Baptist v Lang
[2021] VCC 29
•2 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-18-00735
| RONALD BAPTIST and EILEEN BAPTIST | Plaintiffs/Defendants by Counterclaim |
| V | |
| JOHN LANG | First Defendant/First Plaintiff by Counterclaim |
| And | |
| PATRICIA PERCY | Second Defendant/Second Plaintiff by Counterclaim |
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JUDGE: | HER HONOUR JUDGE A RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | On the papers | |
DATE OF RULING: | 2 February 2021 | |
CASE MAY BE CITED AS: | Baptist & Anor v Lang & Anor | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 29 | |
REASONS FOR RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Summary procedure to enforce terms of settlement – discretion of court – terms said to be ambiguous – whether summary enforcement appropriate.
Legislation Cited: Civil Procedure Act 2010
Cases Cited:Roberts v Gippsland Agricultural & Earthmoving Contracting Co Pty Ltd [1956] VLR 555; Barratt v Rees [2014] VSCA 327; Seachange Management Pty Ltd v Pital Business Pty Ltd (2009) 23 VR 396
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr M J Hoyne | Pointon Partners |
| For the Defendants | Mr N O J Cozens | Mills Oakley |
HER HONOUR:
1By summons filed 19 June 2019, the plaintiffs sought an order for specific performance of Terms of Settlement (“the Terms”)[1] entered into between the parties dated 6 September 2018. The application was made under what is described as the Roberts[2] jurisdiction, whereby a court may order enforcement of terms of settlement in a summary fashion.
[1]The Terms are set out in exhibit “AWK-4” to the affidavit of Andrew Walter Kaspen sworn 19 June 2019.
[2]Roberts v Gippsland Agricultural and Earthmoving Contracting Co Pty Ltd [1956] VLR 555 at 562-563 (Smith J).
Background
2This proceeding involves a fencing dispute and like so many of these cases, has a lamentable and acrimonious history. It was commenced by way of writ dated 26 February 2018. The plaintiffs and defendants own neighbouring properties situated at 606 Nepean Highway, Bonbeach, Victoria.[3] The plaintiffs alleged the defendants had constructed various works which encroached inside the title boundary of the plaintiffs’ land. These encroachments are set out in paragraph 3 of the amended statement of claim dated 9 May 2018. It was further alleged that the defendants had refused or failed to remove the encroachments, which gave rise to an actionable trespass and or nuisance.
[3]The plaintiffs own unit 4, 606 Nepean Highway, Bonbeach, Victoria, being the whole of the land comprised in Certificate of Title Volume 10146 Folio 537; the defendants own unit 3, 606 Nepean Highway, Bonbeach, Victoria, being the whole of the land comprised in Certificate of Title Volume 10146 Folio.
3The defendants filed an amended defence and counterclaim dated 6 June 2018 raising various defences and counterclaiming for adverse possession.
4The matter was resolved at a mediation on 6 September 2018 before Mr Carey Nicol of counsel. The parties signed the Terms. Both parties were represented by solicitors and counsel at the mediation. The Terms provided for, among other things, the removal of the encroachments, a surveyor to be engaged to determine the precise location of the paper title boundary, and the construction of a new paling fence on the paper title boundary. The necessary steps under the Terms were expected to be completed by 22 January 2019.[4]
[4]Affidavit of Andrew Walter Kaspen sworn 19 June 2019 at paragraph 12.
5The operative Terms are as follows:
“1. Terms used in this document have the same meaning as those used in the pleadings in the proceeding unless the context requires otherwise.
2. The parties agree that they will jointly instruct a licensed surveyor to determine the correct location of the boundary (the title boundary).
3. The parties agree that a paling fence will be constructed on the title boundary and that such fence will be of a standard paling fence construction the same height as the existing fence, save that adjacent to the landing area at the bottom of the stairs on the Plaintiffs’ land, the fence will be a height of 2 metres. The palings to face Unit 3. Such fence is to be constructed within 90 days of the determination of the boundary by the licensed surveyor in accordance with clause 2.
