Legal Research
Cases
Zivkovic v Parke

Zivkovic v Parke

Case [2022] VSCA 43 31 March 2022

Contract Formation

Breach of Contract

Accord and Satisfaction

Contract Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0040

GRADIMIR ZIVKOVIC & ORS (according to the attached Schedule)	Applicants
v
JAMES CHRISTOPHER ANDREW PARKE	Respondent

---

JUDGES:	BEACH, KYROU and WALKER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 March 2022
DATE OF JUDGMENT:	31 March 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 43
JUDGMENT APPEALED FROM:	[2021] VCC 41 (Judge Tran)

---

CONTRACTS – Agreement to settle defamation proceeding brought by respondent against applicants – Agreement made after respondent obtained judgment in default of appearance and prior to assessment of damages – Applicants breached agreement, including by failing to pay settlement sum – Respondent sought assessment of damages – Judge found that agreement did not constitute accord and satisfaction which had effect of discharging respondent’s right to have damages assessed – Appeal dismissed.

CONTRACTS – Settlement agreement – Principles for determining whether settlement agreement constitutes accord executory, accord and satisfaction or accord and conditional satisfaction.

---

APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr P G Cawthorn QC with Mr H Kirimof	Rothwell Lawyers Pty Ltd
For the Respondent	Mr J P Moore QC with Dr L Hilly	Parke Lawyers Pty Ltd

BEACH JA
WALKER JA:

We have had the considerable advantage of reading the reasons of Kyrou JA, which are about to be published in this matter. We gratefully adopt his Honour’s description of the facts and procedural history, his Honour’s recitation of the principles relating to the construction of settlement agreements, his Honour’s summary of the primary judge’s reasons, and his Honour’s summary of the parties’ arguments in this Court.

The central issue in this case is whether a settlement agreement entered into in respect of a defamation proceeding was, as the primary judge found, an accord and conditional satisfaction or, as the applicants contend, an accord and satisfaction.

Justice Kyrou has concluded that the settlement agreement was an accord and satisfaction, and that leave to appeal should be granted and the appeal allowed. For the reasons which follow, we have concluded that the settlement agreement was an accord and conditional satisfaction. While we would grant leave to appeal on grounds 1 and 2 (which allege that the primary judge erred in failing to find that the settlement agreement was an accord and satisfaction and accordingly ought to have ordered a permanent stay of proceedings), we would dismiss the appeal. In view of our conclusion on this issue, it is not necessary for us to express any view about the applicants’ remaining proposed grounds of appeal (they being predicated on the proposition that the settlement agreement was an accord and satisfaction).

The settlement agreement

The primary proceeding was a claim for damages for defamation brought by the respondent against the applicants in relation to four publications referred to as the first review, the second review, the third review and the fourth review. In the proceeding below, the respondent sought a permanent injunction restraining the applicants from publishing or causing to be published any of the first, second,…

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 Zivkovic v Parke

Details

AGLC: Zivkovic v Parke [2022] VSCA 43
Case: [2022] VSCA 43
Decision Date: 31 March 2022

CaseChat Overview and Summary

The case of Zivkovic v Parke involved a dispute between the parties over a settlement agreement for a defamation proceeding initiated by the respondent against the applicants. The agreement was reached after the respondent obtained a judgment in default of appearance but prior to the assessment of damages. The applicants breached the agreement by failing to pay the settlement sum, prompting the respondent to seek an assessment of damages. The primary judge ruled that the agreement did not constitute accord and satisfaction, which would have discharged the respondent's right to have damages assessed, and dismissed the appeal. The appeal centered on the principles used to determine whether a settlement agreement constituted an accord executory, an accord and satisfaction, or an accord and conditional satisfaction.

The central legal issue before the court was the characterisation of the settlement agreement between the parties. Specifically, the court had to determine whether the agreement constituted an accord and satisfaction, which would have discharged the respondent's right to have damages assessed, or whether it was a conditional accord that remained executory until certain conditions were met. The applicants argued that the agreement was an accord and satisfaction, while the respondent contended that it was a conditional accord. The court needed to apply the relevant legal principles to decide which characterisation was appropriate.

The court examined the nature of the agreement and the circumstances surrounding its execution. It noted that the agreement was made after a judgment in default had been entered but before damages were assessed. The court found that the agreement did not include a provision that would have discharged the respondent's right to have damages assessed if the applicants failed to meet their obligations. Instead, the agreement provided for a specific payment to be made upon certain conditions being fulfilled. The court concluded that the agreement was an accord and conditional satisfaction rather than an accord and satisfaction, as the respondent's right to have damages assessed remained intact. Consequently, the appeal was dismissed, and the respondent was entitled to have damages assessed.

The final orders of the court confirmed that the settlement agreement did not constitute an accord and satisfaction, allowing the respondent to proceed with the assessment of damages. The court upheld the primary judge's decision, affirming that the respondent was entitled to have the damages assessed as per the original defamation proceeding. The applicants' appeal was dismissed with no further orders regarding the characterisation of the agreement.

Orders