Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Taseka v Koutabitsis & Anor [2011] NSWCA 4
• Hearing dates: 31 January 2011
• Decision date: 31 January 2011
• Before: Giles JA

Decision

Declarations made that proceedings had been settled.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: PROCEDURE - civil - whether agreement to settle appeal had been made - jurisdiction to decide - Civil Procedure Act 2005 (NSW), s 73 - jurisdiction of single judge of appeal - Supreme Court Act (NSW), s 46.; CONTRACT - whether agreement to settle appeal had been made - whether settlement was inclusive of costs - against background of preceding course of offers, was inclusive of cost.
• Legislation Cited: Civil Procedure Act 2005, s 73; Supreme Court Act 1970, s 46
• Category: Principal judgment
• Parties: Lena Taseka - Appellant; Catherine Koutabitsis - First Respondent; Angelo Marinos - Second Respondent
• Representation: S Golledge - Appellant; J Drummond - Respondents; A J McInerney - Carneys Lawyers; Anthony J Cordato - Appellant; Prime Lawyers - Respondents; Carneys Lawyers - Applicant on motion
• File Number(s): 2010/44927

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2009-11-20 00:00:00
• Before: Rolfe DCJ
• File Number(s): DC 1603/07; DC 1604/07

1 HIS HONOUR: The applicant is the appellant from orders made against her in the District Court. The appeal is to be heard in about two weeks. By notice of motion filed in the appeal she claims a declaration that the "proceedings," meaning the appeal, have been settled on a certain basis. The respondents do not accept that a settlement on that basis had come about. I have concluded that it did.

2 The first thing is to record the power which I am exercising.

3 This is a motion in the appeal. Pursuant to s 73 of the Civil Procedure Act 2005, if not otherwise according to certain decisions noted in Ritchie , jurisdiction can be exercised to determine the dispute as to settlement of the appeal and make orders to give effect to the determination.

4 Under s 46 of the Supreme Court Act a judge of appeal may exercise the powers of the Court of Appeal "to make any order ... in any appeal ... but not an order or direction involving the determination or decision of the appeal ...": s 46(2)(b). In my view, this enables me to exercise the jurisdiction conferred by s 73 or otherwise existing, since in determining whether or not the appeal has been settled and making an appropriate order I will be making an order in the appeal but not one involving its determination or decision. I will not be determining or deciding the appeal, but simply determining whether or not the parties have resolved the appeal by their settlement.

5 If that be wrong however, I have indicated to the parties that I am prepared to and regard myself as sitting as a Divisional judge, and in global fashion I would direct that all requirements of the Supreme Court Act 1970 and the Rules be dispensed with so far as necessary to enable me to do so without the proceedings actually being transferred to the Equity Division and reformulated so as to have a procedural basis other than the notice of motion filed in the appeal.

6 I go then to the substance of the dispute.

7 The parties' solicitors had exchanged correspondence with a view to settlement over a period up to a letter of 14 July 2010. That letter was an offer by the respondents to settle on payment to them of $400,000, whereupon the appeal would be dismissed with no order as to costs. The offer was not accepted.

8 The negotiations were revived by a letter from the applicant's solicitors dated 29 November 2010. The second paragraph of the letter advised of the applicant's desire to reopen the settlement negotiations "the current status of which is the position that you have outlined in your letter of 14 July 2010." The substance of that letter was then stated, namely, that the respondent's solicitors had advised that the respondents would accept $400,000 in full satisfaction of all judgments and to settle the appeal with no order as to costs. The writer of the letter of 29 November 2010 went on to apportion the make-up of the $400,000 between the two respondents and costs.

9 After some observations intended to indicate the reasonableness of the offer to be made, the applicant's solicitors then said that -

"It is patent that your clients are prepared to enter into settlement and we invite your clients to do so with our client on the following basis:

(1) That our client release to your clients $200,000 from the account, jointly held with St George Bank.

(2) That our client pays a further $50,000 to your clients within one month of acceptance."

10 A time for which the offer would be open was stated. It was later extended by agreement.

11 Then came a letter from the respondent's solicitors dated 7 December 2010, referring to the letter of 29 November 2010 and stating:

"We are instructed to accept the offer contained in the letter. Pursuant to it, the $200,000 in the St George Bank is to be released to our clients and your client will pay a further $50,000 to our clients within one month of acceptance."

12 The exchange of correspondence was followed by a letter from the respondents' solicitors suggesting the preparation of a deed of release, and a subsequent letter in which those solicitors provided a draft deed of release. This came to nothing, and the respondents shortly thereafter went to other solicitors.

13 Counsel for the respondents accepted that a settlement had come about justifying a declaration as claimed in para (2) of the notice of motion, but with one qualification. The declaration claimed was -

"A declaration that these proceedings have been settled on the basis that,

(i) the appellant pay the first and second respondents the sum of $250,000 within one month of acceptance, that is by 7 January 2011;

(ii) the sum be accepted by the first and second respondents in full and final satisfaction of all judgments in the lower court and to settle the appeal, with no order for costs."

14 With respect, the acceptance that there had been a settlement was correct. In my view, it is plain from the exchange of letters, and the fact that thereafter a deed of release was suggested (which is a common course) does not detract from the binding agreement arising from the offer by the letter of 29 November 2010 and the acceptance by the letter of 7 December 2010.

15 The qualification urged on behalf of the respondents was that the settlement did not include "with no order for costs." The respondents submitted that the letter of 29 November 2010 said nothing as to costs, and that likewise nothing was said as to costs in the acceptance. Thus, it was submitted, costs remained in issue between the parties, and had to be either the subject of further agreement or resolved by application to the Court.

16 I do not think that is correct. In accord with the applicant's submissions, in my view the offer by the letter of 29 November 2010 was made against the background of preceding negotiations, specifically the most recent offer in the letter of 14 July 2010 as referred to in the second paragraph of the letter. Those negotiations were concerned with arriving at a money sum to be paid in settlement of the appeal with no order as to costs. The letter of 29 November 2010 proposed a different money sum but, in context, the offer was made on the same basis of no order as to costs.

17 That, it seems to me, obtains some support from the fact that the acceptance did not express any qualification to the effect that costs remained outstanding. It is not necessary to go to the proposal for a deed of release and the deed of release, which included language or a term were to the effect that the settlement was on the basis of no order as to costs. If it were appropriate to do so, further support would be thereby provided.

18 The respondents submitted that there was a large drop from the $400,000 in the offer by the letter of 14 July 2010 to the offer of $250,000, and that that made the offer by the letter of 29 November 2010 a significantly different offer not to be regarded as within the context of no order as to costs because of the large difference in amount. I do not see it that way. It seems to me that the difference in amount was no more than a reflection of the money sum to be injected into negotiations always on the basis of no order as to costs.

19 Accordingly, in my view, the declaration as asked by the applicant should be made.

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Decision last updated: 08 February 2011