High Court of Australia

Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) [2018] HCA 12

21 Mar 2018

Case Number: A22/2017 A23/2017


Kiefel CJ, Gageler, Keane, Gordon, Edelman JJ


Equity – Where judgment given by Supreme Court of South Australia, as varied by Full Court of Supreme Court of South Australia – Where successful party engaged in malpractice – Where malpractice later discovered – Where perfected judgment set aside – Where no pleading or proof of fraud – Nature of court's equitable power to set aside perfected judgment – Whether equitable power extends to malpractice not amounting to fraud – Whether power to set aside perfected judgment conditional upon unsuccessful party having exercised reasonable diligence to discover fraud or malpractice.

Procedure – Perfected judgment – Rescission – Where two applications brought to set aside judgment – Where judgment set aside for malpractice – Whether proper course application in original proceeding or fresh action.

Words and phrases – "actual fraud", "causation", "equitable jurisdiction", "equitable power", "equity", "finality", "fraud", "fresh action", "malpractice", "misconduct", "new trial", "not amounting to fraud", "perfected judgment", "perfected orders", "power", "proper application", "reasonable diligence", "setting aside".

Supreme Court Act 1935 (SA) – s 17(2)(a)(i).

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