Nicol v ACN 114 392 577 Pty Ltd [2008] FCA 21

Nicol v ACN 114 392 577 Pty Ltd [2008] FCA 21

A binding and enforceable settlement agreement was formed by the exchange of correspondence between solicitors on 18 and 19 September 2007. The terms of the agreement included payment of $150,000 in costs with an agreed schedule and interest if not paid on time. As the first instalment was not paid as due and the balance remained unpaid, the plaintiffs were entitled to enforce payment of the outstanding sum and interest.

Parties
Plaintiffs: Colin McIntosh Nicol and Samuel Charles Davies as joint and several receivers and managers of the property of Guiseppe Antonio Mercorella and the Scheme and as liquidators of the Scheme and as joint and several liquidators of PGLE Pty Ltd (In Liquidation) ACN 100 635 658, Kytara Pty Ltd (In Liquidation) ACN 098 864 834, Merbel Pty Ltd (In Liquidation) ACN 073 274 683, Mercorella (Pirie Street) Pty Ltd (In Liquidation) ACN 101 826 439, Sancat Pty Ltd (In Liquidation) ACN 093 882 654, T & G Mercorella Pty Ltd (In Liquidation) ACN 101 934 516, MZF Pty Ltd (In Liquidation) ACN 099 040 641, Opey Pty Ltd (In Liquidation) ACN 062 805 109, Unley Financial Strategies Pty Ltd (In Liquidation) ACN 096 679 837, Wol Properties Pty Ltd (In Liquidation) ACN 082 339 366; First Defendant: ACN 114 392 577 Pty Ltd; Second Defendant: Anthony John Sobey; Third Defendant: Ajay Holdings Pty Ltd ACN 112 818 121
Jurisdiction
Australia
Judgment Date
15 January 2008
Procedural Posture
Civil / Post Settlement Enforcement (motion to Enforce Compromise Agreement)
Outcome
Application granted. Settlement agreement declared binding and enforceable. Orders for payment made.
Legal Topics
Enforcement of Settlement Agreements, Voidable Transactions, Receivership
Commercial Law Insolvency Enforcement of Settlement Agreements Voidable Transactions Receivership

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Parties

Colin McIntosh Nicol and Samuel Charles Davies as joint and several receivers and managers of the property of Guiseppe Antonio Mercorella and the Scheme and as liquidators of the Scheme and as joint and several liquidators of PGLE Pty Ltd (In Liquidation) ACN 100 635 658, Kytara Pty Ltd (In Liquidation) ACN 098 864 834, Merbel Pty Ltd (In Liquidation) ACN 073 274 683, Mercorella (Pirie Street) Pty Ltd (In Liquidation) ACN 101 826 439, Sancat Pty Ltd (In Liquidation) ACN 093 882 654, T & G Mercorella Pty Ltd (In Liquidation) ACN 101 934 516, MZF Pty Ltd (In Liquidation) ACN 099 040 641, Opey Pty Ltd (In Liquidation) ACN 062 805 109, Unley Financial Strategies Pty Ltd (In Liquidation) ACN 096 679 837, Wol Properties Pty Ltd (In Liquidation) ACN 082 339 366

Plaintiffs

ACN 114 392 577 Pty Ltd

First Defendant

Anthony John Sobey

Second Defendant

Ajay Holdings Pty Ltd ACN 112 818 121

Third Defendant

Procedural Posture

Civil / Post Settlement Enforcement (motion to Enforce Compromise Agreement)

Legal Issues

  1. 1 Whether a binding and enforceable settlement agreement was entered into between the parties
  2. 2 Whether the plaintiffs are entitled to enforce the outstanding payment and interest under the settlement agreement

Ratio Decidendi

A binding and enforceable settlement agreement was formed by the exchange of correspondence between solicitors on 18 and 19 September 2007. The terms of the agreement included payment of $150,000 in costs with an agreed schedule and interest if not paid on time. As the first instalment was not paid as due and the balance remained unpaid, the plaintiffs were entitled to enforce payment of the outstanding sum and interest.

Court Disposition

Application granted. Settlement agreement declared binding and enforceable. Orders for payment made.

Orders

  • Defendants to pay plaintiffs the sum of $125,000.
  • Defendants to pay plaintiffs interest at the rate of 10% per annum on the sum of $125,000 from 19 October 2007.