Weller v Fong [2020] NSWDC 350

District Court New South Wales

Medium Neutral Citation: Weller v Fong [2020] NSWDC 350 Hearing dates: 03 July 2020 Date of orders: 03 July 2020 Decision date: 03 July 2020 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 29 Catchwords: PRACTICE AND PROCEDURE – civil proceeding – invocation of 'slip' rule to correct word in Court's dispositive orders – Court's orders gave effect to Terms of Settlement – Terms of Settlement provided for proceeding to be 'dismissed' – Court order was that the proceedings were 'discontinued' – application to substitute the word 'dismissed' for 'discontinued' – explanation for application is a party's application for costs assessment, apparently concerning same subject matter of proceeding – whether discretion to correct the order should be exercised – whether any utility in making correction Legislation Cited: Civil Procedure Act 2005 (NSW), s 91 Uniform Civil Procedure Rules 2005 (NSW), rr 12.3, 36.15, 36.16, 36.17 Category: Principal judgment Parties: Mr H Weller (Plaintiff/Respondent) Ms R Fong (Defendant/Applicant) Representation: The respondent appeared in person The applicant appeared in person File Number(s): 2017/00043529 Publication restriction: Nil

Judgment

THE APPLICATION 1. Before the Court is an unusual procedural application by the defendant (the applicant). It is to substitute a single word in orders of the Court disposing of the proceeding made by a Judge of the Court (Norton SC DCJ) on 22 July 2019. Those orders were based on a settlement reached between the parties. 2. The proceeding generally concerned a solicitor's attempts to recover his fees for acting for the client in a proceeding in the Supreme Court of New South Wales. The solicitor, who was the plaintiff in the proceeding in this Court, and respondent to the present motion, entered into a costs agreement with the defendant (the applicant on the motion) on 27 February 2014. He said he performed services and sent invoices to the applicant on 17 July 2015 and 17 August 2015. The respondent rendered an account on 17 July 2015 and claimed the sum of $167,432.06 for unpaid fees. The applicant resisted those attempts and brought her own cross-claim to set aside the costs agreement. 3. On 22 July 2019, the Court made orders to dispose of the proceeding. the dispositive orders, made by consent, were as follows: 1. The Plaintiff's Statement of Claim and the Defendant's Cross-claim be discontinued. 2. No order as to costs 1. A notation then appeared on the face of the Court orders. It was as follows: "Matter has settled. The Defendant and the solicitor for the plaintiff have signed terms on the 18th and 19th July 2019 respectively." 1. The word 'terms' in this notation appears to be a reference to the 'Terms of Settlement', written on the Court's pro forma title page which was supplied to the Court. Relevantly, term 1 represented the parties' agreement that the parties' respective pleadings be "dismissed", not "discontinued". 2. There is no evidence before the Court to suggest that the compromise reached between the parties extended beyond the content of the Terms of Settlement supplied to the Court. There is no suggestion, for example, that the Terms of Settlement were simply the formal means of terminating the proceeding with the underlying compromise involving payment by the applicant to the respondent of a sum of money in exchange for the respondent's discharge and release of any claim concerning the subject matter of the proceeding; as is commonly the case. 3. By her motion, the defendant seeks an order that the Court substitute for order 1 made on 22 July 2019 that the relevant pleadings (consisting of a Statement of Claim and a Cross-Claim) be "dismissed" for the order which was made, that the respective claims be "discontinued". The other order, about which no variation is sought, provides that there is no order as to costs of the proceeding in this Court. 4. The respondent's position is not to oppose the application. 5. The applicant asserts that the Court's order erroneously recorded the word 'discontinued' when the terms of settlement supplied to the Court had indicated that the parties had agreed that the pleadings be dismissed. 6. Although the application is made late – 11 months after the order was made – the Court's power on an application of this kind appears in r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR'). It is notable that, unlike r 36.16, there is no time limit to bringing the application. In that respect, the rule is similar to r 36.15, which is the relevant court rule concerning judgments or orders made irregularly. 7. Although ordinarily, an application of this kind should be brought before the Judge who made the order sought to be varied, in this case, the extent of her Honour's involvement appears to have been to do no more than to make dispositive orders consistent with the parties' settlement. That being so, I do not consider myself inhibited in deciding this application myself. 8. There is no indication in the evidence before me that her Honour intended to choose a word contrary to the common intention of the parties. Prima facie, the rule would be capable of being invoked. But the power under r 36.17 is discretionary; and discretionary decisions on matters of practice and procedure are to be made in accordance with case management objects, including, but not limited to, delay. Self-evidently, there must be some utility in making the order.