New South Wales Supreme Court CITATION : Gerace v Art Coating [1999] NSWSC 837 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 1516/99 HEARING DATE(S) : 14/07/99 JUDGMENT DATE : 20 August 1999 PARTIES : Maurizio Gerace v Art Coating Pty Limited JUDGMENT OF : Master Macready at 1 COUNSEL : Mr J. Armfield for the plaintiff Mr S. Campbell for the defendant SOLICITORS : Margiotta Solicitors for the plaintiff Hunt & Hunt for the defendant CATCHWORDS : Equity. Application for specific performance of agreement to commute to a lump sum a workers compensation claim.; Contracts. Whether non-fulfilment of condition subsequent makes contract void or voidable. Effect on condition requiring consent by repeal of legislative requirement for consent. Tran v JR Manufacturing Industries Pty Ltd unreported 10.11.98 West v Barker & Ors unreported 27.2.81 Gange v Sullivan (1966) 16 CLR 418 Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR Suttor v Gundowda Pty Ltd (1950) 81 CLR 418. CASES CITED : NZ Shipping Co Ltd v Societe des Ateliers et Chantiers de France (1919) AC Almond v Camrol Pty Ltd (1984) 3 BPR 9466 Childs Pty Ltd v Rumboll (1990) NSW Conv R 55-510 Reid v Bennett, McKinley 3rd Party (1955) VLR 505 Besier v Foster (1952) 94 CLR 526 Gosper v Christopherson (1985-86) 160 CLR 243 DECISION : Paragraph 47 - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION MASTER MACREADY Friday 20 August 1999 1516/99 MAURIZIO GERACE v ART COATING PTY LIMITED JUDGMENT 1 MASTER: This is the hearing of the proceedings in which the plaintiff seeks specific performance of an agreement to commute rights under the Workers Compensation Act. A Judge of the Court has made an order that the whole of the proceedings be heard by a Master. 2 A resolution of the issues in the case will require some consideration of the terms of the Workers' Compensation legislation and the way it has changed during the history of the factual background with which I am concerned. In summary the defendants resist the application on two grounds. The first is that it was a condition precedent to any liability under the agreement that the plaintiff obtain the approval of Workcover to the proposed agreement to compromise the claim by commuting the plaintiffs rights. The second ground is that the defendant suggests, when looking at the parties' actions objectively since March 1998, they have abandoned the agreement to compromise. 3 In late 1989 and early 1990 the plaintiff was exposed to some Epoxy resin paints while employed as an industrial painter with the defendant. He has not returned to work since that exposure. On 30 July 1992 he was awarded $200 per week compensation payments from 19 February 199 1. On 7 November the plaintiff was awarded the maximum rate of compensation by an award made by His Honour Judge Campbell the Chief Judge of the Compensation Court on 7 November 1996. By the this time, apart from suffering from dermatitis the plaintiff was suffering from some psychiatric problems as a result of the injuries which he had received. 4 On 4 September 1997 there was before the Court a Notice of Motion brought by the plaintiff, the applicant in those proceedings, pursuant to s 53(1) of the Workers Compensation Act 1987. That section was one which allowed the Court to determine that the incapacity is likely to be of a permanent nature and that the payments could be transported to Italy to which the plaintiff then wished to return. On that day the agreement in question was entered into and the Court stood the motion over pending a commutation application and gave the parties liberty to apply. The document is described as 'Heads of Agreement' and provides as follows:- "The applicant agrees to settle all entitlements to compensation and damages against the Respondent for a total of $130,000. Settlement is to be effected as follows: 1. By way of Commutation which is: (a) to include all/any liability to pay compensation including weekly payments, non-economic loss, Section 60 expenses and interest; (b) to Include nature and conditions of employment, together with any injuries sustained in the course of or arising out of the Applicant's employment with the Respondent, and to cover the whole body and any psychiatric injury or condition and industrial deafness; (c) to be effective from the date of employment and include a Common Law release. 2. Applicant is to make expeditious application for Commutation and to use best endeavours to secure approval. ...... 5. Other matters. Costs in relation to Notice of Motion listed for hearing 4/9/97 reserved. 7. In the event that the Commutation is not approved, matter to be listed for hearing. Dated: 9/9/97." 5 It can be seen that paragraph 2 requires the applicant, the plaintiff in this matter, to secure approval. At that stage the legislation required that any such commutation would have to be approved by the Workcover Authority of New South Wales before being dealt with by the court. Accordingly, on 13 November 1997 an application for commutation was sent by the plaintiffs solicitor to Workcover. On 12 December 1997 they received a letter dated 9 December 1997 from Workcover in which that body advised that the application could not be considered in its current form. They enclosed a set of guidelines and indicated that the application needed to be submitted by the insurer of the employer. 