Cyril v Serco Australia Pty Ltd - [2024] NSWDC 348

District Court

New South Wales

Medium Neutral Citation: Cyril v SERCO Australia Pty Ltd [2024] NSWDC 348
Hearing dates: 23 – 24 April 2024
Date of orders: 24 April 2024
Decision date: 24 April 2024
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
See par [35].

Catchwords:
Application to enforce a settlement – Whether contract made between the parties to settle an action – On objective analysis such a contract made – Enforcing the agreement – Mechanisms available where party refuses to execute a deed.

Legislation Cited:
Civil Procedure Act 2005

Cases Cited:
Kerry Albert Pty Ltd trading as Kerry Albert & Co v Fuller [2018] NSWDC 254 [58] to [69].
Gomes vs Price Family Investments Pty Ltd [2022] NSWDC 313, [29] to [30].

Texts Cited:
Nil.

Category: Principal judgment
Parties: Plaintiff – Simexwell Cyril
Defendant – SERCO Australia Pty Ltd
Representation:
Counsel:
Plaintiff – Self-represented.
Defendant – Wotton + Kearney.
Solicitors:
Plaintiff – Self-represented.
Defendant – Dinkha, O.

File Number(s): 2022/00352014
Publication restriction: Nil.

Judgment

Background

HIS HONOUR: By a motion, notice of which was filed on 7 February 2024, the defendant seeks to enforce a settlement of these proceedings which it says occurred on 7 July 2023. The background of the proceedings before me is well summed up by the plaintiff himself in a letter he sent to the Judicial Registrar on 18 July 2023. It is this:

“On 11 November 2016, I was charged with two criminal offences by the NSW Police and later that day I was granted conditional bail [by] the Court. The NSW Police also informed the Department of Immigration and Border Protection of my arrest, later that day, after granted conditional bail [by] the Court[,] the two Australian Border Force officers met me at Manly Police Station. After an interview by the officers my temporary visa was cancelled, as a result of this I became [an] unlawful non-citizen and was detained, then immediately taken to Villawood Immigration Detention Centre (VIDC) and handed over to the defendant. This is [a] brief history.
On 14 December 2016, I was escorted by the defendant’s officers to attend Downing Centre Local Court (DCLC) for a mention in relation to the criminal charges. On this day the matter was adjourned to 9 January 2017.
On 9 December 2016, while detained in lawful custody, without an authorisation from the officer of the Department I was escorted to the DCLC and given [into] the custody of officers of Corrective Services NSW who kept me in the court cell.
The day before when I was informed of the escort [the] next day, I have told the defendant’s officers that I do not have a Court date the next day. On the day of escort, I said to the escort officers that I cannot attend the Court without the Legal Aid lawyer and to call Legal Aid to confirm the date before [the] escort. I also showed them the Court Attendance Notice which states that my Court date is January 2017, but I…

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: [2024] NSWDC 348
Decision Date: 24 April 2024

CaseChat Overview and Summary

Cyril brought an application to enforce a settlement reached between himself and Serco Australia. The matter was heard in the Federal Circuit Court. Cyril claimed that a binding settlement had been reached but Serco refused to execute a deed of settlement. The dispute centred on whether a contract had been formed between the parties to settle the action and, if so, whether the court should enforce the agreement.

The court considered whether, on an objective analysis, a contract had been made between the parties to settle the action. The court found that there was a clear intention to settle and that all terms of the settlement had been agreed upon. The court held that the parties had reached a binding agreement to settle the matter, and that such agreement should be enforced. The court noted that there were mechanisms available for enforcing the agreement where a party refused to execute a deed, such as an order for specific performance.

The court ordered that the parties were to execute a deed of settlement in the terms agreed upon. The court further ordered that if either party failed to execute the deed within 14 days of the order, the other party could apply for an order for specific performance. The court also ordered that costs of the application be paid by Serco.

Orders

Orders of the court

See par [35].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Cyril v SERCO Australia Pty Ltd [2024] NSWDC 348
Hearing dates:	23 – 24 April 2024
Date of orders:	24 April 2024
Decision date:	24 April 2024
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	See par [35].
Catchwords:	Application to enforce a settlement – Whether contract made between the parties to settle an action – On objective analysis such a contract made – Enforcing the agreement – Mechanisms available where party refuses to execute a deed.
Legislation Cited:	Civil Procedure Act 2005
Cases Cited:	Kerry Albert Pty Ltd trading as Kerry Albert & Co v Fuller [2018] NSWDC 254 [58] to [69]. Gomes vs Price Family Investments Pty Ltd [2022] NSWDC 313, [29] to [30].
Texts Cited:	Nil.
Category:	Principal judgment
Parties:	Plaintiff – Simexwell Cyril Defendant – SERCO Australia Pty Ltd
Representation:	Counsel: Plaintiff – Self-represented. Defendant – Wotton + Kearney. Solicitors: Plaintiff – Self-represented. Defendant – Dinkha, O.
File Number(s):	2022/00352014
Publication restriction:	Nil.