Mizky v Scicluna
[2000] VSC 203
•15 May 2000
| SUPREME COURT OF VICTORIA | |
| PRACTICE COURT | Not Restricted |
No. 6602 of 1999
| HALINA MIZKY | Plaintiff |
| v. | |
| MARIA SCICLUNA AND OTHERS | Defendants |
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JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 MAY 2000 | |
DATE OF JUDGMENT: | 15 MAY 2000 | |
CASE MAY BE CITED AS: | MIZKY v. SCICLUNA & ORS. | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 203 | |
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CATCHWORDS: Practice – Compromise of action – Enforcement of terms of compromise – By application in action .
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr. G. Bloch | Rockman & Rockman |
| For the Defendants | Mr. J. Arthur | James Karavias & Co. |
HIS HONOUR:
At the time this proceeding was instituted in the Court, the plaintiff was aged ninety. She was born in the Ukraine in 1909 and migrated to Australia in 1949. She speaks very little English and cannot read or write English.
The plaintiff's case against the first-named defendant is that she was befriended by the first-named defendant, who, in April 1998, induced her to execute certain documents in favour of the first defendant. The documents consisted of a transfer of the plaintiff's property at 17 Sunset Grove, Dandenong, to the defendant, an enduring power of attorney appointing the first-named defendant her attorney, and a will whereby the plaintiff left her estate to the first defendant. The case for the plaintiff in so far as those documents are concerned is that the plaintiff was unaware of the nature of the documents save for the will.
The plaintiff alleges that the first defendant caused the plaintiff to execute the documents, in particular the transfer, so that the first defendant would obtain possession and ownership of the plaintiff's home.
A further aspect of the plaintiff's case is a complaint she makes that the first defendant also removed from her bank account significant sums of money.
In June 1999, the first defendant evicted the plaintiff from her home at 17 Sunset Grove. On 24 August 1999, the plaintiff instituted this proceeding in the Court whereby she seeks:
"(A)An injunction restraining the Defendant whether by herself, her agents or howsoever otherwise from preventing the plaintiff living in the property."
- the property, of course, being her former home at 17 Sunset Grove.
(B) A mandatory injunction requiring the Defendant to:
(i)vacate the property and cease to live there without the authority and/or permission of the Plaintiff.
(ii) transfer the property back into the Plaintiff's name.
(C)An order requiring the Defendant to pay back to the Plaintiff all monies misappropriated from the Plaintiff's bank accounts together with interest thereon.
(D) Damages."
At about that same time, a formal complaint concerning the behaviour of the first defendant was made to the police on behalf of the plaintiff.
On 26 October 1999, the plaintiff was given leave to join her former solicitors as defendants to the proceeding. It is unnecessary to recite the plaintiff's cause of action against those defendants in my reasons for judgment.
In due course the proceeding was sent for mediation. A mediation was held on 22 January 2000, and at that mediation the proceeding was settled and terms of settlement entered into by the parties. The terms of settlement read:
"1.The first Defendant hereby agrees that upon receiving the sums referred to in paragraphs 2 and 3 hereof she shall assign all her right title and interest in the property described in certificate of Title Volume 8842 Folio 789 and known as 17 Sunset Grove, Dandenong, Victoria to the Plaintiff.
2.The Plaintiff shall within 90 days pay the sum of $55,000 to the first Defendant.
3.The second and third Defendants shall within 90 days pay the sum of $20,000 to the first Defendant.
4.The first Defendant hereby irrevocably appoints Raymond Rockman, the Plaintiff's solicitor, as her lawful attorney to execute an instrument of transfer and/or such other documents as may be necessary to effect registration of the conveyance described in Paragraph 1 hereof.
5.The first Defendant shall on 21 April, 2000 vacate the property. The first Defendant shall not wilfully damage any part of the property or the house or chattels located therein and shall maintain same in the condition they presently are fair wear and tear accepted. The first Defendant warrants that the condition of the property is no worse than when the Plaintiff vacated it.
6.The first Defendant shall permit the nominee/s of the plaintiff to inspect all parts of the said property at 11 a.m. on Monday 24 January, 2000.
7.The first Defendant shall permit the nominees of the Plaintiff to access the property for the purpose of collecting any chattels owned by the Plaintiff at all reasonable times hereafter to be agreed upon by the solicitors.
8.In the event the first Defendant fails so to vacate the property as aforesaid then the Plaintiff shall be entitled to move for judgment for possession against the first Defendant and shall be entitled to produce these terms as conclusive evidence of the first Defendant's consent to such judgment plus judgment for the reasonable costs of obtaining judgment.
