Esanda Finance Corporation Ltd v Conti, Conti & Conti [1995] QSC 342

IN THE SUPREME COURT OF QUEENSLAND Brisbane No. 616 of 1995 Before the Hon Justice White [Esanda v. Conti] BETWEEN: ESANDA FINANCE CORPORATION LIMITED (ACN 004 346 043) (Plaintiff) AND: CARMELLA CONTI, PHILLIPE FRANK CONTI AND ROSA MAREE CONTI (Defendants) REASONS FOR JUDGMENT - WHITE J Judgment delivered 22/12/1995 CATCHWORDSSUMMARY judgment on deed of compromise - proof of deed - construction. Counsel: Mr P Freeburn for applicant/plaintiff. Mr M Amerena for respondents/defendants. Solicitors: Corrs Chambers Westgarth for applicant/plaintiff. Reidy and Tonkin as t/a for MacDonnells for respondents/defendants. Hearing dates: 7 April, 23 May 1994 -- 1 of 21 -- IN THE SUPREME COURT OF QUEENSLAND No. 616 of 1991 BETWEEN: ESANDA FINANCE CORPORATION LIMITED (ACN 004 346 043) (Plaintiff) AND: CARMELLA CONTI, PHILLIPE FRANK CONTI AND ROSA MAREE CONTI (Defendant) DRAFT REASONS FOR JUDGMENT - WHITE J Judgment delivered 22/12/1995 The applicant, Esanda Finance, seeks judgment pursuant to a Deed of compromise entered into between itself and the defendants and Chana Pty Ltd on 10 April 1992. There has been a great deal of litigation between Esanda and the Contis and Chana Pty Ltd. Between June 1987 and July 1989 the Contis and Chana Pty Ltd entered into a series of loan contracts, variations to loan contracts and bill facilities with Esanda. The loans were secured by mortgages, bills of sale and guarantees. The security properties are prime commercial real estate in central Cairns. Esanda commenced action No 616 of 1991 in this court against Carmella Conti, her son Phillipe Frank Conti and her daughter Rosa Maree Obah (formerly Conti) to recover the amount of principal and interest owing under the loan agreements. In action No 661 of 1991 against the Contis and Chana Pty Ltd (a company controlled by Carmella and Phillipe Conti), Esanda sought recovery of possession of the security properties. The -- 2 of 21 -- 2 trial of the actions was due to commence on Monday 13 April 1992. On Friday 10 April 1992 the actions settled and the parties executed a Deed of settlement bearing that date. It is pursuant to that Deed that Esanda seeks summary judgment. The Issues The Contis have submitted that the Deed of Settlement upon which the application for judgment is founded has not been strictly proved according to law. An alternative submission is that the finding of the mediator cannot be relied upon. If these procedural objections as to form are not upheld, the Contis submit that the application for summary judgment ought to be refused on various discretionary grounds. The Deed The parties to the Deed are Esanda, each of the Contis and Chana Pty Ltd ("Chana"). In the Deed the Contis and Chana acknowledged their joint and several indebtedness and liability to Esanda pursuant to the agreements and the actions and the enforceability of the several securities. The parties agreed that the amount payable as at the date of the Deed by the Contis and Chana to Esanda was $10 million ("the Sum") inclusive of all unpaid principal, interest, costs and expenses to that date. Conditional upon the Contis and Chana complying with the terms and conditions of the Deed and not committing an act of default pursuant to cl. 13.3 Esanda agreed to accept in full and final satisfaction of its claims an amount of: • the Sum plus all other amounts for which Esanda and the Manager (to the properties) may become liable for -- 3 of 21 -- 3 or pay pursuant to the securities or the Deed, or, • if the proceeds of sale of the properties were less than the Sum then the sale proceeds of the securities; and • interest on the Sum as provided for in the Deed; and • the amount of any charges paid by Esanda or the Manager. The Deed provides for interest. By cl. 4 Esanda was entitled to appoint a manager to the property or any of them as provided in the securities and to fix his remuneration. The manager had the powers conferred upon him by the securities. By cl. 4.3 a program for the sale of the properties was established together with an obligation on the manager to consult weekly with Phillipe Conti concerning decisions affecting the properties, but the manager retained complete discretion with respect to the properties. Cl. 5 provided for the disposition of income received by the manager from the properties