Kendell v Carnegie & Ors

(2006) 68 NSWLR 193; [2006] NSWCA 302

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Practice and Procedure
2. › Judgments and orders
3. › Setting aside consent judgment
4. › Judgment given 'against good faith'
5. › Whether failure to disclose change of circumstances constituted lack of good faith
6. › Whether consent to judgment carries implied representation of ability to satisfy it
7. › District Court Rules 1973 (NSW), Pt 31 r 12A
1. Contract
2. › Mistake
3. › Unilateral mistake
4. › Whether consent judgment vitiated by mistake
5. › Whether other party aware of mistake
6. › Whether other party deliberately concealed change of circumstances
7. › Relationship between equitable rescission for mistake and statutory power to set aside judgment
1. Contract
2. › Misrepresentation
3. › Change of circumstances after representation
4. › Whether pre-negotiation factual statement created continuing obligation to correct
5. › Whether representation made in course of negotiations
6. › With v O'Flanagan [1936] Ch 575 distinguished

Quick Take

The 'against good faith' ground for setting aside a consent judgment under DCR Pt 31 r 12A (now UCPR r 36.15) requires impeachment of the intention or behaviour of the person whose good faith is impugned, and is not to be equated with the equitable test for rescission of contracts for mistake stated in Taylor v Johnson. A pre-negotiation factual statement does not create a continuing obligation to correct if it was not made in the course of settlement negotiations. Consenting to judgment does not carry an implied representation that the judgment can be satisfied.