Land and Environment Court of New South Wales CITATION : Logwon Pty Ltd v. Warringah Shire Council [1993] NSWLEC 4 APPLICANT Logwon Pty Ltd PARTIES : RESPONDENT Warringah Shire Council RESPONDENTS FILE NUMBER(S) : 40093 of 1991 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 (Permanent Trustee Co (Canberra) Ltd v. Stocks and Holdings (Canberra) Pty Ltd (1976); Harvey v. Phillips (1956) ; CASES CITED: Spies v. Commonwealth Bank of Australia (1991); High Court in Taylor v. Johnson (1983); Tommey v. Tommey [1982] ; Livesey v. Jenkins [1985] DATES OF HEARING: DATE OF JUDGMENT: 04/30/1993 APPLICANT Mr W. Hodgekiss (Barr) Mr D. Balog of Balog D.C. & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr M.C. Craig (QC) Mr D. Wilson (Barr) Mr Neil Howie of Wilshire Webb Solicitors JUDGMENT: A. INTRODUCTION By its amended Class 4 application Logwon Pty Ltd ("the Company") seeks orders that two sets of consent orders made by this Court on 16 August 1988 and 24 April 1990 respectively in proceedings No 40083 of 1988 brought against the Company by the Warringah Shire Council ("the Council") be declared null and void and of no operative effect or alternatively that they be set aside. B. THE COURT'S CONSENT ORDERS The aforesaid consent orders relate to a parcel of land, comprising 6.2 hectares and being Lot X Deposited Plan 395049 and Lot B Deposited Plant 380266 situate at Cabbage Tree Road, Bayview ("the subject land") which the Company acquired in August 1986. Except for a dwelling-house the subject land is not developed although the Company has been desirous of developing it by a rural/residential subdivision since acquiring it, but has been unsuccessful in obtaining the requisite development consent. The original consent orders required the Company to carry out specified remedial works to the subject land in respect of works undertaken without the requisite consent of the Council under the Environmental Planning and Assessment Act 1979 ("the EP&A Act") on the land in anticipation of, or preparatory to, the subdivision of the land into a number of rural/residential lots. The remedial works which were required to be carried out within 120 days (Order 2) involved extensive earthworks, drainage works, soil erosion and sediment control works and revegetation remedial works. (A number of the required works related to an internal access track that existed on a right-of-way traversing the subject land from Cabbage Tree Road which right-of-way is appurtenant to adjoining land which was then under construction as an approved retirement village ("the ROW"). The present case essentially concerns the relationship between the latter land and the subject land and more particularly the relationship between works required to be undertaken on the access road located on the ROW - such works being required on the one hand by the Company pursuant to the Court orders and on the other by the developer of the retirement village pursuant to conditions of development consent.) The original consent orders in terms, required all remedial works to be carried out "to the satisfaction of Council and detailed plans and specifications of all works... to be submitted for the approval in writing of the Council within 60 days of the date hereof and prior to any commencement thereof". On 12 January 1989 the Council granted development consent (No 89/9) to a development application made ostensibly on behalf of the Company to carry out the required remedial works on the subject land subject to conditions including a condition requiring completion of all works within 60 days. On 2 June 1989 the Council in pursuance of s 102 of the EP&A Act modified development consent No 89/9 on the application of the same person who obtained the original development consent, by substituting an amended landscape specification and by extending the time for completion of all remedial works to 150 days from that date. On 4 October 1989 the Council refused an application made on behalf of the Company for a further extension of time to complete the remedial works and advised that it expected the works to be completed by 27 October 1989 (ie the expiry of the aforesaid period of 150 days). On 19 October 1989, the Solicitors acting for the Company responded to the Council's letter of 4 October 1989 referring to the Court's consent orders "by which Logwon Pty Ltd accepted various obligations with respect to the restoration of the land". The letter went on to advise that the Company was preparing plans for the development of the subject land (involving a nine lot rural/residential subdivision) and it was anticipated that that proposal would involve significant re-vegetation which would not be identical with the re-vegetation required by the court's consent orders, as depicted in development consent No 89/9, and that in consequence it would be wasteful for the Company to complete the re-vegetation required by the consent orders "because many of them (ie the intended plantings) would have to be modified and/or removed when the land is ultimately developed". The Solicitors' letter acknowledged that the period of 120 days stipulated in the Court's consent orders had "for various reasons not been complied with" and advised that they had been instructed to approach the Court to seek a variation of the consent order to extend the time for completion of the required remedial works and to seek to have those works varied "to accord with any development which may be approved by the Council". As will be seen the relevant Court orders required substantial site rehabilitation works to be undertaken in accordance with detailed plans and specifications and within specified time limits. The original consent orders required the site rehabilitation works to be completed within 120 days. They were not completed within this period. However application for Council's approval (as required by the consent orders) had been made within that period and the Council had granted development consent for