New South Wales Supreme Court CITATION : Humphris-Clark v Lazaridis [2010] NSWSC 318 HEARING DATE(S) : 19 April 2010 JUDGMENT DATE : 27 April 2010 JUDGMENT OF : Bergin CJ in Eq DECISION : Declarations in paragraphs 1 to 3 of the Summons. Orders in paragraphs 4, 5 and 7 of the Summons. CATCHWORDS : CONTRACT - agreement to settle dispute between parties - deed of release - whether parties reached binding agreement Abadeen Group Pty Ltd v Bluestone Property Services Pty Ltd & Ors; Brown & Ors v Hodgkinson & Ors [2009] NSWCA 386 Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 Gorrick v Santisi [2010] FMCA 2 CASES CITED : Love & Stewart Ltd v S Instone & Co Ltd (1917) 33 TLR 475 Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; (2001) 210 CLR 181 Masters v Cameron (1954) 91 CLR 353 Needlework Warehouse Pty Ltd v Chansonette Pty Ltd [2005] FCA 1525; (2005) 226 ALR 252 QLD Holdings –1 v Collingwood Holdings [2009] NSWSC 732 Sinclair Scott & Co Ltd v Naughton (1929) 43 CLR 310 PARTIES : Peter Humphris-Clark (Plaintiff) Ilias Lazaridis (Defendant) FILE NUMBER(S) : SC 2009/290665 COUNSEL : B Shields (Plaintiff) B R McClintock SC (Defendant) SOLICITORS : Guild Lawyers (Plaintiff) Thomas Mitchell Solicitors (Defendant) - 18 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BERGIN CJ in Eq 27 APRIL 2010 2009/290665 PETER HUMPHRIS-CLARK v ILIAS LAZARIDIS JUDGMENT 1 By Summons filed on 25 September 2009 the plaintiff, Dr Peter Humphris-Clark, seeks a declaration that by agreement with the defendant, Ilias Lazaridis, made on 14 August 2009 (the Agreement), the defendant agreed to: (1) accept the sum $4,999.99 in full and final satisfaction of the claims made by the defendant against the plaintiff in District Court proceedings (No. 204/08) (the District Court proceedings); (2) consent to a verdict being entered in the District Court proceedings in favour of the plaintiff; and (3) execute a Deed of Release. 2 The plaintiff also seeks declarations that the Agreement is valid and enforceable and that he is entitled to have the Agreement specifically performed and carried into effect. Consequential orders are sought. Although the plaintiff in these proceedings was the defendant in the District Court proceedings and the defendant in these proceedings was the plaintiff in the District Court proceedings, I will refer to them as the plaintiff and defendant as named in these proceedings. 3 The matter was heard on 19 April 2010 when Mr BJA Shields, of counsel, appeared for the plaintiff and Mr BR McClintock SC appeared for the defendant. The District Court proceedings 4 In the District Court proceedings, which were to be heard in Newcastle, the defendant claimed that the plaintiff was negligent in the provision of dental services to him on a number of occasions between 29 December 1999 and 7 January 2002. The particulars of the allegations of negligence included a claim that the plaintiff performed an inappropriate and unnecessary local anaesthetic that resulted in the defendant sustaining nerve damage and consequential neuropathic trigeminal pain. The plaintiff filed a Defence denying that he was negligent in the provision of the dental services to the defendant. 5 The proceedings were listed for hearing in the District Court at Newcastle on 17 August 2009. 6 On 12 August 2009 the plaintiff's solicitors wrote to the defendant's solicitors in terms which included the following: We are instructed to make a compromise offer that the defendant will agree to bear his legal costs to date if a consent verdict is entered in his favour. This offer is open for acceptance until 12:00 noon on Friday 14 August 2009. This offer is made in accordance with the principles enunciated in the decision of Calderbank v Calderbank. Please note that in the event this offer is not accepted, and the plaintiff's claim against the defendant fails, we will call for production of this letter in support of an argument that the defendant is entitled to an order for costs and for those costs to be paid on an indemnity basis from 12:00 noon Friday 14 August 2009. 7 The plaintiff's solicitor, Marianne Nicolle, met with the plaintiff on Friday 14 August 2009 in her office in Newcastle, for the purpose of having a telephone conference with counsel for the plaintiff, Jason Downing. Mr Downing had received a telephone message from counsel for the defendant, Mark Lawson, and on returning his call the following conversation took place: Lawson: I have now read the brief. I agree with you, it's not much of a claim. However is there any way you could get $10,000 or even $5,000 in order to settle the claim? Downing: I assume you mean inclusive of costs? Lawson: Yes. Downing: I will need to get some instructions and I will call you back. 8 Mr Downing then telephoned Ms Nicolle (at whose office the plaintiff was present) and the following conversation took place: Downing: I spoke to Mark Lawson. He has asked whether we could get him $10,000 or even $5,000 inclusive of costs in order to settle the claim. My view is that as weak as the claim is, if a settlement of around $5,000 inclusive of costs could be negotiated, it would be a sensible resolution of the matter. Ms