Young v King

1. [1]

   BASTEN JA: Twenty years ago the applicant, Margo Young, and the respondents, Brendan and Kristina King, were neighbours at Calca Crescent, Forestville. The applicant’s property was uphill from the respondents’ and, by virtue of the natural lie of the land, discharged rainwater onto the respondents’ property.

2. [2]

   In 2002-2003, the respondents commenced building works at the rear of their house, lowering the level of a pathway beside their house along the boundary with the applicant’s land. This required the construction of a retaining wall and also a mechanism for dealing with the flow of water.

3. [3]

   The footings of the retaining wall were completed but the work went no further, because the applicant objected. Her objections were not resolved amicably and she commenced proceedings in the Land and Environment Court. Those proceedings resulted in orders made by the Chief Judge, McClellan CJ on 27 February 2004. Those orders were made by consent, except as to costs, an issue resolved in favour of Ms Young on the basis that, although her proceedings were dismissed, there was an undertaking given by the respondents which, in substance, involved a capitulation by them. She therefore obtained an order for her costs.

4. [4]

   Both parties had solicitors and counsel acting for them and each had instructed experts on various aspects of the dispute. At a conclave prior to a scheduled hearing of the matter in the Land and Environment Court, the experts were asked to resolve three questions, one of which was, “What is to be done?” The undertaking given by the respondents was derived from the answers given by the experts in the conclave.

5. [5]

   There were three elements to the agreement. The first was that, if the respondents were to continue their proposed work, including the lowered pathway, and the retaining wall, they required development consent. The second was that the construction of the retaining wall required a mechanism for disposal of the natural flow of water. The third element was that, if the retaining wall were not porous and were built on the boundary, drainage would need to be installed on the applicant’s side of the boundary. The last element self-evidently required the consent of the applicant.

6. [6]

   The undertaking was in the following terms:

7. [7]

   The words struck through were in the original text of the undertaking, but not in the form presented to the Court; they were reinserted at the request of the applicant and approved by the Court at a subsequent hearing in March 2004.

8. [8]

   The respondents prepared a development application which included the insertion of a drainage pipe on the applicant’s land, running along the length of the retaining wall. The applicant objected to the work being done on her land and successfully opposed the application when it was presented to Council. Part of her objection appears to have been that the drainage was originally effected by a rubble drain on the respondents’ land which allowed the water to flow into a rubble pit at the rear of the respondents’ land, and at a point farthest from the applicant’s land (presumably being the lowest point on the respondents’ land). The applicant complained that the proposed drainage pipe did not go anywhere.

9. [9]

   Over the ensuing years, the applicant became dissatisfied with the lawyers who had acted for her in the Land and Environment Court proceedings and with the experts instructed on her behalf. Further, and relevantly for the present proceedings, she sought, by notice of motion, to have the consent orders made on 27 February 2004 set aside. For that purpose, she sought to rely upon Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 36.15, which states:

10. [10]

    It is not in doubt that the powers conferred by that rule apply in the Land and Environment Court. [1] The only issue was as to the basis upon which that rule will allow consent orders to be varied or set aside. The short answer to that question is that, consent orders being founded on an agreement between the parties, will only be set aside in circumstances where the agreement itself is void or voidable, so that the legal support for the orders is removed.

11. [11]

    In 2012, the applicant’s notice of motion, originally filed in 2008, came before Sheahan J. (It is not necessary to inquire why that process took four years.) Sheahan J dismissed the motion on the basis that the Land and Environment Court had no power to set aside its own orders finally disposing of proceedings and that the applicant should have invoked the supervisory jurisdiction of the Supreme Court. Sheahan J also summarily rejected the allegations of fraud made by the applicant, without considering the evidence she sought to adduce in support of those allegations.

12. [12]

    The application for leave to appeal was disposed of by consent, the respondents conceding that the Land and Environment Court had power to consider the application to set aside the consent orders and, that being so, should have considered the evidence proffered by the applicant in support of her application.

Proceedings in supervisory jurisdiction

1. [13]

   That left a question as to the fate of the proceedings in the original jurisdiction of the Supreme Court, brought under s 69 of the Supreme Court Act 1970 (NSW). On one view, those proceedings should have been dismissed as otiose. They were commenced, presumably, as a defensive measure against the possibility that Sheahan J had been correct to hold that only the Supreme Court had power to overturn entered orders made in the Land and Environment Court. (Even in that event, the proceedings were probably misconceived: if the basis for setting aside the orders was founded on fraud, the proper course would have been to bring separate proceedings alleging fraud.) The applicant submitted that the effect of a transfer of the proceedings under s 69 of the Supreme Court Act to the Land and Environment Court was to invest that Court with the jurisdiction otherwise possessed by this Court alone.

2. [14]

   The transfer power, as between the Supreme Court and the Land and Environment Court is to be found in s 149B of the Civil Procedure Act 2005 (NSW) which reads as follows:

3. [15]

   There are significant issues as to when it is “more appropriate” for the proceedings to be heard in the other court. Two factors to be considered are the nature of the proceedings and the relief sought. Unlike s 44 of the Judiciary Act 1903 (Cth), which provides for the High Court to remit a matter to another court “that has jurisdiction with respect to the subject-matter and the parties”, the Civil Procedure Act, s 149E expressly confers on the transferee court the jurisdiction of the transferor court:

4. [16]

   It does not follow, however, that it is appropriate to transfer to the Land and Environment Court proceedings brought under s 69 of the Supreme Court Act seeking relief in the nature of a prerogative writ, setting aside a decision of a judge of the Land and Environment Court. Thus, in Re Jarman; Ex parte Cook, [2] in considering whether to remit to the Industrial Relations Court an application for mandamus directed to that Court, Brennan CJ stated in uncompromising terms: [3]

5. [17]

   Brennan CJ then referred to the observations of Isaacs J in The King v Murray and Cormie; Ex parte The Commonwealth, [5] that “the inherent nature of prohibition or mandamus requires that the officer must be someone not a member of the tribunal to which the application is made, or superior to it”. As was the case with respect to the jurisdiction of the Industrial Relations Court in Jarman, the Land and Environment Court has no appellate jurisdiction with respect to a decision of one of its judicial members.

6. [18]

   Regardless of the scope and effect of s 149E, it was not “appropriate” to transfer the s 69 proceedings to the Land and Environment Court, whether by consent or not. Similarly, it would not be “appropriate” to transfer to that Court an appeal from a judgment of that Court pending in this Court. There does not appear to be any other case in which a summons invoking relief under s 69 of the Supreme Court Act has been transferred to the very court whose orders are the subject of the relief sought.

