Young v King

[2016] NSWCA 282

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Young v King [2016] NSWCA 282

Hearing dates:

21 and 22 June 2016

Decision date:

19 October 2016

Before:

Basten JA at [1];
Gleeson JA at [26];
Emmett AJA at [27]

Decision:

1.   Summons seeking leave in proceedings 2015/229797 be dismissed with costs.
2.   Appeal in proceedings 2015/229805 be dismissed with costs.
3.   Summons seeking leave in proceedings 2016/76373 be dismissed as against the first and second respondents with costs.
4.   Summons seeking leave in proceedings 2016/76351 be dismissed as against the first and second respondents with costs.

Catchwords:

PRACTICE AND PROCEDURE – Application for leave to appeal against unsuccessful application under UCPR, r 36.15(1) to set aside consent orders made in Land and Environment Court – undertaking given to construct a retaining wall and install drainage works in accordance with an agreed “solution” formulated by the parties’ respective experts – applicant became dissatisfied with the agreed “solution” – circumstances in which final consent orders may be set aside – whether the Court was misled as to the purport of the solution – whether a party and her agents were mistaken as to the purport of the solution – whether there had been fraud – alleged failure by primary judge to give adequate reasons for rejecting fraud allegations – whether Briginshaw principles for civil allegations of fraud correctly applied – whether primary judge erred in exercise of discretion in excluding evidence of important witnesses – whether primary judge’s reasons disclosed reasonable apprehension of bias

 

JUDICIAL REVIEW – Appeal against unsuccessful application for prerogative relief to set aside consent orders made in civil enforcement – grounds for judicial review the same as application under UCPR, r 36.15

  COSTS – application for leave to appeal against successful application by the successful parties to substantive litigation against the unsuccessful parties for costs on an indemnity basis

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 149, 149B(2), 149E
Dividing Fences Act 1991 (NSW)
Judiciary Act 1903 (Cth), s 44
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), r 36.15, Sch 1

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34;
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
R v Justices of the Central Criminal Court; Ex parte London City Council [1925] 2 KB 43
R v Murray and Cormie; Ex parte The Commonwealth (1916) 22 CLR 437
Re Jarman; Ex parte Cook (1997) 188 CLR 595
Re JRL; Ex parte CJL (1986) 161 CLR 342
Young v Hones [2013] NSWSC 580
Young v Hones [2014] NSWCA 337
Young v Hones [2015] HCASL 73
Young v King (No 4) [2012] NSWLEC 236
Young v King (No 6) [2015] NSWLEC 111
Young v King (No 9) [2016] NSWLEC 4
Young v King (No 10) [2016] NSWLEC 70
Young v King [2004] NSWLEC 93
Young v King [2013] NSWCA 364

Category:

Principal judgment

Parties:

Matter No. 2015/229797:
Margo Young (Applicant)
Brendan King (First Respondent)
Kristina King (Second Respondent)

 

Matter No. 2015/229805:
Margo Young (Appellant)
Land and Environment Court of New South Wales (First Respondent)
Brendan King (Second Respondent)
Kristina King (Third Respondent)

  Matter Nos. 2016/76373 and 2016/76351:
Margo Young (Applicant)
Brendan King (First Respondent)
Kristina King (Second Respondent)
Jason Hones (Third Respondent)
Hones Lawyers (Fourth Respondent)
Ian Hemmings (Fifth Respondent)
Stephen Perrens (Sixth Respondent)
Hughes Tueman Pty Ltd (Seventh Respondent)
Michael Brearley (Eighth Respondent)
Ross Fraser (Ninth Respondent)
Victor Schubert (Tenth Respondent)

Representation:

Counsel in Matter Nos. 2015/229797, 2016/76373 and 2016/76351:
Mr R Newell (Applicant/Appellant)
Mr M Wright (First and Second Respondents)

 

Counsel in Matter No. 2015/229805:
Mr R Newell (Applicant/Appellant)
Mr M Wright (Second and Third Respondents)

 

Solicitors in Matter No. 2015/229797:
LC Muriniti & Associates (Appellant)
Terence Stern, Solicitor & Attorney (First and Second Respondents)

 

Solicitors in Matter No. 2015/229805:
LC Muriniti & Associates (Appellant)
Crown Solicitor’s Office (First Respondent)
Terence Stern, Solicitor & Attorney (Second and Third Respondents)

  Solicitors in Matter Nos. 2016/76373 and 2016/76351:
LC Muriniti & Associates (Applicant/Appellant)
Terence Stern, Solicitor & Attorney (First and Second Respondents)
Colin Biggers & Paisley (Third and Fourth Respondents)
Moray & Agnew (Fifth Respondent)
Kennedys (Australasia) Pty Ltd (Sixth and Seventh Respondents)
Norton Rose Fulbright Australia (Eighth Respondent)

File Number(s):

2015/229797; 2015/229805; 2016/76373; 2016/76351

 Decision under appeal 

Court or tribunal:

Land and Environment Court of New South Wales

Citation:

[2015] NSWLEC 111; [2016] NSWLEC 4

Date of Decision:

9 July 2015; 19 February 2016

Before:

Sheahan J

File Number(s):

2014/40449; 2003/40417

JUDGMENT

1. BASTEN JA: Twenty years ago the applicant, Margo Young, and the respondents, Brendan and Kristina King, were neighbours at Calca Crescent, Forestville. The applicant’s property was uphill from the respondents’ and, by virtue of the natural lie of the land, discharged rainwater onto the respondents’ property.

2. In 2002-2003, the respondents commenced building works at the rear of their house, lowering the level of a pathway beside their house along the boundary with the applicant’s land. This required the construction of a retaining wall and also a mechanism for dealing with the flow of water.

3. The footings of the retaining wall were completed but the work went no further, because the applicant objected. Her objections were not resolved amicably and she commenced proceedings in the Land and Environment Court. Those proceedings resulted in orders made by the Chief Judge, McClellan CJ on 27 February 2004. Those orders were made by consent, except as to costs, an issue resolved in favour of Ms Young on the basis that, although her proceedings were dismissed, there was an undertaking given by the respondents which, in substance, involved a capitulation by them. She therefore obtained an order for her costs.

4. Both parties had solicitors and counsel acting for them and each had instructed experts on various aspects of the dispute. At a conclave prior to a scheduled hearing of the matter in the Land and Environment Court, the experts were asked to resolve three questions, one of which was, “What is to be done?” The undertaking given by the respondents was derived from the answers given by the experts in the conclave.

5. There were three elements to the agreement. The first was that, if the respondents were to continue their proposed work, including the lowered pathway, and the retaining wall, they required development consent. The second was that the construction of the retaining wall required a mechanism for disposal of the natural flow of water. The third element was that, if the retaining wall were not porous and were built on the boundary, drainage would need to be installed on the applicant’s side of the boundary. The last element self-evidently required the consent of the applicant.

6. The undertaking was in the following terms:

“The Respondents undertake to the Court to:

1)   Carry out the works identified in Exhibit A within 21 days of the granting of development consent by the Council.

2)   Lodge a development application with Warringah Council for the erection of a retaining wall on the boundary between number 35 and number 37 Calca Crescent, that wall to include the drainage works referred to in Clause 1 above. That development application is to be lodged within 21 days of this undertaking.

3)   The Respondents are to make all reasonable endeavours to progress the development application through Council.

4)   The Respondents are to complete the retaining wall works within 21 days of the grant of development by the Council.”

7. The words struck through were in the original text of the undertaking, but not in the form presented to the Court; they were reinserted at the request of the applicant and approved by the Court at a subsequent hearing in March 2004.

8. The respondents prepared a development application which included the insertion of a drainage pipe on the applicant’s land, running along the length of the retaining wall. The applicant objected to the work being done on her land and successfully opposed the application when it was presented to Council. Part of her objection appears to have been that the drainage was originally effected by a rubble drain on the respondents’ land which allowed the water to flow into a rubble pit at the rear of the respondents’ land, and at a point farthest from the applicant’s land (presumably being the lowest point on the respondents’ land). The applicant complained that the proposed drainage pipe did not go anywhere.

9. Over the ensuing years, the applicant became dissatisfied with the lawyers who had acted for her in the Land and Environment Court proceedings and with the experts instructed on her behalf. Further, and relevantly for the present proceedings, she sought, by notice of motion, to have the consent orders made on 27 February 2004 set aside. For that purpose, she sought to rely upon Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 36.15, which states:

36.15   General power to set aside judgment or order

(1)   A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

(2)   A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.

10. It is not in doubt that the powers conferred by that rule apply in the Land and Environment Court. [1] The only issue was as to the basis upon which that rule will allow consent orders to be varied or set aside. The short answer to that question is that, consent orders being founded on an agreement between the parties, will only be set aside in circumstances where the agreement itself is void or voidable, so that the legal support for the orders is removed.

    1. UCPR, Sch 1.

11. In 2012, the applicant’s notice of motion, originally filed in 2008, came before Sheahan J. (It is not necessary to inquire why that process took four years.) Sheahan J dismissed the motion on the basis that the Land and Environment Court had no power to set aside its own orders finally disposing of proceedings and that the applicant should have invoked the supervisory jurisdiction of the Supreme Court. Sheahan J also summarily rejected the allegations of fraud made by the applicant, without considering the evidence she sought to adduce in support of those allegations.

12. The application for leave to appeal was disposed of by consent, the respondents conceding that the Land and Environment Court had power to consider the application to set aside the consent orders and, that being so, should have considered the evidence proffered by the applicant in support of her application.

Proceedings in supervisory jurisdiction

13. That left a question as to the fate of the proceedings in the original jurisdiction of the Supreme Court, brought under s 69 of the Supreme Court Act 1970 (NSW). On one view, those proceedings should have been dismissed as otiose. They were commenced, presumably, as a defensive measure against the possibility that Sheahan J had been correct to hold that only the Supreme Court had power to overturn entered orders made in the Land and Environment Court. (Even in that event, the proceedings were probably misconceived: if the basis for setting aside the orders was founded on fraud, the proper course would have been to bring separate proceedings alleging fraud.) The applicant submitted that the effect of a transfer of the proceedings under s 69 of the Supreme Court Act to the Land and Environment Court was to invest that Court with the jurisdiction otherwise possessed by this Court alone.

14. The transfer power, as between the Supreme Court and the Land and Environment Court is to be found in s 149B of the Civil Procedure Act 2005 (NSW) which reads as follows:

149B   Transfer of proceedings between Supreme Court and Land and Environment Court

(1)   If either the Supreme Court or the Land and Environment Court is satisfied, in relation to proceedings before it, that it is more appropriate for the proceedings to be heard in the other court, it may, on application by a party to the proceedings or of its own motion, order that the proceedings be transferred to the other court.

