Bird v Bird (No 2) [2013] NSWCA 380

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bird v Bird (No 2) [2013] NSWCA 380 Hearing dates: On the papers Decision date: 18 November 2013 Before: Beazley P at [1] Macfarlan JA at [2] Ward JA at [23] Decision: (1) Vary order (3) made on 16 August 2013 to substitute the amount of $122,652.35 for the amount of $188,920.25. (2) Otherwise dismiss the respondents' Notices of Motion. (3) Note that the Court declines to make any order as to the costs of the respondents' Notices of Motion or as to the post 16 August 2013 interest submissions and calculations. (4) Direct Deborah Bird to lodge with the Court, and serve on the respondents, within seven days of the date of this judgment a calculation of the interest to which she is entitled in accordance with the Court's reasons for judgment, with a view to the Court making a final order in chambers as to the amount of the judgment inclusive of interest. [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 - judgments and orders - amending, varying and setting aside - UCPR r 36.16 - Court under misapprehension as to aspect of evidence relevant to judgment amount - misapprehension not the fault of the parties - judgment amount varied - applications to vary Court of Appeal orders concerning costs at first instance and on appeal - no submissions on costs put at appeal hearing - principle of finality - applications dismissed Legislation Cited: Civil Procedure Act 2005 Limitation Act 1969 Uniform Civil Procedure Rules Cases Cited: Aktas v Westpac Banking Corporation (No 2) [2010] HCA 47; 241 CLR 570 Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd [2013] HCA 44; 87 ALJR 1159 Streetscape Projects (Australia) Pty Ltd v City of Sydney (No 2) [2013] NSWCA 240 Tobin v Ezekiel (No 2) [2012] NSWCA 409 Category: Procedural and other rulings Parties: Deborah Michelle Bird (Appellant) Warrick Lindsay Bird (First Respondent) Rodney David Bird (Second Respondent) Herbert James Cannington (Third Respondent) Estate of Mona Ethel Bird (Fourth Respondent) Representation: Counsel: B W Rayment QC/J S Drummond (Appellant) R Darke SC/M K Condon SC (First and Second Respondents) C Champion (Third Respondent) Solicitors: Wilson & Co Lawyers (Appellant) Hills Solicitors (First and Second Respondents) Middletons Lawyers (Third Respondent) File Number(s): CA 2012/203657 Decision under appeal Jurisdiction: 9111 Citation: Bird v Bird (No 4) [2012] NSWSC 648 Bird v Bird (No 5) [2012] NSWSC 734 Before: Rein J File Number(s): SC 2005/262267