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File Number(s): 2025/00185156

Publication restriction: Nil

EX TEMPORE REVISED JUDGMENT

1. HIS HONOUR: Before the Court is a Notice of Motion filed 1 May 2026 seeking orders pursuant to s 73 of the Civil Procedure Act 2005 (NSW) (the Act). That provision provides:

73 Power of court to determine questions about compromises and settlements

(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.

2. The background to the dispute is that the plaintiff and defendant entered into a Deed of Settlement in 2024. That deed was entered into to resolve disputes arising from the administration of an estate of a deceased person named Sharyn Lee Flower. The plaintiff was appointed administrator of the estate pursuant to orders made by the Supreme Court of Victoria on 22 August 2023. Under Clause 1.1 of the Deed of Settlement the defendant, John William Dyball, agreed to pay the plaintiff the sum of $246,884.38 (the settlement sum). That sum was payable by 30 January 2025. It was not then paid by the defendant, and has not been paid since.

3. The Deed of Settlement granted security for the payment by the defendant to the plaintiff of certain property. The security was by way of a charge over the property which included:

(a) Lot 19 in neighbourhood plan DP [redacted]; (b) a two- storey custom-built houseboat bearing registration number [redacted]; (c) associated property, including a Mercury engine with serial number [redacted]; and (d) other real and personal property owned by the defendant as at the date of the Deed of Settlement, or acquired in the future whilst any part of the settlement sum remained outstanding.

4. After default by the defendant of payment of the settlement sum, steps were taken by the solicitors for the plaintiff to pursue that default. A notice was sent to the defendant confirming the default and requiring payment, stating that if the default was not remedied the plaintiff would be entitled to enforce her security interests and pursue available legal remedies.

5. On 28 February 2025, the defendant through his solicitors, Bona Fide Lawyers, sought an extension of time to pay the settlement sum. On 7 March 2025, the solicitors for the plaintiff agreed to extend that time for payment until 28 March 2025. A further extension of time was sought by the defendant on 31 March 2025, which was not agreed to by the solicitors for the plaintiff.

6. These proceedings were commenced by way of Statement of Claim filed 14 May 2025. The relief claimed in the Statement of Claim included orders that the defendant surrender possession of: (a) Lot 19 in the neighbourhood plan I have described; and (b) the houseboat. Relief was sought authorising the plaintiff to take possession of that property and authorising the plaintiff to sell it. Interest and costs were also claimed.

7. I am satisfied the evidence before me indicates that the defendant was personally served with the Statement of Claim in May 2025.

8. On 6 June 2025, the defendant, through his solicitors, wrote to the plaintiff's solicitors saying he did not wish to file any Defence in the proceedings and agreed instead to deliver up the property by consent.

9. As at today's date, no Defence, or indeed Notice of Appearance, has been filed by the defendant in the proceedings. Despite this, through his solicitors, the defendant did engage in negotiations concerning settlement of the proceedings.

10. On 1 July 2025, the solicitors for the plaintiff wrote to the solicitors for the defendant attaching draft proposed consent orders on the basis that the defendant did not intend to file a Defence and was prepared to deliver up the property.

11. On 24 July 2025, the plaintiff's solicitors followed up the solicitors for the defendant for a response to their letter enclosing the consent orders, stating that failing a response the plaintiff intended to make an application for default judgment. A response was received on 4 August 2025 from the solicitors for the defendant requesting clarification of one of the orders in the draft consent orders. That order related to payment of interest which in the draft stated that 15 percent daily interest was to be incurred, requesting it to be changed to 15 percent per annum applied daily. On 4 August 2025, the solicitors for the plaintiff wrote back to the solicitors for the defendant apologising for the error and enclosing amended consent orders signed by the solicitor for the plaintiff.

12. On 5 August 2025, the solicitors for the defendant returned those consent orders signed by them on behalf of the defendant. That is the contract that the plaintiff now seeks to enforce under s 73 of the Act.

13. Following the signing of the consent orders, on 1 September 2025, the solicitors for the plaintiff received a requisition from the Court. That requisition said that the Court was not able to make the consent orders in chambers as there had been no Notice of Appearance by the defendant, or official acknowledgment as to how those orders had been signed on behalf of the defendant. There was no affidavit of service on the occupier as required for possession judgments.

14. Further negotiations took place between the solicitors to try and overcome this issue. One solution proposed by the plaintiff's solicitors was that the defendant simply complete a transfer of the mooring and the boat. The solicitors for the defendant said that they would attempt to obtain instructions from their client with respect to that proposal.

15. Further negotiations took place through February 2026 without success.

16. On 10 March 2026, the plaintiff's lawyers received a notice from the Court pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 12.8. This rule relates to inactive proceedings. It stated that the Court would dismiss the proceedings unless within 28 days of the notice a party notify the Court of its desire to show cause why an order for dismissal should not be made.