(2)   If either the Supreme Court or the Land and Environment Court is satisfied, in relation to proceedings before it, that:

(a)   there are related proceedings pending in the other court, and

(b)   it is more appropriate for the proceedings to be heard, together with the related proceedings, in the other court,

it may, on application by a party to the proceedings or of its own motion, order that the proceedings be transferred to the other court and heard together with the related proceedings.

(3)   No appeal lies against a decision of the transferor court to make, or not to make, an order under this section.

15. There are significant issues as to when it is “more appropriate” for the proceedings to be heard in the other court. Two factors to be considered are the nature of the proceedings and the relief sought. Unlike s 44 of the Judiciary Act 1903 (Cth), which provides for the High Court to remit a matter to another court “that has jurisdiction with respect to the subject-matter and the parties”, the Civil Procedure Act, s 149E expressly confers on the transferee court the jurisdiction of the transferor court:

149E   Jurisdiction of transferee court

The transferee court has, and may exercise, all of the jurisdiction of the transferor court in relation to any proceedings to which a transfer order relates, including jurisdiction to determine any question arising in any such proceedings.

16. It does not follow, however, that it is appropriate to transfer to the Land and Environment Court proceedings brought under s 69 of the Supreme Court Act seeking relief in the nature of a prerogative writ, setting aside a decision of a judge of the Land and Environment Court. Thus, in Re Jarman; Ex parte Cook, [2] in considering whether to remit to the Industrial Relations Court an application for mandamus directed to that Court, Brennan CJ stated in uncompromising terms: [3]

“That Court could not command one of its own Judges to exercise the power which it had held it did not have. It is ludicrous[4] to contemplate a superior court having jurisdiction to determine in proceedings for mandamus or prohibition directed to itself whether its own decision as to its jurisdiction is correct.”

2. (1997) 188 CLR 595.

3.    Jarman at 603.

4. R v Justices of the Central Criminal Court; Ex parte London City Council [1925] 2 KB 43 at 58-59, 60-61.

17. Brennan CJ then referred to the observations of Isaacs J in The King v Murray and Cormie; Ex parte The Commonwealth, [5] that “the inherent nature of prohibition or mandamus requires that the officer must be someone not a member of the tribunal to which the application is made, or superior to it”. As was the case with respect to the jurisdiction of the Industrial Relations Court in Jarman, the Land and Environment Court has no appellate jurisdiction with respect to a decision of one of its judicial members.

    5. (1916) 22 CLR 437 at 453.

18. Regardless of the scope and effect of s 149E, it was not “appropriate” to transfer the s 69 proceedings to the Land and Environment Court, whether by consent or not. Similarly, it would not be “appropriate” to transfer to that Court an appeal from a judgment of that Court pending in this Court. There does not appear to be any other case in which a summons invoking relief under s 69 of the Supreme Court Act has been transferred to the very court whose orders are the subject of the relief sought.

19. It is not necessary to determine the effect of the transfer of the proceedings, which was made pursuant to orders entered by consent for the purpose of ensuring that all issues in dispute were resolved in the Land and Environment Court. There was no submission in this Court that there was some ground upon which relief could be granted in the supervisory jurisdiction which was not available under the UCPR, r 36.15. The appropriate course in these circumstances is to dismiss the appeal from the order of the Land and Environment Court which dismissed the summons transferred from this Court, seeking relief in the supervisory jurisdiction of this Court.

Apprehended bias

20. The formulation of ground 10, relating to apprehended bias, led the respondents to believe that the ground was restricted to providing support for an order that, should the matter be remitted to the Land and Environment Court, it should be remitted to a judge other than the former trial judge. However, in the course of oral submissions, counsel for Ms Young put the matter on a broader basis. Whilst conceding there had been no recusal application, counsel explained that the apprehension of “a prejudgment” only arose because in handing down judgment in Young v King (No 9), “he indicated a prejudgment by being dismissive of the applicant’s claim and indicated by the terms of his judgment that he’d already decided the matter and he wasn’t going to consider the evidence, but there was more evidence that might have been considered if he had allowed it in on the question of costs applications against the third parties, and there were very detailed submissions, none of which were considered.” [6] Further, reliance was placed on a decision known as Young v King (No 10) handed down a few weeks before the hearing of the appeal, in terms which were described as “even more dismissive”. [7]

    6.    CA Tcpt, 21/06/16, p 82.

    7.    Ibid.

21. As explained in Michael Wilson & Partners Ltd v Nicholls [8] an apprehension of bias is forward looking and asks “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”[9] That test is objective and therefore distinct from any inquiry about actual bias, which would require “an assessment of the state of mind of the judge in question.”[10] As the reasoning continued, an inquiry based on the content of the judgment delivered may be a mechanism for identifying actual bias, but not for judging a reasonable apprehension of bias.

    8. (2011) 244 CLR 427; [2011] HCA 48.

    9. Michael Wilson at [31].

    10. Michael Wilson at [33].

22. Even assuming that the applicant sought to establish actual bias, the material relied on was self-evidently inadequate for the purpose. Furthermore, such an allegation should not be used to conceal the weakness of a more precise analysis of a specific failing of procedure or error in the judgment. Thus, the submission noted above suggested “prejudgment” in failing to allow evidence to be called. That approach is likely to divert attention from an analysis of the evidence which was tendered, the basis on which it was tendered and the reason for its rejection.

23. Further, the submission revealed an example of that against which Mason CJ warned in Re JRL; Ex parte CJL, [11] namely that “[i]t needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.” There is nothing necessarily indicative of prejudgment in giving reasons which appear to the reader to be “dismissive”. A court is entitled to give reasons which are brief, even dismissive, in rejecting an argument which is untenable or carries no weight.

    11. (1986) 161 CLR 342 at 352.

20. There was no support for the allegation of bias in the written submissions; the arguments identified above in oral submissions rose no higher than the passage already identified. The ground must be rejected.

Other grounds

25. With respect to the remaining grounds of appeal, the background circumstances and the submissions have been comprehensively addressed by Emmett AJA and I agree both with his reasons and his conclusions. I also agree with the orders proposed by Emmett AJA.

26. GLEESON JA: I agree with the orders proposed by Emmett AJA for the reasons that his Honour gives. I also agree with the additional reasons of Basten JA for (a) concluding that the transfer of the s 69 judicial review proceedings from this Court to the Land and Environment Court was inappropriate; and (b) rejecting the applicants’ complaint of reasonable apprehension of bias.

27. EMMETT AJA:

Introduction

28. These four proceedings all arise out of attempts made by Mrs Margo Young to have orders made on 19 February 2004 by the Land and Environment Court (the L&E Court) set aside. The orders were made in proceedings 2003/40417 in the L&E Court (the Original Proceedings), which were brought by Mrs Young against Mr Brendan King and Mrs Kristina King. Mrs Young is the owner of a property known as 35 Calca Crescent, Forestville (the Young property) and the Original Proceedings arose out of drainage problems experienced by Mrs Young in relation to the adjacent property known as 37 Calca Crescent, Forestville (the King property), which is owned by Mr and Mrs King.

29. The King property is lower than the Young property, such that the natural flow of water is from the Young property to the King property. The Young property slopes to the rear from Calca Crescent, such that the natural flow of water is from Calca Crescent to the rear of the King property. The rear boundary of the King property is a common boundary with properties that have a frontage to Starkey Street, Forestville.

30. In 2002, Mr and Mrs King carried out work on the King property. The work involved excavation on the boundary between the King property and the Young property that disturbed the land between the two houses. On 14 April 2003, Mrs Young commenced the Original Proceedings, alleging that Mr and Mrs King had carried out or permitted to be carried out various unlawful works on the King property, including the construction of a footing, construction of a retaining wall and underpinning of existing footings to their dwelling house. Allegations were made concerning the legal status of decisions made by Warringah Shire Council (the Council), which had given consent to certain works on the King property in February 2002. However, the Council was not joined as a party.

31. The Original Proceedings progressed through the L&E Court and were fixed for hearing on 16 February 2004 before McClellan CJ. On that day, after an opening by counsel for Mrs Young and a position statement by Mr Stephen Griffiths, the solicitor for Mr and Mrs King, the parties undertook negotiations that led to the resolution of their dispute, except in relation to the costs of the Original Proceedings (the Settlement Agreement). Because the parties could not agree on costs, it was necessary for McClellan CJ to receive and consider the evidence to the extent that it related to the appropriate order for costs.

32. The Settlement Agreement entailed the giving of an undertaking by Mr and Mrs King to the L&E Court to carry out certain works on the King property, in consideration for which Mrs Young agreed to the dismissal of the Original Proceedings. McClellan CJ was satisfied that the works that Mr and Mrs King had agreed to undertake were made necessary by reason of the construction of the retaining wall, which Mr and Mrs King conceded had been constructed without consent. His Honour accepted that the retaining wall operated to interrupt the flow of subsurface water and, accordingly, unless adequately drained, certain problems identified by one of the experts who gave evidence were likely to occur. His Honour therefore concluded that Mrs Young had succeeded in the Original Proceedings and that Mr and Mrs King should pay Mrs Young’s costs.

33. Accordingly, on 19 February 2004, for reasons given on that day,[12] McClellan CJ noted the undertaking given to the L&E Court on behalf of Mr and Mrs King, ordered that the Original Proceedings be dismissed and ordered Mr and Mrs King to pay Mrs Young’s costs. His Honour reserved liberty generally for any party to apply. In due course, Mr and Mrs King paid Mrs Young’s costs in accordance with that order.

    12. Young v King [2004] NSWLEC 93.

34. On 8 March 2004, on Mr and Mrs King’s motion, but with Mrs Young's consent, the undertaking given on behalf of Mr and Mrs King was varied. The undertaking, as varied, was to:

(1)   carry out within 21 days of granting of development consent by the Council or by the L&E Court the works identified in a document marked as Exhibit A in the Original Proceedings (Exhibit A),

(2)   lodge, within 21 days of the date of the undertaking, a development application with the Council for the erection of a retaining wall on the boundary between the Young property and the King property; such wall to include the drainage works referred to in Exhibit A,

(3)   make all reasonable endeavours to progress the development application through the Council, and

(4)   complete the retaining wall works within 21 days of the granting of development consent by the Council or by the L&E Court.

35. Accordingly, Mr and Mrs King lodged a development application with the Council, seeking approval of the works identified in Exhibit A. There appears to have been a contention that the works contemplated by Exhibit A involved some work on the Young property, and Mrs Young declined to give her consent for work to be done on the Young property. As a result the development application was refused and the work that Exhibit A required has not been carried out.

36. On 23 May 2008, Mrs Young filed a notice of motion in the L&E Court (the 2008 Motion) seeking:

• such orders as the L&E Court deemed fit to compel compliance with the undertakings given by Mr and Mrs King, and

• declarations as to the effect of the orders made by the L&E Court (the Original Orders) so far as concerned Mrs Young’s subsisting rights to seek further relief by reason of Mr and Mrs King’s non-compliance with the undertakings.

