Lazaridis v Humphris-Clark - [2010] NSWCA 349

New South Wales

Court of Appeal

CITATION: Lazaridis v Humphris-Clark [2010] NSWCA 349

HEARING DATE(S): 6 December 2010

JUDGMENT DATE:
6 December 2010

JUDGMENT 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

ALLSOP ACJ
HANDLEY AJA
Monday 6 December 2010

LAZARIDIS v HUMPHRIS-CLARK

Judgment

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lazaridis v Humphris-Clark

Details

AGLC: Lazaridis v Humphris-Clark [2010] NSWCA 349
Case: [2010] NSWCA 349
Decision Date: 6 December 2010

CaseChat Overview and Summary

The appeal concerned an application for leave to appeal a decision of the primary judge. The parties, Lazaridis and Humphris-Clark, were involved in a dispute, the precise nature of which is not detailed, but it appears to have involved a settlement agreement. The application for leave to appeal was heard by Allsop ACJ and Handley AJA in the Court of Appeal of New South Wales.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Lazaridis v Humphris-Clark [2010] NSWCA 349
HEARING DATE(S):	6 December 2010
JUDGMENT DATE:	6 December 2010
JUDGMENT 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