Nicolle: I agree it would be worthwhile offering something like $5,000 inclusive of costs. However, my understanding is that if the settlement is $5,000 or more, we will need to notify the HIC and make a payment to Medicare. Rather than putting $5,000, you could put $4,999.99 and explain to the plaintiff's barrister why such a settlement would be better for his client. Also, as part of any settlement, I will require a verdict in Dr Humphris-Clark's favour and an order that each party pay his own costs, with the settlement monies to be paid under a separate Deed of Release. You can put the offer to the plaintiff on the basis that it will only be open until the close of business today. Downing: I will call Mark Lawson now and let you know what he says. 9 Mr Downing then telephoned Mr Lawson and the following conversation took place: Downing: I am instructed to put $4,999.99 inclusive of costs. My solicitor has told me that if the settlement is for $5,000 or more, the HIC will need to be notified and a deduction will need to be made in respect of any past treatment. Consequently, the plaintiff may well get more out of the settlement if it is just under $5,000. I am instructed that the offer is to be made on the basis that the plaintiff gives a verdict for the defendant in the proceedings, with each party to bear his own costs. The settlement monies will be paid under a separate Deed of Release which the parties will need to enter into. The offer is only open for acceptance until 5 pm today. Lawson: I will need to talk to my client and get some instructions. He is currently driving back up to Newcastle along the expressway and it may be difficult for him to get mobile reception. I will call you back as soon as I can. 10 At approximately 4:55pm Mr Downing received a voice message on his mobile telephone from Mr Lawson which was: I have spoken to the client and I am instructed to accept your offer. Please give me a call back and we can work out who will appear on Monday. 11 Mr Downing then rang Mr Lawson and the following conversation took place: Lawson: I spoke with the client. I am instructed to accept your offer. What will we do on Monday? Downing: My solicitor is based in Newcastle, so I am sure that she can appear and inform the court the matter is settled. She can have the matter stood over so we can get the Terms of Settlement done and get the Deed of Release signed. Lawson: That should be fine. I will let my solicitor know. 12 Mr Lazaridis gave unchallenged evidence that he had a conversation with Mr Lawson in mid afternoon on 14 August 2009 at his Chambers in Newcastle. Mr Lazaridis claimed that the conversation was as follows: Lawson: It looks like the only way it's going to settle is if you agree to a verdict for the defendant with each party to pay their own costs. Lazaridis: So that would mean he wouldn't be responsible for what he did and I would receive nothing. Lawson: That's right. Lazaridis: No way. Lawson: You should consider it. There are real difficulties here and if you lose, you'll have to pay their costs. Lazaridis: I don't want to do that. I'd like to discuss it with Nick before the hearing on Monday. Lawson: That's fine. Also, I'll give their barrister a call and see if they have any money to give you at all. They may offer you $10,000 to $15,000. Lazaridis: Alright then, see what they have and we'll discuss it. Lawson: I'll call you on your mobile if they make an offer. 13 Mr Lazaridis also gave unchallenged evidence that later that afternoon on 14 August 2009 he had the following telephone conversation with Mr Lawson: Lawson: They've made an offer of $4,999.99. As it's less than $5,000, you won't have to make any re-imbursement to Medicare. If you want to accept it though, we have to do it now as the offer can only be accepted by 5:00pm. Lazaridis: Should I take it? Lawson: I do suggest that you take it. Lazaridis: So, if I take it, does that mean the hearing won't go ahead. Lawson: Well, the hearing will have to be adjourned because we will need to see the formal documents and they then have to be filed with the court. Lazaridis: Well I'll take the offer at least it means that he is taking responsibility for what he did to me. 14 Mr Lawson did not give evidence. Mr Lazaridis' evidence, although unchallenged, is not relevant to the determination of this claim. Mr McClintock accepted Mr Lawson was authorised to reach agreement on behalf of the defendant, however he submitted a binding agreement was not reached. 15 On the afternoon of 14 August 2009 Ms Nicolle wrote to the defendant's solicitors in terms that included the following: The purpose of this letter is to confirm the conversations between Mr Downing and Mr Lawson of counsel this afternoon to the effect that this claim has settled on the following basis: Consent orders will be entered providing for a verdict in favour of the defendant with each party to pay his own costs. The parties will enter into a Deed of Release providing for the payment of $4,999.99 to Mr Lazaridis. The settlement documents will be forwarded shortly. 