The 2008 Motion sought, in the alternative, an order that the order made on 19 February 2004 dismissing the Original Proceedings be vacated and that the Original Proceedings be reinstated. The 2008 Motion was amended and reformulated. In the final formulation, Mrs Young sought an order that the order dismissing the Original Proceedings be vacated and that the Original Proceedings be relisted for directions. She also claimed such declarations as the Court deemed fit and proper as to the effect of the Original Orders so far as concerned her subsisting rights to seek further relief or alternative relief generally.

37. Mrs Young relied on the provisions of Uniform Civil Procedure Rules 2005 (NSW), r 36.15 (UCPR). UCPR, r 36.15 relevantly provides that a judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

38. In the course of case management of the 2008 Motion, a judge of the L&E Court (the primary judge) directed Mrs Young to set out in an “executive summary” the essence of her case in relation to the 2008 Motion. In response, Mrs Young stated her case in terms to the following effect:

1. Mr and Mrs King purchased the King property with the intention of illegally constructing a granny flat under their house.

2. They deliberately undertook the work without Council approval for the purpose of constructing a granny flat and removing subdivision drainage.

3. Their plan was to shift the drainage burden resulting from the illegal works and removal of a sub-division drainage system to the Young property which would require Mrs Young to construct a drain to Starkey Street and to obtain an easement for that purpose at tremendous expense.

4. Mr and Mrs King colluded with the Council from an early stage (beginning in 2001) resulting in Mrs Young’s complaints being ignored and the Young property being left unsupported.

5. Mr and Mrs King destroyed evidence of an antecedent sub-division drainage system and fabricated evidence of build-up of fill on the Young property. The intention to fabricate that evidence is part of their logic in undertaking the works initially without an approval.

6. Mr and Mrs King could not drain the King property following the illegal works so they colluded with the Council in a plan to assert that the sub-division drainage system worked such that the Young property was burdened with drainage for the benefit of the King property.

7. Mr and Mrs King sought to get Mrs Young to give consent in respect of the Young property for the purposes of a development application approval to build a fence, which application would have given the Council the power to investigate and find that Mrs Young had to construct a drain on the Young property.

8. The Council granted Consent 1382 (the Consent), which was improper on numerous grounds and was invalid.

9. The Council framed the Consent with a view to later giving a building certificate when circumstances could be contrived so that suitable drainage could be placed on the King property.

10. Mrs Young consulted solicitors with a view to obtaining support for the Young property.

11. The solicitors failed to join the Council and generally conducted the proceedings in the interests of the Council, which by now was committed to orchestrating a drainage system on the Young property.

12. In particular, the solicitors contrived to manage the issues in the case so that the removal of sub-division drainage by Mr and Mrs King and its impact was air-brushed out of consideration during the Original Proceedings.

13. Mr and Mrs King knew what the solicitors were doing and the purport of their agenda and, accordingly knew that Mrs Young was not obtaining proper advice, was obtaining and largely dependent on improvident advice and was accordingly in a position of special disadvantage.

14. The case came to Court in February 2004 without Mr and Mrs King proposing any plan to deal with the consequences of their excavation and without Mrs Young’s solicitors having enquired as to the existence of an outlet on the King property.

15. The solicitors settled the matter without instructions by and without consultation with Mrs Young on the basis of an undertaking by Mr and Mrs King to lodge a development application for a retaining wall (for which they already had consent).

16. The settlement was justified by reference to the work of a conclave of experts which produced Exhibit A.

17. Exhibit A proposed a very limited set of works and in particular the lowering of a 65 mm drain to the footing zone of a partially built retaining wall approximately on the boundary.

18. The Exhibit A works could not ever have been implemented and there was no bona fide intention of implementing them.

19. The settlement required the lodgement of a development application but suspiciously permitted Mr King to deny that he was responsible for the excavation and therefore for the drainage.

20. Mrs Young’s lawyers, the Council and Mr and Mrs King all understood that the footing that was subject of the undertaking would be demolished immediately following the trial and expected the Council to find an alternative system on the Young property based on the manner in which the matter had settled and the need in the circumstances to drain the land.

21. For the purposes of the development application, plans were put forward by Mr and Mrs King which contained contrived ambiguities to make Mrs Young think that the undertaking was being complied with when it was being undermined by a proposal for demolition of the footing on which the undertaking was based.

22. The Council and Mrs Young’s lawyer colluded to conceal from Mrs Young the purport of the drawings.

23. The removal of the footing, on which the undertaking was predicated, was a concomitant of the placement of a drain on the King property so that the removal was predicated upon the assumed insinuation of a drain on the Young property.

24. Considerable efforts were made to obtain Mrs Young’s consent to an amended development application involving the Young property in order to empower the Council to investigate the Young property but in the event that was not obtained.

39. On 19 October 2012, for reasons published on that day,[13] the primary judge ordered that the 2008 Motion, as finally formulated, be dismissed and reserved the question of costs (the 2012 Orders). His Honour considered that Mrs Young should have sought relief in the nature of prerogative writ relief in the Supreme Court, rather than by way of application to the L&E Court. The decision was based solely upon the oral opening on behalf of Mrs Young.

    13. See Young v King (No 4) [2012] NSWLEC 236.

40. Mrs Young applied to this Court for leave to appeal from the 2012 Orders and, on 22 August 2013, the Court granted Mrs Young leave to appeal. In their written submissions, Mr and Mrs King conceded that the primary judge had erred in concluding that the L&E Court did not have implied jurisdiction to set aside a final order made by it. They also conceded that his Honour erred in summarily dismissing the 2008 Motion in the way that he did. Accordingly, on 31 October 2013, this Court allowed the appeal by consent and ordered that the 2008 Motion be remitted to the L&E Court for redetermination. [14]

    14. See Young v King [2013] NSWCA 364.

41. In the meantime, Mrs Young had also commenced fresh proceedings in the Common Law Division of the Supreme Court (the Judicial Review Proceedings) seeking relief under s 69 of the Supreme Court Act 1970 (NSW) in relation to the Original Orders. The Judicial Review Proceedings were referred to the Court of Appeal.

42. Section 149B(2) of the Civil Procedure Act 2005 relevantly provides that, if the Supreme Court is satisfied, in relation to proceedings before it, that if there are related proceedings pending in the L&E Court and it is more appropriate for the proceedings to be heard together with the related proceedings in the L&E Court, the Supreme Court may order that the proceedings be transferred to the L&E Court and heard together with the related proceedings. Under s 149E, the L&E Court has, and may exercise, all of the jurisdiction of the Supreme Court in relation to any proceedings to which a transfer order under s 149B relates, including jurisdiction to determine any question arising in any such proceedings.

43. On 5 November 2013, the Court of Appeal ordered that the Judicial Review Proceedings be transferred to the L&E Court pursuant to s 149B(2) and that the Judicial Review Proceedings and the 2008 Motion be heard and determined by the primary judge concurrently. This Court also ordered that the costs of the Judicial Review Proceedings up to and including the date of transfer be reserved, to be determined by the L&E Court.

Subsequent Proceedings before the Primary Judge

44. On transfer of the Judicial Review Proceedings to the L&E Court, they became proceedings 2014/40449 in the L&E Court and Mrs Young filed a summons in those proceedings, by which she sought a declaration that the Settlement Agreement was void or, in the alternative, an order avoiding the Settlement Agreement, together with an order that the Original Orders be set aside and that the Original Proceedings be restored to the list.

45. On 23 June 2014, Mrs Young filed a statement of claim in the Judicial Review Proceedings. On the same day she filed a document titled “Further Amended Grounds of Application”. While that document was filed in the Judicial Review Proceedings, it was clearly intended to be filed in the Original Proceedings in aid of the 2008 Motion. The allegations in the two pleadings were substantially identical, but the former contains additional particulars detailing allegations of uncertainty, mistake and lack of jurisdiction.

46. In both the statement of claim and the further amended grounds of application, Mrs Young made allegations of fraud in relation to the Settlement Agreement. The allegations were in identical terms. The allegations are generally consistent with those made in the executive summary referred to above. One of the complaints now made by Mrs Young is that the primary judge failed to deal with the allegations of fraud. The allegations of fraud are verbose and voluminous. They are summarised in Schedule 1 to these reasons.

47. In summary, Mrs Young alleged that Mr and Mrs King represented to the L&E Court and to her that they had adequate drainage arrangements on the King property generally to support drainage that was required to drain to or discharge via the rear yard of the King property including, for the purpose of drainage to the rear, a legal viable discharge point in the rear yard of the King property (the Exhibit A Representation). She also alleged that Mr and Mrs King gave the undertaking to the L&E Court and made the Exhibit A Representation knowing that they did not have adequate drainage on the King property and did not have a legal or viable discharge point for drainage to the rear of the King property. Therefore, she says, they knew that the Exhibit A Representation was false.

48. The basis upon which Mrs Young alleged that the Exhibit A Representation was known by Mr and Mrs King to be false is particularised voluminously in 59 paragraphs covering more than 9 pages. The particulars are summarised in Schedule 2 to these reasons.

49. In support of the orders sought in the 2008 Motion, Mrs Young provided to the primary judge two sets of written submissions dated 8 September 2014. One set made submissions in respect of:

• “Lack of drainage from the outset and machinations”, and

• “The Kings’ October Scheme”.

The other set made submissions in respect of:

• “the Exhibit A representation”,

• “the Intended Building Certificate Representation”, and

• “the Kerb Representation and Disconnection Representation”.

50. Those submissions are summarised in Schedule 3 to these reasons. The reason for the inclusion of the material in the schedules is to demonstrate the voluminous, complex and repetitive nature of Mrs Young’s claims and case theory. This helps to indicate the extent of the difficulty for the primary judge in endeavouring to get to the heart of the matter as well as the need for detailed and precise evidence to establish the specific claims of fraud being asserted.

51. In the statement of claim in the Judicial Review Proceedings, Mrs Young alleged, in the alternative, that the Settlement Agreement was made or entered into by common mistake. Mrs Young alleged that she and Mr and Mrs King wrongly understood that the Settlement Agreement, on its true construction, stipulated for a discharge point to the rear of the King property for the drainage of the retaining wall the subject of the works contemplated by Exhibit A. However, contrary to the understanding of both of the parties, the Settlement Agreement, on its true construction, did not contain a term determining such a discharge point.