the required works and effectively extended the period for completion until 27 October 1989. On 26 October 1989 the Company, as foreshadowed in its solicitors' letter, filed a Notice of Motion seeking a stay of further implementation of the 1988 consent orders and a variation of those orders "consistent with any development consent granted" in respect of a development application for the subdivision of the subject land which the Company undertook to lodge with the Council within six weeks. On 30 November 1989 the Council filed a Notice of Motion seeking orders that the Company be found to be guilty of contempt by virtue of its failure to carry out the required remedial works and that it be punished for that contempt. Both Notices of Motion were fixed for hearing on 23 April 1990 and on that day I was informed that the matter had been settled and the parties submitted draft minutes of orders. The only matter left unresolved by the parties' settlement was the question of whether I should immediately proceed, as the Council pressed, to hear the Council's allegation of contempt committed by the Company in the period immediately prior to the date of settlement. On the next day the parties requested me to make the orders they had agreed upon, and accordingly, on 24 April 1990, I made the consent orders a copy of which is annexed hereto and marked "A". The second set of consent orders made by the Court on 24 April 1990 which effectively extended until 6 September 1990 the time for completion of the remedial works required by the original consent orders as detailed in development consent 89/9, were made as a result of the parties' apparent settlement of their competing notices of motion - the Company's motion seeking a temporary stay of the original consent orders and the Council's motion seeking to enforce those orders by the contempt process. The 1990 consent orders stipulated additional remedial works that the site required in consequence of activities undertaken on the subject land in purported (but failed) compliance with the original consent orders by the person engaged by the Company to undertake those works in association with the prospect of a joint development involving the subject land and other neighbouring lands (not the retirement village). The Applicant's present application to set aside the two sets of Court orders, though foreshadowed during the course of litigation conducted in 1990 between the parties (including litigation involving the adjoining owner Jennings Industries Limited ("Jennings") in respect of the aforesaid large scale retirement village "Minkara Retirement Village" then under construction), was not filed in Court as a separate proceeding until 13 May 1991 when that litigation was still current, as were the Council's two motions alleging contempt of Court by the Company's failure to obey the Court's 1988 and 1990 consent orders. The Council's initial and immediate response was to move the Court to strike out the Applicant's claim to avoid or, alternatively to set aside, the Court's consent orders. However I declined to strike out the proceedings (being of the opinion that such a drastic step was not justified) and they were conducted immediately at the conclusion of the other litigation between the parties involving (i) two contempt motions brought by the Council against the Company in proceedings No 40083 of 1988 alleging separate contempts against the original consent orders and the variation of those orders and (ii) two motions brought by the Company in the same proceedings to extend the time for performance of the obligations imposed upon the Company by those orders) and (iii) separate Class 4 proceedings (No 40138 of 1990) brought by the Company against the Council and Jennings alleging breaches of the EP&A Act in respect of the development of the Minkara Retirement Village. The relief claimed by the Company in its amended application is separately founded on the allegations of: 1) mistake on the part of the Company and/or of the Company and the Council as to the effect on the subject matter of the consent orders of relevant conditions of development consent granted by the Council for the Minkara Retirement Village ("the Minkara development consent"); 2) failure on the part of the Council to fully inform the Company of the effect of the aforesaid conditions of Minkara development consent; and 3) failure of the Council to inform the Court when making the consent orders of the effect of the aforesaid conditions of the Minkara development consent. The relevant conditions of the Minkara development consent were conditions relating to bush-fire safety measures including the provision of fire trails which, most materially, included a fire-trail along the route of a ROW traversing the subject land providing access to and from Cabbage Tree Road being the same access road which was the subject of a large amount of the remedial works required by the Court's consent orders. C. THE BACKGROUND TO THE APPLICATION TO SET ASIDE THE COURT'S CONSENT ORDERS As I have indicated there was an extensive litigation background to the present application and it will be helpful if I trace its history because it is in it that the allegations of mistake and non-disclosure are founded and are to be tested. Moreover much of the evidence received in the other litigation was tended in the present proceedings. Having made the 1990 consent orders, I immediately proceeded in accordance with the parties' joint wish to hear the Council's contempt motion. Concurrently I entertained the Company's motion to extend the time for completion of the required rehabilitation works. After three days of hearing both motions were adjourned part-heard to a date to be fixed. It was towards the conclusion of the initial period of hearing, that I admitted into evidence, over the Council's objection, the Minkara development consent granted originally in 1983 and subsequently modified by the Council but most materially for present purposes, as modified by the Council's decision of 7 November 1988. It was on that last-mentioned date that a number of additional conditions relating to bush-fire safety measures for the retirement village were imposed on the development consent including the following: "124. The applicant prior to occupation is to verify that the access road from Cabbage Tree Road is capable for use as fire trail access. 