Silver Chef Rentals Pty Ltd v Thumbiran - [2020] NSWSC 605

Supreme Court

New South Wales

Medium Neutral Citation: Silver Chef Rentals Pty Ltd v Thumbiran [2020] NSWSC 605
Hearing dates: On the papers
Date of orders: 21 May 2020
Decision date: 21 May 2020
Jurisdiction: Equity
Before: Darke J
Decision:
Order made under s 73 of the Civil Procedure Act 2005 (NSW) that proceedings as between plaintiff and first defendant were settled on certain terms.

Catchwords: CIVIL PROCEDURE — compromises and settlements — plaintiff chargee gave undertaking on terms to withdraw caveat to allow completion of sale of defendant’s property — plaintiff made subsequent offer to settle dispute — offer entailed different terms in relation to completion of sale — offer accepted by defendant — defendant claimed settlement agreement procured by duress or unconscionable conduct — held that making of offer did not amount to a threat not to comply with undertaking — held that no case of duress shown — held that plaintiff’s conduct not unconscionable — order made under s 73 of Civil Procedure Act 2005 (NSW) that proceedings were settled on certain terms
Legislation Cited: Civil Procedure Act 2005 (NSW), s 73
Real Property Act 1900 (NSW), s 74K
Cases Cited: Australia and New Zealand Banking Group v Karam (2005) 64 NSWLR 149; [2005] NSWCA 344
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Masters v Cameron (1954) 91 CLR 353
Category: Procedural and other rulings
Parties: Silver Chef Rentals Pty Ltd (Plaintiff)
Trevelyn Thumbiran (First Defendant)
Vanessa Thumbiran (Second Defendant)
Registrar-General of NSW (Third Defendant)
Representation:
Counsel:
Mr V Bedrossian (Plaintiff)
Mr C Liedermann (First and Second Defendant)
Solicitors:
S L F Lawyers (Plaintiff)
Byron & Associates (First and Second Defendant)

File Number(s): 2020/20537
Publication restriction: None

Judgment

The question presently before the Court is whether the proceedings as between the plaintiff and the first defendant were settled on certain terms on 11 March 2020. The plaintiff contends that the proceedings were so settled. By Notice of Motion filed on 17 April 2020 the plaintiff seeks relief pursuant to s 73 of the Civil Procedure Act 2005 (NSW) accordingly. The defendants seem to accept that an agreement was reached on 11 March 2020, but they contend that the agreement should be treated as void or otherwise as unenforceable due to either duress or unconscionable conduct on the part of the plaintiff in obtaining the agreement. The matter has been determined on the papers, the parties indicating their consent to that course.
The plaintiff relies upon the affidavit of its solicitor, Mr Christopher Yam sworn on 17 April 2020. The defendants rely upon affidavits sworn by the first defendant on 21 February 2020 and 6 May 2020. The Court has read and considered those affidavits. The Court has also considered the written submissions of counsel for the respective parties.
The proceedings were commenced by the plaintiff by Summons filed on 21 January 2020. The relief sought was principally an order extending the operation of a caveat (AP281131) the plaintiff had lodged against 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.

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Details

Case: [2020] NSWSC 605
Decision Date: 21 May 2020

CaseChat Overview and Summary

Silver Chef Rentals Pty Ltd brought an action against Thumbiran regarding a dispute over the sale of a property. The property in question was subject to a caveat lodged by Silver Chef Rentals, which was intended to be withdrawn upon certain conditions being met. The matter was heard in the Supreme Court of New South Wales. The central legal issues revolved around whether the settlement reached between the parties was valid, given the defendant's claim that the agreement was procured by duress or unconscionable conduct.

The court considered whether the settlement agreement was valid in light of the defendant’s assertions. It was determined that the offer made by Silver Chef Rentals did not constitute a threat not to comply with the initial undertaking. The court also found that the defendant had not demonstrated that the settlement was obtained through duress. Additionally, the plaintiff's conduct was not deemed unconscionable. The court held that the settlement agreement was made in good faith and that there was no evidence of any improper influence or unfair dealing.

Given the findings, the court made an order under section 73 of the Civil Procedure Act 2005 (NSW) that the proceedings were settled on the terms outlined in the agreement. This decision effectively confirmed the validity of the settlement reached between the parties and dismissed the defendant’s claims regarding the manner in which the settlement was obtained.

Orders