pending the sale of the properties and cl. 6 provided for the application of monies received by the manager from their sale. The Contis were required to execute any documentation relating to the sale or transfer of any property when requested by the manager and in default the manager could do so, (cl. 7). By cl. 9 Esanda agreed that on completion of the sale of the properties it would not pursue the Contis or Chana for any shortfall on the Sum, etc, and agreed to release them from all claims provided the Contis and Chana had not defaulted under -- 4 of 21 -- 4 cl. 13.3. Cl. 12 sets out the Contis' and Chana's obligations: • not to hinder or obstruct Esanda or the manager in the performance of their powers and duties; • to provide to the manger upon receipt any income which they received from the properties; • not without the consent in writing of Esanda: • create, execute, permit or suffer to exist any security, interest over, relating to or affecting the properties in favour of any person other than Esanda; or • sell, lease or part with possession or otherwise deal with or dispose of any of the properties; • give notice to the manager of any notice or demand from any authority in respect of the properties; • not do anything to affect or prejudice the properties in any way; • provide the manager upon demand with financial information about the properties; • not make any representation or warranty to Esanda or the manager which was incorrect; • notify Esanda and the manager of any proceedings commenced against any of them including any bankruptcy notice or execution or other process; • not make any composition with their creditors. -- 5 of 21 -- 5 Clause 13 is the default clause and provides as follows (reference to "the Contis" in the Deed includes a reference to Chana Pty Ltd): "13.1Default Notice If the Contis are in material breach of their obligations under this Deed then Esanda may give a notice in writing setting out the breach (hereinafter referred to as the "Default Notice") to the Contis and shall give to the Contis an opportunity to rectify the breach within twenty-eight (28) days of receipt of the Default Notice. 13.2 Objection to Default 13.2.1 If the Contis dispute that the breach referred to in the Default Notice is material then within seven (7) days of the receipt of the Default Notice the Contis must notify Esanda in writing of their objection (hereinafter referred to as "the Notice of Objection"). 13.2.2 If 48 hours after Esanda's receipt of the Notice of Objection the parties are unable to resolve whether the breach referred to in the Default Notice is material then any of the parties may immediately or anytime thereafter request the President of the Queensland Law Society to appoint a mediator approved by the Queensland Law Society (hereinafter referred to as "the Mediator") for the purpose of determining whether the breach referred to in the Default Notice is material. 13.2.3 The Parties agree that within seven (7) days of the appointment of the Mediator they shall each submit to the Mediator details of their claim setting out the matters in dispute, the relevant facts they assert are in dispute, the basis of the claim and shall annexe copies of any relevant documents. 13.2.4 The Mediator shall:- (a) Not follow the rules of evidence unless the parties agree otherwise. (b) Have regard to the cost of the process and, as far as possible ensure that the -- 6 of 21 -- 6 costs are kept to a minimum; (c) Order each party to deliver to the other such documents or statements as the Mediator considers necessary to determine whether any breach is material; (d) Follow such other guidelines as the parties may agree; and (e) Decide within twenty-eight (28) days after his or her appointment whether the breach is material. 13.2.5 If the dispute is not resolved within twenty- eight (28) days of the appointment of the Mediator, the breach referred to in the Default Notice is deemed to be material. 13.2.6 Any process conducted pursuant to this clause before a Mediator shall be conducted on a without prejudice basis and any documents prepared for the purpose of such hearing shall not be produced at any subsequent proceeding. 13.2.7 The decision of the Mediator as to whether any breach referred to in the Default Notice is material shall be binding on the parties. 13.2.8 The costs and expenses of the Mediator shall be indemnified equally by Esanda and the Contis. 