125. Further to condition 124 in respect of the fire-trail access from Cabbage Tree Road the following requirements apply. i) A gate is to be constructed in accordance with standard fire trail gate construction and located across the entrance. ii) The trail is to be constructed as an all weather access trail in accordance with Council's minimum fire trail construction requirements. iii) The trail is to be constructed to meet the existing trail within the village development that travels in an easterly direction around the golf course. iv) The trail is to have adequate passing bays and turning areas in accordance with Warringah Shire Council minimum fire trail construction requirements." It is common ground that the reference to "access road" a reference is to the ROW. On 25 June 1990, and before the resumption of the adjourned hearing, the Company commenced separate Class 4 proceedings (No 40138 of 1990) against the Council and Jennings asserting breaches of a number of conditions of the Minkara development consent including Conditions 124 and 125 and claiming appropriate declaratory and injunctive relief. By consent of all parties the hearing of this litigation was expedited and the hearing was conducted on eight days in September 1990 when on 28 September, by consent of all parties, it was adjourned in the course of the Company's final address when it became apparent that the parties could settle their differences on the basis of Jennings' willingness to build the fire-trail along the ROW traversing the subject land, subject to Council's approval of the requisite engineering plans which Jennings would urgently commission. (That litigation had been conducted with urgency because Jennings had apprehended that its contractual obligations to their residents of the retirement village were imperilled by the relief claimed. The Company had allayed those concerns when it was indicated in the course of its final address that the Company did not wish to disturb the occupancy of residents but was seeking a moulded order whereby Jennings might be required to construct the fire-trail along the ROW.) Moreover whilst these settlement negotiations were on foot during October 1990, the Council and the Company had agreed that the part-heard contempt proceedings await the outcome of those negotiations because of the expected bearing that any settlement might have on the fulfilment of the obligations imposed upon the Company by the Court's consent orders. However by December 1990, those settlement negotiations had broken down and arrangements were made for the resumption of all of the part-heard litigation. It appears that the basis for the failure of negotiations was the decision by Jennings (with the concurrence of the Council) to abandon the fire-trail proposal along the R.O.W. in favour of a internal fire-trail within the Minkara Village site. The option for an internal fire-trail was secured as a result of Jennings' appeal pursuant to s 102 of the EP&A Act to this Court which was ultimately determined by consent orders agreed upon by the Council and Jennings on 30 November 1990. (The Company, though aware of the proceedings which were heard by an Assessor of the Court, did not participate in them.) I should mention that it was during October 1990 when the negotiations held their highest prospects of success that Counsel for the Company intimated to Counsel for the Council that he had instructions to commence proceedings to set aside the Court's consent orders and the present proceedings are those anticipated proceedings. As I have earlier mentioned the Company's separate Class 4 application to set aside both sets of the Court's consent orders was not filed until 13 May 1991. The Company had a few weeks earlier filed a Notice of Motion in the same proceedings by which time, in addition to the part-heard litigation between the parties (including the proceedings involving Jennings) the Council had filed second contempt motion alleging contempt by the Company of the 1990 consent orders. The Company's further and secondary response to the second contempt proceedings was to seek an extension of time to complete the required rehabilitation works. Thus from first to last, the litigation between the parties has escalated by means of legal attack and counter attack. To complete the picture of the labyrinthine litigation forming the background to the present application, within the preceding six months the Company and the Council had been involved in an appeal under s 97 of the EP&A Act in respect of the Company's nine lot rural/residential subdivision application for the subject land and an appeal pursuant to s 56A of the LEC Act against the Assessor's decision dismissing the s 97 appeal, the Company had been involved in proceedings in the Supreme Court brought by Jennings in October 1989 alleging interference by the Company with the ROW traversing the subject land appurtenant to the Village site and the Council and Jennings had been involved in the aforesaid appeal pursuant to s 102 of the EP&A Act which ultimately led to the modification of the conditions of the Minkara development consent giving the option of an internal fire-trail instead of the fire-trail over the ROW. That option was taken up by Jennings and in May 1991 the Council granted approval to the internal fire-trail. D. THE BASIS OF THE COMPANY'S CASE TO AVOID OR SET ASIDE THE COURT'S CONSENT ORDERS As I have earlier mentioned the Company's case is founded exclusively on the existence of conditions of the Minkara development consent pertaining to bush fire