4. The encroachments on the Plaintiffs’ land are to be removed within 60 days of receipt of the determination of the boundary by the licensed surveyor in accordance with clause 2.
5. The parties agree to jointly meet the costs of the licensed surveyor, the fencing contractor and the removal of the encroachments save that such costs are only those costs incurred to third parties.
6. In the event that the parties are unable to agree on the identity of:
a. the licensed surveyor referred to in paragraph 2 within 30 days of these Terms, the surveyor will be nominated by the president of the Institution of Surveyors Victoria;
b. the fencing contractor within 60 days of these Terms, the fencing contractor will be nominated by Carey Nicol or a person nominated by Carey Nicol; or
c. the contractor to carry out the removal of the encroachments within 60 days of these Terms, such contractor will be nominated by Carey Nicol or a person nominated by Carey Nicol;
and the parties will equally bear the costs of such nomination or nominations.
7. The parties agree to use their best endeavours to have the matters set out in the Terms dealt with as quickly as possible.
8. Subject to compliance with the matters set out in paragraphs 2, 3 and 4, the parties agree to release and forever discharge each other party from any claim, costs, damages or loss incurred or arising out of or in relation to the matters which are the subject matter of the proceeding.
9. The parties agree to an order that the proceeding be struck out with a right of reinstatement with no order as to costs. These Terms of Settlement are the whole agreement between the parties and no party has relied up any representation but has formed its own determination in agreeing to these Terms of Settlement.”
6In accordance with clause 2 of the Terms, the parties jointly appointed and instructed Steve Palmer Surveyors to determine the location of the paper title boundary.[5] On 24 October 2018, the surveyors completed a determination as to the position of the proper boundary.[6] The parties accepted this determination.[7]
[5]Affidavit of Andrew Walter Kaspen sworn 19 June 2019 at paragraph 16.
[6]Page 15 of exhibit “AWK-5” to the affidavit of Andrew Walter Kaspen sworn 19 June 2019.
[7]Affidavit of John Vincent Lang sworn 18 July 2019 at paragraph 6.
7The parties were initially unable to agree on a contractor to undertake the building works to construct a new paling fence. Pursuant to clause 6(b) of the Terms, Mr Nicol nominated Mr Ken Ryan, a building consultant to appoint a contractor. Mr Ryan nominated LJH Landscaping and Paving Pty Ltd (“LJH”) to carry out the works.[8] The defendants were initially unhappy with the selection of this contractor who had been the plaintiffs’ proposed contractor but subsequently accepted the appointment on 14 May 2019, albeit reluctantly.[9]
[8]This was done on 11 April 2019, see the affidavit of Andrew Walter Kaspen sworn 19 June 2019 at paragraph 26.
[9]Affidavit of Andrew Walter Kaspen sworn 19 June 2019 at paragraph 31; affidavit of John Vincent Lang sworn 18 July 2019 at paragraph 7.
8LJH had provided a quote for “Boundary Re-establishment and Construction work at the above-mentioned address” dated 16 January 2019 as part of the process to select a contractor to perform the works (“LJH Quote”).[10] The LJH Quote provides for a number of works, including the construction of an approximately 2.5 metre “retaining wall” and the “removal of all soil etc to be cleared from Unit 3 [the defendants’] side to make way”. The back gardens of the properties slope down to a waterfront aspect at ground level. The paling fence will need to be constructed on three levels.[11] The dispute is regarding the lowest section of fencing to be constructed.[12] The lowest section of fencing on the plaintiffs’ side of the boundary has a stairwell area that leads to the waterfront. The approximate 2.5 metre “retaining wall” proposed is to be constructed along the plaintiffs’ stairwell. The “retaining wall” to be constructed is to replace a “return wall” built by the plaintiffs along their stairwell some years ago.[13] This return wall is on the plaintiffs’ land, inside the boundary of their property.[14] Soil has built up against the return wall which needs to be removed according to the LJH Quote.