7. [19]

   It is not necessary to determine the effect of the transfer of the proceedings, which was made pursuant to orders entered by consent for the purpose of ensuring that all issues in dispute were resolved in the Land and Environment Court. There was no submission in this Court that there was some ground upon which relief could be granted in the supervisory jurisdiction which was not available under the UCPR, r 36.15. The appropriate course in these circumstances is to dismiss the appeal from the order of the Land and Environment Court which dismissed the summons transferred from this Court, seeking relief in the supervisory jurisdiction of this Court.

Apprehended bias

1. [20]

   The formulation of ground 10, relating to apprehended bias, led the respondents to believe that the ground was restricted to providing support for an order that, should the matter be remitted to the Land and Environment Court, it should be remitted to a judge other than the former trial judge. However, in the course of oral submissions, counsel for Ms Young put the matter on a broader basis. Whilst conceding there had been no recusal application, counsel explained that the apprehension of “a prejudgment” only arose because in handing down judgment in Young v King (No 9), “he indicated a prejudgment by being dismissive of the applicant’s claim and indicated by the terms of his judgment that he’d already decided the matter and he wasn’t going to consider the evidence, but there was more evidence that might have been considered if he had allowed it in on the question of costs applications against the third parties, and there were very detailed submissions, none of which were considered.” [6] Further, reliance was placed on a decision known as Young v King (No 10) handed down a few weeks before the hearing of the appeal, in terms which were described as “even more dismissive”. [7]

2. [21]

   As explained in Michael Wilson & Partners Ltd v Nicholls [8] an apprehension of bias is forward looking and asks “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.” [9] That test is objective and therefore distinct from any inquiry about actual bias, which would require “an assessment of the state of mind of the judge in question.” [10] As the reasoning continued, an inquiry based on the content of the judgment delivered may be a mechanism for identifying actual bias, but not for judging a reasonable apprehension of bias.

3. [22]

   Even assuming that the applicant sought to establish actual bias, the material relied on was self-evidently inadequate for the purpose. Furthermore, such an allegation should not be used to conceal the weakness of a more precise analysis of a specific failing of procedure or error in the judgment. Thus, the submission noted above suggested “prejudgment” in failing to allow evidence to be called. That approach is likely to divert attention from an analysis of the evidence which was tendered, the basis on which it was tendered and the reason for its rejection.

4. [23]

   Further, the submission revealed an example of that against which Mason CJ warned in Re JRL; Ex parte CJL, [11] namely that “[i]t needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.” There is nothing necessarily indicative of prejudgment in giving reasons which appear to the reader to be “dismissive”. A court is entitled to give reasons which are brief, even dismissive, in rejecting an argument which is untenable or carries no weight.

5. [24]

   There was no support for the allegation of bias in the written submissions; the arguments identified above in oral submissions rose no higher than the passage already identified. The ground must be rejected.

Other grounds

1. [25]

   With respect to the remaining grounds of appeal, the background circumstances and the submissions have been comprehensively addressed by Emmett AJA and I agree both with his reasons and his conclusions. I also agree with the orders proposed by Emmett AJA.

2. [26]

   GLEESON JA: I agree with the orders proposed by Emmett AJA for the reasons that his Honour gives. I also agree with the additional reasons of Basten JA for (a) concluding that the transfer of the s 69 judicial review proceedings from this Court to the Land and Environment Court was inappropriate; and (b) rejecting the applicants’ complaint of reasonable apprehension of bias.

3. [27]

   EMMETT AJA:

Introduction

1. [28]

   These four proceedings all arise out of attempts made by Mrs Margo Young to have orders made on 19 February 2004 by the Land and Environment Court (the L&E Court) set aside. The orders were made in proceedings 2003/40417 in the L&E Court (the Original Proceedings), which were brought by Mrs Young against Mr Brendan King and Mrs Kristina King. Mrs Young is the owner of a property known as 35 Calca Crescent, Forestville (the Young property) and the Original Proceedings arose out of drainage problems experienced by Mrs Young in relation to the adjacent property known as 37 Calca Crescent, Forestville (the King property), which is owned by Mr and Mrs King.

2. [29]

   The King property is lower than the Young property, such that the natural flow of water is from the Young property to the King property. The Young property slopes to the rear from Calca Crescent, such that the natural flow of water is from Calca Crescent to the rear of the King property. The rear boundary of the King property is a common boundary with properties that have a frontage to Starkey Street, Forestville.

3. [30]

   In 2002, Mr and Mrs King carried out work on the King property. The work involved excavation on the boundary between the King property and the Young property that disturbed the land between the two houses. On 14 April 2003, Mrs Young commenced the Original Proceedings, alleging that Mr and Mrs King had carried out or permitted to be carried out various unlawful works on the King property, including the construction of a footing, construction of a retaining wall and underpinning of existing footings to their dwelling house. Allegations were made concerning the legal status of decisions made by Warringah Shire Council (the Council), which had given consent to certain works on the King property in February 2002. However, the Council was not joined as a party.

4. [31]

   The Original Proceedings progressed through the L&E Court and were fixed for hearing on 16 February 2004 before McClellan CJ. On that day, after an opening by counsel for Mrs Young and a position statement by Mr Stephen Griffiths, the solicitor for Mr and Mrs King, the parties undertook negotiations that led to the resolution of their dispute, except in relation to the costs of the Original Proceedings (the Settlement Agreement). Because the parties could not agree on costs, it was necessary for McClellan CJ to receive and consider the evidence to the extent that it related to the appropriate order for costs.

5. [32]

   The Settlement Agreement entailed the giving of an undertaking by Mr and Mrs King to the L&E Court to carry out certain works on the King property, in consideration for which Mrs Young agreed to the dismissal of the Original Proceedings. McClellan CJ was satisfied that the works that Mr and Mrs King had agreed to undertake were made necessary by reason of the construction of the retaining wall, which Mr and Mrs King conceded had been constructed without consent. His Honour accepted that the retaining wall operated to interrupt the flow of subsurface water and, accordingly, unless adequately drained, certain problems identified by one of the experts who gave evidence were likely to occur. His Honour therefore concluded that Mrs Young had succeeded in the Original Proceedings and that Mr and Mrs King should pay Mrs Young’s costs.

6. [33]

   Accordingly, on 19 February 2004, for reasons given on that day, [12] McClellan CJ noted the undertaking given to the L&E Court on behalf of Mr and Mrs King, ordered that the Original Proceedings be dismissed and ordered Mr and Mrs King to pay Mrs Young’s costs. His Honour reserved liberty generally for any party to apply. In due course, Mr and Mrs King paid Mrs Young’s costs in accordance with that order.