13.3 Default The Contis will be in default under this Deed if: (a) the Contis have not delivered to Esanda a Notice of Objection within seven (7) days of the receipt of a Default Notice; and (b) having delivered a Notice of Objection pursuant to Clause 13.2 of this Deed any one of the following occurs: (i) the Parties have resolved that the breach in the Default Notices is material and that default pursuant to Clause 13.3 has occurred; -- 7 of 21 -- 7 (ii) the Mediator has made a finding that the breach in the Default Notice is material; or (iii) the breach referred to in the Default Notice is deemed to be material pursuant to Clause 13.2.5 of this Deed. 13.4 Consequences of Default Any default pursuant to clause 13.3 of this Deed entitles Esanda to: (a) uncontested judgment against Carmella Conti, Phillipe Frank Conti and Rosa Maree Conti for the amount claimed by Esanda in Action No. 616 of 1991; (b) uncontested judgment against the Contis for possession of the Properties in Action No. 661 fo 1991; and (c) exercise all of its rights over the Properties pursuant to the Securities." The balance of the Deed deals with notices and other matters not here relevant. Schedule 1 sets out the various agreements, the bill facilities, the securities, the guarantees and the bill of sale and equitable mortgages entered into between the Contis, Chana and Esanda. Schedule 2 describes the properties and Schedule 3 sets out the reserve prices for each of those properties. At the end of Schedule 3, which is page 16 of the Deed and on the following page 17, appear the executions of the parties and attestations of the witnesses. Lorraine Margaret Chesters has executed for Esanda witnessed by Mr Graham Juler, a credit manager employed by Esanda; the purported signature of each of the Contis appears apparently witnessed by the solicitor for each of those individuals. The common seal of Chana is affixed apparently in the presence of -- 8 of 21 -- 8 Carmella Conti as director and Phillipe Conti as secretary and signed by them in those capacities. The Defaults On 14 April 1992 Esanda appointed a manager of the properties pursuant to its powers under the Deed. By notice dated 14 May 1993 the solicitors for Esanda caused a notice of default to be sent to the defendants in both actions. The Contis and Chana were alleged to be in material breach of their obligations under the Deed in the following respects: • on or about 23 October 1992 Chana without the consent of Esanda entered into a contract with one Vincenzo Bellino to sell two of the subject properties in breach of cl. 12(a) and (c)(ii) of the Deed; • on 26 November 1992 Phillipe and Carmella Conti and Chana commenced actions in the Supreme Court in which they sought to restrain the manager from completing contracts of sale of the properties the subject of the alleged contracts with Bellino in breach of cl. 12(a) of the Deed; • Carmella and Phillipe Conti had failed to vacate one of the properties pursuant to a notice in breach of cl. 12(a) and in breach of an order of Ryan J; • on 30 November 1992 caveats were lodged over certain of the subject properties by Carmella and Phillipe Conti and Chana in breach of cl. 12(a) of the Deed; • on 7 December 1992 an application was brought ex parte by Carmella and Phillipe Conti and Chana -- 9 of 21 -- 9 seeking to stay part of the orders of Ryan J in breach of cl. 12(a) of the Deed; • on 9 December 1992 Rosa Obah lodged a caveat over one of the properties in breach of cl. 12(a) of the Deed; • on 15 January 1993 Phillipe Conti caused a caveat to be lodged with respect to some of the properties in the name of one James Anthony in breach of cl. 12(a) of the Deed and the order of Williams J; • on 16 February 1993 Phillipe Conti caused caveats to be lodged over certain of the properties in the name of Raymond Henderson in breach of cl. 12(a) and in the case of one such caveat in breach of the order of Williams J. Esanda's solicitors received two notices of objection one from Carmella and Phillipe Conti and one from Rosa Obah dated 21 May 1993 disputing that the allegations set forth in the notice of default were material breaches of their obligations under the Deed. In accordance with the terms of the Deed the President of the Queensland Law Society appointed Professor John Wade as mediator. On 2 July 1993 