9.Each of the parties hereto shall bear his/her separate legal costs of this proceeding.
10.Any order as to costs hitherto made in this proceeding shall merge in this settlement.
11.Save as to the obligations herein referred to or created each party hereby releases every other party from all claims howsoever related to the subject matter of this proceeding.
12.All the usual adjustments shall be made as at the date the said sums are paid to the first Defendant."
On 3 April last, the first defendant was charged with the following criminal offences:
"1.That at Dandenong on 30 December 1998 she dishonestly obtained property, namely $17,000, belonging to the plaintiff with the intention of permanently depriving the plaintiff of such sum by deception.
2.That the first defendant at Dandenong on 5 January 1999 dishonestly obtained property, namely $1,000, belonging to the plaintiff with the intention of permanently depriving the plaintiff of such sum by deception."
The first defendant has now failed to give effect to the terms of settlement and has refused to do so until such time as the plaintiff signs and gives to the police a statement of no complaint. The effect of the signing of a statement of no complaint may well be to cause the police to withdraw the two prosecutions they have launched against the first defendant.
At all events, on 8 May last the plaintiff filed a summons in the Court whereby she seeks the following relief:
"1.The Plaintiff recover possession of the land described in Certificate of Title Volume 8842 Folio 789 known as 17 Sunset Grove, Dandenong Victoria ("the Land").
2.The First Defendant forthwith deliver to the Plaintiff's solicitors the following:
(i) Duplicate Certificate of Title Volume 8842 Folio 789,
(ii) Transfer of Land,
(iii) Statutory Declaration as to Chattels,
(iv) Withdrawal of Caveat Number W68728D,
(v)All keys to 17 Sunset Grove, Dandenong, whereupon the Plaintiff shall settle the conveyance of the Land in accordance with he Terms of Settlement being exhibit 'APR1' to the Affidavit of Anthony Paul Rockman sworn 8 May 2000, subject to paragraph 4 of this Order.
3.The First Defendant pay the Plaintiff's costs incurred by the Plaintiff from 20 April 2000 to the date of settlement including the costs of this Application on an indemnity basis.
4.An order entitling the Plaintiff to withhold at such settlement the sum of $10,000.00 from the monies payable by the Plaintiff to the First Defendant pursuant to paragraph 2 of the Terms of Settlement for and on behalf of the Plaintiff's said costs such monies to be held in the trust account of the Plaintiff's Solicitors Messrs. Rockman & Rockman pending agreement in relation to costs or failing agreement pending taxation of costs.
5. Such further or other Orders as the Court shall deem appropriate."
The first defendant raises two principal arguments in opposition to the plaintiff's application. In the first place it is contended that it is inappropriate in the circumstances of this case that the terms of settlement be enforced in the proceeding, that the plaintiff should be required to institute a fresh proceeding seeking to enforce them. Secondly, it is contended that it was an implied term of the settlement that the plaintiff would withdraw any complaint she had made to the police concerning the behaviour of the first defendant.
The argument advanced by counsel for the first defendant in support of his first contention is that before a Court will enforce a compromise in the proceeding itself, the following matters must be established:
1. The case must be a simple one.
2. The proceeding must still be on foot.
3.The claim must be for payment of a sum of money for one of the common counts; and
4.The terms of the compromise must provide that the defendant pay to the plaintiff an agreed amount on an agreed date in full settlement of the plaintiff's claim and that the defendant has agreed that in default of payment the plaintiff may enter judgment for that amount and that the defendant will consent to that judgment.
His authority for those propositions is said to be the joint judgment of Lowe, J. and O'Bryan, J. in Roberts v. Gippsland Agricultural and Earth Moving Contracting Co. Pty. Ltd. (1956) V.L.R. 555 at p.557.
Whilst it is true that those matters were enumerated by Their Honours in that case, it is clear in my opinion that Their Honours were not purporting to lay down a rule of general application in the matter. I consider that that much is clear from the following passage in their Honours' judgment at p.558 of the report:
"We would only add that in view of the simple form which this compromise ultimately took, we have found it unnecessary to consider what limits there may be upon the jurisdiction or the discretion of the Court to entertain on motion in the action an application to enforce a compromise where the circumstances are different from those in this case. We had the assistance of counsel for the respondent on the hearing of the appeal, but the appellant appeared in person and in the absence of a full argument we have not thought it desirable to express views beyond what are necessary for the determination of the matter before us. When it becomes necessary to determine what are the limits to the enforcement by motion in the action of a compromise of the matters involved therein the careful and critical examination in the judgment of Smith J. of the principles involved and of the decisions cannot fail to be of great assistance."