6 Thereafter on 26 March 1998 the plaintiffs solicitors sent a letter to the insurer's solicitors providing information in accordance with the direction of Workcover. The solicitor asked to be advised when the documents could be uplifted so that he could deliver them to Workcover. The response was a letter on 14 April 1998 indicating that the insurer confirmed that there was consent to commute the claim in the sum of $130,000. 7 The proceedings were relisted before His Honour Judge Campbell on 3 April 1998. During that hearing the solicitor for the insurer indicated that the commutation application had been prepared, submitted to Workcover and was awaiting approval. On that ground she sought to oppose the application for the order under s 53. Counsel for the applicant indicated to His Honour that those applications could take up to two years to be dealt with by Workcover so in the meantime his client wished to proceed. The matter was stood down for a while in order to allow the parties to try and ascertain the progress of the application to Workcover but that was not successful. Ultimately in the end His Honour made an order under s 53(1) that the applicant's incapacity for work resulting from the injury was likely to be of a permanent nature. This allowed the applicant, if he wished, to return to Italy and still receive his payments. 8 By a letter of 30 July 1998 the insurer's solicitors wrote to the applicant's solicitors and referred to the coming into force of amendments to the Workcover legislation, particularly s 5 1, and asked whether both parties should refrain from sending the application for commutation to the Workcover authority for their further consideration and probable rejection. It is to be noted that the amendments removed the requirement from s 51 of having to obtain the approval of Workcover and substituted a different provision which required the Compensation Court to give approval. One thing that is apparent from this letter is that the amended application which had been prepared quite some time ago by the applicants and which was forwarded to the insurer's solicitors had not been lodged with Workcover. This was later confirmed by Workcover and from documents tendered on the hearing before me. It is also quite contrary to what the Court was told in April 1998. 9 On 12 October 1998 there was a further letter from the applicant's solicitors to the insurer's solicitors in which the plaintiffs solicitors advised that the plaintiff was making arrangements to return to Italy permanently. He then went on to say:- "We are instructed that our client is prepared to accept the sum of $160,000.00 in full and final settlement of his Workers' Compensation rights on the basis that the settlement is approved immediately __His Honour Judge Campbell the Chief Judge of the Compensation Court of New South Wales pursuant to the exit provisions of the Workers' Compensation Act 1987 (as amended)." 10 The response from the insurer's solicitors was to say that the matter had been forwarded to the insurers for consideration. 11 On 19 November 1998 the applicant's solicitors filed an application for determination in the Commission seeking a commutation. The amount for which the commutation was sought was $130,000. In other words it clearly was seeking approval of the original agreement no doubt because there had been no response to the suggestion in the letter of 12 October 1998. That then led to discussions in which the insurers indicated that they did not consider that the agreement of September 1997 was still on foot. 12 The application came on for hearing on 10 December 1998. There was discussion about a decision about to be handed down by Commissioner Burke in the matter of Tran v JR Manufacturing Industries Pty Ltd and His Honour Judge Hughes struck out the matter. On the following day there was again an appearance and His Honour at the request of counsel vacated his order of 10 December 1998 and allowed the matter to remain in the list so that there could be an argument in due course as to whether the worker was entitled to bring the application for commutation. The matter was stood to the bottom of the pending list and in fact it will come on for hearing before the Commission during August this year. 13 It seems reasonably clear that any application to a court to enforce the agreement which the parties have reached is one which depends upon the general law of contract. In that circumstance it is appropriate that the application be in this court rather than the Workers Compensation Court. This is because a suit for specific performance of an agreement is not 'a matter arising under this Act' as that expression is used in s 105 of the Workplace Injury Management and Workers Compensation Act 1998. See the decision of Waddell J in West v Barker & Ors unreported 27 February 1981 dealing with the predecessor of s 51 on this aspect and the carefully reasoned judgment of Judge Burke in Tran v JR Manufacturing Industries Pty Ltd 10 November 1998. 