New South Wales Supreme Court CITATION : Gee v Burger [No 2] [2009] NSWSC 1152 HEARING DATE(S) : 27 April 2009 JUDGMENT OF : McLaughlin AsJ EX TEMPORE JUDGMENT DATE : 27 April 2009 1. I order that the amended notice of motion filed by the first defendant on 8 April 2009 be dismissed. 2. I make no orders in respect to the notices of motion filed by the plaintiffs on respectively 6 April 2009 and 15 April 2009. DECISION : 3. I order that the first defendant pay the costs of the plaintiffs of the amended notice of motion filed on 8 April 2009, such costs to be on the indemnity basis. 4. I order that the plaintiffs have leave to proceed forthwith to assessment of the foregoing costs and that upon such assessment those costs be payable forthwith to the plaintiffs. 5. I make no orders in respect to the costs of the aforesaid notices of motion filed by the plaintiffs on respectively 6 April 2009 and 15 April 2009. CATCHWORDS : PRACTICE and PROCEDURE - orders made and entered - application to set aside orders - slip rule does not apply - time for making of application - applicant seeks, in effect, not that orders should not have been made, but that other or different reasons should be given for the making of those orders - whether judicial officer is functus officio. COSTS - whether successful respondent is entitled to indemnity costs, and to have those costs paid forthwith. LEGISLATION CITED : Uniform Civil Procedure Rules CATEGORY : Procedural and other rulings PARTIES : Andrew Gee (First Plaintiff) and 25 other Plaintiffs Grace Veronica Burger (First Defendant) FILE NUMBER(S) : SC 4236 of 2007 COUNSEL : Mr D. Feller SC and Mr S. Jacobs (Plaintiffs) Mr R. Stitt QC and Mr J. Doyle (First Defendant) SOLICITORS : Alexander & Associates (Plaintiffs) Dibbs Abbott Stillman (First Defendant) THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ASSOCIATE JUSTICE McLAUGHLIN Monday, 27 APRIL 2009 4236 of 2007 - ANDREW GEE and ORS v GRACE VERONICA BURGER and ORS JUDGMENT - On amended notice of motion filed by the first defendant 1 HIS HONOUR: On 13 March 2009, after a contested hearing occupying three days, I published my reserved judgment and made orders upon the application of the plaintiffs for leave to file an amended statement of claim. My orders included orders as to costs. However, I had not heard submissions as to costs during the hearing, and as it was submitted on behalf of the plaintiffs that it was appropriate that costs be dealt with in the light of my decision, I reserved to the parties liberty to seek other costs orders. 2 The orders made by me on 13 March 2009 were entered on 16 March 2009. The entering of those orders were effected electronically pursuant to rule 36.11(2) of the Uniform Civil Procedure Rules 2005. On 6 April 2009 the first defendant filed a notice of motion, which was replaced by an amended notice of motion filed on 8 April 2009. The relief sought in the amended notice of motion was as follows: 1. Leave is granted to the first defendant to re-open its case; 2. The judgement of the Court delivered in these proceedings on 13 March 2009 is set aside pursuant to r 36.16 and 3.17 of the Uniform Civil Procedure Rules 2005; 3. The parties are granted leave to make further submissions relating to matters arising in the judgement of the Court delivered 13 March 2009 identified in written submissions filed for the first defendant filed on 6 April 2009; 4. Judgement be delivered upon a correct apprehension of the facts to determine: (a) The notice of motion filed by the plaintiffs on 8 February 2008; (b) Paragraphs 2 and 3 of the notice of motion filed by the first defendant on 20 March 2008; 5. The amended statement of claim filed in these proceedings on 18 March 2009 is struck out. 6. Costs. 3 At the commencement of today's hearing it was stated by Senior Counsel on behalf of the first defendant that the first defendant now does not seek order 5 in the amended notice of motion, that is, the order that the amended statement of claim filed by the plaintiffs on 18 March 2009 be struck out. 4 I have referred to the application by its terms, being stated to be brought pursuant to the provisions of r 36.16 and r 3.17 of the Uniform Civil Procedure Rules 2005. There is no r 3.17 of the Uniform Civil Procedure Rules. It would appear that the reference to the non-existent rule was intended to be a reference to r 36.17, and I shall treat it as being a reference to that rule. 5 The plaintiffs, on 9 April 2009, filed a notice of motion seeking that the defendant's notice of motion of 6 April 2009 be struck out, and the plaintiffs, on 15 April 2009, filed a notice of motion seeking that the defendant's amended notice of motion filed on 8 April 2009 be struck out. Each of those applications was stated to be brought upon the ground that the relevant notice of motion discloses no reasonable cause of action and is otherwise an abuse of the process of the Court. 