7. [34]

   On 8 March 2004, on Mr and Mrs King’s motion, but with Mrs Young's consent, the undertaking given on behalf of Mr and Mrs King was varied. The undertaking, as varied, was to:

8. [35]

   Accordingly, Mr and Mrs King lodged a development application with the Council, seeking approval of the works identified in Exhibit A. There appears to have been a contention that the works contemplated by Exhibit A involved some work on the Young property, and Mrs Young declined to give her consent for work to be done on the Young property. As a result the development application was refused and the work that Exhibit A required has not been carried out.

9. [36]

   On 23 May 2008, Mrs Young filed a notice of motion in the L&E Court (the 2008 Motion) seeking:

10. [37]

    Mrs Young relied on the provisions of Uniform Civil Procedure Rules 2005 (NSW), r 36.15 (UCPR). UCPR, r 36.15 relevantly provides that a judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

11. [38]

    In the course of case management of the 2008 Motion, a judge of the L&E Court (the primary judge) directed Mrs Young to set out in an “executive summary” the essence of her case in relation to the 2008 Motion. In response, Mrs Young stated her case in terms to the following effect:

    1. (1)

       Mr and Mrs King purchased the King property with the intention of illegally constructing a granny flat under their house.

    2. (2)

       They deliberately undertook the work without Council approval for the purpose of constructing a granny flat and removing subdivision drainage.

    3. (3)

       Their plan was to shift the drainage burden resulting from the illegal works and removal of a sub-division drainage system to the Young property which would require Mrs Young to construct a drain to Starkey Street and to obtain an easement for that purpose at tremendous expense.

    4. (4)

       Mr and Mrs King colluded with the Council from an early stage (beginning in 2001) resulting in Mrs Young’s complaints being ignored and the Young property being left unsupported.

    5. (5)

       Mr and Mrs King destroyed evidence of an antecedent sub-division drainage system and fabricated evidence of build-up of fill on the Young property. The intention to fabricate that evidence is part of their logic in undertaking the works initially without an approval.

    6. (6)

       Mr and Mrs King could not drain the King property following the illegal works so they colluded with the Council in a plan to assert that the sub-division drainage system worked such that the Young property was burdened with drainage for the benefit of the King property.

    7. (7)

       Mr and Mrs King sought to get Mrs Young to give consent in respect of the Young property for the purposes of a development application approval to build a fence, which application would have given the Council the power to investigate and find that Mrs Young had to construct a drain on the Young property.

    8. (8)

       The Council granted Consent 1382 (the Consent), which was improper on numerous grounds and was invalid.

    9. (9)

       The Council framed the Consent with a view to later giving a building certificate when circumstances could be contrived so that suitable drainage could be placed on the King property.

    10. (10)

        Mrs Young consulted solicitors with a view to obtaining support for the Young property.

    11. (11)

        The solicitors failed to join the Council and generally conducted the proceedings in the interests of the Council, which by now was committed to orchestrating a drainage system on the Young property.

    12. (12)

        In particular, the solicitors contrived to manage the issues in the case so that the removal of sub-division drainage by Mr and Mrs King and its impact was air-brushed out of consideration during the Original Proceedings.

    13. (13)

        Mr and Mrs King knew what the solicitors were doing and the purport of their agenda and, accordingly knew that Mrs Young was not obtaining proper advice, was obtaining and largely dependent on improvident advice and was accordingly in a position of special disadvantage.

    14. (14)

        The case came to Court in February 2004 without Mr and Mrs King proposing any plan to deal with the consequences of their excavation and without Mrs Young’s solicitors having enquired as to the existence of an outlet on the King property.

    15. (15)

        The solicitors settled the matter without instructions by and without consultation with Mrs Young on the basis of an undertaking by Mr and Mrs King to lodge a development application for a retaining wall (for which they already had consent).

    16. (16)

        The settlement was justified by reference to the work of a conclave of experts which produced Exhibit A.

    17. (17)

        Exhibit A proposed a very limited set of works and in particular the lowering of a 65 mm drain to the footing zone of a partially built retaining wall approximately on the boundary.

    18. (18)

        The Exhibit A works could not ever have been implemented and there was no bona fide intention of implementing them.

    19. (19)

        The settlement required the lodgement of a development application but suspiciously permitted Mr King to deny that he was responsible for the excavation and therefore for the drainage.

    20. (20)

        Mrs Young’s lawyers, the Council and Mr and Mrs King all understood that the footing that was subject of the undertaking would be demolished immediately following the trial and expected the Council to find an alternative system on the Young property based on the manner in which the matter had settled and the need in the circumstances to drain the land.

    21. (21)

        For the purposes of the development application, plans were put forward by Mr and Mrs King which contained contrived ambiguities to make Mrs Young think that the undertaking was being complied with when it was being undermined by a proposal for demolition of the footing on which the undertaking was based.

    22. (22)

        The Council and Mrs Young’s lawyer colluded to conceal from Mrs Young the purport of the drawings.

    23. (23)

        The removal of the footing, on which the undertaking was predicated, was a concomitant of the placement of a drain on the King property so that the removal was predicated upon the assumed insinuation of a drain on the Young property.

    24. (24)

        Considerable efforts were made to obtain Mrs Young’s consent to an amended development application involving the Young property in order to empower the Council to investigate the Young property but in the event that was not obtained.

12. [39]

    On 19 October 2012, for reasons published on that day, [13] the primary judge ordered that the 2008 Motion, as finally formulated, be dismissed and reserved the question of costs (the 2012 Orders). His Honour considered that Mrs Young should have sought relief in the nature of prerogative writ relief in the Supreme Court, rather than by way of application to the L&E Court. The decision was based solely upon the oral opening on behalf of Mrs Young.

13. [40]

    Mrs Young applied to this Court for leave to appeal from the 2012 Orders and, on 22 August 2013, the Court granted Mrs Young leave to appeal. In their written submissions, Mr and Mrs King conceded that the primary judge had erred in concluding that the L&E Court did not have implied jurisdiction to set aside a final order made by it. They also conceded that his Honour erred in summarily dismissing the 2008 Motion in the way that he did. Accordingly, on 31 October 2013, this Court allowed the appeal by consent and ordered that the 2008 Motion be remitted to the L&E Court for redetermination. [14]

14. [41]

    In the meantime, Mrs Young had also commenced fresh proceedings in the Common Law Division of the Supreme Court (the Judicial Review Proceedings) seeking relief under s 69 of the Supreme Court Act 1970 (NSW) in relation to the Original Orders. The Judicial Review Proceedings were referred to the Court of Appeal.

