Futhem Pty Ltd v Mills

Judgment (7 paragraphs)

[1]

Judgment 1HER HONOUR: The plaintiff, by way of notice of motion filed on 14 August 2012, seeks orders as follows: (1)On the grounds appearing in the affidavit of Martyn King sworn/affirmed on 9 January 2012 and 13 August 2012 the plaintiff claims an order pursuant to r 28.2 that pursuant to the Orders made on 30 August 2011 by Supreme Court of New South Wales Court of Appeal this Honourable Court make Order to resolve the question as to the proper form of orders to be entered consequent upon the compromise as evidenced by Terms of Settlement dated 25 November 2008 and filed with the District Court on 27 November 2008. (2)Directions. (3)Costs to be reserved. 2The history of the matter is set out in the judgment of Truss DCJ of 20 May 2011. When these proceedings were commenced in 2007, the claim was a straightforward one, in that the defendant was the guarantor for a lease of retail premises, and the amount claimed related to liability under the guarantee. The matter was settled on 23 October 2008. On 25 November 2008, the parties signed Terms of Settlement which provided as follows: BY CONSENT AND WITHOUT ADMISSION

Verdict and Judgment for the Plaintiff in the sum of $76,000.00 inclusive of costs.
Provided however, the defendant pays the sum of $60,000 by way of 36 equal monthly instalments of $1,666.87, first payment to be made on 30 November 2008, the judgment debt shall be deemed satisfied.
If the Defendant defaults on any two monthly instalment payments the Plaintiff may seek leave to issue a Writ of Execution forthwith for the full amount of the judgment debt.
These terms not to be disclosed. 3On 16 December 2008, the Registrar endorsed on the file the words "Judgment for the plaintiff in accordance with Terms of Settlement filed". On the title page of those terms, it was stated that the order was made and entered on 16 December 2008. 4The defendant failed to make payments pursuant to the agreement and the Registrar signed and sealed a document headed "Judgment/Order" on 29 April 2010 describing the judgment as "Judgment Terms of Settlement entered Judgment Amount $ 76,000.00; Costs $ 0.00; Interest $ 0.00; Comment; Instalment Orders". 5I note these orders, and the manner in which they were sealed by the Registrar, follow the same form as those the subject of Nau v Kemp & Associates Pty Ltd t/as Active Working Solutions (2010) 77 NSWLR 687 ("Nau"), where McColl JA discusses this process at [3]-[4]: "[3] The issue posed by this case is whether s 5(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (the "1946 Act") applies in circumstances where, in the District Court proceedings Campbell JA has described as the "2007 Action", the appellant and the State of NSW (the "State") agreed to Terms of Settlement dated 10 October 2008, which relevantly stated: By consent and without admission of liability:

The judgment in the Court of Appeal 20The Court of Appeal, on 30 August 2011, handed down its judgment (Mills v Futhem Pty Ltd [2011] NSWCA 252) granting leave to appeal, allowing the appeal and remitting the matter to the District Court for resolution of the question as to the proper form of orders to be entered consequent upon the compromise as evidenced by the Terms of Settlement dated 25 November 2008 and filed with the District Court on 27 November 2008. 21Allsop P set out the circumstances leading to the settlement and (at [5]) the terms of settlement, the contents of the District Court computerised record system in relation to the document received in the courthouse at Penrith on 27 November 2008 and the fact that the matter was before Delaney DCJ on 3 and 18 December 2008 (although his Honour did not refer to the hearing on 17 December 2008). His Honour then referred to the findings of Truss DCJ (at [11]). His Honour noted the failure of the bankruptcy proceedings (at [13]), the obtaining of a fresh order on or about 29 April 2010 (at [14]-[16]) upon which the second bankruptcy proceedings were commenced, and the bringing of the notice of motion which was considered by Truss DCJ. 22At [18]-[20], Allsop P stated the matter proceeded before Truss DCJ on two bases. Both those matters were the subject of the application for leave: firstly, that the judgment was in breach of the mandatory provision of UCPR r 36.1A(2) prohibiting non-disclosure of the judgment, and, secondly, that no judgment was "signed" by the Registrar as required by UCPR r 36.11(2A). Further, it was argued that the form of the document dated 29 April 2010 was not a proper reflection of the Terms of Settlement, as it was an interpretation made in the absence of a party by the Registrar which did not reflect the nature of the Terms of Settlement. 