6 I have had the benefit of receiving written outlines of submissions from Counsel for the respective parties. Those documents will be retained in the Court file. 7 To the extent that the first defendant relies upon the provisions of r 36.17 of the Uniform Civil Procedure Rules, it should be observed that that rule is frequently referred to as the slip rule. That rule has application where the terms of an order which has been made, and especially an order which has been entered, do not accurately reflect the intention of the Court in making that order. It has been submitted on behalf of the first defendant that in making the orders which I made on 13 March 2009 I was under a misapprehension concerning certain factual matters. It should be stated quite clearly that in making the orders which I made on 13 March 2009 the terms of those orders reflected precisely and accurately the orders which I intended to make. The orders which were entered on 16 March 2009 reflected entirely and accurately my intentions in that regard. The circumstances which are presently before me in no way attract the application of rule 36.17 (the slip rule). 8 I have enquired of Senior Counsel for the first defendant the specific provision of rule 36.16 upon which the first defendant relies in seeking the relief sought in paragraphs 1, 2, 3 and 4 of the first defendant's amended notice of motion. It has been stated by Senior Counsel for the first defendant that rule 36.16 has no application to the substantive relief presently sought by the first defendant unless the terms of the judgement were entered in error, in which case the first defendant relies upon rule 36.17. I have already expressed my conclusion that rule 36.17 has no application in the circumstances of the instant case. 9 Rule 36.16 gives to the Court power in certain circumstances to set aside or vary a judgment or order. Subrule (1) of that rule provides: (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. 10 That subrule clearly has no application to the circumstances of the instant case. 11 Neither does subrule (2) have any application since that subrule relates to circumstances where the judgment is a default judgment or has been given or made in the absence of a party or in certain cases relating to proceedings for the possession of land. 12 Subrule (3) provides: 3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it: (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief. 13 In the instant case the orders made by me for granting leave to the plaintiffs to file an amended statement of claim appear to me to determine a claim for relief or determine a question arising on a claim for relief. 14 Subrule( 3A) provides: (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. 15 Subrule (3B) provides: (3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered. 16 Subrule (3C) provides: (3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B). 17 The effect of subrules (3A) and (3B) is to provide a period of 14 days (but no longer) after the entering of the judgment or order, within which period either a party may apply for the setting aside or variation of the judgment or order or the Court of its own motion may set aside or vary the judgment or order. 18 Since the orders were entered on 16 March 2009 the 14 day period referred to in subrules (3A) and (3B) has long since passed, and those subrules have no present application. 19 I do not consider that in the circumstances of this case any of the provisions of rule 36.16 have application to enable the Court to set aside the orders made on 13 March 2009 and entered on 16 March 2009. But even if, contrary to that conclusion, the entering of the orders were not to preclude the exercise of the powers of the Court under r 36.16, in the circumstances of this case (where, after full argument both by the plaintiffs and by the first defendant, I have provided considered reasons for my orders herein) I regard myself as being functus officio in the present application. 20 But even if, contrary to that conclusion which I have just expressed, I were not to be functus officio in the hearing and determination of this application, I am not persuaded that in the circumstances of the instant case the discretion of the Court to set aside those orders and to re-open the hearing of the application has been enlivened. But even if, contrary to that conclusion which I have just expressed, the discretion of the Court under r 36.16 has properly been enlivened, I am not persuaded that in the proper exercise of that discretion I should set aside the orders of 13 March 2009 and re-open the hearing of the application which was determined by way of those orders. The appropriate course for any party dissatisfied with the substantive orders made by me on 13 March 2009 is by way of appeal. 21 Accordingly, I propose to order that the amended notice of motion filed by the first defendant on 8 April 2009 be dismissed. 22 It is unnecessary for me to make substantive orders on the notices of motion which were filed by the plaintiffs 9 April 2009 and on 15 April 2009, the practical effect whereof was to seek the dismissal of the first defendant's notice of motion and amended notice of motion. 23 If any of the parties wish to do so, I will hear those parties on the costs of the first defendant's application. My present view, subject to any submissions which might be made to the contrary, is that the first defendant pay the costs of the plaintiffs of the amended notice of motion filed on 8 April 2009 and that there should be no orders in respect to the costs of the two notices of motion of the plaintiffs. [COUNSEL ADDRESSED] 24 In respect to the costs of the amended notice of motion filed by the first defendant on 8 April 2009 and in which the first defendant has been totally unsuccessful, the plaintiffs seek an order that the first defendant pay the costs of the plaintiffs of that notice of motion and that such costs be paid, not on the usual party and party basis, but on the indemnity basis, and, further, the plaintiffs seek an order that those costs be payable forthwith. 