The Court held that the entire settlement deed should be set aside under s 27QE of the Limitation of Actions Act 1958 (Vic), including the economic loss component, where the plaintiff's failure to pursue an economic loss claim was not a conscious, independent decision unconnected to the Ellis defence but was instead the product of confused circumstances in which the Ellis defence materially affected the bargaining dynamics and the defendant repeatedly failed to identify an appropriately indemnified entity despite its own published commitments. The Court distinguished DZY (HC), Pearce v MSC and Mooney on the basis that there was no evidence of a specific, voluntary instruction to disclaim economic loss for reasons unrelated to the Ellis defence, and the plaintiff honestly (if wrongly) believed the settlement included compensation for economic loss. The Court also held that findings of fact from other proceedings cannot simply be 'picked up' and deployed to prove or disprove facts in the present case, given the operation of s 91(1) of the Evidence Act 2008 (Vic).
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