protection measures and in particular to fire-trail access along the ROW traversing the subject land. The Minkara development consent was originally granted in 1983 and was current, but in different form, when the 1988 consent orders and the 1990 consent orders were made by the Court. It is necessary to consider separately, the relevant facts existing on those two occasions. At the time the 1988 orders were made the Minkara development consent (which permitted a large scale retirement village comprising 290 self care units, a hostel, a nursing home and a community centre) was subject to the following relevant conditions: "56. The building application is to be accompanied by a detailed bushfire management programme including the written consent by the owners of adjoining properties to any clearing or other works necessary to implement the bushfire protection measures set out by R H Luke in his report accompanying this development application dated 16th February 1983; such management programme to detail evacuation procedures in the event of bushfire, and in particular in the event that Minkara Road is closed. Such management plan is to be to the satisfaction of Council's Fire Control Officer, and is to be implemented under the supervision of the Fire Control Officer. ..... 58. The building application is to detail the location and construction of all fire trials, which are to be through roads and not dead ends, and of a construction which meets the requirements of Council's Fire Control Officer." (These conditions were imposed on the original development consent.) At that time there was being processed by the Council a modification application under s 102 of the EP&A Act which had been lodged by Jennings on 18 April 1988 after it had taken over the project following the bankruptcy of the original developer. The modification application had been preceded by extensive enquiry and negotiations between Jennings and the Council. Most relevantly for present purposes, that modification application proposed that bushfire access to the lower slopes of the Minkara Village site would be via the ROW traversing the subject land from Cabbage Tree Road. In a report dated 25 August 1988 to the Council's Development Unit (comprising a group of senior servants of the Council) and which report I infer was in existence at the time the 1988 Court's consent orders were made (ie 17 August 1988), it was recommended that the modification application be approved subject to, inter alia, the imposition of additional conditions including the following conditions (all relating to the fire-trail access along the ROW): "110(i). Provision of a fire trail access system to the reasonable requirements of Council's Bush Fire Control Officer and the Shire Engineer including works required on adjoining properties, extensions and modifications to previously approved drawing number C026-B. ..... ..... 124. The applicant prior to occupation is to verify that the access road from Cabbage Tree Road is capable for use as fire trail access. 125. Further to condition 124 in respect of the fire trail access from Cabbage Tree Road the following requirements apply. (i) A gate is to be constructed in accordance with standard fire trail gate construction and located across the entrance. (ii) The trail is to be constructed as an all weather access trail in accordance with Council's minimum fire trail construction requirements. (iii) The trail is to be constructed to meet the existing trail within the village development that travels in an easterly direction around the golf course. (iv) The trail is to have adequate passing bays and turning areas in accordance with Warringah Shire Council minimum fire trail construction requirements. 126. The existing fire trail from Stage 1 to the golf course to be maintained as a walkable fire line. Details to be submitted at building application stage to Council's satisfaction. 127. The fuel free zone shown on drawing numbered 016.87 LMP to have a fuel loading no greater than 7 tonnes per hectare. Details as to maintenance of the "fuel free zone" to be submitted to Council's satisfaction with building application for initial stage of development. 128. The fire trail shown on drawing numbered 016.87 LMP to be extended to enable the fire fighting authority access to the north east corner of the development. Details to be submitted at building application stage for the initial stage of development to Council's satisfaction." On 25 August 1988 the Development Unit adopted the recommendation in the aforesaid report and recommended that it be referred to the Council for determination. At its meeting held on 30 August 1988, the Council adopted the recommendation of the Development Unit "subject to a satisfactory on site inspection on 3 September 1988 by interested Councillors and Town Planning Staff..." On 7 November 1988 the Development Unit formally approved, under delegated authority, the modification application subject to conditions, as had been recommended and on 16 November 1988 the Council notified Jennings of its approval. At the time that Jennings' modification application was lodged (April 1988) and at the time the Council was considering and determining that Application (August to November 1988) the first stage (comprising 44 self care units) of the Minkara Village had nearly been completed. This state of affairs clearly demonstrated that the Minkara development consent had been acted upon. It also indicated that the conditions of that consent were operative. At the time of the 1990 Court orders there had been no material change in the Minkara development consent but construction on the project had progressed and Stage 1 had been completed and was occupied by residents and the community centre had also been constructed. Having set forth the relevant aspects of the Minkara development consent it is necessary, in order to adjudicate upon the Company's application, to determine three questions of fact, before considering the legal effect, if any, of any relevant mistake on the Company's part, namely: 1) Is the Minkara development consent a relevant or material fact to the subject matter of the consent orders? 