New South Wales Court of Appeal CITATION: Killen v Rennie & 1 Ors [2006] NSWCA 189 HEARING DATE(S): In Chambers JUDGMENT DATE: 14 July 2006 JUDGMENT OF: Mason P at 1; Santow JA at 1; Brownie AJA at 1 DECISION: ORDER that Order 3 made in proceedings No CA 40054/04 and CA 40044/04 by judgment dated 15 November 2005 be vacated and replaced with the following order: ; "The second respondent to pay the costs of the appellant and of the first respondent in this Court and in the court below but to have with respect to the former a certificate under the Suitors Fund Act 1951 if otherwise qualified." CATCHWORDS: VARIATION OF ORDER made in judgment [2005] NSWCA 392 dated 15 November 2005 LEGISLATION CITED: Uniform Civil Procedure Rules 2005, r36.17 Rosanne Lyle Fulton KILLEN (Appellant) PARTIES: Kenneth John RENNIE (First Respondent) AROONA DEVELOPMENTS PTY LIMITED (in liquidation) ACN 008 441 129 (Second Respondent) FILE NUMBER(S): CA 40054/04; 40044/04 McKells Solicitors (Appellant) SOLICITORS: Hugh & Associates (First Respondent) Watson Mangioni (Second Respondent) IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40054/04 CA 40044/04 MASON P SANTOW JA BROWNIE AJA 14 JULY 2006 Rosanne Lyle Fulton KILLEN v Kenneth John RENNIE & 1 Ors Judgment 1 THE COURT: In its judgment published on 15 November 2005, the Court made the following Order 3 in this matter: "The respondents to pay the appellant's costs in this Court and in the court below but to have with respect to the former a certificate under the Suitors Fund Act 1951 if otherwise qualified." 2 Following the handing down of this judgment, correspondence was received by the Court relating to an error in the terms of Order 3 on the basis that the first respondent, Mr Rennie, had not taken any part in the hearing of the appeal beyond submitting an appearance and that accordingly the costs order should only have been made against the second respondent. Mr Rennie was the liquidator of Rotor-Work Pty Ltd, a Killen family company, but had no position within the second respondent, Aroona Developments Pty Ltd. 3 The chronology of the key pieces of correspondence on this issue can be summarised as follows: (a) Letter from Mr A E F Rofe AM, brother of the successful appellant, to the Associate to Justice Santow dated 1 March 2006; (b) Faxed letter from Associate to Justice Santow to the solicitors for the parties (copied to Mr A E F Rofe AM) dated 9 March 2006 attaching the letter from Mr A E F Rofe; (c) Letter from McKell's to the Associate to Justice Santow dated 28 March 2006 with a second letter of that date correcting the first letter; (d) Faxed letter from Watson Mangioni to the Associate to Justice Santow dated 30 March 2006; (e) Faxed letter from Hugh & Associates to the Associate to Justice Santow dated 30 March 2006; (f) Faxed letter from Mr B G L Killen (husband of the successful appellant) to the solicitors for the first and second respondents (copied to the Associate to Justice Santow) dated 5 April 2006 with a second letter dated 6 April 2006 correcting errors in the first letter; (g) Faxed letter from Associate to Justice Santow to the solicitors for the parties (copied to Mr A E F Rofe and Mr B G L Killen) dated 7 April 2006; (h) Letter from Mr B G L Killen to the Associate to Justice Santow dated 12 April 2006, attaching a copy of the legal costs of Ms Killen for the appeal; (i) Faxed letter from Associate to Justice Santow to the solicitors for the parties dated 13 April 2006; (j) Letter from Mr A E F Rofe AM to the Associate to Justice Santow dated 1 May 2006 withdrawing form the course of correspondence; (k) Faxed letter from Watson Mangioni to the Associate to Justice Santow dated 19 May 2006. 4 In our opinion the oversight identified through this correspondence is sufficient to attract the exercise of the 'slip rule'. Accordingly, this Court acts pursuant to Rule 36.17 of the Uniform Civil Procedure Rules 2005, as a consequence whereof the Court makes the following order: ORDER that Order 3 made in proceedings No CA 40054/04 and CA 40044/04 by judgment dated 15 November 2005, be vacated and replaced with the following order: "The second respondent to pay the costs of the appellant and of the first respondent in this Court and in the court below but to have with respect to the former a certificate under the Suitors Fund Act 1951 if otherwise qualified." ********** 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.