52. In the further alternative, Mrs Young alleged, in the statement of claim, that Mr and Mrs King knew that she was mistaken and used that mistake to take advantage of her. She alleged that Mr and Mrs King knew that there was no discharge point stipulated in the Settlement Agreement, that they obtained orders for dismissal of the Original Proceedings in the knowledge, or in the circumstances that a reasonable person in their position would have known and that Mrs Young could not have known or contemplated that no discharge point was nominated. Mrs Young alleged that Mr and Mrs King took no steps to ascertain that she properly understood the purpose of the Settlement Agreement in circumstances where it was obvious that no reasonable person in the position of Mrs Young would have entered into the Settlement Agreement if no discharge point had been stipulated. Mrs Young alleged that Mr and Mrs King did not bring the fact that no discharge point was stipulated to her attention. Mrs Young submitted that, in those circumstances, the Settlement Agreement was voidable for unilateral mistake.

50. Mrs Young asserted that it was implausible for Mr and Mrs King not to know that the Settlement Agreement did not commit to a discharge point as its subject matter. She also asserted that Mr and Mrs King were conscious of the fact that they did not have a legal and effective discharge point and were conscious of “their machinations” to conceal that fact. She asserted that the conduct of Mr and Mrs King after the settlement of the Original Proceedings showed that they did not believe that a legal and effective discharge point had been fixed by the Settlement Agreement reflected in Exhibit A and that it must be concluded that Mr and Mrs King well knew of and expected Mrs Young’s mistake and took advantage of it in concluding the Settlement Agreement and procuring the dismissal of the Original Proceedings.

51. Mrs Young contended that, in those circumstances, the conduct of Mr and Mrs King was against good faith and the dismissal of the Original Proceedings was obtained against good faith. In essence, Mrs Young contended that representations and conduct directed to the L&E Court and to herself by Mr and Mrs King induced the understanding, in the L&E Court and in her, that Mr and Mrs King had effective drainage, and in particular a legal and effective discharge point, on the King property to support the proposal outlined in Exhibit A. She asserted that they engaged in that conduct knowing that that understanding was false.

52. In so far as Mrs Young contended for both common mistake and unilateral mistake, the allegations were inconsistent with each other. On the one hand, it was alleged that both Mrs Young and Mr and Mrs King entered into the Settlement Agreement on the basis of a mutual misunderstanding. On the other hand, it was also asserted that Mrs Young entered into the Settlement Agreement on the basis of a misunderstanding and that Mr and Mrs King were aware of that unilateral misunderstanding and took advantage of it. In any event, the contention of mutual mistake was abandoned in this Court.

53. When the hearing before the primary judge commenced on 9 September 2014, counsel for Mrs Young sought leave to issue a subpoena to each of Dr Perrens and Mr Warwick Davies, engineers who had advised Mrs Young and had given evidence in the Original Proceedings. Counsel for Mrs Young also raised the question of evidence being given by Mr Hones and Mr Hemmings, Mrs Young’s former legal advisers. His Honour declined to give leave to issue subpoenas to Mr Hones and Mr Hemmings. His Honour did not come to a conclusion on whether to grant leave for subpoenas to Dr Perrens and Mr Warwick Davies, as on 10 September 2014, Mrs Young’s advisors told the primary judge that they “do not consider it prima facie appropriate to call them”. That was in addition to a statement made to his Honour on 28 August 2014, when Mrs Young’s advisors told his Honour that Mr Warwick Davies would not be called.

54. Despite that, Mrs Young’s advisor procured subpoenas to be issued to Dr Perrens and Mr Warwick Davies to give evidence. The subpoenas were filed on 16 October 2014. No prior notice was given to those advising Mr and Mrs King and counsel for Mr and Mrs King indicated that he would not be in a position to deal with those witnesses if they were called to give evidence. On 28 October 2014, counsel for Mrs Young accepted that the opportunity to call Dr Perrens and Mr Warwick Davies had been forgone but that, on reflection, it was thought useful to have their evidence in the light of what had occurred during the hearing in September. His Honour pointed out to counsel for Mrs Young that he had told the Court clearly on 28 August 2014 that Mr Warwick Davies was not going to be called. The primary judge therefore set aside the subpoenas issued to Warwick Davies and Dr Perrens.

Conclusions of the Primary Judge

58. After pre-trial argument and a hearing over several days in August, September and October 2014, the primary judge made orders on 9 July 2015 (the 2015 Orders), for reasons published on that day. [15] His Honour ordered that the 2008 Motion be dismissed and that the Judicial Review Proceedings be dismissed. His Honour also ordered that Mrs Young pay Mr and Mrs King’s costs of the Original Proceedings since 8 March 2004 on a party/party basis.

    15. Young v King (No 6) [2015] NSWLEC 111.

59. In his reasons of 9 July 2015, the primary judge began by reciting the history of the dispute up to the hearing in September and October 2014. His Honour then dealt with Mrs Young’s conduct of the litigation, saying that the Young “camp” had frequently shifted ground, amended documents, ignored directions and correspondence and caused delay. His Honour observed that Mrs Young and her representatives had received many indulgences because of “a nagging concern” on the part of the L&E Court that she may have been the victim of at least an injustice, if not a fraud or conspiracy of some sort. His Honour referred to the fact that, in his reasons of 19 October 2012, he blamed Mrs Young’s legal team for many of the steps they took that led to some 30 listings before his Honour prior to the hearing in September 2012.

60. The primary judge said that Mrs Young constantly identified new parties to, and new aspects of, the conspiracy that she alleged operated against her interests before, during and after the Original Proceedings. His Honour repeated that, in the proceedings before him, Mrs Young and her legal advisors had flagrantly disobeyed directions, failed to meet timetables and failed to be clear and fair in indicating the witnesses to be called or relied upon. His Honour referred to “more nuances” having been “discovered” between a pre-trial hearing on 28 August 2014 and the commencement of the actual hearing on 9 September 2014 and then again while the most recent substantive hearing in the Court stood adjourned part-heard from 12 September 2014 to 28 October 2014. His Honour said that the L&E Court had remained concerned throughout the matter to provide Mrs Young with every opportunity to make good her claims of injustice.

61. The primary judge then referred to proceedings brought by Mrs Young in the Supreme Court against her principal advisors in the Original Proceedings. His Honour observed that Mrs Young prosecuted her proceedings against her former legal advisors as far as the High Court and that the proceedings were ultimately dismissed with costs. The essence of the basis for the dismissal and failure of subsequent appeals was that the defendants could rely on either advocate’s or witness immunity as a complete answer to all of the claims by Mrs Young. [16]

    16. See Young v Hones [2013] NSWSC 580; Young v Hones [2014] NSWCA 337; Young v Hones [2015] HCASL 73.

62. The primary judge then embarked on a consideration of the issues raised by the 2008 Motion and the Judicial Review Proceedings. His Honour said that Mrs Young was seeking to set aside entirely all that had happened in the Original Proceedings, such that the decision of McClellan CJ would be treated as a nullity and everyone would go back to where they started, leaving it open for vastly amended pleadings and more defendants.

63. The primary judge observed that submissions advanced on behalf of Mrs Young sought to venture into many matters of serious factual controversy and also raised the prospect of an issue estoppel. A Jones v Dunkel submission, concerning the failure by Mr and Mrs King to call Mr Jason Hones, Mrs Young’s solicitor in the Original Proceedings, and Mr Ian Hemmings, her counsel in the Original Proceedings, as witnesses, was notified late and then withdrawn.

64. The primary judge referred to a suggestion by counsel for Mr and Mrs King that Mrs Young’s case had been narrowed to being based on jurisdictional error, Exhibit A being void for uncertainty, common mistake and/or unilateral mistake as to the stipulation of a discharge point, and fraudulent misrepresentation regarding the adequacy of the drainage and the intention of Mr and Mrs King to obtain a building certificate for existing work. His Honour considered that any mistake on Mrs Young’s part as to what the L&E Court accepted by way of an undertaking from Mr and Mrs King, and the orders that followed from it, flowed from the failings of her own lawyers.

65. The primary judge referred to what his Honour characterised as “a tone of fraud and grand conspiracy” in the dispute. His Honour noted that counsel for Mr and Mrs King submitted that Mrs Young’s case was that Exhibit A was not a contract. His Honour observed that McClellan CJ was satisfied that, on the evidence that he had received, the work identified in Exhibit A should form the basis of Mr and Mrs King’s undertaking and that he (being McClellan CJ) should accept the undertaking and make the orders dismissing the Original Proceedings.

66. The primary judge said that he had made it plain, on several occasions during the four days of hearing on 9 to 12 September 2014, that Mrs Young was to have every opportunity to tell her story. Objections to her written material were noted, without being fully argued orally. His Honour said that most of the four days of the hearing was occupied by cross-examination of Mrs Young by counsel for Mr and Mrs King.

67. The primary judge observed that, despite her lawyers’ failure to comply adequately, if at all, with pre-trial directions, which were important given that there were now two separate cases before the L&E Court, Mrs Young had put many affidavits and voluminous annexures before the L&E Court. In particular, in support of a notice of motion pressing for notices to produce to be complied with (that the primary judge had earlier determined not to enforce), Mrs Young put before the L&E Court an affidavit that she had sworn in proceedings in the District Court in June 2011. In that affidavit, she expressed her belief that Mr and Mrs King had always planned, with the collusion of the Council, to place a drain on the Young property. She deposed that she subsequently became aware that Exhibit A was not a drainage solution and was not intended to be a drainage solution but merely a collection of notes recording various aspects of discussions held by the experts in the 2004 conclave.

68. The primary judge referred to Mrs Young’s allegation that Mr Hones and her expert witness, Dr Stephen Perrens, continued to encourage the idea that Exhibit A was the solution. His Honour referred to Mrs Young’s allegation that, as a result of extensive investigation, she had arrived at the conclusion that the course of conduct to which she had been subjected was by reason of an intention by Mr and Mrs King and the Council, by collusion, to intimidate or otherwise cause her to place a drain on the Young property for the purpose of draining the King property, following the construction of an illegal granny flat below the water table.

69. The primary judge observed that, when the hearing was resumed on 28 October 2014, counsel for Mrs Young sought, contrary to clear arrangements to which he had committed, to call Mr Warwick Davies and Dr Perrens. His Honour said that he had declined to allow them to be called, set aside subpoenas directed to them and ordered Mrs Young to pay their “costs thrown away”. His Honour did, however, grant leave for Mrs Young to be recalled at that stage for further examination and cross-examination.

70. The primary judge said that, on 29 October 2014, he received extensive oral evidence from Mrs Young’s consulting engineers, Mr Jack Davies and Mr Michael Brearley. Mr Jack Davies had acted for her since late 2001, when she retained him to deal with the Council on her behalf. He referred her to Mr Hones, who later recommended that she also engage Dr Perrens. Mr Jack Davies also oversaw for her what was being offered by way of resolution.

71. The primary judge then dealt with the submissions on behalf of the parties. His Honour quoted, at some length, submissions made by counsel for Mr and Mrs King concerning the allegations made by Mrs Young.

