Futhem Pty Ltd v Mills [2012] NSWDC 127

Futhem Pty Ltd v Mills [2012] NSWDC 127

The Terms of Settlement provided for verdict and judgment for the plaintiff, with paragraphs 2 and 3 operating as a side agreement about deemed satisfaction by instalments and enforcement upon default, while paragraph 4 was only a notation concerning inter partes non-disclosure. UCPR r 36.1A(3) meant that the non-disclosure term did not prevent judgment being entered or enforced. Because the defendant failed to make the required payments and did not appear or file evidence, it was appropriate under s 73 of the Civil Procedure Act 2005 (NSW) to enter verdict and judgment for the plaintiff for the outstanding sum.

Jurisdiction
Australia
Judgment Date
21 August 2012
Procedural Posture
Civil Proceedings; Notice of Motion Concerning Consent Orders and Terms of Settlement / District Court Determination After Remittal by the New South Wales Court of Appeal as to the Proper Form of Orders to Be Entered Consequent Upon the Compromise
Outcome
Verdict and judgment for the plaintiff in the sum of $60,999.97 inclusive of costs; judgment to be entered forthwith; defendant to pay the plaintiff's costs of the notice of motion.
Legal Topics
['consent Orders' 'construction of Terms of Settlement' 'entry of Judgment in Computerised Court Record System' 'confidentiality Notation in Settlement Terms' 'civil Procedure Act 2005 (nsw), S 73' 'uniform Civil Procedure Rules 2005 (nsw), R 36.1 A']
['civil Procedure' 'settlement and Compromise' 'enforcement of Judgments'] ['consent Orders' 'construction of Terms of Settlement' 'entry of Judgment in Computerised Court Record System' 'confidentiality Notation in Settlement Terms' 'civil Procedure Act 2005 (nsw), S 73' 'uniform Civil Procedure Rules 2005 (nsw), R 36.1 A']

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Procedural Posture

Civil Proceedings; Notice of Motion Concerning Consent Orders and Terms of Settlement / District Court Determination After Remittal by the New South Wales Court of Appeal as to the Proper Form of Orders to Be Entered Consequent Upon the Compromise

Legal Issues

  1. 1 ['Whether the Terms of Settlement dated 25 November 2008 were proposed orders with a side agreement or a body of composite orders.' 'Whether the notation that terms were not to be disclosed prevented entry or enforcement of judgment.' 'What orders should be entered to give effect to the compromise under s 73 of the Civil Procedure Act 2005 (NSW).' 'Whether judgment should be entered for the amount outstanding after the defendant failed to comply with the settlement instalment terms.']

Ratio Decidendi

The Terms of Settlement provided for verdict and judgment for the plaintiff, with paragraphs 2 and 3 operating as a side agreement about deemed satisfaction by instalments and enforcement upon default, while paragraph 4 was only a notation concerning inter partes non-disclosure. UCPR r 36.1A(3) meant that the non-disclosure term did not prevent judgment being entered or enforced. Because the defendant failed to make the required payments and did not appear or file evidence, it was appropriate under s 73 of the Civil Procedure Act 2005 (NSW) to enter verdict and judgment for the plaintiff for the outstanding sum.

Court Disposition

Verdict and judgment for the plaintiff in the sum of $60,999.97 inclusive of costs; judgment to be entered forthwith; defendant to pay the plaintiff's costs of the notice of motion.

Orders

  • ['Defendant called three times outside Court 16C at 10:20am - no appearance.' 'Defendant called three times outside Court 13D at 10:39am - no appearance.' 'Verdict and judgment for the plaintiff in the sum of $60,999.97 inclusive of costs.' 'Judgment to be entered forthwith.' "Defendant to pay the plaintiff's costs...