Narayan v Narayan [2022] NSWSC 1685

Supreme Court New South Wales

Medium Neutral Citation: Narayan v Narayan [2022] NSWSC 1685 Hearing dates: 2 December 2022 Decision date: 09 December 2022 Jurisdiction: Equity - Real Property List Before: Kunc J Decision: Binding settlement agreement had been made; order that deed recording settlement be executed Catchwords: CONTRACTS — Formation — Agreement — Intention to make concluded bargain — Calderbank offer to settle litigation Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295 Jennings v Jennings [2015] NSWSC 1826 Jingalong Pty Ltd v Todd [2015] NSWCA 7 Wong v Wong [2022] FCA 78 Category: Principal judgment Parties: Latchmi Narayan (Plaintiff) Ranu Narayan (Defendant) Representation: Counsel:

V M Mishra (Solicitor) (Plaintiff) M Fantin (Defendant)

Solicitors:

Redline Legal (Plaintiff) Bassan Lawyers and Associates (Defendant) File Number(s): 2020/28439 Publication restriction: Nil

Judgment

Summary 1. The plaintiff (Latchmi) is the elderly mother-in-law of the defendant (Ranu). They are in dispute over their respective alleged interests in a property at Busby. Without intending any disrespect, I shall refer to the parties by their given names. 2. At the relevant time, Latchmi, who lives in Fiji, was represented by Redline Legal and Ranu by Hunt & Hunt. By letter dated 22 March 2021 (set out in [21] below), Redline Legal made a Calderbank offer to Hunt & Hunt to settle these proceedings "on terms to be recorded in a Deed of Settlement". By letter dated 31 March 2021 (set out in [24] below), Hunt & Hunt confirmed that Ranu "agrees to accept the terms of this offer". 3. A draft deed of settlement was substantially agreed between the parties. However, before it was executed, Ranu retained her current solicitors. Ranu now contends that, in the absence of an executed deed of settlement, there is no binding settlement agreement between the parties. 4. On 12 August 2022, Latchmi filed a notice of motion which is the subject of these reasons, and which included this relief: "1. A declaration pursuant to s.73 of the Civil Procedure Act that there is a binding and enforceable contract between the Plaintiff and the Defendant for the settlement of the disputes in these proceedings on the basis that: a. the parties have settled and/or compromised the pending proceedings by virtue of the offer made by Redline Legal letter dated 22 March 2021 Solicitors for the Plaintiff containing a Terms of Settlement and the offer being accepted for the Solicitors of the Defendant Hunt & Hunt by their letter of 31 March 2021; b. the settlement or compromise by the letters dated 22 March 2021 and 31 March 2021 constitutes a new and independent agreement between the plaintiff and defendant made for good consideration; c. this action is at an end and cannot be proceeded with as the cause of action has been subsumed in the compromise by the letters dated 22 March 2021 and 31 March 2021; d. the parties are precluded from taking any further steps in the action except to apply to enforce the agreed terms; 2. The defendant within seven days sign and return the deed of settlement in the form annexed to this notice of motion as annexure "A"; 3. The defendant within seven days of being required to do so execute such other documents including transfer under the Real Property Act 1900 (NSW) as may be necessary to give effect to his (sic) obligations under the deed. 4. In the event of failure of the defendant within seven days to execute documents and return them, a Registrar of the Court is authorised to execute them, on her behalf with the defendant to pay for the additional costs incurred …" 1. At the hearing of the motion, the parties accepted that it was to be determined by reference to the correspondence between the parties. No other evidence was relied upon. Nor was there any dispute about the applicable legal principles. It was common ground that whether a binding settlement agreement had been concluded between the parties required their common intention to be objectively determined by reference to the language of the correspondence in its context. It was also accepted that what was, on Latchmi's case, post-contractual conduct could be taken into account on the question of whether a binding contract had been made. 2. For the reasons which follow, the Court has concluded that the parties intended to be immediately bound to a settlement upon Redline's receipt of Hunt & Hunt's letter dated 31 March 2021. That letter was received on 1 April 2021 and a binding agreement then came into existence. That conclusion is based on the terms of Redline's letter of 22 March 2021 when construed in the context of the letter being a Calderbank offer. For reasons more fully set out below, that context – in the absence of clear words to the contrary – is a very powerful objective indicator in this case of the parties' immediate intention to be bound. 3. The objective intention evinced by particular language lies in the eye and ear of the beholder. Because the parties essentially pointed to the same parts of the correspondence in support of their respective positions, the least repetitive way to set out these reasons is to deal first with the legal principles and the Court's conclusions in relation to context, before going through the correspondence chronologically and making any necessary observations about each event. 4. Mr V M Mishra, solicitor, appeared for Latchmi. Mr M Fantin of Counsel appeared for Ranu.