These proceedings involved a negligence claim made by the plaintiff, Paul Gomes, the owner of four residential properties, against the defendant, Price Family Investments Pty Limited trading as Ben Price Estate Agents, subsequently trading as Stockton Grange ABN 72095607640. The plaintiff's claim is that the defendant, as his managing agent, negligently managed his properties thereby causing the plaintiff to suffer a financial loss.
The proceedings are governed by the provisions of the Civil Liability Act 2002 (NSW) and the Civil Procedure Act 2005 (NSW) ("CP Act").
The matter was first listed for a 3-day defended hearing to commence before me on 20 June 2022. On that day the solicitors for the respective parties appeared and announced that the matter had been settled in principle, but the parties needed 14 days to prepare settlement documentation, including a deed of release. To facilitate that course, the matter was stood over for mention to 4 July 2022 for anticipated consent orders to be made.
On 4 July 2022 the solicitors for the respective parties appeared and indicated that a dispute had emerged as to whether there was a binding agreement to settle. As far as the defendant was concerned, the matter had settled. The plaintiff disagreed. Accordingly, the matter was stood over to today's date for a hearing on the question of whether, pursuant to s 73 of the CP Act, there was a binding agreement to settle.
Gomes v Price Family Investments Pty Ltd [2022] NSWDC 313 | Case summary | Zoe
Pursuant to s 14 of the CP Act, with the objective of avoiding needless costs, I dispensed with the need for the defendant to file a formal notice of motion to seek orders pursuant to s 73 of that Act.
Section 73 of that Act provides as follows:
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.
To facilitate the efficient determination of the question of whether or not the proceedings had been settled by a compromise, the defendant was required to serve its affidavit evidence on that issue by 14 July 2022 and the plaintiff was required to serve his affidavit evidence on that issue by 21 July 2022.
On 14 July 2022, in compliance with the above orders, an affidavit was sworn filed and served by Ms Natalie Bountros, solicitor for the defendant. That affidavit set out the relevant oral and written settlement negotiations that occurred between Ms Bountros as solicitor for the defendant, and Mr Rocco Ardino, the plaintiff's solicitor.
For the purposes of determining the dispute pursuant to s 73 of the CP Act, it is sufficient to cite the following communications.
At 9.59am on Friday 17 June 2022, Mr Ardino sent an email to Ms Bountros, with a copy to his own client, in the following terms:
"I refer to my conversation with you this morning and confirm that my instructions are to settle these proceedings by way of a lump sum payment to my client in the amount of $150,000 plus costs calculated and agreed at the amount of $25,000. There is to be a settlement deed whereby the defendant makes no admission as to liability.
I look forward to hearing from you.
Rocco Ardino"
At 2.05pm on Friday 17 June 2022, Ms Bountros sent an email in reply to Mr Ardino's email cited above, with a copy to his client, the plaintiff Mr Gomes, in the following terms:
"I am instructed to accept your client's offer of $150,000 plus costs, agreed at $25,000, in full and final settlement of the proceedings.
I will:
prepare a settlement agreement for the parties to sign
prepare consent orders for the proceedings to be dismissed with no order as to costs
inform the court of the settlement. I will copy you into the correspondence.
Yours faithfully
Natalie"
On the basis of that exchange, on Monday 20 June 2022, the Court was informed that the matter had settled. This was initially by email to the Registry sent by the solicitor for the defendant, Ms Bountros, at 3.10pm on Friday 17 June 2022, with a copy to the plaintiff's solicitor, Mr Ardino. On receipt of that email, the Registry informed the parties that they would have to appear in Court on Monday 20 June 2022, because the protocol within Pt 15 of District Court Civil Practice Note 1 concerning settled matters, applied to the circumstances.
Today when the matter was called on for hearing Mr JM Sharpe appeared for the defendant. There was no appearance for the plaintiff.
I am informed that at 9.17am this morning, Mr Ardino sent the following email to my Associate:
"Dear Associate,
I advise that I no longer act for the plaintiff Mr Paul Gomes and his wife Mrs Shilpi Gomes.
On Wednesday, 15 June 2022, shortly before the matter was listed for hearing, I had served upon my clients a notice of intention to file a notice of ceasing to act.. I now intend to file a notice of ceasing to act in the registry this morning.
I spoke to the plaintiff Mr Paul Gomes last night and I confirmed my previous advice that the matter was listed before his honour this morning. Accordingly he is well aware that the proceedings are on foot this morning.
For the above reasons I shall not be attending at court before your honour this morning.
The solicitor for the defendant has been copied into this email.
