White v Attwells - [2020] NSWSC 1520

Supreme Court

New South Wales

Medium Neutral Citation: White v Attwells [2020] NSWSC 1520
Hearing dates: 28, 29 October 2020
Decision date: 30 October 2020
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1)   Dismiss the plaintiff’s notice of motion filed on 31 March 2020.
(2)   Declare that the parties have not entered into a binding agreement to settle these proceedings which, accordingly, remain on foot.
(3)   Subject to any application for a contrary order being made in writing to my Associate within seven days, order the plaintiff to pay the defendant’s costs of the hearing of the separate question.
(4)   Direct the parties to confer on an appropriate timetable for the filing and service of submissions on outstanding orders, including the costs of the plaintiff’s proposed filing of a notice of discontinuance and provide draft short minutes to my Associate within seven days hereof.
(5)   Grant liberty to the parties to restore the matter before me on three days’ notice to my Associate.

Catchwords:
CONTRACTS — Construction — Agreement between parties to a dispute purporting to settle proceedings — Whether parties entered binding agreement to settle proceedings — Meaning of “resolve this matter” — Objective intention of parties — Context of agreement — Whether terms of agreement sufficiently clear
CONTRACTS — Unjust contracts — Contracts Review Act 1980 (NSW) — Inequality in bargaining power — Unfair tactics — Where plaintiff approached defendant through intermediaries rather than defendant’s solicitor — Where defendant had not received advice

Legislation Cited:
Bankruptcy Act 1966 (Cth), s 60
Contracts Review Act 1980 (NSW), ss 7, 9
Legal Profession Act 2004 (NSW) (rep), ss 319, 324, 327
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Attwells v Jackson Lalic Lawyers Pty Ltd [2013] NSWSC 1510
Attwells v Jackson Lalic Lawyers Pty Ltd [2013] NSWSC 925
Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24
Jackson Lalic Lawyers Pty Ltd v Attwells [2014] NSWCA 335
Re Minister for Immigration & Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Taylor v Johnson (1983) 151 CLR 422; [1983] HCA 5
Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429; [1968] HCA 8
Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd (No. 4) [2011] NSWSC 720
White v Attwells; Attwells v White [2019] NSWSC 1278

Category: Procedural and other rulings
Parties: Gary Alan White (Plaintiff / Cross-defendant)
Noel Bruce Attwells (Defendant / Cross-claimant)
Representation:
Counsel:
J K Raftery (Plaintiff / Cross-defendant)
R D Newell (Defendant/Cross-claimant)
Solicitors:
Not applicable (Plaintiff / Cross-defendant)
L C Muriniti & Associates (Defendant / Cross-claimant)

File Number(s): 2017/239938

Judgment

Introduction

Gary White (the plaintiff), a former solicitor, claims that proceedings 2017/239938 (the fees proceedings) have settled on the basis of an agreement which he reached directly with Noel Attwells (the defendant) in…

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 1520
Decision Date: 30 October 2020

CaseChat Overview and Summary

In the case of White v Attwells, the dispute involved the interpretation of an agreement between the parties that purported to settle proceedings between them. The issue at the heart of the case was whether the parties had entered into a binding agreement to settle the proceedings. The focus was on the phrase “resolve this matter” and the objective intention of the parties, particularly in the context of the agreement. Additionally, the court had to determine whether the terms of the agreement were sufficiently clear to be enforceable. The matter was heard and determined in the Supreme Court of New South Wales.

The primary legal issue was the interpretation of the agreement between the parties, specifically whether the phrase “resolve this matter” indicated a binding settlement of the proceedings. The court considered the context of the agreement, including the negotiations and conduct of the parties, to ascertain their objective intention. Furthermore, the court had to address whether the contract review provisions of the Contracts Review Act 1980 (NSW) applied, focusing on inequality in bargaining power and the use of unfair tactics. A critical aspect of this was whether the plaintiff had approached the defendant through intermediaries rather than the defendant’s solicitor, and whether the defendant had received independent legal advice.

The court found that the phrase “resolve this matter” did not necessarily imply a binding settlement of the proceedings. The objective intention of the parties, as deduced from the context of the agreement, did not indicate that the parties had intended to settle the proceedings definitively. The court emphasised the importance of clarity in contractual terms and the necessity for independent legal advice, particularly in situations where there is an inequality in bargaining power. Given the evidence presented, the court concluded that the agreement was not sufficiently clear to be considered a binding settlement. Consequently, the court ruled in favour of the plaintiff, finding that the agreement did not constitute a binding settlement of the proceedings.

As a result of the court’s decision, the plaintiff was not bound by the agreement that purported to settle the proceedings. The court’s ruling provided clarity on the interpretation of the phrase “resolve this matter” and reinforced the importance of clear contractual terms and independent legal advice in such contexts. The final orders of the court would likely reflect this decision, with the plaintiff free to continue with the proceedings as they see fit, subject to any other terms of the agreement that may be enforceable.

Orders