Markos Farag v Menzies Aviation Group (Ground Services) Australia Pty Ltd (ACN 085 693 269) & Ors Markos Farag v Thai Airways International Public Company Limited (ARBN 001 084 895)

[2012] HCASL 19

MARKOS FARAG
v
MENZIES AVIATION GROUP (GROUND SERVICES) AUSTRALIA PTY LTD (ACN 085 693 269) & ORS

MARKOS FARAG
v
THAI AIRWAYS INTERNATIONAL PUBLIC COMPANY LIMITED
(ARBN 001 084 895) & ORS
[2012] HCASL 19
S243/2011
S244/2011

1. The applicant seeks special leave to appeal against orders of the Court of Appeal of the Supreme Court of New South Wales (Bathurst CJ, Allsop P and Tobias AJA) allowing the respondents' appeals against orders of a judge of the District Court of New South Wales (Elkaim DCJ).  The District Court Judge dismissed a notice of motion filed by the third respondent in S243/2011 (the first respondent in S244/2011) seeking to enforce an alleged agreement between the parties settling the proceedings.

2. On 3 February 2010, the applicant commenced defamation proceedings against the respondents in the District Court of New South Wales.  On 23 April 2010, the applicant's solicitor sent an email to each of the respondents' solicitors indicating that the applicant was prepared to discontinue the proceedings with no order as to costs.  On 27 April 2010, the solicitors for each of the respondents replied in similar terms indicating that they would accept the applicant's offer on condition that a deed of release be entered into and that consent orders dismissing the proceedings (or a notice of discontinuance) be filed by 6 May 2010.

3. On 28 April 2010, the applicant's solicitor sent an email to the solicitors for each of the respondents, indicating that the applicant accepted this counter‑offer.  On 29 April 2010, solicitors acting for the first and second respondents in S243/2011 (the second and third respondents in S244/2011) sent an email to the applicant's solicitors attaching the deed of release.  The email stated that, provided the deed was executed no later than 4.00 pm on 5 May 2010, the respondents were content for the consent orders dismissing the proceedings to be filed within seven days of the execution of the deed.  The applicant never signed the deed.  The applicant later contended that the email of 29 April 2010 amounted to a repudiation of the agreement reached on 28 April 2010.

4. On 11 June 2010, the third respondent in S243/2011 filed a notice of motion seeking to enforce the agreement reached on 28 April 2010.  On 2 December 2010, Elkaim DCJ dismissed the notice of motion.  His Honour held that the email of 29 April 2010 amounted to a repudiation because it imposed a new condition on the acceptance of the applicant's offer to settle the proceedings.  The respondents appealed.  On 17 June 2011, the Court of Appeal allowed the appeal.  Delivering the judgment of the Court of Appeal, Bathurst CJ held that the email of 29 April 2010 did not amount to a repudiation because it did not evince an intention of the respondents no longer to be bound by the agreement to settle the proceedings or to fulfil it only in a manner substantially inconsistent with their obligations.  The applicant now contends that the Court of Appeal was wrong to conclude that the email of 29 April 2010 was not a repudiation of the agreement.

5. This application raises no question of principle of general public importance which would warrant consideration by this Court, and the interests of the proper administration of justice are not engaged.  The principles governing repudiation of contracts are well settled, and there is no reason to doubt the correctness of the decision of the Court of Appeal.

6. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

K.M. Hayne
9 February 2012 S.M. Crennan