15. [42]

    Section 149B(2) of the Civil Procedure Act 2005 relevantly provides that, if the Supreme Court is satisfied, in relation to proceedings before it, that if there are related proceedings pending in the L&E Court and it is more appropriate for the proceedings to be heard together with the related proceedings in the L&E Court, the Supreme Court may order that the proceedings be transferred to the L&E Court and heard together with the related proceedings. Under s 149E, the L&E Court has, and may exercise, all of the jurisdiction of the Supreme Court in relation to any proceedings to which a transfer order under s 149B relates, including jurisdiction to determine any question arising in any such proceedings.

16. [43]

    On 5 November 2013, the Court of Appeal ordered that the Judicial Review Proceedings be transferred to the L&E Court pursuant to s 149B(2) and that the Judicial Review Proceedings and the 2008 Motion be heard and determined by the primary judge concurrently. This Court also ordered that the costs of the Judicial Review Proceedings up to and including the date of transfer be reserved, to be determined by the L&E Court.

Subsequent Proceedings before the Primary Judge

1. [44]

   On transfer of the Judicial Review Proceedings to the L&E Court, they became proceedings 2014/40449 in the L&E Court and Mrs Young filed a summons in those proceedings, by which she sought a declaration that the Settlement Agreement was void or, in the alternative, an order avoiding the Settlement Agreement, together with an order that the Original Orders be set aside and that the Original Proceedings be restored to the list.

2. [45]

   On 23 June 2014, Mrs Young filed a statement of claim in the Judicial Review Proceedings. On the same day she filed a document titled “Further Amended Grounds of Application”. While that document was filed in the Judicial Review Proceedings, it was clearly intended to be filed in the Original Proceedings in aid of the 2008 Motion. The allegations in the two pleadings were substantially identical, but the former contains additional particulars detailing allegations of uncertainty, mistake and lack of jurisdiction.

3. [46]

   In both the statement of claim and the further amended grounds of application, Mrs Young made allegations of fraud in relation to the Settlement Agreement. The allegations were in identical terms. The allegations are generally consistent with those made in the executive summary referred to above. One of the complaints now made by Mrs Young is that the primary judge failed to deal with the allegations of fraud. The allegations of fraud are verbose and voluminous. They are summarised in Schedule 1 to these reasons.

4. [47]

   In summary, Mrs Young alleged that Mr and Mrs King represented to the L&E Court and to her that they had adequate drainage arrangements on the King property generally to support drainage that was required to drain to or discharge via the rear yard of the King property including, for the purpose of drainage to the rear, a legal viable discharge point in the rear yard of the King property (the Exhibit A Representation). She also alleged that Mr and Mrs King gave the undertaking to the L&E Court and made the Exhibit A Representation knowing that they did not have adequate drainage on the King property and did not have a legal or viable discharge point for drainage to the rear of the King property. Therefore, she says, they knew that the Exhibit A Representation was false.

5. [48]

   The basis upon which Mrs Young alleged that the Exhibit A Representation was known by Mr and Mrs King to be false is particularised voluminously in 59 paragraphs covering more than 9 pages. The particulars are summarised in Schedule 2 to these reasons.

6. [49]

   In support of the orders sought in the 2008 Motion, Mrs Young provided to the primary judge two sets of written submissions dated 8 September 2014. One set made submissions in respect of:

7. [50]

   Those submissions are summarised in Schedule 3 to these reasons. The reason for the inclusion of the material in the schedules is to demonstrate the voluminous, complex and repetitive nature of Mrs Young’s claims and case theory. This helps to indicate the extent of the difficulty for the primary judge in endeavouring to get to the heart of the matter as well as the need for detailed and precise evidence to establish the specific claims of fraud being asserted.

8. [51]

   In the statement of claim in the Judicial Review Proceedings, Mrs Young alleged, in the alternative, that the Settlement Agreement was made or entered into by common mistake. Mrs Young alleged that she and Mr and Mrs King wrongly understood that the Settlement Agreement, on its true construction, stipulated for a discharge point to the rear of the King property for the drainage of the retaining wall the subject of the works contemplated by Exhibit A. However, contrary to the understanding of both of the parties, the Settlement Agreement, on its true construction, did not contain a term determining such a discharge point.

9. [52]

   In the further alternative, Mrs Young alleged, in the statement of claim, that Mr and Mrs King knew that she was mistaken and used that mistake to take advantage of her. She alleged that Mr and Mrs King knew that there was no discharge point stipulated in the Settlement Agreement, that they obtained orders for dismissal of the Original Proceedings in the knowledge, or in the circumstances that a reasonable person in their position would have known and that Mrs Young could not have known or contemplated that no discharge point was nominated. Mrs Young alleged that Mr and Mrs King took no steps to ascertain that she properly understood the purpose of the Settlement Agreement in circumstances where it was obvious that no reasonable person in the position of Mrs Young would have entered into the Settlement Agreement if no discharge point had been stipulated. Mrs Young alleged that Mr and Mrs King did not bring the fact that no discharge point was stipulated to her attention. Mrs Young submitted that, in those circumstances, the Settlement Agreement was voidable for unilateral mistake.

10. [53]

    Mrs Young asserted that it was implausible for Mr and Mrs King not to know that the Settlement Agreement did not commit to a discharge point as its subject matter. She also asserted that Mr and Mrs King were conscious of the fact that they did not have a legal and effective discharge point and were conscious of “their machinations” to conceal that fact. She asserted that the conduct of Mr and Mrs King after the settlement of the Original Proceedings showed that they did not believe that a legal and effective discharge point had been fixed by the Settlement Agreement reflected in Exhibit A and that it must be concluded that Mr and Mrs King well knew of and expected Mrs Young’s mistake and took advantage of it in concluding the Settlement Agreement and procuring the dismissal of the Original Proceedings.

11. [54]

    Mrs Young contended that, in those circumstances, the conduct of Mr and Mrs King was against good faith and the dismissal of the Original Proceedings was obtained against good faith. In essence, Mrs Young contended that representations and conduct directed to the L&E Court and to herself by Mr and Mrs King induced the understanding, in the L&E Court and in her, that Mr and Mrs King had effective drainage, and in particular a legal and effective discharge point, on the King property to support the proposal outlined in Exhibit A. She asserted that they engaged in that conduct knowing that that understanding was false.

12. [55]

    In so far as Mrs Young contended for both common mistake and unilateral mistake, the allegations were inconsistent with each other. On the one hand, it was alleged that both Mrs Young and Mr and Mrs King entered into the Settlement Agreement on the basis of a mutual misunderstanding. On the other hand, it was also asserted that Mrs Young entered into the Settlement Agreement on the basis of a misunderstanding and that Mr and Mrs King were aware of that unilateral misunderstanding and took advantage of it. In any event, the contention of mutual mistake was abandoned in this Court.

