Vero Insurance Ltd v Tran [2008] NSWCA 358

Vero Insurance Ltd v Tran [2008] NSWCA 358

The appeal was dismissed because the alleged mediation settlement was incomplete and not enforceable: the settlement depended on an independent expert determining the scope of rectification works, but no expert was agreed and no mechanism for selecting one in default of agreement was provided. The expert determination rules addressed the conduct of the determination, not selection of the expert.

Jurisdiction
Australia
Judgment Date
15 December 2008
Procedural Posture
Appeal in a Specific Performance Suit Concerning an Alleged Mediation Settlement Agreement / Appeal From Dismissal by the Supreme Court Equity Division
Outcome
Appeal dismissed with costs.
Legal Topics
['specific Performance' 'enforceability of Settlement Agreement' 'agreement to Agree' 'construction of Agreement to Mediate' 'expert Determination']
['contracts' 'mediation' 'civil Procedure'] ['specific Performance' 'enforceability of Settlement Agreement' 'agreement to Agree' 'construction of Agreement to Mediate' 'expert Determination']

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Procedural Posture

Appeal in a Specific Performance Suit Concerning an Alleged Mediation Settlement Agreement / Appeal From Dismissal by the Supreme Court Equity Division

Legal Issues

  1. 1 ['Whether terms read out at a mediation and later recorded in a memorandum constituted an enforceable settlement agreement.' 'Whether the memorandum was incomplete or merely an agreement to agree because it did not identify the expert who would determine the scope of rectification works or provide a mechanism for selection.' 'Whether the agreement to mediate required execution of a Settlement Agreement before a settlement could be enforced.']

Ratio Decidendi

The appeal was dismissed because the alleged mediation settlement was incomplete and not enforceable: the settlement depended on an independent expert determining the scope of rectification works, but no expert was agreed and no mechanism for selecting one in default of agreement was provided. The expert determination rules addressed the conduct of the determination, not selection of the expert.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed with costs.']