FEDERAL COURT OF AUSTRALIA

Worldwide Timber Traders Pty Ltd (ABN 93 009 384) v Brouwer (No 3) [2009] FCA 1172

WORLDWIDE TIMBER TRADERS PTY LTD (ABN 93 009 384 454) v JAN WILLEM BROUWER and AURIMA ENTERPRISES SDN BHD

WAD 341 of 2005

MCKERRACHER J

13 OCTOBER 2009

PERTH

THE COURT ORDERS THAT:

1.                  There be judgment for the applicant in the sum of $17,500.

2.                  There be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                                             Today I gave final judgment to the applicant against the respondents in the sum of $17,500.  These are short reasons for doing so and they reflect the reasons I expressed orally to counsel for both the applicant and the respondents on their appearance in Court.

2                                             By my reasons of 5 May 2009 (Worldwide Timber Traders Pty Ltd (ABN 93 009 384) v Brouwer (No 2) [2009] FCA 447), I recorded the power of the Court to enforce settlement agreements.  In those reasons I indicated that the only difficulty in enforcing the agreement which had been reached between the parties and which was admitted in open Court was in the terms of the draft deed presented on behalf of the applicant.  It had been a term of the Settlement Agreement that the parties enter into a deed requiring the respondents to pay to the applicant the sum of $17,500.  I ruled that there was an implicit term that the payment be made within a reasonable period of time of the execution of the Agreement. 

3                                             A deed had been prepared and presented to the respondents on behalf of the applicant.  Counsel for the respondents had indicated in Court that every aspect of the deed was acceptable with the exception of the requirement that the respondents consent to a judgment in favour of the applicant.  In my reasons I indicated that I did not believe I could, in effect, rewrite the agreement so as to impose that term.  I suggested that a simple solution would be to present a deed which did not contain a requirement to consent to a judgment. 

4                                             Subsequent to the reasons being delivered, the solicitors for the applicant wrote to the solicitors for the respondents inviting them to amend the draft deed which had been forwarded to them by deleting the requirement to consent to judgment and to return the deed to them. 

5                                             The respondents’ solicitors either did not respond or certainly did not agree to the course proposed by the solicitors for the applicant.  Counsel for the respondents informed me today that the instructions he had received were to ‘close [his] file’.

6                                             It seems to me that in those circumstances the applicant has done everything that could conceivably be done to comply with the terms of the Settlement Agreement and, as was implicit in my reasons delivered on 5 May 2009, the refusal on the part of the respondents to comply with the terms of the Agreement should result in judgment being entered against the respondents in the sum of $17,500.  I have made no provisions for costs because the judgment sum is the sum that the parties agreed some months ago and which the respondents have persistently refused to pay despite that Agreement.  

7                                             I note that while counsel for the respondents did not have instructions in the matter, he nevertheless attended before the Court and accepted the version of events that I have recorded above in relation to the history of the matter. 

8                                             The original motion which had been brought before the Court today was for dismissal of the proceeding with costs.  For the reasons indicated above, it is my view that the appropriate order, having regard to my previous observations concerning the power of the Court to enforce a settlement agreement, is that there be judgment in the terms of the Settlement Agreement.  Counsel for the applicant indicated (which is also reflected in correspondence) that her client would be content with a judgment in those terms. 

9                                             Accordingly, I order that:

1.                  There be judgment for the applicant in the sum of $17,500.

2.                  There be no order as to costs.

Associate: 

Dated:         14 October 2009