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Bird v Cannington

Bird v Cannington

Case [2012] NSWSC 789 10 July 2012

Standing

Costs

Abuse of Process

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Bird v Cannington [2012] NSWSC 789
Hearing dates: 27 June 2012
Decision date: 10 July 2012
Jurisdiction: Equity Division
Before: Rein J
Decision:
1. Plaintiff's application dismissed.
2. Plaintiff to pay the defendants' costs on the usual basis.

Catchwords:
PROCEDURE - judgments and orders - setting aside - where plaintiff claims that orders were obtained against good faith - where plaintiff seeks to set aside orders on basis of non-disclosure or misrepresentation by silence - no evidence that orders were obtained by misconduct or dishonourable conduct - no misconduct established and no linkage established between alleged non-disclosure or misrepresentation by silence and procurement of the orders - no evidence of mistake in relation to the orders made by consent on the discontinuance of preliminary discovery proceedings
PROCEDURE - order for costs against third parties - where there had been no hearing on the merits, a discontinuance filed and agreement that each party bear their own costs - where there is no evidence that the third parties knew of the proceedings, the discontinuance or agreement on costs - no basis for costs order against the third parties
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: Bird v Bird (No 4) [2012] NSWSC 646
Bird v Bird (No 5) [2012] NSWSC 734
Cash v Wells (1830) 1 B & Ad 374; (1830) 109 ER 826
CG Maloney Pty Ltd v Noon [2011] NSWCA 397
Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2010) 75 NSWLR 245
Coles v Burke (1987) 10 NSWLR 429
Connectland Pty Ltd v Cardno Forbes Rigby Pty Ltd [2011] NSWCA 391
FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340
Harvey v Phillips (1956) 95 CLR 235
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd; Jeffery & Katauskas Pty Ltd v Rickard Constructions Pty Ltd (subject to Deed of Company Arrangement) [2009] HCA 43; (2009) 239 CLR 75
Kendall v Carnegie [2006] NSWCA 302; (2006) 68 NSWLR 193
Knight v FP Special Assets Ltd (1992) 174 CLR 178
Land Enviro Corp Pty Limited v HTT Huntley Heritage Pty Limited [2012] NSWSC 382
May v Christodoulou [2011] NSWCA 75
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
Roach v B & W Steel Pty Ltd (1991) 23 NSWLR 110
Shirriff v Nominal Defendant [1999] NSWCA 152
Silvera v Savic [1999] NSWSC 83; (1999) 46 NSWLR 124
Singh v Ginelle Pty Ltd [2010] NSWCA 310
Teoh v Hunters Hill Council (No 5) [2012] NSWCA 75
Texts Cited: LexisNexis, Ritchie's Uniform Civil Procedure NSW, Vol 1 (at Service 67)
Category: Consequential orders
Parties: Deborah Michelle Bird (Plaintiff)
Herbert James Cannington (First defendant)
Warrick Lindsay Bird and Rodney…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bird v Cannington

Details

AGLC: Bird v Cannington [2012] NSWSC 789
Case: [2012] NSWSC 789
Decision Date: 10 July 2012

CaseChat Overview and Summary

In the matter of Bird v Cannington, the plaintiff sought to set aside orders made in proceedings between the plaintiff and the defendants. The plaintiff argued that the orders were obtained by the defendants through non-disclosure or misrepresentation by silence, and that they were not obtained in good faith. The dispute came before the court for the plaintiff's application to set aside the orders. The legal issues before the court were whether the orders were obtained by misconduct or dishonourable conduct, and whether there was any evidence of mistake in relation to the orders made by consent on the discontinuance of preliminary discovery proceedings. The court also had to consider whether there was a basis for an order for costs against third parties who were not parties to the proceedings and had no knowledge of the discontinuance or agreement on costs.

The court held that there was no evidence that the orders were obtained by misconduct or dishonourable conduct, and no misconduct was established. The plaintiff had failed to establish a linkage between the alleged non-disclosure or misrepresentation by silence and the procurement of the orders. Furthermore, there was no evidence of mistake in relation to the orders made by consent on the discontinuance of preliminary discovery proceedings. The court also found that there was no basis for an order for costs against third parties who had no knowledge of the proceedings, the discontinuance or agreement on costs.

The court dismissed the plaintiff's application to set aside the orders, and made no order as to costs against the third parties. The court held that there was no evidence of misconduct or dishonourable conduct in the obtaining of the orders, and no mistake in relation to the orders made by consent. Furthermore, there was no basis for an order for costs against third parties who had no knowledge of the proceedings, the discontinuance or agreement on costs. The court's decision was based on the evidence presented and the applicable legal principles. The court found that the plaintiff had failed to establish the necessary elements of their claims, and therefore the orders could not be set aside. The court also found that there was no basis for an order for costs against third parties who had no knowledge of the proceedings, the discontinuance or agreement on costs.

Orders