HECKENBERG & ANOR v DELAFORCE (NO 2) [2000] NSWCA 254

New South Wales Court of Appeal

CITATION : HECKENBERG & ANOR v DELAFORCE (NO 2) [2000] NSWCA 254 FILE NUMBER(S) : CA 40257/98 HEARING DATE(S) : On the papers. JUDGMENT DATE : 8 September 2000

PARTIES : Marlene Joyce HECKENBERG & Anor v Eric DELAFORCE JUDGMENT OF : Mason P at 1; Meagher JA at 34; Beazley JA at 35

COUNSEL : Appellants: P Brereton SC Respondent: L Stapleton SOLICITORS : Appellants: Budd & Piper (Tweed Heads) Respondent: Priest McCarron CATCHWORDS : Application to re-open - whether argument previously overlooked DECISION : See par 32

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40257/98

MASON P MEAGHER JA BEAZLEY JA

Friday 8 September 2000

Marlene Joyce HECKENBERG & ANOR v Eric DELAFORCE (No 2) JUDGMENT 1 MASON P: This appeal was determined on 8 June 2000 (see Heckenberg v Delaforce [2000] NSWCA 137). By majority, the appeal was dismissed. The reasons are to be found in my judgment, with which Beazley JA agreed. 2 By notice of motion the appellants seek reconsideration of pars 26, 44 and 45 of my reasons for judgment and, in light of such reconsideration, orders setting aside the orders pronounced on 8 June 2000 (dismissing the appeal) and the making of orders allowing the appeal. 3 The orders pronounced on 8 June 2000 have not been entered. The Court has power to reconsider an issue if its earlier judgment proceeded on a misunderstanding not attributable solely to the neglect or default of the applicant for rehearing (see Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300). The parties have exchanged submissions, thereby enabling the matter to be dealt with on the papers. 4 The application focuses upon par 44 of my reasons. It is convenient if pars 43-45 are set out. 43. In this Court a primary submission of the appellants was that restitutionary relief was, in the circumstances, only available if the relevant contractual arrangement, ie the first Deed, had been validly brought to an end by the respondent. It was submitted that the respondent had no basis for termination, nor had he purported to do so.