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Melham v Katter

Melham v Katter

Case [2013] NSWDC 203 18 October 2013

Stay of Proceedings

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Civil Litigation & Procedure

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District Court

New South Wales

Medium Neutral Citation: Melham v Katter [2013] NSWDC 203
Hearing dates: 27 September 2013
Decision date: 18 October 2013
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) The defendants' notice of motion seeking to set aside judgment for $1 million entered on 23 July 2013 is dismissed.
(2) The defendants' oral application to amend the notice of motion and, in lieu of order (2), seek a declaration is dismissed.
(3) Defendants pay plaintiff's costs.
(4) Liberty to apply in relation to costs.
(5) Exhibits retained for 28 days.

Catchwords: PRACTICE AND PROCEDURE - set aside judgment entered following settlement on the first day of the hearing - application to set aside based on asserted non-compliance by plaintiff with provisions in the Terms of Settlement - construction of the provisions in the Terms of Settlement - whether entry of judgment against good faith (UCPR Pt 36 r 36.15) - application dismissed
Legislation Cited: District Court Act 1973 (NSW), s 134(1)(b)
Uniform Civil Procedure Rules 2005 (NSW), rr 36.15 and 36.16
Cases Cited: AT v Commissioner of Police (No 2) [2010] NSWCA 337
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Cash v Wells (1830) 109 ER 826
DJL v Central Authority (2000) 201 CLR 226
Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 40
Fulham Partners LLC v National Australian Bank [2013] NSWCA 296
GR Securities v Baulkham Hills Private Hospital (1986) 40 NSWLR 631
Hall v Busst (1960) 104 CLR 206
Harvey v Phillips (1956) 95 CLR 235
Kendell v Carnegie [2006] NSWCA 302
Mackay v Dick (1881) 6 AC 251
Meehan v Jones (1982) 149 CLR 571
Roach v B & W Steel Pty Ltd (1991) 23 NSWLR 110
Suttor v Gundowda Pty Ltd (1950) 81 CLR 413
Tonitto v Bassal (1992) 28 NSWLR 564
University of Western Australia v Gray (2009) FCR 346
Yorkshire Water Services Ltd v Sun Alliance & London Insurance PLC [1997] 2 Lloyd's Rep 21
Texts Cited: Ritchie Uniform Civil Procedure Rules (LexisNexis)
Category: Procedural and other rulings
Parties: Plaintiff/Respondent: Robert George Melhem
Defendants/Applicants: Joseph Katter and Susan Vera Katter
Representation: Plaintiff/Respondent: Mr J A Hogan-Doran / Ms T Phillips
Defendants/Applicants: Ms V Culkoff
Plaintiff/Respondent: Consolidated Lawyers
Defendants/Applicants: Comino Prassas Solicitors

File Number(s): 2011/144484
Publication restriction: None

Judgment

The nature of this application

The defendants, by notice of motion filed on 20 August 2013, seek orders as follows:

(1) Order that the judgment entered on 23 July 2013 be set aside.

(2) In the alternative the plaintiff specifically perform the sale/purchase of the unit offered under the Put and Call Option provided on 14 December 2012 pursuant to the Terms of Settlement filed in these proceedings.

(3) In the alternative the Terms of Settlement be set aside.

(4) Such other orders the court deems appropriate.

(5) Costs.

The history of the litigation

These proceedings were commenced by statement of claim filed on 3 May 2011. The plaintiff claimed that the first and second defendants were guarantors of…

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 Melham v Katter

Details

AGLC: Melham v Katter [2013] NSWDC 203
Case: [2013] NSWDC 203
Decision Date: 18 October 2013

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Melham v Katter involved the defendants seeking to set aside a judgment entered following a settlement on the first day of the hearing. The defendants argued that the plaintiff had not complied with the provisions of the Terms of Settlement, thereby justifying the setting aside of the judgment. The legal issues for the court to decide included the construction of the provisions in the Terms of Settlement and whether the entry of judgment was against good faith as per UCPR Pt 36 r 36.15.

