Buttrose J (delivering oral judgment):

The short issue for determination on this appeal is whether this action had been settled between the parties before the trial.

The proceedings arose out of a collision between a motor cycle ridden by the first plaintiff Lim Leng Kay and a motor car driven by the defendant. Accompanying Lim Leng Kay on his motor cycle was a pillion passenger one Goh Ah Yong. As a result of the accident the first plaintiff received minor abrasions and bruises but Goh Ah Yong was killed.

The first plaintiff claimed damages for personal injuries while the second plaintiff - the present appellant - as administrator of the estate of Goh Ah Yong, deceased, claimed damages for the benefit of the estate of the deceased and on behalf of his dependants. The claim of the first plaintiff was settled by a payment of $200 and he thereupon discontinued his action against the defendant.

The defendant in his defence to the second plaintiff's claim admitted that the second plaintiff was bound to succeed against the defendant and, while not admitting negligence, the defendant admitted the right of the second plaintiff to such damages as he was able to prove and did not require him to call any evidence of negligence by the defendant. The defendant however further alleged that he had agreed to pay and the second plaintiff had agreed to accept the sum of $5,200 plus costs to be taxed in full and final settlement of his claim. By reason of this agreement the defendant maintained that the second plaintiff was barred from proceeding with his action.

Now the evidence disclosed that the alleged agreement to settle the second plaintiffs claim was made between the then solicitors representing the parties, namely, Mr. Edwin D'Souza for the second plaintiff and Mr. Goh Joon Seng for the defendant. There was unfortunately a sharp conflict of evidence between these two solicitors.

The learned trial Judge found as a fact that there was an agreement whereby the second plaintiff through his former solicitor, Mr. Edwin D'Souza, agreed to accept $5,200 plus costs to be taxed in a sum not exceeding $500 in full and final settlement of the second plaintiff's claim and gave judgment accordingly. It is from that judgment that the second plaintiff now appeals.

As I understand the argument the second plaintiff does hot quarrel with the learned trial judge's findings of fact. All I desire to say on this aspect of the case is that after carefully considering the evidence I do not see how the trial Judge could possibly have arrived at any other conclusion than the one which he did.

The main point which has been argued before us is that where Counsel consents to a compromise under a misapprehension, such as where, intending to concede one thing, he inadvertently concedes another, or where the Counsel on both sides are not ad idem, neither the Counsel nor the client is bound by the compromise and the Court will set it aside. For that proposition Counsel relies on a case of Hickman v. Berens [1895] 2 Ch 638. In my view the case of Hickman v. Berens has no application whatever to the facts of this case. This was not a case of Counsel consenting to a compromise under a misapprehension or mistake or where both sides are not ad idem as to the terms of the compromise. This is a case of one solicitor saying there is a settlement and of another solicitor denying the settlement. Unlike the case of Hickman v. Berens, this issue was tried before a Judge and the two solicitors gave their conflicting versions on oath. Mr. Goh maintained there was a settlement. Mr. Edwin D'Souza, on the other hand, saying there was no settlement at all. After hearing the evidence, the learned trial Judge came to the conclusion that the case had been settled.

It was further argued on behalf of the appellant that the second plaintiff's solicitor, Mr. Edwin D'Souza, had no authority to settle the claim on behalf of his client at this sum of $5,200. This is not a point th