An Application was brought by the Defendant by Counterclaim to modify a Consent Order pursuant to Rule 9.15(4)(c). The Consent Order had required the Defendant by Counterclaim to attend for Questioning on certain dates, failing which the Defence to Counterclaim would be struck. The Defendant by Counterclaim did not attend for Questioning as required.

Master Robertson reviewed the history of the dispute, and noted a dismissive and contemptuous attitude on the part of the Defendant by Counterclaim. In fact, the Defendant by Counterclaim had repeatedly infringed previous Court Orders, leading to the striking of its Statement of Claim. Consistent with that past conduct, it was not until after the Consent Order had been breached that the within Application was made to vary it.

In support of its position, the Defendant by Counterclaim asserted mistake in the course of previous counsel’s negotiation of the Consent Order. The Court found that the terms of the Consent Order were clear and understood by both parties, albeit noting some evidence that former counsel for the Defendant by Counterclaim had taken a cavalier approach in setting down certain Questioning dates with the expectation of later amendment. This cavalier approach was cited by the Defendant by Counterclaim in requesting that the Court decline to hold it to account for the conduct of counsel. The Court ruled that the Defendant by Counterclaim was sufficiently aware and involved in the circumstances that it should be bound in accordance with ordinary principles of agency without further inquiry by the Court. The Application was dismissed and the Defence to Counterclaim was struck.