Smith, J. dealt with one aspect of the matter at p.561. His Honour said:
"It will be convenient to consider how the law stands upon these general questions before proceeding to a consideration of the particular points which have been raised by the appellant herself. And it is to be observed, at the outset, that what we are concerned with here is not the class of case in which, following upon the making of an agreement for the compromising of an action, an order has been pronounced with the real or apparent consent of both parties, and one of them then says that the order should not be drawn up or should be set aside. What we are concerned with is the class of case in which, following upon the making of such an agreement, and at a stage when no order has been pronounced, one of the parties comes to Court, with the other opposing, and asks the Court to make an order to which, by the agreement, the other party undertook to give his consent, or an order directing the other party to pay money or do some other act which, by the agreement, he undertook to do. In other words it is the class of case in which a party to an action comes to the Court seeking what is, in effect, an order enforcing the agreement specifically.
In relation to that class of case there is a series of decisions by single Judges in Victoria in which a wide view has been taken as to the extent of the Court's jurisdiction to make orders upon motion in the action compromised, and as to the circumstances in which the jurisdiction may properly be exercised."
The terms of settlement in this case relate solely to the proceeding on foot between the parties. They are quite clear on their face and in my opinion there is no justification for refusing to enforce them by making appropriate orders in the action designed to achieve that result if it is otherwise in the interests of justice to do so.
As to the contention that it should be implied that the plaintiff agreed to withdraw the complaint she made to the police, I say it is not necessary that such a term be implied so as to give efficacy to the contract, nor is it so obvious that it goes without saying that such a term should be implied.
Having considered the circumstances in this case, I do not believe it can be said that it is reasonable and equitable that such a term be implied. The first defendant well knew prior to the settlement that a complaint had been made to the police concerning her behaviour because she had been interviewed by the police. Her solicitors must also have known about the matter. If the withdrawal of the complaint was to be a term of the compromise, then it was up to the first defendant and/or her solicitors to raise the matter and to have such a term included in the terms of settlement.
It was argued by counsel for the first defendant that a withdrawal of the complaint would be covered by the words "release every other party from all claims howsoever related to the subject matter of this proceeding" appearing in Paragraph 11 of the terms of settlement. I do not agree that that is so. In my opinion the, plaintiff's complaint to the police cannot be categorized as a claim by the plaintiff relating to the subject matter of the proceeding.
In my opinion, there is no justification for not now making orders in the proceeding designed to give effect to the settlement. Indeed, having regard to the age of the plaintiff, I consider that it is in the interests of justice that that now be done.
The Court orders that:
1.The plaintiff recover possession of the land described in Certificate of Title Volume 8842 Folio 789 and known as 17 Sunset Grove, Dandenong, Victoria.
2.The first defendant forthwith deliver to the plaintiff's solicitors the following documents and items:
(i) Duplicate Certificate of Title Volume 8842 Folio 789;
(ii)Transfer of Land in respect of such title executed by the first defendant;
(iii) Statutory declaration as to chattels;
(iv) Withdrawal of Caveat Number W68728D; and
(v) All keys to the said property;
whereupon the plaintiff shall settle the conveyance of the land in accordance with the terms of settlement being Exhibit "APR1" to the affidavit of Anthony Paul Rockman sworn 8 May 2000, but subject to paragraph 4 of this order
3.The first defendant pay the plaintiff's legal costs incurred by the plaintiff since 20 April 2000, including the costs of this application, all such costs to be taxed on an indemnity basis in default of agreement.
4.The plaintiff is authorized to withhold at settlement the sum of $10,000 from the moneys payable to the first defendant pursuant to paragraph 2 of the said terms of settlement for and on behalf of the plaintiff's said costs such money to be held in the trust account of the plaintiff's solicitors, Messrs. Rockman & Rockman, pending agreement between the plaintiff and the first defendant as to the quantum of such costs or failing agreement pending taxation of such costs.
I direct that this order be prepared by the plaintiff's solicitors and brought to me for authentication.
Would you have other copies of the order Mr Block.
MR BLOCH: Your Honour, as I apprehend it the form was handed up with the deletion in Paragraph 3 of one line. I don't recall Your Honour - - -
HIS HONOUR: "... pay the legal costs incurred by the plaintiff since 20 April 2000 to the date the conveyance is settled as provided by this order, including the costs of this application, all such costs to be taxed on an indemnity basis in default of agreement".
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