Deed Of Settlement And Release

Transcription

1 Deed Of Settlement And Release 4 September 2014 David Barrow Andrew Bolt The Herald and Weekly Times Pty Limited (ACN

2 Date: 4 September 2014 Parties David Charles Barrow (Mr Barrow 63/135 Cardigan Street, Carlton VIC 3053 Andrew Bolt (Mr Bolt c/- The Herald and Weekly Times Pty Limited The Herald and Weekly Times Pty Limited (HWT (ACN Background A B Mr Barrow issued proceedings for defamation against Mr Bolt and HWT (Defendants in Victorian Supreme Court proceeding S CI (Supreme Court Proceeding. The details of the complaint and the denials of the claims are set out in: Mr Barrow s Second Further Amended Statement of Claim dated 16 May 2014; Defendants' Amended Defence dated 28 May 2014; and Mr Barrow s Fourth Further Amended Reply dated 29 May in the Supreme Court Proceeding. C D Mr Barrow also brought an application for leave to appeal in the Victorian Court of Appeal by Summons dated 20 May As at the date of executing this Deed, the Defendants estimate that should Mr Barrow withdraw the Supreme Court Proceeding at the date of signing this Deed (and but for the existence of this Deed, he would be ordered to pay the Defendants' costs of the Supreme Court Proceeding in the order of $240,000.

3 E Without admission of Liability, the Parties have agreed to settle the Supreme Court Proceeding on the terms set out in this document. Agreed terms 1 Definitions In this document: Claim means any claim, complaint, action, application, demand, suit or proceeding for damages, debt, restitution, equitable compensation, account, injunction, specific performance, costs, interest or any other remedy, wherever and whenever arising, whether known or unknown at the time of execution of this document, whether presently in contemplation of the parties or not and whether arising at common law, in equity, under statute or otherwise. Court of Appeal Proceeding means Court of Appeal of Victoria proceeding S APCI David Charles Barrow v Andrew Bolt and The Herald and Weekly Times Pty Limited. Supreme Court Proceeding means Supreme Court of Victoria proceeding S CI David Charles Barrow v Andrew Bolt and The Herald and Weekly Times Pty Limited. 2 Construction Unless expressed to the contrary, in this document: (c (d words in the singular include the plural and vice versa. any gender includes the other genders. if a word or phrase is defined its other grammatical forms have corresponding meanings. includes means includes, without limitation.

4 (e (f no rule of construction will apply to a clause to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from it. a reference to: (i (ii (iii a person includes a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority any legislation or subordinate legislation includes any corresponding later legislation or subordinate legislation; and an obligation includes a warranty or representation and a reference to a failure to comply with an obligation includes a breach of warranty or representation. (g $ or "dollars" is a reference to Australian currency. 3 Agreed Costs Subject to this Deed, Mr Barrow will pay to the Defendants the amount of $160,000 (Agreed Costs in full and final settlement of the costs payable to them in the Supreme Court Proceeding and Court of Appeal Proceeding. 4 Consent Orders In order to give effect to clause 3 of this Deed, the Parties undertake to file consent orders, within seven days of the execution of this Deed: (c discontinuing the Supreme Court Proceeding; ordering that Mr Barrow pay the Defendants the Agreed Costs in the Supreme Court Proceeding fixed in the amount of $160,000 and that such costs be payable forthwith (Costs Order; and otherwise vacating all costs orders previously made in the Supreme Court Proceeding and Court of Appeal Proceeding, other than to the extent that the costs ordered in the Supreme Court Proceeding and Court of Appeal Proceeding have already been paid by Mr Barrow.

5 5 Agreement not to Enforce Costs Order Unless a Prescribed Event occurs, the Defendants agree not to take any step to enforce either clause 3 of this Deed or the Costs Order against Mr Barrow or his estate, including by: (c (d making any request for payment or causing any other person or entity to make a request for payment on their behalf; bringing or causing to be brought any process or proceeding in any Court or Tribunal seeking any order or direction that Mr Barrow pay the Agreed Costs or the Costs Order; bringing a petition for bankruptcy against Mr Barrow or taking any step to assist with or bring about a petition for bankruptcy against Mr Barrow; or taking any other step which would compel Mr Barrow to make payment of the Agreed Costs or the Costs Order. However, nothing in this Deed prevents the Defendants accepting payment of the Agreed Costs or the Costs Order, either in whole or in part, where paid by Mr Barrow or by any person on Mr Barrow's behalf. 6 Prescribed Events For the Purposes of this Deed Prescribed Event means one or more of the following: (c (d Mr Barrow makes or causes to be made on his behalf any complaint to the Australian Press Council or any successor body to the Australian Press Council against or concerning the conduct of Mr Bolt; Mr Barrow brings or causes to be brought on his behalf any defamation cause of action Claim in any Court or Tribunal against or concerning the conduct of Mr Bolt; Any person, other than the Defendants but including Mr Barrow, brings a petition for bankruptcy against or in respect of Mr Barrow; Any breach of the warranty in clause 7 of this Deed. All references in clauses 6 to 6(d of this Deed to "Mr Barrow" includes a reference to any entity controlled by Mr Barrow.

