10 million but he had no idea currently whether that was still the position. He further advised that he thought a court would not order the $30 million in the ING account to be transferred to a trust account in the plaintiff's name. He also informed the plaintiff that the prospect of her family commencing proceedings may have the effect of adjourning the Family Court proceedings. He advised her in relation to the proceedings concerning the adjoining property that it was a good idea to await the outcome of the appeal. On these aspects, importantly he stated:

4. the action to be taken by your family against the company may have some impact upon your Family Court proceedings because the proceedings represent a contingent liability of the company once commenced. Mr Nemeth may want the proceedings in the Family court adjourned until the proceedings by your family are concluded. I do not know what step he will take.

5. At this stage it is probably appropriate to await the nature and scope of the appeal. If there is to be one it may not include any appeal against the costs orders but of course it might. There is no reason why you could not ask the Family Court for such an indemnity but I suspect the Court may say that this is a matter for the Supreme Court to determine.

171 On 28 July 2009 he asked for instructions in relation to the proposed directions hearing in the Family Court.

172 On 18 August 2009 the plaintiff sent an email to Mr Meyer. In that email she expressed the view that Anthony was unduly interfering in her ability to arrive at a settlement with her former husband. She said:

Ferdie is 84 years of age and I strongly believe that we did not have Anthony to interfere with our lives we wont be in this situation we are in at the moment. Anthony should live his own life and have left us alone.

She also makes it abundantly plain she was in financial difficulties and said:

As you are aware I have no funds for litigation. Therefore I need to be very careful with my expenses. I shall organise for you to have the file sometime next week.

173 On 23 September 2009 Mr Meyer reminded the plaintiff that an amount of $4,613.18 was outstanding. On 29 September 2009 he advised her that his hourly rates were increasing. On 2 October 2009 he again reminded her that she had not paid the amount outstanding. On 12 October 2009 she sent an email to Mr Meyer indicating to him that she had not been well and apologised for the delay in responding to his requests. She asked him to debit her credit card with the outstanding amount and then concluded by saying "I also wish to advise you that due to a lack of funds I have to terminate your services from this date. I intend to represent myself".

174 On 12 October 2009 Mr Meyer filed a notice of ceasing to act. On 10 December 2009 the plaintiff filed a notice of address for service at the matrimonial home in Darling Point.

175 From the above chronology the following would appear to be the case:

(a) There are a number of reasons why, notwithstanding the advice of Mr Richardson SC and Mr Hall, the plaintiff did not settle at the mediation nor seek to implement the Heads of Agreement. She was clearly concerned about the releases in relation to her family and any indemnities in relation to costs that might flow as the result of her involvement in the Prynew proceedings. It was also clear I think that she wanted a larger settlement.

(b) It is plain that both Mr Richardson SC and Mr Hall thought that she would be an unattractive applicant and they clearly had grave misgivings about her integrity and the likelihood that she would be found to be dishonest. Further, they thought that she could expose herself, let alone her former husband, to prosecution by the authorities in relation to tax issues.

(c) It is also clear that the plaintiff felt that neither Mr Richardson SC nor Mr Hall had properly grasped the counter allegations that she thought were open against her former husband in relation to the Prynew litigation.

(d) Mr Meyer appeared to agree with Mr Richardson SC.

(e) It is also clear that the plaintiff thought her stepson Anthony had far too much control over her former husband and that he was obstructing her from obtaining more money by way of agreement from Mr Nemeth.

176 Although she really wanted to settle the litigation she clearly felt that given the predicament she was faced with, especially the attitude adopted by her family in wanting to commence their own proceedings, it would be better for her to at least in the short term obtain more funding from the Court. She clearly also believed that the Prynew litigation and the possibility of an adverse costs order against her as a result of a successful appeal by Mr Tsu created considerable uncertainty. Mr Meyer told her it was best to wait to see the outcome of the notice and scope of the appeal.

177 She clearly wanted, if she could, to gain control of the $30 million, either in order to achieve that as the ultimate outcome or alternatively to use it as a means by which she could negotiate a larger settlement.

178 She had been told by Mr Meyer and clearly believed that there was no prospect that she would be able to make a further claim for interim costs, as it were, to continue the litigation. She also believed, and there is no evidence to suggest to the contrary, that she had no cash reserves to continue to instruct Mr Meyer. It is instructive that the last bill (if not other bills) were paid via her credit card. She also believed, and again there is no evidence to contradict this, that there was a "substantial debt" (although there is no evidence as to precisely what this was) still owed to Mr Hall.

179 Her family, (perhaps all 10 or so in number) had indicated to her, and again there is no evidence to contradict this, that they were proposing to commence proceedings in their own right against her former husband (or one of the corporate entities) for unpaid salaries. She had been told by Mr Meyer that this was a complicating factor. There is no reason to disbelieve that aspect at least of his advice.

180 She was no doubt angry and quite distressed at the situation she was placed in. She held Anthony to blame for very much of it and given what she had previously done and her attitude towards him, there is no reason to think that Anthony was doing anything to facilitate a reasonable, let alone increased, outcome for the plaintiff in relation to the settlement discussions. Indeed given her treatment of him and the allegations made in relation to him (especially if untrue) there is no reason to suppose that he would have been disposed to invite or encourage his father to display generosity towards the plaintiff. This position was not only exacerbated by her persistent allegations about Anthony not being the biological son of her former husband, but by the many other assertions she made about him including the joint contrivance between him and her husband in relation to the proceedings in connection with the next door property. She had no hesitation ventilating every suspicion she harboured in her family court affidavits. Whether they were intended to be so or otherwise, they were clearly provocative and those solicitors who were instructed no doubt to file those affidavits could not have been left in any doubt that they would have been regarded as highly provocative and prejudicial and were intended by her to be so.

181 She perhaps had little sensitivity into how much she had hurt her former husband not only in making the allegations about Anthony, but in her behaviour in defrauding, so it seems, some of his corporate entities and her philanderings with Mr Sealby.

182 Part of her motivation, so it seems, so far as Anthony is concerned, was driven by two factors. First, she was jealous of his relationship with her former husband and wished to discredit him in his eyes and demand that he be disinherited. Secondly, she believed he stood in the way of her achieving a more substantial financial outcome.

183 What concerned her about the litigation concerning the adjoining property was an exposure to considerable costs given what she knew or believed her formed husband had expended for very little return. She thought the claim was for $250,000 and some $2 million had been expended by her former husband which has caused Mr Tsu to expend significant fees.

184 Although she gave evidence to the effect that it was her "friend" Sarah Winter who forced her or told her to sack Mr Meyer, I cannot accept that evidence. It is clear for the reasons above that she did not feel inclined to enter the Heads of Agreement or implement them and she was in her own mind seriously financially distressed at the time and felt she had no option but to terminate his services.

185 It is in this context that within a relatively short time she met Mr Byrnes and Mr Rogerson.

The Witnesses

Expert Evidence

186 The plaintiff called a distinguished former judge of the Family Court of Australia, the Honourable Stephen O'Ryan QC.

187 In an expert report dated 16 May 2013 Mr O'Ryan expressed the view that the plaintiff could have applied to the Family Court pursuant to s 79 and s 80(i) and (h) of the Family Law Act 1975 (Cth) and consistent with authority of Strahan v Strahan for a further order for interim/partial property settlement. What needs to be satisfied is that it is in the interests of justice. There is no need to establish compelling circumstances. The Court however does exercise a discretion in that regard.

188 He expressed the view that a competent legal practitioner would have advised the plaintiff accordingly and that in the circumstances she would not have had a commercial need to enter a funding agreement from a third party lender.

189 Mr O'Ryan was cross examined but he maintained his views and I accept his opinion.

190 What follows, although I make no finding, is that Mr Meyer may well have acted erroneously in advising the plaintiff as he did in the latter part of 2009. However because of the findings I have otherwise made as to the plaintiff's predominant intentions in entering the Agreement, Mr O'Ryan's opinion does not affect my conclusions.

The Plaintiff

191 This is a somewhat unusual case. It is one of the few cases I can recall where the epithets used by the plaintiff's counsel to describe his client far exceeded any used or hinted at by the defendant's counsel. Whilst the plaintiff's counsel opened the case by suggesting that the plaintiff, Mr Byrnes, Ms Winter and Mr Rogerson for various reasons would have question marks over their heads in relation to their reliability and/or credibility, by the end of the case it is fair to say that most of the criticism was reserved for his own client. He did invite me to reject certain things which had been said by Mr Byrnes and Ms Winter, but indicated he had no criticisms of Mr Rogerson's evidence in the end. I will return to each of these in due course.

192 It was submitted on her behalf that she was incapable of making an informed decision as to where her best interests lay in relation to the Family Court litigation, and that she was at relevant points irrational. The following exchange took place between myself and counsel for the plaintiff:

His Honour: I don't want to start debating this now but you would ask me to reject her email to Mr Meyer would you?

Newlinds: Yes

His Honour: As being an untruthful account on her part?