17. On 1 May 2026, the plaintiff filed the Notice of Motion that is presently before the Court. That motion seeks to enforce under s 73 of the Act the consent orders that I have referred to which have been signed by the defendant.

18. In Gorczynski v Bendigo and Adelaide Bank Ltd [2016] NSWCA 170, Basten JA observed at [6]:

Section 73 (and its analogues in other jurisdictions) has been understood to confer power on the court to deal with settlements in the proceedings to which they relate, rather than leaving the parties to commence separate proceedings to enforce a settlement. Accepting that to be the primary purpose of the provision, it is nevertheless expressed in broad terms as to the scope of the power conferred, terms which should not be read down by implied constraints. Rather, the breadth of the power as it operates in the Supreme Court is confirmed when it is read in the context of other powers conferred on the Court. Thus, s 56 of the Civil Procedure Act, to which the primary judge referred, states that the court must give effect to the overriding purpose of facilitating “the just, quick and cheap resolution of the real issues in the proceedings.” In order to undertake that function, the court must have the necessary powers to assist it to identify what are the “real issues” in the proceedings. In order to determine what are the real issues in the proceedings it is necessary for the court to seek to ascertain the extent to which the parties can or have narrowed their dispute, so as to limit the proceedings to that part, if any, which remains unresolved. That was the course which the primary judge undertook. If any express power were required for the judge to act on her own initiative, the court had power to act “of its own motion” pursuant to s 86(3) of the Civil Procedure Act, subject always to according procedural fairness to each party.

19. Further, in Ahmed v Chowdhury [2011] NSWSC 893, Slattery J said at [4]:

Before the enactment of Civil Procedure Act, s 73 there were different judicial views as to whether an alleged settlement of proceedings could be enforced by motion in the proceedings or whether a separate action needed to be commenced: Phillips v Walsh (1990) 20 NSWLR 206 at 210 and Roberts v Gippsland Agriculture & Earth Moving Contracting Co Pty Ltd [1956] VLR 555 at 557–562–7 and Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510. Now Civil Procedure Act , s 73 resolves these different views and makes clear that the court has jurisdiction to determine any dispute between the parties to the proceedings as to whether and on what terms the proceedings have been compromised: Civil Procedure Act , s 73(1)(a). Civil Procedure Act , s 73 probably preserves a discretion to require the enforcement of settlement claims to be brought in separate proceedings. Neither party advanced that procedure here.

20. The question is whether the consent orders, as signed by the parties, constitute an immediately enforceable contract. Whether or not the parties here intended those consent orders to be immediately binding is to be determined objectively having regard to the language in the document. In my opinion, it is plain from correspondence between the solicitors being surrounding circumstances which can be used in aid of construing the document, and from the terms of the document itself, that the defendant did consent to immediate enforcement of the orders. For example, order 1 provides that within seven days of the date of those orders, the defendant was to deliver up vacant possession to the plaintiff, and that the plaintiff was authorised to take possession of the Lot 19 property, together with the houseboat.

21. I do not think that it could be plainer that the parties objectively intended to be immediately bound by the terms of the consent orders. It was only the failure of the solicitors for the defendant to enter a Notice of Appearance which meant that the Registry quite properly raised the requisition it did, and refused to make the consent orders once they were received.

22. I consider this is an appropriate case in which s 73 of the Act can be used to enforce the contract made by the consent orders between the parties. That contract is to settle the proceedings. I should add that I am satisfied that the defendant has notice of today's motion, it having been served on him by a process server, Mr Ridinghill, who confirmed as much by his affidavit of 15 May 2026.

23. As was discussed with Ms Sanders of counsel for the plaintiff/applicant, order 3 sought in the motion in my opinion does not reflect a term of the contract. That prayer for relief sought an order that in the event the net proceeds of the sale of the property were insufficient to satisfy the amount owing, then the defendant would remain liable to the plaintiff for the shortfall, and the plaintiff would have leave to apply for further orders for recovery. I am not prepared to make that order, and after discussion, Ms Sanders accepted it did not reflect the agreement embodied in the consent orders and did not press for it.

24. Additionally, quite properly, Ms Sanders raised with me that prayer for relief 2(e)(vi), being a claim for the plaintiff's costs of the motion assessed on a gross sum basis at $10,000, was not a term of the contract. I think that is the case, although I will return to that issue when dealing with costs of the motion.

25. In all of the circumstances, I am satisfied it is appropriate to make orders 1, 2 (save for order (2)(e)(vi)), 4 and 5 in the Notice of Motion.