23Allsop P stated at [24]-[27]: "[24] It is necessary to ascertain what in law occurred on 16 December 2008. It appears to be clear what happened, factually. A Registrar dated and stamped, but did not sign, the terms of settlement and an entry was made on the District Court file and in the computerised records of the court in the fashion I have set out. It is also clear that at no time was there an entry into the court's record system of the full terms of the terms of settlement. It remains to be determined, therefore, whether the terms of settlement have been entered in the sense of the entry of a judgment or order. [25] As stated above, r 36.1A provides that the court may give judgment or order that judgment be entered in terms of an agreement between the parties. There appears no reason why the terms of settlement do not fall within that description. By the terms of the document, the parties have not made clear the status of the four paragraphs. In content and text, paras 1 and 4 appear to be by way of judgment or order. (I leave to one side the obvious difficulty with para 4 under r 36.1A(2).) The parties did not state that paras 2 and 3 were qualifying agreements. All four paragraphs were part of the document titled "terms of settlement", which was filed. In argument, Mr de Robbillard for Ms Mills submitted that paras 2 and 3 were paragraphs which qualified the nature of the verdict and judgment provided for in para 1. Therefore, it was submitted, there was an implied limitation on the verdict and judgment in para 1 by the contents of paras 2 and 3 such that, upon the default by Ms Mills on any two monthly instalments, the only enforcement remedy was leave to issue a writ of execution forthwith. Thus the applicant argued that paras 2 and 3 were more than a mere agreement of the parties providing for qualification contractually, inter se, of the effects of verdict and judgment in para 1. [26] I will return to the proper meaning of the terms of settlement in due course. Whatever the document's meaning, was it entered into the computerised court record system? The answer to this question is, no. The entry in the computerised court record system did not amount to what is contemplated by Pt 36, r 36.11(2) of the UCPR. What needs to be recorded in the court's computerised record system is the judgment or order. Given that the only document that had been filed and that the parties had sought the court to deal with was the document entitled "terms of settlement", for that agreement to be the basis of the court's judgment for the purposes of r 36.1A, there must have been a recording of the judgment or order, in its terms. It can be accepted that the court would not make a judgment or order in terms of para 4. But the parties, by filing the document, have requested it (or such of it that lawfully can be made) to be made as a record of the court. This would require for entry under r 36.11(2) the recording of the judgment or orders in the terms of settlement. [27] The proper construction of r 36.11 is, it seems to me, that unless a court orders otherwise for r 36.11(2) or unless a court directs, in the manner set out in r 36.11(2A), entry under the Rules is not effected otherwise than by recording in the court's computerised court record system contemplated by r 36.11(2). Recording the orders means just that: setting them out. There is no recording of the orders if all that is stated is that some orders exist. It would undermine the integrity of a computerised record system to have mere references to pieces of paper in files treated as a recording of the judgment or order in the computerised record system. In my view, that is not what the rule means. To the extent that the record in the computerised system might be seen as some form of incorporation by reference, it does not record the judgment or orders. One cannot even ascertain the amount of the judgment in order 1. One can put the two together, by looking at the file, but that is not adequate." 