KENDELL v CARNEGIE & ORS [2006] NSWCA 302

KENDELL v CARNEGIE & ORS [2006] NSWCA 302

Although the District Court judge misdirected himself by treating the passage from Taylor v Johnson as the governing test, the appeal failed because the consent judgment was not shown to have been entered up against good faith. The April 2002 statement that AVE held the franchise was not made in settlement negotiations, was true when made, and was not shown to have continuing effect or significance for the later Terms of Settlement. There was no reasonable basis to find that the Carnegie interests knew or ought to have known of Mr Kendell's alleged mistake, deliberately concealed it, or represented by consenting to judgment that AVE could satisfy the judgment.

Jurisdiction
Australia
Judgment Date
03 November 2006
Procedural Posture
Appeal by Leave From District Court Orders Dismissing a Notice of Motion to Set Aside Consent Judgment / Court of Appeal
Outcome
Appeal dismissed with costs; cross-appeal dismissed with each party to pay his or its own costs of the cross-appeal.
Legal Topics
['mistake' 'setting Aside Consent Judgment' 'good Faith Under District Court Rules Pt 31 R 12 A' 'misrepresentation' 'settlement Agreements']
['contract' 'practice and Procedure'] ['mistake' 'setting Aside Consent Judgment' 'good Faith Under District Court Rules Pt 31 R 12 A' 'misrepresentation' 'settlement Agreements']

Case Brief

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Procedural Posture

Appeal by Leave From District Court Orders Dismissing a Notice of Motion to Set Aside Consent Judgment / Court of Appeal

Legal Issues

  1. 1 ['Whether the District Court consent judgment was given or entered up against good faith within Part 31 r.12A of the District Court Rules 1973 (NSW).' "Whether Mr Carnegie and associated interests deliberately ensured that Mr Kendell did not become aware of an alleged mistake or misapprehension about AVE's ownership of the Kwik Kopy business." "Whether the Carnegie interests knew or ought to have known of Mr Kendell's alleged mistake and unconscionably failed to inform him." 'Whether entering into the Terms of Settlement impliedly represented that AVE could satisfy the consent judgment.']

Ratio Decidendi

Although the District Court judge misdirected himself by treating the passage from Taylor v Johnson as the governing test, the appeal failed because the consent judgment was not shown to have been entered up against good faith. The April 2002 statement that AVE held the franchise was not made in settlement negotiations, was true when made, and was not shown to have continuing effect or significance for the later Terms of Settlement. There was no reasonable basis to find that the Carnegie interests knew or ought to have known of Mr Kendell's alleged mistake, deliberately concealed it, or represented by consenting to judgment that AVE could satisfy the judgment.

Court Disposition

Appeal dismissed with costs; cross-appeal dismissed with each party to pay his or its own costs of the cross-appeal.

Orders

  • ['The appeal is dismissed with costs.' 'The cross-appeal is dismissed: each party is to pay his or its own costs of the cross-appeal.']