Pilato as liquidator of Energy Services Invironmental Pty Ltd (in liq) v Wallace

1. The defendant pay to the plaintiffs the sum of $60,000 (Settlement Sum) together with interest thereon at a rate of 5.5% per annum for the period between 18 January 2019 and 19 June 2019.
2. The defendant pay the plaintiffs' costs of the proceedings as agreed or assessed incurred after 17 January 2019 insofar as those costs would not have been incurred if the defendant had complied with the terms of the Deed of Settlement.
3. The plaintiffs otherwise have leave to discontinue the proceedings with no order as to costs (save for the costs the subject of Order 2 above).
4. The plaintiffs serve a copy of these orders on the defendant by no later than close of business on 21 June 2019 by way of an email to the email address from which the defendant sent his email on 18 June 2019 at 2.19 pm. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GRIFFITHS J: 1 By an interlocutory application dated 17 May 2019, the plaintiffs seeks to enforce a deed of settlement against the defendant, who is the first defendant in the substantive proceeding. 2 The substantive proceeding was commenced by an originating application filed on 3 April 2018. On 1 October 2018, the parties participated in a mediation before Registrar Lackenby during which they agreed to settle the proceeding on the basis, relevantly, that each of the first and second defendants pay the plaintiffs the sum of $60,000. This agreement is recorded in a Deed of Settlement (Deed) which was signed by the defendant on 3 November 2018. A copy of the Deed is attached to an affidavit dated 30 April 2019 sworn by the plaintiffs' solicitor, Mr Gregory Grunert. 3 Under cll 4.1 and 4.2 of the Deed, each of the first and second defendants was obliged to pay the sum of $60,000 to the plaintiffs, with the due date being 17 January 2019, as defined in cl 1(ii) of the Deed. 4 There is undisputed evidence that the second defendant paid the sum of $60,000 to the plaintiffs' solicitors on or about 17 December 2018. 5 There is also undisputed evidence that on 8 February 2019, the first defendant emailed the plaintiffs' solicitors and advised them that he was unable to comply with his obligations pursuant to the Deed. To date, he has not done so. 6 On 30 April 2019, orders were made by the Court concerning the plaintiffs' desire to enforce the Deed against the defendant. The defendant was ordered to file and serve any evidence and a brief outline of submissions in response and the matter was listed for hearing at 10:15 am on 19 June 2019. The Court's orders dated 30 April 2019 noted that if the defendant wished to participate in the hearing by video link from New Zealand, where he currently resides, he needed to make appropriate arrangements with the Court Registry for that to occur. 7 The plaintiffs filed an interlocutory application dated 17 May 2019 in which they sought to enforce the Deed against the defendant. In accordance with the Court's orders, the plaintiffs filed an affidavit dated 17 May 2019 by their solicitor, Mr Chad Gear, which attached copies of relevant correspondence to and from the defendant. They also filed an affidavit dated 18 June 2019 by Ms Gina Grant, an executive assistant of the solicitors' firm. They filed a brief outline of written submissions. 8 The defendant did not file any evidence in response, nor did he file any submissions in response. By an email dated 18 June 2019, the defendant advised that he would not be attending the hearing. 9 The plaintiffs appeared at the hearing of their interlocutory application through a town agent from SMB Law. 10 The Court is satisfied that the defendant was served with a copy of the plaintiff's interlocutory application, supporting affidavits and outline of submissions and the orders made on 30 April 2019. 11 The Court is satisfied that it has jurisdiction to enforce the terms of the Deed in circumstances where the Deed reflects the parties' compromise of proceedings which were properly commenced by the plaintiffs in this Court (see A G Cowley Holdings Pty Ltd v Central City Pty Ltd [2010] FCA 199; 183 FCR 102 per Barker J). The Court is satisfied that the defendant is in default of the Deed. 12 The Court also accepts that, but for the defendant's default of the terms of the Deed, the plaintiffs would not have incurred the costs of the interlocutory application. In those circumstances, the defendant should pay the plaintiffs' costs of the proceedings incurred after 17 January 2019 as those costs would not have been incurred if the defendant had complied with the terms of the Deed. 13 The defendant should also pay interest on the settlement sum of $60,000 at the rate of 5.5 per cent per annum from 18 January 2019 to 19 June 2019. 14 For these reasons the Court will make orders in the terms sought by the plaintiffs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.