Kendell v Carnegie

Case [2006] NSWCA 302


Reported Decision: 68 NSWLR 193

Court of Appeal


CITATION: 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.
LEGISLATION CITED: District Court Rules 1973 (NSW) Part 31 r.12A
Trade Practices Act 1974 (Cth) s.52
Uniform Civil Procedure Rules 2005 (NSW) r.36.15
CASES CITED: Balkin v Peck (1998) 43 NSWLR 706
Cash v Wells (1830) 1 B & Ad 375; 109 ER 826
Coles v Burke (1987) 10 NSWLR 429
Deputy Commissioner of Taxation (NSW) v Chamberlain (1990) 93 ALR 729
Easyfind (NSW) Pty Ltd v Patterson (1987) 11 NSWLR 98
Futuretronics International Pty Ltd v Gadzia [1992] 2 VR 217
Hardoon v Belilios [1901] AC 118
James v ANZ Banking Group Ltd (1986) 64 ALR 347
Jones v Bouffier (1911) 12 CLR 579
Jones v Dumbrell [1981] VR, 199
Macquarie Generation v Peabody Resources Ltd [2001] Aust Contract R 90-121, [2000] NSWCA 361
McRae v Commonwealth Disposals Commission (1951) 84 CLR 377
Roach v B&W Steel Pty Ltd (1991) 23 NSWLR 110
Shirriff v The Nominal Defendant [1999] NSWCA 152
Smith v Budandan Enterprises [2002] 55 NSWLR 367
Solle v Butcher [1950] 1 KB 671
Svanosio v McNamara (1956) 96 CLR 186
Taylor v Johnson (1983) 151 CLR 422
With v O’Flanagan [1936] Ch 575
PARTIES: David Ward Kendell - Appellant
Michael Brian Carnegie - 1st Respondent
Aculeo Pty Ltd - 2nd Respondent
Australian Vineyard Estates Pty Ltd (In Liq) - 3rd Respondent
Tackelly No.6 P/L - 4th Respondent
FILE NUMBER(S): CA 40861/05
COUNSEL: J. Hogan-Doran - Appellant
G.P. McNally - Respondents (1, 2 & 3)
SOLICITORS: David Ward Kendell, Mosman - Appellant

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.