Young v King

Case [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:

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AGLC
Young v King [2016] NSWCA 282
Case
[2016] NSWCA 282
Decision Date

CaseChat Overview and Summary

In the proceedings before Basten and Gleeson JJA and Emmett AJA, the applicant, Young, sought leave to appeal against the Land and Environment Court's refusal to set aside consent orders. These orders had been made following an undertaking by Young to construct a retaining wall and install drainage works according to an expert-agreed "solution". Young subsequently became dissatisfied with this solution and sought to set aside the consent orders, alleging the court had been misled, or that parties and their agents were mistaken as to the purport of the solution, or that fraud had occurred. The applicant also contended the primary judge failed to provide adequate reasons for rejecting the fraud allegations, misapplied the *Briginshaw* principles, erred in excluding evidence, and that the primary judge's reasons disclosed a reasonable apprehension of bias. The applicant also pursued judicial review on similar grounds and sought leave to appeal against an order for costs on an indemnity basis.

The court was required to determine the circumstances in which final consent orders could be set aside, particularly in the context of allegations of being misled, mistake, or fraud. It also had to consider whether the primary judge had erred in rejecting these allegations, in the application of the *Briginshaw* standard for civil fraud, in the exclusion of evidence, and whether a reasonable apprehension of bias arose from the primary judge's reasons. The court also had to consider the grounds for judicial review and the appropriateness of indemnity costs.

The court dismissed the summonses seeking leave to appeal and the appeals, ordering that the applicant pay the respondents' costs. The court found no error in the primary judge's decision to refuse to set aside the consent orders, nor in the rejection of the allegations of fraud or mistake. The court applied the principles governing the setting aside of consent orders, emphasising the high threshold required, and found that the applicant had not met this threshold. The court also found no error in the exercise of discretion regarding evidence or in the reasons provided by the primary judge, thus dismissing the grounds of appeal and judicial review. The applications for indemnity costs were also dismissed.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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