ANZ Bank v Ciavarella - [2002] NSWSC 1186

CITATION: ANZ Bank v Ciavarella [2002] NSWSC 1186

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 50036/2001

HEARING DATE(S): 2,3, & 4 December 2002

JUDGMENT DATE: 13 December 2002

PARTIES :

Australia & New Zealand Banking Corporation Group Limited v Anthony Mark Ciavarella & Ors

JUDGMENT OF: Acting Justice Macready at 1

COUNSEL : Ms K. Burke for plaintiff
Mr M. Walton SC & Mr M White for defendants

SOLICITORS: Minter Ellison for plaintiff
Kell Moore Solicitors Pty Ltd for defendants

CATCHWORDS: Contract. Agreement to settle dispute - whether contract concluded. Held concluded contract. - Evidence. Letters forming a contract written after a mediation. Whether the letters are admissible notwithstanding s 15 of the Farm Debt Mediation Act.

LEGISLATION CITED: Farm Debt Mediation Act 1994 ss 11, 15

CASES CITED:
Bell v Mediate Today Pty Ltd (unreported, SCNSW, 29 October 1998)
Geebung Investments Pty Ltd v Varga Group Investments No 8 Pty Ltd (1995) 7 PBR 97578 at 14570
Masters v Cameron (1954) 91 CLR 353
Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd and Ors (1986) 40 NSWLR 622
Niesmann v Collingridge (1921) 29 CLR 177 at 184 and Godecke and anor v Kirwan (1973) 129 CLR 629
BP Refinery (Westernport) Pty Limited v Shire of Hastings (1997) 180 CLR 266
Burger King Corporation v Hungry Jack’s Pty Limited [2001] NSWCA 187
McMahon v State Bank of New South Wales (1990) 8 ACLC 315
Canberra Advance Bank Ltd & Anor v Benny & Ors (1992) 9 ACSR 179
Union Bank v Downes & Anor (1896) 12 WN (NSW) 131
Overlook Management BV v Foxtell Management Pty Ltd (2002) NSWSC 17 paras 62-65
Commonwealth Bank of Australia v Spira (2002) NSWSC 905 paras 137-148
Overlook Management BV v Foxtell Management Pty Ltd (2002) NSWSC 17 paras 62-65, Commonwealth Bank of Australia v Spira (2002) NSWSC 905 paras 137-148.

DECISION: Paragraph 41

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

Acting Justice Macready

Friday 13 December 2002

50036/01 Australia and New Zealand Banking Group Limited v Anthony Mark Ciavarella & Ors

JUDGMENT

1 His Honour: This is the hearing of a claim by the bank for judgment for monies lent by it and recovery of possession of the properties which were subject to mortgages given by the defendants to secure the monies lent. The main matter in dispute concerns the cross-claim brought by the defendants against the plaintiff in which they allege an agreement to compromise the dispute between the parties and a breach by the plaintiff of that agreement.

2 The parties are agreed that the amount owing on 2 December 2002 was the amount of principal, $1,956,142.82, interest $4,097.60 and fees of $1,028.14. In addition there is an amount of $185,570.78 which was claimed by the bank as costs of enforcement pursuant to the mortgage. It is clear that if the defendants fail on the cross-claim then the bank is entitled to judgment for the outstanding principal, interest and…

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.

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Details

Case: [2002] NSWSC 1186
Decision Date: 13 December 2002

CaseChat Overview and Summary

In the matter of ANZ Bank v Ciavarella, the Federal Court of Australia was tasked with determining the enforceability of a settlement agreement between ANZ Bank and Mr Ciavarella. The dispute centred around whether a contract was formed after a mediation process and whether certain letters exchanged between the parties were admissible as evidence under the Farm Debt Mediation Act. The court was required to consider the applicability of section 15 of the Act, which generally prohibits the use of mediation materials in subsequent legal proceedings.

The primary legal issue before the court was whether the letters exchanged between the parties constituted a binding settlement agreement. The court also needed to decide if these letters could be admitted as evidence despite the restrictions imposed by section 15 of the Act. The court considered whether the letters were more than just preparatory steps towards a formal agreement or if they had the requisite intention and formality to be considered a binding contract. The court examined the content and context of the letters to ascertain the parties' intentions and whether they had reached a mutual understanding sufficient to form a contract.

The court concluded that the letters did indeed form a binding contract. It held that the communications between the parties demonstrated a clear intention to be bound by the terms discussed, despite the mediation process. The court further found that the letters were admissible as evidence, despite the provisions of section 15 of the Act, because they were not strictly "mediation materials" but rather correspondence that occurred after the mediation had concluded. The court held that the letters were integral to the subsequent agreement and were not excluded by the legislative intent behind the Act.

The court's final orders reflected its findings, confirming the enforceability of the settlement agreement and allowing the admissibility of the letters in evidence. The court's decision provided clarity on the enforceability of post-mediation communications and the scope of legislative restrictions in such contexts.

Orders