14 It is necessary to turn to the form of the legislation both before and after 1 August 1998 to consider the actual situation of the application such as the one which was the subject of the agreement between the parties. 15 The relevant parts of s 51 of the Workers' Compensation Act 1987 which were in force at the time the agreement was made are in the following form: - "Commutation in certain cases of weekly payments. 51. This section applies: ...... (c) To a liability to make a weekly payment to a particular workers (and to the extent) approved by the Authority in special circumstances such as the following: (i) the worker requires a lump sum to establish an income-producing business; (ii) the worker requires a lump sum to enable the worker to move from the area in which he or she lives and there are substantial economic or compassionate grounds for doing so; (iii) the lump sum would otherwise be likely to assist substantially in the rehabilitation of the worker because of the special circumstances of the case. (2) A liability in respect of any weekly payment of compensation to which this section applies may, with the consent of the worker, be commuted (either in whole or in part) to a lump sum, determined by the Compensation Court, having regard to: (a) any dispute as to liability to pay compensation under this Act; (b) the injury, the age of the worker, and the occupation of the worker at the time of the occurrence of the injury; and (c) the worker's diminished ability to compete in an open labour market. (3) If - (a) the Compensation Court determines any such lump sum; (b) the worker agrees that payment of the lump sum should remove any liability to make a payment under Division 3 or 4 in respect of the injury; and (c) the terms of any relevant regulations or approval of the Authority under subsection (1) have been complied with, payment of the lump sum removes any liability to which the agreement of the worker relates. (5) An agreement as to the commutation of a payment to a lump sum shall not, nor shall the payment of the sum payable under the agreement, exempt the person by whom the payment is payable from any liability under this Act unless the sum has been determined by the Compensation Court in accordance with this Act. ............................. (9) Payment of a lump sum to which liability in respect of any weekly payment of compensation has been wholly or partially commuted under this section or redeemed under section 15 of the former Act (as applied by Schedule 6 to this Act) is taken for the purposes of sections 15, 16, 22A, 122, 151Z and 273 of this Act and section 64 of the former Act (as so applied) to be payment of the compensation concerned in pursuance of the liability to pay the compensation concerned.' 16 It can be seen that the liability to make a weekly payment which applies in this and in the majority of cases require approval by the authority. Sub-section 2 is the section providing for commutation and the Compensation Court determines the lump sum no doubt at the parties request by a consideration of what the parties agree should be the appropriate amount. 17 Effective 1 August 1998 the section was changed and the relevant sections are as follows:- "51 Exit payments by commutation in certain cases of weekly payments. (1) (Repealed) (2) A liability in respect of any weekly payment of compensation may, with the consent of the worker, be commuted (either in whole or in part) to a lump sum, determined by the Compensation Court, having regard to - (a) any dispute as to liability to pay compensation under this Act; (b) the injury, the age of the worker, the general health of the worker, and the occupation of the worker at the time of the occurrence of the injury; (c) the worker's diminished ability to compete in an open labour market; and (d) other benefits that the worker may be entitled to from any other source. (2A) The Compensation Court is not to determine a lump sum for the purposes of this section unless satisfied that: (a) the termination of liability concerned is in the best interests of the worker, and (b) the worker fully understands the effect of the termination of liability concerned and has received adequate advice as to the consequences of the termination. ............................ (3) If - (a) the Compensation Court determines any such lump sum, and (b) the worker agrees that payment of the lump sum should remove any liability to make a payment under Division 3 or 4 in respect of the injury, payment of the lump sum removes any liability to which the agreement of the worker relates. (4) (Repealed) (5) An agreement as to the commutation of a payment to a lump sum shall not, nor shall the payment of the sum payable under the agreement, exempt the person by whom the payment is payable from any liability under this Act unless the sum has been determined by the Compensation Court in accordance with this Act. ............................. (9) Payment of a lump sum to which liability in respect of any weekly payment of compensation has been wholly or partially commuted under this section or redeemed under section 15 of the former Act (as applied by Schedule 6 to this Act) is taken for the purposes of this Act, the 1998 Act and the former Act (as applied by this Act) to be payment of the compensation concerned in pursuance of the liability to pay the compensation concerned." 