[10]Pages 90-94 of exhibit “AWK-5” to the affidavit of Andrew Walter Kaspen.
[11]T8.14 and ff.
[12]T8.23–T9.9; for pictures see exhibit “JVL-1” to the affidavit of John Vincent Lang sworn 18 July 2019.
[13]Plaintiffs’ submissions dated 18 July 2019 at [8].
[14]Ibid.
9The plaintiffs propose that clause 3 of the Terms ought to be performed in accordance with the LJH Quote.[15] They desire the removal of their return wall, as well as the removal of built-up soil on their property, and for this to be replaced with a retaining wall along the paper title boundary with the paling fence constructed on top of the retaining wall.[16] The plaintiffs want to install a stairlift in their stairwell. At present, the stairwell is not wide enough to accommodate a stairlift. The solicitor for the plaintiffs deposes that were the return wall removed and a retaining wall constructed on the boundary line, there would be sufficient space for a stairlift. The stairlift would be affixed to the retaining wall. The plaintiffs also express concern that their return wall was not constructed to act as a retaining wall and were it to remain in place, there is a risk that the return wall could collapse due to the weight of the soil pressing against it.[17]
[15]Order 3 of proposed minute of order filed on behalf of the plaintiffs dated 22 July 2019.
[16]Affidavit of Andrew Walter Kaspen sworn 19 July 2019 at paragraph 4.
[17]Ibid at paragraph 5.
10The defendants object to the construction of any retaining wall and the removal of soil (save for that which is needed to be removed to sink paling fence posts in for the construction of the fence).[18] The defendants propose the paling fence be built on top of the soil on the title boundary.[19] The plaintiffs submit this means their return wall could not be removed and a stairlift could not be installed.[20] The defendants are concerned that any excavation of soil for a retaining wall could damage their property.[21] The defendants refused LJH access to their land to perform the building works on 3 June 2019 due to their concerns that the works proposed went beyond what had been agreed.[22]
[18]Defendants’ submissions dated 18 July 2019 paragraph’s [7]–[15].
[19]T9.6-9.
[20]Affidavit of Andrew Walter Kaspen sworn 19 July 2019 at paragraph 6.
[21] Affidavit of John Vincent Lang sworn 18 July 2019 at paragraphs 15 & 26–36.
[22]Affidavit of Andrew Walter Kaspen sworn 19 June 2019 at paragraph 41; plaintiffs’ submissions dated 18 July 2019 at [7].
11At the time the plaintiffs’ summons was filed, some of the encroachments remained in place and the defendants continued to refuse to allow LJH onto their property to commence construction of the paling fence in accordance with the LJH Quote.[23]
[23]Affidavit of Andrew Walter Kaspen sworn 19 June 2019 at paragraph 13; affidavit of John Vincent Lang sworn 18 July 2019 at paragraph 14.
12The plaintiffs’ summons came before me sitting as Duty Judge on 19 July 2019. At the hearing, the plaintiffs relied upon two affidavits of Andrew Walter Kaspen, the plaintiffs’ solicitor, sworn 19 June and 19 July 2019, and an outline of submissions dated 18 July 2019. The defendants relied upon an affidavit of John Vincent Lang sworn 18 July 2019, an affidavit of Edwin Adrian Fah sworn 18 July 2019, and an outline of submissions dated 18 July 2019.
13During the submissions made, plaintiffs’ counsel accepted that the form of the order in the summons seeking specific performance should be further refined. Having regard to the fact that such an order must be framed with some particularity so as to enable the defendants to know exactly what has to be done in order to comply, it was agreed the plaintiffs would submit a form of order which would define with more clarity the precise order sought by way of specific performance.