Answer: Yes

His Honour: And will I accept also to be untruthful that she received these anonymous letters? How much do I accept? You will deal with that in submissions.

Newlinds: Of my client?

His Honour: Yes

Newlinds: Hardly anything

His Honour: Hardly anything

Newlinds: Mr Coles will give you a burst on her credit, but it does not matter. She is not reliable.

His Honour: All right. So I should reject much of what she has said, both in her affidavit in the witness box, should I?

Newlinds: Yes, unless its otherwise corroborated.

193 There is little doubt that the plaintiff's counsel in his refreshingly candid approach would rightly have deserved the approval of Sir Owen Dixon as being an example par excellence of what Sir Owen described (extra curially) as candour in advocacy (Sir Owen Dixon, Jesting Pilate, (1965) The Law Book Company Ltd at page 134).

194 Having observed the plaintiff while she gave her evidence, but perhaps much more importantly having looked at the contemporaneous materials, it seems to me that it is true to say that by late 2009 the plaintiff was somewhat disenchanted with her lawyers. It is not true however to say in my view that she had rejected all of the advice that she had been given, nor did she terminate all lawyers. She clearly maintained contact with Mr Richardson SC who was instructed, so it seems, in the first instance by Mr Hall. That retainer was continued with Mr Meyer and further continued at the plaintiff's current firm Coleman Greig until the matter was finally resolved in 2011.

195 It is true that the plaintiff wanted more money out of the settlement. It may also be true that she found it difficult to accept her counsel and solicitor's assessment of her prospects in a contested hearing. However, they told her to settle and she did for the most part want to do just that.

196 It is equally clear in my mind that her concerns about the prospect of doing the right thing by her family were most likely genuine and real. They were not irrational. Approximately ten of her family members had worked for her former husband and she rationally believed, it seems to me, on the basis of her own knowledge of the circumstances of the employment, that they had a claim which they were entitled to bring in order to achieve proper compensation for the work they had undertaken. In the end, although there is no evidence directly before the court as to whether proceedings were commenced, there is contemporaneous materials as I have already observed suggesting that the members of her family were seriously contemplating or had commenced proceedings against her former husband for compensation. This was one of the issues she had to attempt reasonably to sort out.

197 There is no doubt again that she had reservations about the settlement because of her possible exposure to a costs order in the Prynew proceedings. Again I do not regard that fear as irrational, but quite the opposite. Afterall, although there is no direct evidence of precisely how much money was spent, it appears to be common ground that her former husband had spent a very large sum of money on legal costs in relation to those proceedings for very little return by way of compensation. She was concerned because at the time (in late 2009/early 2010) the Prynew proceedings had not been resolved or completed. Further, as again I have already observed, clause 14 of the Heads of Agreement specifically required her and her former husband as it were to agree not to seek any costs against each other nor to submit that either of them should contribute to any costs order sought by any defendant in the proceedings against them. It is worth observing that both the plaintiff and her former husband were co-plaintiffs. There were a number of defendants. In late 2009/early 2010 she believed, and again I do not believe irrationally, that Mr Tsu had lodged an appeal of the decision which I infer had gone against him. That she felt vulnerable in agreeing to the Heads of Agreement before that matter was clarified or resolved, again, I do not find to be irrational.

198 Her expectations in relation to a possible larger financial settlement than she was being offered was really supported initially I think by Mr Wahhab's assessment that a claim for $30 million plus the house was not fanciful. After all, Mr Wahhab was an accredited specialist in family law.

199 There is equally no doubt in my mind that she had accepted from as early as February 2008 that Mr Paltos, a solicitor who had been retained by her husband, was a tough negotiator and would work towards her getting a minimum amount out of any settlement.

200 By the time she terminated Mr Meyer's retainer in October 2009, I am also of the view that she not only believed she did not have the available funds (and not irrationally) to further retain him, but clearly accepted Mr Meyer's advice that she could not make an application for further funding from the court. In addition, Mr Meyer told her in March 2009 that there was a substantial debt still outstanding to Mr Hall. There is no evidence as to precisely how much that was, but again, there is no reason to suppose Mr Meyer had made up that assertion. More to the point, although the plaintiff did not advert to this matter she clearly was told about this in March 2009 and I have no doubt that also weighed on her mind.

201 I have serious misgivings that she ever received any so called anonymous letters. She never kept any, even the last one she received at the end of 2009. It seems to me inconceivable that if she was genuinely concerned, more to the point if she could blame Anthony with any justification for sending her those letters, she would have taken every and any opportunity to connect him with them. Notwithstanding the fact that she asserts her former husband tore a number up, not all were torn up. I am simply unable to accept her evidence in relation to the letters. However, her attitude towards Anthony, obsessed or otherwise, was likely to have caused significant animosity between him and the plaintiff. Afterall, she had DNA tests done. Her suspicion that Anthony was not the biological son of her former husband was correct. She could wait to use that fact, she hoped, to her financial advantage.

202 She demanded that as a result her former husband disinherit the person he had believed for some 23 years had been his son. This understandably shocked and hurt her former husband. It showed a particularly callous attitude on her part driven, as I have said, entirely by financial motivations and certainly not in the best interests of her elderly husband as he then was, or relations between herself, her former husband and Anthony.

203 Whether Anthony had made the remarks she attributes to him or not is not to the point. She clearly regarded him as a thug and in any event, as I have said, he had every reason to be angry towards her. She had provoked this reaction not only by the DNA tests but by her allegations generally about the way in which Anthony allegedly unduly influenced her former husband and/or Anthony's alleged criminal behaviour, including the forging of her former husband's signatures. The fact that she was prepared to make these allegations quite openly in numerous of her Family Court affidavits would only have served to increase the tension between the respective parties, most importantly between herself and Anthony. I cannot come to any other finding except that she was deliberately confrontational for the purposes of advancing her own financial position. She went on the attack in a deliberately hurtful way to advance her own interests.

204 At the same time she apparently had no hesitation in having an affair with Mr Sealby and it seems defrauding one of her husband's former corporate entities.

205 Whether Mr Meyer gave honest but erroneous advice in relation to the possible provision to her of further financial assistance by order of the Family Court, she had other very good reasons why at the time she felt unable to execute and/or implement the Heads of the Agreement.

206 She was done with the lawyers, and whilst it might be said what she required was a good, competent family law lawyer, I do not really believe that was what she was looking for in late 2009/early 2010. What she was looking for was some person or persons to assist her to deal with Anthony, who she believed was standing between her and a more generous settlement with her former husband. As I have said, there is every reason to believe that Anthony would not have responded to her various allegations with any sense of grace or generosity, quite the contrary. She clearly appreciated, in my view, that she had escalated the situation.

207 Insofar as she gave evidence that she was not happy with aspects of the Heads of Agreement, I entirely accept that. As I have had said though, she was unhappy for perfectly rational reasons. That she was perhaps not prepared to accept that she may not come across as an honest witness is a view she was entitled to hold. Afterall, that aspect of Mr Richardson SC and Mr Hall's advice and for that matter Mr Meyer's advice was only really based on their impressions of the plaintiff. It was not as if they gave her advice on the construction of a document or on a pure point of law about which objectively there could be no debate.

208 On a number of occasions she sought to attribute some form on control over her by her "friend" Sarah Winter. I reject her evidence on that. I have little doubt that at the relevant time the two had a close bond as friends. According to Ms Winter, the plaintiff had promised to buy Ms Winter a house in Double Bay. Again, I do not think this is the plaintiff being irrational, but rather manipulating Ms Winter into giving the plaintiff her undivided and gratuitous support on the promise of some future reward. My assessment of the evidence is that Ms Winter assisted her to be put in touch with people such as Mr Byrnes, and for that matter Mr Rogerson. She also assisted the plaintiff initially to be put in touch with Mr Hall for whom Ms Winter had been employed. But I do not accept that the plaintiff blindly or otherwise followed Ms Winter without giving any thought to what she in fact was doing herself. I reject the notion that she terminated Mr Meyer because she was told to do so by Ms Winter. I do not accept that her email to Mr Meyer was untruthful. At the time (i.e. 12 October 2009) she did not appear to have any liquid funds. She had to pay his last bill by credit card. She was also labouring under the impression, created by Mr Meyer, that she owed further but unspecified funds to Mr Hall, which Mr Meyer described as a "reasonably substantial debt".

209 The plaintiff said she feared for her life, and said she told Ms Jennifer Bennister that in December 2009. She also told Ms Coral Young she was concerned that Anthony might arrange to have her harmed or killed. As a result, Ms Young accompanied the plaintiff to the Paddington Police Station where she and the plaintiff had a conversation with a police officer in which Ms Young asserts that she said to the police officer that the plaintiff wanted the police to know what was going on, in case anything happened to her. It is clear that the plaintiff did not take any of the so called anonymous letters to the police station which fortifies my view that they did not exist. The plaintiff also told Mr Scurr that she had been threatened by Anthony and she told Ms Elias that she was frightened that her former husband would kill her or get someone else to kill her. I have little doubt she manufactured these stories including the anonymous letters. She had turned Anthony into, I suspect, an angry opponent.

