Mills v Futhem Pty Ltd - [2011] NSWCA 252

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mills v Futhem Pty Ltd [2011] NSWCA 252
Hearing dates: 12 July 2011
Decision date: 30 August 2011
Before: Allsop P at 1
Beazley JA at 50
Handley AJA at 51
Decision:
1. Application for leave to appeal granted.
2. Notice of appeal to be filed within 14 days.
3. Appeal allowed.
4. Orders of the District Court made on 26 May 2011 be set aside and in lieu thereof restrain the plaintiff from seeking to enforce the terms of settlement dated 16 December 2008 or the purported orders of the Court recorded in the document of 29 April 2010 and order that the plaintiff pay the defendant's costs of the notice of motion of 15 June 2010.
5. Remit the matter to the District Court for resolution of the question as to the proper form of orders to be entered consequent upon the compromise as evidenced by the terms of settlement dated 25 November 2008 and filed with the District Court on 27 November 2008.
6. Respondent pay the appellant's costs of the application for leave to appeal and the appeal.
7. Respondent have a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise qualified.
[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:
PROCEDURE - civil - entry of judgments and orders - entry occurs when judgment or orders recorded in court's computerised record system - recording of orders requires orders to be set out - no orders entered in circumstances where it was only recorded that orders existed - Uniform Civil Procedure Rules 2005 (NSW), Pt 36, r 36.11 considered.
PROCEDURE - civil - consent orders - construction of terms of settlement - power of court to determine questions about compromises and settlements - appropriate to remit matter to District Court to construe terms of settlement and make orders disposing of proceedings - Civil Procedure Act 2005 (NSW), s 73 considered.
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 73, 107, 133
District Court Rules 1973 (NSW), Pt 31, rr 14, 15
Interpretation Act 1987 (NSW), s 80
Suitors' Fund Act 1951 (NSW)
Supreme Court Rules 1970 (NSW), Pt 41
Uniform Civil Procedure Rules 2005 (NSW) rr 36.1, 36.1A, 36.1A(2), 36.11, 36.11(2), 36.11(2A), 36.12, 37.1A
Cases Cited: Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133; 75 NSWLR 462
Category: Principal judgment
Parties: Jay Lynette Mills (Applicant)
Futhem Pty Ltd (Respondent)
Representation: C R de Robbillard (Applicant)
J G Renwick, S Cirillo (Respondent)
Kent Attorneys (Applicant)
King Legal (Respondent)

File Number(s): 2011/178503
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-05-26 00:00:00

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.

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Details

Case: [2011] NSWCA 252
Decision Date: 30 August 2011

CaseChat Overview and Summary

In Mills v Futhem Pty Ltd, the Court of Appeal of New South Wales considered an appeal concerning the entry of consent orders and the construction of terms of settlement. The dispute arose from an attempt by the plaintiff to enforce terms of settlement, which the defendant argued had not been properly entered as orders of the court.

The primary legal issues before the Court of Appeal were whether the District Court had validly entered orders based on the parties' purported agreement, and if not, how the court should proceed to give effect to the parties' compromise. Specifically, the court had to determine the meaning and effect of Uniform Civil Procedure Rules 2005 (NSW) r 36.11 regarding the entry of judgments and orders, and the court's power under s 73 of the Civil Procedure Act 2005 (NSW) to determine questions relating to compromises.

The Court of Appeal reasoned that for an order to be entered under r 36.11, it must be recorded in the court's computerised system, and this recording requires the orders themselves to be set out. Merely recording that orders existed, without specifying their content, did not constitute a valid entry of judgment or order. Consequently, the purported orders of the District Court of 26 May 2011 were set aside. The court also found it appropriate to remit the matter to the District Court to construe the terms of settlement and make appropriate orders.

The Court of Appeal allowed the appeal, setting aside the District Court's orders of 26 May 2011. It restrained the plaintiff from enforcing the terms of settlement or the purported orders of 29 April 2010 and ordered the plaintiff to pay the defendant's costs of a specific notice of motion. The matter was remitted to the District Court for resolution of the proper form of orders to be entered consequent upon the compromise evidenced by the terms of settlement dated 25 November 2008. The respondent was ordered to pay the appellant's costs of the application for leave to appeal and the appeal.

Orders

Orders of the court

1. Application for leave to appeal granted.

2. Notice of appeal to be filed within 14 days.

3. Appeal allowed.

4. Orders of the District Court made on 26 May 2011 be set aside and in lieu thereof restrain the plaintiff from seeking to enforce the terms of settlement dated 16 December 2008 or the purported orders of the Court recorded in the document of 29 April 2010 and order that the plaintiff pay the defendant's costs of the notice of motion of 15 June 2010.

5. Remit the matter to the District Court for resolution of the question as to the proper form of orders to be entered consequent upon the compromise as evidenced by the terms of settlement dated 25 November 2008 and filed with the District Court on 27 November 2008.

6. Respondent pay the appellant's costs of the application for leave to appeal and the appeal.

7. Respondent have a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise qualified.

[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

Full text does not contain this section.

Medium Neutral Citation:	Mills v Futhem Pty Ltd [2011] NSWCA 252
Hearing dates:	12 July 2011
Decision date:	30 August 2011
Before:	Allsop P at 1 Beazley JA at 50 Handley AJA at 51
Decision:	1. Application for leave to appeal granted. 2. Notice of appeal to be filed within 14 days. 3. Appeal allowed. 4. Orders of the District Court made on 26 May 2011 be set aside and in lieu thereof restrain the plaintiff from seeking to enforce the terms of settlement dated 16 December 2008 or the purported orders of the Court recorded in the document of 29 April 2010 and order that the plaintiff pay the defendant's costs of the notice of motion of 15 June 2010. 5. Remit the matter to the District Court for resolution of the question as to the proper form of orders to be entered consequent upon the compromise as evidenced by the terms of settlement dated 25 November 2008 and filed with the District Court on 27 November 2008. 6. Respondent pay the appellant's costs of the application for leave to appeal and the appeal. 7. Respondent have a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise qualified. [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:	PROCEDURE - civil - entry of judgments and orders - entry occurs when judgment or orders recorded in court's computerised record system - recording of orders requires orders to be set out - no orders entered in circumstances where it was only recorded that orders existed - Uniform Civil Procedure Rules 2005 (NSW), Pt 36, r 36.11 considered. PROCEDURE - civil - consent orders - construction of terms of settlement - power of court to determine questions about compromises and settlements - appropriate to remit matter to District Court to construe terms of settlement and make orders disposing of proceedings - Civil Procedure Act 2005 (NSW), s 73 considered.
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 73, 107, 133 District Court Rules 1973 (NSW), Pt 31, rr 14, 15 Interpretation Act 1987 (NSW), s 80 Suitors' Fund Act 1951 (NSW) Supreme Court Rules 1970 (NSW), Pt 41 Uniform Civil Procedure Rules 2005 (NSW) rr 36.1, 36.1A, 36.1A(2), 36.11, 36.11(2), 36.11(2A), 36.12, 37.1A
Cases Cited:	Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133; 75 NSWLR 462
Category:	Principal judgment
Parties:	Jay Lynette Mills (Applicant) Futhem Pty Ltd (Respondent)
Representation:	C R de Robbillard (Applicant) J G Renwick, S Cirillo (Respondent) Kent Attorneys (Applicant) King Legal (Respondent)
File Number(s):	2011/178503
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2011-05-26 00:00:00