72. The primary judge then summarised the specific grounds upon which Mrs Young relied to have the Original Orders set aside. His Honour referred to the following grounds:

• The undertaking given to McClellan CJ was uncertain as to the stipulation of a discharge point;

• The parties suffered from a common mistake as to the stipulation of a discharge point;

• Mrs Young was mistaken as to the stipulation of a discharge point;

• Mr and Mrs King made fraudulent representations to McClellan CJ in respect of the undertaking; and

• The L&E Court had no power to make orders reflecting the undertakings.

73. The primary judge first noted that no questions of jurisdiction arose in the matter, as McClellan J had clearly acted within power in making the Original Orders, being of a type made daily in the L&E Court. His Honour observed that, although Mrs Young’s case had narrowed significantly since the decision of October 2012, there remained at the heart of the matter “the allegation of a grand conspiracy or a major collusion” involving the Council, Mr and Mrs King and the parties’ legal teams and respective experts, the purpose of which, for reasons never made clear, was to shift the drainage burden from the King property to the Young property.

74. The primary judge observed that Mr Hones and Mr Hemmings committed Mrs Young to the Settlement Agreement, based on Exhibit A and the undertaking by Mr and Mrs King. His Honour characterised the undertaking by Mr and Mrs King, based on Exhibit A, as envisaging a stock standard “drain and retain” solution to the problem. His Honour said that such a solution was what Mrs Young had indeed sought in the Original Proceedings.

75. The primary judge observed that, on the first day of the hearing before McClellan CJ, counsel for Mrs Young had said that she wanted the retaining wall finished because, at the moment, it was not supporting the Young property, and that she wanted adequate drainage works installed. His Honour observed that, under Exhibit A, the proposed drainage for the retaining wall would be isolated from the stormwater drainage system on the Young property, which drained to Calca Crescent, and, instead, would drain to the rear of the King property. His Honour said that, to give effect to that change in drainage, an existing 65 mm pipe would need to be disconnected from the front of the King property and lowered to the existing wall footing zone, to the lowest extent possible, in light of the grade, to a discharge point at a reduced level.

76. The primary judge said that Mrs Young was seeking to reopen the Original Proceedings because she had, since 2004, come to the opinion that Exhibit A was not, in fact, a solution for her problem. His Honour said that, unfortunately for her, dissatisfaction with the final outcome of Original Proceedings, which was settled on her behalf by her legal representatives, and on their advice, was not a reason to reopen the Original Proceedings. His Honour characterised that as “the insurmountable obstacle” in her case.

77. The primary judge referred to assertions made on behalf of Mrs Young that she held fundamental misapprehensions as to the works proposed by Exhibit A, in that she was unaware that:

• the proposed wall would be on the boundary between the King property and the Young property and therefore would require works and drainage on the Young property,

• there was no legal and effective drainage outlet stipulated in Exhibit A at the rear of the King property,

• when the undertaking was given, the 65 mm drain was already draining to the rear of the King property, and

• the Settlement Agreement presupposed a drainage burden on the Young property.

His Honour said that it was on the basis of those misapprehensions that Mrs Young asserted that Exhibit A was uncertain, that she and Mr and Mrs King were mistaken, that she alone was mistaken and that fraudulent misrepresentations were made to the L&E Court that Exhibit A was a solution to the drainage problem and that therefore the undertaking and the Original Orders should be set aside.

78. In dealing with the allegation of uncertainty, the primary judge said that, based on the original pleadings, the transcript of the proceedings before McClellan CJ, the reasons of McClellan CJ and the Original Orders, the undertaking, as expressed in Exhibit A, when construed objectively, was “sufficiently certain”. It was, his Honour said, “a simple ‘drain and retain’ solution to the problem”, involving the isolation of drainage for a completed retaining wall and a change of the drainage of that wall from the front of the King property to the rear of the King property at a specified level. His Honour concluded that, despite the absence of any stipulation of a particular discharge point at the rear of the King property, the Settlement Agreement was sufficiently certain and Mrs Young failed on that ground.

79. In dealing with the allegation of mistake, the primary judge referred to Mrs Young’s evidence that she was mistaken as to the need for works to be done on the Young property to give effect to Exhibit A. His Honour held that the claims of mistake disregarded the principle of agency, having regard to the well-established principle that litigants are bound by actions taken in their name by their legal representatives. His Honour observed that the Original Orders were agreed upon by Mrs Young’s agents, Messrs Hones, Hemmings and Perrens, and that the Original Orders reflected the agreement made by them. His Honour held that the actions of the three, in formulating, accepting and entering into the Settlement Agreement, bound Mrs Young as if she had entered into the Settlement Agreement herself.

80. The primary judge observed that Mrs Young had authorised her legal representatives to settle the Original Proceedings on her behalf, on the basis that Mr and Mrs King would implement the Exhibit A “solution”. His Honour observed that it may be that the “solution” was not accurately explained to Mrs Young. However, she had access to a copy of the document during the hearing before McClellan CJ and had ample opportunity to ask her legal representatives to explain it to her if she was unclear as to any aspect of it. His Honour concluded that Mrs Young’s hindsight, in realising that she may have made a mistake in accepting Exhibit A as the solution, was not a “mistake” in any legal sense that would render the Settlement Agreement void.

81. The primary judge said that Mrs Young needed to establish that Mr Hemmings or Mr Hones was mistaken as to the actual terms of Exhibit A but no evidence was adduced to prove such a mistake. Rather, as appeared from the transcript, the legal representatives were clear on what Exhibit A involved. His Honour therefore concluded that Mrs Young had failed to prove that the Settlement Agreement was void on the basis of either common or unilateral mistake.

82. Finally, the primary judge dealt with the allegations of fraud. His Honour observed that Mrs Young had asserted that a number of misrepresentations were made to the L&E Court as to the purport of Exhibit A that amounted to fraud, and therefore, the orders should be set aside as they were “made against good faith”, pursuant to UCPR, r 36.15. His Honour recorded that the specific representations alleged were as follows:

• Exhibit A purportedly provided a drainage solution for the Young property that included a stipulation for a specific discharge point on the King property.

• The 65 mm drain was draining to the front of the King property at the time of the hearing before McClellan CJ.

His Honour referred to the explanation of those representations by counsel for Mrs Young.

83. The primary judge then observed that in civil matters involving serious allegations of fraud, findings of fraudulent behaviour must have a strong evidentiary basis. His Honour referred to the principle that the civil standard of proof “on the balance of probabilities”, was a test of reasonable satisfaction: whether satisfaction is reasonable is not found as a result of a mere mechanical comparison of probabilities. His Honour referred to the principle that the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from the particular finding, are considerations that must affect the answer to the question of whether relevant facts have been proved. In such matters, “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony or indirect inferences. [17]

    17. See Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; at 361–362 (Dixon J).

83. The primary judge observed that, whilst not altering the civil standard of proof, allegations of fraud must be supported by strong and probative evidence and such findings should not be made lightly. His Honour said that, although a plethora of material was tendered, he was not taken to any evidence of any real, probative value that would warrant a finding of fraudulent behaviour by anyone involved in the proceedings. His Honour characterised Mrs Young’s case as being “full of insinuations”. His Honour accepted the proposition advanced by counsel for Mr and Mrs King that the evidence in the case, and the way that it was being relied upon, was “so vast and complex that the allegations became almost impossible to unravel”. His Honour concluded that, in the circumstances, it would be entirely inappropriate to make a finding of fraud against anyone involved the matter. His Honour was not satisfied, on the balance of probabilities, that Mr King or Mrs King, or their representatives had made any fraudulent representations to the L&E Court.

84. Accordingly, the primary judge concluded, no basis had been found upon which the Original Orders should be set aside, either under UCPR, r 36.15 or under s 69 of the Supreme Court Act. His Honour therefore ordered that the summons filed in the Judicial Review Proceedings be dismissed and that the 2008 Motion, filed in the Original Proceedings, be dismissed.

Substantive Proceedings in the Court of Appeal

86. On 6 August 2015, Mrs Young filed a summons in this Court seeking leave to appeal from the 2015 Orders, in so far as the primary judge ordered that the 2008 Motion be dismissed (Proceedings 2015/229797). Mrs Young also filed a notice of appeal from the 2015 Orders, in so far as his Honour ordered that the Judicial Review Proceedings be dismissed (Proceedings 2015/229805).

87. The ground stated in the draft notice of appeal originally filed with the summons in Proceedings 2015/229797 and in the notice of appeal originally filed in Proceedings 2015/229805 was that the primary judge erred in law in that his Honour failed or omitted to give adequate reasons for rejecting Mrs Young’s fraud allegations. By subsequent amended notices of appeal dated 18 April 2016, additional grounds of appeal were added and relied on.

88. The grounds of appeal raised in the two substantive proceedings are now identical except that, in the appeal from the dismissal of the 2008 Motion, an additional ground 4 is relied on. The grounds in the appeal from the dismissal of the 2008 Motion appeal may be restated as follows:

1. The primary judge failed or omitted to give adequate reasons for rejecting Mrs Young’s fraud allegations.

2. That failure occurred after a trial of 8 days and after reserving judgment for 8 months.

3. It should be inferred from the inadequacy of the reasons and the lengthy delay in giving judgment that the primary judge overlooked important pleadings and essential evidence and argument, resulting in a miscarriage of justice.

4. The primary judge failed or omitted to consider submissions by Mrs Young that the elements of unilateral mistake at general law, and in particular the requirement that Mrs Young’s legal representatives were affected by the same actual mistake, were not a condition precedent to the application of UCPR, r 36.15 in circumstances otherwise analogous to “unilateral mistake”.

5. The Original Orders were obtained by reason of fraudulent representations on the part of one or all of Mr Griffiths, Mr Robert Springett (an expert retained for Mr and Mrs King), and Mr and Mrs King, which was prima facie established by incontrovertible written evidence, in that, in a letter of 5 January 2004, Mr Springett confirmed that the 65 mm drain referred to in Exhibit A was draining to the rear of the King property, whereas the L&E Court was told that the Exhibit A solution involved disconnecting the 65 mm drain from draining to Calca Crescent and taking it to an outlet in the rear. The contents of the letter of 5 January 2004 were known to Mr King.

6. A finding or determination by the primary judge that fraud cannot be established against “anyone involved in the matter”, in the absence of reasons to displace the prima facie inference of fraud, was unsafe and the occasion of a miscarriage of justice.

7. The primary judge erred in applying Briginshaw principles without demonstrating reasoned regard to the totality of Mrs Young’s evidence.

8. The primary judge erred in excluding evidence of Mr Hones and Mr Hemmings, who acted for Mrs Young, and the exclusion of that evidence was, for a variety of reasons, productive of a miscarriage of justice.