2) If so, what was the state of knowledge of that fact of the Company and of the Council at the times the Court orders were made? and 3) Was there any relevant mistake concerning the existence of that fact on the part of the Council or of the Company? I shall separately consider each of these questions. QUESTION 1: The relevance of the Minkara development consent When the 1988 consent orders were made the Minkara development consent was not conditioned, in terms, upon the construction of a fire trail along the ROW traversing the subject property. It is true that Condition 56 required, inter alia, a bushfire management programme including evacuation procedures in the event of Minkara Road being closed and that Condition 58 required the detailing of the location and construction of all fire trails which were to be "through roads and not dead-ends". I do not think that those Conditions were intended to directly bear upon the ROW traversing the subject land even though I accept that the fire trail plan "CO26 Revis B" submitted to the Council (and approved by it in 1985) by Jennings' predecessor in title apparently was intended to link up with the ROW traversing the subject land. Notwithstanding this linkage I do not think that Conditions 56 and 58 (operating either separately or jointly) imposed an obligation upon the developer to construct a fire trail along the ROW. I appreciate that this conclusion appears to be at variance with an opinion contained in the report considered by the Council's Development Unit on 13 December 1988 concerning the development application submitted to the Council ostensibly on behalf of the Company, to reinstate the subject land in accordance with the Court's 1988 orders where the following statement is made: "Should however, the works be approved by Council as proposed in Stage 2 and a building application not be submitted for the future dwellings, then the implication would be that a roadway would exist onsite whereas prior to August 1986 a formed traversable dirt track existed. The pre-existing track and the proposed roadway in both Stages 1 & 2 traverse the right-of-way to Lots 33-36 Minkara Road, Bayview, the Minkara Retirement Village, which was designed to be used as right-of-way for access for fire fighting vehicles and was a previous access to the top of Lot X. The original consent for the Minkara Retirement Village required the provision of such access and the recently modified consent for the village has required that such access be made available to the sites southern boundary. The roadway as proposed by Stage 1 would permit the access by fire vehicles, as would the roadway in Stage 2." Although the true effect of Conditions 56 and 58 is highly debatable, my aforesaid conclusion is reinforced by Jennings' modification application which effectively abandoned the internal fire trail proposal which had been approved by the Council in 1985 in favour of the properly constructed fire trail along the ROW traversing the subject land from Cabbage Tree Road. However that modification application undoubtedly bore upon the subject matter of the 1988 consent orders because it proposed the construction of a fire trail along the ROW which was the focus of a substantial amount of the remedial works required by those orders. In my judgment, the fact of the Minkara development consent as it existed on 17 August 1988, included, not only that consent as it then existed, but included it in the form in which it might be modified in accordance with the then undetermined pending Jennings' modification application made under s 102 of the EP&A Act. Accordingly I conclude that the Minkara development consent was a relevant fact to the subject matter of the 1988 consent orders in the sense that (i) it imposed conditions on the developer in respect of the ROW; and (ii) it was relevant to the obligations imposed upon the Company by the Court orders and to the Company's acceptance of those obligations. At the time the 1990 consent orders were made the aforesaid Jennings' modification application had been approved and conditions 124 to 127 inclusive obviously were relevant to the subject matter of those orders and to the obligations imposed thereby upon the Company. This is attested by the fact that in the course of the Company's Class 4 proceedings against Jennings and the Council the parties came within the proverbial whisker of settling not only that dispute, but the outstanding contempt charge, on the basis of Jennings constructing the fire-trail along the ROW and the Company undertaking the outstanding remedial works on site unrelated to the ROW. QUESTION 2: The Council's and the Company's state of knowledge of the Minkara development consent. At the respective times of making the 1988 and 1990 consent orders the Council obviously must be taken to have known of the Minkara development consent. In so concluding there is no evidence of actual knowledge on the part of the Council's servants responsible for obtaining the 1988 consent orders or for processing the 1988 Jennings' modification of the interrelationship between the two sets of actions in which the Council was concurrently engaged. It is more probable than not that the two sets of concurrent actions were not, at the time of their transaction, seen to be related. However there is evidence (Exhibit 10) that at least by 24 October 1988 servants of the Council appreciated a conflict between what was required by the Court orders and what was proposed by Jennings in relation to the fire-trail across the ROW. This realisation of conflict post-dated the Court orders and the Council's approval of Jennings' modification application - although it pre-dated the Development Unit's formal approval of the m odification application. On the evidence I find that