KENDELL v CARNEGIE & ORS [2006] NSWCA 302 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
19/09/2006
JUDGMENT DATE:
3 November 2006
JUDGMENT OF:
Hodgson JA at 1; McColl JA at 2; Bryson JA at 3
DECISION:
1. The appeal is dismissed with costs; 2. The cross-appeal is dismissed: each party is to pay his or its own costs of the cross-appeal.
CATCHWORDS:
CONTRACT - mistake. PRACTICE and PROCEDURE - set aside consent judgment - Appellant, defendant in District Court, applied to District Court to set aside judgment entered against him by consent under agreement with co-defendant (respondent) - claim to set aside based on mistake in course of negotiations with co-defendant - claims to effect that co-defendant was aware of mistake and/or deliberately set out to ensure that appellant did not become aware of mistake or misapprehension - alleged mistake based on accepting as fact a statement made by respondent when giving particulars which was no longer correct at the time of negotations some months later, on a subject which was not mentioned in the negotiations - challenge to District Court finding that there was no deliberate action to conceal the change of circumstances - consideration at length of challenges to findings - consideration of power to set aside judgment given "irregularly, illegally or against good faith" DCR Pt.31 r.12A (cf UCPR 36.15) held there was no error, appeal dismissed with costs.
[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 Kendell v Carnegie
Sign in free to access the full text
Details
AGLC
Kendell v Carnegie [2006] NSWCA 302
Case
[2006] NSWCA 302
Decision Date
CaseChat Overview and Summary
Kendell v Carnegie concerned an appeal to the Court of Appeal of New South Wales from a decision of the District Court. The appellant, who had been the defendant in the District Court proceedings, sought to set aside a consent judgment entered against him. This judgment had been entered pursuant to an agreement with the respondent, who was a co-defendant in the original action. The appellant's claim to set aside the judgment was based on an alleged mistake that occurred during negotiations with the respondent. Specifically, the appellant contended that the respondent was aware of this mistake and had deliberately ensured the appellant remained unaware of it. The alleged mistake arose from the appellant accepting as fact a statement made by the respondent when providing particulars, which statement was no longer accurate several months later when negotiations took place, and concerned a matter not discussed during those negotiations.
The Court of Appeal was required to determine whether the District Court had erred in its findings, particularly concerning the appellant's assertion of deliberate concealment by the respondent of a change in circumstances. The court also considered the District Court's power to set aside a judgment entered "irregularly, illegally or against good faith" under District Court Rules, Part 31, rule 12A.
The Court of Appeal thoroughly examined the challenges to the District Court's findings of fact. It applied established legal principles relating to mistake in contract and the circumstances under which a consent judgment may be set aside. The court found no error in the District Court's determination that there was no deliberate action by the respondent to conceal the change of circumstances. Consequently, the appeal was dismissed.
The appeal was dismissed with costs, and the cross-appeal was also dismissed, with each party to bear their own costs of the cross-appeal.
Orders
Orders of the court
1. The appeal is dismissed with costs; 2. The cross-appeal is dismissed: each party is to pay his or its own costs of the cross-appeal.