Simply Irresistible Pty Ltd v Couper - [2010] VSC 505

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2007 7076

SIMPLY IRRESISTIBLE PTY LTD (ACN 007 139 451)	Plaintiff
v
SAMUEL B COUPER AND OTHERS	Defendants

---

JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 November 2010
DATE OF RULING:	8 November 2010
CASE MAY BE CITED AS:	Simply Irresistible Pty Ltd v Couper
MEDIUM NEUTRAL CITATION:	[2010] VSC 505

---

EVIDENCE – Without prejudice offers of settlement in prior proceeding between the plaintiff and third parties – Some offers were made in a mediation while others were made after the mediation – Whether evidence of the offers made in the mediation is excluded by Supreme Court Act 1986 (Vic) s 24A – Whether evidence of offers is admissible for the purpose of contradicting or qualifying evidence that may mislead the Court – Evidence Act 2008 (Vic) s 131(1), (2)(g).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Bailey	Nevett Ford
For the Defendants	Mr P Booth	Obst Legal

HIS HONOUR:

Background

These are the reasons for my ruling to disallow the plaintiff’s objection to questions to be put to its witness, Patricia Maher, in cross–examination about settlement offers that had been made to the plaintiff, and which it had rejected, in a prior proceeding in this Court between the plaintiff and third parties. Some of the offers were made in a mediation that took place on 12 March 2003 (‘Mediation’), while others were made after the mediation.

The prior proceeding was commenced on 21 December 2001.[1] In the prior proceeding, the plaintiffs included Mrs Maher and the plaintiff in the current proceeding and the defendants included Millennium Markets Pty Ltd (‘Millennium’) and Isaac Brott. The defendants in the current proceeding were the solicitors on the record for the plaintiffs in the prior proceeding and were partners of the firm Riordan & Partners (‘Riordans’) at that time.
[1]The prior proceeding was number 8883 of 2001.

One of the issues between the plaintiff and Millennium in the prior proceeding was whether a condition (‘Condition’) under an agreement dated 16 March 1999 (‘Agreement’) had been satisfied. Satisfaction of the Condition would have had the effect of cancelling the sale of an apartment known as unit 20, 50 Bourke Street Melbourne (‘Apartment’) by the plaintiff to Millennium. The cancellation of the sale would have entitled the plaintiff to a re-transfer of the Apartment for nil consideration.

The key issue between the plaintiff and Mr Brott in the prior proceeding was whether Mr Brott had breached various duties that he owed to the plaintiff during the period that he had acted as the plaintiff’s solicitor in its dealings with Millennium.

The plaintiff had terminated Mr Brott’s retainer by the time it had engaged Riordans in March 2001. In the current proceeding, it is not in dispute that Riordans were engaged by Mrs Maher, the plaintiff and others to commence the prior proceeding on their behalf. There is a dispute, however, as to whether 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.

Keep reading for free

Create a free CaseChat account to read Simply Irresistible Pty Ltd v Couper and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] VSC 505
Decision Date: 8 November 2010

CaseChat Overview and Summary

Simply Irresistible Pty Ltd sued Couper in the County Court of Victoria. The plaintiff sought to adduce evidence of settlement offers made to third parties in a prior proceeding to contradict or qualify evidence that may mislead the court. Couper objected to the evidence on the basis that it was privileged or irrelevant. The court had to decide whether the evidence was excluded by Supreme Court Act 1986 (Vic) s 24A and whether it was admissible under Evidence Act 2008 (Vic) s 131(1), (2)(g).

The court held that some of the offers were made during mediation and thus were protected by s 24A of the Supreme Court Act. However, other offers were made after the mediation and were not protected by the statute. The court further held that the evidence of the offers made after the mediation was admissible to contradict or qualify evidence that may mislead the court, pursuant to s 131(1), (2)(g) of the Evidence Act.

The court allowed the plaintiff to adduce evidence of the offers made after the mediation. The court excluded evidence of the offers made during the mediation, as well as any evidence that the mediation took place. The court did not make any orders regarding costs.

This decision is significant for parties involved in mediation and settlement negotiations. It confirms that offers made during mediation are protected by statute and cannot be used in evidence. However, offers made after the mediation are not protected and can be used to contradict or qualify misleading evidence. This decision also highlights the importance of careful drafting of court documents and the need to avoid disclosing privileged information.

Orders