the Company was ignorant of the Minkara development consent when the 1988 consent orders were made but was aware of the Minkara development consent when the 1990 consent orders were made. In holding that it was relevantly ignorant, I mean of course, that it was ignorant of the conditions of the development consent which affected the ROW and not that it was ignorant of the existence of the partly constructed retirement village on the adjoining land (a physical fact plainly obvious) or that it was ignorant of the existence of the ROW (a fact plainly noted on the title of the subject land). Whereas there is a dearth of evidence relevant to the Company's state of knowledge of the Minkara development consent when the 1988 Court orders were made there is an abundance of evidence proving the Company's state of knowledge of that fact when the 1990 Court orders were made. There were many sources of that knowledge but chiefly it resided in Mr Smith, a consultant town planner, who had been retained by the Company in October 1989, as its principal technical adviser (save for legal advice) in relation to the subject land and the Company's problems with it. Mr Smith and the Company's Solicitor, Mr Balog, had become aware of the terms of the Minkara development consent (as modified in November 1988) prior to Mr Smith's preparation in January 1990 of the statement of environmental effects which accompanied the development application to subdivide the subject land into nine rural/residential lots lodged by the Company with the Council in January 1990. At p 9 of the Statement of Environmental Effects the follo wing statements are made concerning the ROW and the Minkara development consent: "Lot B and Lot X are subject to easements (for right-of-way) in favour of land now occupied by the Minkara Retirement Village and formerly described as Lots 33-36, DP 28908. That right-of-way extends from the north-western boundary of Lot X to Cabbage Tree Road crossing the two allotments along the line of the existing formed track through the land. No use appears to have ever been made of the right-of-way in favour of Lot A which remains vacant land. The easement in favour of the Retirement village has been used, and continues to be used, in conjunction with that Village. Its continued use is a condition of approval of the Retirement Village - Condition 124 of DA83/329, as amended on 11-1-89, refers to the use of the right-of-way as a fire trail; Condition 125 requires that it be constructed to an all-weather access trail standard and Condition 132 requires the owner of the Retirement Village to permit public groups and members of the public to have access to various areas of the site. Some of those areas abut the subject land. It is unclear whether or not that provision permits the public the right to pass through the subject land to the Retirement Village site." An additional source of the Company's relevant knowledge of the Minkara development consent is contained in the Supreme Court proceedings commenced against the Company in October 1989 by Jennings alleging interference with the ROW and seeking mandatory orders for the restoration of the ROW. Finally there is Mr Smith's statement (Exhibit 15) which freely concedes an increasing awareness, right up to the day upon which the 1990 Court orders were made (when he was still engaged in searching the Council's files relating to Minkara) of the detailed outworking between the Council and Jennings of the conditions of the Minkara development consent relating to fire trail access across the ROW. Indeed Mr Smith in his testimony made it very clear that he counselled against the Company agreeing to the 1990 consent orders. However his counsel did not prevail and the Company agreed to settle the dispute with the Council upon the terms set forth in the 1990 consent orders. From the subsequent history of the case it is apparent that the full significance for the Company of the Minkara development consent only was fully appreciated post the date of the consent orders. Doubtless it was this which prompted the Company to bring the enforcement proceedings against Jennings. However it is clear that the Company was aware of the Minkara development consent when it agreed to the 1990 consent orders. QUESTION 3: Was there any relevant mistake? As I have indicated the Council was not relevantly mistaken concerning the existence of the Minkara development consent when it agreed to both the 1988 and 1990 Court's consent orders. Nor was the Company relevantly mistaken at the time it agreed to the 1990 Court orders, although it subsequently became more acutely aware of the potential impact of that fact on its own land and on its obligations under the Court orders and thereupon embarked upon the enforcement proceedings against Jennings in order, I take it, to in effect transfer to Jennings the responsibility for the restoration of the ROW (by providing thereon a fire-trail access) and thereby relieve itself of a substantial obligation under the Court's 1988 and 1990 consent orders. In a real sense Jennings' obligation under the conditions of development consent was a potential boon for the Company, which they were entitled to seek to exploit. However the Company was relevantly mistaken (by dint of its ignorance (in the sense I have earlier explained) of the Minkara development consent when it agreed to the 1988 orders. E. THE RELEVANT LEGAL PRINCIPLES FOR SEEKING TO AVOID OR TO SET ASIDE THE COURT ORDERS AND THEIR APPLICATION TO THE FACTS In the present case where the Council resists the relief claimed, and there is no scope for the jurisdiction to set aside judgments by the consent of the affected parties (Permanent Trustee Co (Canberra) Ltd v. Stocks and Holdings (Canberra) Pty Ltd (1976) 28 FLR 195) I take the relevant principle to be as stated by the High Court of Australia in Harvey v. Phillips (1956) 95 CLR 235 at 243/4: "The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like." (See also Spies