210 Knowing that she had no ready cash to further retain Mr Meyer and believing that she owed Mr Hall further monies, I am of the view that the last thing the plaintiff wanted in late 2009/early 2010 was to go back to lawyers in pursuit of what might be called an orthodox solution. What she wanted in my view was an unorthodox solution because she believed that Anthony certainly, and possibly her husband aided by Mr Paltos, would not give her any more than what was possibly just off the table. In addition, the Heads of Agreement, for reasons I have already stated, had other complications for her.

211 Her lawyers, whose advice she largely accepted, could not provide her with the solution or the approach she thought was necessary. She clearly wanted Mr Rogerson to do some violence to Anthony and in the meantime perhaps by unorthodox means pursue some investigations or contacts he may or may not have had to see if he could identify any pressure points that might be used in the negotiations against Anthony and with her former husband. For similar reasons she wanted Mr Byrnes to add further force to her new team to provide some unorthodox negotiating capacity.

212 Mr Gordon Scurr acknowledges that having been told that the plaintiff was unhappy with Mr Hall he was the one who suggested that she retain Mr Rogerson. He asserts that he told her that although it was unusual, she should consider "mediating" her matter privately, using someone like Mr Rogerson. He said he told the plaintiff that as she had been through a number of lawyers and her affairs were in a mess she should "despite his reputation use Mr Rogerson". He also told the plaintiff that he thought she was in danger. Mr Scurr of course asserts that he overheard Ms Winter say to Mr Rogerson that somebody should make an arrangement to break Anthony's legs, or something to that effect. Mr Scurr asserts that Mr Rogerson indicated to Ms Winter in his presence that he would not be involved in any such activity. However, counsel for the plaintiff in fact put to Ms Winter (at T229) that it was the plaintiff who said to Mr Rogerson that she wanted him to threaten Anthony and to put him in jail.

213 Plaintiff's counsel also put the proposition to Mr Rogerson. Mr Rogerson at first said he could not recall the plaintiff asking him to assault Anthony but it was clear upon further questioning that Mr Rogerson did recall or did have the impression at least that the plaintiff was suggesting that some violence be done to Anthony but he indicated he would not do any such thing.

214 I am satisfied that the plaintiff wanted Mr Rogerson, apart from any investigations or enquiries he might make, to threaten Anthony and if need be have him physically dealt with.

215 The plaintiff also said that at some point she realised that Anthony was in fact associated with a person called Mr Felix Lyle. She knew of Mr Lyle's reputation and his underworld connections. She appreciated that Mr Lyle had some involvement with the Hampton Court Hotel.

216 The plaintiff realised Mr Lyle was associated with a Ms Maria Duncombe. She travelled to Randwick to meet Ms Duncombe and when she arrived Mr Lyle was present. Mr Lyle said to the plaintiff that he was not happy with Anthony and that he and ms Duncombe had lost their deposit by reason of their failure to complete on the purchase of the hotel. She asserts that Mr Lyle said at the meeting that Anthony wanted the plaintiff out of the way. The plaintiff says that after her meeting with Mr Lyle she was very scared and did not want to meet him again as she had read in the news that he was one of the suspects in the murder of Michael McGurk.

217 I am satisfied that after Mr Scurr mentioned the possibility of retaining Mr Rogerson, she "googled" him to find out about him. There is no doubt that there would be a good deal of information available then about Mr Rogerson and his somewhat colourful past. Some people would clearly regard him as a former disgraced senior police officer and some would regard him as having a reputation such that from time to time people approached him and asked him to do criminal acts for them. In my opinion the plaintiff was well aware of the kind of person Mr Rogerson was likely to be and indeed the probabilities in my mind are that she wanted to adopt a much more aggressive approach from the likes of Mr Rogerson and Mr Byrnes. I am also satisfied she "googled" Mr Byrnes before signing the Agreement, and was likewise aware of his reputation.

218 According to the plaintiff, in late December 2009 Ms Winter brought Mr Rogerson to her home. Further, the plaintiff asserts that Mr Rogerson said to her that there was a man that he thought was the best person to deal with Anthony and protect her, indeed he was the person who saved Alan Bond from bankruptcy. It was Mr Byrnes.

219 In any event a meeting was arranged between Ms Winter, Mr Rogerson, Mr Lyle and Mr Byrnes such that they all made their way to the plaintiff's home in late December 2009. In her affidavit she said that she was surprised Mr Lyle arrived, but notwithstanding her apparent fear of him, invited him into her home and thereafter made afternoon tea for the gathering.

220 The plaintiff asserts that during the meeting Mr Byrnes promised to manage her case and finance the litigation if she signed an agreement with him. She said Mr Byrnes made numerous promises to her about arranging an offer of $10 million to Anthony to leave her alone and that he would negotiate a buyer or developer for the hotel. He would place a caveat on the hotel and demand that Anthony and her former husband pay her the amount in her loan account permitting her to withdraw an amount of $3 million in order to set up a charitable organisation. The plaintiff said she did not respond, but Mr Byrnes indicated he would draw an agreement up and have further discussions.

221 According to the plaintiff relative strangers such as Mr Rogerson, Mr Lyle and his driver (the latter two arriving apparently unexpectedly according to the plaintiff, [132]) and then a "few minutes later" Mr Byrnes, all arrived at her home. Again, according to the plaintiff's version of this meeting and with relative strangers she apparently openly discussed her divorce proceedings and the sale of the hotel. At this meeting Mr Lyle apparently said to the plaintiff that Anthony wanted to get rid of her because he wanted to be in control of everything. Despite apparently feeling "alone, down and depressed" at the time, the plaintiff busied herself serving her guests afternoon tea, which was obviously a memorable event according to various versions given of it by the persons who participated in it.

222 The plaintiff gave account of conversations she asserts she had with Ms Winter on 18 January 2010 in her affidavit at [137]. This is apparently a conversation which took place after the initial meeting with Mr Byrnes and others. She asserts she told Ms Winter that she did not wish to sign an agreement with Mr Byrnes and would just go ahead with the Heads of Agreement and "live in peace". Further, and importantly in my mind, she says that she was not happy with paying "the 25% commission on any amounts already agreed in the Heads of Agreement".

223 I should indicate that I do not accept that this conversation took place in these terms. I do not accept for example that the plaintiff had decided, prior to going to Mr Byrnes' house for a further meeting, to accept the Heads of Agreement but was somehow cajoled or pressured by Ms Winter or for that matter anybody else in going to the meeting with Mr Byrnes. What it shows even on the plaintiff's version of events is she was acutely aware that she was being asked to sign an agreement which provided a 25% commission on the amounts which were already included in the Heads of Agreement. The plaintiff had accounting qualifications and was an experienced bookkeeper and had been involved in the business of the Hampton Court Hotel for some years.

224 The plaintiff also says that she was fragile and anxious and had suicidal feelings. I should observe here that no cogent medical evidence was filed in these proceedings of any relevance as to the plaintiff's state of mental health as at the relevant time, importantly in January of 2010. In her written and oral evidence, I consider she unduly sought to exaggerate various aspects of her mental state.

225 She agrees that she went to Mr Byrnes' home on 18 January 2010 as it was there that she was provided with a copy of the Agreement. She also agreed that at some point, although it is not perhaps entirely clear, she has herself circled the figure of 25% on the Terms Sheet (CB1/97). She also agreed that she signed the Agreement on that day but again she asserts was that she was pressured into doing so and was in fact incapable of giving careful consideration to it.

226 I accept Mr Byrnes told the plaintiff to seek the advice of a lawyer and also about the cooling period, and I reject the plaintiff on these matters.

227 It is accepted on behalf of the plaintiff that she had a capacity to read and understand the document and that she was at the relevant time an intelligent woman. I reject the notion that she was incapable at the time of giving consideration to what she was signing. Her circling of the 25% shows a level of control and focus on what is clearly one of the most important aspects of the whole agreement. This displays attention to detail. It betrays composure not confusion or submissiveness.

228 The plaintiff denies that Mr Byrnes mentioned anything to her about obtaining independent legal advice or about any "cooling period". I reject the plaintiff's evidence insofar as she denies having been told about either of these matters at her meeting at Mr Byrnes' house on or about 18 January 2010. The reasons I reject the plaintiff, apart from her general unreliability, is because first, the Agreement that she received on 18 January 2010 specifically mentions it (albeit as a definition a cooling off period in clause 1.1). Secondly, the Addendum received by the plaintiff which she also signed on 26 January 2010 specifically makes reference to the cooling off period and also the recommendation for her to review the Agreement and to obtain whatever advice she felt was appropriate including legal, financial and/or commercial advice.

229 In addition, there is sufficient evidence that the plaintiff, although she did not show the Agreement to an independent legal adviser, did consult her long time and trusted friend and confidante Mr Fred Rappaport who the plaintiff affectionately described as "Uncle Fred". Mr Rogerson, in his statement at [29] which the plaintiff accepts as truthful, sets out a conversation between himself, Mr Byrnes and the plaintiff in which she explicitly indicated she was going to show the document to Mr Rappaport. Ms Winter also asserts in her statement (at [71]) that the plaintiff told her that she had in fact showed the contract to Uncle Fred and Ms Winter said also to Mr Peter Tsu.

230 The plaintiff was asked about her relationship with Mr Rappaport and she readily agreed that he was a close friend and confidante and had been so for many years. She had met him in Hong Kong and she in fact had worked for him in his own accounting firm for some three years. The plaintiff in my view clearly discussed the proposed relationship with Mr Byrnes with Mr Rappaport and I consider it probable that the plaintiff discussed the financial wisdom of entering the Agreement.

231 On more than one occasion the plaintiff indicated that her principal concern in relation to signing the Agreement with Mr Byrnes and/or for that matter the Addendum was to save herself from being hurt and secure her family's future or, somewhat more dramatically, to be secured from "having her head cut off", (TT74 and 75). I am of the view that when she signed the Agreement she knew precisely what she was doing. She had already retained Mr Rogerson who was to provide investigative and other skills including the potential of doing violence to Anthony. She was also concerned to get Mr Byrnes on her side, whose reputation in many respects was equally as colourful as that of Mr Rogerson. This was no time for lawyers. This was a time, as I have said before, where the plaintiff, I believe and so find, was interested only in fighting fire with fire. In other words, although the 25% was significant and she fully appreciated that, but she thought the combination of both Mr Rogerson and Mr Byrnes could help her persuade, cajole or for that matter pressure her former husband if need be via Anthony to capitulate and provide her with a more generous outcome. They had a different skill set to her lawyers and she believed, I am satisfied, would be prepared to do things her lawyers could not even contemplate doing.

232 I do not accept the plaintiff's evidence when she asserts that she was forced to do anything on 18 January 2010 by Ms Winter or anyone else.

233 Perhaps as the result of discussing the matter with her friend, Mr Rappaport, but certainly it seems independently of that she "realised" upon reflection and upon consideration at greater length of the Agreement that her home was included in the pool of assets from which Mr Byrnes could make a charge of 25%. The plaintiff says this explicitly at [152] of her statement.

234 This of course runs contrary to her evidence. Again she wants to attribute becoming aware that her house was included in the arrangement by some chance meeting with a person called Charlie Moses whom she described as her "former butler". She also attributes becoming aware that her home was involved in the arrangement by discussing matters with Ms Winter. She also tried to assert that she did not either read the Agreement at all or carefully and did not read the Addendum either. However she had to concede that [152] of her affidavit was indeed truthful (T77). Indeed at [152] the plaintiff again explicitly has herself telling Mr Byrnes that he should not be entitled to a commission on her family home, to which Mr Byrnes indicated he would amend the Agreement. She then asserts she signed the Addendum without reading it carefully. I reject the plaintiff in relation to this evidence.

235 The Addendum which she signed on 26 January 2010 records that the plaintiff had sought the following amendments (contained in paragraph 1 to 5 inclusive of the documents, CB1/98). There is nothing in any of those paragraphs in my opinion which the plaintiff did not understand and consistent with what she concedes herself (at [152]). I think the probabilities are, and I so find, that the plaintiff requested each of the amendments set out in the Addendum. This indicates to me that the plaintiff not only gave careful consideration to the Agreement that she had signed but that either from her own accounting knowledge or from that of Mr Rappaport she would clearly have understood paragraphs 1, 2 and I have said 3. She clearly requested paragraph 4 which had been a matter of concern and interest to her for some years.

236 As is clear from the above, even without her counsel's invitation I am simply unable to accept most if not all that the plaintiff has asserted on most issues.

Mr Byrnes

237 In some of the things I have already said it is apparent that in a couple of key respects I accept the evidence of Mr Byrnes, but I will come to those matters more specifically.

238 The plaintiff's counsel, with four exceptions, submitted in final submissions that the evidence of Mr Byrnes should be accepted. The four exceptions are first, that Mr Byrnes was untruthful in that he asserted that he told the plaintiff that she could secure funding through the Family Court. Secondly, that the plaintiff told Mr Byrnes before entering into the Agreement that she could not get funding through the court. Next, that it was untruthful for Mr Byrnes to assert that the plaintiff wanted development services in relation to the Hampton Court Hotel and lastly, that it was untruthful that the plaintiff told him that she was going to develop the Darling Point home and turn it into four townhouses, for which she would receive $20 million.

239 Mr Byrnes, as the documents make clear, as part of the arrangements entered with the plaintiff, agreed to fund the retaining of a firm of solicitors, which as it turns out is Beazley Singleton. He said and I accept that he had provisioned to spend $1 million in relation to the plaintiff's matter. Mr Byrnes accepted that he thought as a skilled negotiator no doubt he could get the offer back onto the table at some point. There was also no doubt that Mr Byrnes thought that it was an extremely good and viable transaction which he thought he would make a profit on.

240 There is no doubt Mr Byrnes realised the plaintiff's connections and expressly went to see Mr Rogerson at his home in Long Jetty to make enquiries about her. He accepted what Mr Rogerson told him namely that she was a person likely to show different characteristics and gave the appearance of being a "sweet little thing" but this was a veneer and there was another person lurking. Further, Mr Byrnes accepted Mr Rogerson's assessment of her, I believe, namely that she was very conservative, intelligent and charming. Mr Rogerson also told Mr Byrnes that if he were to enter an agreement with the plaintiff he should ensure that it was watertight because she would renege on the agreement if it did not suit her.

241 I accept Mr Byrnes' account that his initial conversation with the plaintiff was lengthy, indeed I accept that he had many lengthy conversations with the plaintiff over time in the course of which he sought to obtain both information from her and understand what had been occurring. He accepted she was complex and greedy and that she thought she was a victim. Mr Byrnes accepted that he agreed with a number of things that the plaintiff told him including that the settlement was somewhat "light". However, I accept Mr Byrnes when he said that he did not tell her things simply because he assessed she wanted to hear them. I also accept his evidence when he said (admittedly on the plaintiff's version of events to a large extent) that he honestly believed that the settlement offer on the table was light.

242 He understood and accepted that the plaintiff told him that she had been pressured by lawyers and that she felt bullied at the mediation. She may well have told him that, but that was quite a false impression of what had occurred. Her lawyers (Mr Hall and Mr Meyer) had advised her to settle as had Mr Richardson SC, but she had real and rational concerns about agreeing to the Heads of Agreement for the reasons already discussed.

243 There is no doubt that Mr Byrnes accepted unequivocally that he thought it was a case worth becoming involved in because he thought he would make a profit. He also thought she was not providing him with all of the information she could and from time to time she had difficulty focussing. He accepted that she would steer him in different directions but often towards Anthony with whom she was obsessed. Further he perceived that she was extraordinarily jealous of Anthony's relationship with her former husband. He accepted that prior to signing the Agreement she told him that she did not trust lawyers and that she had a falling out with a number of lawyers. He thought that she could be described as a "princess" and he accepted that he would likely have to sugar coat things that he might tell her particularly those things that she may not wish to be told and he also perceived that she was a person who did not like being told what to do.

244 He accepted that he had people skills to deal with a person such as the plaintiff, but was quite confident that she knew her own mind. He accepts that the plaintiff did not want to run the case and wanted a quick settlement but wanted more out of the offer. He thought she was a difficult person but she made it clear she wanted more money.

245 It was put to Mr Byrnes, and I accept, that the plaintiff told him that she wanted horrible things done to Anthony. Mr Byrnes was also aware of the fact that the plaintiff had requested that Mr Rogerson do violence to Anthony and he had the impression that she was looking for someone to take care of Anthony.

246 It was put to Mr Byrnes that he thought that she was greedy and unrealistic about what she wanted. Mr Byrnes did not accept that he thought that she was unrealistic. He explained that in part just the interest which he thought may have been compounding on her loan which she had provided to her former husband's company was significant in and of itself.

247 It was put explicitly to Mr Byrnes that at the time the contract was entered into with the plaintiff she appeared to him to be unfocussed and completely and utterly irrational. He acceded to this proposition but only that her irrational and unreasonable obsession was directed to Anthony. Mr Byrnes said that the plaintiff was angry with Anthony, she felt betrayed, but that her obsession with Anthony and her feeling of betrayal in relation to her former husband was the extent of her irrational behaviour. Mr Byrnes further went on to say that he felt she could be stubborn and unreasonable.

248 I accept that this was Mr Byrnes honest assessment of her at the relevant time. He was at pains to distinguish her ability to concentrate on matters such as Anthony as opposed to other matters in which he described her as "very rational" in relation to what he described as "other commercial realities", (T201).

