Michael Kuehn & Jennifer Kuehn v Masterton Homes (NSW) Pty Ltd t/as Masterton Homes (NSW) Pty Ltd [2020] NSWSC 1049

Michael Kuehn & Jennifer Kuehn v Masterton Homes (NSW) Pty Ltd t/as Masterton Homes (NSW) Pty Ltd [2020] NSWSC 1049

No binding compromise or settlement was made between the plaintiffs and Masterton. Jennifer Kuehn, who was a party to the building contract and co-owner of the land, was not a party to the alleged arrangement and her participation was expected to be achieved by execution of a deed. In any event, objectively assessed from the transcript, the contemplated need for a deed, unresolved further terms, omissions on important matters, dependence of payment obligations on execution of the deed, lack of precision, the Senior Member's statements about settlement in principle and the possibility of the matter falling over, the adjournment for further hearing, and Masterton's later draft deed...

Jurisdiction
Australia
Judgment Date
11 August 2020
Procedural Posture
Equity Technology and Construction List Proceeding Concerning Whether Proceedings Were Compromised or Settled Under S 73(1) of the Civil Procedure Act 2005 (nsw) / Principal Judgment After Hearing on Whether the Plaintiffs and the First Defendant Had Entered a Binding Compromise or Settlement
Outcome
Plaintiffs and the first defendant have not compromised or settled these proceedings between them; plaintiffs' claims against the second, third and fourth defendants dismissed.
Legal Topics
['compromise and Settlement of Proceedings' 'masters V Cameron Categories' 'objective Intention to Create Legal Relations' 'formal Deed Contemplated by Parties' 'defective Residential Building Work' 'statutory Warranties']
['contract' 'civil Procedure' 'building and Construction' 'home Building'] ['compromise and Settlement of Proceedings' 'masters V Cameron Categories' 'objective Intention to Create Legal Relations' 'formal Deed Contemplated by Parties' 'defective Residential Building Work' 'statutory Warranties']

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Procedural Posture

Equity Technology and Construction List Proceeding Concerning Whether Proceedings Were Compromised or Settled Under S 73(1) of the Civil Procedure Act 2005 (nsw) / Principal Judgment After Hearing on Whether the Plaintiffs and the First Defendant Had Entered a Binding Compromise or Settlement

Legal Issues

  1. 1 ['Whether the plaintiffs and Masterton entered into a binding compromise or settlement of the NCAT proceedings on 29 July 2019.' 'Whether Jennifer Kuehn was party to any alleged settlement arrangement.' 'Whether the objective intention of the alleged contracting parties was that there would be no binding settlement until all terms were embodied in a formal deed signed by all relevant parties.' 'Whether, if there was no binding compromise, the claims against the second, third and fourth defendants should be dismissed.']

Ratio Decidendi

No binding compromise or settlement was made between the plaintiffs and Masterton. Jennifer Kuehn, who was a party to the building contract and co-owner of the land, was not a party to the alleged arrangement and her participation was expected to be achieved by execution of a deed. In any event, objectively assessed from the transcript, the contemplated need for a deed, unresolved further terms, omissions on important matters, dependence of payment obligations on execution of the deed, lack of precision, the Senior Member's statements about settlement in principle and the possibility of the matter falling over, the adjournment for further hearing, and Masterton's later draft deed...

Court Disposition

Plaintiffs and the first defendant have not compromised or settled these proceedings between them; plaintiffs' claims against the second, third and fourth defendants dismissed.

Orders

  • ['Pursuant to s 73(1) of the Civil Procedure Act 2005 (NSW), the Court determined that the proceedings between the plaintiffs and the first defendant have not been compromised or settled between them.' 'The proceedings against the second, third and fourth defendants are dismissed.' 'The Court will hear the parties...