New South Wales Court of Appeal CITATION: Integral Energy Australia v McWilliam [2010] NSWCA 105 HEARING DATE(S): 10 May 2010 JUDGMENT DATE: 10 May 2010 JUDGMENT OF: Allsop P at 1; Giles JA at 2; Macfarlan JA at 7 EX TEMPORE JUDGMENT DATE: 10 May 2010 The orders of the Court are: 1. Notice of motion dated 7 May 2010 filed on behalf of the respondents be dismissed with costs. DECISION: 2. The appeal is dismissed. 3. There be no other order as to costs in relation to the appeal. The Court notes the agreement of the parties to settle the appeal by Integral paying the McWilliams $280,000 inclusive of costs within a reasonable time of 6 May 2010. LEGISLATION CITED: Civil Procedure Act 2005 (NSW) CATEGORY: Principal judgment Integral Energy Australia (Appellant) PARTIES: Jenelle McWilliam (First Respondent) William McWilliam (Second Respondent) FILE NUMBER(S): CA 2009/298289 COUNSEL: Mr R Montgomery (Appellant) Mr G Miller QC, Ms J Beck (Respondent) SOLICITORS: DibbsBarker Lawyers Judd Commercial Lawyers LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): 20140/2006 LOWER COURT JUDICIAL OFFICER: Hoeben J LOWER COURT DATE OF DECISION: 24 April 2009 LOWER COURT MEDIUM NEUTRAL CITATION: Janelle McWilliam & Anor v Integral Energy [2009] NSWSC 289 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 298289/09 ALLSOP P GILES JA MACFARLAN JA Monday 10 May 2010 INTEGRAL ENERGY AUSTRALIA v McWILLIAM Judgment 1 ALLSOP P: I will ask Justice Giles to deliver the first judgment. 2 GILES JA: The proceedings have settled, and the Court has indicated in argument the orders which will be made. Those orders do not accord with the orders sought by the respondents in the notice of motion filed on 7 May. The notice of motion has been supported by an affidavit of Mr Judd, and in response to the notice of motion an affidavit of Mr Brookes has also been filed. Both affidavits have been read before us. There is a question of the disposal of the notice of motion and, more particularly, the costs thereof. 3 Since the orders to be made are not in accord with those in the notice of motion, it should be dismissed. In my opinion, it should be dismissed with costs. 4 As I indicated during the course of argument, in my opinion the agreement between the parties as evidenced in the correspondence was a simple agreement providing for dismissal of the appeal and payment of a sum of money. The disputation thereafter in the correspondence contained in the affidavits should not have occurred. 5 In my opinion, the stance taken on behalf of the respondents was not a reasonable one. They were seeking more than the settlement, as agreed, entitled to them to. The notice of motion itself went even further, in that it dealt with extrinsic and unnecessary matters such as confirming the orders made by Hoeben J and remission of the matter to Hoeben J. The notice of motion was unnecessary, and should not have been required had there been the attention to reducing the settlement to appropriately agreed orders which, with respect, might have been expected of experienced commercial solicitors with the assistance of their counsel. 6 Since the notice of motion has failed and, for the reasons I have given, was, in my view, not appropriately brought. The dismissal should be accompanied by an order for costs. 7 MACFARLAN JA: I agree. 8 ALLSOP P: I also agree. I would add the following. The agreement that was reached, as Giles JA has indicated, could have been reached by appropriate contractual means to give any desired complexity or detail to its execution. It was not. There was a contract to settle this appeal on Thursday. 9 The appropriate orders of the Court are that the appeal be dismissed and, subject to orders in relation to this notice of motion, there be no order as to costs. The Court notes the agreement of the parties to settle by letters of Wednesday 5 May and Thursday 6 May for the sum of $280,000 inclusive of costs. It would be plainly implied against the background of this appeal that that would bring about the dismissal of the appeal with no order as to costs and that there would be a reasonable time implied in the agreement of the parties for the payment of that sum. That reasonable time customarily in settling actions in civil jurisdiction in this State is 21 days. Unfortunately, a degree of animosity or distrust appears to have grown up between the parties over the life of this litigation. That is most unfortunate and it has deflected the attention of the parties and their legal advisers from their real responsibilities under the duties of imperfect obligation found in ss 56 to 60 of the Civil Procedure Act 2005 (NSW). 10 If it be the case that there is a failure to pay within 21 days no doubt steps could be taken to enforce a plain, unambiguous and unqualified obligation of a significant corporation. I share Giles JA's view, and disappointment, that this matter came to court today in the way it has. 11 The orders of the Court are: 1. Notice of motion dated 7 May 2010 filed on behalf of the respondents be dismissed with costs. 2. The appeal is dismissed. 3. There be no other order as to costs in relation to the appeal. 12 The Court notes the agreement of the parties to settle the appeal by Integral paying the McWilliams $280,000 inclusive of costs within a reasonable time of 6 May 2010. ********** 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.