1Where a plaintiff was aware of the time limitation barrier and the Ellis defence (legal identity barrier) when entering a settlement, and the defendant never expressly communicated its non-reliance on those barriers during negotiations, the legal barriers materially impacted the plaintiff's decision to settle — even where the defendant had publicly stated it would not rely on them.
2A settlement deed will be set aside in whole, including as to economic loss, where there is no evidence the plaintiff made an informed election to exclude economic loss from the claim, the settlement sum was not itemised by heads of damage, and no medical or forensic accounting evidence was exchanged during negotiations — distinguishing cases like DZY and Pearce where explicit elections against economic loss were documented.
3The defendant's failure to ensure the plaintiff understood the defendant's position on legal barriers, combined with unequal bargaining power, lack of independent legal advice during negotiations, and a settlement amount that was modest relative to the plaintiff's likely damages, are supportive factors weighing in favour of setting aside under the DZY framework.
Case Details
Citation[2024] VSC 329
CourtVSC
JurisdictionVictoria
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