Barclay v Trustees of the Marist Brothers (Ruling) [2024] VCC 1859 (Link to AUSTLII).
Gregory Barclay, the plaintiff, sought relief from the compromise of a claim for personal injury damages recorded in a Deed entered into on 12 November 2015 (“the previously settled cause of action”) with the defendant, the Trustees of the Marist Brothers.
Pursuant to s27QE(1)(a) of the Limitation of Actions Act, 1958 (Vic) the Court may set aside the Deed if satisfied that it is just and reasonable to do so. If the Court is satisfied that it is “just and reasonable” to do so, it must set the settlement agreement aside; it is not a discretionary exercise of power.
The limitation period “barrier” had been removed by the time the Deed was signed. The central issue in dispute was whether the settlement was actually influenced unfavourably by a single “barrier” – the Ellis defence.
Following an extensive review of the evidence the court accepted that the Ellis defence had a material influence on the plaintiff’s decision to settle his claim. ([383]). The court further held that the plaintiff’s decision not to pursue an economic loss claim was materially influenced by the existence and the potential impact of the Ellis defence. ([418]).
There was no forensic prejudice to the defendant in terms of missing witnesses or missing documents at trial if the Deed is set aside. ([430]).
Accordingly, the court held that that it was just and reasonable to set aside the Deed, and, accordingly ordered, pursuant to s27QE of the Act, that the Deed be set aside in its entirety.
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