v. Commonwealth Bank of Australia (1991) 24 NSWLR 691.) A more expansive discussion of relevant principles may be found in Chapter 4 of the Law and Practice of Compromise by David Foskett (2nd ed) and I now consider that text. Relevant for present purposes is the author's discussion of the effect on the compromise of mistake and misrepresentation, although as Young J points out in Easyfind (NSW) Pty Ltd v. Patterson (1987) 11 NSWLR 98 at 106, this brings to the fore the ordinary principles of contract and equity rather than any specialised law of compromise. Concerning "mistake" Foskett makes the following statements of principle at pp 31 and 32 (which I would adopt): "Where one party to a compromise is labouring under some misapprehension about its terms and this is known to, or in some way encouraged by, the other party there cannot really be said to be any genuine agreement between them even though, viewed objectively, it would appear that there was. ..... ..... Where, however, there is no knowledge of or contribution to the mistake by the other party to the compromise it will be upheld." In my judgment, even assuming the Company's mistake (caused by its ignorance of the Minkara development consent) is relevantly a mistake going to the substance of the agreement upon which the 1988 Court orders were founded, it has not been established that the Council either knew of, or contributed to, that mistake. Nor, to adopt the language of the High Court in Taylor v. Johnson (1983) 151 CLR 422 at 432/433, has it been shown that the Council was aware of the Company's mistake, or being aware, set out to ensure that the Company did not discover its mistake, or that the Council was guilty of any wilful ignorance in relation to the Company's mistake. Accordingly the Company's mistake affords no basis for avoiding the 1988 consent orders. Concerning "misrepresentation" Foskett states the following principle at p 34 which I would adopt: "A false representation of a material fact, made prior to a compromise and which induces it, may, at the instance of the party misled, operate to vitiate the compromise. The misrepresentation may be set up as a defence to a claim for specific performance of the agreement or as the basis of a claim to have it set aside." Again the Company has not established that prior to the 1988 consent orders the Council made any false representation of a material fact concerning the Minkara development consent which induced the Company to agree to the 1988 Court orders. However the Company alternatively asserts a duty on the part of the Council to have disclosed the existence of the Minkara development consent to the Company prior to entering into the agreement which founds the 1988 consent orders. This asserted duty can only be made good if the Company can establish that contracts of compromise are uberrimae fidei. It so asserts relying inter alia, on Kerr on Fraud and Mistake (7th ed) p 96. Foskett discusses this question at pp 35/36 concluding that the "better view" as recorded in modern textbooks is that contracts of compromise are not contracts uberrimae fidei. I would adopt this conclusion. Foskett founds his opinion on the decision of Chitty J in Turner v. Green (1895) 2 Ch 205 and the decision of Tudor Evans J in Wales v. Wadham (1977) 1 WLR 199 (not disapproved on this point by the House of Lords in Livesey v. Jenkins [1985] 1 All ER 106). In Turner v. Green Chitty J adopted the following statement from Fry on Specific Performance: "Mere silence as regards a material fact which the one party is not under an obligation to disclose to the other cannot be a ground for rescission or a defence to specific performance." In my respectful opinion the principle in Turner v. Green provides a total answer to the Company's assertion that the Council was under a duty to disclose to the Company the existence of the Minkara development consent. The Company sought to derive such a duty from the superior knowledge of the Council of developments being undertaken in the local government area. In my judgment this affords no foundation for holding that such a duty existed when the Council and the Company agreed to settle the litigation in which they were involved. Finally I must determine the Company's related submission that the Council owed a duty to the Court to disclose to it the existence of the Minkara development consent prior to the making of the 1988 consent orders and that in consequence of that non-disclosure, the Court's orders are voidable or liable to be set aside. In my judgment no such duty lay upon the Council, and the Court's consent orders are not voidable or liable to be set aside by virtue of the non-disclosure of the existence of the Minkara development consent. In rejecting the Company's argument, I would respectfully adopt, as reflecting the correct understanding of the Court's 1988 consent orders, and of its function in making those orders, the following statement of Balcombe J in Tommey v. Tommey [1982] 3 All ER 385 at 390, (although subsequently overruled by the House of Lords in Livesey v. Jenkins [1985] 1 All ER 106 on grounds totally based upon the special provisions requiring full and frank disclosure made by the Matrimonial Causes Act 1973): "Nor is there any substance in another ground, namely ignorance of relevant facts on the part of the judge. A judge who is asked to make a consent order cannot be compelled to do so: he is no mere rubber stamp. If he thinks there are matters about which he needs to be more fully informed before he makes the order, he is entitled to make such inquiries and require such evidence to be put before him, as he considers necessary. But, per contra, he is under no obligation to make inquiries or require evidence. He is entitled to assume that parties of full age and capacity know what is in their own best interest, more especially when they are represented before him by counsel or solicitors. The fact that he was not told facts which, had he known