26. I should observe that with respect to the ownership and possession of the marina and houseboat, the affidavit of Ms Carrafa sworn 6 May 2026 relied upon by the plaintiff in support of the motion does detail that to her knowledge, it is the defendant, Mr Dyball, who is in possession and control of Lot 19 and the houseboat, and is still in possession of them. She says she is not aware of any person other than the defendant residing at, occupying or claiming possession of Lot 19 or the houseboat, and that no other persons need to be served. I accept this evidence.

27. In terms of costs, they should follow the event, and the plaintiff should have its costs of the motion. Ms Sanders for the applicant seeks an assessment of those costs on a gross sum basis in the sum of $10,000. That would be apportioned as to $5,000 for counsel and $5,000 for the solicitors.

28. The Court does have the power to make such an order: see s 98(4)(c) of the Act. Some evidence is required on which the Court can determine that the amount claimed is a fair assessment of an appropriate costs sum. I have before me the fee disclosure from Ms Sanders of Counsel which estimates her costs at $5,000 for the motion. I also have before me the costs agreement from the plaintiff's solicitors for the whole of the proceedings which estimate their costs for the proceedings at $5,000, and provide an estimate of disbursements of counsel's fees at $5,500.

29. I am satisfied that the amounts claimed, namely $10,000 divided as I have mentioned, is a fair and appropriate costs sum. The work engaged in by the solicitors for the plaintiff includes the preparation of the Statement of Claim, attendance at prior directions hearings, dealing with the Court's requisitions, preparation of affidavits including the affidavit of Ms Carrafa, instructing counsel, and correspondence with the solicitors for the defendant. The amount claimed, including counsel's fees of $5,000, is in my opinion also reasonable and within the bounds of the costs disclosure by Ms Sanders.

30. It seems to me appropriate that this sum as assessed should be for the whole of the proceedings, including the motion. By prayer 5 in the Notice of Motion, having enforced the terms of the consent orders, the balance of the Statement of Claim is to be dismissed. That is also an appropriate order. The order for costs that I will therefore make will be that the defendant pay the plaintiff's costs of the proceedings, including the Notice of Motion filed 1 May 2026, assessed in the gross sum of $10,000.

ORDERS

31. The Court makes the following orders:

32. Declare that pursuant to s 73(1)(a) of the Civil Procedure Act 2005 (NSW) that the Plaintiff has reached a binding settlement of her claims against the Defendant in accordance with the consent orders signed by the Plaintiff’s solicitor on 4 August 2025 and the Defendant’s solicitor on 5 August 2025 (Consent Order).

33. Pursuant to s 73(1)(b) of the Civil Procedure Act 2005 (NSW) order as follows:

(a) Order that the Defendant shall within 7 days of the date of these orders deliver up vacant possession to the Plaintiff and the Plaintiff is authorised to take possession of the following:

(i) Lot [redacted] in neighbourhood plan DP [redacted] being the mooring situated at [redacted], Moama, New South Wales. (ii) the houseboat (registration [redacted]) and associated property including the Mercury engine (Serial Number HI [redacted]) to the Plaintiff or her nominated agent. (collectively the Property);

(b) Order that the Plaintiff is authorised to sell the Property by public auction or private sale at such price as is advised by agents appointed by the Plaintiff; (c) Order that the Plaintiff is authorised in place of the Defendant to execute all documents and do all acts necessary for the sale and transfer of the Property to a third-party purchaser, including but not limited to signing any transfer or dealing required by NSW Land Registry Services and/or PEXA; (d) Order in the event that for any reason execution by the Plaintiff in place of the Defendant is not accepted or is insufficient to effect registration or completion of any dealing or other document required by NSW Land Registry Services and/or PEXA to effect a transfer of the Property to a third-party purchaser, the Registrar in Common Law of the Supreme Court of New South Wales is authorised to execute such documents or dealing on behalf of the Defendant; (e) Order that the net proceeds of sale of the Property be applied as follows:

(i) First, to pay any and all body corporate fees, rates, levies, mooring fees and other outgoings outstanding on the Property as at the date of sale. (ii) Second, to pay the costs and expenses of the sale, including any costs reasonably incurred by the Plaintiff in preparing the Property for sale. (iii) Third, to satisfy the outstanding Settlement Sum of $246,884.38 which is owed by the Defendant to the Plaintiff. (iv) Fourth, interest on the Settlement sum at the rate of 15% per annum from 31 January 2025 until payment in full. (v) Fifth, in payment of the plaintiff’s costs in accordance with order 6 below. (vi) NOT MADE. (vii) Sixth, any remaining balance to be paid to the Defendant.

3. NOT MADE.
4. The parties have liberty to apply on 7 days' notice in the event of any difficulty arising from the implementation of these orders.
5. Order the balance of the Statement of Claim be dismissed.
6. Order that the Defendant is to pay the Plaintiff’s costs of the proceedings including the Notice of Motion filed 1 May 2026 assessed in the gross sum of $10,000.00.

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