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Ahmed v Chowdhury

Ahmed v Chowdhury

Case [2011] NSWSC 893 10 August 2011

Contract Formation

Compensatory Damages

Appeal

Civil Litigation & Procedure

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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 73
Cases 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 555
Category: 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 Rahman
Representation: 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ahmed v Chowdhury

Details

AGLC: Ahmed v Chowdhury [2011] NSWSC 893
Case: [2011] NSWSC 893
Decision Date: 10 August 2011

CaseChat Overview and Summary

The case of Ahmed v Chowdhury involved a dispute between the plaintiff, Ahmed, and the defendant, Chowdhury, concerning the terms of a compromise agreement reached during litigation. The matter was heard in the Local Court of New South Wales, which has jurisdiction over civil matters involving claims up to $100,000. The primary dispute centred around whether the parties had agreed to a compromise of the proceedings as per section 73 of the Civil Procedure Act 2005. Specifically, the issue was whether the parties had agreed to withdraw the summons and for each party to bear their own costs of the proceedings.

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