Gorczynski v Bendigo and Adelaide Bank Ltd

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Gorczynski v Bendigo and Adelaide Bank Ltd [2016] NSWCA 170
Hearing dates:	8 July 2016
Date of orders:	08 July 2016
Decision date:	19 July 2016
Before:	Basten JA at [1]; Sackville AJA at [10]
Decision:	(1)   Dismiss the application for leave to appeal.  (2)   Order that the applicant pay the Bank’s costs of the application.
Catchwords:	PRACTICE AND PROCEDURE – application for leave to appeal – primary Judge determined pursuant to s 73(1) of the Civil Procedure Act 2005 (NSW) that a matter had settled – determination made on Judge’s own motion – whether Judge had power to do so – whether matter in dispute warrants leave being granted
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 60, 73, 86, 90 Supreme Court Act 1970 (NSW), ss 23, 63 Uniform Civil Procedure Rules 2005 (NSW), r 36.1
Cases Cited:	Grant v John Grant & Sons Pty Ltd [1954] HCA 23; 91 CLR 112 Masters v Cameron [1954] HCA 72; 91 CLR 353 The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404
Category:	Principal judgment
Parties:	Peter Gorczynski (Applicant) Bendigo and Adelaide Bank Ltd (Respondent)
Representation:	Counsel: Mr M E Luitingh (Applicant) Mr J Foley (Solicitor) (Respondents)   Solicitors: Jane Button & Associates (Applicant) Gadens Lawyers (Respondents)
File Number(s):	2016/62331
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2016] NSWSC 55 Date of Decision: 03 February 2016 Before: McCallum J File Number(s): 2009/293542

Judgment

1. BASTEN JA: I agree with the reasons of Sackville AJA for dismissing the application for leave to appeal, and would add the following considerations.

2. In dealing with the matter on the basis that there had been a settlement of the proceedings, McCallum J took into her own hands the resolution of what was, in substance, a small dispute, within the jurisdiction of the Small Claims Division of the Local Court, and one which certainly did not warrant the time of a judge of the Supreme Court, or the costs involved in Supreme Court proceedings. Recognising that the financial terms had been settled “subject to contract”, the judge accepted that there was no final settlement recorded in the deed proffered by the Bank, in accordance with the principles commonly identified by reference to the decision in Masters v Cameron. [1] That requirement was imposed, not by Mr Gorczynski, but by the Bank, primarily in order to obtain the usual release and discharge from liability which accompanies a settlement of litigation.

   1. [1954] HCA 72; 91 CLR 353.

3. Mr Gorczynski raised a concern in respect of two paragraphs in the deed, one of which the judge found was outside the scope of the agreement (a “non-disparagement” clause), which was therefore rejected as not part of the agreement. The judge also noted the concerns of Mr Gorczynski with respect to the width…