COMPSYD PTY LTD v STREAMLINE TRAVEL SERVICE PTY LTD [1989] NSWCA 46

COMPSYD PTY LTD v STREAMLINE TRAVEL SERVICE PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, PRIESTLEY JA and MEAGHER 18 October 1989, 15 December 1989 [1989] NSWCA 46

LEASEHOLD — dispute between parties — settlement of action — orders entered by Supreme Court — later conversation between solicitors for parties — whether amounts to change of settlement — whether decision to the contrary by Needham J demonstrates error — held: It does not.

CONTRACT — variation or rescission — applicable principles to distinguish.

(1) The decision was based, in part on Needham J's opinion as to the credibility of witnesses;

(2) His Honour's conclusion that the case was one of variation of the earlier settlement not a rescission of it was right.

Tallerman and Company Pty Limited v Nathan's Merchandise (Victoria) Pty Limited (1957-58) 98 CLR 93 and Morris v Baron and Company [1918] AC 1; British and Beningtons Limited v North Western Cachar Tea Company Ltd [1923] AC 48 applied;

(3) In so far as Needham J had failed to "flag" the issue of the Statute of Frauds this did not result in a mistrial. May v Gibson (1970) 71 SR (NSW) 79 distinguished.

British and Beningtons Limited v North Western Cachar Tea Company Ltd [1923] AC 48 (HL) discussed and applied.

Kirby P I agree for the reasons given by Meagher JA that the appeal should be dismissed with costs.

Priestley JA I agree with Meagher JA.

Meagher JA At all material times a parcel of land known as 226-228 Sussex Street, Sydney was owned in fee by the respondent Streamline Travel Service Pty Limited. Before 21 August 1987, the appellants Compsyd Pty Limited and Perin Pty Limited were lessees of these premises, but were in arrears in their payment of rent. This fact, together with disputes about a joint venture which all these parties contemplated entering together, led to litigation in which Compsyd Pty Limited was the plaintiff and the present respondent the defendant in the Equity Division of this Court, which on 21 August 1987 was settled before McLelland J. On that day his Honour made orders which, omitting inessential parts were as follows: