City Convenience Leasing Pty Ltd & Anor v Dencal Pty Limited [2014] NSWCATCD 64

City Convenience Leasing Pty Ltd & Anor v Dencal Pty Limited [2014] NSWCATCD 64

The mediation agreement was a precursor to the mediation and not a statement or admission made in the course of mediation, and the settlement agreement was created after the mediation had been completed, was expressly excluded from confidentiality or privilege by the mediation agreement, and was not rendered...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
04 April 2014
Procedural Posture
Retail Tenancy Dispute Application Concerning a Retail Lease and Alleged Misleading or Deceptive Conduct, Unconscionable Conduct, Repudiation of a Deed of Surrender, Damages and Related Orders / Principal Judgment After Directions Hearing and Immediate Hearing on Whether the Proceedings Had Been Resolved by a Binding Settlement Agreement Reached Following Mediation
Outcome
The Tribunal declared that there was a binding settlement agreement between the first applicant, second applicant and respondent arising from the written agreement dated 27 February 2014, and dismissed the application.
Legal Topics
['settlement Agreement Following Mediation' 'admissibility of Mediation and Settlement Documents' 'section 69 of the Retail Leases Act 1994' 'legal Professional Privilege' 'authority to Bind a Company' 'costs After Settlement']
['retail Leases' 'civil Procedure' 'mediation' 'evidence' 'costs'] ['settlement Agreement Following Mediation' 'admissibility of Mediation and Settlement Documents' 'section 69 of the Retail Leases Act 1994' 'legal Professional Privilege' 'authority to Bind a Company' 'costs After Settlement']

Source-derived case record

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Procedural Posture

Retail Tenancy Dispute Application Concerning a Retail Lease and Alleged Misleading or Deceptive Conduct, Unconscionable Conduct, Repudiation of a Deed of Surrender, Damages and Related Orders / Principal Judgment After Directions Hearing and Immediate Hearing on Whether the Proceedings Had Been Resolved by a Binding Settlement Agreement Reached Following Mediation

Legal Issues

  1. 1 ['Whether the written agreement dated 27 February 2014 was a binding settlement agreement resolving the proceedings.' 'Whether section 69 of the Retail Leases Act 1994 made the mediation agreement or settlement agreement inadmissible.' 'Whether the 5 March 2014 email was admissible or protected by privilege.' 'Whether Jamal Gebara had authority and capacity to bind the first applicant and himself to the settlement agreement.' "Whether the applicants should pay the respondent's costs on and from 4 March 2014."]

Ratio Decidendi

The mediation agreement was a precursor to the mediation and not a statement or admission made in the course of mediation, and the settlement agreement was created after the mediation had been completed, was expressly excluded from confidentiality or privilege by the mediation agreement, and was not rendered inadmissible by section 69 of the Retail Leases Act 1994. Mr Gebara had actual and ostensible authority to bind both applicants and there was no evidence establishing incapacity. The written agreement dated 27 February 2014 was therefore binding on the applicants and respondent, so the application was dismissed and costs directions were made.

Court Disposition

The Tribunal declared that there was a binding settlement agreement between the first applicant, second applicant and respondent arising from the written agreement dated 27 February 2014, and dismissed the application.

Orders

  • ['The Tribunal declares that there is a binding settlement agreement between the first applicant, second applicant and respondent arising from the written agreement dated 27 February 2014.' 'The application is dismissed.' 'Each party is to bear its own costs of the proceedings up to and including 3 March 2014.'...