GEE v REA [1992] NSWCA 73

GEE v REA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and CLARKE JJA 4 June 1992, 4 June 1992

[1992] NSWCA 73

CONTRACT — settlement of appeal — whether binding agreement — whether conditional on form of consent orders — held: binding agreement. Masters and Another v Cameron (1954) 91 ACL 353, 361. Uther Webster and James CONTRACT — offer and acceptance — litigation of personal injuries claim against surgeon — mammaplasty performed 1974 — delayed trial heard in 1990 by Lusher AJ — dismissed claim — delay in hearing of appeal — appellant offers to withdraw appeal no order as to costs — respondent accepts consent order in such terms prepared and presented — appellant changes mind — refuses to execute consent order — respondent, on return of appal, takes preliminary point by motion that proceedings settled — Held (1) There was a binding contract. Masters and Anor vy Cameron (1954) 91 CLR 353, 361. (2) The contract was not a mere agreement to agree dependent on the terms of settlement; (3) Accordingly, the judgment to which the parties had agreed should be entered — appeal dismissed with costs; (4) Costs of motion on preliminary point awarded to respondent.

ORDERS 1. Motion upheld; the opponent to pay the costs of the motion; and 2. Appeal dismissed as agreed; no order as to costs.

Kirby P When this appeal was called on this morning counsel for the respondent took a preliminary point. It was to the effect that, as between the parties, there was a binding agreement for the settlement of the matters in contest in the appeal. It was therefore argued that the Court should proceed to give effect to the agreement, in effect by ordering that the appeal be dismissed.

The matter arises in this way. The appellant brought proceedings for the alleged negligence of the respondent in respect of an operation performed upon her as long ago as 14 September 1974. The respondent is a medical practitioner. On that day he performed on the appellant a bilateral reduction mammaplasty for the reduction of the size of the appellant's breasts. The appellant's case, which took an enormously long time to come to trial, that the operation was performed negligently.