249 Mr Byrnes says explicitly in [11] of his affidavit that he asked numerous questions of the plaintiff for the purposes of obtaining information. I accept that he did that and probably in the terms he sets out in that paragraph. He also asserts that during the course of that conversation the plaintiff said to him words to the effect that she had never been told a number of things that he told her during the meeting and that she could not believe that she had been kept in the dark. It was put in effect to Mr Byrnes that he knew that he was effectively cajoling the plaintiff and telling her things she wanted to hear. Leaving aside precisely what that is intended to mean it seems to me that having observed the plaintiff and her demeanour generally it is just as likely that she was attempting to flatter Mr Byrnes as he was perhaps intending to flatter her. After all she did want Mr Byrnes and for that matter Mr Rogerson to do some rather unorthodox things. There is of course no way of knowing what previously her lawyers had said to her except that if any of the matters which Mr Byrnes relayed to her were relevant I could not accept that either Mr Hall, Mr Meyer or Mr Richardson SC would not have raised these very issues with her in the course of their dealings with her. To that extent, if the plaintiff did in fact say what Mr Byrnes attributes to her, I think she was being deliberately disingenuous.

250 I am satisfied that Mr Byrnes did advise the plaintiff to seek out the advice of a lawyer or a competent advisor as he says and further that he did ask her to sign the Agreement but pointed out the cooling off period. He also asserts that the plaintiff said that she would take the document to her "Uncle Fred" which further corroborates that in my view she in fact did.

251 Further Mr Byrnes also asserts that during one his conversations with the plaintiff he told her that she could apply to the Family Court for access to funding to help in the action if she wanted. He records the plaintiff as having said that she hated "Paltos" (this is a reference to her former husband's solicitor), and that he would make it difficult to get money, amongst other things. I am satisfied that such a conversation did take place.

252 There is material in emails to which I have already referred which makes it abundantly plain that the plaintiff did have a particular view of Mr Paltos. It is true also that she had been told by Mr Meyer (in my opinion undoubtedly erroneously) that she could not make an application for further funding.

253 Mr Byrnes asserted that the plaintiff told him that she could not get funding, as it were, for the proceedings and she needed to find some money for her representation. I am asked to disbelieve Mr Byrnes in relation to that. True it is, it is not in his affidavit as such. When she is told about the possibility of funding from the Family Court, according to Mr Byrnes' affidavit, she merely made reference to Mr Paltos and the fact that he was a difficult person. However there is no doubt in my mind that the true position was that when she was speaking to Mr Byrnes she probably had accepted Mr Meyer's advice that funding was not available then from the court and she clearly had no further ready funds in order to continue to retain Mr Meyer.

254 As I have already observed, she was led to believe by Mr Meyer that there was a substantial debt still outstanding to Mr Hall. It was put to Mr Byrnes that he had made that aspect of his evidence up. However, on the basis of the plaintiff's state of mind I think it is highly likely, indeed probable, that she responded in the way he asserts she did. That was part of the message conveyed to her by Mr Meyer.

255 It was also put that Mr Byrnes was untruthful insofar as he had suggested that the plaintiff wanted him to provide development services in relation to the Hampton Court Hotel. It was also suggested that Mr Byrnes was untruthful insofar as he asserted the plaintiff mentioned that she was going to develop the Darling Point home and he would in some way assist her in that regard.

256 So far as the former is concerned, I am satisfied that it was likely that such a matter was mentioned. The very reason why Mr Lyle was there at any meeting was because he was directly concerned with the possible development of the Hampton Court Hotel. There is no doubt that development management services and project management services are mentioned in the recitals to the Agreement. That in my mind corroborates the fact that it is likely, and I am satisfied accordingly, that those matter were discussed.

257 So far as development of the Darling Point home into townhouses is concerned, it was certainly not put to the plaintiff that she had any plan to develop the Darling Point home. It does seem to me however that it is probable that this was discussed with Mr Byrnes as he suggests. The reason I say that is that in an email of 8 February 2008 from the plaintiff to her then solicitor, Mr Wahhab, the plaintiff was purporting to both give instructions and to respond to matters which her former husband had sworn to, so it seems, in the Family Court proceedings. In the body of what is a very long email the plaintiff makes the following statements:

Ferdies claim that the house is worth $20 million is absolutely wrong according to the Agent. The penthouse in no #44 was sold for $4 million. There are 4 beautiful units on this and. To build the building would cost $8 - $10 million. Therefore the agent told me that the maximum he could get for the house is $10 million. It could be worth $20 million if $10 million to be spend for the development of 4 apartments.

Ferdie also claims that he bought the house 35 years ago. But I told him that this house when we started was mortgaged with the bank and Anthony used to call it a hunted house.

It was my idea to make an application to develop the house. The DA approved and it increased the value of the property. Please refer to the Referee's recommendation report for the value of the property...

258 This can only be a reference to the Darling Point home which was number 46. Therefore it is apparent in my view that the plaintiff had considered and indeed had discussed potentially the development of the house by converting it into townhouses or apartments of some sort. I am of the view that this material corroborates Mr Byrnes and I am therefore satisfied that he was telling the truth when he asserted that the plaintiff raised the question of the development of the Darling Point home into townhouses.

259 On balance I accept much of what Mr Byrnes has had to say, and I certainly prefer his evidence on balance to that of the plaintiff.

Ms Winter

260 Again, as would generally appear from the above, I on balance accept the evidence given by Ms Winter. The plaintiff on the other hand asserts that in a number of respects Ms Winter was not telling the truth. The first is that she took detailed notes of each meeting but destroyed them after she had typed them into her affidavit. Secondly, that she did not offer any encouragement to the plaintiff to enter into the Agreement. Third, that Mr Tsu advised the plaintiff on the Agreement and that the plaintiff told Ms Winter that. Last, that at the first meeting with Mr Byrnes, Mr Byrnes said to the plaintiff that he would get a litigation funding contract together for his company for her to read and she could decide what to do.

261 One thing is clear, at one point Ms Winter and the plaintiff appear to have enjoyed a very warm and close relationship. They had known each other since about 2005. It is also clear that at some point potentially late in 2010 they had a falling out. The closeness of their relationship culminated in, amongst other things, them spending a great deal of time it seems with each other but also according to Ms Winter, which I accept, the plaintiff promised to buy Ms Winter a house out of any settlement that she might achieve in relation to her divorce proceedings.

262 Ms Winter accepts, as do I, that she recommended Mr Hall to the plaintiff and arranged for the two of them to meet. Ms Winter asserts and again I accept that in or around December 2008 the plaintiff telephoned her indicating that she was disappointed with Mr Hall and wanted to have a meeting with Ms Winter.

263 At that meeting the plaintiff told Ms Winter that she was basically told to sign the Heads of Agreement at the meeting or she would lose everything. In any event Ms Winter later arranged a meeting between the plaintiff and Mr Hall at which the plaintiff became quite abusive to Mr Hall as a result of which he left the meeting. Ms Winter says, and again I accept, that she was upset as a result, because she felt responsible, having introduced and recommended Mr Hall to the plaintiff.

264 It is clear to me that both women dislike and distrust each other now. They have both tried to portray each other in unfavourable ways. When it suited the plaintiff she gave evidence in my view pretending that at the relevant time Ms Winter was a loyal and trusting friend whose directions as it were she followed blindly. An example of this was the termination of Mr Meyer's retainer. I do not accept that aspect of the plaintiff's evidence at all. Indeed I do not accept that she was at any time under the direction of anybody, and certainly not Ms Winter. That the two women discussed various matters cannot be gainsaid. But it is my view that the plaintiff at all times did exactly what she wanted to do although she did listen from time to time clearly to Ms Winter especially when it came to recommending people she might see and speak with.

265 Ms Winter again accepts that it was she who rang Gordon Scurr and arranged a meeting between herself, the plaintiff and Mr Scurr. I accept Ms Winter when she said that she had numerous meetings with Mr Scurr (six in total) and both during that period and at other times spent an enormous amount of time reading and re-reading the plaintiff's papers in order to try to assist her without reward.

266 Ms Winter did assert that she took detailed notes at each meeting which, according to her, all became embodied in her affidavit. I am not satisfied that this occurred. If she had kept detailed notes I do not understand why she would be busily destroying a contemporaneous record of the various thing which she said had occurred. After all, I did not apprehend that what she was in fact saying was that she typed or prepared her own affidavit for these proceedings. In other words I infer that she did so in collaboration with the defendant's lawyers, in which case the existence of the notes would have to have become apparent as they were the means by which Ms Winter reconstructed the various events. No lawyer would countenance the destruction of the notes if in fact they existed. This leads me to conclude that for whatever reason Ms Winter was being untruthful at least in that regard when she insisted that she had detailed notes which no longer existed.

267 I have absolutely no doubt that Ms Winter went out of her way to try to assist the plaintiff perhaps by reason of the promise ultimately for the plaintiff to buy her a house or a "nice apartment".

268 The plaintiff's technique, or so it seems, in ingratiating herself with various people is to pretend in a most sycophantic way that persons are related to her. She referred to a Mrs Johnston, from whom she seems to have inherited considerable assets, as her "Australian mother". She refers to Mr Rappaport as "Uncle Fred" and seemingly referred to Ms Winter for a period as her "big sister". This technique appears to have worked as part of the means by which, I am satisfied, the plaintiff inveigled herself into the lives of numerous people very much for her financial benefit.

