Kwu v State of New South Wales

Court Ordered Mediation

1. On 7 July 2023, the Court made an order pursuant to s 26 of the Civil Procedure Act 2005 that the parties participate in a mediation which was to conclude prior to 13 December 2023. On 10 November 2023, the Court made an order extending the time for compliance with the mediation order to February 2024.
2. The order for the parties to participate in a mediation was made in advance of the final hearing date which the Court had fixed for 20 May 2024.
3. On 26 February 2024, a mediation took place as had been arranged between the parties.

Has there been a Binding Settlement

1. The issue in dispute before the Court, and with which this judgment deals, is whether the parties have agreed to finally resolve the proceedings by reaching a settlement at the mediation in February 2024, which constitutes an immediately binding agreement between the parties.
2. On 8 April 2024, the defendant filed an Amended Notice of Motion seeking: "1. A declaration that the proceedings between the plaintiff and the defendants have been compromised and settled between them for an amount of $200,000 inclusive of costs. 2. … Order that there be verdict for the plaintiff against the defendant in the amount of $200,000 inclusive of legal costs. 3. Costs of the Motion."
3. The defendant's Motion was supported by an affidavit of Leighton Hawkes affirmed on 8 April 2024. The plaintiff also provided an affidavit sworn on 5 May 2024. There were other participants in the mediation who did not give any evidence recording their account of the mediation.
4. The plaintiff's legal representatives who acted for him during the mediation have ceased to act for the plaintiff. There was no evidence from them led on this Motion.
5. There is little dispute between the plaintiff and the defendant about the facts of the mediation. I note that during the mediation, the defendant's legal representatives spoke only with the plaintiff's legal representatives, and did not speak directly to, or in the presence of, the plaintiff.
6. I also note that the plaintiff's dispute regarding the settlement which was reached seemed to be concerned with his interactions with his own legal representatives, rather than any interactions with the defendant's legal representatives.
7. I accept both Mr Hawkes' account and the plaintiff's account of what occurred, as neither of their recollections of events were challenged, and they do not conflict with each other.

Applicable Principles of Law

1. It is convenient here to note the applicable principles of law in respect of which the facts proved and the submissions made are to be considered.
2. I have previously addressed the applicable principles and draw here upon their statement in BJP1 v Salesian Society (VIC) Inc [2021] NSWSC 241.

The Existence of a Binding Contract

1. The principal issue is whether a binding contract came into existence. In Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 (at 360), the High Court (Dixon CJ, McTiernan and Kitto JJ) held that in circumstances where the parties conduct contractual negotiations and agree that the subject matter of their negotiations is to be dealt with by a formal contract, those circumstances would generally fall into one of three categories: "1) [a case in which] the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect; 2) … a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document; and 3) [a case] in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract."
2. The High Court held that the first two categories were binding contracts, but the third category was not.
3. A "fourth category" has since been identified as being derived from the High Court's decision in Sinclair, Scott & Co v Naughton [1929] HCA 34; (1929) 43 CLR 310. This category was described by McClelland J in Baulkham Hills Private Hospital Pty Ltd v GR Securities (1986) 40 NSWLR 622 (at 628E) in these terms: "…[a case] in which the parties were content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms."

Intention of Parties

1. In order to determine whether a contract exists, and into which category the purported agreement falls, it is necessary to identify the objective intention of the parties. In GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631, McHugh JA (with whom Kirby P and Glass JA agreed) said (at [634]) that: "The decisive issue is always the intention of the parties which must be objectively ascertained from the terms of the document when read in the light of the surrounding circumstances. If the terms of a document indicate that the parties intended to be bound immediately, effect must be given to that intention irrespective of the subject matter, magnitude or complexity of the transaction."
2. In Pavlovic v Universal Music Australia Pty Limited [2015] NSWCA 313 Beazley P (with whom Bathurst CJ and Meagher JA agreed) observed (at [64]) that: "Where parties have reached agreement as to all the terms of a contract, but also agreed that a further, formal agreement is to be executed the question for determination is whether the parties intend to be immediately bound. That is to be determined objectively from the 'outward manifestations' of the parties' intentions: Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640 at [35]."
3. In Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 Mahoney JA set out (at 326G) three questions which are helpful to consider: "Did the parties arrive at a consensus?; (if they did) was it such a consensus as was capable of forming a binding contract?; and (if it was) did the parties intend that the consensus at which they arrived should constitute a binding contract?"