18 Immediately apparent is a substantive change in the form of the section. The requirement for the consent of the authority (which is Workcover Authority of New South Wales) is no longer required and instead the functions which that Authority used to perform are dealt with by the Compensation Court under s 51(2A). 19 It is necessary to have regard to the terms of the agreement which I have referred to in paragraph 4 bearing in mind the then existing statutory framework. The application for commutation and approval referred to in paragraphs 2 and 7 of that agreement clearly contemplate the approval of the authority which was necessary under s 51 in its then form. The reference to approval in clause 2 would not encompass the determination of the lump sum by the Commission. However a term would normally be implied that the parties do all things necessary to obtain such determination. The approval of Workcover has not been obtained and given the passage of time it seems unlikely that the authority could or would grant such approval given that it now has no statutory mandate to do so. 20 The question that arises as a preliminary matter is the effect of the non-granting of approval given the change in the legislation. It would seem clear that the condition requiring approval of the authority is a condition subsequent. The plaintiffs submissions were to the effect that the matter has to be looked at at the time of decree, that one sees that no approval is required and therefore one can disregard the condition. The defendant maintains to the contrary submitting that as no approval has been obtained the condition has not been satisfied and that the agreement is at an end. 21 There is also the question of whether the failure to satisfy the condition subsequent automatically leads to a termination of the contract or whether it merely gives a right to a party not in default to terminate the contract. This has been a matter of some debate in the authorities. 22 In Gange v. Sulllivan (1966) 116 CLR 418, a contract for sale contained a provision that the contract was made subject to the purchaser obtaining a certain development approval of the local council and that in the event of the council not granting such approval by 31 May 1965 the contract was to be at an end. By 31 May 1965 the council's approval had not been given and the purchaser had not waived the condition. It was held that the contract did not automatically come to an end. Taylor, Menzies and Owen JJ. said at p 44 1: "Whilst the effect of a condition must in every case depend upon the language in which it is expressed and a decision upon the meaning of one condition cannot determine the meaning of a different condition, the authorities cited do show a disposition on the part of the courts to treat non-fulfilment of a condition such as that here under consideration as rendering a contract voidable rather than void in order to forestall a party to a contract from gaining some advantage from his own conduct in securing, or contributing to, the non-fulfilment of a condition bringing the contract to an end. Accordingly we are prepared to treat non-fulfilment of the condition as rendering the contract voidable rather than void." 23 This statement of the normal inference to be drawn in such circumstances was cited with approval in Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 at 544-545 per Gibbs CJ and at 567 per Brennan J. 24 As explained in The Law of Contract by Greig & Davis at p 592, a degree of difficulty arises in this respect out of some of the language used in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418. The sale of a pastoral property was to take place under the terms of a contract containing a cl. 12 which stated that 'in the event of the consent of the Treasurer not being obtained within two months from the date hereof or within such further period as may be mutually agreed upon by the parties hereto, this contract shall be deemed to be cancelled'. The court expressed the view that this clause was 'on its true construction .... not a condition precedent but a condition subsequent' (at 443). However, the members of the court (Latham CJ, Williams and Fullagar JJ) must have been using the expression in a somewhat broader sense as meaning not a condition that automatically terminates the contract (the normal sense of the expression, certainly in the context of an interest in property created, for example, by a will), but as referring to a term which entitled a party to terminate if that party so wished. This interpretation is necessary to harmonise with the court's earlier finding that, notwithstanding the apparently clear words in the contract itself, the failure of the condition rendered the contract voidable and not void. The court relied upon a pronouncement by Lord Atkinson in New Zealand Shipping Co Ltd v Societe des Ateliers et Chantiers de France (1919) AC 1 at 9. 