Young v King

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.