Professor Wade made his findings. He found that pursuant to cl. 13 of the Deed there were a number of material breaches as specified in the default notice. Esanda seeks judgment for $4,954,166.88 calculated on the total amount claimed in Writ No 616 of 1991 plus interest less the net sale proceeds received and the trading income received and payments made by the Contis and Chana pursuant to court -- 10 of 21 -- 10 orders. Interest accrues on the amount claimed at the rate of $2,587.54 per day from 28 January 1994 until payment. Action on the Deed The defendants do not submit that the Court may not give summary judgment on the compromise in the within action if it is persuaded that it is otherwise appropriate to do so. Proof of the Deed The defendants require that the Deed be strictly proved. Mr Vincent Rogers, the solicitor for Esanda, has sworn in his original affidavit in support of the application for judgment that the parties executed the Deed and exhibits it to his affidavit. In a further affidavit filed on the morning of the hearing Mr Rogers has sworn that he was present at a conference in his firm's offices on Friday 10 April 1992 at which Mr Graham Juler from Esanda, Carmella Conti and her solicitor Mr N Masinello and Phillipe Conti and his solicitor, Mr Lateef, were also present. He deposes that he saw Carmella and Phillipe Conti sign the last page of six copies of the Deed and initial each page of each copy of the Deed. He saw the common seal of Chana Pty Ltd affixed to each copy of the Deed by Phillipe Conti and saw Carmella and Phillipe Conti sign the six original Deeds as officers of Chana Pty Ltd. He saw Mr Masinello and Mr Lateef witness the signatures of their respective clients. Mr Rogers then facsimiled the Deed to Mr H Mellick, the solicitor for Rosa Obah, in Cairns. He then telephoned Mr Mellick and told him that he had just facsimiled the Deed to him. Mr Mellick telephoned Mr Rogers and told him -- 11 of 21 -- 11 that Miss Conti (Obah) had signed the Deed. Mr Mellick said that he provided a copy of the Deed signed by her to a Mr Andrew McHugh, an employee of Esanda, who was at Mr Mellick's office. Mr Rogers spoke with Mr McHugh and was informed that he had indeed received a copy of the Deed that had been signed by Miss Conti. On 14 April 1992 Mr Rogers sent the six original signed and attested copies of the Deed to Mr Mellick. Mr Mellick then returned the six original Deeds with Miss Conti's signature on each, apparently witnessed by him. Mr Rogers ventured the opinion that the signature of Miss Conti on the Deed is her signature because it is the same as the signature which appears on her affidavit of documents sworn 6 February 1992 and filed in this action. Mr Amerena, for the defendants, submitted that it was necessary for the applicant to show that efforts had been made to obtain verification of the execution of the Deed by the attesting witnesses before other evidence could be admitted. Subsequent to the hearing I gave Mr Freeburn, who appeared for Esanda, leave, against objection, to read the affidavits of Carmella and Phillipe Conti filed in action 123 of 1992 in which each admits to the due execution of the Deed and exhibits a copy of it. The parties in that action are Phillipe and Carmella Conti and Chana Pty Ltd as plaintiffs and John Victor Moret-Lalli (the manager appointed under the Deed) as first defendant; Esanda as second defendant; and Rosa Obah (Conti) as third defendant (she was alleged by her brother to have sold her interest in the properties to her mother in 1989). The -- 12 of 21 -- 12 action concerns, inter alia, the sale of the properties pursuant to the Deed and is referred to the Notice of Default. Mr Graham Juler has sworn an affidavit that he was the attesting witness to the execution of the Deed by Lorraine Margaret Chesters on behalf of Esanda. Mr Freeburn submitted that the Deed is to take effect as an agreement under hand and therefore need not be attested and thus not proved in the way in which documents which are required by law to be attested must be proved. The document has all the indicia of a deed using language typical of deeds. Throughout the material it is described by the parties and their legal advisers as a deed. At common law a deed did not require signature (or attestation) but s. 45 of the Property Law Act 1977 governs the formal requirements of deeds. If