Subsequent Conduct

1. It is clear that subsequent conduct of the parties can be considered when determining the existence of a binding contract: Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 at [25] per Heydon JA: see also Howard Smith & Co Ltd v Varawa [1907] HCA 38; (1907) 5 CLR 68 at 77; Barrier Wharfs Ltd v W Scott Fell & Co Ltd [1908] HCA 88; (1908) 5 CLR 647 at 668, 669, 672; GC NSW Pty Ltd v Galati [2020] NSWCA 326 at [92].

Relevant Facts

1. The following facts, which I accept, are drawn from Mr Hawkes' affidavit in support of the defendant's Motion.
2. At 2:00pm on Monday 26 February 2024, the parties participated in a mediation with Mr Michael Spartalis as the mediator. The mediation was conducted by remote connections without the parties, or their representatives, being at any time physically present in the same room as the mediator. No opening session was conducted. The plaintiff appeared in the mediation via audio-visual technology (AVL) as he was incarcerated. The plaintiff was represented by Mr Jim Jobson of Counsel and his solicitor Mr Naushad Husaini. Mr Nick Polin SC appeared for the defendant, instructed by Mr Hawkes.
3. Negotiations commenced at 2:00pm with the plaintiff's lawyers conveying the first offer to the mediator in the following terms "$650,000 inclusive of costs". Thereafter, a further 15 offers were exchanged between the lawyers for the parties by each party's lawyer indicating their client's offer to the mediator, and the mediator conveying the offer to the opposing party's lawyers. As part of his usual practice during the course of mediations, the mediator sent email communications to the parties throughout the mediation to confirm the details of the offers of settlement which were conveyed by him to the lawyers for each party.
4. At 4:56pm, the mediator emailed the parties to advise that the plaintiff had made a "final" settlement offer of $200,000 inclusive of costs, which was open for acceptance until the conclusion of the mediation.
5. The defendant instructed Mr Polin SC to accept the plaintiff's offer of $200,000 inclusive of costs. Mr Polin SC verbally communicated this acceptance to the mediator. At 5:03pm, the mediator emailed the parties to conclude the mediation, stating: "Dear All, This matter resolved at mediation today as set out in the table below. I have provided the parties with copies of the mediation agreement and chronology of offers …"
6. The email then noted there was no opening session, recorded that the parties were bound by the Mediation Agreement (the terms of which are not in evidence before this Court), and set out the sequence of offers.
7. At 5:31pm, the solicitors for the defendant emailed the plaintiff's lawyers Mr Jobson and Mr Husaini with a draft Deed of Release. The draft Deed was apparently in accordance with the defendant's usual form. It had not previously been discussed during the mediation. The plaintiff's lawyers did not raise any issues with the fact of, or terms of, the Deed of Release. A draft of a Notice of Discontinuance was also sent.
8. The email from the solicitor for the defendant, which enclosed the Draft Deed, was in these terms: "Thank you for your assistance during this afternoon's mediation. I enclose a Draft Deed of Release for your review, by way of documenting today's settlement. Please note that the terms are also subject to my client's instructions, and I will seek those this afternoon concurrently with this email."
9. On 5 March 2024, the solicitors for the defendant received an email from Mr Husaini, the plaintiff's solicitor, advising that he was ceasing to act for the plaintiff and that the plaintiff was obtaining alternate legal advice. The email said: "… Please find enclosed, sealed copy of the Notice of Intention to File Notice of Ceasing to Act filed in court today. I have taken this step as I was notified by Mr Kwu on Friday 1 March 2024 that he will be seeking alternate legal advice…"
10. A Notice of Intention to file a Notice of Ceasing to Act was filed in Court on 5 March 2024 by the plaintiff's solicitor.
11. On 6 March 2024, the defendant's solicitor, Mr Hawkes, responded to that email, in these terms : "… I anticipate instructions from my client to seek to enforce the in-principle settlement reached at mediation. I assume you and/or Mr Jobson have advised Mr Kwu to expect this and should we be so instructed, the May 2024 hearing dates may need to be vacated."
12. After a further exchange of emails between the solicitors on 6 March 2024, Mr Husaini emailed the defendant's solicitors saying: "The only thing I was advised by Mr Kwu was that he was not going to sign any documents and wanted to proceed with the hearing on 20 May and would be seeking further legal advice."
13. On 4 April 2024, the defendant filed its Motion seeking to enforce the settlement. This Motion was amended on 8 April 2024.
14. In response to the defendant's Motion, the plaintiff, who is now representing himself, filed and relied upon an affidavit sworn 5 May 2024. The following additional facts are drawn from this affidavit.
15. The background to this Motion from the plaintiff's perspective, is that in 2022, the plaintiff retained Harrow Legal to represent him, which was the second firm to represent him in these proceedings. When signing the retainer agreement with Harrow Legal, the plaintiff was informed he was engaging the firm on a "no win no fee" basis. Mr Husaini was assigned as the solicitor to represent the plaintiff.
