SAVILLE & SAVILLE (NO.2)

In *Saville & Saville (No. 2)*, Altobelli J of the Supreme Court of New South Wales considered a dispute concerning the interpretation and enforcement of a deed of settlement and release. The applicant sought to enforce certain terms of the deed against the respondent, who resisted the application on grounds including alleged misrepresentation and a failure of consideration.

The central legal issue before the court was whether the respondent was estopped from denying the validity and enforceability of the deed of settlement and release, or alternatively, whether the respondent had waived any rights to challenge the deed. The court was required to determine if the respondent's conduct, subsequent to the execution of the deed, amounted to an affirmation of its terms, thereby precluding them from raising defences based on alleged misrepresentation or failure of consideration.

Altobelli J applied the principles of estoppel and waiver, considering the respondent's actions and communications following the execution of the deed. The court found that the respondent had, through their conduct, unequivocally affirmed the deed and its terms, thereby waiving any right to rely on the defences of misrepresentation or failure of consideration. The judge reasoned that the respondent's continued engagement with the settlement process and their failure to promptly repudiate the deed after becoming aware of the alleged issues demonstrated an intention to be bound by its provisions.

The court ordered that the respondent was estopped from denying the validity and enforceability of the deed of settlement and release and granted the applicant's application for enforcement of the deed.