Kwu v State of New South Wales

In the case of Kwu v State of New South Wales, the plaintiff, Kwu, sought to enforce a settlement reached at mediation, claiming that an immediately binding agreement had been made. The defendant, the State of New South Wales, disputed the enforceability of the settlement, arguing that no binding agreement was reached during the mediation process. The matter was heard in the Supreme Court of New South Wales, where the primary judge had to determine the enforceability of the settlement agreement reached during mediation.

The central legal issue before the court was whether a binding and enforceable agreement was reached at the mediation and, if so, the intention of the parties regarding the enforceability of such an agreement. The court had to examine the circumstances surrounding the mediation, the conduct of the parties, and any communications that may have indicated an intention to be bound by the terms discussed.

The court held that for a settlement agreement reached at mediation to be binding, there must be an intention by the parties to be immediately bound by the terms of the agreement. The court found that the conduct of the parties and the language used during the mediation did not demonstrate a clear intention to create a binding agreement. The court further held that the absence of a written agreement and the fact that the parties continued to negotiate and litigate after the mediation session suggested that no binding agreement was reached at that time. The court concluded that the settlement agreement was not binding and dismissed the plaintiff's claim.

The Supreme Court of New South Wales dismissed the plaintiff's claim, holding that no binding settlement agreement was reached at mediation. The court did not grant the relief sought by the plaintiff and ordered the plaintiff to pay the defendant's costs of the proceeding.