a deed is both signed and physically sealed it need not be attested, s. 45(2). There is no suggestion that sealing has occurred here. I conclude that the document is a deed and is intended to take effect as a deed and must be proved in accordance with the formal requirements of s. 45 of Property Law Act. At common law if the execution of a deed were put in issue it was necessary to call the attesting witness to the maker of the document in order to prove its due execution. It is unnecessary here to consider the ancient origins of the rule but Lord Ellenborough in R v. Harringworth (1815) 4 Maul & Sel 350, 353; 105 ER 863, described it as "universal" and "not to be varied". See generally Wigmore vol 4 § 1287 et seq. In due -- 13 of 21 -- 13 course, if the attestor's testimony was not available to the court then other methods of proof became acceptable. The most complete excuse for not producing the attestor was death. Section 45(4) of the Property Law Act provides: "A deed executed and attested under this section may in any proceedings be proved in the manner in which it might be proved if no attesting witness were alive." See also s. 61 of the Evidence Act 1977. Accordingly, as a consequence of s. 45(4) evidence of attestation other than that of the attestor may be called where a deed is executed in accordance with s. 45(2). There is no additional requirement to explain why the attesting witness is not produced to the court as Mr Amerena submitted should occur as threshhold evidence. By virtue of s. 45(4) the matter of proof proceeds as if the court were satisfied of the unavailability through death of the attesting witness. At common law if the attestor were not available because of death to give oral testimony the secondary evidence of the attestor whose declaration on the deed was accepted if the signature were proved was preferred to that of the maker, Barnes v. Trompowsky 7 Term R 265 (1796); 101 ER 966; The Mulgrave Central Mill Company Limited v. Toohea [1906] St R QD 203 at p. 206, 208 per Chubb J. A number of courts in the United States early perceived the rule to be technical and artificial and declined to follow it, preferring proof of the maker's signature as the best evidence of execution, Jackson v. Waldron 13 Wend. 178, 197 (NY 1834). Various justifications for preferring proof of the attestor's signature over the maker's were advanced which tended to focus -- 14 of 21 -- 14 on the avoidance of fraud but, in truth, harking back to the earliest origins of deeds when the maker was often illiterate. In England and Australia the orthodox position of preference for the attestor prevails subject to statute, Whyman v. Garth (1853) 9 Exch 803; 155 ER 1578; The Mulgrave Central Mill v. Toohea, ibid. Mr Rogers has been the solicitor with the carriage of the action since April 1991. He deposes to and has not been contradicted on his assertion that he saw and observed the signature of the several attestors written on the deed alongside the signature of the makers of the deed and names those attestors as well as the makers. He also saw and observed the makers of the deed place their signature on the six original documents. This did not include Rosa Maree Obah and her attestor. I am persuaded that Mr Rogers' evidence is sufficient proof of the attesting signatures of Mr Masinello and Mr Lateef for Carmella and Phillipe Conti respectively. The signature of Rosa Maree Obah has purportedly been proved by Mr Rogers by comparison. There is no evidence proving Mr Mellick's signature. Without more this would be insufficient to prove due execution but there is other evidence to be considered. Admissions of due attestation or due execution by the party against whom the deed is tendered are recognised as an exception to the general rule of proof of deeds, Halsbury 4th ed, vol 17 para 128. It is submitted that admissions of execution have been made by Carmella and Phillipe Conti in -- 15 of 21 -- 15 action No 123 and in the Notices of Objection by the Contis and Chana to Esanda. The cases proceed on the basis that the proceedings in which the admission was made must be the same proceedings in which the deed is sought to be proved, Whyman v. Garth, supra, at 807. In Call v. Dunning (1803) 4 East 53; 102 ER 750, Lord Ellenborough would not permit the answer of the defendant in Chancery to a bill of discovery that the document