Krie Crushing Pty Ltd v Reckrock Victoria (Ruling)

[2025] VCC 732

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION

Revised
Not Restricted
Suitable for Publication

BANKING AND FINANCE LIST

Case No. CI-24-00433

KRIE CRUSHING AND MOBILE SCREENING PTY LTD (ACN 616 807 491)	Plaintiff
v
MAHMUT SAMI KILINC TRADING AS RECKROCK VICTORIA (ABN 85 993 936 519)	Defendant

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JUDGE:	HIS HONOUR JUDGE WISE
WHERE HELD:	Melbourne
DATE OF HEARING:	4 June 2025
DATE OF RULING:	4 June 2025 (ex tempore)
CASE MAY BE CITED AS:	Krie Crushing Pty Ltd v Reckrock Victoria (Ruling)
MEDIUM NEUTRAL CITATION:	[2025] VCC 732

REASONS FOR RULING
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Subject:Review of a decision of a Court constituted by a Judicial Registrar 

Catchwords:              Terms of settlement, breach, entry of judgment pursuant to terms of settlement, registrar’s decision, application for review, no vitiating factor, legal representation, finality of orders.

Legislation Cited:      

Cases Cited:Bailey v Marinoff (1971) 125 CLR 529; Harvey v Phillips (1956) 95 CLR 234

Ruling:  

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Black	Michael Sandor & Associates
For the Defendant	Mr Mahmut Sami Kilinc (self-represented)

EX TEMPORE:

1The application before me today is a notice to review a decision of Judicial Registrar Muller made on 18 March 2025.  He determined to dismiss a summons filed by the defendant on 23 December 2024.  The summons sought to set aside a decision of Judicial Registrar Bennett made on 31 October 2024, by which judgment was given for the plaintiff against the defendant on the basis that the defendant had breached terms of settlement entered into between the parties.

2By way of background, the plaintiff claimed in this proceeding an amount of approximately $230,000 for goods and services provided to the defendant.

3The defendant denied liability and filed a counterclaim.  A reply and defence to counterclaim was filed by the plaintiff. 

4The parties attended a mediation on 4 September 2024.  As a consequence of that mediation, a deed of settlement was entered into between the parties.

5Under that deed, the defendant agreed to pay the plaintiff $130,000 in full and final settlement of the plaintiff’s claim and counterclaim.  A payment schedule was set out, with the first payment to be made on 30 September 2024 and the final payment to be made on 30 July 2025.  The terms contained a default clause which permitted the plaintiff to reinstate the proceedings in the event that any instalment was not paid, and to enter judgment for the amount of the settlement sum not paid less any amount that was paid plus the cost of entering judgment and interest.  The deed bears the signature of Mr Kilinc, the defendant, and was countersigned by the Director and Secretary on behalf of the plaintiff.

6The defendant failed to make the first payment under the deed of settlement.  As a consequence, the plaintiff sought to enter judgment in default of based upon an affidavit of the plaintiff’s solicitor deposing to the breach. 

7The matter came before Judicial Registrar Bennett, who considered a notice of objection that was drafted and provided by the defendant  by email.  In the notice of objection, Mr Kilinc took issue with the conduct of his solicitors at the mediation.  Most particularly, he complained that his solicitors, Hunt & Hunt, had not provided to the plaintiff documents by way of discovery which he said evidenced his defence that the plaintiff’s claims were not correctly made.  He complained that his lawyers “entrapped me into signing a settlement term under duress” as they stated “unless I can pay $70,000 into their trust account to further defend the claim, this is the best deal we can do for you today”.

8After considering those materials, the learned Judicial Registrar recorded in Other Matters the substance of the defendant’s objection to the orders proposed and said “however the Court does not consider the matters raised by the defendant in the email to disclose any basis for not granting judgment on breach of the terms of settlement”.

9As a consequence, judgment was entered in the sum of $135,256.28, being the unpaid settlement sum, an amount for interest and an amount for costs.

10The defendant then issued a summons on 27 November 2024, by which he sought a stay of the orders made by Judicial Registrar Bennett, and sought, in effect, to set aside those orders and to have the proceeding continue to trial.

