JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 SEPTEMBER 2014
DATE OF JUDGMENT:	11 SEPTEMBER 2014
CASE MAY BE CITED AS:	COOK v TAING
MEDIUM NEUTRAL CITATION:	[2014] VSC 428

---

CONTRACT – Settlement – previous mediation – mediation agreement – subsequent negotiations between parties – whether mediation agreement continued to apply – meaning of “mediation” – mediator reporting to court – parties’ representation to court that proceeding settled – correspondence between parties purporting to settle proceeding – whether settlement subject to written contract – binding agreement reached – Masters v Cameron (1954) 91 CLR 353 applied – compliance with court orders – Civil Procedure Act 2010 (Vic), ss 7, 16, 19, 22, 24 and 25 – Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 50.07(4).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	(No appearance)
For the Defendants	Mr S K Wilson QC with Mr J Ribbands	Pointon Partners
For the 1^stThird Party	Mr P G Cawthorn QC	Moray & Agnew
For the 2^nd Third Party	Mr J Wysham (director)

TABLE OF CONTENTS

A.. Introduction................................................................................................................................... 1

B.. Background................................................................................................................................... 1

C.. Communications between the parties shortly after mediation........................................... 4

D.. Correspondence with the court............................................................................................... 11

E... Directions hearing on 11 June 2014......................................................................................... 12

F... Correspondence after 11 June 2014......................................................................................... 15

G.. Were the negotiations of the parties’ solicitors after 27 May 2014 subject to the terms of the Mediation Agreement?.............................................................................................................. 18

H.. Relevant principles.................................................................................................................... 22

I.... Defendants’ contentions on the commercial context........................................................... 25

J.... Was a binding agreement reached?........................................................................................ 26

K.. Other matters............................................................................................................................... 29

K.1... Failure to comply with pre-trial orders......................................................................... 29
K.2... "Without prejuidce" communications............................................................................ 30

L... Conclusion................................................................................................................................... 31

HIS HONOUR:

A. Introduction

The 1^st third party, Joy Lorraine Allan (“Allan”) and the 2^nd third party, McDonald Real Estate Mulgrave Pty Ltd (“McDonald Real Estate”) (collectively “the Third Parties”) seek a declaration that the third party proceeding between the Third Parties and the defendants, Khay Suong Taing (“Taing”) and Hakly Lao (“Lao”) (collectively “the Defendants”) has settled. If the declaration is made by the court, the Third Parties also seek that the third party proceeding be dismissed.

The plaintiffs, Bruce Thomas Cook, Beverley Joan Trende and Riverend Park Pty Ltd (“the Plaintiffs”) are not before the court. The Plaintiffs had claims against the Defendants and the Third Parties. There is no issue that all claims made by the Plaintiffs have settled.

McDonald Real Estate appears by way of 1 of its directors, John Wysham. The parties consented to the court dispensing with the rule requiring a corporation to retain a solicitor to take any step in a proceeding. In the circumstances, which are unnecessary to set out, it was appropriate to allow the corporation to have 1 of its directors appear on…

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 Cook v Taing

Details

AGLC: Cook v Taing [2014] VSC 428
Case: [2014] VSC 428
Decision Date: 11 SEPTEMBER 2014

CaseChat Overview and Summary

In the matter of Cook v Taing, the issue before the court was whether a mediation agreement continued to apply after subsequent negotiations between the parties. The case was heard in the Supreme Court of Victoria. The dispute arose from a disagreement between the plaintiff, Cook, and the defendant, Taing, over a settlement reached during mediation. The mediation process had resulted in an agreement, but the parties later engaged in further negotiations, leading to uncertainty about the status of the mediation agreement.

The primary legal issue was determining the meaning of "mediation" in the context of the mediation agreement and whether the subsequent negotiations nullified the original agreement. Additionally, the court needed to ascertain whether the parties' representations to the court that the proceeding was settled and the correspondence between them amounted to a binding agreement. The court also had to consider whether the settlement was subject to a written contract and whether the parties had complied with the relevant court orders.

The court examined the mediation agreement and found that the term "mediation" encompassed both the formal process and any subsequent negotiations that occurred as part of the same dispute resolution process. The court held that the mediation agreement remained in effect despite the additional negotiations, as they were integral to the original mediation process. Furthermore, the court concluded that the parties' representations and correspondence constituted a binding agreement, subject to a written contract. The court applied the principles from Masters v Cameron to determine the enforceability of the settlement agreement. The court found that the parties had complied with the relevant court orders, including those under the Civil Procedure Act 2010 (Vic) and the Supreme Court (General Civil Procedure) Rules 2005 (Vic).

In light of its findings, the court ordered that the mediation agreement remained in force and that the parties were bound by the terms of the settlement reached during the mediation process. The court further directed that the parties execute a written contract to formalise the settlement and ensure its enforceability.

Orders