Thumbiran v Silver Chef Rentals Pty Ltd; Thumbiran v Silver Chef Rentals Pty Ltd [2022] NSWCA 148

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Thumbiran v Silver Chef Rentals Pty Ltd; Thumbiran v Silver Chef Rentals Pty Ltd [2022] NSWCA 148 Hearing dates: 14 July 2022 Decision date: 11 August 2022 Before: Leeming JA at [1], Brereton JA at [52], Mitchelmore JA at [53]. Decision: In 2021/329654: (1) Extend the time to appeal to 19 November 2021 and, to the extent necessary, grant leave to appeal. (2) Appeal allowed, with costs. (3) Set aside the orders made on 24 June 2020. (4) Declare that the deed dated 20 March 2020 and executed by the Registrar on 17 July 2020 does not reflect the agreement between the parties compromising proceeding 2020/20537, and order that the original instrument be delivered up for cancellation. (5) Declare that proceeding 2020/20537 was settled on the terms of the emails sent at 12.44pm and 2.32pm on 11 March 2020, reproduced in [2020] NSWSC 605 at [9] and [10]. (6) Note that the order made on 21 June 2020 that the defendants pay Silver Chef's costs of the motion filed on 17 April 2020 does not extend to costs incurred after 21 May 2020. In 2021/307674: (1) Grant leave to appeal and dispense with the requirements to file and serve a notice of appeal. (2) Allow the appeal with costs. (3) Set aside the orders made in the Commercial List on 13 October 2021, and in lieu thereof dismiss Silver Chef's notice of motion filed on 23 August 2021 with costs. Catchwords: PROCEDURE – compromises and settlements – litigation compromised by defendant accepting plaintiff's offer – defendant declined to execute deed – Court determined binding settlement reached – Court then authorised Registrar to execute deed on defendant's behalf – deed as executed by Registrar departed from terms of binding settlement – legal effect of recitals in deed – subsequent proceedings brought by defendant summarily dismissed – whether decision materially affected by deed – appeals allowed, deed ordered to be delivered up for cancellation Legislation Cited: Civil Procedure Act 2005 (NSW), s 73, 94 Judicature Act 1884 (UK), s 14 Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549; [1987] HCA 15 Astro Exito Navegacion SA v Southland Enterprise Co Ltd [1983] 2 AC 787 Blair v Curran (1939) 62 CLR 464; [1939] HCA 23 Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 Commonwealth Bank of Australia v Dariusz Adam Gaszewski [2006] NSWSC 772 Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407 Greer v Kettle [1938] AC 156 Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 Prime Sight Ltd v Lavarello [2014] 1 AC 436; [2013] UKPC 22 Silver Chef Rentals Pty Ltd v Thumbiran [2020] NSWSC 605 Thumbiran v Silver Chef Rentals Pty Ltd [2021] NSWSC 1300 Texts Cited: K Handley, "Reinventing estoppel in the Privy Council" (2014) 130 Law Quarterly Review 370 J Oswald, Contempt of Court (William Clowes and Sons, 1895) G Stuckey and C Irwin, Parker's Practice in Equity (Lawbook Co of Australasia Pty Ltd, 1949) Category: Principal judgment Parties: Trevelyn Thumbiran (First Appellant in each appeal) Absolute Pump Services Pty Ltd (Second Appellant in each appeal) Silver Chef Rentals Pty Ltd (Respondent in 2021/329654; First Respondent in 2021/307674) Donny's Pizzeria Pty Ltd (Second Respondent in 2021/307674) Antonio Andrea Telese (Third Respondent in 2021/307674) Representation: Counsel: P Zappia QC, G Lucarelli (Appellants in each appeal) J Baird (Silver Chef in each appeal)