14Counsel for the defendants submitted that the application could be dealt with purely as a matter of construction. But if the Court were to permit extrinsic evidence to be considered, then the defendants would wish to have an opportunity to respond to the affidavit of Mr Kaspen sworn 19 July 2019. The defendants had not had an opportunity to do so given this affidavit was only produced during the hearing. I directed this was a matter that was appropriate to be referred to a judicial resolution conference.
15I made the following orders on 19 July 2019 (“the Orders”):
(a) The plaintiffs file and serve a precise minute of proposed order sought for specific performance for the terms of settlement dated 6 September 2018, being exhibit “AWK-4” to the affidavit of Andrew Kaspen, sworn 19 June 2019, by 4:00pm on 22 July 2019.
(b) The defendants have leave to file and serve by 4:00pm on 5 August 2019 any affidavit material in response to the affidavit of Andrew Kaspen sworn 19 July 2019, and a written submission in response to the proposed minute referred to in order 1 above.
(c) The proceeding is listed for a Judicial Resolution conference before a Judicial Registrar on 29 July 2019 at 10:30am.
16Pursuant to the Orders, the defendants filed and served a further affidavit of John Vincent Lang sworn 5 August 2019, a further affidavit of Edwin Adrian Fah sworn 5 August 2019, and written submissions dated 5 August 2019. The plaintiffs object to certain material contained within the Fah affidavit and the submissions on the basis that some of the content was not within the scope of the leave that was granted pursuant to Order 2 of the Orders. The plaintiffs also submitted that the second affidavit of Mr Fah contained references to negotiations between parties since the date of the hearing which was neither appropriate nor relevant.[24] I have not had regard to the second affidavit of Mr Fah when considering this application. The negotiations held to try and settle the matter after 19 July have no bearing on the issues I must decide in this application. Such offers and refusals may become pertinent at some later stage on the question of costs if they are said to amount to Calderbank offers.
[24]Plaintiffs’ submissions dated 20 April 2020 at [2]–[11].
17The judicial resolution conference was conducted on 29 July 2019 before Judicial Registrar Burchell. The conference was adjourned, several times, to enable the parties to finalise further terms of settlement. The conference resumed on 24 March 2020. Regrettably, the matter failed to resolve. Judicial Registrar Burchell made orders on 24 March 2020 allowing parties to file and serve additional material. Pursuant to these orders, the plaintiffs filed further written submissions dated 20 April 2020 and the defendants filed further written submissions dated 23 April 2020.
18The matter was subsequently referred to me for determination on the papers.
Applicable principles – enforcement of Terms of Settlement
19The plaintiffs’ summons invokes the recognised jurisdiction of a court to enforce terms of settlement summarily.
20This procedure was explained by Smith J in Roberts v Gippsland Agricultural & Earthmoving Contracting Co Pty Ltd [1956] VLR 555 (“Roberts”). The principles which Smith J identified were adopted with approval by the Court of Appeal in Barratt v Rees [2014] VSCA 327 as follows:
“12.The summary procedure to enforce terms of settlement was described in detail by Smith J in Roberts v Gippsland Agricultural & Earth Moving Contracting Co Pty Ltd. His Honour identified ‘certain rather vaguely defined rules of practice’, including:
(a) The Court would ordinarily leave a party to proceed by separate bill if the agreement involved matters extraneous to the suit compromised. And it regarded an agreement as falling within this general category, (i) if it dealt with property as to which no question was raised in the suit, or (ii) if it provided for things to be done which went beyond the ordinary range of what the Court would order in such a suit, or (iii) if its enforcement involved giving effect to equities of a different nature from those involved in the suit, or (iv) if there were parties to the agreement who were not parties to the suit.
(b) On the other hand in cases not falling within this first general category the Court would ordinarily enforce the agreement in the suit compromised. In particular this was so if the agreement related solely to the conduct or prosecution of that suit, or to the staying or dismissal thereof, or to the granting of the whole or part of the relief claimed therein or to the doing of that which the suit was brought to enforce.
