Bastian v Travel Air International Pty Ltd and Chandershekar [2011] NSWLC 33

Bastian v Travel Air International Pty Ltd and Chandershekar [2011] NSWLC 33

The applicants had retained Mr Kells to act for them, and the compromise announced to the Court did not involve matters collateral to the cause of action. The respondent and his lawyers did not engage in misconduct or dishonourable conduct and did not know, nor ought they to have known, that the applicants had not properly instructed their solicitor. Mr Kells therefore had ostensible authority to compromise the claim, and any absence of express authority would not render the consent judgment irregular, illegal or against good faith under r 36.15. The motion to set aside the judgment was dismissed.

Jurisdiction
Australia
Judgment Date
14 March 2011
Procedural Posture
Civil Proceedings / Notice of Motion to Set Aside Judgment Under Uniform Civil Procedure Rules, R 36.15
Outcome
Motion to set aside judgment dismissed.
Legal Topics
['setting Aside Judgment' 'consent Judgment' 'irregular Judgment' 'authority of Solicitor to Compromise Proceedings' 'ostensible Authority' 'uniform Civil Procedure Rules, R 36.15' 'costs']
['civil Procedure' 'legal Profession' 'agency'] ['setting Aside Judgment' 'consent Judgment' 'irregular Judgment' 'authority of Solicitor to Compromise Proceedings' 'ostensible Authority' 'uniform Civil Procedure Rules, R 36.15' 'costs']

Case Brief

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Procedural Posture

Civil Proceedings / Notice of Motion to Set Aside Judgment Under Uniform Civil Procedure Rules, R 36.15

Legal Issues

  1. 1 ["Whether the consent judgment was entered irregularly under Uniform Civil Procedure Rules, r 36.15 because the applicants' solicitor allegedly lacked instructions to settle." "Whether the applicants' solicitor had ostensible authority to compromise the proceedings on behalf of the applicants." 'Whether any lack of express authority from the applicants would make the judgment irregular, illegal or against good faith.' 'Whether the respondent should receive costs of the motion.']

Ratio Decidendi

The applicants had retained Mr Kells to act for them, and the compromise announced to the Court did not involve matters collateral to the cause of action. The respondent and his lawyers did not engage in misconduct or dishonourable conduct and did not know, nor ought they to have known, that the applicants had not properly instructed their solicitor. Mr Kells therefore had ostensible authority to compromise the claim, and any absence of express authority would not render the consent judgment irregular, illegal or against good faith under r 36.15. The motion to set aside the judgment was dismissed.

Court Disposition

Motion to set aside judgment dismissed.

Orders

  • ["The applicants/defendants' notice of motion is dismissed." 'Following submissions from the parties, indemnity costs were not ordered and party and party costs were ordered.']