Bird v Cannington [2012] NSWSC 789

Bird v Cannington [2012] NSWSC 789

The plaintiff failed to prove that the consent costs orders were procured by Mr Cannington against good faith or by misrepresentation, non-disclosure or unilateral mistake. There was no evidence as to how the consent costs orders were procured, no evidence explaining why the plaintiff proposed or agreed to them, no demonstrated linkage between the alleged non-disclosure or misrepresentation by silence and the orders made on discontinuance, and no identified pertinent mistake. There was also no basis for an order under Civil Procedure Act 2005 s 98 against Warrick and Rodney because there was no evidence they knew of the Preliminary Discovery Proceedings, the discontinuance or the...

Jurisdiction
Australia
Judgment Date
10 July 2012
Procedural Posture
Notice of Motion in Preliminary Discovery Proceedings Concerning Costs / Application to Set Aside Consent Costs Orders and for Costs Orders Against the First Defendant and Third Parties
Outcome
Plaintiff's application dismissed; plaintiff to pay the defendants' costs on the usual basis.
Legal Topics
['setting Aside Judgments and Orders' 'orders Obtained Against Good Faith' 'consent Orders' 'misrepresentation by Silence and Non Disclosure' 'unilateral Mistake' 'costs Against Non Parties' 'preliminary Discovery']
['civil Procedure' 'costs'] ['setting Aside Judgments and Orders' 'orders Obtained Against Good Faith' 'consent Orders' 'misrepresentation by Silence and Non Disclosure' 'unilateral Mistake' 'costs Against Non Parties' 'preliminary Discovery']

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Procedural Posture

Notice of Motion in Preliminary Discovery Proceedings Concerning Costs / Application to Set Aside Consent Costs Orders and for Costs Orders Against the First Defendant and Third Parties

Legal Issues

  1. 1 ['Whether the consent costs orders made on discontinuance of the Preliminary Discovery Proceedings should be set aside under Uniform Civil Procedure Rules 2005 r 36.15 as orders obtained against good faith.' "Whether the consent costs orders could be set aside under the Court's inherent power on the basis of misrepresentation, non-disclosure or unilateral mistake." 'Whether Herbert James Cannington procured the consent costs orders by misconduct or dishonourable conduct.' "Whether Warrick Lindsay Bird and Rodney David Bird could be ordered under Civil Procedure Act 2005 s 98 to pay Deborah Michelle Bird's costs of the Preliminary Discovery Proceedings."]

Ratio Decidendi

The plaintiff failed to prove that the consent costs orders were procured by Mr Cannington against good faith or by misrepresentation, non-disclosure or unilateral mistake. There was no evidence as to how the consent costs orders were procured, no evidence explaining why the plaintiff proposed or agreed to them, no demonstrated linkage between the alleged non-disclosure or misrepresentation by silence and the orders made on discontinuance, and no identified pertinent mistake. There was also no basis for an order under Civil Procedure Act 2005 s 98 against Warrick and Rodney because there was no evidence they knew of the Preliminary Discovery Proceedings, the discontinuance or the...

Court Disposition

Plaintiff's application dismissed; plaintiff to pay the defendants' costs on the usual basis.

Orders

  • ["Plaintiff's application dismissed." "Plaintiff to pay the defendants' costs on the usual basis."]