Angius v Salier

Determination

Section 73 of the Civil Procedure Act provides: "(1) In any proceedings, the court: (a) has, and may, exercise jurisdiction to determine any question in dispute between the parties to the proceedings as to whether, and on what terms, the proceedings have been compromised or settled between them, and (b) may make such orders as it considers appropriate to give effect to any such determination. (2) This section does not limit the jurisdiction that the court may otherwise have in relation to the determination of any such question."
The Civil Procedure Act defines "judgment" to include "any order for the payment of money, including any order for the payment of costs": s 3.
Section 133(1) of the Civil Procedure Act provides that a judgment or order of the court may not be enforced until it has been entered in accordance with the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR").
UCPR rule 36.1 provides that at any stage of proceedings, "the court may give such judgment, or make such order, as the nature of the case requires..."
UCPR rule 36.1A provides that the court may give judgment, or order that judgment be entered, in the terms of an agreement between parties in relation to proceedings between them.
UCPR rule 36.4(1) provides that a judgment or order takes effect (a) as of the date on which it is given or made, or (b) if the court orders that it not take effect until it is entered, as of the date on which it is entered. UCPR rule 36.4(3) provides that the court may order that a judgment or order is to take effect as of a date earlier or later than the date fixed by the earlier sub-rule.
UCPR rule 36.11 provides that any judgment or order of the court is to be entered and that unless the court orders otherwise, a judgment or order is taken to be entered when it is recorded in the court's computerised court record system.
UCPR rule 36.15 provides that a judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. Otherwise, a judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.
UCPR rule 36.16(1) relevantly provides that the court may set aside or vary a judgment or order if a notice of motion for the setting aside or variation is filed before entry of the judgment or order. The court may set aside or vary an order after it has been entered only in limited circumstances: UCPR rule 36.16(2). However, if a notice of motion for setting aside or variation of an order is made within 14 days after it is entered, the court may determine the matter as if the order had not been entered: UCPR rule 36.16(3A).
Having regard to the overriding purpose in s 56(1) of the Civil Procedure Act "to facilitate the just, quick and cheap resolution of the real issues in the proceedings", the court's duty, under s 56(2) to give effect to that purpose when exercising any power under the Act, and having regard to the nature of the claim in these proceedings and the statements made to the court by counsel, I am satisfied that there is, in fact, no question in dispute between the parties as to whether, and on what terms, the proceedings have been settled between them.
It is important to remember what was written by Young J (as his Honour then was) in Howe v Connell [1997] NSWSC 432: "…it seems to me that, generally speaking, settlements in litigation are intended to be final as soon as the barristers or solicitors involved shake hands - whether they do that physically or notionally over the telephone. The reasonable litigator on the Bondi bus would think that as soon as the legal representatives have reached an agreement as to the principle on which the matter is to be settled then the cause of action has been converted into the new contractual right."
That appears to be precisely the position that was reached here. Counsel for the Plaintiff acknowledged that, whilst he had instructions from the Plaintiff, he had reached a binding agreement with counsel for the Defendants in accordance with those instructions, and also that the Short Minutes of Order which were prepared, recorded the terms of that settlement in each matter.
There is no suggestion, by any counsel, that the parties did not intend to be bound immediately on their reaching consensus as to the terms of the settlement, in each matter, and the outstanding matter regarding the methodology for account, which had been identified when the hearing commenced, appears to have been dealt with in the Short Minutes of Order.
I am also satisfied that the statements made to the court by counsel were inconsistent with the parties, or any of them, holding the view that the proceedings had not been settled. In this regard, I bear in mind what counsel for the Plaintiff stated during the course of the afternoon on the first day (at T14.42-T15.05): "It seems that the issue is that there is agreement in relation to the orders but only on a condition which isn't agreed by the other parties because of the nature of the agreement. It's a little bit hard to articulate without your Honour seeing the proposed… orders but in effect there is a very large Westpac loan that my client asserts he has paid out of private funds and there should be a reckoning or an accounting of that back into the pool. My client is after a specific order that, assuming he does provide that documentation then, in effect, that can go back into the pool. The difficulty is that the documents haven't been produced and that my friends at the bar table would really find it difficult, in my submission, to be able to agree to an order without some knowledge as to exactly what that looks like. The timeframe, that will probably be the key element, as to when those funds, if indeed they were paid, were actually paid on behalf of the deceased."