them, might have affected his decision to make a consent order cannot of itself be a ground for impeaching the order." Before leaving the case I would wish to make some brief observations on (i) the possibility of a wider principle or jurisdiction being available for setting aside the Court's orders; (ii) whether the Company's unilateral mistake in relation to the 1988 orders induced it to agree to those consent orders; and (iii) the relationship between the Company's claims to set aside or avoid both sets of Court orders. Concerning (i): A wider jurisdiction? Young J in Easyfind at 108 acknowledged the possibility of a wider principle for setting aside Court orders namely that the Court will never permit its own orders to be a source of injustice and Finlay J purported to apply that principle in Lewis v. Combell Constructions Pty Ltd (1989) 18 NSWLR 528. In my judgment the Company has not demonstrated that the Court's 1988 consent orders are a source of injustice to the Company. Notwithstanding my conclusion which proceeds on the assumption that a principle providing a wider jurisdiction to set aside judgments is available, I note with respect the following passage in the recent judgment of the Court of Appeal in Roach v. B & W Steel Pty Ltd (1991) 23 NSWLR 110 at 114 providing a compendious statement of the grounds upon which Equity intervenes to relieve an innocent party of the consequences of misrepresentation, mistake or unconscionability: "Equity granted relief in cases of innocent misrepresentation because it was judged to be unconscionable for the representor to attempt to retain the benefit of a contract obtained however innocently through his misrepresentation once the truth was known. Similarly equity grants relief by way of rescission or rectification in respect of contracts entered into by one party under the influence of a material mistake if the other party "knows or ought to know" of that mistake: see Taylor v. Johnson (1983) 151 CLR 422 at 432-433. Equity judged that it was unconscionable for one party to take advantage of an obvious and material mistake of another. This principle was applied by Finlay J in Lewis v. Combell Constructions Pty Ltd (1989) 18 NSWLR 528 in setting aside a settlement of litigation." In my judgment the Company has not demonstrated that any of these principles should be applied in the present case to avoid or to set aside the 1988 consent orders. Moreover the Company's attempt to avoid or set aside the 1990 consent orders is lacking justification independently of its attempt to avoid or set aside the 1988 consent orders (which justification is simply not available because the Company's agreement to the 1990 Court orders was not affected by any relevant mistake or other basis of unconscionability). In truth the Company's case in relation to the 1990 Court orders (independent of its case in relation to the 1988 Court orders) is no more than a repenting of its decision to agree to the 1990 orders cf R v. Marong Municipal Council; Ex part Filcock (1903) 29 VLR 355 at 364 (cited by Young J in Easyfind at 106): "...If after a party has consented to a judgment he finds that he would have been better off if he had not consented, for all that he will be held to it. The misapprehension which allows a withdrawal by either party from such a consent ought to be something in the nature of a deception by the other party, or a misapprehension as to what the terms of the bargain were; so that he thought they meant one thing when they really meant another, and such misunderstanding was to his disadvantage. The mere fact that he might have been better off if he had known of any particular fact is no answer." Concerning (ii): Did the mistake relevantly induce the Company? Unless there is a presumption that the unilateral mistake induced the Company to agree to the 1988 Court's consent orders (see Easyfind at 108) the Company has not proved that it was relevantly induced to agree to those orders by its mistake. Certainly it is clear that the 1988 Court orders imposed substantial obligations on the Company to reinstate the subject land in areas unrelated to the access along the ROW and any inducement caused by the mistake could not have extended to those unrelated obligations. Concerning (iii): The relationship between the 1988 and 1990 orders. Assuming that the Company had been successful in having the 1988 orders set aside on the basis of operative mistake or on any other ground, I have assumed that it would have likewise been entitled to have the 1990 consent orders set aside on the ground that they were agreed to on the mistaken belief that the Company was bound by the 1988 orders or on the ground that they, being but a variation of the original orders, would not independently survive if the original orders were set aside. E. CONCLUSIONS AND ORDERS For all the foregoing reasons, the Company has not demonstrated any grounds for avoiding or setting aside the Court's 1988 or 1990 consent orders. Accordingly, the application is dismissed with costs. The exhibits may be returned. ----------oOo----------- I HEREBY CERTIFY THAT THIS AND THE PRECEDING 31 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF HIS HONOUR MR. JUSTICE N.R. BIGNOLD. ASSOCIATE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES RECORD OF HEARING ______________________________________________________________ CORAM: Bignold J. NUMBER: 40093 of 1990 MATTER: LOGWON PTY LTD (Applicant) V. WARRINGAH SHIRE COUNCIL (Respondent) KEYWORDS: HEARING DATES: 27, 28/5/91; 26, 27, 28/6/91; Applicant's written submissions - 19/8/91 Respondent's written submissions - 13/9/91 Applicant's written reply - 1/10/91 JUDGMENT: RESERVED JUDGMENT DATE: 30 April 1993 APPEARANCES: Applicant: Mr W. Hodgekiss (Barr) Respondent: Mr M.C. Craig (QC) with Mr D. Wilson (Barr) SOLICITORS: Applicant: Mr D. Balog of Balog D.C. & Associates Respondent: Mr Neil Howie of Wilshire Webb Solicitors DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.