Mango Capital Pty Limited v Patsis

[2019] NSWSC 772

Supreme Court

New South Wales

Medium Neutral Citation:

Mango Capital Pty Limited v Patsis [2019] NSWSC 772

Hearing dates:

24 June 2019

Date of orders:

24 June 2019

Decision date:

24 June 2019

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. The Seventh Defendant's name in the proceedings is amended to read "John Papaspiros".

 

2. Judgment in favour of the Plaintiff as against the Seventh and Eighth Defendant in the sum of $10,000.00.

 3. The Seventh and Eighth Defendants are to pay the Plaintiffs costs of and incidental to this notice of motion on an indemnity basis.

Catchwords:

CIVIL PROCEDURE – settlement of proceedings – enforcement of settlement – where party liable signed deed imposing obligation to pay money to the plaintiff – where the party failed to sign a consent judgment to be filed in circumstances where payment not made – where payment not made – settlement enforced – s 73 Civil Procedure Act – judgment entered

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 73

Cases Cited:

Nil

Category:

Procedural and other rulings

Parties:

Mango Capital Pty Limited (Plaintiff)
John Papaspiros (Seventh Defendant)
Bourke Business Consultants Pty Ltd (Eighth Defendant)

Representation:

Counsel:
M Daniels (Plaintiff)
No appearances (Seventh and Eighth Defendants)

  Solicitors:
Diamond Conway (Plaintiff)
Self-represented (Seventh and Eighth Defendants)

File Number(s):

2016/81060

Judgment

1. These proceedings commenced on 15 March 2017 against some eight defendants. At the time of the filing of the present motion on 14 June 2019 the only remaining defendants were the seventh and eighth defendants. Some form of settlement or judgment had been achieved with regard to all of the other defendants.

2. The present motion is one seeking an order pursuant to s 73 of the Civil Procedure Act 2005 (NSW) for the entry of judgment in favour of the plaintiff as against the seventh and eighth defendants in the sum of $10,000. The motion comes about as a result of a settlement which the plaintiff says it made with the seventh and eighth defendants as part of an overall settlement with a number of the other defendants.

3. In a letter dated 22 November 2018 from the plaintiff's solicitors to a number of defendants including the seventh and eight defendants the plaintiff offered to settle the proceedings with the seventh and eighth defendants paying the sum of $10,000 to the plaintiff. On 29 November 2018 the seventh defendant, who is the director of the eighth defendant, wrote on behalf of both of those parties agreeing to the settlement proposed by the plaintiff.

4. The plaintiff's solicitors then arranged for a deed to be forwarded to the seventh and eighth defendants for execution by them. The arrangement in the correspondence was that the deeds were to be signed and that the seventh and eighth defendants were also to sign consent judgments. Those judgments would be held in escrow pending compliance by the seventh and eighth defendants of their obligation to pay the $10,000 within twenty-eight days.

5. The seventh and eighth defendants executed the deed but not the consent judgments. The plaintiffs sent a number of e-mails and letters to the seventh and eighth defendants reminding them that they needed to sign the consent judgment and ultimately threatening that if they did not do so a motion would be filed in the form of the motion with which I am now dealing. The seventh and eighth defendants ignored some of the correspondence but, in relation to the more recent correspondence, forwarded e-mails saying that they had read the e-mails sent by the plaintiff's solicitors.

6. I am satisfied that the seventh and eight defendants agreed to settle the proceedings on the basis of paying $10,000. They have signed a deed to that effect. The deed provided:

If a Party fails to pay its share of the Settlement Sum to Mango Capital strictly in accordance with Clauses 2.1 and 2.2, then:

2.7.1   Mango Capital may, without notice to the defaulting Party, file the Consent Judgment relating to the defaulting Party attached to this Deed as:

…

(c)   if the BBC Sum is not paid, Annexure “C”.

The BBC Sum is a reference to the $10,000 to be paid by the seventh and eighth defendants.

7. The present motion has been made necessary because of the failure of the seventh and eighth defendants to sign the consent judgment. That judgment would have been filed by the plaintiff in the event that the seventh and eighth defendants did not comply with their obligations under the deed. The seventh and eighth defendants defaulted on their obligation to pay the $10,000.

8. I am satisfied that both the seventh and eighth defendants have been served with the notice of motion and affidavit in support. They have not appeared this morning despite being notified that the motion would be heard today.

9. The motion seeks an ancillary order to correct the spelling of the seventh defendant's name.

10. The motion also seeks that the seventh and eighth defendants pay the plaintiff's costs of the motion on an indemnity basis. I am satisfied in the light of the correspondence between the parties that the failure of the seventh and eighth defendants to sign the consent judgment was unreasonable. In those circumstances the plaintiff is entitled to costs on an indemnity basis.

11. In the circumstances I make the following orders:

1.   The seventh defendant's name in the proceedings is amended to read John Papaspiros.

2.   Judgment for the plaintiff against the seventh and eighth defendants in the sum of $10,000.

3.   The seventh and eighth defendants are to pay the plaintiff's costs of an incidental to the notice of motion on an indemnity basis.

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Decision last updated: 25 June 2019