Lazaridis v Humphris-Clark
[2010] NSWCA 349
•6 December 2010
New South Wales
Court of Appeal
CITATION: Lazaridis v Humphris-Clark [2010] NSWCA 349 HEARING DATE(S): 6 December 2010
JUDGMENT DATE:
6 December 2010JUDGMENT OF: Allsop ACJ at 1; Handley AJA at 11 EX TEMPORE JUDGMENT DATE: 6 December 2010 DECISION: Application for leave to appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]CATCHWORDS: APPEAL - civil - leave to appeal - whether parties reached binding agreement to settle dispute - deed of release - no sufficient basis that appeal would be successful CATEGORY: Principal judgment PARTIES: Ilias Lazaridis (Applicant)
Dr Peter Humphris-Clark (Respondent)FILE NUMBER(S): CA 2009/290665 COUNSEL: Mr B R McClintock (Applicant)
Mr B Shields (Respondent)SOLICITORS: Thomas Mitchell Solicitors (Applicant)
Guild Lawyers (Respondent)LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): 2009/290665 LOWER COURT JUDICIAL OFFICER: Bergin CJ in Eq LOWER COURT DATE OF DECISION: 27 April 2010 LOWER COURT MEDIUM NEUTRAL CITATION: Humpris-Clark v Lazaridis [2010] NSWSC 318
2009/290665
Monday 6 December 2010ALLSOP ACJ
HANDLEY AJA
1 ALLSOP ACJ: This is an application for leave to appeal from orders made by the Chief Judge in Equity specifically enforcing the agreement to settle a District Court case: Humphris-Clark v Lazaridis [2010] NSWSC 318. I do not propose to outline in any detail the facts which are fundamentally agreed. Counsel conversed late in the week prior to the commencement of the District Court case (which was listed for hearing on Monday 17 August 2009) and a conversation took place with instructions on both sides in which it was offered to settle the claim, which arose out of advice and undertaking work for dental services by Dr Humphris-Clark, the defendant in the proceedings.
2 The offer was to the effect that the sum of $4,999.99 inclusive of costs was to be paid to the plaintiff in the District Court proceedings, Mr Lazaridis. The offer was made on the basis that the plaintiff give a verdict for the defendant in the proceedings with each party to bear his own costs. The settlement money were to be paid — the expression in the conversation was, “will be paid” — under a separate Deed of Release which the parties would need to enter into. The offer was stated only to be open for acceptance “until 5 pm today.”
3 Later that day, counsel for Mr Lazaridis said to counsel for Dr Humphris-Clark on the telephone, “I have spoken to the client and I am instructed to accept your offer.” The matter was then taken out of the list on the Monday. For reasons that her Honour the Chief Judge in Equity gave, her Honour found that there was a binding agreement to the effect that there would be a Deed of Release “releasing [Dr Humphris-Clark] from all claims arising out of or relating to the matters the subject of litigation”.
4 Her Honour identifies the extent of this agreement at [38] of her reasons. It is said that there is an arguable basis for error in her Honour’s reasons because this was not the agreement propounded by Dr Humphris-Clark, and there was no evidence that Dr Humphris-Clark was ready, willing and able to enter into an agreement of the character identified by her Honour. It was also argued before her Honour and pressed again on the leave application that her Honour was in effect in error in coming to the view that the parties intended an immediately binding arrangement.
5 In my view, there are insufficient grounds to contemplate an Appeal Court finding that her Honour was in any error. The events smacked of agreement from start to finish on the afternoon in which it occurred. The acceptance appeared to be unequivocal. There was certainly a document to be drafted but there is every reason to think that her Honour was correct in concluding as she did at [38] as to an immediately binding agreement and, for the reasons given by Justice Handley in discussion with Mr McClintock who appeared for Mr Lazaridis, I do not think there is any vice in failing to identify a readiness, willingness and ability to do proceed with that agreement.
6 The respondent to the application, Dr Humphris-Clark, continues to press, at least as far as I am able to understand the attachments to the response submissions, the confidentiality requirement in the deed. That is beyond the agreement and plainly it is outside the agreement. I do not understand why a release of the character identified by her Honour cannot be drafted shortly.
7 Mr McClintock identified the release that was sought in relation to matters arising from the negotiation of the deed and agreement. To the extent that they do not fall within the matters identified by her Honour, they are not part of the agreement found by her Honour. If there be any debate about the extent of the agreement, which may have to be dealt with by the Registrar in default of compliance, a court may in due course have to deal with that. That would be unfortunate, however, given the costs no doubt involved to date and the size of the verdict.
8 There is also no explanation as to why this matter was 37 days out of time. Mr McClintock asked us to infer that it was the legal representative’s fault and not the client’s fault. There is no evidence about that but I am content to rest my decision on the view that there is no sufficient basis to think that the appeal would be successful.
9 There is also the question that appears to have drifted into the propounded deed that the defendant, Dr Humphris-Clark, has 28 days to pay this money from the execution of the release. That was not the subject of any agreement and given that it was a verdict for the defendant, everything in this conversation and agreement appeared to me to bespeak an exchange of cheque and release. In any event, that may be a matter in the fullness of time for the question of the administration of the orders pursuant to order 5.
10 For these reasons, in my view, the application should be dismissed with costs.
11 HANDLEY AJA: I agree.
The orders of the Court are that the application for leave to appeal is dismissed with costs.
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