| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2015 04682
| EERIK JUHANI OWERHALL | Plaintiff |
| v | |
| BOLTON & SWAN PTY LTD (ACN 153 647 360) | Defendant |
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JUDGE: | Derham AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 February 2016 |
DATE OF JUDGMENT: | 11 March 2016 |
CASE MAY BE CITED AS: | Owerhall v Bolton & Swan Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2016] VSC 91 |
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EQUITY – Application to set aside settlement agreement – Execution of agreement on advice of Solicitor engaged by plaintiff–Alleged unconscionable conduct – Plaintiff claimed special disadvantage due to intoxication by reason of medication taken – Whether special disadvantage known to the defendant – Whether defendant took unconscionable advantage of plaintiff ‑ Allegation of undue influence by plaintiff’s solicitor – Solicitor not a party to the transaction or this proceeding ‑ The principles relating to undue influence not applicable in the circumstances – Application dismissed ‑ Commercial Bank of Australia Ltd v Amadio, (1983) 151 CLR 447 ‑ Kakavas v Crown Melbourne Limited (2013) 250 CLR 392 ‑ Blomley v Ryan (1956) 99 CLR 362 ‑ Turner v Windever [2003] NSWSC 1147 (approved on appeal Turner v Windever, [2005] NSWCA 73 at [2]).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | - |
| For the Defendant | Mr J Sinisgalli, Solicitor Advocate | Ainslie Harding & Wood |
HIS HONOUR:
Introduction
The plaintiff applies for a declaration that a Deed entitled ‘Terms of Settlement’ entered into between him and the defendant on 21 May 2015 (‘Settlement Agreement’) is invalid and for an order that it be set aside.[1]
[1]Originating Motion filed 3 September 2015.
The application now before the court was initially made in the course of the hearing of a summons for taxation commenced by the plaintiff against the defendant on 2 February 2015.[2] That application was referred by the Costs Court judge to the judge sitting in the Practice Court pursuant to r 63.51 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).[3] That rule enables the Costs Court to refer to a judge of the Court any question arising on a taxation.
[2]Proceeding S CI 2015 00420 (‘Costs Court proceeding’).
[3]Order dated 24 July 2015 in the Costs Court proceeding.
The reference came on before Bell J on 7 August 2015. He construed the reference as raising two questions. First, whether the plaintiff’s application to set aside the Settlement Agreement is within the jurisdiction of the Costs Court. Second, whether, if the Costs Court has that jurisdiction, the reference judge should determine that the Agreement should be set aside and direct the Costs Court accordingly.
On 7 August 2015, Bell J decided that the application to set aside the Settlement Agreement does not relate to the “assessment, settling, taxation or review of costs” and is, therefore, beyond the jurisdiction of the Costs Court.[4] His Honour ordered that the plaintiff’s application to the Costs Court was beyond its jurisdiction, but would be within the jurisdiction…
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- Case
- [2016] VSC 91
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the plaintiff's alleged special disadvantage was known to the defendant and whether the defendant took unconscionable advantage of the plaintiff. Another issue was whether the plaintiff's solicitor exerted undue influence on the plaintiff. Notably, the solicitor was not a party to the settlement agreement or the current proceeding, complicating the applicability of principles relating to undue influence. The court had to determine if the principles set out in precedents such as Commercial Bank of Australia Ltd v Amadio, Kakavas v Crown Melbourne Limited, Blomley v Ryan, and Turner v Windever were applicable to the facts of the case.
In assessing these issues, the court held that the principles of unconscionable conduct and undue influence had to be strictly applied. The court found that the plaintiff's alleged special disadvantage due to intoxication was not known to the defendant, and there was no evidence that the defendant took unconscionable advantage of this condition. Furthermore, the court held that the principles relating to undue influence were not applicable since the solicitor was not a party to the transaction or the proceeding. Consequently, the court dismissed the plaintiff's application to set aside the settlement agreement.
The final orders of the court were that the plaintiff's application to set aside the settlement agreement was dismissed, and the settlement agreement remained binding on both parties.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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