Case: Phillips v Walsh (1990) 20 NSWLR 206
Outcome: referred to
There are, however, some further observations I would make about the applicants' heavy reliance on the settlement deed as justifying the orders they seek. In support of their argument that the deed of settlement alone was sufficient to entitle them to summary judgment, the applicants relied on the decision of Hely J in Reid v Interarch Australia Pty Ltd [2000] FCA 1328 (" Interarch "), a case in which the applicants initially claimed damages for the respondents' allegedly misleading or deceptive advice in connection with the establishment of a business. In that case as in this, the parties compromised the proceedings by entering into a deed of settlement pursuant to which the respondents agreed to pay settlement monies by instalments. As in this case, the deed of settlement in Interarch provided that, if the respondents defaulted in making payments, then they would consent to summary judgment. The respondents failed to pay and the applicant brought a summary judgment application. Hely J considered the question whether the applicants should be required to institute fresh proceedings to enforce the compromise in the settlement agreement. After referring to Phillips v Walsh (1990) 20 NSWLR 206 (" Phillips "), his Honour noted (at [26]-[28]) that, in Interarch , there was only one "short issue of law" advanced on the summary judgment application, that there was no real virtue in fresh proceedings, and that there was "no substantive advantage to be derived from requiring the institution of fresh proceedings". These considerations led his Honour to order summary judgment. Interarch provides some support for the applicants' position in the present case that the deed of settlement alone is enough to entitle them to summary judgment. 15 When Phillips is examined, however, it is apparent that Interarch is of limited assistance. This is because after considering "the authorities which deal with the power of the court to enforce on motion in existing proceedings an agreement compromising those proceedings", McLelland J concluded, in Phillips at 210, that "[t]hese authorities present a confusing picture" and that he did not propose to analyse them since they were not dealt with in argument. He added, again at 210, that: "It is sufficient for present purposes to say that, although there is some arguable support for the proposition (although it is far from clear) that the Court might on motion in the present proceedings enforce a particular term of the agreement between the parties ... which came within the ambit of the proceedings as originally constituted, it would not be proper to do so where substantial matters are involved beyond the ambit of the proceedings as originally constituted, or where, in the interests of justice, disposition of the matter on the summary application is inappropriate." His Honour did not grant summary judgment in that case. 16 Plainly enough, notwithstanding that certain comments in Interarch might suggest otherwise, Phillips is not authority for the proposition that the Court can enforce a deed of settlement in existing proceedings although McLelland J does not rule out this possibility in an appropriate case.