The Food Improvers Pty Limited v BGR Corporation Pty Ltd (No 5) [2007] FCA 466

The Food Improvers Pty Limited v BGR Corporation Pty Ltd (No 5) [2007] FCA 466

Order 1 made on 28 February 2007 was framed too narrowly because the Court overlooked that the plaintiffs had put in issue repayment of costs paid by the BGR group, not only BGR. The mistake was an accidental slip or omission within the Court's powers under the slip rule and O 35 r 7(3), and the order did not reflect the Court's intention to restore BGR and its group to the position they should have been in had the oppressive conduct not occurred. Because the relevant BGR group members were in liquidation, the proper correction was to require the second and third defendants to pay 90% of each relevant payment to the defendant that made that payment, rather than to BGR alone.

Jurisdiction
Australia
Judgment Date
29 March 2007
Procedural Posture
Practice and Procedure; Amendment of Judgments and Orders Under the Slip Rule / Variation of Order Made on 28 February 2007 After Judgment
Outcome
Order 1 made on 28 February 2007 varied under the slip rule and O 35 r 7(3).
Legal Topics
['amendment of Judgments and Orders' 'slip Rule' 'correction of Accidental Slip or Omission' 'variation of Entered Orders' 'costs and Disbursements']
['practice and Procedure' 'civil Procedure'] ['amendment of Judgments and Orders' 'slip Rule' 'correction of Accidental Slip or Omission' 'variation of Entered Orders' 'costs and Disbursements']

Case Brief

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Procedural Posture

Practice and Procedure; Amendment of Judgments and Orders Under the Slip Rule / Variation of Order Made on 28 February 2007 After Judgment

Legal Issues

  1. 1 ['Whether order 1 made on 28 February 2007 should be varied under the slip rule and O 35 r 7(3) because it resulted from an accidental slip or omission.' 'Whether the order should be varied under O 35 r 7(2)(e) because it did not reflect the intention of the Court.' 'Whether repayment should be made to BGR alone or to each relevant BGR group company that paid legal costs and disbursements.']

Ratio Decidendi

Order 1 made on 28 February 2007 was framed too narrowly because the Court overlooked that the plaintiffs had put in issue repayment of costs paid by the BGR group, not only BGR. The mistake was an accidental slip or omission within the Court's powers under the slip rule and O 35 r 7(3), and the order did not reflect the Court's intention to restore BGR and its group to the position they should have been in had the oppressive conduct not occurred. Because the relevant BGR group members were in liquidation, the proper correction was to require the second and third defendants to pay 90% of each relevant payment to the defendant that made that payment, rather than to BGR alone.

Court Disposition

Order 1 made on 28 February 2007 varied under the slip rule and O 35 r 7(3).

Orders

  • ["Pursuant to the slip rule and O 35 r 7(3), order 1 made on 28 February 2007 be varied by deleting 'The second and third defendants pay to the first defendant 90%' and (a) substituting 'Ninety percent'; (b) adding after the words 'these proceedings' the following: 'be paid by the second and third defendants to each...