KENDELL v CARNEGIE & ORS [2006] NSWCA 302

Reported Decision : 68 NSWLR 193

New South Wales Court of Appeal

CITATION: KENDELL v CARNEGIE & ORS [2006] NSWCA 302 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 19/09/2006

JUDGMENT DATE: 3 November 2006

JUDGMENT OF: Hodgson JA at 1; McColl JA at 2; Bryson JA at 3

DECISION: 1. The appeal is dismissed with costs; 2. The cross-appeal is dismissed: each party is to pay his or its own costs of the cross-appeal.

CATCHWORDS: CONTRACT - mistake. PRACTICE and PROCEDURE - set aside consent judgment - Appellant, defendant in District Court, applied to District Court to set aside judgment entered against him by consent under agreement with co-defendant (respondent) - claim to set aside based on mistake in course of negotiations with co-defendant - claims to effect that co-defendant was aware of mistake and/or deliberately set out to ensure that appellant did not become aware of mistake or misapprehension - alleged mistake based on accepting as fact a statement made by respondent when giving particulars which was no longer correct at the time of negotations some months later, on a subject which was not mentioned in the negotiations - challenge to District Court finding that there was no deliberate action to conceal the change of circumstances - consideration at length of challenges to findings - consideration of power to set aside judgment given "irregularly, illegally or against good faith" DCR Pt.31 r.12A (cf UCPR 36.15) held there was no error, appeal dismissed with costs.

District Court Rules 1973 (NSW) Part 31 r.12A LEGISLATION CITED: Trade Practices Act 1974 (Cth) s.52 Uniform Civil Procedure Rules 2005 (NSW) r.36.15