DZY v Trustees of the Christian Brothers (No 2) [2026] VSC 144 (Link to AUSTLII).
With thanks to Kate Flanigan for drawing attention to this decision, which arose following earlier decisions concerning applications to set aside two settlement Deeds.
The Associate Justice delivered judgment and made orders setting aside the deeds in their entirety.
On appeal, the defendant contended that the Associate Justice had erred in setting aside the deeds in so far as they barred the plaintiff’s claims for economic loss and sought relief that the deeds be set aside only in part, permitting the plaintiff to bring his claim for ‘loss and damage excluding any economic loss’. The plaintiff did not file a cross–appeal or notice of contention. It follows that the plaintiff’s construction point was not raised in the Court of Appeal. The appeal was successful in that the Court of Appeal determined that the Associate Justice had erred in setting aside the deeds in their entirety.
The plaintiff applied for special leave to appeal to the High Court of Australia. The High Court later granted special leave, albeit not in respect of all grounds sought to be raised. the plaintiff applied for special leave to appeal to the High Court of Australia. The principal issue concerned s 27QE(1) of the LAA. The High Court dismissed the appeal.
In May 2025, the plaintiff’s solicitors wrote to the defendant’s solicitors referring to the decision of the High Court as well as the paragraph in the reasons of the Associate Justice that had left the plaintiff’s “construction point” undetermined and relevantly stated that the plaintiff intended to press his argument that the terms of the Deeds are such that the parties never contracted out of his right to pursue economic loss and that, therefore, the Deeds do not bar his pursuit of economic loss damages in this proceeding.
By consent, the relevant matters were considered as preliminary questions.
The court held that having regard to the relief foreshadowed by the defendant if its application for leave to appeal and appeal were successful, it was unreasonable for the plaintiff not to file a cross-appeal or notice of contention in respect of his construction point, if he wanted to maintain it.
The key questions in relation to the contractual effect of the settlement deeds on the economic loss claim were outlined at [22] as below (see C and D) , in respect of which the court ruled “yes” (at [127]). Final orders were not made, however at [129] the court said that it would seem to follow that an order should at least be made to the effect that the plaintiff’s claim, insofar as it related to a claim for damages for economic loss, should be either stayed or struck out as an abuse of process.
(C) Do the terms of the deed executed by the parties on 14 December 2012 and pleaded at paragraphs 26 to 30 of the amended defence dated 30 September 2025, release the defendant from a claim by the plaintiff for economic loss in respect of the injuries pleaded in the amended statement of claim dated 23 August 2021?
(D) Do the terms of the deed executed by the parties on 9 December 2015 and pleaded at paragraphs 36 to 40 of the amended defence, release the defendant from a claim by the plaintiff for economic loss in respect of the injuries pleaded in the amended statement of claim?
[BillMaddensWordpress #2506]