{"id":826,"date":"2018-03-23T11:39:15","date_gmt":"2018-03-23T00:39:15","guid":{"rendered":"http:\/\/kazi-portolesi-lawyers.leapwp.com.au\/?p=826"},"modified":"2020-11-10T07:20:16","modified_gmt":"2020-11-10T07:20:16","slug":"can-perfected-orders-set-aside","status":"publish","type":"post","link":"https:\/\/www.kpl.net.au\/can-perfected-orders-set-aside\/","title":{"rendered":"Can perfected orders be set aside?"},"content":{"rendered":"

Issue<\/strong><\/h2>\n

In Clone Pty Ltd v Players Pty Ltd (in liq) (R & M Appted)<\/em> [2018] HCA 12 (21 March 2018), the issue was whether the power of a court to set aside its perfected judgment extends to:<\/p>\n

1. Misconduct by the party who succeeded at trial which does not amount to fraud; and
\n2. Where the unsuccessful party failed to exercise reasonable diligence to discover the fraud or misconduct during the earlier proceedings.<\/p>\n

Facts<\/strong><\/h2>\n

Players negotiated an agreement to lease premises that became known and the Planet Hotel from Clone. The agreement to lease provided that “[t]he Lessee will upon expiration or early determination of the Lease transfer to the Lessor any Liquor Licences or gaming machine Licences held in respect of the premises for NIL consideration”.<\/p>\n

An issue arose in subsequent proceedings as to whether Players had struck through the word “NIL” when three of its directors executed the agreement to lease, with the result that consideration was payable to it by Clone under the agreement to lease.\u00a0 It sought rectification of the memorandum of lease.\u00a0 The original agreement to lease was not in evidence at the trial but Clone and Players each discovered and tendered a copy.\u00a0 Each copy showed the word “NIL” with a faint line through the letters “NI” and over the top of the word “for”.\u00a0 Clone argued that the line had been made accidentally or mechanically.\u00a0 Clone called evidence that it could not locate any other copies.<\/p>\n

During the trial, Clone’s instructing solicitor asked an employee of the Liquor and Gambling Commissioner to search the Commissioner’s files for any copies of the agreement to lease.\u00a0 The employee advised that she had located a copy on a different file to the “Planet Hotel premises file”.\u00a0 Upon inspection of that copy, Clone’s junior counsel noticed a line through the word “NIL”.\u00a0 He did not photocopy it, to avoid it becoming discoverable, and asked the Commissioner’s employee to inform him of any inspection by Players’ solicitors.\u00a0 The Commissioner’s employee complied with that request when Players’ solicitors subsequently inspected the Commissioner’s files but only requested, and were shown, the Planet Hotel premises file.\u00a0 Clone’s principal solicitor then gave a notice to the Commissioner to produce all “Planet files” in the Commissioner’s possession, which the solicitor advised required production of the Planet Hotel premises file only.\u00a0 Nonetheless, another file was also produced to the Court, which included a fourth copy of the agreement to lease.<\/p>\n

Clone was successful at trial on almost all issues.\u00a0 Relevantly, the trial judge held that Clone was not obliged to pay reasonable consideration for the licences, in part on the basis of her Honour’s conclusion that the word “NIL” had not been struck through in the agreement to lease.\u00a0 Players appealed to the Full Court, which upheld this conclusion.<\/p>\n

After the proceedings concluded, Players learned that Clone knew about the third copy and th
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