Scaffidi v Perpetual Trustees Victoria Ltd

(2011) 42 WAR 59; [2011] WASCA 159

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Deed of settlement
3. › Construction
4. › Compromise of litigation
5. › Whether settlement deed constituted accord and satisfaction or accord and conditional satisfaction
6. › Whether releases contingent upon payment of settlement sum
7. › Whether deed validly terminated for non-payment
1. Contract
2. › Releases and covenants not to sue
3. › Distinction between release by deed and accord and satisfaction
4. › Distinction between accord executory, accord and satisfaction, and accord and conditional satisfaction
5. › Effect of non-performance on original cause of action
1. Practice and Procedure
2. › Compromise of action by person under disability
3. › Court approval under O 70 r 10
4. › Whether court approval converts terms of settlement deed into orders of the court
5. › Rules of the Supreme Court 1971 (WA), O 70 r 10

Quick Take

A settlement deed providing for releases 'in consideration of payment' of a settlement sum within a stipulated time constitutes an accord and conditional satisfaction, not an accord and satisfaction; the releases are contingent upon actual payment, not upon the promise to pay. Court approval of a settlement deed under O 70 r 10 renders the deed enforceable against the person under disability but does not convert the deed's terms into court orders. Where a settlement deed contains a term that operates as both a promissory and contingent condition, non-fulfilment entitles the promisee to terminate under the general law unless the deed expressly excludes that right.