Trustees of the Christian Brothers v DZY (a pseudonym) [2024] VSCA 73 (Link to AUSTLII)
With thanks to Kate Flanigan for drawing attention to this Victorian Court of Appeal decision.
The Trustees had not resisted the initial application by DZY to set aside earlier settlement agreements insofar as he wished to pursue his claim for general damages. However, they sought to maintain the effect of the deeds insofar as they barred any claim for economic loss.
At first instance the Court ordered that the deeds be set aside in their entirety without distinction as to their operation in respect of particular heads of loss and damage. The Trustees applied for leave to appeal the associate judge’s order, confined to its operation in respect of DZY’s claim for damages for economic loss.
The Court allowed the appeal and held (per Beach & Macauley JJA, Lyons JA agreeing) at [150]:
Still, there is no positive finding that DZY’s decision not to pursue an economic loss claim was materially influenced by the existence and potential impact of the limitations and Ellis defences. Instead, a completely unrelated issue was the chief explanation for that decision. In that context, DZY’s feeling that he had no choice, the exclusion of a lack of supporting evidence for the claim as an explanation for the decision and the lack of prejudice to the Christian Brothers do not make it just and reasonable to set aside the deeds insofar as they barred pursuit of the economic loss claim…. Our reasons for not finding that it is just and reasonable to set aside the deeds, insofar as they barred the economic loss claim, cover the substance of the remaining grounds.
A more detailed note written by Joshua Dale and Kate Flanigan is available here: Link.
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