269 Relevantly in relation to Ms Winter, Ms Winter appears to have undertaken an enormous effort both in reading, digesting and spending hours with the plaintiff discussing the best way for her to proceed to achieve a higher settlement. She was instrumental in the plaintiff meeting Mr Hall, Mr Scurr and in turn Mr Rogerson and Mr Byrnes. It was however Mr Scurr who recommended Mr Rogerson.

270 I am satisfied that the plaintiff was, as asserted by Ms Winter, extremely demanding and expected Ms Winter to run after her doing such things as arranging meetings. Ms Winter asserts (at [34] of her affidavit) that whenever the plaintiff attended meetings with her she wanted to be the centre of attention and, as Ms Winter puts it, "told lies" to make them feel sorry for her.

271 I have little doubt that this was a further technique used by the plaintiff to encourage sympathy and most likely to manipulate people from whom she wanted favours. Also I have little doubt that what Ms Winter said in that regard in her affidavit was said both out of anger and an element of contempt. However I do not regard it as entirely misplaced or inaccurate as an observation by her of the plaintiff. Ms Winter denies for example encouraging the plaintiff to enter the Agreement with Mr Byrnes. I accept her denial.

272 I am satisfied that she was in fact doing the plaintiff's bidding. She met with Mr Byrnes initially at the plaintiff's behest to see what he had to say and report back to the plaintiff. I also accept that Ms Winter did not give the plaintiff advice about whether or not it was a good idea for Mr Byrnes to be involved.

273 Rather than Ms Winter representing the plaintiff I think the true position was she was simply doing a significant amount of leg work for the plaintiff both communicating with Mr Rogerson and/or Mr Scurr for that matter and supplying information to them as she believed it in order to assist the plaintiff.

274 There seems little doubt that the plaintiff both in Mr Rogerson's presence and in the presence of Ms Winter requested Mr Rogerson to "threaten Anthony".

275 According to Ms Winter (and I accept this evidence), following a recommendation from Mr Lyle that the plaintiff needs a "troubleshooter", Mr Byrnes' name was recommended as a result of which the plaintiff agreed to meet Mr Byrnes. Again, as I have already observed, Ms Winter was sent as an advance party to have some preliminary discussions with Mr Byrnes and report back to the plaintiff.

276 Ms Winter denies, and again I accept her evidence on this, that she negotiated any terms of any contract let alone the final terms of the contract with Mr Byrnes. Ms Winter asserts that the plaintiff told her that she had shown the contract to "Uncle Fred" and to Mr Peter Tsu. As to the latter, Ms Winter, in my mind out of a desire to embarrass the plaintiff, took as many opportunities as she could exploit to allege that the plaintiff was having an affair with Mr Tsu (which appears to be true, according to Mr Rogerson). Mr Tsu was of course not called in the case although a statement was prepared for him by the plaintiff. However, given the clear ill feeling that exists between Ms Winter and the plaintiff I am by no means satisfied that the plaintiff told Ms Winter that Mr Tsu had advised her to enter the Agreement. In the end I do not consider much turns on this.

277 Ms Winter also corroborates Mr Byrnes at the meeting that was held at Mr Byrnes' house in a number of important respects. She asserts (at [75] of her affidavit) that Mr Byrnes indicated that the plaintiff should take the Agreement away and have it looked at by an independent lawyer or trusted advisor. Whilst I do not necessarily find that Ms Winter's particular version of the events is the more probable, I am satisfied, as I have already indicated, that Mr Byrnes made that recommendation to the plaintiff. Ms Winter also corroborates Mr Byrnes' assertion that he mentioned a cooling off period during the meeting. I am satisfied Ms Winter should be accepted on that. I am by no means satisfied that the plaintiff indicated to Mr Byrnes, as is asserted by Ms Winter, that she would take the document away and read it carefully. It matters not because I am satisfied that the plaintiff did exactly that and discussed it at least with Mr Rappaport. Ms Winter also corroborates in my view correctly that it was the plaintiff who raised concerns about her house being included in the assets in respect of which the 25% commission was to be calculated. To that extent again that corroborates Mr Byrnes' account.

278 As I have already indicated I generally accept the evidence given by Mr Byrnes. In particular that he did not make a request of the plaintiff prior to meeting at his home on 18 January 2010 for her to sign any agreement. I am simply unable to accept the plaintiff's version of the sequence of events. The plaintiff asks me to disbelieve or rather refuse to accept Ms Winter's evidence that at the initial meeting at the plaintiff's home, Mr Byrnes made reference to getting a litigation funding contract together and allowing the plaintiff to decide what she would want to do. To the extent that Ms Winter suggested that this was raised at the first meeting I think that is likely to be correct. It is covered in Ms Winter's affidavit (at [75]) the substance of which I accept.

Mr Rogerson

279 The plaintiff invites me to accept the totality of Mr Rogerson's evidence, both in terms of his affidavit and answers given in his cross examination.

280 First, he apparently knew the plaintiff having previously met her in the early 1980s when he was working as a detective in the Kings Cross precinct. He also knew the plaintiff's former husband and was well acquainted with him. Mr Rogerson did say however in his affidavit (at [5]) that he had not seen or had any dealings with the plaintiff until being reintroduced to her in 2009. It is clear that the opinions Mr Rogerson expressed to Mr Byrnes, when Mr Byrnes visited him at Long Jetty, were obviously based on impressions obtained when in contact with her in Kings Cross in the period he identified.

281 Mr Rogerson corroborated Ms Winter on a number of matters. First, it was obvious to him that the plaintiff and Mr Tsu were having a "love affair". Mr Rogerson in his affidavit (at [17]) indicated that the plaintiff had previously mentioned to him that she was seeing Mr Tsu. Ms Winter was rebuked by counsel for the plaintiff in seeking to make this point during the course of her cross-examination. Secondly, and perhaps much more importantly, it was suggested that Ms Winter could not be believed when she asserted that at the first meeting with Mr Byrnes at the tea party he mentioned the need for a litigation funding contract from the company for her to read so that she could decide what to do. Mr Rogerson appears to corroborate that recollection of Ms Winter at least in part when he said that he thought at the first meeting (the tea party) he believed he heard Mr Byrnes tell the plaintiff that his company would need a formal contract which he went into much greater detail at during the meeting in Mr Byrnes' home.

282 In addition, Mr Rogerson corroborated Ms Winter because he too asserts that at the meeting at Mr Byrnes' home, Mr Byrnes "insisted" the plaintiff seek independent legal advice. He recalls the plaintiff saying that she was going to confer with "Uncle Fred".

283 Mr Rogerson also gave some very insightful evidence in a number of other respects. First, his observation was that, having made enquiries and having spoken with Anthony and for that matter the plaintiff's former husband (as he put it at paragraph [36] of his affidavit), Anthony had the upper hand as he had a strong relationship with "Ferdinand" and he had control of the hotel. This was of course was the very obstacle which the plaintiff on any view of it realistically, rationally and accurately assessed and in respect of which she felt her lawyers were unable to assist her. Despite Mr Rogerson himself conceding that he may have taken notes on some occasions, he was not criticised for not having produced them.

284 Mr Rogerson confirmed that part of the exercise he was asked to perform was to try and determine whether a criminal offence could be proved and something could be found so that use could be made to "get at Anthony". He said further:

I might say it would have been super handy and that was part of why I went along with it and was quite happy to go through everything with them and listen to her and that is exactly what happened (T261).

285 Mr Rogerson went on to make it entirely clear that had he discovered something he was quite prepared to use it as pressure in order to extract a more favourable arrangement for the plaintiff. I think it is a reasonable inference that this is precisely what the plaintiff was hoping and expecting would happen, something which of course she could never expect or oblige a practising lawyer to do (Legal Services Commissioner v Sing [2007] LPT 4; New South Wales Bar Association v Maddocks [1988] NSWCA 102).

286 Mr Rogerson also confirmed that, notwithstanding his skills and those of Mr Byrnes, it was unknown for sometime that Anthony had, according to Mr Rogerson, negotiated a secret deal for the sale of the hotel. A reasonable inference would be that the reason why the negotiations were secret was partly at least due to the Family Court proceedings.

287 Mr Rogerson also ventured that he observed when he spoke to the plaintiff from time to time that she "had all the facts and she knew everything". He also volunteered that he thought that she was "very very smart".

288 Mr Rogerson further volunteered that he had come to the conclusion that he thought she deserved a bit more than what she had been offered. Indeed he went on to say "I really believe that she was entitled to a lot more than what they were offering her" (T266). I have little doubt that Mr Rogerson conveyed that sentiment in one or more of his discussions with the plaintiff. Mr Rogerson agreed that the plaintiff obviously needed someone to take things in hand and the most obvious thing was a lawyer who she would listen to. Somewhat prophetically he responded "if she could find one" (T268).