(c) For the purpose of deciding which of these two general categories a case fell within, the Court did not look merely at the particular obligations sought to be enforced. It looked also at the obligations of the applicant, so far as justice required that the application should not be granted without ensuring that they too would be performed. But it would disregard altogether obligations already fully performed. It may be observed that in order to ensure the performance of obligations by the applicant the Court could make an order conditional upon such performance.
(d) If there was a substantial question to be determined as to what were the terms of the agreement, or as to whether it was valid or specifically enforceable, as for example where a substantial case was put forward of material mistake or of other circumstances such as would afford a defence to a suit for specific performance, a party would ordinarily be left to proceed by separate bill so that the matters raised might be fully investigated.
(e) The fact that the only outstanding obligation under the agreement of compromise was one for the payment of an ascertained sum of money did not preclude the Court from enforcing the agreement in the suit.
13.His Honour also stated:
‘In deciding whether justice can be done under the summary procedure the Court, of course, needs to consider a variety of matters involving questions of degree. These, I think, must include the extent to which extraneous matters are involved, how substantial are the questions to be determined, to what extent questions of credibility are likely to arise, and whether pleadings and discovery may be desirable.’
14.The authorities were also considered in Seachange Management Pty Ltd v Pital Business Pty Ltd[25], where Maxwell P and Nettle JA stated:
‘In summary, therefore, the net effect of the authorities to this point seems to be that, although the power summarily to enforce a compromise is discretionary and is wider now than once was the case, it is not to be invoked unless the court is “clearly satisfied that justice can be done”; and whether justice can be done is a question of degree. Consistently with the equitable origins of the power, one must weigh among other competing considerations the extent to which enforcement would involve extraneous matters, how substantial the questions to be determined as a precursor to enforcement may be, and procedural considerations like the desirability of pleadings and discovery and substantial cross-examination.’
15.Their Honours accepted that the decision whether to allow the use of the summary procedure involved the exercise of a discretion. The mere fact that the appeal court might take a different view from that of the judge below is not a ground of appellate intervention.”
[25](2009) 23 VR 396.
21The principle that emerges is that the court retains a discretion to enforce terms of settlement summarily, but this remedy should not be invoked unless the Court is satisfied that justice can be done, which is a question of degree. Most pertinently for the purposes of this application, the comments of Smith J in Roberts at sub-paragraph 12(d) above are apposite. As will be seen from the submissions made by the parties set out below, there does appear to be a substantial question to be determined as to whether the terms are ambiguous, whether they can be enforced specifically and whether there is a defence available which would preclude an order for specific performance. As noted, this would ordinarily mean that a party would have to proceed by way of a separate proceeding so that the matters raised could be fully investigated.
Plaintiffs’ contentions
22Counsel for the plaintiffs noted that both parties were agreed that the Roberts jurisdiction could be invoked. He conceded that there was some ambiguity on the precise issue in dispute but argued the plaintiffs’ construction should be preferred.
23The dispute in question related to the depth of the fence. There was an agreement to the height, but the dispute arose in an area at the bottom of the stairs. In the middle section depicted in the sketch at Exhibit AWK-5 (page 57 of the exhibits bundle) of Mr Kaspen’s first affidavit, the plaintiffs contend that the fence should go to the bottom of where the stairs are, whereas the defendants says the paling fence should be installed on top of the existing soil. It was accepted that the Terms did not expressly deal with this issue and, to that extent, the plaintiffs say there is some ambiguity. However, it was up to the contractor, LJH, to determine how the outcome was to be achieved, even though the Terms did not specifically provide for it.
24The plaintiffs referred to Exhibit AWK-6 to Mr Kaspen’s first affidavit, which is a bundle of photographs and depicts the plaintiffs’ return wall. Soil from the defendants’ property presses up against the return wall. The plaintiffs say this needs to be removed so the paling fence can be installed. To do this, it is necessary to remove the soil and a portion of the defendants’ retaining wall. Whether it was necessary for a permit to be obtained or not was irrelevant and that was a matter for the contractor to work out.