In this regard, it is useful to remember what was written by Hodgson JA in Bartlett v Coomber [2008] NSWCA 100, at [73]: "If an agreement to compromise is made, and then one party to that agreement seeks to withdraw from it prior to the making of any orders, it is in my opinion still generally appropriate for the court to give effect to the agreement and to make the agreed orders without the investigation into the facts which would have occurred if no agreement had been made. Otherwise, the agreement would be set at naught. On the other hand, depending on the reasons advanced by the party seeking to withdraw from the agreement, it may be reasonable for the court to consider the underlying facts to a greater extent than would have been the case if both parties had maintained their support for the agreement, in order to determine whether there would be any injustice in giving effect to the agreement."
The court should regard settlement of court proceedings as both a public, and a private, good, which the court should encourage and facilitate if, having regard to the interests of all the parties, it is right and just so to do. In this case, I am satisfied that it is right and just to do so, particularly in circumstances where the administration of an estate is being delayed because of legal proceedings. (I note that the deceased died almost 4 years ago.)
Where an agreement is reached with the actual as well as the apparent authority of counsel, the question of whether the agreement is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable, or entitle the party to equitable relief against it. Illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like, provide examples of such grounds.
In this regard, it seems to me that the decision of the High Court in Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235, is apt. In that case, the issue was whether the Court's power to refuse to enter judgment was limited to those circumstances which would render a simple contract voidable, or subject to be set aside in equity, or whether there was a wider ground to refuse to do so in the broad interests of justice. The High Court held that the Court could only refuse to enter judgment on the former grounds.
At 243-244, the High Court wrote: "… in the case of a compromise which is made within the actual as well as apparent authority of counsel a court does not appear to possess a discretion to rescind it or set it aside. The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like. The rule appears rather from positive statements of the grounds that suffice (cf Halsbury's Laws of England, vol 26, 2nd ed, pp 84, 85); but there is a dictum of Lindley LJ which is distinct enough: '… nor have I the slightest doubt that a consent order can be impeached, not only on the ground of fraud but upon any grounds which invalidate the agreement it expresses in a more formal way than usual… To my mind the only question is whether the agreement on which the consent order was based can be invalidated or not. Of course if that agreement cannot be invalidated the consent order is good': Huddersfield Banking Co Ltd v Henry Lister & Son Ltd (1895) 2 Ch 273, at p 280."
In Mohtar v Mohtar (1988) 146 LSJS 377, at 392, Von Doussa J held: "... Harvey v Phillips (supra) recognises that where a contract is on foot, the entitlement of a party to equitable relief on grounds such as duress, undue influence, abuse of confidence and the like, may provide the occasion for the exercise of a power to set aside a judgment which embodies the contract..."
A contract entered into under duress is voidable, not void: Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24, per McColl JA, at [55]. It will be for the Plaintiff, as the party alleging duress, to prove it. Similarly, he will have to establish a lack of understanding of the proceedings. Neither task may be easy but, of course, he should be entitled to make such claims if he wishes to.
It is also established that the jurisdiction to set aside an order on such a ground should be invoked by a new action brought for that purpose and not by a motion in the original proceedings: see Ainsworth v Wilding [1896] 1 Ch 673 and Kinch v Walcott [1929] AC 482 at 494; compare Phillips v Walsh (1990) 20 NSWLR 206.