16. Prior to the mediation, Mr Husaini provided to the plaintiff a written outline of his estimate of the possible range of damages which might be recovered. In that outline, the damages were estimated to be up to about $1.2 million. On the day of the mediation, the plaintiff met and conferred with a barrister, Mr Jobson, for the first time. Mr Jobson told him "Don't expect hundreds of thousands", and "You'll be lucky to get 50K". Unsurprisingly, the plaintiff asked why the estimate from Harrow Legal was approximately $1.2 million. Mr Jobson did not give a direct answer but said to the plaintiff that "If we take it to trial the defendant would apply for a 'leave of stay' because they couldn't question the witness Mr Turner. Then we could get nothing". The plaintiff was told to limit his expectations and be ready to compromise. I assume that the reference to "leave of stay" is a reference to a permanent stay of the proceedings.
17. The plaintiff was not told what the first offer made on his behalf was going to be nor what it in fact was. The first offer made on his behalf was $650,000 inclusive of costs and the defendant's first offer was a verdict for the defendant with each party bearing their own costs. The plaintiff told his lawyers that he found this offer to be insulting and unacceptable.
18. The second offer made on the plaintiff's behalf was $600,000 inclusive of costs. The second offer made by the defendant was $25,000 inclusive of costs. At this stage, the plaintiff and his Counsel Mr Jobson agreed that an amicable outcome in the mediation was not likely, and Mr Jobson advised the plaintiff that it would be best to proceed to the final hearing which was fixed for 20 May 2024. The plaintiff agreed with this, confirmed that the hearing date would be the hearing already allocated on 20 May 2024, and asked Mr Jobson if it was okay for him to return to his work within the jail. Mr Jobson said yes.
19. The plaintiff was under the impression that the mediation had been concluded for the day. The plaintiff left the AVL suite and returned to other areas of the jail.
20. Sometime later, which the plaintiff estimated to be about 20 minutes, he was brought back into the AVL suite at the correctional centre and re-connected via AVL to speak with Mr Jobson, who informed the plaintiff that he wanted to continue negotiations to reach a resolution that day.
21. After several further exchanges of offers, Mr Jobson asked the plaintiff if he would be happy to walk away with $100,000 in his pocket. The plaintiff immediately said "No" and "That amount wouldn't even cover my future psych fees and ongoing treatment".
22. Mr Jobson then persistently told the plaintiff "I need you to advise me to accept the offer". I would infer that this conversation occurred in the context of an offer from the defendant, although it is not easy to correlate the words which the plaintiff records as being spoken to any such offer, although they may in fact refer to the plaintiff agreeing to an offer being made to the defendant in an amount which would result in him receiving $100,000. The plaintiff says that he became visibly upset and that he felt emotionally drained. Mr Jobson gave him some time to compose himself.
23. Mr Jobson linked the mediator into the conversation through the AVL connection to the Correctional Centre, which was initially of poor quality for the plaintiff and so a loudspeaker system was improvised. In the course of this conversation, the plaintiff was told by the mediator that he had "… mediated thousands of these cases and this was the best offer I was going to get. So let's resolve this matter today". The plaintiff repeated to the mediator on a number of occasions during the conversation these words: "No, I can't wrap my head around that offer". The mediator said: "If you can't think straight and wrap your head around it, I'll leave it to you and your solicitor". The discussions involving the mediator then finished.
24. What then followed is described in this way in the plaintiff's affidavit: "Once again Mr Jobson tried to convince me to accept the offer and continually repeating 'I need you to advise me to accept the offer, it's the best you're going to get.' After several minutes of what felt like verbal demands, I reluctantly surrendered my position and said 'Do whatever you want' so I could remove myself from the tense situation. He could see I was emotionally upset with tears in my eyes, when he stated 'I'm not here as your friend but as your lawyer trying to recover the legal costs.' This indicated to me why he was pressuring me to advise him to accept the offer and therefore I didn't feel like I had acceptable legal representation."
25. It seems that at that stage, Mr Jobson made the final offer to the defendant as earlier referred to. It was that offer which the defendant, through Mr Polin, accepted.
26. Mr Kwu then described what he did afterwards in these words: "As soon as I could get in contact with Mr Husaini, I advised him that I was not happy with the way I was coerced and pressured into making the decision and I would NOT be signing the acceptance of offer and I would be seeking further legal advice." (sic)
27. I have not heard any account of these conversations from either Mr Jobson or Mr Hussain, I only have the unchallenged version of the plaintiff which, in the circumstances, I accept.