The court examined the Terms of Settlement and found that the provisions were clear and unambiguous. It held that the plaintiff had complied with the terms, and thus, the application to set aside the judgment was without merit. The court concluded that the settlement terms were binding and that the judgment was entered in good faith. The defendants' oral application to amend the notice of motion and seek a declaration instead was also dismissed. The court found that the defendants' application was an attempt to circumvent the original application, which was not permissible.

The final orders of the court were that the defendants' notice of motion to set aside the judgment was dismissed, along with their oral application to amend the notice of motion and seek a declaration. The defendants were ordered to pay the plaintiff's costs, with liberty to apply in relation to those costs. The exhibits were to be retained for 28 days. This decision underscored the importance of adhering to the terms of a settlement agreement and the court's reluctance to interfere with a judgment entered in good faith.

Orders

Orders of the court

(1) The defendants' notice of motion seeking to set aside judgment for $1 million entered on 23 July 2013 is dismissed.

(2) The defendants' oral application to amend the notice of motion and, in lieu of order (2), seek a declaration is dismissed.

(3) Defendants pay plaintiff's costs.

(4) Liberty to apply in relation to costs.

(5) Exhibits retained for 28 days.

Background

Background to the litigation

Full text does not contain this section.

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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Actions

Citations

Melham v Katter [2013] NSWDC 203

Most Recent Citation

Compton v Ramsay Health Care Australia Pty Ltd [2016] FCAFC 106

Cases Citing This Decision

Melhem v Katter [2021] NSWCA 273
Citation 1

…Simes [2009] NSWCA 351 Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213 Melham v Katter [2013] NSWDC 203 Mr D v Ms P [2020] NSWCA 174 Patsalis v State of New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 12…
Compton v Ramsay Health Care Australia Pty Ltd [2016] FCAFC 106
Citation 2 (Para 11)

…His Honour discussed, at [13]-[16], the principles to be applied, referring to the decisions of Corney v Brien (1951) 84 CLR 343 and Wren v Mahony (1972) 126 CLR 212, and setting out passages from Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137 at 147-148 per Davies, Lockhart and Nea…
Katter v Melhem [2015] NSWCA 213
Citation 3 (Para 33)

…n for hearing before Gibson DCJ on 27 September 2013. Her Honour delivered judgment on 18 October 2013, dismissing the motion. [1] 1. Melhem v Katter [2013] NSWDC 203.…

See all citing cases →

Cases Cited

Fulham Partners LLC v National Australia Bank Ltd [2013] NSWCA 296
Citation 1 (Para 1)

…Mackay v Dick has been discussed and explained by the NSW Court of Appeal in Fulham Partners LLC v National Australian Bank [2013] NSWCA 296 at [35]-[37]:…
AT v Commissioner of Police (NSW) (No 2) [2010] NSWCA 337
Citation 2 (Para 1)

…lly entering judgment. It was described as an "amelioration of the position under the general law" by Basten JA in AT v Commissioner of Police (No 2) [2010] NSWCA 337. Basten JA considered that the rule could not be extended. Accordingly that Rule is not relied upon in the proceedings before me to set aside judgmen…
Orleans Investments Pty Ltd v MindShare Communications Ltd [2009] NSWCA 40
Citation 3 (Para 1)

…documents objectively, by reference to what a reasonable person would have understood the instrument to mean: Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 40 at [5] (Allsop P) and [287]ff (Campbell JA). Allsop P noted, at [23] that examination of surrounding circumstances was not licence for the "judicial…
Kendell v Carnegie [2006] NSWCA 302
Citation 4 (Para 1)