In relation to the allegation of duress, no facts or circumstances in support thereof were advanced. Moreover, when counsel initially announced that the Plaintiff wished to withdraw his claims in this case, it was the culmination of a long and, no doubt, expensive process. The Plaintiff had clearly spent some time with his solicitors, and had conferred with both senior and junior counsel, giving instructions for the resolution of the proceedings. The Plaintiff, undoubtedly, would have been given legal advice in the weeks prior to the hearing. Without deciding the issue, the circumstances seem to militate against the parties' agreement being made without an understanding of the proceedings by the Plaintiff or having been procured by duress.
The question which I have distilled from the Plaintiff's comments really goes to whether an asserted lack of understanding of the proceedings, or an assertion of duress, by the Plaintiff, without any evidence, should be seen as a ground for not making the orders that had been agreed upon. Alternatively, either, or both, matters may go to whether the orders intended to carry out the agreement between the parties should be made, but not entered for a period of time, with the Plaintiff to take such steps as he is advised to set aside the agreement upon which the orders have been made.
Having considered the matters to which I have referred, and bearing in mind that the Plaintiff, currently, is not legally represented, I am of the view that the court should make orders, in each case, in accordance with the Short Minutes of Order identified as having been agreed. However, those orders should not be entered by the first Defendant, before 10:00 a.m. on 4 November 2015, which period of time (about 35 days), should give the Plaintiff sufficient opportunity to consider what steps he should take, and if so advised, to commence proceedings. In this way, the current proceedings will be essentially concluded, rather than them being continued, and the issues relating to the complaints made by the Plaintiff regarding the settlement of the proceedings and the orders can be agitated separately.
If the Plaintiff seeks a further stay of the entry of the orders, the Duty Judge hearing any application, will have an opportunity to consider the strength of the claim that the Plaintiff then makes, based upon precise evidence of the circumstances that he alleges, as well as upon a consideration of any proceedings that the Plaintiff, by then, has commenced, rather than simple assertions from the bar table unsupported by the facts and circumstances relied upon.
If the Plaintiff does not seek a further stay of the entry or the enforcement of the orders, the orders that I make may be entered, and enforced, by the first Defendant.
I make clear that I have reached no conclusions about the truthfulness of what the Plaintiff has alleged in relation to a lack of understanding or the agreement being procured by duress. Indeed, nothing in these reasons should be taken to mean I am expressing any view on the truth, or otherwise, of his assertions. Nor am I expressing any view about whether the Plaintiff should bring any proceedings and/or, if those proceedings are brought, whether they would be successful.
In proceedings, 2012/396544, the Court:
Makes a declaration in terms of Paragraph 1 of Short Minutes of Order dated 28 September 2015 signed by the legal representative of each of the Defendants.
Notes the agreement of the Cross-Claimant in Paragraph 12 of the Short Minutes of Order.
Notes the agreement of the Cross-Defendant set out in Paragraphs 2, 18, 22 and 23 of the Short Minutes of Order.
Orders in terms of Paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 13, 15, 19, 24, 25 and 26 of the Short Minutes of Order.
Notes the agreement of the parties in Paragraphs 11, 14, 16, 17 and 21 of the Short Minutes of Order.
Makes no order as to costs of the Plaintiff/Cross-Defendant of the proceedings to the intent that he will bear his own costs.
Makes no order as to the costs of the second Defendant, to the intent that he will bear his own costs of the proceedings.
Orders that the orders shall not be entered before 10:00 a.m. on 4 November 2015.
Orders that to the extent that any order refers to "a number of days from the date hereof", it is to be taken to read "[that number] of days of the date from the entry of the orders".
Orders that the time for the provision of the evidence identified in paragraph 23 of the Short Minutes of Order be extended until 29 January 2016.
In proceedings, 2011/290751, the Court:
Orders, pursuant to UCPR rule 7.10(2)(b), that Gordon A Salier as administrator of the estate of the Plaintiff be appointed to represent the Plaintiff's estate in these proceedings.
Orders that service of an amended Summons be dispensed with.
Orders in terms of Paragraph 1 (excluding order 2.1.7) and Paragraph 2 of Short Minutes of Order dated 28 September 2015 signed by the legal representative of each of the parties.
Orders that the orders shall not be entered before 10:00 a.m. on 4 November 2015.
Orders that the costs of the administrator calculated on the indemnity basis be paid out of the estate of Laura Angius.
Makes no order as to the costs of the second Defendant to the intent that he will bear his own costs of the proceedings.

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Judgment (6 paragraphs)

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Legislation Cited (3)

Cases Cited (10)

Cited By (7)