Defendant's Submissions

1. Caution must be exercised in considering all of the defendant's written submissions because, in various paragraphs - being those numbered 8(a)-8(c) inclusive, 8(d)(iii), 23 and 24 - reference is made to facts and matters, together with the contents of emails and other correspondence, which have not been tendered in evidence, nor has that material in any other appropriate way, sought to be put before the Court. Reference in submissions and at a hearing to matters of fact, even if correct, do not amount to the proof of those facts for the purpose of a contested motion. It is necessary to tender evidence of the facts and matters which are sought to be relied upon. Accordingly, I am obliged to, and I do, disregard the facts and matters set out in the paragraphs identified above.
2. The defendant submitted that the Court would be satisfied that the parties have formed a legally binding agreement to settle the proceedings for $200,000, including legal costs.
3. The defendant submitted that the agreement fell into the first category of Masters v Cameron, which dealt with the circumstances in which parties conduct contractual negotiations and agree that the subject matter of their negotiations will be dealt with in a subsequent formal contract. The first category, as formulated by the defendant in its submissions is: "A case in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect."
4. The High Court, the defendant submitted, held that this category created a binding contract.
5. The defendant submitted that the agreement reached in this matter could also fall into the so-called "fourth category" of a contractual agreement: "… the parties were content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms."
6. The defendant submitted it is necessary to look at the objective intention of the parties, and submitted: "The Plaintiff was available at all times during the mediation to provide instructions to his lawyers. It is also relevant that it was ultimately the Plaintiff's final offer that was accepted by the Defendant. For that offer to be conveyed, the Plaintiff would have had to provide instructions to his representatives for that offer to be put and would have received advice in relation to the offer and any relevant deductions. This would weigh in favour of a determination that there was an intention to enter into full and final settlement at the conclusion of the mediation."
7. The objective circumstances which the defendant relied upon, as being established by the evidence, to support a submission that there had been an immediately binding agreement, included that: 1. the agreement was reached in the course of a court ordered mediation in the proceedings; 2. the mediation was formally convened with a mediator and was to be conducted in accordance with the Civil Procedure Act; 3. a final hearing date had been fixed and was not very far away; 4. the plaintiff attended the mediation via AVL, and the defendant was represented by a person who was authorised to negotiate and resolve the matter; 5. the plaintiff was able to, and did in fact, give instructions to his lawyers via AVL; 6. the mediator indicated the matter was settled; and 7. there was no objection raised to the Deed by the plaintiff's lawyers.
8. The defendant further submitted that the conduct of the parties subsequent to the mediation can be considered when determining the existence of a binding contract. The defendant submitted that there was no further communication in relation to the terms of the Deed after it was sent, and that no objection was raised by the plaintiff's lawyers about the Deed or its terms. Nor was there any suggestion that a binding agreement had not been reached. There was no suggestion of any misunderstanding as to the settlement.
9. The defendant pointed to Mr Hussaini's email to the Court on 6 March 2024 which stated the parties had reached a settlement "subject to the signing of documentation" as being an objective confirmation of the parties' intention to create an immediately binding agreement.
10. On the hearing of the Motion, Mr Polin SC submitted for the defendant: "It seems that Mr Kwu's problem is with his solicitors and in the exchanges that took place between them… There was an offer made by the plaintiff. That was accepted by the defendant, and it was anticipated that that would be followed by documentation, so that the proceedings could be finalised."
11. He submitted that the defendant and its lawyers understood that, during the negotiations, the plaintiff's lawyers were appropriately authorised to enter into negotiations and reach an agreement with the defendant's lawyers. It is obvious that Mr Polin SC and his instructing solicitor were unaware of the content of the conversations that were taking place between the plaintiff and his lawyers.

