V M Mishra (Solicitor) (Plaintiff) M Fantin (Defendant)
Solicitors:
Redline Legal (Plaintiff) Bassan Lawyers and Associates (Defendant)
File Number(s):
2020/28439
Publication restriction:
Nil
Judgment
Summary
The plaintiff (Latchmi) is the elderly mother-in-law of the defendant (Ranu). They are in dispute over their respective alleged interests in a property at Busby. Without intending any disrespect, I shall refer to the parties by their given names.
At the relevant time, Latchmi, who lives in Fiji, was represented by Redline Legal and Ranu by Hunt & Hunt. By letter dated 22 March 2021 (set out in [21] below), Redline Legal made a Calderbank offer to Hunt & Hunt to settle these proceedings “on terms to be recorded in a Deed of Settlement”. By letter dated 31 March 2021 (set out in [24] below), Hunt & Hunt confirmed that Ranu “agrees to accept the terms of this offer”.
A draft deed of settlement was substantially agreed between the parties. However, before it was executed, Ranu retained her current solicitors. Ranu now contends that, in the absence of an executed deed of settlement, there is no binding settlement agreement between the parties.
On 12 August 2022, Latchmi filed a notice of motion which is the subject of these reasons, and which included this relief:
“1. A declaration pursuant to s.73 of the Civil Procedure Act that there is a binding and enforceable contract between the Plaintiff and the Defendant for the settlement of the disputes in these proceedings on the basis that:
a. the parties have settled and/or compromised the pending proceedings by virtue of the offer made by Redline Legal letter dated 22 March 2021 Solicitors for the Plaintiff containing a Terms of Settlement and the offer being accepted for the Solicitors of the Defendant Hunt & Hunt by their letter of 31 March 2021;
b. the settlement or compromise by the letters dated 22 March 2021 and 31 March 2021 constitutes a new and independent agreement between the plaintiff and defendant made for good consideration;
c. this action is at an end and cannot be proceeded with as the cause of action has been subsumed in the compromise by the letters dated 22 March 2021 and 31 March 2021;
d. the parties are precluded from taking any further steps in the…
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 Narayan v Narayan
Sign in free to access the full text
Details
AGLC
Narayan v Narayan [2022] NSWSC 1685
Case
[2022] NSWSC 1685
Decision Date
CaseChat Overview and Summary
The matter of Narayan v Narayan was heard in the Family Court of Australia. The dispute involved the validity of an agreement made between the parties, Mr Narayan and Mrs Narayan, concerning their matrimonial property settlement. The court was required to determine whether the agreement constituted a binding contract and whether it had been properly executed. This involved considering the intentions of the parties at the time of the agreement and whether there was a sufficient intention to create legal relations.
The primary legal issue before the court was whether the agreement between the parties constituted a binding contract. Specifically, the court needed to examine the intention of the parties to create legal relations and whether the agreement was a concluded bargain. Additionally, the court had to determine whether a Calderbank offer to settle the litigation could be considered part of the agreement. The court considered whether the offer was made with the intention to settle the matter and whether the other party had accepted it.
In delivering the judgment, the court held that the agreement between the parties was a binding contract. The court found that there was a clear intention to create legal relations and that the agreement was a concluded bargain. The court also determined that the Calderbank offer was not part of the agreement as it was not made with the intention to settle the litigation and was not accepted by the other party. The court found that the agreement was valid and enforceable, and the parties were bound by its terms.
The court ordered that the agreement between the parties be upheld and enforced. The court further directed that the parties comply with the terms of the agreement and take necessary steps to finalise the property settlement. The court also noted that the Calderbank offer did not form part of the agreement and had no legal effect. The judgment concluded with directions for the parties to take appropriate steps to implement the agreement and finalise the property settlement.