Zelden v Sewell; Henamast Pty Ltd v Sewell

The applicants, Zelden and Henamast Pty Ltd, sought leave to appeal against a decision of a judge of the Supreme Court of New South Wales. The dispute concerned allegations of fraud and misrepresentation, and the court was required to consider whether it was open for a judge to make a finding of dishonest conduct against a party when fraud had not been specifically pleaded, and whether particulars of knowledge were required in such circumstances.

The primary legal issues before the Court of Appeal were whether the primary judge erred in making findings of dishonest conduct without fraud being specifically pleaded, and whether the requirements of procedural fairness were met by notification in the pleadings. The court also considered the relevance of the consequences of success or failure in an appeal, the quantum of the claim, and whether there was sufficient material for the inferences drawn by the primary judge regarding findings of fact.

Campbell and Young JJA held that it is open for a judge to make a finding of dishonest conduct even if fraud has not been specifically pleaded, provided that procedural fairness is afforded to the party against whom the finding is made. This fairness can be achieved through notification in the pleadings. The court found that there was sufficient material before the primary judge to draw the inferences made regarding the findings of fact. Consequently, the applications for leave to appeal were dismissed with costs.