sued upon in Kings Bench was his bond, since there was an attesting witness who was not accounted for, but the proposition was not denied that the evidence was otherwise admissible. In any event, a party may be estopped from denying execution of the deed. The admissions by Carmella and Phillipe Conti in action No 123 were made under oath. They swore that they were parties to the Deed and exhibited it to their respective affidavits. That action concerned the same events and the same parties as the present action. It might be thought to be unconscionable for Carmella and Phillipe Conti to put Esanda to proof of due execution in that circumstance. That evidence by Carmella and Phillipe Conti is direct sworn testimony and, in evidenciary terms, superior to other secondary evidence. Carmella, Phillipe Conti and Rosa Obah have signed the notices of objection and Chana has sealed the notice. There is no denial of the validity of those signatures and that seal. The terms of the notices are as follows: "WHEREAS ESANDA FINANCE CORPORATION LIMITED ("Esanda") has given a Default Notice in purported pursuance of the Deed of Settlement dated 10 April 1992 ("the Deed") directed to CARMELA CONTI, PHILLIPE -- 16 of 21 -- 16 FRANK CONTI, ROSA MAREE OBAH and CHANA PTY LTD dated 14 May 1993 ("the Notice of Default"). TAKE NOTICE that CARMELA CONTI, PHILLIPE FRANK CONTI and CHANA PTY LTD dispute that any or all of the allegations itemised in the Notice of Default are material breaches of their obligations under the Deed." In my opinion those documents constitute additional evidence by way of admission that the Deed was duly executed by all of the parties sought to be made liable. I conclude that sufficient proof of the due execution to the Deed by the defendants has been given. The Mediator Mr Rogers has exhibited copies of documents associated with the appointment of the mediator under the Deed, his communications with the parties and his findings. Mr. Amerena has submitted that by virtue of cl. 13.2.6 such documents are inadmissible and on the further ground that the document is hearsay and may not be used on an application for final judgment. Cl. 13.2.6 provides: "Any process conducted pursuant to this clause before a Mediator shall be conducted on a without prejudice basis and any documents prepared for such hearing shall not be produced at any subsequent proceeding." The question is whether this application is to be characterised as "subsequent proceedings"? Cl. 13.4 provides that any default pursuant to cl. 13.3 entitles Esanda to: "(a) uncontested judgment against Carmella Conti, Phillipe Frank Conti and Rosa Maree Conti for the amount claimed by Esanda in Action No. 616 of 1991; (b) uncontested judgment against the Contis for possession of the properties in Action No. 661 of 1991; and -- 17 of 21 -- 17 (c) exercise all of its rights over the Properties pursuant to the Securities." That clause seems to imply that action taken to enforce the consequences of default pursuant to the Deed are not "subsequent" proceedings. An "action" is a civil proceeding commenced by writ or in other fashion as prescribed and a "matter" includes every proceeding in the Court not in a cause, Judicature Act 1876 s. 1, see also RSC 2. The meaning of "proceeding" in Order 90 r. 9 is clearly much wider, being some step taken towards the prosecution of the subject action. The context of cl. 13, together with the ordinary meaning of proceeding, suggests that the parties intended "subsequent proceedings" to be proceedings separate from those referred to in cl. 13.4(a) and (b). The other basis of challenge appears sound. The evidence of the mediator's findings is necessarily hearsay and does not fall within any exceptions. The mediator's finding is not the only basis entitling default judgment. Cl. 13.2.5 provides that if the dispute is not resolved within 28 days of the appointment of the mediator, the breach referred to in the default notice is deemed to be material. Cl. 13.3 provides that the Contis (and Chana) will be in default under the Deed if, having delivered a notice of objection pursuant to cl. 13.2, any one of three events occurs including that the breach referred to in the default notice is deemed to be material pursuant to cl. 13.2.5. Mr Rogers has sworn that at no time after 2 June 1993 have the parties to the action resolved their disputes. The