Ghougassian v Sutherland [2013] NSWCA 168

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ghougassian v Sutherland [2013] NSWCA 168 Hearing dates: 3 June 2013 Decision date: 11 June 2013 Before: Bathurst CJ at [1]; Meagher JA at [2]; Leeming JA at [28] Decision: (1) The time for the filing and serving of the notice of appeal be extended to 12 July 2012. (2) St Gregory's Armenian School Inc (In Liq) be joined as second respondent in the appeal. (3) Grant leave to the appellants to commence and prosecute the appeal against each of the respondents. (4) Appeal dismissed. (5) The first and second appellants pay the respondents' costs of the appeal. [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: PROCEDURE - taking of account between mortgagor and mortgagees ordered pursuant to Uniform Civil Procedure Rules 2005, r 46.2 - dispute as to amount of principal and interest secured by mortgage - after hearing and delivery of reasons for judgment mortgagees sought to make claim for compound interest not included in statements of account delivered in accordance with r 46.5 - primary judge refused to allow claim on basis that mortgagor prejudiced because unable to raise arguable defence due to lateness of application - statement of account and notice of error defined issues and accordingly to be treated as equivalent to pleadings - no error in primary judge's formulation of relevant question as being one of amendment or in the exercise of discretion to reject claim Legislation Cited: Corporations Act 2001 (Cth), s 471B Uniform Civil Procedure Rules 2005, rr 46.2, 46.5, 46.6, 46.7, 51.8, 51.16 Cases Cited: Sutherland v Ghougassian [2012] NSWSC 125 Sutherland v Ghougassian (No. 3) [2012] NSWSC 334 Vartinians v St Gregory's Armenian School Inc [2011] NSWSC 406 Category: Principal judgment Parties: Michael Ghougassian (First Appellant) Daniel Ghougassian (Second Appellant) Nareg Ltd (Third Appellant) Roderick Mackay Sutherland (First Respondent) St Gregory's Armenian School Inc (In Liq) (Second Respondent) Representation: Counsel: P E King (Appellants) J K Taylor (First Respondent) Solicitors: Robert Balzola and Associates (Appellants) Addisons (First Respondent) File Number(s): 2012/158190 Decision under appeal Jurisdiction: 9111 Citation: Sutherland v Ghougassian (No 3) [2012] NSWSC 334 Date of Decision: 2012-04-11 00:00:00 Before: White J File Number(s): 2010/66795 2011/10869