Australian Prime Realty Pty Limited v Greenstein & Anor [2006] NSWSC 546

New South Wales Supreme Court

CITATION : Australian Prime Realty Pty Limited v Greenstein & Anor [2006] NSWSC 546

HEARING DATE(S) : 9 March 2006

JUDGMENT DATE : 9 March 2006

JURISDICTION : Civil

JUDGMENT OF : McClellan CJatCL

DECISION : 1. Judgment for plaintiff against second defendant in the sum of $125,000; 2. Second defendant to pay the plaintiff's costs of the motion.

CATCHWORDS : PROFESSIONAL NEGLIGENCE - proceedings settled following mediation - offer accepted - settlement included in deed of release - deed of settlement not concluded - whether binding agreement was entered into

Australian Prime Realty Pty Limited (Pltf) PARTIES : David Greenstein (1D) Christopher Battye (2D)

FILE NUMBER(S) : SC 20608/00

COUNSEL : G Carolan (Pltf) S OCampo (2D)

SOLICITORS : Aubrey F Crawley & Co (Pltf) Christopher Battye (2D)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

McCLELLAN CJ at CL

THURSDAY 9 MARCH 2006

20608/00 AUSTRALIAN PRIME REALTY PTY LIMITED v GREENSTEIN & ANOR

JUDGMENT 1 HIS HONOUR: This matter comes before me this morning on the plaintiff's motion seeking judgment against the second defendant. That judgment is dependant upon the plaintiff's claim reflected in a proposed declaration that the proceedings were compromised or settled on 21 September 2005 in accordance with the terms of the letter from Aubury F Crawley and Company dated that day. 2 The short history of the matter is that the parties fell into dispute and proceedings were commenced in this Court. The Hon Trevor Morling QC was engaged to mediate the dispute and at a meeting with Mr Morling, which occurred on 12 September 2005, an offer was made by the representatives of the defendants to the plaintiff's representative to settle the matter. That offer was accepted and the acceptance is evidenced in the letter from Aubury F Crawley to which I have referred. 3 So far as that letter relates to the second defendant, there were three matters of significance. The first is that the second defendant was required to a pay a sum of $125,000 within two months. The second is that settlement of the matter against both defendants was to be incorporated in a deed of release. Thirdly, the deed of settlement was to provide for the plaintiff to have a charge over a property which the second defendant then owned in Chatswood. 4 Negotiations took place in relation to the precise form of the proposed deed of settlement. Those negotiations proved unproductive and a deed has still not been executed. There is no response to the plaintiff's motion before me. 5 It has been submitted on behalf of the second defendant that the agreement which the parties reached was subject to a precondition that the parties agree to a deed of settlement and release. In effect, it was submitted that no binding agreement had been entered into and it was only contemplated such would arise when the deed was executed. 6 I do not accept this submission. It seems to me that the agreement between the parties was that the second defendant would pay $125,000 and in return receive a release of all claims, liabilities or obligations, arising from the matter in dispute in the proceedings. To my mind that agreement is sufficiently certain to be capable of enforcement. The first defendant has executed the necessary deed and the matter has been finalised as against that party. 7 There is not presently a satisfactory form of release in relation to the second defendant however I am satisfied that the plaintiff is entitled to judgment against the second defendant in accordance with the terms of the agreement, which would include the execution of the appropriate release. To that end I direct the parties to bring in short minutes of order, including an appropriate form of release. 8 The plaintiff has now produced a draft deed of release which I will mark as exhibit C in the proceedings. It is a draft which contains handwritten amendments to paragraph 1.2, 3.1 and 3.2 by a line being ruled through those paragraphs. 9 For the reasons that I have indicated above, I am satisfied that it is appropriate for me to grant the plaintiff relief but relief which differs from the order sought in the summons in one respect. What I will do is I will order that judgment be entered for the plaintiff against the second defendant in the sum of $125,000 which judgment sum is to be paid to the plaintiff before 8 May. Secondly, I will order that the second defendant execute as appropriate the draft deed of release which I have marked as exhibit C in these proceedings. That document is to be executed within fourteen days of today's date. I will further order the second defendant to pay the plaintiff's costs of this motion. **********