mediator was appointed on -- 18 of 21 -- 18 that date. Accordingly the Contis and Chana are in default and Esanda is entitled to judgement unless discretionary grounds would dictate otherwise. Discretion The question then is whether the judgment ought to be ordered. Mr Amerena has submitted that there are a number of bases which would operate against giving summary judgment. In the first place he submits that the notice of default is not in the form contemplated by the Deed as, on its face, it gave no opportunity to the Contis to rectify the default within 28 days. Cl. 13.1 of the Deed provides that if the Contis are in material breach of their obligations Esanda may give notice in writing to the Contis and Chana setting out the breach and give the Contis an opportunity to rectify the breach within 28 days of receipt of the default notice. The notice from Esanda does not state that the Contis could rectify the breach. After setting out the breaches the notice stated that Esanda would proceed to exercise its rights under the Deed. Cl. 13.1 does not require in its terms that Esanda state in the notice or otherwise in writing that the Contis may rectify the breach. The Contis and Chana must be taken to be aware of the terms of the Deed into which they entered. Within 7 days of receipt of the default notice the Contis and Chana notified Esanda of their objection as provided for in cl. 13.2.1. The events the subject of the notice occurred in the second half of 1992 and in early 1993. The Contis and Chana had ample opportunity to rectify any default as provided for in cl. 13.1 should they -- 19 of 21 -- 19 have been so minded. There is no omission in the form of notice which would suggest that the matter must go to trial. Mr Amerena submitted that upon the construction of the Deed all that the mediator was required to do was to determine the materiality of the breaches alleged in the notice and not whether the breaches were, in fact, committed. It seems, as best one can judge, that the mediator's findings were responsive to submissions made on behalf of the Contis. It seems unduly refined to suggest that the mediator erred in finding that breaches were committed additionally to a finding that they were material. The conclusion and summary of his report suggests that the mediator did not misconceive his function. In any event cl. 13.2.5 provides for judgment without relying upon the findings of the mediator. Finally, Mr Amerena suggested that the reference to a mediator without the consent of all the parties was liable to cause injustice and that a full and "careful trial" on the merits in a new action would be the preferable way to deal with liabilities under the Deed. The parties clearly contemplated within the Deed the appointment of a mediator in certain circumstances. It is quite different from the voluntary submission to mediation such as occurs in the course of or prior to litigation. The approach to be taken to the summary enforcement in the action of a compromise of the action was discussed by McPherson J (as his Honour then was) in General Credits (Finance) Pty Limited v. Fenton Lake Pty Ltd, [1985] 2 Qd R6. His Honour -- 20 of 21 -- 20 approved the approach of Smith J in Roberts v. Gippsland Agricultural Earth Moving Contracting Co Pty Ltd [1956] VLR 555. If issues of credit require resolution that would be a ground for sending the matter to trial. In this case the defendants filed no material, neither have they required any of the applicant's deponents for cross-examination. Mr Amerena frankly conceded that he was instructed to take any legitimately arguable points on this application and, as I followed his arguments, the major argument advanced was the failure to prove the due execution of the Deed. There seems to me to be no evident disadvantage to the parties in determining this matter summarily. There appear to be no matters involved beyond the scope of the action. I am of the view that this case is one in which the compromise agreement may, without detriment to the parties, be enforced in the action. There will be judgment for the plaintiff against the defendants in the sum of $4,954,166.88 together with interest at the rate of $2,587.54 per day from 28 January 1994. The defendants must pay the applicant's costs of and incidental to the application unless there are submissions to the contrary. -- 21 of 21 --