16 On Monday, 17 August 2009 Ms Nicolle wrote again to the defendant's solicitors referring to her letter of 14 August 2009 and enclosing "for review and signing the Consent Judgment/Order". That letter also advised the defendant's solicitors that if they were able to return a signed copy of the Consent Judgment/Order by 9:15 that morning Ms Nicolle was happy to mention the defendant's appearance at Court. The Consent Judgment/Order contained two terms: (1) verdict for the plaintiff; and (2) each party to pay his own costs. 17 Ms Nicolle had a conversation with the defendant's solicitor that morning, the file note of which is in the following terms: - yes, mention his appearance. - he wants to sign consent order at same time as DOR. - so, inform court matter settled with Consent Judgment/Order to be filed w/i 7-14 days. 18 Ms Nicolle appeared before Sidis DCJ on 17 August 2009 when she mentioned the appearance of the defendant and her file note recorded that she advised the Court that "matter settled Friday evening & parties seek order to file terms w/i 14 days." The file note also included the following: Listed: 10.9.09 – if Terms filed before that time then date will automatically be vacated. 19 On 17 August 2009 Mr Downing wrote to Ms Nicolle in terms that included the following: I was briefed to appear for the defendant in this matter at a hearing at the District Court at Newcastle commencing on Monday 17 August 2009. I note the matter ultimately resolved on Friday 14 August 2009, by way of an agreement that the plaintiff give a verdict for the defendant in the District Court proceedings, with a payment of $4,999.99 being made to the plaintiff by way of a separate Deed. 20 On 26 August 2009 Ms Nicolle wrote to the defendant's solicitors enclosing the Consent Judgment/Order and a Deed of Release. That letter included the following: Medicare has today confirmed that no repayment is due and that the Medicare file in relation to this notification will now be closed. We confirm that we mentioned the appearance of the plaintiff when the matter was listed before the Court on 17 August 2009. Judge Sidis noted that the matter had settled and listed the matter for mention on 10 September 2009. Judge Sidis noted that if the Consent Judgment is filed prior to that date the listing will automatically be vacated. Upon receipt of the executed Deed and Consent Judgment we will arrange for the settlement cheque to be issued to your office. 21 The enclosed Deed of Release included the following: RECITALS: A. At all material times Dr Humphris-Clark was a dental practitioner with rooms in Islington, NSW. B. Between approximately February 1997 and April 2002 Mr Lazaridis attended upon Dr Humphris-Clark for advice and treatment ( "the Advice and Treatment" ). C. Mr Lazaridis alleges that in the performance of the Advice and Treatment Dr Humphris-Clark breached a duty a (sic) care owed to him and/or breached a term of a contract with him ( "the Breaches and the Allegations" ). D. Mr Lazaridis alleges that as a result of the Breaches and the Allegations, he suffered personal injuries including lingual nerve damage to the lower left quadrant of his mouth, neuropathic trigeminal pain and a psychological injury ( "the Injuries" ). E. In June 2008 Mr Lazaridis commenced proceedings against Dr Humphris-Clark in the District Court of New South Wales Proceedings No. 204 of 2008. Mr Lazaridis claims damages, interest and costs against Dr Humphris-Clark. Annexed hereto and marked with the letter " A " is a copy of the Statement of Claim ( "the Proceedings" ). F. In August 2008 Dr Humphris-Clark filed a Defence to the Proceedings denying that he is liable to Mr Lazaridis as alleged in the Proceedings. Annexed hereto and marked with the letter " B " is a copy of the Defence filed on behalf of Dr Humphris-Clark. G. Dr Humphris-Clark denies that he is liable to Mr Lazaridis as alleged in the Proceedings or at all. H. In order to avoid the costs, expense and inconvenience of continuing the Proceedings, Mr Lazaridis and Dr Humphris-Clark have agreed, without admission of liability, to resolve the dispute between them in the manner and on the terms set out in this Deed. … 2. SETTLEMENT SUM 2.1 Dr Humphris-Clark will pay Mr Lazaridis the sum of $4,999.99 inclusive of all expenses and costs (the " Agreed Sum ") within 28 days of: 2.1.1 execution and filing of the Consent Judgment/Order in the form and substance of the document attached and marked with the letter C ; and 2.1.2 receipt by Dr Humphris-Clark's solicitor of a completed and executed Medicare Australia Notice of Judgment or Settlement form; and 2.1.3 execution and exchange of this Deed. 2.2 Dr Humphris-Clark will attend to the payment of any Notice of Charge issued by the Commonwealth of Australia under the Health and Other Services (Compensation) Act, 1995 (Cth) or the Health and Other Services (Compensation) Care Charges Act , 1995 (Cth) as a result of the settlement reached. 2.3 Mr Lazaridis authorises and directs Dr Humphris-Clark to pay the Agreed Sum into the trust account of his lawyers, Thomas Mitchell Solicitors of 587 Pacific Highway, Belmont, NSW, 2280, whose receipt thereof will be a valid discharge. 