Baltimore Technologies Pty Ltd v McDougall [2000] NSWSC 798

New South Wales Supreme Court

CITATION : Baltimore Technologies Pty Ltd v McDougall [2000] NSWSC 798 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3226/00 HEARING DATE(S) : 26 July 2000 JUDGMENT DATE : 26 July 2000

PARTIES : Baltimore Technologies Pty Limited (P) Rod McDougall (D) JUDGMENT OF : Hamilton J

COUNSEL : Dr A S Bell (P) R Dick (D) SOLICITORS : Gilbert & Tobin (P) Phillips Fox (D) CATCHWORDS : CONTRACTS [144] - General contractual principles - Discharge, breach and defences to action for breach - Accord and satisfaction - Construction of terms as to costs of agreement for compromise. DECISION : Defendant ordered to pay plaintiff's costs on indemnity basis. Summons dismissed.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

WEDNESDAY, 26 JULY 2000

3226/00 BALTIMORE TECHNOLOGIES PTY LIMITED v ROD McDOUGALL

JUDGMENT

HIS HONOUR:

1 There is an agreement to settle these proceedings and that settlement is a sensible one which reflects credit for good sense on both the parties. Unfortunately, as sometimes happens, as we all know, in the course of the settlement of difficult and complicated proceedings there is a misunderstanding as to the effect of the terms. This misunderstanding relates to costs. It is contended on the plaintiff's part that the effect of the agreement upon its proper construction is that the costs should be quantified and paid before the proceedings are dismissed. The opposing view put on behalf of the defendant simply is that there is a firm agreement that the summons be dismissed, insofar as it is not satisfied by orders, and with an order that the defendant pay the plaintiff's costs of the proceedings on an indemnity basis. 2 The material that has been laid before me as to the agreement is three letters that passed between the solicitors between 21 and 25 July 2000, both days inclusive, and four telephone conversations which took place between Ms Healy, as solicitor for the defendant, and Mr Pomeroy, as solicitor for the plaintiff. Three of those telephone conversations occurred yesterday afternoon, 25 July 2000, and the last this morning, 26 July 2000. 3 By the first letter of 21 July 2000 Ms Healy wrote to the plaintiff's solicitors saying that she was "instructed to make the following open offer in full and final settlement of these proceedings". There followed six numbered paragraphs, the last two of which were as follows: "5 Our client to pay the plaintiff's costs incurred to date. 6 Summons to be dismissed."