ROGERS v WENTWORTH [1988] NSWCA 129

ROGERS v WENTWORTH [1988] NSWCA 129

On its proper construction, the consent order referred to caveat W358508, as that was the only caveat identified by the evidence and affidavit in support of the application, and both parties as well as the Court understood this to be the caveat the proceedings related to. The penalty provision is not enforceable, as the order has been complied with, or would be set aside for mistake if not.

Parties
Claimant: Gordon John Rogers; Opponent/respondent: Kate Wentworth; Former Solicitor for Claimant: Henry Davis York; Solicitor for Claimant: Phillips Fox
Jurisdiction
Australia
Judgment Date
18 April 1988
Procedural Posture
Civil / Appeal
Outcome
Declaration granted in favour of claimant clarifying the caveat referred to in order 3; opponent's application to strike out claimant's summons dismissed; claimant awarded costs.
Legal Topics
Caveats, Consent Orders, Mistake, Construction of Court Orders
Property Law Civil Procedure Caveats Consent Orders Mistake Construction of Court Orders

Case Brief

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Parties

Gordon John Rogers

Claimant

Kate Wentworth

Opponent/respondent

Henry Davis York

Former Solicitor for Claimant

Phillips Fox

Solicitor for Claimant

Procedural Posture

Civil / Appeal

Legal Issues

  1. 1 What is the correct construction of order for removal of caveat made by consent?
  2. 2 Does the common mistake of parties as to the identity of the caveat affect the validity or operation of the consent orders?
  3. 3 Is the penalty for late removal ($2,000 per day) enforceable given the circumstances?

Ratio Decidendi

On its proper construction, the consent order referred to caveat W358508, as that was the only caveat identified by the evidence and affidavit in support of the application, and both parties as well as the Court understood this to be the caveat the proceedings related to. The penalty provision is not enforceable, as the order has been complied with, or would be set aside for mistake if not.

Court Disposition

Declaration granted in favour of claimant clarifying the caveat referred to in order 3; opponent's application to strike out claimant's summons dismissed; claimant awarded costs.

Orders

  • Declaration made that on the true construction of order 3 the caveat referred to was W358508 lodged by Henry Davis York on 29 May 1986.
  • Opponent to pay claimant's costs of the proceedings including any reserved costs.