Connectland Pty Ltd v Cardno Forbes Rigby Pty Ltd

[2011] NSWCA 391

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Connectland Pty Ltd v Cardno Forbes Rigby Pty Ltd [2011] NSWCA 391

Hearing dates:

6 December 2011

Decision date:

06 December 2011

Before:

Macfarlan JA at [1]; [10]
Whealy JA at [9]

Decision:

The application for leave to appeal is dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - civil - application for leave to appeal against consent judgment - applicant alleged that respondent's misrepresentation induced her to consent to judgment - no arguable case that representation was erroneous - leave to appeal refused

Cases Cited:

Harvey v Phillips [1956] HCA 27; 95 CLR 235

Category:

Principal judgment

Parties:

Connectland Pty Ltd (First Applicant)
Rosa Caporale (Second Applicant)
Cardno Forbes Rigby Pty Ltd (Respondent)

Representation:

Counsel:
M K Rollinson (Second Applicant)
D J Hand (Respondent)
Solicitors:
Peter Papadopoulos & Co Lawyers (Second Applicant)
Herbert Geer (Respondent)

File Number(s):

CA 2011/313873

 Decision under appeal 

Citation:

Cardno Forbes Rigby Pty Ltd v Connectland Pty Ltd

Date of Decision:

2011-02-01 00:00:00

Before:

Gibson DCJ

File Number(s):

DC 3690/2009

Judgment

1. MACFARLAN JA : On 1 February 2011 the second applicant, Ms Rosa Caporale, consented to the District Court entering a judgment against her in favour of the present respondent, Cardno Forbes Rigby Pty Ltd ("CFR") in the sum of $760,527.44. The respondent had claimed against Ms Caporale as guarantor of indebtedness of Connectland Pty Ltd, which is named as the first applicant in the present application for leave to appeal but which is in liquidation and does not pursue its application.

1. The proceedings in which the judgment was entered were brought by CFR against Connectland for outstanding professional fees that CFR alleged that Connectland owed to it for consulting engineering services and the preparation of an environmental assessment report submitted to the Department of Planning.

1. Ms Caporale alleges that CFR induced her to consent to judgment on 1 February 2011 by representing that CFR had not informed anyone of its dispute with Connectland and Ms Caporale. Ms Caporale alleges that the representation was erroneous because prior to 1 February 2011 CFR in fact informed the Department of Planning about the dispute.

1. In August 2011, CFR sent a letter to the Department of Planning containing the following statements.

"As discussed with Michael Woodland towards the start of this year, we were having difficulty in securing payment for our consultancy services provided in respect of the IETC Project. We had commenced a lengthy legal battle with Ms Caporale concerning outstanding payment of our accounts.

In February 2011, we received a favourable court judgment against Ms Caporale, which required her to pay our outstanding fees, plus interest plus legal costs by 31 July 2011."

1. Ms Caporale contends that leave to appeal should be granted because on an appeal the judgment to which she consented would be set aside by reason of CFR's misrepresentation, which she does not contend was other than innocent. Ms Caporale relies upon the High Court's decision in Harvey v Phillips [1956] HCA 27; 95 CLR 235 for the proposition that a compromise of court proceedings may be set aside if there is a ground which would suffice to render a simple contract void or voidable or to entitle a party to equitable relief against it, for example, where there has been misrepresentation.

1. It is unnecessary to attempt to identify all the hurdles that lie in Ms Caporale's path to success on appeal. It is sufficient to conclude, as I do, that Ms Caporale does not have an arguable case that the representation upon which she relies was erroneous.

1. To attempt to prove that representation was erroneous Ms Caporale relies upon CFR's letter of August 2011 to which I have referred earlier. The terms of that letter are however ambiguous as to whether the conversation with Mr Woodland of the Department of Planning referred to in that letter occurred before or after 1 February 2011, which was the date upon which judgment was entered. CFR relies upon an affidavit of the author of that letter, David Laing, in which Mr Laing says he was referring in the letter to a conversation that he had with Mr Woodland and that that conversation occurred after 1 February 2011.

1. As Ms Caporale has not indicated that she has any basis for contradicting Mr Laing's evidence, I consider that Ms Caporale does not have any significant prospects of success on an appeal and that her application for leave to appeal should be dismissed with costs.

1. WHEALY JA : I agree.

1. MACFARLAN JA : The order of the Court is that Ms Caporale's application for leave to appeal be dismissed with costs.

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Decision last updated: 14 December 2011