24Allsop P made the following observations concerning the operation of the UCPR in relation to entry of judgment at [33]-[39]: "[33] The UCPR are uniform rules. They exist and were made in an era of growing computerisation. The rule (r 36.11) makes ample room for flexibility for methods of entry by the initial qualification in both subrr (2) and (2A). If neither of those qualifications is made, entry is by recording the orders in the computerised record system of the court. Here, there has been no recording of the orders in the terms of settlement for the purposes of rr 36.11 and 36.1A. [34] For these reasons the orders in the document of 25 November 2008, filed on 27 November 2008 and stamped with a seal by the Registrar on 16 December 2008 have not been entered. [35] It is necessary therefore to turn to the document bearing the date of 29 April 2010. The "judgment/order" dated 29 April purports to be a sealed copy of a judgment or order entered on 16 December 2008. For the reasons I have already given no judgment or order was entered on 16 December 2008 and therefore this document is not a copy of it, because such judgment or order does not exist as entered. [36] Rule 36.12(1A) says that a document sealed by a Registrar in accordance with subr (1)(b) is taken to be a copy of the relevant judgment or order. This cannot be conclusive if, in all the circumstances, it has been demonstrated that there is no judgment or order that has been entered. [37] Further, the document is inaccurate, insofar as it seeks to set out the terms of settlement. It reflects an interpretation of the document of November 2008 that the only judgment is in para 1 and that paras 2 and 3 are instalment orders (otherwise than as provided for in the CPA, s 107 and the UCPR, Pt 37). It is to be noted, however, that an instalment agreement under Pt 37, r 37.1A has no effect unless the signature of each person executing it is witnessed by a Registrar or other officer of the court or by a solicitor or barrister, unless the signatures (which was not the case here) were of a solicitor or barrister. [38] Rule 36.12(1) provides that the Registrar must (a) furnish a sealed "copy" of any judgment or order that has been entered or (b) must seal a document provided by a person that in the opinion of the Registrar accurately sets out the terms of the judgment or order. It is not clear whether (a) or (b) was undertaken here. In either case, the document does not reflect the terms of settlement. Nor has any judgment or order been entered. Thus the document is not a "copy" of the orders that have been entered. If anything was purported to be entered on 16 December 2008, it was the existence of terms of settlement. If the Registrar acted under r 36.12(1)(b), the document does not accurately set out the terms of the judgment or order. The judgment or order in r 36.12(1)(b) is the same judgment or order referred to in r 36.12(1)(a), that is one "that has been entered". This has not occurred. [39] In my view, the learned primary judge was wrong to conclude that anything had been entered. Her Honour was also wrong to conclude that the April 2010 document was a copy of a judgment or order that had been entered." 25Relevantly for the application before me, Allsop P defined the task of this Court as follows: "[42] That does not mean, however, that Futhem is without remedy. Futhem drafted the terms of settlement. There now appears to be a significant dispute as to the meaning of the terms and the proper form of order to be entered consequent upon the terms of settlement being filed. The District Court has control of its own proceedings. No final order has been entered disposing of them. To the extent that there is a lack of clarity in the terms of settlement, that can be resolved by the District Court construing the terms of settlement. Were they proposed orders (paras 1 and 4) with a side agreement (paras 2 and 3)? Or were they a body of composite orders (paras 1-4)? There is much to be said for assuming that the former was the case. However, this court does not have the surrounding material to construe the orders. Nor is the application or the appeal the proper place for that process."

