Supreme Court
New South Wales
Medium Neutral Citation: Kabir Ahmed & Ors v Ayubur Rahman Chowdhury & Ors [2011] NSWSC 893 Hearing dates: 1,5 and 9 August 2011 Decision date: 10 August 2011 Jurisdiction: Equity Division - Duty List Before: Slattery J Decision: 1. Dismiss prayers for relief 1 and 2 of the Motion.
2. Reserve for any necessary further argument the costs of the motion and the claims in prayers for relief 3, 4 and 5 of the Motion.
3. Direct the parties to contact my Associate to fix a suitable date for any further argument on the motion and directions in the proceedings.
Catchwords: CONTRACTS - Compromise of proceedings -Civil Procedure Act 2005, s 73 - whether parties agreed to withdrawal of Summons and for each to bear their own costs of the proceedings HELD: No compromise agreed. Legislation Cited: Associations Incorporation Act 2009, s 26(3).
Civil Procedure Act 2005, s 73Cases Cited: Carruthers v Newen (1903) 1 Ch 812
Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510
Phillips v Walsh (1990) 20 NSWLR 206
Roberts v Gippsland Agriculture & Earth Moving Contracting Co Pty Ltd [1956] VLR 555Category: Separate question Parties: First Plaintiff/Respondent- Kabir Ahmed
Second Plaintiff/Respondent- Saiful Islam Chowdhury
Third Plaintiff/Respondent- Iftikhar Uddin
Fourth Plaintiff/Respondent- Fazlur Rahman
First Defendant/Applicant- Ayubur Rahman Chowdhury
Second Defendant/Applicant- Moshiur Rahman Redoy Sheikh
Third Defendant/Applicant- Harun Rachid Azad
Fourth Defendant/Applicant- Motiur RahmanRepresentation: Plaintiffs/Respondents- n/a
Defendants/Applicants- M. Condon
Plaintiffs/Respondents- R. Mitry, Mitry Lawyers
Defendants/Applicants- B. Barrack, Barrak Lawyers
File Number(s): 2011/173388 Publication restriction: No
Judgment
The defendants contend that these proceedings were settled on 19 June 2011. The plaintiffs dispute this. Civil Procedure Act 2005, s 73 provides a convenient procedure to decide this question by motion within the proceedings.
The parties are members of an incorporated association, The Bangladesh Islamic Centre of N.S.W Inc ("the Association"). They came to the Equity Duty List on 1 August 2011, seeking a hearing and decision on this issue by 10 August 2011, so they could hold an annual general meeting by 31 August 2011 in conformity with the requirements of the Association's constitution and the Associations Incorporation Act , 2009. To accommodate this timetable the matter was heard in the duty list on Friday, 5 and Tuesday, 9 August 2011. On 10 August 2011 I made orders dismissing the defendants' motion seeking to give effect to the alleged compromise. This judgment sets out my reasons for those orders.
Mr Condon of counsel represented the defendants, the applicants on the motion. Mr Mitry, solicitor represented the plaintiffs, the respondents on the motion.
Jurisdiction
Before the enactment of Civil Procedure Act, s 73 there were different judicial views as to whether an alleged settlement of proceedings could be enforced by motion in the proceedings or whether a separate action needed to be commenced: Phillips v Walsh (1990) 20 NSWLR 206 at 210 and Roberts v Gippsland Agriculture & Earth Moving Contracting Co Pty Ltd [1956] VLR 555 at 557-562-7…
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- AGLC
- Ahmed v Chowdhury [2011] NSWSC 893
- Case
- [2011] NSWSC 893
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the communications between the parties amounted to a valid compromise agreement. The plaintiff argued that the parties had agreed to a compromise, while the defendant contended that no such agreement had been reached. The court examined the correspondence between the parties to ascertain if there was a clear and unequivocal agreement to withdraw the summons and bear their own costs. The court considered the language used, the context in which it was used, and the intention of the parties.
In its decision, the court found that the communications between the parties did not constitute a clear and unequivocal agreement to compromise the proceedings. The court held that there was no evidence of an intention to reach a compromise as required by the Civil Procedure Act 2005. Consequently, the court ruled that the defendant's application to enforce the alleged compromise was dismissed. The court did not find any basis to order that the summons be withdrawn or that the parties bear their own costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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