New South Wales Court of Appeal CITATION : Fexuto Pty Limited v Bosnjak Holdings Pty Limited & Ors (No 2) [2001] NSWCA 115 FILE NUMBER(S) : CA 40898/98 HEARING DATE(S) : 20/04/01 JUDGMENT DATE : 20 April 2001 Fexuto Pty Limited (Appellant/Claimant) (Respondents/Opponents) Bosnjak Holdings Pty Limited Slavko James Joseph Bosnjak Carol Lynette Bosnjak Feyama Pty Limited Fexule Pty Limited National Bus Company Pty Limited Torsby Pty Limited Flaren Pty Limited PARTIES : Bosnjak Property Developments Pty Limited Westbus Pty Limited Bosnjak Investments Pty Limited Bosnjak Coach Lines Pty Limited St Mary's Bus Services Pty Limited Parramatta Bus Company Pty Limited Bosnjak Bros Pty Limited Bosnjak Enterprises Pty Limited Bosnjak Internatinal Sales Pty Limited Smithfield Coach Imports Pty Limited Westbus(UK) Limited JUDGMENT OF : Spigelman CJ at 1 LOWER COURT JURISDICTION : Supreme Court LOWER COURT ED 3799/97 FILE NUMBER(S) : LOWER COURT Young J JUDICIAL OFFICER : V F Kerr (Appellant/Claimant) COUNSEL : T Jones, Solicitor (1, 9-20 Respondents/Opponents) M Pembroke (2-8 Respondents/Opponents) Piper Alderman (Appellant/Claimant) SOLICITORS : Freehill, Hollingdale & Page (1, 9-20 Respondents/Opponents) Atanaskovic Hartnell (2-8 Respondents/Opponents) CATCHWORDS : PROCEDURE - no variation of orders - matter not raised during hearing - Supreme Court Rules, Part 40, Rule 9 DECISION : The Notice of Motion is dismissed. The Claimant should pay the Opponent's costs of the Notice of Motion. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40898/98 SPIGELMAN CJ Friday 20 April 2001 FEXUTO PTY LIMITED v BOSNJAK HOLDINGS PTY LIMITED & ORS (No 2) JUDGMENT 1 SPIGELMAN CJ: The Court has before it a Notice of Motion which has been filed in Court. It seeks to vary certain orders made by the Court when judgment was handed down on 12 April last. 2 I have already dealt with Order 2 sought in the Notice of Motion that has been filed in Court on the basis that I refused leave to have the matter referred to a full bench for determining the issue. I did so in the light of the clear statement in par [730] of the judgment of the Court's reasons for making the costs order with respect to the costs of appeal. 3 The other matter that falls to be determined is raised in Order 1 of the Notice of Motion. The issue that arises is whether I would either grant leave or myself refer the issue raised by that order to a full bench to be determined. 4 The Claimant invokes Pt40 r9 which empowers the Court to vary a judgment prior to the entry of judgment. The proper exercise of the Court's discretion under that Part does not, in my opinion, extend to matters that raise issues additional to those that were in issue in the proceedings. 5 The matter arises with respect to an Order made by Young J in an oppression suit and which, subject to variation with respect to the date at which the order will take effect, has been affirmed by this Court in the appeal. 6 The Order gave the Appellant, the Claimant on the Motion, a right to elect to put its shares in the First Respondent at their fair value. That was what the trial judge ordered and which this Court affirmed by dismissing the cross appeal from the judgment with respect to that order. 7 At all material times the Appellant/Claimant had a right, which has now been affirmed in this Court, to elect to put its share at a fair value to be ascertained. It at no stage sought orders at first instance, nor did it appeal in any respect from the Order to this Court, in a way which would have entitled it, if this Court had allowed the appeal or granted any such order, to undertake an exercise described in the order as "due diligence", in order to ascertain what might be the present value of the shares. 8 At all material times the Order obtained at first instance, and not sought to be disturbed in any relevant manner on appeal, was of the nature that an election had to be made to put the shares at a fair value to be ascertained by negotiation or, if that proved unsuccessful, by a process of the Court, presumably by proceedings before a Master. 9 In the circumstances that an order was made and no appeal was sought to be brought from the terms of that order, the issue now sought to be agitated for the first time, was open to be agitated at any time during the course of the hearing in this Court. 10 I can see no basis for permitting the Claimant to proceed on a completely new matter at this stage. The Court has made its Orders. It has done so after a long and exhaustive process of hearing and consideration of a large range of issues. 11 The matter now sought to be raised for the first time was always open to be raised, either by notice of appeal, or in argument before this Court. This comes not only at the heel of the hunt but well and truly after the hunt was over. 12 I do not regard it as a proper exercise of the discretion under Pt40 r9 subrule 1, on which the Claimant relies, to allow new issues to be agitated for the first time under a purported variation of a judgment at this stage of the proceedings. 13 Accordingly, insofar as the Applicant applies to have the matter referred to a Full Court I propose not to do so. 14 However, the Notice of Motion will be kept with the papers in case the Claimant seeks to take the matter further. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.