The procedural history of the proceedings since the appeal 28Following the decision of the New South Wales Court of Appeal (30 August 2011), the matter was relisted before Truss DCJ on 6 December 2011. It was listed again on 23 January 2012, 13 April 2012, 18 May 2012 and 24 July 2012 before her Honour and other judges of this court. 29The defendant was first ordered to serve any evidence upon which she sought to rely by 28 February 2012. No such evidence was filed, apparently by reason of the defendant's health problems. The defendant was then ordered to file full evidence by 30 June 2012 (on 18 May 2012). The plaintiff was to file evidence in reply by 21 July 2012. As the defendant never complied with these orders, the plaintiff was in a difficult position in terms of what material should be put before the court. 30In addition to failing to comply, the solicitors for the defendant served a Notice of Ceasing to Act on their client on 27 June 2012. This information was, however, not known to the plaintiff's solicitors until after 16 August 2012, when the Notice was filed in the registry and served on them. It is an unexplained inconsistency in this chronology of events that although the Notice of Ceasing to Act of the solicitors was served on their client on 27 June 2012, Mr de Robillard still appeared on behalf of the defendant on 24 July 2012. 31The defendant has failed to appear today, although being on notice of the hearing date. As late as 24 July 2012, Mr de Robillard told the court his client had instructed him to seek a stay of proceedings, according to the notation in the orders for that date. The defendant has been called outside the court today both before Truss DCJ when the matter was listed, and before me, as is set out in orders 1 and 2 of the orders set out below. As Exhibits B and C made clear, copies of the relevant documents were served upon not only the defendant in person, but also upon her legal advisors, the plaintiff's lawyers being unaware that they no longer acted until service of the 16 August notice, which appears to have been effected in the last day or so. 32The circumstances in which a solicitor may withdraw from appearing in court are set out in UCPR r 7.29. The court's leave was not sought and has not been granted. 33This leaves me in the difficult position of having to perform the task allotted to me by the Court of Appeal in circumstances where the moving party has failed to comply with orders to provide evidence, or to appear in court today. Some hint of the case to be argued may be gleaned from the application for adjournment which is supported by written submissions from counsel for the defendant/applicant dated 13 May 2011. The legal issue there is defined as: "Assuming for the purpose of the argument that Judgment had been 'entered' in the sense that the relevant computer entry were made, nevertheless it is argued that the entry is not validly made and cannot be a Judgment of the Court." 34Reliance was placed by Mr de Robillard upon UCPR r 36.1A(2), Commonwealth of Australia v Gretton [2008] NSWCA 117 ([92 et seq]) and the commentary in Ritchie's Uniform Civil Procedure NSW at 36.11.5, which states that the approved form for registration of or filing of a judgment or order is Form 45. I shall deal first with this argument, and the question of how to construe the Terms of Settlement. The Practice contains the following helpful note at 36.11.10: "[36.11.10] Procedure for entry of judgments and orders Under the present rule, a judgment or order is taken to be entered immediately it is recorded in a "computerised court record system", and unless the court makes a specific order directing the entry of judgment, this is the only means by which a judgment is "entered": Mills v Futhem Pty Ltd [2011] NSWCA 252; BC201106616 at [27]. Where the court directs the entry of judgment the direction should require one of the parties to prepare a draft reflecting a "minute" of the orders indicated in the court's judgment. That party should serve the minute on the other parties and provide it to the registrar. If the orders proposed in the minute are contested the parties may be required to attend on the registrar to settle their final terms. Until the order is formally entered by the registrar sealing the signed minute, the court may review the orders: UCPR r 36.16(1). This procedure for reviewing the terms of a judgment or order is not automatically available where a particular court uses a "computerised court record system" and the judgment or orders are automatically "taken to be entered" because of the particular court. This potential difference between courts suggests it may be prudent for parties to ensure that a specific direction is given about the manner in which judgment is to be entered: Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133; BC200804272, Basten JA (Ipp and Giles JJA agreeing on this point) at [8]-[12]. That suggestion is given poignant emphasis by the High Court's observations on the potentially undesirable consequences of the present rule, to the extent that it contemplates the automatic entry of judgment without notice to the parties: see John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; 266 ALR 462; [2010] HCA 19; BC201003368 at [150]-[152]. Where the court makes such a specific direction, it will determine when the relevant judgment or order has been "entered" - even if the actual terms of the order have already been recorded in the computerised court record system: Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2) [2008] NSWCA 205; BC200807789 at [53] (direction that costs orders not be entered until 28 daus after reasons for judgment - order recorded - not "entered" until time expired). " 35Mr de Robillard's submissions also rely upon s 73 Civil Procedure Act 2005 (NSW) and in particular Harvey v Phillips (1956) 95 CLR 235 at 242-243 and S. Hoffnung & Co Ltd v Hesky [1977] 2 NSWLR 669. 