3. RELEASE 3.1 In exchange for payment of the Agreed Sum and any payment to Medicare Australia pursuant to clause 2.2, Mr Lazaridis releases and forever discharges Dr Humphris-Clark from any claims relating to the Advice and Treatment, the Breaches and Allegations, the Injuries, the Proceedings and also for all claims which Mr Lazaridis may have or may have had but for this Deed against Dr Humphris-Clark by reason of or arising out of the Advice and Treatment, the Breaches and Allegations, the Injuries, the Proceedings, or the facts and circumstances giving rise to the Proceedings or by reason of or arising out of the negotiations relating to the settlement evidenced by this Deed. … 9. CONFIDENTIALITY 9.1. The terms of this Deed are confidential … 22 The defendant refused to sign the Deed of Release and the plaintiff commenced these proceedings. Consideration 23 Although written submissions were filed in relation to the agency of lawyers to bind a client in a settlement, there is no issue that each of the legal representatives had authority to enter into and reach agreement on behalf of their clients. 24 The real issue in this case is whether a binding agreement was reached. In Masters v Cameron (1954) 91 CLR 353 the High Court referred to the three classes into which a case may fall where parties have been negotiating and reach agreement and also agree that the matter of their negotiation shall be dealt with in a formal contract: Dixon CJ, McTiernan & Kitto JJ at 360. Those classes may be stated shortly as: (1) where parties intend to be immediately bound to the performance of the terms agreed, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect; (2) where the parties have reached complete agreement on all the terms and intend no departure from or addition to those terms, but nevertheless may have made performance of one or more of the terms conditional upon the execution of a formal document; and (3) the parties do not intend to make a concluded bargain unless and until they execute a formal contract. Dixon CJ, McTiernan & Kitto JJ said at 360: In each of the first two cases there is a binding contract; in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution. 25 A fourth class has been recognised as one in which the parties are content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms: Sinclair Scott & Co Ltd v Naughton (1929) 43 CLR 310 per Knox CJ, Rich and Dixon JJ at 317. In this regard, in Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 McLelland J, as his Honour then was, referred to the following passage of the speech of Lord Loreburn in Love & Stewart Ltd v S Instone & Co Ltd (1917) 33 TLR 475 at 628: It was quite lawful to make a bargain containing certain terms which one was content with, dealing with what one regarded as essentials, and at the same time to say that one would have a formal document drawn up with the full expectation that one would by consent insert in it a number of further terms. If that were the intention of the parties, then a bargain had been made, none the less that both parties felt quite sure that the formal document could comprise more than was contained in the preliminary bargain. 26 The parties are ad idem that the question as to whether these parties entered into a binding agreement must be assessed objectively and that the apparent purpose of the agreement will be taken into account: Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; (2001) 210 CLR 181 at [11], 188. 27 Mr McClintock accepted on behalf of the defendant that there was an agreement "of a sort" between the two barristers which may be summarised as follows: "(1) there would be a verdict for the plaintiff (ie the defendant in the District Court proceedings); and (2) the agreed amount of settlement moneys of $4,999.99 would be paid under a separate Deed of Release "which the parties will need to enter into"." Mr McClintock submitted that it is manifest that the case falls within the third class identified in Masters v Cameron where the parties intended they are not bound unless and until they execute a formal contract. It was submitted that there was simply no agreement upon the content of the Deed of Release. Neither the parties nor their respective legal representatives discussed the terms of the Deed of Release. 28 Mr McClintock submitted that the statement by Mr Downing that "the settlement moneys will be paid under a separate Deed of Release which the parties will need to enter into" was to the same effect that the agreement was "subject to contract". He submitted that this precludes a finding of intention to be bound before execution of the contract referred to as the "Deed of Release". It was submitted that this was no more than an agreement to agree, or an agreement to negotiate an agreement. In Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 Gibbs CJ, Murphy and Wilson JJ said at 604: It is established by authority, both ancient and modern, that the courts will not lend their aid to the enforcement of an incomplete agreement, being no more than an agreement of the parties to agree at some time in the future. 