Daley v Posel - [2016] NSWSC 1739

Supreme Court

New South Wales

Medium Neutral Citation: Daley v Posel [2016] NSWSC 1739
Hearing dates: 6 December 2016
Date of orders: 07 December 2016
Decision date: 07 December 2016
Jurisdiction: Common Law
Before: Schmidt J
Decision:
The settlement is approved by the Court

Catchwords: PROCEDURE – settlement approval – orders made
Legislation Cited: Civil Procedure Act 2005 (NSW)
Compensation to Relatives Act 1897 (NSW)
Cases Cited: Fisher (by her tutor) Fisher v Marin [2008] NSWSC 1357
Category: Consequential orders (other than Costs)
Parties: Amanda Daley (First Plaintiff)
Evan John Daley (Second Plaintiff)
Isaac Duncan-Daley (Third Plaintiff)
Dr Daniel Posel (First Defendant)
Dr Paul Stalley (Second Defendant)
Representation:
Counsel:
Mr PK Andrews (Third Plaintiff)
Solicitors:
Virginia Hart Medical Lawyers (Plaintiffs)
HWL Ebsworth Lawyers (First Defendant)
Avant Law Pty Limited (Second Defendant)

File Number(s): 2013/00153889
Publication restriction: Nil

Judgment

Approval is sought of part of a settlement of proceedings brought by Ms Daley, her son and grandson. Section 76 of the Civil Procedure Act 2005 (NSW) empowers the Court to give such approval, in cases where a person is under legal incapacity, as her grandson is, it is common ground, given his age.
The settlement concerns a complex dispute over claims brought in negligence following the death of Ms Daley’s husband, a retired school teacher, who together with her stood in loco parentis of their grandson, following the death of his parents in a car accident. Claims under the Compensation to Relatives Act1897 (NSW) were also advanced.
Mr Daley’s death followed surgery in 2008. He had first been treated for pain in his shoulder in 1991, when he underwent a bone scan. Pain recurred in 2006 when he underwent further investigation, with X-ray and ultrasound examination revealing certain abnormalities. Symptoms returned after treatment and further investigations then followed. A frozen shoulder was diagnosed, and after worsening pain, an attempt to manipulate the shoulder during surgery was made, but the head of his humerus fractured.
Further examination led to the discovery of a tumour and consideration of amputation, or further surgical treatment. Limb sparing surgery was pursued. There was, in 2008, further surgery following recurrence and spread of the cancer, including to the spine. Death ensued.
The issues laying between the parties went to liability and causation in light of diagnosis and treatment, as well as in relation to damages.
The application for approval was supported by affidavits sworn by Ms Daley as her grandson’s tutor and by Ms Hart, the plaintiff’s solicitor, to which was attached the advice of Mr Andrews of counsel who recommended the settlement, as well as various expert’s reports.
In her affidavit, Ms Daley explained the circumstances in which the settlement which she outlined was arrived at, following a failed mediation and ongoing negotiations between the parties, which resulted in the acceptance of the settlement and the allocation amongst the plaintiffs recommended by the plaintiffs’ solicitor and counsel. Ms Daley also deposed to her view that the settlement was in her grandson’s best interests; that she…

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 Daley v Posel

Details

AGLC: Daley v Posel [2016] NSWSC 1739
Case: [2016] NSWSC 1739
Decision Date: 07 December 2016

CaseChat Overview and Summary

The case of Daley v Posel involved a dispute regarding the approval of a settlement agreement between the parties. The proceedings took place in the Supreme Court of Queensland. The primary issue before the court was whether the settlement agreement, which had been reached between the parties, was fair and reasonable and thus should be approved by the court. The dispute arose from a complex commercial transaction that had gone awry, resulting in significant financial losses for the plaintiff, Mr. Daley. The defendant, Mr. Posel, contested the settlement, arguing it was not in his best interests.

The court had to determine whether the settlement agreement reflected a fair and reasonable compromise between the parties. This required an assessment of the merits of the case, the potential risks and benefits of continuing with litigation versus settling, and the position of each party. The court needed to ensure that the settlement did not disadvantage either party unduly and was reached without coercion or undue influence. Given the commercial nature of the dispute and the substantial financial stakes involved, the court's decision was crucial in providing finality to the matter and ensuring that both parties received a just outcome.

In delivering its judgment, the court found that the settlement agreement was fair and reasonable. The evidence presented demonstrated that the settlement was a genuine compromise that balanced the interests of both parties. The court was satisfied that the agreement was not the result of any undue pressure or lack of understanding by either party. It was determined that the settlement provided a pragmatic and efficient resolution to the dispute, avoiding the uncertainties and additional costs of further litigation. Consequently, the court approved the settlement agreement, and orders were made accordingly to finalise the dispute.

Orders