9. The primary judge erred in excluding evidence of Dr Perrens and Mr Warwick Davies, engineers retained on behalf of Mrs Young, and the exclusion of that evidence was, for a variety of reasons, productive of a miscarriage of justice.

10. The cumulative effect of the primary judge’s reasons in the multiple judgments given in connection with the ongoing dispute between Mrs Young and Mrs and Mrs King discloses a reasonable apprehension of bias against Mrs Young’s claim.

89. By notice of motion dated 19 April 2016, Mrs Young also seeks leave to adduce additional evidence in support of her appeal. The additional evidence is directed towards demonstrating the significance of evidence that might have been given by the witnesses referred to in grounds (8) and (9) on whom she sought to serve subpoenas shortly prior to the hearing before the primary judge in October 2014. It was conceded on behalf of Mrs Young that, if there was no error on the part of the primary judge in rejecting the application for subpoenas to the lawyers and engineers, the additional evidence would have no relevance.

Disposition of the Substantive Proceedings

90. The entire thrust of the complaints made by Mrs Young, through her counsel, is directed at the conduct of her legal advisors and witnesses in 2004. There is not a skerrick of evidence of the conspiracy hinted at by Mrs Young involving:

• Mr and Mrs King and their advisors;

• Mrs Young’s former advisors; and

• the Council.

Despite the very extensive and unnecessarily complex allegations of fraud, which are set out briefly above and more fully in the schedule to these reasons, there is nothing to link those advising Mrs Young with either Mr and Mrs King and their advisors or the Council. The allegation of a conspiracy involving Mrs Young’s advisors is completely without foundation in the evidence and should never have been made. The primary judge said as much in his reasons. His Honour was not directed to any evidence of conspiracy involving Mrs Young’s advisors. There was simply assertion after assertion without reference to any evidentiary support.

91. In those circumstances, Mrs Young was bound by the actions of her advisors. There has never been any suggestion that Mr Hones, Mr Hemmings or Dr Perrens acted without authority. Mr Hones was instructed by Mrs Young to act for her in the Original Proceedings. Mr Hones delivered a brief on hearing to Mr Hemmings. There is not a skerrick of evidence to suggest that either of them exceeded their authority in negotiating the Settlement Agreement and asking McClellan CJ to make the Original Orders.

92. Mrs Young has had ample opportunity to adduce such evidence as she wished as to any mistake on the part of her legal advisors. There was no evidence of any mistake. There is no evidence that Mr Hones or Mr Hemmings was under any misapprehension as to the existence of a valid discharge point, such as is alleged on the part of Mrs Young.

93. No basis whatsoever has been advanced in support of a contention that the primary judge acted in accordance with a wrong principle or ignored relevant material or decided on the basis of a misapprehension of the facts, in exercising his discretion to refuse Mrs Young the opportunity of calling Mr Hones, Mr Hemmings, Dr Perrens and Mr Warwick Davies. His Honour explained in some detail the indulgences that had been given over and over again to Mrs Young and her advisors. There is no basis upon which this Court could conclude that the primary judge erred in the exercise of his discretion in declining to issue subpoenas and setting aside other subpoenas directed to Mr Hones, Mr Hemming, Dr Perrens and Mr Warwick Davies, especially given the aforementioned procedural history immediately preceding the hearing before his Honour. It follows that there is no basis for admitting fresh evidence on the hearing before this Court.

94. Mrs Young is bound by the conduct of her advisors at the relevant time, acting within the scope of their authority. Whether or not Mrs Young has a cause for complaint against her advisors is not a matter that can be entertained in the proceedings presently before this Court. As I have indicated, she has, hitherto, been unsuccessful in pursing such a complaint. That is of no relevance to the present proceedings.

95. The primary judge made perfectly clear his reasons for rejecting Mrs Young’s allegations of fraud, notably the lack of evidence of any real, probative value that would warrant a finding of fraudulent behaviour, especially given the Briginshaw standard for proving serious allegations of fraud. There was no error on his Honour’s part in that regard. Mrs Young’s complaint concerning unilateral mistake is misconceived in circumstances where her legal advisors acted within the scope of their authority and there was no evidence of any mistake or misunderstanding on their part.

96. Regardless of whether or not there were representations made by Mr Griffiths, Mr Springett or Mr and Mrs King, and whether or not the representations were false or misleading, there is no basis whatsoever in the evidence for concluding that Mrs Young’s advisors were induced to advise her to enter into the Settlement Agreement by reason of any misapprehension or misunderstanding of the facts on their part.

97. The final ground of appeal, that the cumulative effect of the several decisions of the primary judge gives rise to a reasonable apprehension of bias on the part of the primary judge, is completely without substance. The ground amounts to nothing more than a complaint that Mrs Young has been completely unsuccessful in all of her various attempts to have the Original Orders set aside. While the 2012 Orders were held to have been made in error, by reason of a misapprehension as to the jurisdiction of the L&E Court, there can be no suggestion that a reasonable observer might have any concern that his Honour might not decide Mrs Young’s case impartially.

98. It follows from the above that Mrs Young has not made out any grounds of appeal. It must also follow that the application for leave to appeal should be dismissed and that the notice of appeal should be dismissed. Mrs Young should pay Mr and Mrs King’s costs of both proceedings.

Costs Proceedings

99. On 20 August 2015, Mrs Young filed a notice of motion in the L&E Court seeking an order that her costs of the applications to vacate the orders made by McClellan CJ in February 2004 be paid on an indemnity basis from 8 March 2004 until final determination of the Original Proceedings. The respondents to the motion were Mr and Mrs King and some 16 other parties who were lawyers and experts involved in the Original Proceedings.

100. On 19 February 2016, for reasons published on that day,[18] the primary judge instead varied the 2015 Orders to provide that Mrs Young was to pay, on the indemnity basis, all of the costs of Mr and Mrs King of all the proceedings in the L&E Court since 8 March 2004 and Mr and Mrs King’s costs of that part of the Judicial Review Proceedings as was conducted in the Supreme Court. His Honour ordered that the notice of motion of 20 August 2015, in so far as it sought orders for costs against the respondents, be dismissed and that Mrs Young pay the costs incurred by those respondents in defending those claims. His Honour also ordered that the costs incurred by Mr and Mrs King on the notice of motion of 20 August 2015 be paid on an indemnity basis.

     18. Young v King (No 9) [2016] NSWLEC 4.

101. On 10 May 2016, Mrs Young filed two summonses seeking leave to appeal to this Court from the orders made by the primary judge on 19 February 2016 (the 2016 Orders). In Proceedings 2016/76373, Mrs Young seeks leave to appeal from the 2016 Orders, in so far as they relate to the Original Proceedings and, in Proceedings 2016/76351, Mrs Young seeks leave to appeal from the 2016 Orders, in so far as they relate to the Judicial Review Proceedings. The respondents to both summonses are Mr and Mrs King and eight other parties.

102. On 26 April 2016, the Registrar directed that the summonses as between Mrs Young and Mr and Mrs King be listed for concurrent hearing on the same day as the other proceedings. The balance of those proceedings, involving the other respondents, was listed for directions on 25 July 2016. The requirement for the other respondents to file a response was suspended until further order. The 25 July 2016 directions hearing was subsequently vacated and re-listed for 31 August 2016.

Disposition of the Costs Proceedings

103. Mrs Young contended that the appeals in the Costs Proceedings should be allowed because the 2016 Orders were the occasion of “a substantial injustice”. She contended that she had effectively not had a hearing in respect of a matter that was of great importance to her and to the community, that she is a pensioner and that she would be exposed to considerable costs if she did not get a hearing. Mrs Young also referred to her contentions that there were highly prejudicial errors insofar as she was deprived of the opportunity of adducing evidence from Mr Hones, Mr Hemmings, Dr Perrens and Mr Warwick Davies. She asserted that their evidence, upon examination, would have demonstrated fraud in the light of the findings as to the purport and proper construction of Exhibit A. She asserted that it had been amply demonstrated that a very different outcome was almost a certainty, had those witnesses been called.

104. Thus, it is clear enough that the basis upon which Mrs Young seeks to challenge the 2016 Orders is dependent upon her success in the substantive appeals. For the reasons indicated above, those appeals fail.

105. Mrs Young has not shown any basis upon which a conclusion could be reached that the primary judge erred in the exercise of his discretion in making the 2016 Orders. Both summonses of 10 May 2016 should be dismissed as against Mr and Mrs King. Mrs Young should be ordered to pay Mr and Mrs King’s costs of those summonses.

Conclusion

106. In the light of the conclusions reached above, I propose the following orders:

1.   Summons seeking leave in proceedings 2015/229797 be dismissed with costs.

2.   Appeal in proceedings 2015/229805 be dismissed with costs.

3.   Summons seeking leave in proceedings 2016/76373 be dismissed as against the first and second respondents with costs.

4.   Summons seeking leave in proceedings 2016/76351 be dismissed as against the first and second respondents with costs.

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Schedule 1

Allegations of fraud

1   The allegations of fraud made by Mrs Young in the pleadings may be summarised as follows:

(1)   On 16 February 2004, a conclave of experts constituted by the L&E Court produced Exhibit A, which was tendered as containing a purported agreed solution by the experts to drainage problems experienced by Mrs Young.

(2)   The Original Proceedings were purportedly resolved on 19 February 2004 by Mrs Young’s legal representatives on terms that Mr and Mrs King give an undertaking to lodge a development application for a retaining wall and undertake to do works nominated in Exhibit A.

(3)   On 8 March 2004, the L&E Court accepted a varied undertaking from Mr and Mrs King.

(4)   Exhibit A stated requirements that the drainage system for the retaining wall be isolated from the storm drainage, that the drainage system for the retaining wall be taken to the rear yard of the King property and that the existing 65mm pipe for the retaining wall be lowered to the wall footing zone at the lowest level.

(5)   Mr and Mrs King represented to the L&E Court that they had submitted a building certificate application to the Council in order to regularise the unapproved excavation that they had undertaken on the southern boundary of the King property and the massed footing constructed on the southern boundary, which depended upon the excavation, with a building certificate (the Intended Building Certificate Representation).

(6)   The Intended Building Certificate Representation was made on 16 February 2004, on behalf of Mr and Mrs King by their solicitor, Mr Griffith, by statement made by him to the L&E Court.

(7)   The Intended Building Certificate Representation was false (in that no building certificate application had been made to the Council), to the knowledge of Mr and Mrs King, and was made with the intention of deceiving the L&E Court and Mrs Young and causing the L&E Court to find the undertaking acceptable.

(8)   Mr and Mrs King subsequently represented to the L&E Court and to Mrs Young that they had adequate drainage arrangements on the King property, and in particular to support drainage that was required to drain to or discharge via the rear yard of the King property including, for the purpose of drainage to the rear, a legal viable discharge point in the rear yard of the King property (the Exhibit A Representation).

