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[1988] NSWCA 129
Court of Appeal (NSW)
1988-04-18
Hope JA, Maxwell J
Original judgment source is linked above.
For the reasons which I have given, I am of opinion that the compromise and the orders related to the second caveat and that therefore Mr Rogers did what he was obliged to do. If that conclusion be wrong, this is, in my opinion, a case in which the court would clearly set aside the order because of the parties' mistake and, insofar as that be necessary, because of Ms Wentworth's contribution to it.
Ms Wentworth, in her submissions, has suggested that Mr Rogers was in default in initially refusing to consent to the withdrawal of the caveat and the other relief sought by her without the necessity of an application to the court; that his solicitors acted, in discussing that matter with her, in an unwarranted manner; that they were in default in not themselves discovering that the caveat she asked to be withdrawn was the wrong caveat; and that they delayed too long discovering and remedying the common error. She has urged these and other matters as reasons why the court should not give the present relief.
I do not accept the general thrust of these suggestions. Different accounts of events have been given and the court has had the benefit of the evidence, affidavit and oral, of the parties concerned. I accept that Mr Reardon, Miss Tallis and Mr Oldfield were endeavouring to give a truthful and accurate account of what took place. If and insofar as Ms Wentworth suggested the contrary, those suggestions should not, in my opinion, be accepted. There are discrepancies in the accounts given by Ms Wentworth and by the witnesses for Mr Rogers. I do not think that such discrepancies lead to the conclusion that the witnesses were seeking to give other than a true and accurate account of what took place.
In not accepting what emerges from Ms Wentworth's case in this regard, I do not find that she has deliberately sought to mislead the court. Most, if not all, of the suggested discrepancies are, I think, marginal to the real issues in this case.
However this be, matters which Ms Wentworth has urged in this regard are, clearly not sufficient to warrant the court refusing the relief sought by Mr Rogers. They are, in my opinion, plainly irrelevant to the central issue, the construction of the obligations undertaken by Mr Rogers. And, if established, they would not warrant refusal of the relief sought.
Ihave dealt with the evidence and the contentions in this proceeding at a length which is, perhaps, more than is warranted by them. But in the light of the conclusions which I have expressed, it is proper to record a further observation. This application by Mr Rogers has been brought because of Ms Wentworth's claim that the court should enforce the relevant orders made on 6 May 1987 and should require Mr Rogers to pay the $2,000 per day penalty there provided. As
I have said, the mutual mistake and the nature of it have been plain to demonstration. This being so, it is equally plain that, in the circumstances of this case, that penalty would not be enforced: either the order was complied with or, if it was not, it would be set aside for mistake.
Notwithstanding this, a great deal of public and private time and money has been expended dealing with Ms Wentworth's claim and the consequences of it. A party is entitled to pursue his or her sense of grievance in the Courts and to act personally in it. But there are limits to what may be done.
In my opinion, the claim by Ms Wentworth for $2,000 per day had no reasonable prospect of success and should be disposed of. What is now before the Court is an application by Mr. Rogers in respect of that claim. In respect of that application, I agree with the orders proposed by Hope JA.
A declaration is made that on the true construction of order 3 of the orders made on 6 May 1987 the caveat referred to in that order was caveat W358508 lodged by Henry Davis York on 29 May 1986. It is not necessary to deal with the other orders sought in the amended summons, save as to costs. The opponent is to pay the claimant's costs of the proceedings, including any reserved costs. The opponent's application to strike out the claimant's summons is dismissed with costs.
ROGERS
WENTWORTH
"A consent order must.....be construed in the light of any admissible evidence of surrounding circumstances, but without direct evidence of the parties' intention": General Accident Fire and Life Assurance Corporation Limited v Inland Revenue Commissioners (1963) 1 WLR 421 at 430 per Plowman J; affirmed [1963] 1 WLR 1207. In In re Frackelton v McQueen; In re a Solicitor [1910] QSR 1 at 6,7, Chubb J said:-
In arriving at the conclusions which I have expressed, I am conscious of the distinction sometimes drawn in relation to that which the parties intended between mistakes as to the existence of the subject matter of their agreement and statements made by way of, eg, description of that subject matter: see, for example, McRae v Commonwealth Disposals Commission (84 CLR 377); Bell v Lever Bros Ltd [1932] AC 161 at 218. But I do not think that that distinction
(1956) 95 CLR 235
(1909) 10 CLR 522
(1985) 2 NSWLR 729