Bird v Cannington [2012] NSWSC 789

Supreme Court New South Wales

Medium Neutral Citation: Bird v Cannington [2012] NSWSC 789 Hearing dates: 27 June 2012 Decision date: 10 July 2012 Jurisdiction: Equity Division Before: Rein J Decision: 1. Plaintiff's application dismissed. 2. Plaintiff to pay the defendants' costs on the usual basis. Catchwords: PROCEDURE - judgments and orders - setting aside - where plaintiff claims that orders were obtained against good faith - where plaintiff seeks to set aside orders on basis of non-disclosure or misrepresentation by silence - no evidence that orders were obtained by misconduct or dishonourable conduct - no misconduct established and no linkage established between alleged non-disclosure or misrepresentation by silence and procurement of the orders - no evidence of mistake in relation to the orders made by consent on the discontinuance of preliminary discovery proceedings

PROCEDURE - order for costs against third parties - where there had been no hearing on the merits, a discontinuance filed and agreement that each party bear their own costs - where there is no evidence that the third parties knew of the proceedings, the discontinuance or agreement on costs - no basis for costs order against the third parties Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Cases Cited: Bird v Bird (No 4) [2012] NSWSC 646 Bird v Bird (No 5) [2012] NSWSC 734 Cash v Wells (1830) 1 B & Ad 374; (1830) 109 ER 826 CG Maloney Pty Ltd v Noon [2011] NSWCA 397 Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2010) 75 NSWLR 245 Coles v Burke (1987) 10 NSWLR 429 Connectland Pty Ltd v Cardno Forbes Rigby Pty Ltd [2011] NSWCA 391 FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340 Harvey v Phillips (1956) 95 CLR 235 Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd; Jeffery & Katauskas Pty Ltd v Rickard Constructions Pty Ltd (subject to Deed of Company Arrangement) [2009] HCA 43; (2009) 239 CLR 75 Kendall v Carnegie [2006] NSWCA 302; (2006) 68 NSWLR 193 Knight v FP Special Assets Ltd (1992) 174 CLR 178 Land Enviro Corp Pty Limited v HTT Huntley Heritage Pty Limited [2012] NSWSC 382 May v Christodoulou [2011] NSWCA 75 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 Roach v B & W Steel Pty Ltd (1991) 23 NSWLR 110 Shirriff v Nominal Defendant [1999] NSWCA 152 Silvera v Savic [1999] NSWSC 83; (1999) 46 NSWLR 124 Singh v Ginelle Pty Ltd [2010] NSWCA 310 Teoh v Hunters Hill Council (No 5) [2012] NSWCA 75 Texts Cited: LexisNexis, Ritchie's Uniform Civil Procedure NSW, Vol 1 (at Service 67) Category: Consequential orders Parties: Deborah Michelle Bird (Plaintiff) Herbert James Cannington (First defendant) Warrick Lindsay Bird and Rodney David Bird (Third parties) Representation: Counsel: J S Drummond (Plaintiff) C Champion (First defendant) D E Grieve QC and M K Condon (Third parties) Solicitors: Wilson & Co Lawyers (Plaintiff) Middletons (First defendant) Hills Solicitors (Third parties) File Number(s): SC 2005/262269