6 7 Release In consideration of the Defendants' agreement in clause 5 to forego any enforcement of clause 3 or the Costs Order unless and until a Prescribed Event occurs, Mr Barrow, any entity controlled by Mr Barrow, and any related bodies corporate, trusts, legal entities of such entities, and each of their current directors, officers, employees, agents, contractors and/or related bodies corporate releases and discharges Mr Bolt and HWT and each of its current directors, officers, employees, agents, contractors and/or related bodies corporate from any Claim arising out of any matter, fact or circumstance occurring prior to the execution of this Deed. Mr Barrow represents and warrants that he has not assigned or transferred to any third party any Claim related to the Supreme Court Proceeding or any other Claim related to the Defendants (or either of them. 8 Covenant not to make a Claim (c Mr Barrow covenants that Mr Barrow, any entity controlled by Mr Barrow, and any related bodies corporate, trusts, legal entities of such entities, and each of their current directors, officers, employees, agents, contractors and/or related bodies corporate agree not to make any Claim against Mr Bolt or HWT and/or and each of its current directors, officers, employees, agents, contractors and/or related bodies corporate in respect of any matter, fact or circumstance occurring prior to the execution of this Deed. Mr Barrow covenants that unless and until the Agreed Costs and the Costs Order are paid in full and received by the Defendants, Mr Barrow, any entity controlled by Mr Barrow, and any related bodies corporate, trusts, legal entities of such entities, and each of their current directors, officers, employees, agents, contractors and/or related bodies corporate agree not to make any defamation cause of action Claim against or concerning the conduct of Mr Bolt in respect of any matter, fact or circumstance whether occurring prior to or after the date of execution of this Deed. For the sake of clarity, if Mr Barrow is declared bankrupt but not all of the Agreed Costs and Costs Order have been paid and received by the Defendants, the covenants in clause 8 of this Deed remain in force and binding.

7 9 Bar to further Claims (c This document may be pleaded by each and any of the Defendants and each of its current directors, officers, employees, agents, contractors and/or related bodies corporate, trusts, legal entities of such entities, as a bar to and/or a full and complete defence to any Claim arising out of any matter, fact or circumstance occurring prior to the execution of this Deed. Mr Barrow agrees that unless and until the Agreed Costs and the Costs Order are paid in full and received by the Defendants, this document may be pleaded by Mr Bolt or the employer of Mr Bolt as a bar to and/or a full and complete defence to any defamation cause of action Claim against or concerning the conduct of Mr Bolt in respect of any matter, fact or circumstance whether occurring prior to or after the date of execution of this Deed. For the sake of clarity, if Mr Barrow is declared bankrupt but not all of the Agreed Costs and Costs Order have been paid and received by the Defendants, the bar to Claims in clause 9 of this Deed remain in force and binding. 10 No admission of liability Nothing in this document constitutes an admission by the Parties of any liability in respect of any matter. 11 General 11.1 Legal costs Each party must pay its own legal and other costs and expenses of the Proceedings and in negotiating, preparing, executing and performing this Deed Amendment This document may only be varied or replaced by a document duly executed by the Parties.

8 11.3 Waiver and exercise of rights A single or partial exercise or waiver by a party of a right relating to this document does not prevent any other exercise of that right or the exercise of any other right. A party is not liable for any loss, cost or expense of any other party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right Further steps Each party must promptly do whatever any other party reasonably requires of it to give effect to this document and to perform its obligations under it Governing law and jurisdiction This document is governed by and is to be construed in accordance with the laws applicable in Victoria. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in Victoria and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts Liability An obligation of two or more persons binds them separately and together Counterparts This document may consist of a number of counterparts and, if so, the counterparts taken together constitute one document Entire understanding This document contains the entire understanding between the parties as to the subject matter of this document. All previous negotiations, understandings, representations, warranties, memoranda or commitments concerning the subject matter of this document

9 are merged in and superseded by this document and are of no effect. No party is liable to any other party in respect of those matters. (c No oral explanation or information provided by any party to another: (i (ii affects the meaning or interpretation of this document; or constitutes any collateral agreement, warranty or understanding between any of the parties Severability (c Any clause in this Deed which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition. Clause 11.9 does not apply where the prohibition of the application of any clause of this Deed in any jurisdiction would substantially change the nature of the Parties' obligations under the Deed. Any clause in this Deed which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.

10 Executed as a deed. Signed sealed and delivered by DAVID CHARLES BARROW in the presence of: Witness David Charles Barrow Name of Witness (print Date Signed sealed and delivered by ANDREW BOLT in the presence of: Witness Andrew Bolt Name of Witness (print Date Executed for and on behalf of THE HERALD AND WEEKLY TIMES PTY LIMITED (ACN in the presence of:... Witness Name of Witness (print... Name Position Date