Bendigo & Adelaide Bank Ltd v Gorczynski (No 3) [2016] NSWSC 55

Bendigo & Adelaide Bank Ltd v Gorczynski (No 3) [2016] NSWSC 55

There was a binding agreement between the parties as at 19 November 2015 resolving the substantive matters in dispute, substantially on the terms recorded in the draft deed but excluding contested terms (notably, non-disparagement and warranty of legal advice clauses). The court construed the exchange of offer and acceptance objectively, invoking the parties' duties under s 56, and found that the settlement was binding from the point of correspondence, not conditional upon execution of the deed.

Parties
Plaintiff/respondent: Bendigo and Adelaide Bank Limited; Defendant/applicant: Peter F Gorczynski
Jurisdiction
Australia
Judgment Date
03 February 2016
Procedural Posture
Civil / Determination Under S 73 Civil Procedure Act 2005 (nsw) Whether Matter Listed for Hearing Was Settled
Outcome
Determination that a binding settlement was reached; orders made giving effect to that settlement and orders as to costs.
Legal Topics
Settlement of Proceedings, Compromise of Proceedings, Construction of Settlement Agreements, Power of Court to Determine Settlements
Civil Procedure Settlement of Proceedings Compromise of Proceedings Construction of Settlement Agreements Power of Court to Determine Settlements

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 4 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

Bendigo and Adelaide Bank Limited

Plaintiff/respondent

Peter F Gorczynski

Defendant/applicant

Procedural Posture

Civil / Determination Under S 73 Civil Procedure Act 2005 (nsw) Whether Matter Listed for Hearing Was Settled

Legal Issues

  1. 1 Whether the proceedings were settled prior to the listed hearing date and on what terms under s 73 Civil Procedure Act 2005 (NSW)
  2. 2 Whether acceptance of settlement offer was conditional upon execution of deed
  3. 3 Whether non-disparagement and warranty of legal advice clauses formed part of the binding agreement

Ratio Decidendi

There was a binding agreement between the parties as at 19 November 2015 resolving the substantive matters in dispute, substantially on the terms recorded in the draft deed but excluding contested terms (notably, non-disparagement and warranty of legal advice clauses). The court construed the exchange of offer and acceptance objectively, invoking the parties' duties under s 56, and found that the settlement was binding from the point of correspondence, not conditional upon execution of the deed.

Court Disposition

Determination that a binding settlement was reached; orders made giving effect to that settlement and orders as to costs.

Orders

  • That the substantive proceeding was settled as of 19 November 2015 on terms substantially recorded in the draft deed (excluding the non-disparagement and warranty clauses).
  • That the defendant Mr Gorczynski is to have released to him the funds held in Court and be paid directly by the bank the sum of $7,688.53.