13. [56]

    When the hearing before the primary judge commenced on 9 September 2014, counsel for Mrs Young sought leave to issue a subpoena to each of Dr Perrens and Mr Warwick Davies, engineers who had advised Mrs Young and had given evidence in the Original Proceedings. Counsel for Mrs Young also raised the question of evidence being given by Mr Hones and Mr Hemmings, Mrs Young’s former legal advisers. His Honour declined to give leave to issue subpoenas to Mr Hones and Mr Hemmings. His Honour did not come to a conclusion on whether to grant leave for subpoenas to Dr Perrens and Mr Warwick Davies, as on 10 September 2014, Mrs Young’s advisors told the primary judge that they “do not consider it prima facie appropriate to call them”. That was in addition to a statement made to his Honour on 28 August 2014, when Mrs Young’s advisors told his Honour that Mr Warwick Davies would not be called.

14. [57]

    Despite that, Mrs Young’s advisor procured subpoenas to be issued to Dr Perrens and Mr Warwick Davies to give evidence. The subpoenas were filed on 16 October 2014. No prior notice was given to those advising Mr and Mrs King and counsel for Mr and Mrs King indicated that he would not be in a position to deal with those witnesses if they were called to give evidence. On 28 October 2014, counsel for Mrs Young accepted that the opportunity to call Dr Perrens and Mr Warwick Davies had been forgone but that, on reflection, it was thought useful to have their evidence in the light of what had occurred during the hearing in September. His Honour pointed out to counsel for Mrs Young that he had told the Court clearly on 28 August 2014 that Mr Warwick Davies was not going to be called. The primary judge therefore set aside the subpoenas issued to Warwick Davies and Dr Perrens.

Conclusions of the Primary Judge

1. [58]

   After pre-trial argument and a hearing over several days in August, September and October 2014, the primary judge made orders on 9 July 2015 (the 2015 Orders), for reasons published on that day. [15] His Honour ordered that the 2008 Motion be dismissed and that the Judicial Review Proceedings be dismissed. His Honour also ordered that Mrs Young pay Mr and Mrs King’s costs of the Original Proceedings since 8 March 2004 on a party/party basis.

2. [59]

   In his reasons of 9 July 2015, the primary judge began by reciting the history of the dispute up to the hearing in September and October 2014. His Honour then dealt with Mrs Young’s conduct of the litigation, saying that the Young “camp” had frequently shifted ground, amended documents, ignored directions and correspondence and caused delay. His Honour observed that Mrs Young and her representatives had received many indulgences because of “a nagging concern” on the part of the L&E Court that she may have been the victim of at least an injustice, if not a fraud or conspiracy of some sort. His Honour referred to the fact that, in his reasons of 19 October 2012, he blamed Mrs Young’s legal team for many of the steps they took that led to some 30 listings before his Honour prior to the hearing in September 2012.

3. [60]

   The primary judge said that Mrs Young constantly identified new parties to, and new aspects of, the conspiracy that she alleged operated against her interests before, during and after the Original Proceedings. His Honour repeated that, in the proceedings before him, Mrs Young and her legal advisors had flagrantly disobeyed directions, failed to meet timetables and failed to be clear and fair in indicating the witnesses to be called or relied upon. His Honour referred to “more nuances” having been “discovered” between a pre-trial hearing on 28 August 2014 and the commencement of the actual hearing on 9 September 2014 and then again while the most recent substantive hearing in the Court stood adjourned part-heard from 12 September 2014 to 28 October 2014. His Honour said that the L&E Court had remained concerned throughout the matter to provide Mrs Young with every opportunity to make good her claims of injustice.

4. [61]

   The primary judge then referred to proceedings brought by Mrs Young in the Supreme Court against her principal advisors in the Original Proceedings. His Honour observed that Mrs Young prosecuted her proceedings against her former legal advisors as far as the High Court and that the proceedings were ultimately dismissed with costs. The essence of the basis for the dismissal and failure of subsequent appeals was that the defendants could rely on either advocate’s or witness immunity as a complete answer to all of the claims by Mrs Young. [16]

5. [62]

   The primary judge then embarked on a consideration of the issues raised by the 2008 Motion and the Judicial Review Proceedings. His Honour said that Mrs Young was seeking to set aside entirely all that had happened in the Original Proceedings, such that the decision of McClellan CJ would be treated as a nullity and everyone would go back to where they started, leaving it open for vastly amended pleadings and more defendants.

6. [63]

   The primary judge observed that submissions advanced on behalf of Mrs Young sought to venture into many matters of serious factual controversy and also raised the prospect of an issue estoppel. A Jones v Dunkel submission, concerning the failure by Mr and Mrs King to call Mr Jason Hones, Mrs Young’s solicitor in the Original Proceedings, and Mr Ian Hemmings, her counsel in the Original Proceedings, as witnesses, was notified late and then withdrawn.

7. [64]

   The primary judge referred to a suggestion by counsel for Mr and Mrs King that Mrs Young’s case had been narrowed to being based on jurisdictional error, Exhibit A being void for uncertainty, common mistake and/or unilateral mistake as to the stipulation of a discharge point, and fraudulent misrepresentation regarding the adequacy of the drainage and the intention of Mr and Mrs King to obtain a building certificate for existing work. His Honour considered that any mistake on Mrs Young’s part as to what the L&E Court accepted by way of an undertaking from Mr and Mrs King, and the orders that followed from it, flowed from the failings of her own lawyers.

8. [65]

   The primary judge referred to what his Honour characterised as “a tone of fraud and grand conspiracy” in the dispute. His Honour noted that counsel for Mr and Mrs King submitted that Mrs Young’s case was that Exhibit A was not a contract. His Honour observed that McClellan CJ was satisfied that, on the evidence that he had received, the work identified in Exhibit A should form the basis of Mr and Mrs King’s undertaking and that he (being McClellan CJ) should accept the undertaking and make the orders dismissing the Original Proceedings.

9. [66]

   The primary judge said that he had made it plain, on several occasions during the four days of hearing on 9 to 12 September 2014, that Mrs Young was to have every opportunity to tell her story. Objections to her written material were noted, without being fully argued orally. His Honour said that most of the four days of the hearing was occupied by cross-examination of Mrs Young by counsel for Mr and Mrs King.

10. [67]

    The primary judge observed that, despite her lawyers’ failure to comply adequately, if at all, with pre-trial directions, which were important given that there were now two separate cases before the L&E Court, Mrs Young had put many affidavits and voluminous annexures before the L&E Court. In particular, in support of a notice of motion pressing for notices to produce to be complied with (that the primary judge had earlier determined not to enforce), Mrs Young put before the L&E Court an affidavit that she had sworn in proceedings in the District Court in June 2011. In that affidavit, she expressed her belief that Mr and Mrs King had always planned, with the collusion of the Council, to place a drain on the Young property. She deposed that she subsequently became aware that Exhibit A was not a drainage solution and was not intended to be a drainage solution but merely a collection of notes recording various aspects of discussions held by the experts in the 2004 conclave.