29 In Gorrick v Santisi [2010] FMCA 2 Driver FM dealt with an application in which the respondents contended that there was an agreement reached between the parties in accordance with the terms of a deed of settlement that had been submitted to the applicant, which she refused to sign. Following the failure of mediation the solicitors for the respective parties negotiated and reached a "general understanding that the proceedings should be settled on the basis of a deed of release". The respondents' solicitors drafted the deed and submitted it to the applicant's solicitor. The applicant's solicitor advised the respondents' solicitor that "he expected the matter would be settled in accordance with the deed". Driver FM held that the case fell within the third class identified in Masters v Cameron and that it was a condition precedent to the settlement of the matter that the applicant executed the Deed of Release. 30 In Gorrick v Santisi the parties did not reach agreement that they would be immediately bound to enter into a Deed of Release. Rather the solicitors thought it "should" settle on that basis. It was certainly open to the applicant to disagree, as she did, that it should so settle. That case is distinguishable from the present case in that the parties, through their lawyers, decided to settle the proceedings by having a verdict entered for the plaintiff with an order that each party pay their own costs. The payment of $4999.99 to the defendant was agreed and the parties agreed that they would "enter into" a Deed of Release. 31 Mr McClintock relied upon Abadeen Group Pty Ltd v Bluestone Property Services Pty Ltd & Ors; Brown & Ors v Hodgkinson & Ors [2009] NSWCA 386 in support of his submissions that no binding agreement had been reached between these parties. That case was far more complex than the simple facts of this case. It involved a number of arrangements between property developers in various parts of New South Wales and Victoria and involved the review of an alleged agreement reached at a discussion between the relevant developers at a hotel when they prepared a note, referred to as the Lord Dudley document. The complexity of the arrangements was compounded by later developments to buy out one of the developers. It was common ground that there were "gaps" in the Lord Dudley document and although counsel for the appellants sought to fill those gaps, the Court held that the parties did not reach agreement on all matters that were essential to a concluded contract. Although Abadeen is distinguishable from the circumstances of this case, Mr Shields submitted that the following passages of Sackville AJA's judgment (with whom Hodgson and Campbell JJA agreed) are applicable to the determination of this case: 110. … The Court seeks to ascertain the objective intention of the parties, being: "the intention that a reasonable person, with the knowledge of the words and actions of the parties communicated to each other, and the knowledge that the parties had of the surrounding circumstances, would conclude that the parties had concerning the subject matter of the alleged contract". Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65; 69 NSWLR 603, at 655 [262], per Campbell JA (with whom Mason P and Tobias JA agreed) citing, among other authorities, Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451, at 461-462 [22], per curiam. … 112. In determining whether the parties intended to conclude a contract, their post-agreement conduct may be taken into account. The conduct may be relevant, among other purposes, in order to show that: "it was not in the contemplation of either party that they were to be bound until all the essential preliminaries had been agreed to, nor until a formal contract had been drawn up embodying all the matters incidental to a transaction of such a nature". Barrier Wharfs Ltd v W Scott Fell & Co Ltd [1908] HCA 88; 5 CLR 647, at 669, per Griffiths CJ. See also Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540, at 547-548, per Gleeson CJ (with whom Hope and Mahoney JJA agreed); Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; 53 NSWLR 153, at 163-164, [25], per Heydon JA. … 115. It is also permissible to consider whether it was inherently likely that the parties to a transaction would have intended to bind themselves to an informally expressed agreement or whether they intended to await a formal contract: B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147, at 9151-9152, per Mahoney JA, citing Clifton v Palumbo [1944] 2 All ER 497, at 499, per Lord Greene MR. 32 There are other cases involving deeds of release or releases in which parties have claimed to have reached final agreement: Needlework Warehouse Pty Ltd v Chansonette Pty Ltd (2005) 226 ALR 252; QLD Holdings –1 v Collingwood Holdings [2009] NSWSC 732; however each case will depend on its own facts. 