36The Court of Appeal did not express views upon the defendant/appellant's submission that any judgment was in breach of the mandatory provisions of UCPR r 36.1A(2) prohibiting non-disclosure of the judgment, or that the document was not a proper reflection of the terms of settlement. The question clearly put before me by the Court of Appeal is how to construe the Terms of Settlement (see [43] of the judgment), but no analysis of the submission both to Truss DCJ and to the Court of Appeal that any order for judgment was in breach of the mandatory provisions of UCPR r 36.1A(2) is contained in their judgment. I propose to assume that this is because this submission is in fact caught up in the main issue the Court refers to in [43], namely the terms upon which the proceedings were compromised or settled. 37In S. Hoffnung & Co Ltd v Hesky, Meares J noted the views expressed in the Evershed edition of Atkin's Court Forms, vol. 12, p. 4 as follows: "One of the most important considerations as to the form in which to embody terms of settlement is whether it has the effect of enabling a party to enforce those terms in the pending proceedings themselves, or whether it precludes him from so doing and compels him to resort to a fresh action for the purpose. It is very unsatisfactory to settle one piece of litigation in such a way as to give rise to another because of the terms or the form of the settlement, or to leave open channels of possible controversy between the parties." 38In Nau, McColl JA (at [104]) stated that the common law's encouragement of the settlement of actions militated against a statutory construction (in that case, s 5(1)(b) Law Reform (Miscellaneous Provisions) Act 1946 (NSW)) in such a way as might discourage settlement, citing Baxter v Obacelo Pty Ltd (2001) 205 CLR 635 and Jameson v Central Electricity Generating Board [2000] 1 AC 455). 39These statements are additional reasons for endeavouring to interpret commonly used phrases such as "terms not to be disclosed" in a common sense way. 40As I have noted above, UCPR r 36.1A(3) provides that Terms of Settlement cannot be trammelled by court orders preventing disclosure. All the parties can do is to agree inter partes. The defendant's submission that "terms not to be disclosed" prevents judgment being entered misconceives the nature of this notation and is contrary to UCPR 36.1A(3). The submission that the parties did not contemplate judgment because this term was used must fail. 41As to what the parties actually agreed, the notes to s 73 set out that a settlement agreement may be enforced by an application by motion in the original proceedings and that matters relevant to the court's consideration are the extent to which extraneous matters are involved, the nature of the issues to be determined, the extent to which questions of credibility arise, whether pleadings and discovery are desirable and an enquiry into whether the enforcement of the settlement might go beyond the ambit of the proceedings as originally constituted or were contrary to the interest of justice. 42The terms of the agreement to settle could not be more straightforward. The terms provide for a verdict and judgment for the plaintiff for the sum of $76,000 inclusive of costs. This judgment debt was deemed to be satisfied if instalment payments were made. If there was default, the plaintiff could seek leave to issue a writ of execution forthwith for the full amount of the judgment debt. Thus order 1 had a "side agreement" (paragraphs 2 and 3) and paragraph 4 was a notation only. With respect, the Court of Appeal appears to have overlooked UCPR r 36.1A(2) and (3) in relation to the contents of paragraph 4 of the Terms of Settlement. 43I am satisfied that the intention of the parties was that there would be judgment for the plaintiff (paragraph 1) and that if the defendant failed to make the regular payments as set out in the Terms of Settlement she signed (paragraphs 2 and 3), judgment could not only be entered but enforced. The requirement that the terms of settlement should not be disclosed would not prevent the enforcement of the judgment. 44If I have erred in this regard, I am satisfied, from the facts as set out above and in the pleadings and particulars, that this would be an appropriate case for judgment to be entered pursuant to UCPR r 36.1. It is now nearly four years since the parties signed Terms of Settlement in relation to proceedings commenced more than five years ago. The liability of the defendant, independent of the agreement reached in the course of the settlement, are clear. It is in the interest of both parties that there should be finality to this litigation. 45I made orders as set out below for the entry of judgment in favour of the plaintiff for the sum currently outstanding, in accordance with the affidavit of Mr Martyn King of 20 August 2012. Those orders have been entered on JusticeLink. The plaintiff's legal advisors have been provided with sealed copies of the orders that I made earlier today. 46I have also made an order that the defendant pay the plaintiff's costs of the plaintiff's notice of motion. I have not been addressed about interest, or whether the costs of the motion should be on any basis other than on a party and party basis.

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