McLaughlin v Dungowan Manly Pty Ltd (No 2) [2011] NSWSC 384

McLaughlin v Dungowan Manly Pty Ltd (No 2) [2011] NSWSC 384

The application under Rule 36.17 failed because there was no clerical mistake, inadvertent error, omission or other error in the judgment or orders, which reflected the court's intention. However, the judgment was re-opened in part under Rule 36.16 because, in light of Sections 56 and 90 of the Civil Procedure Act 2005 and the risk that the controversy would not otherwise be quelled, the parties should be heard on possible further declarations flowing from the conclusions of fact and law already reached.

Jurisdiction
Australia
Judgment Date
10 May 2011
Procedural Posture
Application to Set Aside Judgment and Re Open Proceeding / Post Judgment Application Under Rules 36.16 and 36.17
Outcome
Application allowed in part: the Rule 36.17 slip rule application was rejected, but the decision was re-opened for further submissions and a further hearing on possible further declarations; costs reserved.
Legal Topics
['application to Set Aside Judgment' 'slip Rule' 'exceptional Power to Re Open Judgment' 'overriding Purpose in Civil Proceedings' 'share Surrender Agreements' 'shareholder Voting and Notice Rights']
['civil Procedure' 'corporations Law'] ['application to Set Aside Judgment' 'slip Rule' 'exceptional Power to Re Open Judgment' 'overriding Purpose in Civil Proceedings' 'share Surrender Agreements' 'shareholder Voting and Notice Rights']

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Procedural Posture

Application to Set Aside Judgment and Re Open Proceeding / Post Judgment Application Under Rules 36.16 and 36.17

Legal Issues

  1. 1 ['Whether the judgment or orders should be set aside under Rule 36.17 as a clerical mistake, inadvertent error or omission, or other error.' 'Whether the proceeding should be re-opened under Rule 36.16 so that further submissions could be made concerning possible declarations about the residual rights of shareholders after completion of the share surrender agreements.' 'Whether Sections 56 and 90 of the Civil Procedure Act made it appropriate to go further than rejecting the specific declarations and orders sought by the plaintiffs in order to facilitate resolution of the real issues.']

Ratio Decidendi

The application under Rule 36.17 failed because there was no clerical mistake, inadvertent error, omission or other error in the judgment or orders, which reflected the court's intention. However, the judgment was re-opened in part under Rule 36.16 because, in light of Sections 56 and 90 of the Civil Procedure Act 2005 and the risk that the controversy would not otherwise be quelled, the parties should be heard on possible further declarations flowing from the conclusions of fact and law already reached.

Court Disposition

Application allowed in part: the Rule 36.17 slip rule application was rejected, but the decision was re-opened for further submissions and a further hearing on possible further declarations; costs reserved.

Orders

  • ['The proceedings are to be listed in the Expedition List on Friday, 13 May 2011 for orders, appropriate directions to facilitate the further hearing, and allocation of a further hearing date.' 'Costs reserved.']