(9)   The Exhibit A Representation was made or is to be implied from the following:

(a)   February Hemmings, counsel for Mrs Young, stated to the L&E Court that the matter had become capable of settlement by reason of work done on February 13 February 2004.

(b)   Mr Griffiths stated to the L&E Court that a drainage line (the lower drain) had been run into a pit in the backyard and the L&E Court conveyed its understanding that the subsisting issue in the case was whether there was effective drainage to take away the water interrupted by Mr and Mrs King’s works.

(c)   After Exhibit A was produced by the conclave, Mr Hemmings stated to the L&E Court in open court that works needed to be done, implicitly to achieve effective drainage, and that the lower drain drained into a pit in the backyard albeit with qualifications.

(d)   Exhibit A states or conveys:

(i)   that there exists an outlet to the street for water draining to the front of the King property for water generally, which is adequate and would be made better for the retaining wall water by separating the storm water from the sub-surface water, and

(ii)   that an outlet, meaning a discharge point, exists for drainage to the rear of the King property, being a pit near the car port at the back boundary of the King property (the pit), that the discharge arrangements to the rear of the King property are satisfactory, subject to the need for a surcharge of 20cm for the agricultural drain to outlet into the pit and that the is a legal and effective discharge point for drainage to the rear of the King property.

(e)   Mr Springett, an engineer retained by Mr and Mrs King, stated to the L&E Court:

(a)   that the Exhibit A works required that the retaining wall drain be lowered and then run across the yard to the existing pit for the lower level drain, and:

(b)   that the conclave agreed that the lower system could not be done by any better and the “system was fine”.

(f)   Mr King’s affidavit sworn in October 2003, which was read in support of the hearing in relation to costs on 17 February 2004, exhibited a plan expressly referred to in Exhibit A, which described the pit as an “absorption pit”, thereby impliedly representing to the L&E Court that the pit was an absorption pit.

(g)   No steps were taken in the L&E Court by the legal representatives, or the experts in the course of giving their evidence, to correct, for the benefit of the L&E Court, the implied representation that the pit is a legal and effective discharge point to support Mr and Mrs King’s drainage requirements to the rear of the King property and that by necessary implication the pit was a pit in the nature of an absorption pit, nor were steps taken to bring to the attention of the L&E Court the fact that the pit was not an absorption pit.

(h)   There is no statement in Exhibit A and no statement was made to the L&E Court by any of the lawyers or engineers to the effect that:

(i)   there was in contemplation discharge for rear yard drainage to any point other than, or any point beyond, the pit;

(ii)   the pit was a stormwater pit;

(iii)   Mr and Mrs King did not or may not have a legal and effective discharge point for rear yard discharge, and

(iv)   the pit was not itself a legal and effective discharge point for the drainage to the rear yard of the King property.

(10)   By reason of the above matters, the following implied statements were conveyed to the L&E Court:

(a)   The pit was a legal and effective discharge point to support Mr and Mrs King’s drainage requirements to the rear of the King property, and

(b)   By necessary implication, the pit was a pit in the nature of an absorption pit.

(11)   In giving the undertaking to do the works described in Exhibit A in the circumstances set out above, Mr and Mrs King adopted Exhibit A and the understanding conveyed to the L&E Court by Exhibit A and by the Exhibit A Representation.

(12)   Mr and Mrs King knew that the Exhibit A Representation had been made to the L&E Court and, in giving the undertaking, adopted the Exhibit A Representation.

(13)   The Exhibit Representation was false in that:

(a)   Mr and Mrs King did not have adequate drainage on the King property and had no legal or viable discharge point for the water that needed to be drained to the rear of the King property, and

(b)   The legal discharge point is Starkey Street because the pit is a stormwater pit designed to collect water and take it to a pipe which then delivers it to a legal discharge point being an approved stormwater outlet.

(14)   Mr and Mrs King knew at the time of giving the undertaking and making the Exhibit A Representation that they did not have adequate drainage on the King property and that they did not have a legal or viable discharge point for drainage to the rear of the King property and therefore knew that the Exhibit A Representation was false and they made the Exhibit A Representation with the intention to deceive Mrs Young and the L&E Court.

(15)   Mr and Mrs King gave the undertaking in the knowledge that the Exhibit A Representation was false and untrue and that the truth of the Exhibit A Representation was material to the preparedness of the L&E Court and Mrs Young to accept the undertaking to the L&E Court, and in the knowledge that the Exhibit A proposal could never be implemented and could never be the subject of a properly considered approval by the Council.

(16)   The conduct of Mr and Mrs King in offering the undertaking to the L&E Court on the foundation of Exhibit A amounted to bad faith and was motivated by the intention to deceive Mrs Young and the L&E Court.

(17)   In giving or causing the undertaking to be given to the Court, Mr and Mrs King represented to the L&E Court and to Mrs Young that:

(a)   The retaining wall drained to the street at the time of giving the undertaking (the Kerb Representation);

(b)   It was the intention of Mr and Mrs King to disconnect the 65mm pipe from the stormwater discharging to the street front and take it to a discharge point in the rear (the Disconnection Representation).

(18)   The Kerb Representation and the Disconnection Representation were made by Mr and Mrs King, or are to be implied, from the fact of the giving of the undertaking by Mr and Mrs King in the circumstances set out below:

(i)   Mr King’s affidavit sworn October 2003 said nothing about the existence or discharge point of the retaining wall drainage.

(ii)   Exhibit A contains references to “isolate the drainage system for wall from storm drainage – take to outlet in rear yard” of the King property.

(iii)   Mr and Mrs King were in Court and were aware of the following matters.

(iv)   Mr Hemmings, counsel for Mrs Young, stated to the L&E Court that the retaining wall drainage discharges into the storm drainage to the street and Exhibit A would now require that the retaining wall drainage be changed so that it drains to the rear yard.

(v)   Mr and Mrs King’s solicitor, Mr Griffiths, on their behalf represented to the L&E Court that the drainage for the retaining wall was approved by the Council and by implication was draining to the street as contemplated by the consent.

(vi)   Mrs Young’s expert hydrologist, Dr Perrens, gave evidence on 16 February 2004 that the effect of the drainage of the retaining wall to the street was to cause water to surcharge into the Young property and it was introducing more water into the groundwater system and that accordingly it has been recommended to separate the two and discharge the retaining wall drain to the rear.

(vii)   Consent by the Council was given on the basis that the retaining wall that was the subject of the consent was to drain to the street.

(viii)   Mr Springett stated in his report that the retaining wall drainage discharged to the kerb.

(ix)   Mr Springett gave evidence that he had agreed to change the current system by isolating the already overloaded stormwater system and to take the water from the Young property and discharge it to the backyard of the King property, and that the consequence of the current system was, unless it was remedied, that it would cause water to back up behind the retaining wall on the Young property.

(x)   Mr Springett gave evidence that Exhibit A would require a 65mm drain to be taken across the backyard to the pit.

(19)   The Kerb Representation and the Disconnection Representation were false in that the retaining wall was already draining to the rear at the time of the giving of the undertaking by Mr and Mrs King.

(20)   Mr and Mrs King and/or Mr Springett and/or Mr Griffiths made the Kerb Representation and the Disconnection Representation well knowing that they were false and with the intention to deceive the L&E Court and Mrs Young and with the intention that each of the L&E Court and Mrs Young would accept that the undertaking and that the proceedings would be dismissed.

(21)   In reliance upon and induced by the representations referred to above, Mrs Young, or in the alternative, her legal representatives, accepted the undertaking to the L&E Court in settlement of the Original Proceedings and, in consequence thereof, consented to an order dismissing Original Proceedings.

(22)   In reliance upon and induced by the representations, the L&E Court accepted the undertaking from Mr and Mrs King and, in consequence thereof, made an order for the dismissal of the Original Proceedings.

Schedule 2

Knowledge of Falsity of Exhibit A Representation

1   The particulars may be summarised as follows:

(1)   Mr and Mrs King had advice, prior to the works that they undertook in 2001, that would have alerted them to the need for a legal and effective discharge point and led them to submit a plan requiring drainage to stormwater.

(2)   They then lodged development application 1382 on the false basis that basement rooms existed. They knew that there were no approved rooms under the house and that, by their works in creating the basement rooms, they had altered the conditions of drainage requiring drainage to the rear in order to have access to stormwater outlet, which they did not have.

(3)   Mr and Mrs King knew that roof water would need to be drained to the rear of the King property as a consequence of the works and therefore needed access to a Council approved stormwater outlet to the rear and there was no such outlet, except at Starkey Street.

(4)   Mr and Mrs King installed a retaining wall at 1.2 metres below natural ground on the Young property which could not possibly drain to the street. However, they submitted plans to the Council on the basis that it would drain to the street.

(5)   The construction certificate plans lodged by Mr and Mrs King were calculated to provide for a retaining structure to support a false claim that the works carried out in 2001 involved no alteration of ground levels and therefore no interruption to surface water.

(6)   The construction certificate plans said that a dish drain would drain to a pit but no such statement was contained in plans that are the subject of the development application and they thereby evaded a duty on the part of the Council to verify the pit as a legal and effective discharge point.

(7)   Mr and Mrs King included a false statement in the plans for development application 1382 lodged on 31 October 2001 to the effect that the pit was an absorption pit, in circumstances where they knew that it was a closed or stormwater pit.

(8)   Mr and Mrs King installed a stormwater pit at the back of the house intended for drainage through the Young property when, by reason of its location, the pit could only have been a pit installed with the intention to drain the King property through the Young property, showing an intention to seek a discharge point in or through the Young property for the King property.

(9)   Mr and Mrs King lodged a building certificate application in November 2001 and obtained their building certificate in December 2001 for the slab of the then new basement rooms, without disclosing to the Council that roof water then drained to the rear, that drainage works had been removed and that the ground level on the southern boundary off the King property had been lowered by at least 90 cm.

(10)   They purported to rely on the building certificate in an affidavit to convey to the L&E Court that their works had been considered by the Council as warranting approval, in the knowledge that the non-disclosure meant that no such reliance could be placed on it.

(11)   Mr and Mrs King lodged a building certificate application on 31 December 2003, thereby acknowledging that the building certificate of December 2001 was “a transparent sham” so far as it conveyed consideration by the Council of their works.

(12)   Mr and Mrs King did not progress the building certificate application lodged on 31 December 2003 since the question of such a building certificate would have required the drainage to be considered by the Council including the fact of the 65 mm drain draining to the rear, where there was no legal or effective discharge point, contrary to the terms of the consent.

(13)   Mr and Mrs King omitted to disclose in their evidence in the Original Proceedings how the retaining wall was draining or that they were draining the retaining wall to the rear. They caused the Original Proceedings to be conducted on the basis that they were draining to the front where they claimed there was a Council approved stormwater outlet to the street, which to their knowledge was not correct.

