AKRON SECURITIES LTD v ILIFFE and ORS (No 3) [1997] NSWCA 10

AKRON SECURITIES LTD y ILIFFE and ORS (No 3)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, PRIESTLEY and MEAGHER JJA

25 August 1997, 26 September 1997

[1997] NSWCA 10

"Slip rule" — Pt20 r10 Supreme Court Rules

In Akron Securities Ltd v Iliffe (No 1) (1997) 143 ALR 457 the Court allowed an appeal challenging orders for rescission consequent upon a finding of breach of s52 of the Trade Practices Act. In Akron Securities v Iliffe (No 2) (CA, unreported, 26 June 1997) the Court made restitutionary orders in the absence of agreement by the parties. On 2 July 1997 the appellant notified the Court of a supposed mathematical error in relation to the restitutionary order. On 10 July 1997, the orders were entered, despite directions given by the President and the Registrar.

The appellant seeks a correction of the court's error under the slip rule or, alternatively, under any similar inherent power. The respondent contends that the error is outside the scope of the slip rule because the restitutionary order faithfully reflects the reasoning of the judgment in Akron (No 2)

Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 applied.

Mason P The appellant would have us follow St Augustine of Hippo, who said that "to err is human, to persist in error is devilish" (Sermons). The respondents prefer John Locke who wrote in the aptly named Essay on Human Understanding that "it is one thing to show a man that he is in error, and another to put him in possession of truth".

At trial, Rolfe J had found that the appellant's agent had misrepresented the effect of the "minimum receipts guarantee" component of the Bernborough 1988 Breeding Venture. This amounted to a breach of s52 of the Trade Practices Act. The learned judge declared void ab initio all contractual arrangements between the parties. This set aside the Loan Agreement and Lease Agreement pursuant to which the appellant was suing the respondents for outstanding moneys (totalling $60,080 plus interest per share) (hereafter "the unpaid sums"). The appellant was also ordered to repay to the respondents the net sum received to date from the respondents (then totalling $62,297 per share) (hereafter "the refunded sums"). The appellant accepted the finding of breach, but challenged the remedy on appeal.