11That summons came on for hearing before Judicial Registrar Muller on 18 March 2025.The learned Judicial Registrar dismissed the defendant’s application and ordered the defendant to pay the plaintiff’s costs of and incidental to that application on a standard basis to be taxed in default of agreement.

12By notice dated 31 March 2025, the defendant has sought review of Judicial Registrar Muller’s orders.

13This judicial review is by way of a rehearing de novo, and as a consequence, I am not bound by the judicial registrar’s reasons [none of which have been recorded or provided], nor do I need to search for error in his reasons, as one would on appeal by way of rehearing.  The submissions made by the defendant, both in writing and orally before me today, address the defendant’s reasons why it is he says that the judgment ought to be set aside. 

14The written submissions filed by the plaintiff before the Judicial Registrar dated 13 March 2025 and again before me dated 28 May 2025, articulate that the reasons the defendant says that the judgment should be set aside really constitute complaints made as between the defendant and his lawyers who appeared for him at the mediation.

15I accept that this is correct.

16Mr Kilinc, in his submissions today, agreed that he signed the deed of settlement, said that he is easily swayed by way of personality, and that as soon as he signed the deed of settlement, the next day he regretted that decision and wished that he had not done so. 

17In his  submissions before the judicial registrar, Mr Black (counsel for the plaintiff)  relies on Bailey v Marinoff (1971) 125 CLR 529 (at 530), where Barwick CJ said:

“Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed. In my opinion, none of the decided cases lend support to the view that the Supreme Court in this case had any inherent power or jurisdiction to make the order it did make, its earlier order dismissing the appeal having been perfected by the processes of the Court. I would add that, however hard the case might seem for the would be appellant the loss of its right of appeal derived from its own conduct or from that of persons for whom it must take responsibility. The finality of the order dismissing the appeal does not seem to me to partake of injustice in the circumstances or to call for any departure from well settled principles, themselves essential in my opinion to the due administration of our system of law.”

18Mr Black also relied on Harvey v Phillips (1956) 95 CLR 234 where the plurality said this:

“The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like.”

19The submissions made by the defendant suffer from a primary problem in that it is not clear to me that it is open to him to seek to set aside the decision of this court once perfected.

20I do note, however, in the context of this case that the decisions were made by a Judicial Registrar rather than a judge.  Under those circumstances, it is, of course, open to the defendant to seek a review of that decision before a judge.

21That is what he has done.

22However, the complaint that the defendant makes in this instance is not directed at any conduct of the plaintiff.  It does not allege that the plaintiff engaged in some deception or duress against him that caused him to enter into the deed of settlement.  Any such case would likely fail because he was represented at the mediation by solicitors of his own choosing.

23The real complaint he makes is that his solicitors failed to represent him properly and put undue pressure upon him to sign the deed of settlement.  I pass no comment upon whether the materials that Mr Kilinc relies upon and the submissions he makes do in fact make out the legal requirements to establish a case in duress against his solicitors.  However, I do note that if he did have such a claim, that would be a claim he could make against his solicitors.

24However, such a claim does not avail him in terms of attempting to set aside the deed of settlement in respect of the plaintiff.  The plaintiff was entitled to enter into  those terms of settlement in the expectation that Mr Kilinc did so freely and upon the basis of legal advice.  Under those circumstances, it seems to me that the deed of settlement as between the plaintiff and Mr Kilinc is fully enforceable.  Mr Kilinc has not said before me that he in fact did make any of the payments under the terms of settlement.  Under those circumstances, it seems clear to me that the judgment that was entered by Judicial Registrar Bennett was properly entered and it also seems to me that there is no proper basis for Judicial Registrar Muller to have set aside the order entered by Judicial Registrar Bennett.

25Under those circumstances, the defendant’s application for review of the decision of Judicial Registrar Muller must be dismissed.

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Certificate

I certify that these 6 pages are a true copy of the judgment of His Honour Judge Wise delivered on 4 June 2025.

Dated: 11 June 2025

Liam Crough

Associate to His Honour Judge Wise.