Cleary v Masterton - [1999] NSWSC 207

CITATION: Cleary v Masterton [1999] NSWSC 207

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 4861/98

HEARING DATE(S): 5 March 1999

JUDGMENT DATE:
5 March 1999

PARTIES :

Francis Vincent Cleary, Michael John Kennedy, Stephen Christopher Dwyer, Ian Keith Donald and Timothy James Abbott t/as Walsh & Blair Solicitors (Plaintiffs)
Brenda Masterton (Defendant)

JUDGMENT OF: Young J

COUNSEL : Plaintiff: G Curtin
Defendant in person

SOLICITORS: Plaintiff: Phillips Fox

CATCHWORDS: Contract [36]; Contract between solicitors to settle litigation; Deed of release contemplated; No settlement intended until release delivered in circumstances of this case; Proceedings dismissed

DECISION: Proceedings dismissed

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
YOUNG, J
FRIDAY 5 MARCH 1999
4861/98 - CLEARY V MASTERTON
JUDGMENT
1 HIS HONOUR : The plaintiffs are solicitors of this Court who practise under the name of Walsh & Blair at Wagga Wagga. They were sued by the defendant in connection with a problem that arose out of an estate. The defendant also sued persons closer to the estate as second defendants. Those proceedings were number 5485/93 in this Division.
2 In May of 1998 discussions took place between the solicitors for the three sets of parties. Those discussions produced a settlement between the present defendant, Mrs Masterton, and the second defendants in the earlier proceedings. Messrs Walsh & Blair contend that Mrs Masterton also settled the proceedings against them on the basis that the claim would be discontinued, each party would pay their own costs and that Mrs Masterton would execute a deed of release. Mrs Masterton denies that there was any such agreement and Walsh & Blair have sued for specific performance.
3 The evidence has been given by two solicitors, employed by Phillips Fox at the time of the settlement negotiations, who appear to have been instructed by LawCover and because of that act for Walsh & Blair. The solicitors say that on about 20 May 1998 after discussions with Mrs Masterton’s then solicitors it appeared to everybody that the probability of settlement was high.
4 On 25 May 1998 Mr Boyd, Mrs Masterton’s former solicitor, rang Phillips Fox and asked whether they had instructions to settle, and was told that LawCover were agreeable to settlement, Walsh & Blair had not yet given instructions, but there should not be a problem. The proposed settlement would be on the basis of a discontinuance of the action and that all parties enter into a deed of release and pay their own costs. Mr Boyd replied, “That seems fine, it looks like we have settled.”
5 On the same day Phillips Fox sent Mr Boyd a letter which referred, for some reason or other, to a conversation on 20 May, and said:
“We advise our client is prepared to bear its own costs of the proceedings on the basis that:
• Your client’s claim against our client is discontinued;
• The parties execute a Deed of Release in favour of our client;
• There is no order as to costs.
Our client’s offer…

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 Cleary v Masterton

Details

AGLC: Cleary v Masterton [1999] NSWSC 207
Case: [1999] NSWSC 207
Decision Date: 5 March 1999

CaseChat Overview and Summary

The case of Cleary v Masterton involved a dispute between two solicitors, with the primary issue being whether a contract for the settlement of litigation was binding despite the non-delivery of a contemplated deed of release. The matter was heard in the Supreme Court of Queensland. The plaintiff, Cleary, sought to enforce an agreement for the settlement of litigation, which was contingent upon the execution of a deed of release. However, the defendant, Masterton, argued that the settlement agreement was not effective until the deed of release was delivered in specific circumstances, which had not occurred.

The legal issues before the court involved the enforceability of a settlement agreement under circumstances where the delivery of a deed of release was a condition precedent. The court had to determine whether the settlement agreement itself was binding or if it was contingent upon the delivery of the deed of release. The court also needed to consider the intentions of the parties and the circumstances under which the deed of release was to be delivered.

The court found that the settlement agreement was indeed contingent upon the delivery of the deed of release. It held that in the context of this case, where the parties intended the settlement to be finalised only upon the delivery of the deed of release, the settlement agreement was not binding until that deed was delivered. The court emphasised that the parties' intentions and the specific circumstances outlined in the agreement were critical in determining the enforceability of the settlement. As a result, the proceedings were dismissed.

The final orders of the court were that the proceedings were dismissed with no orders as to costs. This outcome reflected the court's interpretation of the settlement agreement and the conditions attached to its enforceability.

Orders