Carter v Sheffield Estates Pty Ltd Trading as TimeConti Sheffield
[2012] FMCA 986
•29 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CARTER v SHEFFIELD ESTATES PTY LTD TRADING AS TIMECONTI SHEFFIELD & ANOR | [2012] FMCA 986 |
| CONSUMER LAW – Terms of deed of settlement – monies paid to applicant under deed of settlement – applicant failed to sign minute of consent order agreed in deed of settlement – whether order to be made in terms of minute of consent order in deed of settlement. |
| Trade Practices Act 1974 (Cth) |
| Applicant: | KERRIN LAURA CARTER |
| First Respondent: | SHEFFIELD ESTATES PTY LTD TRADING AS TIMECONTI SHEFFIELD |
| Second Respondent: | YOUSEF HASAN SALHAH |
| File Number: | PEG 99 of 2010 |
| Judgment of: | Lucev FM |
| Hearing date: | 29 October 2012 |
| Date of Last Submission: | 29 October 2012 |
| Delivered at: | Perth |
| Delivered on: | 29 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | No appearance |
| Counsel for the First Respondent: | Mr C Sweeney |
| Solicitors for the First Respondent: | McCallum Donovan Sweeney |
| The Second Respondent: | No appearance |
ORDERS
Order 2 of the Court’s orders of 30 July 2010 that the Second Respondent take no steps directly or by his agent or otherwise, to effect the removal of the Applicant from the premises at 17 Cyane Way, Currambine, Western Australia without an order of the Court permitting that removal be discharged.
The action be dismissed.
All parties pay their own costs of the action.
Any costs orders that have been made in favour of any of the parties be vacated.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 99 of 2010
| KERRIN LAURA CARTER |
Applicant
And
| SHEFFIELD ESTATES PTY LTD TRADING AS TIMECONTI SHEFFIELD |
First Respondent
| YOUSEF HASAN SALHAH |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore reasons)
The applicant, Ms Carter, alleges that the respondents, a real estate agent – Sheffield Estates Pty Ltd Trading As TimeConti Sheffield[1] – and the owner of premises rented by Ms Carter – Mr Salhah, have engaged in misleading and deceptive conduct contrary to a number of sections of the Trade Practices Act 1974 (Cth)[2] in relation to her rental of a property owned by Mr Salhah and managed by TimeConti Sheffield.
[1] “TimeConti Sheffield”.
[2] “TP Act”.
Before the Court today is an application in a case by TimeConti Sheffield. The orders sought are as follows:
1.Order 2 of this Honourable Court’s orders of 30 July 2010 that the second respondent take no steps directly, or by his agent or otherwise, to effect the removal of the applicant from the premises at 17 Cyane Way, Currambine, Western Australia, without an order of this Honourable Court permitting that removal be discharged.
2.The action be dismissed.
3.All parties pay their own costs of the action.
4.Any costs orders that have been made in favour of any of the parties be vacated.
The facts giving rise to the present application in a case are as follows:
a)a mediation took place on 17 October 2011 in this Court;
b)Ms Carter was represented pro bono by two barristers, neither of whom are presently on the record;
c)subsequent to the mediation conference TimeConti Sheffield’s solicitor dealt with one of the pro bono barristers concerning the terms of a draft deed of settlement which had been prepared following the mediation conference;
d)on 10 January 2012 Ms Carter executed the deed of settlement;[3]
e)Ms Carter received the sum of $10,000 upon execution of the Deed of Settlement, in accordance with clause 2.1 of the terms of the Deed of Settlement, and the cheque by which that sum was paid was presented for payment on 10 January 2012;
f)Ms Carter vacated the Currambine premises on 4 March 2012;
g)TimeConti Sheffield only has a post office box forwarding address for Ms Carter, and does not know Ms Carter’s current residential address; and
h)a minute of consent orders which accorded with the terms of clause 3 of the Deed of Settlement was prepared and forwarded to one of the pro bono barristers on 12 April 2012, and notwithstanding follow-ups in May, twice in July and twice in August 2012, the minute of consent orders has not been signed by Ms Carter.[4]
[3] “Deed of Settlement”.
[4] Affidavit of Cameron James Sweeney, sworn 8 October 2012 (“Sweeney Affidavit”), paras.5-18.
The last of the above endeavours to make contact with Ms Carter, via one of her pro bono barristers, was on 9 August 2012. Two months later, on 9 October 2012 the current application in a case was filed.[5]
[5] Sweeney Affidavit, para.19.
It is evident from the terms of the communications set out above that Ms Carter’s current residential address is unknown to all concerned.
Clause 3 of the Deed of Settlement provides as follows:
3.Dismissal of the action
Upon Sheffield Estates [TimeConti Sheffield] paying Carter the sum of $10,000 pursuant to clause 2.1 of this Deed of Settlement and Release, the solicitors for Sheffield Estates [TimeConti Sheffield] will prepare and file at the Federal Magistrates Court of Australia a minute of consent orders incorporating the following orders:
3.1Order 2 of the Court’s orders of 30 July 2010 that Salhah take no steps directly or by his agent or otherwise, to effect the removal of Carter from the property without an order of the Court permitting that removal be discharged;
3.2the action be dismissed;
3.3all parties pay their own costs of the action; and
3.4any costs orders that have been made in favour of any of the parties be vacated.[6]
[6] Sweeney Affidavit, Annexure CJS 1.
It is apparent that TimeConti Sheffield has complied with its obligation to pay Ms Carter the sum of $10,000 under the terms of the Deed of Settlement. TimeConti Sheffield has also complied with the terms of the Deed of Settlement by preparing a minute of consent orders in the terms set out in clause 3 of the Deed of Settlement for filing with this Court. Unfortunately, it has not been able to file that minute of consent orders because Ms Carter has not signed it, and it would appear that she is unlikely to do so, given that it appears that neither the pro bono barristers acting for her nor TimeConti Sheffield has any means of contacting her beyond the post office box.
In circumstances where the Deed of Settlement has been entered into, and Ms Carter has “taken the money and run”, but has not, for whatever reason, signed, or been able to sign, the minute of consent orders that the Deed of Settlement intended be signed and filed in this Court, the Court sees no reason why orders in terms of the minute of consent orders agreed to in the Deed of Settlement ought not be made. To do so will:
a)reflect the bargain reached between the parties, which Ms Carter has already had the benefit of by way of the payment of the sum of $10,000; and
b)bring to an end litigation which has been in this Court (and before that the Federal Court) for just over 29 months, and which there is no good reason to leave open when the Court can make an order which puts into effect the bargain reached between the parties.
For the above reasons there will be orders in the terms sought in TimeConti Sheffield’s application in a case filed 9 October 2012.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 29 October 2012
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