Wharton v Derwent Valley Council [2009] FCA 791

Wharton v Derwent Valley Council [2009] FCA 791

The applicant's forensic decision to abandon his application in 2005 was not induced by fraud, but by his assessment of evidentiary risks. The consent order was not affected by fraud but resulted from Mr Wharton's own litigation decision. There is no new evidence, only greater certainty about evidence that could have been obtained in 2005. Delay and lack of reasonable diligence are additional factors against setting aside the consent order.

Parties
Applicant: Geoffrey Wharton; First Respondent: Derwent Valley Council; Second Respondent: Derwent Valley Investments Pty Ltd (ACN 08 674 8692)
Jurisdiction
Australia
Judgment Date
27 July 2009
Procedural Posture
Motion / Application to Set Aside Consent Order
Outcome
Applicant's motion dismissed with costs.
Legal Topics
Consent Orders, Fraud, Setting Aside Judgments
Civil Procedure Consent Orders Fraud Setting Aside Judgments

Case Brief

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Parties

Geoffrey Wharton

Applicant

Derwent Valley Council

First Respondent

Derwent Valley Investments Pty Ltd (ACN 08 674 8692)

Second Respondent

Procedural Posture

Motion / Application to Set Aside Consent Order

Legal Issues

  1. 1 Whether the consent order made on 6 April 2005 should be set aside for fraud
  2. 2 Whether new evidence supports the claim that the consent order was obtained by fraud

Ratio Decidendi

The applicant's forensic decision to abandon his application in 2005 was not induced by fraud, but by his assessment of evidentiary risks. The consent order was not affected by fraud but resulted from Mr Wharton's own litigation decision. There is no new evidence, only greater certainty about evidence that could have been obtained in 2005. Delay and lack of reasonable diligence are additional factors against setting aside the consent order.

Court Disposition

Applicant's motion dismissed with costs.

Orders

  • The Applicant's motion filed on 29 May 2009 is dismissed.
  • The Applicant pay the Respondents' costs, to be taxed in default of agreement.