11. [68]

    The primary judge referred to Mrs Young’s allegation that Mr Hones and her expert witness, Dr Stephen Perrens, continued to encourage the idea that Exhibit A was the solution. His Honour referred to Mrs Young’s allegation that, as a result of extensive investigation, she had arrived at the conclusion that the course of conduct to which she had been subjected was by reason of an intention by Mr and Mrs King and the Council, by collusion, to intimidate or otherwise cause her to place a drain on the Young property for the purpose of draining the King property, following the construction of an illegal granny flat below the water table.

12. [69]

    The primary judge observed that, when the hearing was resumed on 28 October 2014, counsel for Mrs Young sought, contrary to clear arrangements to which he had committed, to call Mr Warwick Davies and Dr Perrens. His Honour said that he had declined to allow them to be called, set aside subpoenas directed to them and ordered Mrs Young to pay their “costs thrown away”. His Honour did, however, grant leave for Mrs Young to be recalled at that stage for further examination and cross-examination.

13. [70]

    The primary judge said that, on 29 October 2014, he received extensive oral evidence from Mrs Young’s consulting engineers, Mr Jack Davies and Mr Michael Brearley. Mr Jack Davies had acted for her since late 2001, when she retained him to deal with the Council on her behalf. He referred her to Mr Hones, who later recommended that she also engage Dr Perrens. Mr Jack Davies also oversaw for her what was being offered by way of resolution.

14. [71]

    The primary judge then dealt with the submissions on behalf of the parties. His Honour quoted, at some length, submissions made by counsel for Mr and Mrs King concerning the allegations made by Mrs Young.

15. [72]

    The primary judge then summarised the specific grounds upon which Mrs Young relied to have the Original Orders set aside. His Honour referred to the following grounds:

16. [73]

    The primary judge first noted that no questions of jurisdiction arose in the matter, as McClellan J had clearly acted within power in making the Original Orders, being of a type made daily in the L&E Court. His Honour observed that, although Mrs Young’s case had narrowed significantly since the decision of October 2012, there remained at the heart of the matter “the allegation of a grand conspiracy or a major collusion” involving the Council, Mr and Mrs King and the parties’ legal teams and respective experts, the purpose of which, for reasons never made clear, was to shift the drainage burden from the King property to the Young property.

17. [74]

    The primary judge observed that Mr Hones and Mr Hemmings committed Mrs Young to the Settlement Agreement, based on Exhibit A and the undertaking by Mr and Mrs King. His Honour characterised the undertaking by Mr and Mrs King, based on Exhibit A, as envisaging a stock standard “drain and retain” solution to the problem. His Honour said that such a solution was what Mrs Young had indeed sought in the Original Proceedings.

18. [75]

    The primary judge observed that, on the first day of the hearing before McClellan CJ, counsel for Mrs Young had said that she wanted the retaining wall finished because, at the moment, it was not supporting the Young property, and that she wanted adequate drainage works installed. His Honour observed that, under Exhibit A, the proposed drainage for the retaining wall would be isolated from the stormwater drainage system on the Young property, which drained to Calca Crescent, and, instead, would drain to the rear of the King property. His Honour said that, to give effect to that change in drainage, an existing 65 mm pipe would need to be disconnected from the front of the King property and lowered to the existing wall footing zone, to the lowest extent possible, in light of the grade, to a discharge point at a reduced level.

19. [76]

    The primary judge said that Mrs Young was seeking to reopen the Original Proceedings because she had, since 2004, come to the opinion that Exhibit A was not, in fact, a solution for her problem. His Honour said that, unfortunately for her, dissatisfaction with the final outcome of Original Proceedings, which was settled on her behalf by her legal representatives, and on their advice, was not a reason to reopen the Original Proceedings. His Honour characterised that as “the insurmountable obstacle” in her case.

20. [77]

    The primary judge referred to assertions made on behalf of Mrs Young that she held fundamental misapprehensions as to the works proposed by Exhibit A, in that she was unaware that:

21. [78]

    In dealing with the allegation of uncertainty, the primary judge said that, based on the original pleadings, the transcript of the proceedings before McClellan CJ, the reasons of McClellan CJ and the Original Orders, the undertaking, as expressed in Exhibit A, when construed objectively, was “sufficiently certain”. It was, his Honour said, “a simple ‘drain and retain’ solution to the problem”, involving the isolation of drainage for a completed retaining wall and a change of the drainage of that wall from the front of the King property to the rear of the King property at a specified level. His Honour concluded that, despite the absence of any stipulation of a particular discharge point at the rear of the King property, the Settlement Agreement was sufficiently certain and Mrs Young failed on that ground.

22. [79]

    In dealing with the allegation of mistake, the primary judge referred to Mrs Young’s evidence that she was mistaken as to the need for works to be done on the Young property to give effect to Exhibit A. His Honour held that the claims of mistake disregarded the principle of agency, having regard to the well-established principle that litigants are bound by actions taken in their name by their legal representatives. His Honour observed that the Original Orders were agreed upon by Mrs Young’s agents, Messrs Hones, Hemmings and Perrens, and that the Original Orders reflected the agreement made by them. His Honour held that the actions of the three, in formulating, accepting and entering into the Settlement Agreement, bound Mrs Young as if she had entered into the Settlement Agreement herself.

23. [80]

    The primary judge observed that Mrs Young had authorised her legal representatives to settle the Original Proceedings on her behalf, on the basis that Mr and Mrs King would implement the Exhibit A “solution”. His Honour observed that it may be that the “solution” was not accurately explained to Mrs Young. However, she had access to a copy of the document during the hearing before McClellan CJ and had ample opportunity to ask her legal representatives to explain it to her if she was unclear as to any aspect of it. His Honour concluded that Mrs Young’s hindsight, in realising that she may have made a mistake in accepting Exhibit A as the solution, was not a “mistake” in any legal sense that would render the Settlement Agreement void.

24. [81]

    The primary judge said that Mrs Young needed to establish that Mr Hemmings or Mr Hones was mistaken as to the actual terms of Exhibit A but no evidence was adduced to prove such a mistake. Rather, as appeared from the transcript, the legal representatives were clear on what Exhibit A involved. His Honour therefore concluded that Mrs Young had failed to prove that the Settlement Agreement was void on the basis of either common or unilateral mistake.