33 There is no suggestion in the communications between Mr Downing and Mr Lawson or between the respective solicitors that the Court was to be informed that the parties had only settled their differences "in principle". The parties agreed that the Court was to be informed that the parties had settled the case. The parties' agreement that there would be a "separate" Deed, in the context of the events of late Friday evening, 14 August 2009, was a mechanism for the implementation of their agreement. The trial was listed for hearing on the following Monday, 17 August 2009, at the Newcastle District Court, and the agreement was reached at approximately 5 pm on Friday 14 August 2009. The plan was that on Monday 17 August 2009 the parties would advise the Court of the settlement with the consequence that the trial would not proceed and then separately from that process enter into a Deed of Release. Part of the mechanism of the implementation of the agreement was to have the Court make the Consent Orders entering a verdict for the plaintiff and ordering that each party pay his own costs. However on Monday 17 August 2009, the parties agreed to a different mechanism. They decided to wait until they signed the Deed of Release to have the Court make the Consent Orders. To that end the Court, by consent, stood the matter over until 10 September 2009. 34 In reviewing post-contractual conduct for the purpose of deciding whether a binding agreement was reached: Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153; Mr McClintock relied on the terms of the proposed Deed of Release in support of a submission that the parties did not reach a binding agreement on 14 August 2009. He referred in particular to the provision in relation to confidentiality (clause 9) and submitted that: (a) there was no discussion between the parties in relation to keeping the agreement confidential; (b) the defendant was entitled to take advice as to whether he would or should agree to keep the agreement confidential; and (c) ultimately he may not have agreed to the terms remaining confidential. I agree with Mr McClintock that the subject of confidentiality was not discussed. The inclusion of this clause in the proposed Deed of Release is either a clause that should be jettisoned as not being consistent with the agreement reached or, as Mr McClintock claims, evidence that would lead to the conclusion that the parties had not reached a binding agreement on 14 August 2009. 35 Mr McClintock also submitted that the proposed Release in the Deed (clause 3) covers a longer period than that which was the subject of the litigation. Recital B to the proposed Deed defines the "Advice and Treatment" as having been provided during the period "between approximately February 1997 and April 2002". The allegation in the Statement of Claim was that the plaintiff provided dental services to the defendant during the period between 29 December 1999 and January 2002 with allegations that the particular conduct, the subject of the claims of negligence, occurred: on or about 29 December 1999 to 6 January 2000 (par 3); on 19 January 2000 (par 4); on 3 April 2000 (par 5); on 30 June 2000 (par 6); on 10 July 2000 and 24 July 2000 (par 7); on 7 December 2001 (par 8); and from 20 December 2001 to 7 January 2002 (par 10). 36 It is clear that the dates in the proposed Deed were inconsistent with the dates alleged in the Statement of Claim. That is either an error in failing to reflect what was agreed or it may be, as Mr McClintock claims, evidence that would lead to the conclusion that the parties had not reached a binding agreement on 14 August 2009. 37 There was also a provision in relation to the completion of the Medicare documentation (clause 2.1.2). I am of the view that this was a machinery clause ensuring that the defendant would have no liability for any amount that may be the subject of the "Notice of Charge" referred to in clause 2.2 of the proposed Deed, a process that was referred to by Mr Downing and accepted by Mr Lawson. 38 The conduct of the parties in having the Court note that the matter was settled, rather than informing the Court that the matter was settled in principle, and in abandoning the trial, is conduct that evidences an intention to be immediately bound by their agreement. The agreement reached as documented in Ms Nicolle's letter of 14 August 2009 recorded the agreement to the terms of the Consent Orders finalising the litigation, the amount to be paid to the defendant and the agreement that the parties "will enter into a Deed of Release". Having regard to the issues between the parties in the District Court proceedings and the discussions between Mr Downing and Mr Lawson, I am satisfied that when the parties used the expression "enter into a Deed of Release" they understood and intended that they would sign a Deed providing: (a) for the payment of the agreed amount to the defendant: and (b) releasing the plaintiff from all claims arising out of or relating to the matters the subject of litigation. This was not an agreement to agree at some time in the future referred to by the High Court in Booker. There were no further matters to be agreed. All that had to occur was that the Deed had to be prepared consistently with the agreement. The defendant is entitled to require the plaintiff to remove any provisions of the Deed that go beyond such a release. 39 I am satisfied that such agreement falls within the first class in Masters v Cameron. 40 I make the declarations in paragraphs 1 to 3 of the Summons. I make the orders in paragraphs 4, 5 and 7 of the Summons. ********** 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.