Laing & Simmons Corporation Pty Ltd ACN 002 715 764 v SJB 5 Pty Ltd ACN 604 846 639 & Anor [2020] NSWDC 42

District Court New South Wales

Medium Neutral Citation: Laing & Simmons Corporation Pty Ltd ACN 002 715 764 v SJB 5 Pty Ltd ACN 604 846 639 & Anor [2020] NSWDC 42 Hearing dates: 6 March 2020 Date of orders: 13 March 2020 Decision date: 13 March 2020 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Dismiss the plaintiff's Notice of Motion filed on 10 October 2019. (2) Order each party to pay its or his own costs of the Motion. Catchwords: PROCEDURE – slip rule – orders drafted by parties and made by consent – whether there had been an error from an accidental slip or omission – necessary to ascertain the intention of the court when making the orders – Rule 36.17 Uniform Civil Procedure Rules 2005 (NSW) Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 36.17 Cases Cited: Newmont Yandal Operations Pty Limited v The J Aron Corporation and the Goldman Sachs Group Inc [2007] NSWCA 195; (2007) 70 NSWLR 411 Category: Procedural and other rulings Parties: Laing & Simmons Corporation Pty Ltd ACN 002 715 764 (Plaintiff) SJB 5 Pty Ltd ACN 604 846 639 (First Defendant) Koroush Changizi (Second Defendant) Representation: Counsel: D Parish (Plaintiff) K Changizi (Self-represented) (Defendants)

Solicitors: Baybridge Lawyers (Plaintiff) File Number(s): 2017/221253

Judgment

Introduction 1. By a Statement of Claim filed on 20 July 2017 the plaintiff Laing & Simmons Corporation Pty Ltd (Laing & Simmons) sued the first defendant SJB 5 Pty Ltd (SJB) and the second defendant Mr Changizi in relation to alleged breaches of a Franchise Agreement. The defendants filed Defences and a Cross Claim against the plaintiff. 2. The proceedings were listed for hearing before me on 24 July 2018. On that date counsel announced that the proceedings had been settled. A document entitled "Terms of Settlement" was handed up. As requested by the parties, who were represented by counsel and solicitors, I made the following orders: "(1) Orders in accordance with paragraphs 1, 3 and 4 of the Terms of Settlement filed in court. (2) Note paragraphs 2 and 5-13 inclusive of the Terms of Settlement." 1. By a Notice of Motion filed on 10 October 2019 Laing & Simmons seeks the following orders: "1 Pursuant to rule 36.17 of the Uniform Civil Procedure Rules 2005, in respect of the order made by Russell DCJ on 24 July 2018 in accordance with paragraph 3 of the Terms of Settlement, the Court: a) notes that the 'costs of the Statement of Claim as agreed or assessed' include all costs of the proceedings relating or referring to the matters alleged in the Statement of Claim; or in the alternative, b) order that after the words 'Plaintiff's costs of the', the words 'proceedings in respect of' be inserted in the Terms of Settlement. 2 Any further or other order that this Honourable Court deems fit. 3 Costs." 1. Rule 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) is known as the "slip rule". It provides: "If there is a clerical mistake, or an error arising from an accident or slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error."