25Counsel for the plaintiffs referred to Mr Lang’s first affidavit, which referred to the excavation of soil on page 5. This concerned the issue of whether the soil had to be removed or whether the fence could be built on top of the soil. It was submitted that when the Terms were entered into, there were discussions about the plaintiffs’ desire to have sufficient space to put a stairlift in the area where the steps are situated.
26The plaintiffs’ case is that it is up to the contractor to decide how the fence will be built, that the defendants’ construction is contrary to the discussion held between the parties previously and the Terms themselves. It is argued the defendants’ construction makes no sense and the plaintiffs’ return wall should not have to operate as a retaining wall and it was not obliged to do so. Given the Terms are ambiguous on this point, extrinsic evidence can be led because the Terms only say where the top of the fence can be built, as opposed to the bottom of the fence.
Defendants’ contentions
27The defendants’ stance is that the Terms do not oblige any construction of any retaining wall or excavation at all. In effect, the works proposed by LJH went beyond the Terms and were not matters which were contained in the Terms. There was no objection by the defendants to excavation of soil which would be necessary to sink ordinary paling fence posts, but the defendants were concerned about any potential damage to their property if substantial soil was removed and they did not consent to the construction of a retaining wall of 2.5 metres.
28The Terms only oblige the parties to appoint a contractor to construct a paling fence and remove encroachments. It cannot be said that the building of 2.51 metres of a retaining wall and the removal of soil to be cleared from Unit 3’s side to make way for such a retaining wall was agreed by the Terms as is provided for in the LJH Quote. The defendants pointed to the fact that Mr Kaspen conceded in his affidavit at paragraph 32 that the Terms did not provide for the construction of any retaining wall. In short, the defendants argue that the matters which the plaintiffs now seek are simply matters which are not covered by the Terms.
29The defendants relied upon the entire agreement clause and said that the plaintiffs could not go beyond the Terms.
30The defendants’ position is that:
(a) no retaining wall was ever agreed upon;
(b) they never agreed to removal of soil from their land;
(c) such soil was never a defined encroachment;
(d) there was no reference to removal of soil on their land or construction of a retaining wall in the Terms for the reason that those matters were not agreed; and
(e) the contractor has misdirected itself as to the scope of work that is required of it.
31In the submissions filed in response to the Minute of Order provided by the plaintiffs after the hearing, the defendants said as follows:
(a) that the minute was prepared after the Terms;
(b) the contents of which were never agreed between the parties;
(c) was prepared with that input from the plaintiffs which the defendants say go well beyond the Terms;
(d) it cannot be said to be incorporated into the Terms by reference, either specifically or generally, because no such quote is referred to in the Terms; and
(e) it has no contractual force whatsoever and therefore is not properly the subject of an order for specific performance.
32The defendants noted that counsel for the plaintiffs had argued the Terms were ambiguous and that extrinsic evidence as to the parties’ knowledge was therefore admissible for the purposes of interpreting the Terms. The defendants say there is no ambiguity in the Terms, and they remain ready, willing and able to permit access to the land for the construction of the paling fence, as agreed.
33The defendants noted, as matters presently stand, there are factual controversies about precisely what was said between the parties prior to entering into the Terms. Mr Kaspen gives one version in his second affidavit, whereas a different account is given on behalf of the defendants in the second affidavit of Mr Lang, sworn 5 August 2019. He recalls the topic of a stairlift being mentioned but not any discussion about the removal of the plaintiffs’ return wall. Had the matter been raised, Mr Lang says he would not have agreed to settle. The defendants argue the Court is not able to know what extrinsic evidence to prefer until all the evidence is tested at trial. Additionally, if ambiguity is to be relied upon as a basis for an order for specific performance, it must be properly pleaded and proven at a trial and full particulars of the defendants’ alleged knowledge must be given. The other matter pointed to by the defendants is that a Court will not ordinarily order specific performance of a contract to erect or repair buildings.