…The relevant principles are helpfully discussed by the New South Wales Court of Appeal in Kendell v Carnegie [2006] NSWCA 302, where Bryson JA noted the careful collection of authorities on this issue by Sorby DCJ at first instance. Bryson JA stated, at [42]:…
DJL v Central Authority [2000] HCA 17
Citation 5 (Para 1)

…final judgment before it has been formally entered, although thereafter the Court has no power to set aside a final judgment: DJL v Central Authority (2000) 201 CLR 226 at 245. The rule was introduced to overcome difficulties caused by courts automatically entering judgment. It was described as an "amelioration of th…
Byrne v Australian Airlines Ltd [1995] HCA 24
Citation 6 (Para 1)

…the terms of settlement which is inconsistent with the express nature of those terms of settlement is impermissible ( Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 448; University of Western Australia v Gray (2009) FCR 346 at [136]; Yorkshire Water Services Ltd v Sun Alliance & London Insurance PLC [1997] 2 L…
Hall v Busst [1960] HCA 84
Citation 7 (Para 1)

…A contract may be void for uncertainty where the purchase price is dependent upon the price being determined as "reasonable" (see Hall v Busst (1960) 104 CLR 206 at 228 per Walsh J). However, the purchase price here was quite clear. It was to be "at least $400,000" plus outstanding interest.…
Harvey v Phillips [1956] HCA 27
Citation 8 (Para 1)

…r basis upon which entry of judgment following terms of settlement, or the agreement upon which it is based, could be invalidated ( Harvey v Phillips (1956) 95 CLR 235 at 243-244). The submission is that entry of judgment for $1 million was against good faith because there had been a tender of the equivalent of the…
Suttor v Gundowda Pty Ltd [1950] HCA 35
Citation 9 (Para 1)

…at 637). Ms Culkoff submits that the defendants in the present case therefore have the option of "avoiding the contract" ( Suttor v Gundowda Pty Ltd (1950) 81 CLR 413 at 441). Although there was another alternative to settlement of the litigation, namely payment of the $400,000, the defendants submit that they can…
Meehan v Jones [1982] HCA 52
Citation 10 (Para 1)

…e price, this would have been expressly provided for. A contract must be construed so as to preserve the validity of the transaction ( Meehan v Jones (1982) 149 CLR 571 at 589 per Mason J). The plaintiff was quite explicit in what he wanted. It was to be a unit worth at least $400,000 plus the outstanding interest, w…
A significant example is the protracted and complex litigation in University of Western Australia v Gray [2009] FCAFC 116
Citation 11 (Para 1)

…ch is inconsistent with the express nature of those terms of settlement is impermissible ( Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 448; University of Western Australia v Gray (2009) FCR 346 at [136]; Yorkshire Water Services Ltd v Sun Alliance & London Insurance PLC [1997] 2 Lloyd's Rep 21 at 30, 33).…
Recent decisions of the NSW Court of Appeal such as Sydney South Western Area Health Service v MD [2009] NSWCA 702
Citation 12 (Para 1)

…ure of those terms of settlement is impermissible ( Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 448; University of Western Australia v Gray (2009) FCR 346 at [136]; Yorkshire Water Services Ltd v Sun Alliance & London Insurance PLC [1997] 2 Lloyd's Rep 21 at 30, 33).…
Mackay v Dick (1881) 6 App Cas 251
Citation 13

…am Hills Private Hospital (1986) 40 NSWLR 631 Hall v Busst (1960) 104 CLR 206 Harvey v Phillips (1956) 95 CLR 235 Kendell v Carnegie [2006] NSWCA 302 Mackay v Dick (1881) 6 AC 251 Meehan v Jones (1982) 149 CLR 571 Roach v B & W Steel Pty Ltd (1991) 23 NSWLR 110 Suttor v Gundowda Pty Ltd (1950) 81 CLR 413 Tonitto v Bass…
Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd 22 ER 963
Citation 14 (Para 1)