289 Mr Rogerson gave some evidence which rather puts the lie to the suggestion at least at the relevant time that the plaintiff was fragile, or indeed perhaps vulnerable. It was put to him in the following terms (T271 - 272):

Q: By the way, you did not think that when she was in a rational stage, I think you agreed, whenever she heard what she did not want to hear started to weep reasonably uncontrollably ?

A: I never saw her weeping uncontrollably. The closest - well, I did accuse her of being a prostitute because that was one of the things told to me by Steve Farley, that Ferdie had met her in a Fillipino bar which I knew existed in East Sydney.

Q: May I take it that did not go down very well?

A: Did not go down very well. She did not weep and cry and fall about. She got quite annoyed about the fact that I put that to her and she harped on that for quite some time and tried to prove to me because of all of her connections with certain nuns in the Catholic Church and Filipino section of the Catholic Church that she could not have been part of what I put to you, what Steve Farley told me. She was not blaming me, but that really hurt her. She certainly did not break down in a heap and cry. She got quite the opposite she said "hang on how dare you say that and bla bla bla.

290 Mr Rogerson also confirmed that she appeared to use the same technique with him as she had with Ms Winter and others by referring to him as her "big brother" (T275).

291 Mr Rogerson confirmed that he had met Mr Rappaport on one occasion. He described him as very knowledgeable and a person whom the plaintiff trusted implicitly. Mr Rogerson gained the impression that the plaintiff wanted to speak to him to ensure she was signing something that would be regarded as a proper document "all legal and above board".

292 The plaintiff sought to rely upon some statements of Mr Rogerson suggesting the plaintiff was irrational and/or vulnerable. On balance however for the reasons set out above that was not really his view overall. Largely I accept Mr Rogerson's evidence in particular on those matters I have highlighted above.

Discussion

293 As I have now observed, I am satisfied that at the relevant point in time (that is towards the middle of October 2009) the plaintiff was short of cash and did not wish to retain Mr Meyer any further for at least that reason. In addition she did not believe she could accept the advice she had received from him in collaboration with Mr Richardson SC. She also believed at the time, credibly, that she owed substantial monies to Mr Hall.

294 She was also told and believed that she could not make at that point any further application to the Family Court for funding. The better view is that that was an erroneous belief engendered by Mr Meyer. There is no suggestion Mr Richardson SC was consulted about this issue, nor did she seek an opinion from anyone else.

295 In addition, I am satisfied that the plaintiff saw a number of impediments in the way of her accepting the Heads of Agreement at the time as a means of resolving her litigation. First, she believed based on perfectly rational grounds that her family's interests could not be properly protected if she agreed to the Heads of Agreement. In any event, as they were, it seemed, about to commence proceedings themselves she could not agree to that part of the Heads of Agreement as she saw it.

296 Next, she was concerned again, rationally in my mind, with exposure to a possible costs order in the Prynew proceedings.

297 Lastly, perhaps due to the expectation engendered in her by Mr Wahhab, she thought she should be entitled to more by way of a settlement than the $8 million plus the Darling Point home. The assessment by Mr Richardson SC and Mr Hall and perhaps Mr Meyer as to why she should take that settlement was based upon their impression that she would be an unfavourable witness, whose credit could substantially be impugned. It would seem it was for that reason that they felt a court would be less than generous in the amount she might ultimately be awarded.

298 I am satisfied that she had obtained a credible DNA analysis on 9 May 2003 supporting a proposition that Anthony Nemeth could not have been the biological son of her former husband. I am also satisfied that out of financial self-interest she used that fact to try to persuade her former husband that he should disinherit Anthony. Further I am satisfied that not only did this cause or least exacerbate the rift between herself and her former husband but undoubtedly and unsurprisingly provoked both anger and distress on the part of her former husband and anger on the part of Anthony. The consequence in my opinion would undoubtedly have led Anthony and her former husband to provide the plaintiff in any settlement with what they would regard as perhaps the minimum outcome, but at least not one that was overly generous. When her former husband died the matter needed to be resolved and it was.

299 The lawyers whom she had hitherto retained in her mind I am satisfied could neither provide her with a solution or an outcome that she wanted nor could they deal with Anthony and hence her former husband in the way that she desired.

300 In the latter part of 2009 she was not looking for lawyers competent or otherwise. She was predominately looking for an unorthodox solution and that is why she was attracted to the suggestion that she retain Mr Rogerson in the first instance and Mr Byrnes.

301 Mr Rogerson was retained with her knowing fully what kind of reputation he had. She had no compunction at dealing with the likes of Mr Lyle who could provide her with a means to an end. She well knew Mr Lyle's reputation and I do not accept for one moment that she was frightened as she asserts in having any dealings with him. She clearly wanted Mr Rogerson to investigate and expose if he could the commission of any criminal activity on the part of Anthony so that that could be used as a pressure tactic in negotiations. She wanted Mr Rogerson to use his contacts to see whether that could be achieved. She also wanted Mr Rogerson to do violence to Anthony as part of her strategic plan.

302 She wanted Mr Byrnes on side for any number of reasons. First, I am satisfied that she likewise knew of Mr Byrnes' reputation before she signed the initial agreement on 18 January 2010.

303 In a judgment dated 7 July 2010 and which the plaintiff herself forwarded to Mr Byrnes (admittedly on 25 August 2010) Justice Palmer made the following comments in relation to the reputation of Mr Byrnes:

Introduction - the Reputation of Mr James Byrnes

1. This is an application under Section 482 Corporations Act 2001 (C'th) for the termination of the liquidation of Modena Imports Pty Ltd (in liq), conditional upon the implementation of a Deed of Company Arrangement (DOCA) which has been approved by creditor. The DOCA is funded by a company called Australian Corporate Restructuring Services Pty Limited (ACRS).

2. ACRS is in truth a front for James Warren Byrnes. Mr Bynres has a notorious reputation as a standover man and associate of major criminals. In an inquest in 2008 into the murder of one Max Gibson, the coroner described Mr Byrnes a named "person of interest" in the inquest as "untruthful" and "manipulative" who had been caught "caught lying to the court on more than one occasion.

3. This is not a trial of Mr Byrnes. I do not have to determine whether or not Mr Byrnes' reputation is deserved. I merely state the fact that Mr Byrnes has a reputation of which no judge in this State could be unaware.

304 I am satisfied that the plaintiff was aware of Mr Byrnes' reputation and indeed this was one of the matters that attracted her to him and led to her reaching the Agreement she did. She wanted Mr Byrnes to supply no doubt consistent with his particular skill set for the purposes of negotiating and dealing for example with Anthony. She made some very profound comments in an email to Mr Byrnes of 27 August 2010. She said:

I was not happy with the way my Family Court case being managed. There are promises from you and none has been delivered. I understand that sometimes promises can be broken. The business side of it didn't bother at all but what really upset me most was your promise of remitting the costs of Sarah's operation....

305 But perhaps most importantly she said towards the end of the email:

Anthony Nemeth is a very clever young man and therefore I have been advised that I should engage you to deal with him. I also thought that you are the only person who could deal with him.

306 There was equally no doubt in my mind that she was prepared to have Mr Byrnes' retainer cover possible project development services. As I have also found earlier I am satisfied that she discussed that very topic with him as he asserts in relation to the possible redevelopment of her home at 46 Mona Road, Darling Point. She made explicit reference to this in an earlier email to which I have referred.

307 As a woman with not only accounting qualifications but accounting experience she readily appreciated that a 25% commission was going to be charged. It has not been contended nor frankly could it that she would have difficulty in understanding either the Agreement signed on 18 January 2010 or the Addendum signed on 26 January. She discussed it with her trusted "Uncle" Mr Rappport and perhaps others and I am satisfied she sought the changes which became embodied in the Addendum of 26 January 2010. Importantly she was keen to have her home excluded from the calculation of the 25% commission.

308 That she was ultimately disappointed with Mr Byrnes or for that matter Mr Rogerson does not in my opinion lead to a conclusion that she had a disability relevantly or that she was vulnerable or relevantly suffered by any disability. There is no cogent medical evidence in this case suggesting that at any point in time but most importantly late 2009 or early 2010 she suffered from any relevant physical or psychological disabilities such as to rob her of the ability to make an informed decision as to what she wanted to do. It is not to the point as submitted by her counsel that objectively it was not in her best interests to have entered the Agreement in the first place. That really turns on the question as to why she wanted to do it. Given what she wanted Mr Byrnes and Mr Rogerson to do, I do not consider that submission is made out.

309 There is a limit to how far a court should intervene in actions which are the subject of free will. There is little point suggesting in a somewhat patronising way that what the plaintiff needed was a good competent lawyer. That is precisely what she did not want. There is no way in my opinion that Mr Byrnes was obliged to refuse to do business with her. He did I am satisfied point out the cooling off period and suggest that she seek independent legal advice. He was not a lawyer who might have had additional obligations to ensure that independent legal advice was in fact obtained, especially when it is by no means clear to me that at least at their initial meeting and at the time the Agreement and Addendum were signed there is no reason in my view on the state of the evidence why Mr Byrnes let alone Mr Rogerson would have necessarily concluded that her attitude towards Anthony was based on some irrational obsession.

