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Cachia v Colaco

Cachia v Colaco

Case [2003] NSWLEC 364 24 December 2003

Jurisdiction

Standing

Equitable Fraud

Discovery & Disclosure

Abuse of Process

Civil Litigation & Procedure

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Land and Environment Court

of New South Wales

CITATION: Cachia v Colaco [2003] NSWLEC 364

PARTIES: Saviour Laurence Cachia (Appl/Resp on motion)
Wilfred Servelo Colaco (Resp/Appl on motion)
Doris Bella Colaco (Resp/Appl on motion)

FILE NUMBER(S): 40134 of 2001

CORAM: McClellan CJ

KEY ISSUES: :- FRAUD
Application to set aside judgment on grounds of fraud
Original proceedings included dispute about height of wall
Building approval operating in relation to specifications for height of wall contained in site plan
Site plan not before court in original proceedings
Whether particulars of fraud sufficient
Whether respondent appreciated effect of building approval
Whether fresh material facts providing basis to set aside judgment
Whether respondent responsible for any fraud
Whether applicants' solicitors required to exercise reasonable diligence in discovering relevant evidence
HELD: as there was no fresh material fact fraud was not proved
Application dismissed

LEGISLATION CITED: Environmental Planning & Assessment Act 1979
Land and Environment Court Act 1979

CASES CITED: Bailey v Marinoff (1971) 125 CLR 529;
DJL v Central Authority (2000) 201 CLR 226;
Gamser v Nominal Defendant (1977) 136 CLR 145;
Harrison v Schipp (2002) 54 NSWLR 612;
Jonesco v Beard [1930] AC 298;
Kettlewell v Watson (1882) 21 Ch D 685;
Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537;
Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 ;
McDonald v McDonald (1965) 113 CLR 529;
McHarg v Woods Radio [1948] VLR 496;
Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (1992) 109 ALR 137;
Nocton v Lord Ashburton [1914] AC 932;
Owens Bank Ltd v Bracco [1992] 2 WLR 621 ;
Permanent Trustee Co (Canberra) Ltd (As executor for Estate of Andrews) v Stocks and Holdings (Canberra) Pty Ltd [1976] 28 FLR 195;
Pilato v Metropolitan Water Sewerage and Drainage Board (1959) 76 WN (NSW) 364;
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691;
Starray Pty Ltd v Sydney City Council (2001) 112 LGERA 438;
Toubia v Schwenke (2002) 54 NSWLR 46;
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 ;
Wollong Pty Limited v Shoalhaven City Council (No 2) (2002) 122 LGERA 178.

DATES OF HEARING: 12-13/11/03; 17/11/03

DATE OF JUDGMENT:
12/24/2003

LEGAL REPRESENTATIVES:

S L Cachia (Appl/Resp on motion - in person)
M Fraser (Barrister - Resp/Appl on motion)
Taylor Kelso (Sol - Resp/Appl on motion)

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40134/01

McCLELLAN J

WEDNESDAY, 24 DECEMBER 2003

CACHIA

Applicant

COLACO

Respondent

Judgment

Introduction

1 HIS HONOUR: This is an application to set aside a judgment on the ground of fraud. The applicants Mr and Mrs Colaco, seek to set aside orders granted in favour of the respondent, Mr Cachia, in proceedings before Cowdroy J.

2 The parties to the dispute are neighbours. They live in Delmar Drive, Copacabana where Mr Cachia is the owner of the house at 154. Mr and Mrs Colaco are the owners of the house next…

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 Cachia v Colaco

Details

AGLC: Cachia v Colaco [2003] NSWLEC 364
Case: [2003] NSWLEC 364
Decision Date: 12/24/2003

CaseChat Overview and Summary

The case of Cachia v Colaco involves an application by the Colacos to set aside a judgment obtained by Mr Cachia on the grounds of fraud. The Colacos argue that the original judgment was obtained by Mr Cachia's failure to disclose the substance of a building approval granted in 1997, which allowed for a higher fence than that approved in a 1994 approval. The Land and Environment Court of New South Wales had to decide whether there was sufficient evidence of fraud to set aside the original judgment and whether the Colacos had a case to answer in terms of the relief they sought. The court held that there was no fresh material fact that would have altered the outcome of the original proceedings and that Mr Cachia was not responsible for any fraud. The court also noted that the applicants' solicitors should have exercised reasonable diligence in discovering relevant evidence. The application to set aside the judgment was dismissed, and the applicants were ordered to pay the respondent's costs.

Orders