…fusing to sign the Put and Call Option, made the fulfilment of the contractual condition impossible ( GR Securities v Baulkham Hills Private Hospital (1986) 40 NSWLR 631 at 637). Ms Culkoff submits that the defendants in the present case therefore have the option of "avoiding the contract" ( Suttor v Gundowda Pty Ltd…
McKay v Dick (1881) 6 AC 251
Citation 15

…te Hospital (1986) 40 NSWLR 631 Hall v Busst (1960) 104 CLR 206 Harvey v Phillips (1956) 95 CLR 235 Kendell v Carnegie [2006] NSWCA 302 Mackay v Dick (1881) 6 AC 251 Meehan v Jones (1982) 149 CLR 571 Roach v B & W Steel Pty Ltd (1991) 23 NSWLR 110 Suttor v Gundowda Pty Ltd (1950) 81 CLR 413 Tonitto v Bassal (1992)…
Cash v Wells (1830) 109 ER 826
Citation 16 (Para 1)

…er agreement between the parties may amount to absence of good faith: Roach v B & W Steel Pty Ltd (1991) 23 NSWLR 110 at 113 - 4, citing Cash v Wells (1830) 109 ER 826.…

Legislation Cited

District Court Act 1973 (NSW) 134(1)(b)
2 mentions (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW) 36.15, 36.16
2 mentions (from Para 1)

Medium Neutral Citation:	Melham v Katter [2013] NSWDC 203
Hearing dates:	27 September 2013
Decision date:	18 October 2013
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) The defendants' notice of motion seeking to set aside judgment for $1 million entered on 23 July 2013 is dismissed. (2) The defendants' oral application to amend the notice of motion and, in lieu of order (2), seek a declaration is dismissed. (3) Defendants pay plaintiff's costs. (4) Liberty to apply in relation to costs. (5) Exhibits retained for 28 days.
Catchwords:	PRACTICE AND PROCEDURE - set aside judgment entered following settlement on the first day of the hearing - application to set aside based on asserted non-compliance by plaintiff with provisions in the Terms of Settlement - construction of the provisions in the Terms of Settlement - whether entry of judgment against good faith (UCPR Pt 36 r 36.15) - application dismissed
Legislation Cited:	District Court Act 1973 (NSW), s 134(1)(b) Uniform Civil Procedure Rules 2005 (NSW), rr 36.15 and 36.16
Cases Cited:	AT v Commissioner of Police (No 2) [2010] NSWCA 337 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Cash v Wells (1830) 109 ER 826 DJL v Central Authority (2000) 201 CLR 226 Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 40 Fulham Partners LLC v National Australian Bank [2013] NSWCA 296 GR Securities v Baulkham Hills Private Hospital (1986) 40 NSWLR 631 Hall v Busst (1960) 104 CLR 206 Harvey v Phillips (1956) 95 CLR 235 Kendell v Carnegie [2006] NSWCA 302 Mackay v Dick (1881) 6 AC 251 Meehan v Jones (1982) 149 CLR 571 Roach v B & W Steel Pty Ltd (1991) 23 NSWLR 110 Suttor v Gundowda Pty Ltd (1950) 81 CLR 413 Tonitto v Bassal (1992) 28 NSWLR 564 University of Western Australia v Gray (2009) FCR 346 Yorkshire Water Services Ltd v Sun Alliance & London Insurance PLC [1997] 2 Lloyd's Rep 21
Texts Cited:	Ritchie Uniform Civil Procedure Rules (LexisNexis)
Category:	Procedural and other rulings
Parties:	Plaintiff/Respondent: Robert George Melhem Defendants/Applicants: Joseph Katter and Susan Vera Katter
Representation:	Plaintiff/Respondent: Mr J A Hogan-Doran / Ms T Phillips Defendants/Applicants: Ms V Culkoff Plaintiff/Respondent: Consolidated Lawyers Defendants/Applicants: Comino Prassas Solicitors
File Number(s):	2011/144484
Publication restriction:	None