Analysis
34It is undisputed that the Terms do not refer to the construction of a retaining wall, nor to the evacuation of soil on the defendants’ property to enable that to occur. All that the Terms do in respect of the fence is to say that a paling fence will be constructed, and the height of the fence is then specified. There are no prescriptive guidelines in the Terms as to the way in which the fence is to be constructed other than its height. There is no reference to the depth of the proposed paling fence. There is no clause expressly saying that the parties will abide by the fencing method to be determined by a fencing contractor. The difficulty that has arisen is that the contractor has decided a retaining wall of 2.5 metres should be constructed and the removal of soil, but self-evidently, this is not a matter which is addressed in the Terms. The defendants object to the construction of such a wall and the removal of soil on their premises other than soil that would ordinarily be removed to enable concrete posts to be installed to support a paling fence.
35The plaintiffs are seeking to enforce compliance of the Terms in respect of matters which were not expressly stated. The plaintiffs, to succeed, will need to establish there is an ambiguity in the Terms which should be resolved in their favour. The parties have filed affidavits in respect of this issue which contradict the other. The defendants contend there is no ambiguity and the application must therefore fail. Additionally, the defendants contend that the application should not be permitted because it may require ongoing supervision of the Court, which provides a basis for refusing an order for specific performance.
36As can be seen from the principles relating to these types of applications, if there are extraneous matters such as disputed questions of facts, then the Court, in the exercise of its discretion, may determine that rather than disposing of the matter summarily, it should proceed to a trial.
37Whilst it is regrettable that the matter cannot be resolved summarily, I am not persuaded that it is in the interests of justice that I should now order summary judgment as is sought by the plaintiffs. In circumstances where there are arguments raised as to:
(a) the construction of the Terms;
(b) an alleged ambiguity in the Terms and if so, whether extrinsic evidence of discussions held prior to the entry into the Terms should be permitted to resolve any alleged ambiguity;
(c) whether an order for specific performance should nevertheless not be made due to the possibility of ongoing supervision by the Court.
I am of the view that such matters can only be dealt with fully at a trial. To that end, it would be necessary for the plaintiffs to plead their case as to the construction of the Terms they contend for and for the defendants to be able to respond. Witnesses will no doubt need to be called and cross examined as to the discussions that occurred, including potentially, the counsel who appeared at the original mediation.
38Given these matters, I decline to order summary judgment. I will, however, reinstate the proceeding and refer the matter to a Judicial Registrar for directions as to the future conduct of the matter. This will include directions as to the filing and service of pleadings, together with any further interlocutory steps that may be required in setting the matter down for trial. Whilst the parties have shown a consistent and unedifying inability to resolve their differences and appear to pay scant regard to their obligations under the Civil Procedure Act 2010 to resolve matters in a timely and less costly fashion, I will also direct that the matter be listed for a further judicial resolution conference in the vain hope that the matter might still be capable of resolution. It goes without saying that the costs incurred to date must be considerable, in addition to the angst and distress suffered by the parties in this ongoing and seemingly intractable dispute. It should also be noted that the cost of the LJH Quote for the works is $7,645.00, which the parties were to share equally. If this matter continues further, consideration should be given to transferring this proceeding to the Magistrates’ Court, given the small quantum involved.
39Unless either of the parties seek to persuade me otherwise, I will order that the costs of the application be costs in the cause, being the usual order made in applications for summary judgment where the application is not granted. The effect of such an order is the costs of this application will be recovered by the party who is ultimately successful in the reinstated proceeding.
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Certificate
I certify that these 15 pages are a true copy of the Reasons for Ruling of Her Honour Judge A Ryan delivered on 2 February 2021.
Dated: 2 February 2021
Associate to Her Honour Judge A Ryan
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