Michael Kuehn & Jennifer Kuehn v Masterton Homes (NSW) Pty Ltd t/as Masterton Homes (NSW) Pty Ltd [2020] NSWSC 1049

Supreme Court New South Wales

Medium Neutral Citation: Michael Kuehn & Jennifer Kuehn v Masterton Homes (NSW) Pty Ltd t/as Masterton Homes (NSW) Pty Ltd [2020] NSWSC 1049 Hearing dates: 27, 28 July 2020 Decision date: 11 August 2020 Jurisdiction: Equity - Technology and Construction List Before: Hammerschlag J Decision: (1) Plaintiffs and the first defendant have not compromised or settled these proceedings between them. (2) Plaintiffs' claims against the second, third and fourth defendants dismissed. Catchwords: CONTRACT – Whether parties compromised or settled proceedings between them – One of the plaintiffs sued the first defendant house builder in the NSW Civil & Administrative Tribunal (NCAT) for damages, alleging defective construction of their house – The first defendant alleged that on 29 July 2019 when the proceedings were before NCAT, a binding compromise or settlement of the claims of both plaintiffs was entered into – HELD – No binding compromise or settlement was entered into because the other plaintiff was not a party to any arrangement and, in any event, the objective intention of the parties was that there would be no binding arrangement until the terms of it were embodied in a formal deed signed by all of them. Legislation Cited: Civil Procedure Act 2005 (NSW), s 73(1) Cases Cited: Allen v Carbone (1975) 132 CLR 528 Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 B Seppelt and Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147 Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647 Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 Feldman v GNM Australia [2017] NSWCA 107 G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 622 Geebung Investments Pty Ltd v Varga Group Investments No 8 Pty Ltd (1995) 7 BPR 97578 Harold R Finger & Co Pty Ltd v Karellas Investments Pty Ltd [2016] NSWCA 123 Helmos Enterprises Pty Ltd v Jaylor Pty Ltd [2005] NSWCA 235 Howard Smith and Co Ltd v Varawa (1907) 5 CLR 68 Masters v Cameron (1954) 91 CLR 353 Perini Corporation v Commonwealth of Australia [1969] 2 NSWR 530 Sagacious Procurement Pty Ltd v Symbion Health Ltd (formerly Mayne Group Ltd) [2008] NSWCA 149 Category: Principal judgment Parties: Michael Kuehn – First Plaintiff Jennifer Kuehn – Second Plaintiff Masterton Homes (NSW) Pty Ltd t/as Masterton Homes (NSW) Pty Ltd – First Defendant MTV Legal Pty Ltd t/as MGV Lawyers – Second Defendant Michael Gerard Vitagliani – Third Defendant Erin Glover – Fourth Defendant Representation: Counsel: D Eardley – Plaintiffs A Horvath – First Defendant J Steele – Second & Third Defendants A Zahra – Fourth Defendant