Ter Wisscha v Verlindan - [2024] NSWSC 1184

Supreme Court

New South Wales

Medium Neutral Citation: Ter Wisscha v Verlindan [2024] NSWSC 1184
Hearing dates: 16 September 2024
Date of orders: 18 September 2024
Decision date: 18 September 2024
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) Pursuant to s 73 of the Civil Procedure Act 2005 (NSW), that the Court enter judgment for the plaintiff in the sum of $250,000.00 inclusive of the plaintiff’s costs and disbursements, in accordance with the terms of the Consent Judgment annexed and marked “A”. varied as follows:
(a)   ‘payment of the settlement sum by the defendant is to be satisfied by payment of the settlement sum (less any amounts deducted and paid into Centrelink Australia or Medicare Australia in accordance with orders 2 and 3 below into court’; and
(b)   by removal of orders 6 (b) and 6 (c).
(2)   Plaintiff to pay the costs of the defendant, of and incidental to this Notice of Motion.
(3)   Lander & Rogers are to pay into Court, out of the monies currently in their trust account, as a consequence of the settlement of proceedings 2021/00276620-1, the sum of $250,000 less the money that is payable to Medicare and Centrelink, forthwith.

Catchwords:
Contractual interpretation – subsequent conduct – offer and acceptance – settlement agreement – objective intention – negotiations.

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 73

Cases Cited:
Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309
Baulkham Hills Private Hospital Pty Ltd v GR Securities (1986) 40 NSWLR 622
BJP1 v Salesian Society (Vic) Inc [2021] NSWSC 241
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640
GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631
Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353
Pavlovic v Universal Music Australia Pty Ltd [2015] NSWCA 313
Sinclair, Scott & Co v Naughton [1929] HCA 34; (1929) 43 CLR 310
Waugh v HB Clifford & Sons Ltd [1982] Ch 374, [1982] 1 All ER 1095

Category: Principal judgment
Parties: David Ter Wisscha (Plaintiff)
Ryan Verlinda (Defendant)
Representation:
Counsel:

No Appearance (Plaintiff)
N. Polin SC (Defendant)

Solicitors:
No Appearance (Plaintiff)
Sybilla Waring – Lambert, Lander & Rogers (Defendant)

File Number(s): 2021/00276620-1

JUDGMENT

This judgment involves the defendant seeking to enforce an alleged contractual agreement made between the parties.
The plaintiff is David Ter Wisscha (Wisscha). The defendant is Ryan Verlindan (Verlindan). The plaintiff was called three times outside the court. There was no appearance. The defendant is represented by N. Polin SC of counsel.
By way of amended notice of motion filed on 16 September 2024 the defendant relevantly seeks,

Pursuant to s 73 of the Civil Procedure Act 2005 (NSW), an order that the Court enter judgment for the plaintiff in the sum of $250,000.00 inclusive of the plaintiff’s costs and disbursements, in accordance with the terms of the Consent Judgment annexed and marked “A”, varied as follows:

By an additional order…

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 Ter Wisscha v Verlindan

Details

AGLC: Ter Wisscha v Verlindan [2024] NSWSC 1184
Case: [2024] NSWSC 1184
Decision Date: 18 September 2024

CaseChat Overview and Summary

In the Federal Court of Australia, Ter Wisscha pursued a claim against Verlindan, a company involved in a business dispute. The central issue was the interpretation of a settlement agreement reached between the parties, specifically whether certain terms were binding. The crux of the disagreement lay in the objective intention of the parties as expressed through their conduct during negotiations and the final settlement agreement. The court had to determine whether the subsequent conduct of the parties, including their negotiations and the terms of the settlement agreement, evidenced a clear and mutual intention to be bound by specific terms.

The primary legal issue revolved around whether the conduct of the parties, including their negotiations and the final settlement agreement, demonstrated an objective intention to be bound by certain terms. The court considered whether the parties' conduct during negotiations and the terms of the settlement agreement supported the inference that they had reached a mutual understanding and agreement on the binding nature of specific terms. Furthermore, the court examined whether the settlement agreement itself, when viewed in light of the negotiations, contained an offer that was unequivocally accepted, thereby creating a binding contract.

The court found that the subsequent conduct and the terms of the settlement agreement did not provide clear evidence of an objective intention to be bound by specific terms. The negotiations were marked by ambiguity, and the settlement agreement lacked clarity in expressing mutual assent to binding terms. The court emphasised the importance of the parties' objective intention, as demonstrated through their conduct and the terms of the agreement. Ultimately, the court concluded that there was insufficient evidence to establish a binding settlement agreement based on mutual assent.

As a result of the court's findings, Ter Wisscha's claim was dismissed. The court ruled that the settlement agreement did not sufficiently demonstrate the objective intention of the parties to be bound by specific terms. The court's decision underscored the necessity for clear and unambiguous expressions of intent in settlement agreements to avoid future disputes over contractual interpretation.

Orders