310 In any event the resentment between her former husband and Anthony on the one side and the plaintiff on the other as I have observed was real and not imagined by the plaintiff. The mere fact that she was principally responsible for causing it is not to the point. One thing she did know was that neither Mr Rogerson nor Mr Byrnes were lawyers but that is not what she was looking for at the time.

311 Even if it is open for me to find that the plaintiff acted irrationally or with some form of obsession so far as Anthony is concerned the characteristics which I have been otherwise asked to accept wherever present, such as greed and potentially her ability to manipulate people, places her in a category where it is difficult to see how on the facts of the case she was in fact exploited by Mr Byrnes. It may be that he sugar coated things and attempted to charm her. I have little doubt she was attempting to charm him during the conversations they had because she did expect and want unorthodox methodologies to be employed against her former husband whom she knew could be violent given for example her complaint to the police of August 2006 leading as it did to his arrest.

312 Her use of the DNA material was in order to, I am satisfied, manipulate her former husband to her financial advantage. That is one of the very important factors that I think operates here to militate against the suggestion that Mr Byrnes exploited her.

313 Prior to the plaintiff meeting with Mr Byrnes the plaintiff had had a considerable amount of commercial experience spanning many years. Apart from her very good fortune in inheriting or being gifted certain properties of significant value and other assets, she clearly had a significant degree of commercial acumen herself. That is unsurprising given her university qualification in the Philippines and her accounting qualifications acquired in Australia.

314 She clearly made up her own mind having done some background checks to seek out Mr Byrnes and Mr Rogerson. Notwithstanding their reputations she was entirely it seems happy to deal with Mr Rogerson and Mr Byrnes and invite total strangers of somewhat dubious reputations into her home at the drop of a hat.

315 In my mind given the character of her stepson Anthony and the fact that she believed he or someone associated with him may attempt to kill her, her decision to use Mr Rogerson and/or Mr Byrnes knowing their reputations it seems to me was in part to convey the impression to Anthony that she was being assisted by persons of that very type. No doubt she also thought it would improve her bargaining power to get more out of the settlement which she indeed believed she deserved.

316 Again I see nothing irrational in a client rejecting advice. The mere fact that it might be objectively unreasonable does not mean that a client would act irrationally in deciding to have a court determine the dispute as opposed to accepting an offer in negotiation. There is no case that cannot be lost and the only thing that is certain about litigation is that the outcome is by no means capable of being predicted with certainty. There are many litigants to have an independent person determine their rights and/or liabilities as opposed to accepting a prognostication from a lawyer even one experienced in the field. That indeed is a most common occurrence.

317 The question therefore is whether even putting the plaintiff's case at its highest it could be suggested that the contract was substantially or procedurally unjust or that the defendant or defendants have acted in an unconscientious way.

318 Given the plaintiff's background and commercial acumen I do not think it can be said that this contract was unfair by its terms in any way at all. As I have already observed the services to be provided by the defendants when the execution of the document occurred went far beyond a mere management, as it were of Family Court proceedings.

319 I am by no means convinced therefore that the document by reason merely of the 25% and the circumstances in which it was executed gives rise to unfairness pursuant to the Contracts Review Act. As an experienced accountant and business person generally, of all people the plaintiff was well able to envisage what the likely return to the defendants would be. Whilst she would not precisely know (as it would be dependent on the ultimate outcome) even on the offer which was on the table and which she rejected the return to the defendants was going to be substantial. But she was prepared to pay for their presence at the negotiating table which I am certain she thought would enhance her prospects of getting a substantially increased offer. The delay between first obtaining the Agreement and her undoubted consideration of the size of the 25% and her request which led to the Addendum in my mind do not point in favour of a contract being unfair either substantially or procedurally consistent with the authorities.

320 I am unable for similar reasons, on the facts of this case, to describe what the defendants did in the circumstances as amounting to any wrongdoing.

321 Counsel for the plaintiff directed my attention to the facts of Aboody v Ryan [2012] NSWCA 395 and submitted that the factual circumstances of that case were of particular relevance to the present one. The relevant transaction in that case was a transfer of land by Mr Ryan to his daughter and her husband, Mrs and Mr Aboody, for no consideration. At the time of the relevant transaction Mr Ryan was about 90 years old and his wife had died. He suffered poor health due to a number of medical conditions. There was lay evidence of unusual behaviour by Mr Ryan, which may have indicated that his mental well-being was deteriorating. Medical records were tendered as evidence of Mr Ryan's poor health. Mr Ryan had seen active service in World War II and suffered from an obviously irrational obsession that if the Australian Labour Party were elected to Federal government in 2007 and the Liberal government defeated, he would lose both his pension and his home. Due to his poor health, he was dependant on carers, including Mr and Mrs Aboody, for his daily needs. Mr Ryan received advice from a solicitor in relation to the transaction, but that advice was not independent, and Mr and Mrs Aboody were aware of this. The home which Mr Ryan transferred to Mr and Mrs Aboody was his only significant asset and his place of residence. He transferred it for no consideration.

322 In the present case, counsel for the plaintiff submitted that Ms Nemeth suffered a relevant "special disability" because of her allegedly irrational obsession with Anthony Nemeth, her lack of trust in legal practitioners and her allegedly irrational belief that the proceedings against Mr Nemeth were worth about $30 million. Counsel for the plaintiff accepts that Mr Ryan suffered from additional impediments besides his irrational belief, and that these impediments are not shared by the plaintiff, but nonetheless submits that this difference is immaterial. I cannot accept that submission.

323 In Aboody v Ryan there was nothing to suggest that Mr Ryan had any significant experience in commerce. The plaintiff however had significant experience in the operation of the Hampton Court Hotel and held significant assets. In Aboody v Ryan, Mr Ryan was 90 years old and had poor health. The plaintiff, however, was described by almost all witnesses as being clever and intelligent and there was no relevant medical evidence to suggest she was suffering from poor health, nor was there any expert opinion to that effect. In Aboody v Ryan, it was plain that Mr Ryan's obsession was utterly irrational in the sense that it could not possibly have borne any connection whatsoever to reality. The plaintiff's "obsession" with or hatred of Anthony was not shown to be "irrational" in that sense. In Aboody v Ryan, the defendants knew that the legal advice given to Mr Ryan was not independent. The plaintiff signed a document (the Addendum) indicating implicitly that she had obtained professional advice, and it has not been shown that the defendants knew that any advice was inaccurate or inadequate. Importantly, unlike Mr Ryan, the plaintiff was not dependent on, nor did she have a relationship of trust or close affection with, the defendants. In Aboody v Ryan, Mr Ryan received no consideration for the transfer of his only significant asset, whereas the plaintiff was expecting to receive a significant sum in return for her entry into the Agreement. In my mind, there is a vast and material difference between the circumstances in the case of Aboody v Ryan and the present one.

324 Counsel for the plaintiff also submitted that the plaintiff's "rejection" of all legal advice and her consequent belief that her case was worth $30 million was demonstrative of irrationality, contributing to her alleged "special disability". There are difficulties with this submission. It is inaccurate to describe the plaintiff as having "rejected" the legal advice given to her. The basis on which her lawyers asserted that her case in the Family Court was worth no more than $18 million was that the judge would not like her as a witness. This is not a case in which the plaintiff rejected a lawyer's advice on a legal question. This indicates that the plaintiff 's rejection of the advice given by her lawyers was not a result of irrationality, but simply a result of her disagreement about an assessment of her character. At least that is the more likely conclusion.

325 The conduct the plaintiff relies on to establish her claim under the Trade Practices Act is the same conduct she relies on for the purpose of her claims under the Contracts Review Act and general law unconscionability. Having considered the authorities, I accept the defendants' submission that the relevant principles and the relevant factors to take into account for determining the plaintiff's claim are, for the purposes of the facts of this case, in substance the same under the Trade Practices Act and the Contracts Review Act. On the facts of this case, I think it is clear that plaintiff's claim that the contract is "unjust" within the meaning of the Contracts Review Act is stronger than her claim under the Trade Practices Act, as I have found that the defendants have not engaged in conduct which could amount to "wrongdoing" or which could in any way be described as "unconscionable".

326 I have found the plaintiff to be unsuccessful in her claim for relief under the Contracts Review Act and in her unconscionability claim under general law, and again, given my observations of the lack of moral obloquy on the part of the defendants, I do not see how her claim under ss 51AB and 51AA could succeed.

327 Further, given my finding that there has been no relevant wrongdoing on the part of the corporate defendants, there is no basis for entertaining the plaintiff's claim against Mr Byrnes of accessorial liability under the Trade Practices Act.

Conclusion

328 I would invite the parties to provide short minutes reflecting these reasons. I will hear the parties on costs and interest.

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Decision last updated: 09 May 2013