25 It has been submitted on behalf of the plaintiffs that the present application by the first defendant was entirely misconceived and that it had no prospects whatsoever of success. In that regard it will be appreciated from the reasons which I have already given regarding the orders and relief sought by the first defendant in the amended notice of motion that I considered that there was no basis for the reliance by the first defendant upon the provisions of rule 36.17 (often referred to as the slip rule). To the extent that the application of the first defendant was grounded upon that rule, I am in agreement with the submission of the plaintiffs that the application was misconceived. 26 It should also be observed that by abandonment of the order for substantive relief, being order 5 in the amended notice of motion (that is, that the amended statement of claim filed on 18 much 2009 be struck out), the only practical effect of the relief sought by the first defendant in the amended notice of motion was, not that there be different orders made from those made by me on 13 March 2009, but that other or different reasons be given for the making of those orders. 27 It seems to me that once the relief sought in order 5 was abandoned the application can also accurately be described as misconceived. Further, I am in agreement with the submission of the plaintiffs that the application had no prospects of success. It could not properly be made within the ambit of rule 36.16, which was the other express basis for the application. Indeed, Senior Counsel for the first defendant in the course of submissions did not attempt to bring it within the ambit of any of the specific provisions of that rule. 28 In the reasons for judgment which I have delivered this morning I have attempted to show that it could not, in any event, be brought within the provisions of the rule. Further, even if contrary to those conclusions any of the provisions of rule 36.16 were to be regarded as having application to the relief sought by the first defendant in the amended notice of motion, I considered that the Court would not be persuaded to grant that relief. 29 I recognise, as has been submitted on behalf of the first defendant, that indemnity costs are not punitive. Nevertheless, I consider that this is a case where the application was misconceived and, in any event, had no prospects of success. In the circumstances of the application by the first defendant for the setting aside of the orders made on 13 March for the re-opening, in effect, of the hearing which had occupied three days and resulted in the orders of 13 March 2009, but seeking, in effect, not that the ultimate outcome be any different but that different reasons be given and relied upon for that outcome, I consider that this is an appropriate case where the costs of the first defendant's application to be awarded to the plaintiff should be awarded upon the indemnity basis. 30 The plaintiffs also seek an order that they be entitled to proceed forthwith to have been those costs paid. Such an order is made only where the costs relate to an entirely discrete area of the litigation. As I have already observed, any party who is dissatisfied with my orders of 13 March 2009 or with the reasons for the making of those orders set forth in my reserved judgement published on that date have a course of redress open to them, by way of appeal. I consider that the present application of the first defendant seeking to re-agitate before myself matters which were the subject of argument over a period of three days is an entirely separate and discrete area of this litigation which can, so far as the costs are concerned, be treated quite independently from the other costs of the litigation. 31 I consider it is appropriate, therefore, in these circumstances that I should make an order that the plaintiffs have leave to proceed forthwith to assessment of the costs which the defendant is to be ordered to pay in respect to the amended notice of motion and that those costs be payable forthwith upon such assessment. 32 I make the following orders: 1. I order that the amended notice of motion filed by the first defendant on 8 April 2009 be dismissed. 2. I make no orders in respect to the notices of motion filed by the plaintiffs on respectively 6 April 2009 and 15 April 2009. 3. I order that the first defendant pay the costs of the plaintiffs of the amended notice of motion filed on 8 April 2009, such costs to be on the indemnity basis. 4. I order that the plaintiffs have leave to proceed forthwith to assessment of the foregoing costs and that upon such assessment those costs be payable forthwith to the plaintiffs. 5. I make no orders in respect to the costs of the aforesaid notices of motion filed by the plaintiffs on respectively 6 April 2009 and 15 April 2009. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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