Perpetual Trustees Australia Ltd v Heperu Pty Ltd & Ors [No 2] [2009] NSWCA 387

Reported Decision: 78 NSWLR 190

New South Wales Court of Appeal

CITATION: Perpetual Trustees Australia Ltd v Heperu Pty Ltd & Ors [No 2] [2009] NSWCA 387 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 12/11/2009

JUDGMENT DATE: 30 November 2009

JUDGMENT OF: Allsop P; Campbell JA; Handley AJA

(1) Separate question (1) is amended by adding "further or in the alternative that those matters, if proved, fell within s 63(1) of the Civil Procedure Act and attracted the Court's powers in s 63(3)." (2) Separate Questions answered: 1. No. DECISION: 2. No. (3) Notice of Motion of 20 May 2009 dismissed. (4) Costs reserved. (5) Respondents to file and serve written submissions on the appropriate order or orders for costs within 5 days. (6) The appellant to file and serve written submissions on those questions within a further 5 days.

CATCHWORDS: PROCEDURE - perfected final orders – irregularity – re-opening. - PRACTICE AND PROCEDURE - overriding purpose - duty of parties to assist Court - whether breach capable of being irregularity within Civil Procedure Act s 63. - RES JUDICATA - whether irregularity within Civil Procedure Act s 63 entitles unsuccessful party to have perfected final orders re-opened. - RES JUDICATA – finality - perfected orders - restrictions on re-opening.

LEGISLATION CITED: Corporations Act 2001 Civil Procedure Act , s 63

CATEGORY: Separate question

Arnold v National Westminster Bank Plc [1991] 2 AC 93 Benson v Northern Ireland Road Transport Board [1942] AC 520 Burrell v R [2008] HCA 34, 82 ALJR 1221 CASES CITED: Davern v Messel [1984] HCA 34; 155 CLR 21 Jonesco v Beard [1930] AC 298 Lemm v Mitchell [1912] AC 400 McDonald v McDonald [1965] HCA 45; 113 CLR 529