Supreme Court New South Wales Medium Neutral Citation: D & A Property Group Pty Ltd v Sonar Investment Pty Ltd (No 3) [2014] NSWSC 1853 Hearing dates: In chambers Decision date: 22 December 2014 Jurisdiction: Equity Division - Duty List Before: Brereton J Decision: Mathematical error corrected under slip rule Catchwords: PROCEDURE - judgments and orders - amending, varying and setting aside - slip rule - mathematical error Legislation Cited: (NSW) Uniform Civil Procedure Rules, r 36.17 Category: Consequential orders Parties: D & A Property group Pty Ltd (first plaintiff) Yan Zhang (second plaintiff) Qinrong Gu (third plaintiff) Sonar Investment Pty Ltd ACN 162 715 906 (first defendant) Sonar Australia Pty Limited ACN 160 670 539 (second defendant) Xiaofeng Li (third defendant) Liming Zhu (fourth defendant) Wei Zhu (fifth defendant) Representation: Counsel: R Chen (solicitor) (plaintiffs) D McGovern SC (defendants) Solicitors: McQiu Lawyers (plaintiffs) Kemp Strang (defendants) File Number(s): 2014/327487 Judgment 1HIS HONOUR: On 15 December 2014, for reasons given that day, I made orders which were noted in the record of proceedings as follows: In lieu of order 1 made 8 December THE COURT ORDERS THAT the defendant's be restrained from by themselves their servants or agents removing from Australia or in any way disposing of or diminishing or otherwise dealing with the proceeds of sale of the Hornsby project currently held in the trust account of Swaab's Attorneys to the extent of $10,391,631.25 provided that: a. the defendants are at liberty to pay up to $465,382.00 from that sum to creditors of the first defendant; and b. the defendants are at liberty to pay up to $69,049 to the third plaintiff in respect of moneys paid by him to creditors of the first defendant Other orders including liberty to apply on 24 hours notice to vary that order and the undertakings previously noted will remain in force. Costs of the interlocutory application until and including Monday 8 December will be plaintiffs' costs in the cause. No order as to costs in respect of the application on 12 December and today. 2The defendants have requested that the order be amended in two respects. 3The first is in respect of the amount frozen by the order. The defendants correctly submit that in calculating the revised amount, I failed to allow that the base amount of $8,980,362.25, being the amount frozen in the earlier orders of 8 December 2014, already included provision for GST in the sum of $1,500,000. Accordingly, the amount of $10,391,631.25 involved an accidental mathematical error by reason that it counted the provision for GST twice. Such an error can, and should, be corrected under the slip rule 4The second is that the defendants' counsel mistakenly submitted that costs of the application should be plaintiffs' costs in the cause - which was reflected in the costs order I made - whereas he had intended to submit that costs be defendants' costs in the cause. However, regardless of counsel's submission, it was my judgment that costs of the interlocutory application (until and including 8 December) should be plaintiffs' costs in the case, because the plaintiffs' application for interlocutory relief had substantially succeeded, over opposition; the plaintiffs were deprived of their costs after 8 December because although their subsequent application in respect of GST was successful, it was belated and ought to have been made at the time of the original interlocutory application. Accordingly, although there may have been an accidental slip on the part of counsel, the costs order reflected the intention of the court and any such slip was inconsequential. I will not amend the costs order. 5The Court orders that pursuant to UCPR r 36.17 the order made on 15 December 2014 be corrected by substituting the matter "$8,891,631.25" for the matter "$10,391,631.25", and so that the corrected formal order is as follows: THE COURT ORDERS THAT: 1.In lieu of order 1 made on 8 December 2014 the defendants be restrained from by themselves their servants or agents removing from Australia or in any way disposing of or diminishing or otherwise dealing with the proceeds of sale of the Hornsby project currently held in the trust account of Swaab's Attorneys to the extent of $8,891,631.25, provided that: a. the defendants are at liberty to pay up to $465,382.00 from that sum to creditors of the first defendant; and b. the defendants are at liberty to pay up to $69,049 to the third plaintiff in respect of moneys paid by him to creditors of the first defendant. 2.The other orders of 8 December 2014, including liberty to apply on 24 hours notice to vary order 1 above, and the undertakings previously noted, remain in force. 3.Costs of the interlocutory application until and including Monday 8 December be plaintiffs' costs in the cause. 4.There be no order as to costs in respect of the application on 12 December and today. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2014