Cacao Story Pty Ltd v An Nam Viet Group Pty Ltd [2019] NSWSC 1483

Supreme Court New South Wales

Medium Neutral Citation: Cacao Story Pty Ltd v An Nam Viet Group Pty Ltd [2019] NSWSC 1483 Hearing dates: 30 August 2019 Date of orders: 30 August 2019 Decision date: 30 August 2019 Jurisdiction: Equity Before: Rein J Decision: 1. Order 1 sought by the Defendants' Notice of Motion is granted. 2. Pursuant to s 73 of the Civil Procedure Act 2005 (NSW), this Court finds that the settlement agreement reached on 18 December 2018 was for the payment by the Defendants of the amount of $65,000 in full and final settlement of the Plaintiff's claims, that the Defendants were entitled to have the deposit of $20,000 applied as part of that payment, and that those payments have been made. 3. Plaintiff to pay the Defendant's costs of the Motion on the ordinary basis, as agreed or assessed. Catchwords: CIVIL PROCEDURE – Jurisdiction – Where the defendants sought by notice of motion to invoke the Court's jurisdiction to determine, pursuant to s 73 of the Civil Procedure Act 2005 (NSW), the terms of an agreement to settle proceedings in this Court concerning the sale of a business – Where no document was prepared to reflect the terms of the settlement and neither party made a contemporaneous record of what was agreed.

CONTRACTS – Construction – Context – Whether the oral agreement to settle the proceedings on payment of $65,000 by the defendants was inclusive of the $20,000 deposit – Where, in negotiating the final settlement amount of $65,000, the plaintiff explicitly referred to its earlier Offer of Compromise in which the settlement amount included the deposit, such that it was clear from the context that the later offer of $65,000 was made on the same terms with respect to the deposit as the earlier Offer of Compromise. Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd (2014) 251 CLR 640 Organic Group Ltd v Charterhouse Macmillan Group Inc [2007] EWHC 1275 (QB) Raffles v Wichelhaus [1864] 159 ER 375 Willis Management (Isle of Man) Ltd v Cable & Wireless plc [2005] 2 Lloyd's Rep 599 Woolworths Ltd v About Life Pty Ltd [2017] NSWSC 1117; [2017] 18 BPR 36,983 Texts Cited: Sir Kim Lewis and David Hughes, The Interpretation of Contracts in Australia (Thomson Reuters, 2012) Category: Procedural and other rulings Parties: Cacao Story Pty Ltd (Plaintiff) An Nam Viet Group Pty Ltd (First Defendant) Chi Kien Pham (Second Defendant) Representation: Counsel: Mr V. R. Gray (Plaintiff) Mr M. Klooster (Defendants)