Plaintiff's Submissions

1. The plaintiff opposed the relief sought in the defendant's Amended Motion. The plaintiff submitted that the Court should find that there should be no concluded agreement between the parties.
2. The plaintiff's reasons for this position are articulated in his affidavit sworn 5 May 2024 which have been mostly recounted above as part of the plaintiff's factual account of what occurred during the mediation. It is not necessary to restate the contents of the plaintiff's affidavit, however the plaintiff's position is that he felt that he did not have acceptable legal representation and that he had been "coerced and pressured" into making the decision to put the final offer to the defendant. The plaintiff had previously been under the impression that the mediation had concluded, and his matter would proceed to trial.
3. When the Motion was heard on 20 May 2024, as a part of his oral submissions the plaintiff gave the following account of what occurred after telling his representatives they could accept the offer: "And after that, I've tried to ring the next day. I couldn't sleep. For the next day I tried to ring his office the next day, Mr Naushad's [Hussani's] office. The first day no-one answered. I left it with the secretary, they said ring back. So when I finally got through to him I told him, I said, 'I wasn't happy with what happened through mediation, and I felt like youse coerced me to accept that offer, after we clearly said we were going to trial, after the first or second offer', and then from that point we're -- So I don't feel like they represented me in a way where it was for my best interests."

Discernment

1. The evidence did not show that prior to the parties engaging in the mediation, there had been any conversation between the lawyers for the parties about the potential structure for any settlement. The defendant had not provided a copy of any proposed Deed to the plaintiff's lawyers, either before or during the mediation.
2. As well, unlike the factual circumstances in BJP1, there was no evidence that the solicitors in this matter had engaged in a regular practice with respect to the settlement of similar claims, involving the execution of similarly worded Deeds of Release followed by the filing of a Notice of Discontinuance.
3. There is no evidence that the plaintiff's lawyers had discussed with the plaintiff the means by which the claim might be resolved if agreement could be reached about an amount of money which the defendant was prepared to pay to the plaintiff and which the plaintiff would agree to accept.
4. It needs hardly be said that for parties to engage in a court-ordered mediation without having discussed, either prior to, or else at a point during the mediation, the structure and requirements for each party to reach a settlement, is at best unwise, and at worst, may put at risk the success of any mediation. This is particularly so when the litigation arises from claimed historical sexual abuse and parties are known to have differing, and often strong, views about their respective cases and the appropriateness of the parties' conduct prior to and during the litigation.
5. As well, since a court-ordered mediation is conducted pursuant to Part 4 of the Civil Procedure Act, the parties and their lawyers have obligations set out in that Act to, amongst other things, facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56 Civil Procedure Act. If all of the necessary details surrounding the parties' approach to a mediation, such as requiring that any agreement reached is to be concluded by a Deed in a standard form favoured by one party, are not discussed prior to, or else at a mediation, it may be difficult for a Court to be persuaded that each, or any, of the parties have participated in good faith in the mediation as is their duty: s 27 Civil Procedure Act or else that their lawyers have not attended to their obligations in s 56(4) of the Civil Procedure Act.
6. I cannot be satisfied that both sets of solicitors entered upon and negotiated during the mediation with the clear, mutual understanding arising from past dealings that any settlement reached would be given effect to by the plaintiff entering into a Deed.
7. Were the mediation to resolve the plaintiff's claim in a way which fell within the first Masters v Cameron category, there would need to have been a clear understanding between the parties, or their lawyers, arising, at least, from a course of previous conduct or else an unambiguous recognition in the course of the mediation at some time prior to the conclusion of the mediation that an agreement had been finally reached which was binding, and that there would be a further fuller agreement which may be more precise but not different in effect. Such an agreement would ordinarily be signified by the parties signing a document such as a "Heads of Agreement" recording the essential terms of their final agreement and setting out the agreed mechanism for the more formal agreement by, for example, a Deed of Release.
8. There was no evidence here of any mutual understanding from a previous course of dealings nor of any "Heads of Agreement" type documents.
9. In those circumstances, I am not persuaded that this is an agreement which falls within that first category.