Yours faithfully
Rocco Ardino
Solicitor for the plaintiffs (sic)
04.08.22
Hello
Sent from my iPhone"
Several self-evident matters emerge from that email. The first is the discourtesy of the solicitor for the plaintiff in not attending Court whilst still acting for the plaintiff. The second is his failure to follow the proper procedure for withdrawal from proceedings as is required by UCPR r 7.29. The third is the internally contradictory statement which asserted that he no longer acted for his client, yet his concluding statement was that he is the solicitor for the plaintiffs (sic).
In the circumstances, absent the appearance of the plaintiff, or his solicitor, where it is plain that the plaintiff has been made aware of today's fixture, in conformity with the provisions of s 56 - s 58 of the CP Act, I will proceed to deal with the defendant's application pursuant to s 73 of the CP Act, where there has been no procedural delinquency on the part of the defendant or its solicitors.
I now turn to a consideration of the cited documents annexed to the affidavit of Ms Bountros.
In conformity with the settlement negotiations identified above, Ms Bountros prepared a document entitled Deed of Settlement and Release which reflected the agreed settlement terms, and a related draft consent order, which was to be filed in Court, the intention being to enter a judgment for the defendant after the Deed of Settlement had been duly executed.
Ms Bountros sent those documents to Mr Ardino at 9.28am on Friday 24 June 2022 inviting his comment, and indicating that if any changes were proposed, this would require her to obtain instructions from her client.
Absent a reply to the above email, at 10.08am on 28 June 2022, Ms Bountros sent Mr Ardino an email referring to her email of 24 June 2022, asking whether the proposed Deed of Settlement was agreed.
On 30 June 202, Ms Bountros and Mr Ardino spoke about the matter by telephone. Ms Bountros' unchallenged file note of that conversation was to the effect that Mr Ardino was "trying to get his client to take the Deed" because the client did not want to settle, and he wanted his day in Court. Ms Bountros responded by informing Mr Ardino that from her perspective, the matter had settled "in writing !!*". Mr Ardino responded to that comment from Ms Bountros by saying that he has a very difficult uneducated client who does not understand the settlement, and "he wants more".
That conversation concluded with Mr Ardino indicating to Ms Bountros that he needed an adjournment for either 2 weeks or 28 days. Ms Bountros did not agree to an adjournment and informed Mr Ardino that he would need to explain his position to the Court as her client required the specific performance of the agreement.
The ultimate evidentiary position is that Ms Bountros' account of the events remains unchallenged. It is supported by contemporaneous documents. Her account is not inherently improbable. There is no opposing affidavit evidence from the plaintiff's side. Any such evidence was required to have been filed and served by 21 July 2022. In those circumstances, I accept the evidence of Ms Bountros in its entirety.
Accordingly, the irresistible conclusion to emerge is that the proceedings have been resolved by a compromise agreed to by the parties on terms agreed to by the solicitors for the parties in their email exchanges as cited above.
In their exchanges, there was a clear intention to resolve their legal relationship, for good and valid consideration. Furthermore, the solicitors for the parties had the ostensible authority to bind their respective clients to a negotiated settlement: Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235, at [7], p 242.
The parties were in a dispute that required a legal resolution. An offer was communicated by the plaintiff's solicitor to the defendant's solicitor, and it was expressed in terms that were capable of acceptance in circumstances where the solicitors for the parties were negotiating on behalf of their clients in a manner and style which would bind their respective clients if the communicated offer was accepted.
Absent any evidence suggesting Mr Ardino lacked the authority to bind his client, that must be the end of the dispute. There is a settlement on agreed terms.
I find that Mr Ardino made his offer to settle on his client's behalf in accordance with the cient's authority to do so. That offer was accepted by Ms Bountros on her client's behalf and at that time Ms Bountros had no notice to suggest that Mr Ardino was not duly authorised to settle on the terms he had offered.
Since the parties have not executed the deed that was contemplated, it remains for the Court to make appropriate orders pursuant to s 73 of the CP Act to give effect to the substance of their agreement to finalise the proceedings.
The original agreement provided for the entry of judgment for the defendant on the execution of a deed and payment of the agreed amount by the defendant. As that deed has not been executed by the plaintiff I consider that term is severable, with the result that the appropriate order should be for a verdict and judgment for the plaintiff in the agreed amount.
[2]
Orders
I make the following orders:
1. Verdict and judgment for the plaintiff in the sum of $150,000;
2. The defendant is to pay the plaintiff's costs in the agreed sum of $25,000;
3. The plaintiff is to pay the costs of this application pursuant to s 73 of the Civil Procedure Act 2005.
[3]
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Decision last updated: 04 August 2022