El-Mir & 1 Or v Risk [2005] NSWCA 215

El-Mir & 1 Or v Risk [2005] NSWCA 215

The Court held that the appellants had an arguable case that the 1997 Settlement constituted accord and satisfaction, discharging the original cause of action, and that the primary judge erred in refusing leave to amend the defence and in adopting the referee's report without determination of that issue. Leave to amend the defence was granted and a separate hearing on the accord and satisfaction issue was ordered.

Parties
First Appellant: Abdullah El-Mir; Second Appellant: Mona El-Mir; Respondent: Gary Risk
Jurisdiction
Australia
Judgment Date
24 June 2005
Procedural Posture
Appeal / Post Judgment Appeal From District Court Orders
Outcome
Appeal allowed; judgment and orders of District Court set aside; leave granted to appellants to amend defence; separate trial ordered on the accord and satisfaction issue; further cost submissions to be made.
Legal Topics
Accord and Satisfaction, Waiver, Amendment of Pleadings, Adoption of Referee's Report
Contract Law Civil Procedure Accord and Satisfaction Waiver Amendment of Pleadings Adoption of Referee's Report

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Parties

Abdullah El-Mir

First Appellant

Mona El-Mir

Second Appellant

Gary Risk

Respondent

Procedural Posture

Appeal / Post Judgment Appeal From District Court Orders

Legal Issues

  1. 1 Whether the 1997 Settlement amounted to accord and satisfaction barring further claims
  2. 2 Whether filing a defence and cross-claim constituted waiver of accord and satisfaction
  3. 3 Whether the primary judge erred in refusing leave to amend the defence to plead the 1997 Settlement

Ratio Decidendi

The Court held that the appellants had an arguable case that the 1997 Settlement constituted accord and satisfaction, discharging the original cause of action, and that the primary judge erred in refusing leave to amend the defence and in adopting the referee's report without determination of that issue. Leave to amend the defence was granted and a separate hearing on the accord and satisfaction issue was ordered.

Court Disposition

Appeal allowed; judgment and orders of District Court set aside; leave granted to appellants to amend defence; separate trial ordered on the accord and satisfaction issue; further cost submissions to be made.

Orders

  • Appeal allowed with costs.
  • Judgment and orders of the District Court made on 18 July 2003 set aside.