Melham v Katter [2013] NSWDC 203

Melham v Katter [2013] NSWDC 203

The judgment was not entered against good faith because the defendants did not comply with the Terms of Settlement: the proposed Put and Call Option was not on reasonable terms, did not provide the contemplated unit worth at least $400,000 plus interest without requiring substantial additional payment by the plaintiff, involved uncertainties as to title, completion and terms, and the plaintiff was not obliged to execute it. The defendants had notice of the plaintiff's intention to enter judgment and their disagreement with that step did not, without more, establish absence of good faith under UCPR r 36.15.

Jurisdiction
Australia
Judgment Date
18 October 2013
Procedural Posture
Civil Proceedings; Practice and Procedure Application / Defendants' Notice of Motion to Set Aside Judgment Entered Following Settlement, Brought Pursuant to UCPR R 36.15
Outcome
Defendants' notice of motion dismissed; oral application to amend dismissed; defendants ordered to pay plaintiff's costs.
Legal Topics
['setting Aside Judgment' 'good Faith Under UCPR R 36.15' 'terms of Settlement' 'construction of Settlement Terms' 'put and Call Option' 'specific Performance Jurisdiction']
['civil Procedure' 'contract Law'] ['setting Aside Judgment' 'good Faith Under UCPR R 36.15' 'terms of Settlement' 'construction of Settlement Terms' 'put and Call Option' 'specific Performance Jurisdiction']

Case Brief

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Procedural Posture

Civil Proceedings; Practice and Procedure Application / Defendants' Notice of Motion to Set Aside Judgment Entered Following Settlement, Brought Pursuant to UCPR R 36.15

Legal Issues

  1. 1 ['Whether the judgment for $1 million entered on 23 July 2013 should be set aside as entered against good faith under UCPR r 36.15.' 'Whether the defendants complied with the Terms of Settlement by providing a Put and Call Option for a property at 136-138 New Canterbury Road, Petersham.' 'Whether the Put and Call Option was on reasonable terms and involved the first available unit with clear title.' 'Whether the plaintiff was obliged to execute the Put and Call Option and contract of sale.' 'Whether the District Court had jurisdiction to grant specific performance or a declaration in lieu of specific performance.']

Ratio Decidendi

The judgment was not entered against good faith because the defendants did not comply with the Terms of Settlement: the proposed Put and Call Option was not on reasonable terms, did not provide the contemplated unit worth at least $400,000 plus interest without requiring substantial additional payment by the plaintiff, involved uncertainties as to title, completion and terms, and the plaintiff was not obliged to execute it. The defendants had notice of the plaintiff's intention to enter judgment and their disagreement with that step did not, without more, establish absence of good faith under UCPR r 36.15.

Court Disposition

Defendants' notice of motion dismissed; oral application to amend dismissed; defendants ordered to pay plaintiff's costs.

Orders

  • ["The defendants' notice of motion seeking to set aside judgment for $1 million entered on 23 July 2013 is dismissed." "The defendants' oral application to amend the notice of motion and, in lieu of order (2), seek a declaration is dismissed." "Defendants pay plaintiff's costs." 'Liberty to apply in relation to...