Dimarti v Dimarti - [2015] NSWSC 97

Supreme Court

New South Wales

Medium Neutral Citation: Dimarti v Dimarti [2015] NSWSC 97
Hearing dates: 9 and 10 February 2015
Date of orders: 20 February 2015
Decision date: 20 February 2015
Jurisdiction: Equity Division
Before: Lindsay J
Decision:
Order that the defendant’s motion to set aside an agreement for compromise, and consent orders, be dismissed.

Catchwords:
CONTRACT – General contractual principles – Compromise agreement – Consent orders – Application to set aside – Neither agreement nor orders attended by irregularity, illegality or bad faith – No unconscionable conduct – No unjust contract – Fully informed consent given to agreement and orders – Application dismissed.

JUDGMENTS AND ORDERS – Consent orders – Application to set aside – Orders not attended by irregularity, illegality or bad faith – Application dismissed.
PRACTICE – Procedure – Judgments and orders – Amending, varying and setting aside – Consent orders – Compromise agreement – Civil Procedure Act 2005 NSW, s 73 – Uniform Civil Procedure Rules 2005 NSW, r 36.15(1).
Legislation Cited: Civil Procedure Act 2005 NSW
Competition and Consumer Act 2010 (Cth) Schedule 2
Contracts Review Act 1980 NSW
Conveyancing Act 1919 NSW
Evidence Act 1995 NSW, s 136
Uniform Civil Procedure Rules 2005 NSW, r 36.15 (1)
Australian Consumer Law, ss 20, 21 and 22
Cases Cited: Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 459-461
Forgead v Shanahan (1994) 35 NSWLR 206
Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41 at [76] and [106]-[109]
Philips v Walsh (1990) 20 NSWLR 206 at 209F and 210C-F
West v AGC (Advances) Ltd (1986) 5 NSWLR 610 at 620
Texts Cited: -
Category: Procedural and other rulings
Parties: Plaintiff/Respondent: Dimarti, Carmelo
Defendant/Applicant: Dimarti, Antonio
Representation:
Counsel:
Plaintiff/Respondent: J Kelly SC
Defendant/Applicant: P Newton
Solicitors:
Plaintiff/Respondent: Uther Webster & Evans
Defendant/Applicant: McCabes

File Number(s): 2012/259135 and 2014/155924

Judgment

INTRODUCTION

By a notice of motion filed on 15 July 2014 in the principal proceedings (numbered 2012/00259135) the defendant applies for orders to the effect that consent orders made on 12 November 2013, and an underlying agreement for compromise of the proceedings, be set aside.
Related proceedings (numbered 2014/00155924), commenced by the plaintiff upon an assumption that the orders of 12 November 2013 stand, await further consideration contingent upon the outcome of the defendant’s motion. In those proceedings the plaintiff seeks, inter alia, orders under the Conveyancing Act 1919 NSW, section 66G, for the sale of land in the parties’ co-ownership as a result of the consent orders made in the principal proceedings.
By a formal notation made by the Court in the principal proceedings on 17 June 2014, the plaintiff consented to the defendant making his application to set aside the orders of 12 November 2013 in the principal proceedings without the institution of fresh proceedings for that purpose.
Section 73 of the Civil Procedure Act 2005 NSW lends aid to the propriety of this procedure. Section 73(1)(a) provides an express statutory authority for the Court “to determine any question in…

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: [2015] NSWSC 97
Decision Date: 20 February 2015

CaseChat Overview and Summary

The case of Dimarti v Dimarti involved a dispute over a compromise agreement reached between the parties, which was subsequently formalised in consent orders. The matter was heard in the Supreme Court of New South Wales. The central issue before the court was whether the consent orders should be set aside due to alleged irregularities, illegality, or bad faith, or whether they should be upheld as valid and binding agreements.

The court examined the circumstances surrounding the formation of the compromise agreement and the consent orders. It considered whether there were any factors such as unconscionability, lack of informed consent, or any other form of unfairness that would render the orders invalid. The court found that neither the compromise agreement nor the consent orders were attended by any irregularity, illegality, or bad faith. Moreover, there was no evidence of unconscionable conduct, unjust contract, or lack of fully informed consent by the parties. The court concluded that both the agreement and the orders were the result of genuine negotiations and mutual assent by the parties.

Given the findings, the court dismissed the application to set aside the consent orders. The court emphasised that in the absence of any irregularity, illegality, or bad faith, and with the presence of fully informed consent, the orders should stand. The court referred to the relevant provisions of the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW), particularly section 73 and rule 36.15(1), which support the principle that consent orders are generally not to be set aside unless there are compelling reasons to do so.

The court's final orders were that the application to set aside the consent orders was dismissed, and the consent orders remained in full force and effect. This decision underscores the importance of mutual consent and informed agreement in the context of compromise agreements and consent orders in the New South Wales jurisdiction.

Orders