Reported Decision : [2000] 32 MVR 456 New South Wales Supreme Court CITATION : Lawrence v GIO [2000] NSWSC 962 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3699/00 HEARING DATE(S) : 9 October 2000 JUDGMENT DATE : 9 October 2000 PARTIES : Katherine Lawrence (P) GIO General Limited (D) JUDGMENT OF : Hamilton J COUNSEL : R I Goodridge (P) B Ramrakha, Solicitor (D) SOLICITORS : Firths (P) Bhim Ramrakha (D) CATCHWORDS : TRAFFIC LAW [168] - Statutory compensation in respect of motor vehicle accidents - New South Wales - Settled claim - Action to enforce settlement - Interest - Award of interest not precluded by motor vehicle accidents legislation. LEGISLATION CITED : Supreme Court Act 1970, s 94 CASES CITED : Richardson v GIO [2000] NSWSC 510 DECISION : Interest awarded. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J MONDAY, 9 OCTOBER 2000 3699/00 LAWRENCE v GIO GENERAL LIMITED JUDGMENT HIS HONOUR: 1 In this matter there was a settlement of a motor vehicle personal injuries claim between the present plaintiff and the present defendant. That occurred orally on 29 May 2000 at what is described in the affidavit as a "pre-trial conference". That nomenclature is perhaps misleading, because there was in fact no litigation and it would be better described as a pre litigation conference. The agreement appears to have been a purely oral agreement for the payment of a total sum of $10,000 attributed as to $7,000 to damages and $3,000 to costs in full settlement of the claim. It seems to be common ground that nothing was said at the time about the execution of a deed of settlement as a condition of the compromise taking effect or of the precise terms of any such deed. 2 In the event the defendant sent to the plaintiff a form of deed of settlement which was received on 15 June 2000. On 7 July 2000 the plaintiff's solicitor responded by sending back the deed signed by the plaintiff but with clause 3.5 crossed out. That clause if executed would have given an indemnity by the plaintiff of the defendant against various potential claims. The plaintiff's solicitor took the view that this indemnity in very wide terms was not part of the settlement agreement and ought not be agreed to by the plaintiff. There was written into the deed as executed, "If not paid in 28 days GIO will pay interest at the rate of 10% pa". Correspondence ensued with the defendant insisting that the struck out clause 3.5 was part of the agreement for compromise. It said that this arose from the fact that it always required the execution of a formal deed containing such an indemnity as part of the settlement of motor vehicle personal injuries claims and that this fact was well known to the plaintiff's solicitor at the time the oral agreement was entered into on 29 May 2000 by reason of him, as a solicitor expert in personal injuries matters, having entered into many many settlements with the defendant which had been effectuated by the execution of such deeds. 3 The events which followed remove the necessity of my adjudicating upon this dispute. The plaintiff continued to insist that there was a settlement and that clause 3.5 was not a term of it and to threaten these proceedings if it were not acknowledged that there was a binding settlement which did not include such a term. She set time limits for the acknowledgement, and these on two occasions had passed. On 23 August 2000 she issued the present summons claiming declaratory relief as to the existence of the settlement agreement and orders in effect for the specific performance of that agreement. The substantial subject matter of the proceedings ceased to exist in that, on the very day that the summons was taken out, the defendant in fact drew a cheque for the amount of the settlement. This was forwarded to the plaintiff's solicitors and received by them on 29 August 2000. It is therefore quite unnecessary for me to adjudicate upon the conflicting claims relating to the inclusion of clause 3.5 in the deed. Having received a deed with clause 3.5 excised the defendant in fact decided to pay and, that being so, I think I should deal with this summons on the basis that the defendant conceded that the plaintiff's contention in this regard was correct. What falls to be decided by me therefore is only the question of whether any interest should be payable in respect of the $10,000, which was not paid until some three months after the date of the agreement. 4 A similar subject matter has recently been dealt with by Windeyer J in Richardson v GIO Insurance [2000] NSWSC 510. On the subject matter of interest, in that case his Honour took the view that the exclusion of interest payments by the Motor Accidents Act was not operative because what was under discussion was the enforcement of a contractual claim, the contract being the compromise of the claim. His Honour took the view that in those circumstances interest might be awarded in the usual way it was awarded by the Court where contractual sums had not been paid and judgment had to be entered for them, such awards being made under s 94 of the Supreme Court Act 1970. In that case the concession that the settlement was binding did not occur until the matter was in Court before his Honour and his Honour awarded what he deemed to be an appropriate sum of interest. 5 I agree with his Honour that interest is inherently awardable in the circumstances and, indeed, this was not really contested before me by Mr Ramrakha on behalf of the defendant. The sole point which Mr Ramrakha made as to interest was that it was delay on the part of the plaintiff's own solicitor in attending to the matter which led to payment not taking place until 29 August 2000. There is some justice in what Mr Ramrakha said, because it took the plaintiff's solicitor from 15 June when the form of deed was received from the defendant to 7 July 2000 to return the deed to the defendant signed but with clause 3.5 excised. Under those circumstances in my view it was not unreasonable for the defendant not to pay until it had time to consider the deed on its return. However, in my view, particularly in view of the threats of litigation that were being made, it was not reasonable for the defendant, when apparently it did not propose to fight the issue as to whether or not the clause was included in the settlement agreement, not to pay the agreed sum until 29 August 2000. 6 In the circumstances I propose to make an order for the payment of interest but that order will be for one month only, being the month between 29 July and 29 August 2000. In my view payment ought have been made by 29 July 2000. The parties are agreed that $80 is the appropriate sum to be ordered to be paid. 7 So far as costs are concerned, as I have already indicated, the plaintiff laid down two deadlines for the matter to be dealt with before taking out the summons and had received neither the money nor any response indicating that the money would be paid before the summons was taken out. In those circumstances it is appropriate that the plaintiff ought have her costs of the proceedings. 8 I make the following orders: 1 I order that the defendant pay to the plaintiff the sum of $80 in respect of interest on the settlement moneys the subject of these proceedings. 2 I order that the defendant pay the plaintiff's costs of these proceedings. …oOo… Last Modified: 11/23/2000 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.