25 The court referred to the circumstance in that case where the condition was one that might not be fulfilled without fault on either side and said that the position was 'not quite so clear'. Here again Lord Atkinson applied, and the provision 'construed as making the contract not void but voidable' (1950) 81 CLR 418 at 441). The question of who might avoid the contract would then depend upon the circumstances. If fault on one side were involved, then the situation would be as outlined above. If, however, 'the event has happened without default on' either side, then either party may avoid the contract. But neither need do so'. 26 The proposition in Gange v Sullivan seems to have been accepted by Kearney J in Almond v Camrol Pty Ltd (1984) 3 BPR 9461 at 9466 and Bryson J in Childs Pty Ltd v Rumboll (1990) NSW Conv. R. 55510 at 55809. 27 There are two cases which deal with the situation where a contract provided for the obtaining of consent which was not necessary or where the requirement for consent was removed during the course of the contract. The first of these is Reid v Bennett, McKinley Third Party (1955) VLR 505. The contract was expressed to be 'subject to the consent of the Minister of Lands under the Soldier Settlement Commission Act of Victoria. Given that the purchaser in this case was a discharged soldier consent was not required. The court interpreted the condition as requiring the Minister's consent only if it should be legally necessary under the Soldiers Settlement Act. Having construed it in that way Scholl J held that the condition had thus no effect on the operation of the contract. 28 More difficult however is the High Court decision in Besier v Poster (1952) 94 CLR 526. This decision was given after Suttor v Gundowda Pty Ltd and before Gange v SuUivan. The contract which was made on 9 August 1948 in this case provided for the sale of land in Tasmania and that the purchase price should be as follows:- "For the purchase of the land the sum of 26,500 pounds or such sum as may be approved by the delegate of the Treasurer under the National Security (Economic Organisation) Regulations, which ever is the lesser." 29 On 20 September 1948 land sales in Tasmania ceased to be controlled by Commonwealth regulations. On the same day the Tasmanian Act controlling land sales came into operation. Ultimately an approval was given at a reduced price by the State authority but none was ever given by the Federal authority . The court held that the action for specific performance failed upon the ground that no consent was given to the contract for the higher sum of 26,500 pounds and the condition on which sale at the lower sum depended was never fulfilled in that the clause specified consent by the Federal authority and not by the State authority. The court in this case clearly treated the condition as one in which non-fulfilment terminated the contract, i.e. rendered it void rather than voidable. The court at 529 expressed itself in these terms:- "What we shall place our decision upon is the plain meaning of the provision which we have read from the contract, the provision which states that the price may be a lower sum approved by the delegate of the Treasurer under the National Security (Economic Organization) Regulations. No consent was given to the contract for the higher sum of 26,500 pounds and any approval or consent which was obtained capable of satisfying the terms of the provision was given only by the State authority. It is clear that the clause specifies the federal authority, the delegate of the Treasurer under the National Security (Economic Organization) Regulations, and we think that the plaintiff cannot escape the consequences of the fact that the condition which those words prescribe was never fulfilled, with the result that the condition on which the obligation of the contract as a sale at a lower price depends was never fulfilled. To escape from that it has been argued that the words "the delegate of the Treasurer" in the National Security (Economic Organization) Regulations, whilst literally referring to the federal authority, are really directed at specifying what may be called the legal authority for the time being who may exercise land sales control on the same principles as appear from the Economic Organization Regulations. The argument is that there is nothing except the legal position of the delegate of the Treasurer under the National Security (Economic Organization) Regulations to lead to the selection of him as the person to fix the lower price and that in reality and in substance those words are merely directed to prescribe the legal authority as he may be from time to time constituted provided that the principles upon which the authority proceeds are the same or substantially the same as those which the National Security (Economic Organization) Regulations contemplated. Accordingly, they should, as it is submitted for the plaintiff, be construed as in substance providing for the possibility of the transfer of authority from Commonwealth to State. We think that there cannot be found in the words any such wide intention. They speak for themselves. They are definite and they satisfy the authority which is erected by the Commonwealth." 30 The court also considered a submission that the implication from the circumstances was that in the context of the transfer of land sales control from Federal to State governments contracts should proceed under the new authority. The court refused to do this. 31 This is a very clear authority on legislation similar to the present situation. The legislation changed to remove the requirement for consent by the national authority and the legislation in the present case has changed by removing the requirement for the approval of Workcover. If it was not obtained one would have thought that the same result might follow. The difference between this case and the matter before me is that the provision in the former fixed the actual price and was a necessary event before the matter could be completed. The present matteris a condition requiring approval, the requirement for which has disappeared with the change of legislation. 32 Given the course of authority in the High Court and the approval of the principles in Gange v Sullivan in Perri's case it seems to me that the condition should only be construed as voidable at the option of the party not in default. 33 The failure of the defendant to forward the application to Workcover meant that the defendant was certainly in default in respect of what would be its implied obligation to do all things reasonably necessary on its part to enable the plaintiff to obtain consent. It could thus not rely on the non-fulfilment of the condition to avoid the contract at least up to 30 July 1998 and perhaps later. In any event it did not attempt to avoid the contract until late 1998 after the requirement for consent was removed. 34 The present situation is more like the position in Reid v Bennett to which I have referred. It seems to me that consent ceases to be a requirement because of the change in legislation and there is nothing upon which clause 2 can operate provided that the contract had not been abandoned by the parties prior to 1 August 1998. 35 It is necessary to turn to the question of whether the parties have abandoned the agreement. It is apparent that the agreement was reached at the time there was before the court a Notice of Motion for an order pursuant to s 53(1) of the Act to determine that the applicant's incapacity to work resulting from the injury is likely to be of a permanent nature. Section 53 is in the following terms:-" 53 Weekly payments residence outside Commonwealth (cf former s 54) (1) If a worker receiving, or entitled to receive, a weekly payment of compensation under an award ceases to reside in Australia, the worker shall thereupon cease to be entitled to receive any weekly payment, unless a medical referee or medical panel certifies, or the Compensation Court determines, that the incapacity for work resulting from the injury is likely to be of a permanent nature. (2) If the incapacity is so certified or determined to be of a permanent nature, the worker is entitled to receive quarterly the amount of the weekly payments accruing due during the preceding quarter, so long as the worker establishes, in such manner and at such intervals as the Authority may require, the worker's identity and the continuance of the incapacity in respect of which the weekly payment is payable." 36 On the making of the agreement that application was stood over pending the approval of Workcover to the commutation. The next event which happened was the restoration of the motion for hearing, presumably by the plaintiff, which came on for hearing on 3 April1998. The defendant opposed the application being dealt with because the commutation application had still not been dealt with by Workcover. In other words it was taking the position that that agreement was still in existence. The plaintiff' case as put to the Commission on that day apparently was to give the plaintiff an option of returning to Italy as well as having the commutation in due course approved. It was necessary for the applicant to have the application approved if he was to return to Italy because otherwise he could not continue to receive the full compensation payments which he was then presently receiving. However, perusal of the transcript does indicate that the plaintiff wished, in due course, if he obtained the consent of Workcover, to proceed with the application for computation. There is some inconsistency here in the sense that I would have thought that an application under s 53 which was successful would have removed one of the aspects of liability which would be necessary to be considered on the approval of the application for computation. 37 The next thing that seems to have happened is the letter of 30 July from the defendant's solicitors to the plaintiffs solicitors asking if the application for approval should still be sent. There is nothing in that which would indicate an abandonment by either party. 38 As time passed and the plaintiff continued to receive his payments the next matter of importance on this aspect is the letter of 12 October 1998 the full details of which are:- "We refer to previous correspondence in this matter and to our telephone discussion today with Mr Peter McCarthy. We advise that our client is presently making arrangements to return to Italy to live permanently. We are instructed that our client and his wife are concerned about the cost of future treatment in relation to his psychiatric condition and his contact dermatitis. There is also concern that our client will not find any suitable work in Italy because of his medical condition. Further as the agreement to accept $130,000 as a commutation settlement occurred in 1997 and our client was willing to accept that sum in that time if the Workcover Authority approved the settlement, we are instructed to seek your client's consent to the settlement sum of $130,000 being reviewed and increased to the sum of $160,000. We are instructed that our client is prepared to accept the sum of $160,000 in full and final settlement of his Workers' Compensation rights on the basis that the settlement is approved immediately by His Honour Judge Campbell the Chief Judge of the Compensation Court of New South Wales pursuant to the exit provisions of the Workers' Compensation Act 1987 (as amended). We await your advices." 39 The critical words in that letter are:- "We are instructed to seek your client's consent to the settlement sum of $130,000 being reviewed and increased to the sum of $160,000." 40 This language is not consistent with a denial of the existing agreement and importantly seeks a review from other side. 41 The second last paragraph of the letter goes on to indicate that the plaintiff was prepared to accept that increase provided that it was approved immediately by the Chief Judge. The letter was silent on whether, if $160,000 was not agreed, the plaintiff would not accept $130,000. 42 Although the matter is not without difficulty it seems to me that the plaintiff has not abandoned the earlier agreement by making the request for review. After all, one of the factors that obviously is apparent from the letter is the fact that time has passed and circumstances have changed. 43 All that happened after this correspondence was the defendant taking the position that they were not bound by the earlier agreement due to the absence of consent from Workcover and the plaintiff taking the position that he was and seeking to enforce the same. In the circumstances 1 could not conclude that there had been an abandonment of the contract by both parties. 44 I turn to what was said to be a discretionary aspects in the matter by the defendant. One of these was a reference to Gosper v Christopherson (1985-86) 160 CLR 243 where the High Court held that s 15(1) did not authorise the Commission to order redemption so as to force an unwilling employer to redeem. In Tran v JR Manufacturing Industries Pty Ltd Judge Burke has suggested that the situation may be different under the present s 51 of the Act. Whether that is so probably is not important as the obligation on the defendant to make the payment will arise from his agreement to do so by force of the agreement entered into in September 1997. 45 It would seem to me that there is no lack of mutuality and any delay that has occurred has substantially been a result of the respondents failing to process the application for commutation. In any event it seems to be a process that would take some years to complete. 46 Another matter which was raised was the question of whether or not the present application before the Workers Compensation which has been brought by the plaintiff is an appropriate one. In Tran v JR Manufacturing Industries Pty Ltd Judge Burke left this matter open suggesting that there might be some argument that the application still has to be brought by the employer. However, in the present case on the form of the legislation both before and after 1 August 1998 it would be appropriate to imply a condition that each party would do all things necessary to make application to the court for the court to determine the lump sum. Both forms of section required application to the court for an order determining the lump sum. 47 In these circumstances it seems to me that the agreement ought to be specifically performed. Accordingly, 1 propose to order that the agreement between the plaintiff and the defendant of 3 September 1997 be carried into execution and that:- 1. The defendant do whatever may be reasonably required of him on the part of the plaintiff to seek the commutation to a lump sum of the defendant's liability by the Compensation Court in the sum of $130,000. 2. That in the event that the Compensation Court commutes the liability in a lump sum of $130,000 that the defendant pay such sum to the plaintiff less any lawful deductions. I will hear any submissions on the precise form of the orders and costs. I publish my reasons. Last Modified: DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.