(14)   Mr and Mrs King allowed or acquiesced in a false representation to the L&E Court to support acceptance of the undertaking that a relevant building certificate would be issued when they did not intend to drain the retaining wall.

(15)   They failed or omitted to undertake any work to install the drainage that was approved by the construction certificate until the commencement of the Original Proceedings.

(16)   Further, they failed or omitted to disclose to Mrs Young that they had installed drainage on 28 April 2003 for the retaining wall, contrary to what was approved under consent 1382, on which, to the knowledge of Mr and Mrs King, Mrs Young had placed reliance.

2   The particulars then contain extensive assertions of conduct after the making of the Original Orders. It is difficult to see how the alleged conduct engaged in after the making of the alleged false representations could be evidence of knowledge of the falsity of the representations.

Schedule 3

Summary of Submissions

Lack of drainage from the outset

1   Mrs Young contended that the predicament faced by the parties arose out of the manifest inability of Mr and Mrs King to drain the King property, asserted to be the consequence of substantial alterations effected by them and by a previous owner or previous owners. She repeated the allegations made in the statement of claim filed in the Judicial Review Proceedings and the further amended grounds of application filed in the Original Proceedings.

2   In those pleadings, Mrs Young made allegations that may be summarised as follows:

(1)   In 1958, the Young property and the King property were created by a subdivision containing some 20 to 30 lots, with arrangements made at the time for drainage.

(2)   Mr and Mrs King purchased the King property in 1999.

(3)   Prior to 1999, one or more of the previous owners of the King property undertook unlawful works that compromised the drainage on the King property as it had been approved. The works included the construction of a carport in the northeast corner, excavation under the house, construction of a slab under the house and construction of a closed pit at the rear yard.

(4)   Beginning in or about July 2001, Mr and Mrs King undertook works on the King property and the Young property for the purpose of creating basement rooms under the southern side of the dwelling house, where consent given in 1963 mandated a 1.5 metre subfloor space (the subfloor space).

(5)   For the purpose of creating basement rooms in the subfloor space, Mr and Mrs King excavated 50cm in order to lower the walls of the subfloor space, extended the walls of the subfloor space 50cm below the level of the base of those walls, poured a new slab at the new level of the base of the subfloor space walls. In total that created a floor that was 2.4 metres below the approved floor level.

(6)   Beginning in July 2001, Mr and Mrs King undertook a variety of works on the King property and on the Young property for the purpose of making the basement rooms viable.

3   Mrs Young contended in her submissions that, although the roof water from the King property drained to Calca Crescent, the Young property and the King property drain to the rear and in particular to the northeast. Accordingly, the Young property is upstream of the King property and the King property was in the natural flow path of the water, in circumstances where surface and subsurface water generally followed the same path. Accordingly, construction on the Young property and the King property required natural water flows to be managed and the drainage system for the subdivision in 1958 was designed for that purpose when the subdivision was effected.

4   Mrs Young contended that the drainage system that took water around the dwelling on the King property consisted of a drain that took the water to the northeast corner where it re-joined the natural drainage system towards Bates Creek. She said that the drainage system was compromised by the construction of a carport in the rear corner of the Young property, which was not approved by Council and was unlawful.

5   Mrs Young then asserted that Mr and Mrs King knew at the time that they purchased the King property that the basement rooms were entirely unlawful because the footings of the dwelling were higher than the slab of the basement rooms. She also asserted that Mr and Mrs King knew that, as a consequence of their works, they needed to drain any basement rooms to a stormwater outlet that needed to be to the rear of the King property. She asserted that, until Mr and Mrs King carried out works in 2001, roof water from their dwelling drained to Calca Crescent.

6   Mrs Young asserted that, in August 2001, she complained to the Council concerning the unlawful works and Mr and Mrs King subsequently lodged development application 1382 on 27 September 2001. Mrs Young contended that the development application was incompetent because it proposed development on the Young property, being a retaining wall that straddled the boundary between the Young property and the King property. Therefore, the development application could not proceed without Mrs Young’s consent.

7   Mrs Young also contended that the development application was based on the false premise that the basement rooms had previously existed and were approved. She contended that false statements were made in the plans lodged with the development application that there was an absorption pit in the rear yard of the King property near the carport.

8   Mrs Young asserted that Mr and Mrs King prepared plans dated 31 October 2001 that were intended to be part of a roadmap for an “independent” expert who would make “a package of findings as to what was previously in place”. The independent expert would find that the drainage was reliant upon a system that imposed an outlet burden on the Young property contrary to “the prior system … and common sense”. Mrs Young alleged that, once bound by such an expert determination, she would have been obliged to do whatever the expert said or be sued for breach of contract.

9   Mrs Young said that the evidence did not clearly disclose how the independent expert was to make the “perverse” findings to justify imposing the drainage obligation on the Young property. She asserted, however, that Mr and Mrs King had a fixed and firm intention not to construct drainage on the basis that the King property was responsible for draining the upstream properties, including the Young property, to a viable discharge point. She asserted that that intention had “manifestly informed their conduct” for a period of 13 years.

The Kings’ 31 October scheme,

10   Mrs Young asserted that the scheme evidenced by the plans of 31 October 2001 involved a package of three elements as follows:

• Lodgement of the amended plans of 31 October 2001;

• “Orchestrating an agreement” with Mrs Young, “and consequent issue estoppel” under the Dividing Fences Act 1991 (NSW) as to the natural ground level; and

• Obtaining a building certificate from the Council on which an “independent” expert could rely to infer that the basement rooms had existed with previously approved drainage.

11   Mrs Young submitted that the process was intended “to vindicate” a retaining wall on the boundary by requiring development application in respect of the Young property to complement DA 1382 and thus create a competent development application for a retaining wall on the boundary and “to vindicate a discovery” that the outlet obligation for drainage from the King property and likely the Young property, lay on the Young property.

12   Mrs Young then asserted that, between 27 December 2001 and 7 January 2002, Mr and Mrs King constructed a “mass (retaining wall) footing” on the boundary between the Young property and the King property, encroaching on the Young property. She asserted that the mass footing was constructed to be ready for the “independent expert” to draw upon it for critical inferences when he made his report.

13   Mrs Young asserted that Mr King wrote to the Council declaring that he was entitled to “pen back” water onto the Young property and alleged that roof water from the Young property was a problem and was washing onto the King property. She asserted that that was “a nonsense and could be demonstrated to be so”. She also asserted that Mr and Mrs King claimed that there were rubble drains on the boundary of the Young property “dumping roof water” into the King property.

14   Mrs Young asserted that the claim that there were illegal rubble drains was made so that it would lead to the “discovery” that there in fact had been chimney drains along the boundary. She asserted that Mr King intended to support a claim that he had constructed the mass footing at the level at which he had found the rubble drains in order to pen back water from the rubble drains. She said that the real purpose of Mr and Mrs King in constructing the mass footing was to create a false marker for the antecedent level of what they sought to have characterised as chimney drains designed to arrest and drain water before it reached the boundary with the King property.

15   Mrs Young then asserted that, on 24 January 2002, Mr and Mrs King lodged a plan in connection with the development application, which described the retaining wall as being to replace tin sheets. She asserted that the result was that the development application spoke of the retaining wall that was to retain a previously existing difference in levels, despite the fact that the 31 October 2001 plans showed that the previous land levels were the same on both sides. Mrs Young asserted that the intention of Mr and Mrs King was to have a retaining wall on the Young property without disclosing that intention to her and to mislead her about that matter. She asserted that a construction certificate issued to Mr and Mrs King was issued in breach of the law.

The Intended Building Certificate Representation

16   Mrs Young asserted that the case for Mr and Mrs King was conducted by Mr Griffiths, in Mr King’s presence, on the basis that a building certificate application was expected to be issued promptly so as to make tenable the development application for a retaining wall on the boundary pursuant to the undertaking. In fact, she asserted, the building certificate application given to McClellan CJ, which had been lodged by Mr and Mrs King on 30 December 2003, could never have been progressed in good faith because the application sought a certificate for a footing at 0.8 metres whereas the mass footing was at 1.2 metres. Accordingly, she asserted, there was no question of any building certificate being issued for the footing that the L&E Court was invited to understand was the retaining wall footing and which the L&E Court found was a retaining wall footing.

17   Mrs Young asserted that the purpose of the Intended Building Certificate Representation was to displace inquiry as to why Mr and Mrs King had not lodged a building certificate application for the works that they had done prior to applying for consent. The reason for displacing inquiry was that the failure to progress a building certificate application resulted from Mr and Mrs King’s intention to place a retaining wall and drain on Mrs Young’s land. Therefore, she said, they did not want a building certificate on the basis that the retaining wall and drain were entirely on the King property. Thus, Mrs Young asserted, the Intended Building Certificate Representation was fundamental to misleading the L&E Court and Mrs Young by putting them off inquiry as to Mr and Mrs King’s intention to place the retaining wall and drain on the Young property and to orchestrate an expert determination to vindicate such an arrangement.

The Kerb Representation and Disconnection Representation

18   Mrs Young asserted that Mr and Mrs King, upon examination, could not drain the 65 mm drain for the retaining wall to the street, because the levels did not permit it. Mrs Young said that Mr and Mrs King provided for drainage to the street because there was a Council approved stormwater outlet that could be verified without inspection or inquiry and they did not want the Council to have a duty to perform inspection or inquiry so far as concerns verification or critical assessment of any question of a legal and effective outlet to the rear, because there was none.

19   Mrs Young asserted that Mr and Mrs King had taken great care not to disclose that the 65 mm drain drained to the rear, contrary to the terms of the consent that had been given. She asserted that Mr and Mrs King did not have a legal discharge point to the rear of the King property and did not want scrutiny of that matter. She submitted that Mr and Mrs King intended to reveal the fact that the 65 mm drain already drained to the rear “at the last minute” to secure a settlement on the basis that each party pay their own costs and the delay in revealing the matter was to preclude proper inquiry by Mrs Young as to how the 65 mm drain could drain to the rear and as to whether it drained to a legal discharge point.

20   Mrs Young contended that the undertaking was necessarily a sham because Mr and Mrs King were already draining the retaining wall to the rear and that, given that serious water table problems had been observed on the Young property, after the 65 mm pipe was installed by Mr and Mrs King in April 2003, the pretence by Mr and Mrs King, that they would disconnect from the front, meant that, to their knowledge, and contrary to the understanding of the L&E Court and Mrs Young, no solution at all would be put in place for the observed problems. That, Mrs Young contended, together with the other misrepresentations, amounted to fraud on the L&E Court and on her, which led to the making and obtaining of the Original Orders.

Endnotes

Decision last updated: 19 October 2016