25. [82]

    Finally, the primary judge dealt with the allegations of fraud. His Honour observed that Mrs Young had asserted that a number of misrepresentations were made to the L&E Court as to the purport of Exhibit A that amounted to fraud, and therefore, the orders should be set aside as they were “made against good faith”, pursuant to UCPR, r 36.15. His Honour recorded that the specific representations alleged were as follows:

26. [83]

    The primary judge then observed that in civil matters involving serious allegations of fraud, findings of fraudulent behaviour must have a strong evidentiary basis. His Honour referred to the principle that the civil standard of proof “on the balance of probabilities”, was a test of reasonable satisfaction: whether satisfaction is reasonable is not found as a result of a mere mechanical comparison of probabilities. His Honour referred to the principle that the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from the particular finding, are considerations that must affect the answer to the question of whether relevant facts have been proved. In such matters, “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony or indirect inferences. [17]

27. [84]

    The primary judge observed that, whilst not altering the civil standard of proof, allegations of fraud must be supported by strong and probative evidence and such findings should not be made lightly. His Honour said that, although a plethora of material was tendered, he was not taken to any evidence of any real, probative value that would warrant a finding of fraudulent behaviour by anyone involved in the proceedings. His Honour characterised Mrs Young’s case as being “full of insinuations”. His Honour accepted the proposition advanced by counsel for Mr and Mrs King that the evidence in the case, and the way that it was being relied upon, was “so vast and complex that the allegations became almost impossible to unravel”. His Honour concluded that, in the circumstances, it would be entirely inappropriate to make a finding of fraud against anyone involved the matter. His Honour was not satisfied, on the balance of probabilities, that Mr King or Mrs King, or their representatives had made any fraudulent representations to the L&E Court.

28. [85]

    Accordingly, the primary judge concluded, no basis had been found upon which the Original Orders should be set aside, either under UCPR, r 36.15 or under s 69 of the Supreme Court Act. His Honour therefore ordered that the summons filed in the Judicial Review Proceedings be dismissed and that the 2008 Motion, filed in the Original Proceedings, be dismissed.

Substantive Proceedings in the Court of Appeal

1. [86]

   On 6 August 2015, Mrs Young filed a summons in this Court seeking leave to appeal from the 2015 Orders, in so far as the primary judge ordered that the 2008 Motion be dismissed (Proceedings 2015/229797). Mrs Young also filed a notice of appeal from the 2015 Orders, in so far as his Honour ordered that the Judicial Review Proceedings be dismissed (Proceedings 2015/229805).

2. [87]

   The ground stated in the draft notice of appeal originally filed with the summons in Proceedings 2015/229797 and in the notice of appeal originally filed in Proceedings 2015/229805 was that the primary judge erred in law in that his Honour failed or omitted to give adequate reasons for rejecting Mrs Young’s fraud allegations. By subsequent amended notices of appeal dated 18 April 2016, additional grounds of appeal were added and relied on.

3. [88]

   The grounds of appeal raised in the two substantive proceedings are now identical except that, in the appeal from the dismissal of the 2008 Motion, an additional ground 4 is relied on. The grounds in the appeal from the dismissal of the 2008 Motion appeal may be restated as follows:

   1. (1)

      The primary judge failed or omitted to give adequate reasons for rejecting Mrs Young’s fraud allegations.

   2. (2)

      That failure occurred after a trial of 8 days and after reserving judgment for 8 months.

   3. (3)

      It should be inferred from the inadequacy of the reasons and the lengthy delay in giving judgment that the primary judge overlooked important pleadings and essential evidence and argument, resulting in a miscarriage of justice.

   4. (4)

      The primary judge failed or omitted to consider submissions by Mrs Young that the elements of unilateral mistake at general law, and in particular the requirement that Mrs Young’s legal representatives were affected by the same actual mistake, were not a condition precedent to the application of UCPR, r 36.15 in circumstances otherwise analogous to “unilateral mistake”.

   5. (5)

      The Original Orders were obtained by reason of fraudulent representations on the part of one or all of Mr Griffiths, Mr Robert Springett (an expert retained for Mr and Mrs King), and Mr and Mrs King, which was prima facie established by incontrovertible written evidence, in that, in a letter of 5 January 2004, Mr Springett confirmed that the 65 mm drain referred to in Exhibit A was draining to the rear of the King property, whereas the L&E Court was told that the Exhibit A solution involved disconnecting the 65 mm drain from draining to Calca Crescent and taking it to an outlet in the rear. The contents of the letter of 5 January 2004 were known to Mr King.

   6. (6)

      A finding or determination by the primary judge that fraud cannot be established against “anyone involved in the matter”, in the absence of reasons to displace the prima facie inference of fraud, was unsafe and the occasion of a miscarriage of justice.

   7. (7)

      The primary judge erred in applying Briginshaw principles without demonstrating reasoned regard to the totality of Mrs Young’s evidence.

   8. (8)

      The primary judge erred in excluding evidence of Mr Hones and Mr Hemmings, who acted for Mrs Young, and the exclusion of that evidence was, for a variety of reasons, productive of a miscarriage of justice.

   9. (9)

      The primary judge erred in excluding evidence of Dr Perrens and Mr Warwick Davies, engineers retained on behalf of Mrs Young, and the exclusion of that evidence was, for a variety of reasons, productive of a miscarriage of justice.

   10. (10)

       The cumulative effect of the primary judge’s reasons in the multiple judgments given in connection with the ongoing dispute between Mrs Young and Mrs and Mrs King discloses a reasonable apprehension of bias against Mrs Young’s claim.

4. [89]

   By notice of motion dated 19 April 2016, Mrs Young also seeks leave to adduce additional evidence in support of her appeal. The additional evidence is directed towards demonstrating the significance of evidence that might have been given by the witnesses referred to in grounds (8) and (9) on whom she sought to serve subpoenas shortly prior to the hearing before the primary judge in October 2014. It was conceded on behalf of Mrs Young that, if there was no error on the part of the primary judge in rejecting the application for subpoenas to the lawyers and engineers, the additional evidence would have no relevance.

Disposition of the Substantive Proceedings

1. [90]

   The entire thrust of the complaints made by Mrs Young, through her counsel, is directed at the conduct of her legal advisors and witnesses in 2004. There is not a skerrick of evidence of the conspiracy hinted at by Mrs Young involving:

2. [91]

   In those circumstances, Mrs Young was bound by the actions of her advisors. There has never been any suggestion that Mr Hones, Mr Hemmings or Dr Perrens acted without authority. Mr Hones was instructed by Mrs Young to act for her in the Original Proceedings. Mr Hones delivered a brief on hearing to Mr Hemmings. There is not a skerrick of evidence to suggest that either of them exceeded their authority in negotiating the Settlement Agreement and asking McClellan CJ to make the Original Orders.