10. However, I am satisfied that it was the objective intention of the parties to be bound immediately to an agreement which resolved the plaintiff's claim by the payment by the defendant of $200,000 which sum was inclusive of legal costs, and effect must be given to such intention.
11. The Court recognises that the plaintiff felt he was under pressure to accept the settlement, that he found the mediation to be emotionally distressing and draining, and that he did not feel that his interests were being adequately represented by his own lawyers. However, despite the plaintiff's views on the mediation, the following facts demonstrate that the parties had an objective intention to be immediately bound by an agreement reached at the mediation.
12. The parties attended a mediation which was arranged pursuant to Court orders as part of the Court's case management for claims of the kind which the plaintiff made. As it was a Court ordered mediation, the parties were under a duty to participate in the mediation in good faith, pursuant to s 27 of the Civil Procedure Act. As such, the parties had the purpose of mediating the plaintiff's claim with the intention of resolving the proceedings. Both parties had representatives who were authorised to negotiate on their behalf. The plaintiff was available to give instructions to his lawyers via the AVL connection. This is an important factor in considering whether the parties intended to reach a final and binding agreement at the mediation.
13. The mediation was conducted formally with a mediator who was agreed upon by both parties, and negotiations occurred through the mediator conveying the offers from one party to another. The formality of the communication indicates recognition on both sides that the intention for the afternoon was to reach a final agreement.
14. The language of the offer which was ultimately accepted was expressed with finality. The offer which the plaintiff's representatives put to the mediator to convey to the defendant was expressed as a "final offer". The defendant accepted that offer with an understanding that it was the plaintiff's final and accepted position. There was no language used which would indicate that the settlement agreed upon was not final, or was in any way conditional upon further steps to be taken.
15. After the defendant accepted the offer, the mediator terminated the mediation and emailed the parties stating "This matter resolved at mediation today" with a table of the offers made, including the final offer which was stated as: "$200,000 incl. costs - Final Offer, open until mediation concludes today".
16. I am persuaded by these considerations and the defendant's submissions that the agreement reached at the mediation was intended to be a final and binding agreement.
17. The matters which the plaintiff raised in his evidence and submissions to oppose the relief sought by the defendant concern the plaintiff's interactions with his own representatives and ultimately have not had a bearing on whether there was a final and binding agreement between the parties.
18. It is well established that a solicitor is authorised to reach an agreement to settle proceedings, and that a solicitor has implied authority to enter into agreements with or without reference to their client: Waugh v HB Clifford & Sons Ltd [1982] Ch 374, [1982] 1 All ER 1095; Pavlovic v Universal Music Australia Pty Limited [2015] NSWCA 313 at [137].
19. Throughout the mediation, the defendant was unaware of the plaintiff's reluctance to continue negotiations, desire to proceed to trial, or of the pressure that the plaintiff perceived he was under to reach a settlement. The defendant was not on notice that the plaintiff was under duress.
20. The plaintiff's evidence at its highest shows he thought that he was under undue pressure, which on his view was inappropriate, to accept or make a final offer and reach a settlement. Again, there is no suggestion that the defendant was aware of this. Even if this pressure which the plaintiff felt constituted unconscionable conduct on the part of his representatives, it would not avail the plaintiff in his claim that the settlement between himself and the defendant is not binding.
21. I am persuaded by the defendant that the agreement reached at the mediation was intended to be a final and binding agreement which falls within the fourth category described above at [22]. Judgment will be ordered in favour of the plaintiff and the proceedings will be dismissed.
22. To give effect to this agreement, the appropriate course is to enter judgment for the plaintiff in the agreed sum, and order each party to pay his and its own costs of the proceedings.
23. The defendant sought its costs of this Motion to enforce the agreement. Whilst the defendant has been successful, it did not obtain the relief it originally sought. In my view, the interests of justice are best served by this Court ordering each party to pay his and its own costs of this Amended Notice of Motion.

Orders

1. I make the following orders: 1. Judgment for the plaintiff against the defendant in the amount of $200,000. 2. Order each party to pay his and its own costs of the proceedings, including the Amended Notice of Motion filed on 8 April 2024.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 June 2024