Beck v Weinstock; Beck v L W Furniture (Consolidated) Pty Ltd [2012] NSWCA 289

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Beck v Weinstock; Beck v L W Furniture (Consolidated) Pty Ltd [2012] NSWCA 289 Hearing dates: 10 July 2012 Decision date: 13 September 2012 Before: McColl JA at [1] Campbell JA at [2] Meagher JA at [83] Decision: In matter 2007/287773 (1) Grant leave to appeal. (2) Direct the Applicant to file a Notice of Appeal in the form of the draft contained in the White Book within 14 days. (3) Appeal allowed. (4) First, Second and Third Respondents to pay the costs of the Applicant of the application for leave to appeal and the appeal. (5) Respondents to have a certificate under the Suitors' Fund Act 1951 if qualified. (6) Direct the parties to consult on the orders required to strike out those parts of the Amended Notice of Motion that the Applicants have accepted in argument should be struck out, and amend the Amended Notice of Motion to reflect the striking out and amendments to the Statement of Claim in the 2011 Proceedings that the Applicants have accepted in argument should be made, and (a) within ten days of the making of these orders file and provide to the Associate of each judge who has heard this matter in this Court an agreed minute of the order to give effect to this direction, with a draft of the Amended Notice of Motion as so amended attached, or (b) within 14 days of the making of these orders each party file and provide to each such Associate his her or its respective contentions (not exceeding three pages) and draft order concerning the order that should be made to give effect to this direction. (7) Reserve further consideration of the order that should be made pursuant to the preceding direction. In matter 2011/11682 (1) Grant leave to appeal. (2) Direct the Applicant to file a Notice of Appeal in the form of the draft contained in the White Book within 14 days. (3) Appeal allowed. (4) Respondents to pay the costs of the Applicant of the application for leave to appeal and the appeal. (5) Respondents to have a certificate under the Suitors' Fund Act 1951 if qualified. (6) Direct the parties to consult on the orders required to strike out those parts of the Statement of Claim that the Applicants have accepted in argument should be struck out, (a) within ten days of the making of these orders file and provide to the Associate of each judge who has heard this matter in this Court an agreed minute of the order to give effect to this direction, with a draft of the Amended Notice of Motion as so amended attached, or (b) within 14 days of the making of these orders each party file and provide to each such Associate his her or its respective contentions (not exceeding three pages) and draft order concerning the order that should be made to give effect to this direction. (7) Reserve further consideration of the order that should be made pursuant to the preceding direction. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: JUDGMENTS AND ORDERS - res judicata - consent judgment entered in relation to a series of disputed dividends - terms of consent judgment did not cover certain further dividends - statement of claim filed in relation to further dividends - defendant sought strike-out of allegations relating to dividends because they related to a res judicata - a party is prevented by a res judicata from agitating of actions merged in a consent judgment, but only where the consent judgment is actually a judgment or order of the court - longstanding practice of the court to enter into record documents described as judgments or orders that contain material that is not part of the judgment or orders - consent orders in this case took the form of the Court noting the effect of an agreement reached inter partes - Court did not make further orders dismissing the action - thus proceedings terminated otherwise than through a mandatory or prohibitive judicial decision and there was no res judicata which prevented the institution of proceedings relating to the contested dividends - strike-out refused