Pegela Pty Ltd v Oates (No 2) [2010] NSWCA 292

New South Wales Court of Appeal

CITATION: Pegela Pty Ltd v Oates (No 2) [2010] NSWCA 292

HEARING DATE(S): 27 April 2010

JUDGMENT DATE: 8 November 2010

JUDGMENT OF: Allsop P at 1; McColl JA at 1; Young JA at 1

DECISION: Notice of motion dismissed with costs.

CATCHWORDS: PROCEDURE – judgments and orders – application to vary orders – no question of principle – application to vary orders refused

LEGISLATION CITED: Uniform Civil Procedure Rules 2005, rr 36.11, 36.16 (3A), 36.17

CATEGORY: Consequential orders

CASES CITED: Pegela Pty Ltd v Oates [2010] NSWCA 186

Pegela Pty Limited (First Appellant) PARTIES: Garrick Hawkins (Second Appellant) Tom Michael Oates (First Respondent) Paul Oates (Second Respondent)

FILE NUMBER(S): CA 2009/298568

COUNSEL: M L Williams SC, J Darams (Appellants) A W Street SC, J Hewitt (Respondents)

SOLICITORS: Eakin McCaffery Cox Solicitors (Appellants) Thompson Eslick Solicitors (Respondents)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 5539/07

LOWER COURT JUDICIAL OFFICER: Rolfe DCJ

LOWER COURT DATE OF DECISION: 13 November 2009

LOWER COURT MEDIUM NEUTRAL CITATION: Garrick Hawkins v Tom Oates [2009] NSWDC 258

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2009/298568

ALLSOP P McCOLL JA YOUNG JA

Monday 8 November 2010 PEGELA PTY LTD v OATES (NO 2) Judgment 1 THE COURT: On 9 August 2010, this Court allowed an appeal from the District Court in these proceedings. It set aside the judgment below and found a verdict for the appellants for $91,000 plus interest. (Pegela Pty Ltd v Oates [2010] NSWCA 186). 2 On 23 August 2010, within 14 days of the orders being made, the respondents filed a notice of motion seeking to vary the amount of the verdict from $91,000 plus interest to $59,406.66 plus interest. 3 The motion was supported by affidavit material and written submissions. An affidavit and written submissions were filed in response by the appellants. 4 The appellants opposed the proposed variation. The matter proceeded on the papers. 5 Meanwhile, on 15 September 2010, a paper copy of the orders was sealed and entered. It is unnecessary to consider the relationship of the operation of the Uniform Civil Procedure Rules 2005 ("UCPR") in relation to electronic entry and the sealing of a hard copy. (See generally UCPR, r 36.11.) The respondents made application within 14 days of the pronouncement of orders for the variation of the orders, which on any basis satisfied UCPR, r 36.16 (3A). No submission was put that the Court had no authority to deal with the matter. 6 In their submissions, the respondents sought also an order varying the manner in which the costs below should be paid. The appellants took the position that that matter was outside the terms of the orders sought in the notice of motion. 7 We agree that the cost matters were raised too late. They should have been raised at the hearing. We are not prepared to entertain them now. 8 As to the reduction of the judgment sum, the appellants do not dispute the ability of the Court to deal with the motion, but say that no such order should be made on the substance of the matter. 9 At the outset, it should be noted that at the very end of argument in this Court it was noted by Allsop P that the parties had not addressed in any way assisting the Court the question of the judgment sum should the appellants be successful (as they were). The parties were directed to agree the amount and file a document. They did not do so. The final pages of the transcript of argument on appeal reveal the issue was apparently contested, though the argument can only be described as desultory and unhelpful. There was a bald statement of the parties' positions by one counsel, which reflected positions that were different and that were maintained in argument on the motion. 10 The respondents note that at [76] of the judgment of Young JA, his Honour said that "…the possibility of the plaintiffs/appellants succeeding on an account stated may be put aside." 11 However, the point of that remark was that it was odd that a plaintiff could have proved its case easily, but, instead, had chosen not to do so, but to pursue a more circuitous route. It did not say and should not be taken to mean that Young JA considered that there was no case for a judgment of $91,000. 12 The respondents say that, it is clear that the appellants spent $2,662,540.53 on the AXA litigation. Twelve per cent of that sum is $319,504.86. The material put to the District Court and not contradicted was that the respondents had paid $260,098.20 ($10,000 of this is not admitted). Thus, on the 12 per cent basis, they owed $59,406.66. The appellants contest this and rely upon contemporaneous admissions by Mr Oates that he and his brother owed $91,000. 13 The parties did not address the precise sums with any clarity. The matter was raised by the President late in argument and left without resolution, other than a bald (and not entirely complete) statement of the respective positions of the parties. 14 The argument before the Court concentrated on whether the contract was 12 per cent or one-twelfth. There was clear evidence of admission of a debt of $91,000 and that the Oates brothers would pay that sum when they could. 15 It was upon that clear admission that the appellants rely. 16 We are not persuaded that there is mistake which needs correction under the slip rule (UCPR, r 36.17) or that, in the face of the admissions of the respondents in the evidence, that there is any justice in setting aside the order and permitting a reopening. Indeed, if the order were to be set aside, given the lack of attention to the matters before this Court, we would remit the matter to the District Court for resolution of quantum on the basis of the Court's reasons otherwise. We do not propose to do that. This litigation should be finalised. 17 The notice of motion should be dismissed with costs. **********