Vero Insurance Ltd v Tran

New South Wales

Court of Appeal

CITATION:	Vero Insurance Ltd v Tran [2008] NSWCA 358
HEARING DATE(S):	15 December 2008
JUDGMENT OF:	Macfarlan JA at 1, 20, 22; Gyles AJA at 2; Handley AJA at 21
EX TEMPORE JUDGMENT DATE:	15 December 2008
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	CONTRACTS - specific performance - where memorandum setting agreement of mediation contained unfinalised parts - whether memorandum an enforceable agreement or merely an agreement to agree - construction of clauses of agreement to mediate as to means of reaching settlement - MEDIATION - where memorandum setting agreement of mediation contained unfinalised parts - whether memorandum an enforceable agreement or merely an agreement to agree - construction of clauses of agreement to mediate as to means of reaching settlement
CATEGORY:	Principal judgment
PARTIES:	Vero Insurance Ltd - Appellant Minh Ai Tran - First Respondent Thi Nguyen Phan - Second Respondent Full Brick Homes Pty Limited (ACN 063 559 946) - Third Respondent Martin Barratt - Fourth Respondent Maureen Barratt - Fifth Respondent Ian Harley Bailey - Sixth Respondent
FILE NUMBER(S):	CA 40125/08
COUNSEL:	TGR Parker SC and PJ Bambagiotti - Appellant F Corsaro SC and B Bradley - First and Second Respondents
SOLICITORS:	Mills Oakley - Appellant Just in Case Legal - First and Second Respondents
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC 5172/06
LOWER COURT JUDICIAL OFFICER:	Hamilton J
LOWER COURT DATE OF DECISION:	22 April 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Vero Insurance Ltd v Tran [2008] NSWSC 363

40125/08

MACFARLAN JA
HANDLEY AJA
GYLES AJA

Monday, 15 December 2008

VERO INSURANCE LIMITED v MINH AI TRAN & 5 ORS

Judgment

1 MACFARLAN JA: Acting Justice Gyles will deliver the first judgment.

2 GYLES AJA: This is an appeal from the dismissal of a specific performance suit seeking enforcement of what was said to be an agreement reached at a mediation to settle finally a District Court building dispute. The primary judge founded his decision upon his construction of the agreement to mediate. The mediation agreement, which was entered into on the day before the mediation took place, had provisions which dealt with the question of settlement and enforcement. They were clauses 9 and 10, which are as follows:

“9. The Mediation may be terminated:

(a) by agreement between the parties to terminate the mediation.

(b) upon execution of a Settlement Agreement in respect of the proceedings;

(c) by the Mediator giving written or oral notification to the parties if, after consultation with the parties, the Mediator forms the view that the Mediator will be unable for whatever reason to assist the parties to achieve resolution of the proceedings.

10. (a) In the event that one or more of the disputed issues is or are settled, as the case may be, either of the parties is at liberty to enforce the terms of the settlement agreement by judicial proceedings.
(b) In those proceedings the parties may adduce evidence of and incidental to…