O'Brien v O'Brien & Nicholls Pty Ltd and Ors [2001] VSC 411

The plaintiffs conceded that the terms of settlement were clear on their face and that there was no deficiency in the parties' expression of their intended agreement. Rather, the plaintiffs submitted that the determination of the accountant was tantamount to imposing an implied term into the terms of settlement that Fourth Taljan was obliged to share in any loss of the company. The plaintiffs relied upon the relevant authorities in relation to the parole evidence and extrinsic evidence rules: see Codelfa Construction Pty Ltd v State Railway Authority of New South Wales ; ; Schuler (L.)A.G. v Wickman Machine Tools Sales Limited ; , 261; Allen v Carbone ; , 531; also, BP Refinery (Western Port) Pty Ltd v Hastings Shire Council ; , at 26.

Turning to the second issue, namely, jurisdiction, the courts have contemplated the question of jurisdiction where a proceeding has been struck out and a party wishes to reinstate the proceeding either to enforce or to ventilate issues arising from terms of settlement: see Roberts v Gippsland Agricultural, supra, 562ff. As the consent order in this matter was one that struck out the proceeding reserving a right of reinstatement it differs somewhat from the more absolute circumstances of a consent order for dismissal or striking out without qualification: see Green v Rozen (1955) 2 All ER 797; Roberts v Gippsland Agricultural, supra, 565; Law v Law (1905) 1 Ch 140, 158 CA; Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529, 539; Palmdale Insurance Limited (in liq) v L. Grollo and Co Pty Ltd [1987] VicRp 34; (1987) VR 396, 397-399. Nevertheless, whilst there is a discretion to reinstate the proceeding such discretion should be exercised judicially and only if the court is satisfied that the circumstances warrant reinstatement: see In Re Swire 30 Ch D 239, 243; Ainsworth v Wilding (1896) 1 Ch 673, 678.

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