3. [92]

   Mrs Young has had ample opportunity to adduce such evidence as she wished as to any mistake on the part of her legal advisors. There was no evidence of any mistake. There is no evidence that Mr Hones or Mr Hemmings was under any misapprehension as to the existence of a valid discharge point, such as is alleged on the part of Mrs Young.

4. [93]

   No basis whatsoever has been advanced in support of a contention that the primary judge acted in accordance with a wrong principle or ignored relevant material or decided on the basis of a misapprehension of the facts, in exercising his discretion to refuse Mrs Young the opportunity of calling Mr Hones, Mr Hemmings, Dr Perrens and Mr Warwick Davies. His Honour explained in some detail the indulgences that had been given over and over again to Mrs Young and her advisors. There is no basis upon which this Court could conclude that the primary judge erred in the exercise of his discretion in declining to issue subpoenas and setting aside other subpoenas directed to Mr Hones, Mr Hemming, Dr Perrens and Mr Warwick Davies, especially given the aforementioned procedural history immediately preceding the hearing before his Honour. It follows that there is no basis for admitting fresh evidence on the hearing before this Court.

5. [94]

   Mrs Young is bound by the conduct of her advisors at the relevant time, acting within the scope of their authority. Whether or not Mrs Young has a cause for complaint against her advisors is not a matter that can be entertained in the proceedings presently before this Court. As I have indicated, she has, hitherto, been unsuccessful in pursing such a complaint. That is of no relevance to the present proceedings.

6. [95]

   The primary judge made perfectly clear his reasons for rejecting Mrs Young’s allegations of fraud, notably the lack of evidence of any real, probative value that would warrant a finding of fraudulent behaviour, especially given the Briginshaw standard for proving serious allegations of fraud. There was no error on his Honour’s part in that regard. Mrs Young’s complaint concerning unilateral mistake is misconceived in circumstances where her legal advisors acted within the scope of their authority and there was no evidence of any mistake or misunderstanding on their part.

7. [96]

   Regardless of whether or not there were representations made by Mr Griffiths, Mr Springett or Mr and Mrs King, and whether or not the representations were false or misleading, there is no basis whatsoever in the evidence for concluding that Mrs Young’s advisors were induced to advise her to enter into the Settlement Agreement by reason of any misapprehension or misunderstanding of the facts on their part.

8. [97]

   The final ground of appeal, that the cumulative effect of the several decisions of the primary judge gives rise to a reasonable apprehension of bias on the part of the primary judge, is completely without substance. The ground amounts to nothing more than a complaint that Mrs Young has been completely unsuccessful in all of her various attempts to have the Original Orders set aside. While the 2012 Orders were held to have been made in error, by reason of a misapprehension as to the jurisdiction of the L&E Court, there can be no suggestion that a reasonable observer might have any concern that his Honour might not decide Mrs Young’s case impartially.

9. [98]

   It follows from the above that Mrs Young has not made out any grounds of appeal. It must also follow that the application for leave to appeal should be dismissed and that the notice of appeal should be dismissed. Mrs Young should pay Mr and Mrs King’s costs of both proceedings.

Costs Proceedings

1. [99]

   On 20 August 2015, Mrs Young filed a notice of motion in the L&E Court seeking an order that her costs of the applications to vacate the orders made by McClellan CJ in February 2004 be paid on an indemnity basis from 8 March 2004 until final determination of the Original Proceedings. The respondents to the motion were Mr and Mrs King and some 16 other parties who were lawyers and experts involved in the Original Proceedings.

2. [100]

   On 19 February 2016, for reasons published on that day, [18] the primary judge instead varied the 2015 Orders to provide that Mrs Young was to pay, on the indemnity basis, all of the costs of Mr and Mrs King of all the proceedings in the L&E Court since 8 March 2004 and Mr and Mrs King’s costs of that part of the Judicial Review Proceedings as was conducted in the Supreme Court. His Honour ordered that the notice of motion of 20 August 2015, in so far as it sought orders for costs against the respondents, be dismissed and that Mrs Young pay the costs incurred by those respondents in defending those claims. His Honour also ordered that the costs incurred by Mr and Mrs King on the notice of motion of 20 August 2015 be paid on an indemnity basis.

3. [101]

   On 10 May 2016, Mrs Young filed two summonses seeking leave to appeal to this Court from the orders made by the primary judge on 19 February 2016 (the 2016 Orders). In Proceedings 2016/76373, Mrs Young seeks leave to appeal from the 2016 Orders, in so far as they relate to the Original Proceedings and, in Proceedings 2016/76351, Mrs Young seeks leave to appeal from the 2016 Orders, in so far as they relate to the Judicial Review Proceedings. The respondents to both summonses are Mr and Mrs King and eight other parties.

4. [102]

   On 26 April 2016, the Registrar directed that the summonses as between Mrs Young and Mr and Mrs King be listed for concurrent hearing on the same day as the other proceedings. The balance of those proceedings, involving the other respondents, was listed for directions on 25 July 2016. The requirement for the other respondents to file a response was suspended until further order. The 25 July 2016 directions hearing was subsequently vacated and re-listed for 31 August 2016.

Disposition of the Costs Proceedings

1. [103]

   Mrs Young contended that the appeals in the Costs Proceedings should be allowed because the 2016 Orders were the occasion of “a substantial injustice”. She contended that she had effectively not had a hearing in respect of a matter that was of great importance to her and to the community, that she is a pensioner and that she would be exposed to considerable costs if she did not get a hearing. Mrs Young also referred to her contentions that there were highly prejudicial errors insofar as she was deprived of the opportunity of adducing evidence from Mr Hones, Mr Hemmings, Dr Perrens and Mr Warwick Davies. She asserted that their evidence, upon examination, would have demonstrated fraud in the light of the findings as to the purport and proper construction of Exhibit A. She asserted that it had been amply demonstrated that a very different outcome was almost a certainty, had those witnesses been called.

2. [104]

   Thus, it is clear enough that the basis upon which Mrs Young seeks to challenge the 2016 Orders is dependent upon her success in the substantive appeals. For the reasons indicated above, those appeals fail.

3. [105]

   Mrs Young has not shown any basis upon which a conclusion could be reached that the primary judge erred in the exercise of his discretion in making the 2016 Orders. Both summonses of 10 May 2016 should be dismissed as against Mr and Mrs King. Mrs Young should be ordered to pay Mr and Mrs King’s costs of those summonses.

Conclusion

1. [106]

   In the light of the conclusions reached above, I propose the following orders: