First Mortgage Managed Investments Pty Limited v Pittman (No 2) [2014] NSWCA 272

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: First Mortgage Managed Investments Pty Limited v Pittman (No 2) [2014] NSWCA 272 Hearing dates: On the papers (last submissions received 20 June 2014) Decision date: 19 August 2014 Before: Beazley P; Gleeson JA; Sackville AJA Decision: 1. Dismiss the respondents' motion filed on 17 April 2014 (Motion) insofar as it seeks the orders referred to in paragraphs 1 and 2. 2. The respondents pay the appellant's costs of the Motion. 3. The respondents have leave to file a cross-appeal naming the second cross-defendant (Ms Locke) as a cross-respondent and seeking an order setting aside Order 5 made by the primary Judge on 18 December 2012. 4. Direct the respondents to file the notice of cross-appeal within seven days and serve the notice of cross-appeal on Ms Locke within the same period by registered mail at her last known address, together with a copy of this judgment. 5. Subject to the respondents' compliance with Order 4, set aside Order 5 made by the primary Judge on 18 December 2012 and remit the respondents' cross-claim against Ms Locke to the primary Judge for hearing and determination. 6. Amend Orders 2 and 3 made by the Court on 7 April 2014 to add the words "of delivery of judgment in First Mortgage Investments Pty Ltd v Pittman (No 2)" after "14 days" whenever appearing. 7. Note that the stay ordered by the Court on 12 May 2014 has expired. [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, re-opening to reconsider a point under Uniform Civil Procedure Rules r36.16 - Whether the Court proceeded on a misapprehension as to the facts or the evidence - Whether the Court overlooked or failed to consider submissions made by the respondents on appeal Legislation Cited: Contracts Review Act 1980 (NSW) s7 Civil Procedure Act 2005 (NSW) s 91 Uniform Civil Procedure Rules 2005 (NSW) r6.24, 36.16, 51.4 Cases Cited: Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (No 2) (2013) 87 ALJR 1159 De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 First Mortgage Managed Investments Pty Limited v Pittman [2014] NSWCA 110 Power v Deputy Commissioner of Taxation (No 2) [2014] NSWCA 77 Smith v New South Wales Bar Association (1992) 176 CLR 256 Category: Procedural and other rulings Parties: First Mortgage Managed Investments Ltd (Appellant) Basil James Pittman (First Respondent) Rex Neil Webster (Second Respondent) Representation: Counsel: AG Bell SC / KS Howe (Appellant) TF Robertson SC / JE Lazarus (Respondents)