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…
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- AGLC
- Lazaridis v Humphris-Clark [2010] NSWCA 349
- Case
- [2010] NSWCA 349
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court of Appeal was whether the parties had reached a binding agreement to settle their dispute, evidenced by a deed of release. The applicant sought leave to appeal on the basis that there was a sufficient basis to argue that the appeal would be successful, implying a disagreement with the primary judge's findings regarding the settlement.
The Court of Appeal considered the material before it and concluded that there was no sufficient basis to grant leave to appeal. The reasoning, though not fully elaborated in the provided text, indicates that the Court found no arguable error in the primary judge's determination that a binding settlement had been reached. The Court applied the principles governing applications for leave to appeal, requiring a demonstration of a real prospect of success or other compelling reason for the appeal to be heard.
Consequently, the application for leave to appeal was dismissed, and the applicant was ordered to pay the costs of the application.
Orders
Orders of the court
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.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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