Georgouras v Bombardier Investments No. 2 Pty Ltd [2013] NSWSC 1549

Supreme Court New South Wales

Medium Neutral Citation: Georgouras v Bombardier Investments No. 2 Pty Ltd [2013] NSWSC 1549 Hearing dates: 18 October 2013 Decision date: 18 October 2013 Jurisdiction: Equity Division - Commercial List Before: Stevenson J Decision: Notice of Motion dismissed Catchwords: PRACTICE AND PROCEDURE - judgments and orders - correction of order under the slip rule - Uniform Civil Procedure Rules 2005 r 36.17 - common ground there was a slip - discretion to correct the slip - delay in bringing application - whether plaintiff prejudiced by delay Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333 Hanave Pty Ltd v LFOT Pty Ltd [2004] FCAFC 180; (2004) 136 FCR 566 Hatton v Harris [1892] AC 547 Newmont Yandal Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc [2007] NSWCA 195; (2007) 70 NSWLR 411 Category: Interlocutory applications Parties: Nicholas Georgouras (respondent/plaintiff) Bombardier Investments No. 2 Pty Ltd (applicant/defendant) Representation: Counsel: V F Kerr (respondent/plaintiff) F F F Salama (applicant/defendant) Solicitors: Wood Marshall Williams Lawyers (applicant/defendant) File Number(s): SC 2010/146839 Publication restriction: Nil

EX TEMPORE Judgment (REVISED) 1By Notice of Motion dated 3 July 2013, the defendant seeks an order under the "slip rule" (Uniform Civil Procedure Rules r 36.17) to correct an error in an order made on 21 July 2011 by Einstein J. 2His Honour heard these proceedings on 11 and 12 July 2011. The plaintiff appeared by his wife acting as a McKenzie friend. Mr Kerr, who appears for the plaintiff on this application, informs me that neither the plaintiff nor his wife has legal qualifications. 3His Honour delivered his principal judgment on 18 July 2011. On 21 July 2011, his Honour heard argument as to costs. Again, the plaintiff appeared by his wife. 4His Honour delivered an ex tempore judgment on 21 July 2011 on the question of costs. His Honour considered the terms of a Calderbank offer that the defendant had made to the plaintiff on 8 November 2010 and concluded that: "Attaching weight to the defendant's Calderbank letter, the proceedings could have ended earlier with a more favourable result for the plaintiff than the judgment award. Accordingly, the principled exercise of the relevant discretion is to order that: (1) Each party bear its own costs up to 7 November 2010; (2) From 8 November 2010; the plaintiff is to pay 50% of the defendant's costs assessed on an indemnity basis. " 5However his Honour went on to make orders in these terms: "The Court makes the following orders: (1) That the defendant is to pay the plaintiff's nominal damages in the sum of $5.00. (2) That each party is to pay its own costs up to an including 7 November 2011. (3) That from 8 November 2011, the plaintiff is to pay 50% of the defendant's costs assessed on an indemnity basis." 6The reference in the order to "2011" should, obviously, have been to "2010" ("the Slip"). 7The Slip found its way into the final orders. The result was that the order made by his Honour on 21 July 2011 provided that each party was to pay their own costs up to 7 November 2011 (four months later) and that from 8 November 2011 (four months later), the plaintiff was to pay half of the defendant's costs assessed on an indemnity basis. 8It is common ground that the Slip is amenable to correction under UCPR r 36.17. The question here is whether in the exercise of my discretion, I should make the correction. 9On an application under the slip rule, two questions arise (see Newmont Yandal Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc [2007] NSWCA 195; (2007) 70 NSWLR 411): (a)was there an error arising from an accidental slip or omission; and (b)should the Court exercise its discretion to correct the error? 10In exercising its discretion the Court must give effect to the overriding purpose of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules, as set out in s 56(1) of the Civil Procedure Act (see Newmont at [27]). It should also proceed on the basis that variation of an order of the Court after entry of judgment is an exceptional course (see Newmont at [29]). 11In Hanave Pty Ltd v LFOT Pty Ltd [2004] FCAFC 180; (2004) 136 FCR 566, Wilcox and Allsop JJ held: "The nature and extent of the desired variation of the judgment, the delay in bringing the variation forward, the explanation going to the existence of the accidental slip or omission and for the delay are fundamental considerations... Once litigation is over people should generally consider themselves free from further agitation of an already quelled controversy. This is the policy of finality of litigation." (at [4]). 12Also relevant to the exercise of discretion to cure a slip is the public interest in having the reasons of the Court, and the obvious intention of the Court, manifested in the orders made pursuant to those reasons. 13Amendments made under the slip rule operate from the date of the original orders, so that the Court will not make an order for amendment where it would interfere with the rights of third parties or otherwise be inexpedient or inequitable: Hatton v Harris [1892] AC 547 at 558 per Lord Herschell and 560 per Lord Watson. 14The plaintiff submits that there are two reasons why, in the circumstances of this case, I should not correct the error. 15The first is the delay in the bringing of the application. The Notice of Motion seeking to cure the Slip was filed a little under two years after the costs order was pronounced. 16The second is that the plaintiff contends that he has been prejudiced by the delay.