Gee v Burger [No 2] [2009] NSWSC 1152

Gee v Burger [No 2] [2009] NSWSC 1152

The amended notice of motion was dismissed because the orders made on 13 March 2009 and entered on 16 March 2009 accurately reflected the Court's intention, so r 36.17 did not apply; r 36.16 did not empower the Court to set aside or vary the orders in the circumstances, including because the relevant 14 day period had passed and the orders determined a claim for relief or a question arising on a claim for relief; in any event the Court regarded itself as functus officio and considered appeal the appropriate course. The application was misconceived and had no prospects of success, justifying indemnity costs payable forthwith because the application was a discrete area of the litigation.

Jurisdiction
Australia
Judgment Date
27 April 2009
Procedural Posture
Procedural and Other Rulings / Amended Notice of Motion by the First Defendant to Set Aside Orders and Re Open the Case; Plaintiffs' Notices of Motion to Strike Out the Defendant's Motions; Costs
Outcome
First defendant's amended notice of motion dismissed; no orders made on the plaintiffs' notices of motion; first defendant ordered to pay plaintiffs' indemnity costs of the amended notice of motion, assessed and payable forthwith.
Legal Topics
['application to Set Aside Orders' 'slip Rule' 'functus Officio' 'indemnity Costs' 'costs Payable Forthwith']
['practice and Procedure' 'costs'] ['application to Set Aside Orders' 'slip Rule' 'functus Officio' 'indemnity Costs' 'costs Payable Forthwith']

Case Brief

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Procedural Posture

Procedural and Other Rulings / Amended Notice of Motion by the First Defendant to Set Aside Orders and Re Open the Case; Plaintiffs' Notices of Motion to Strike Out the Defendant's Motions; Costs

Legal Issues

  1. 1 ["Whether r 36.17 of the Uniform Civil Procedure Rules 2005 applied where the entered orders accurately reflected the Court's intention." 'Whether r 36.16 of the Uniform Civil Procedure Rules 2005 empowered the Court to set aside or vary orders made on 13 March 2009 and entered on 16 March 2009.' 'Whether the judicial officer was functus officio in relation to the application.' 'Whether the plaintiffs should receive indemnity costs and have those costs payable forthwith.']

Ratio Decidendi

The amended notice of motion was dismissed because the orders made on 13 March 2009 and entered on 16 March 2009 accurately reflected the Court's intention, so r 36.17 did not apply; r 36.16 did not empower the Court to set aside or vary the orders in the circumstances, including because the relevant 14 day period had passed and the orders determined a claim for relief or a question arising on a claim for relief; in any event the Court regarded itself as functus officio and considered appeal the appropriate course. The application was misconceived and had no prospects of success, justifying indemnity costs payable forthwith because the application was a discrete area of the litigation.

Court Disposition

First defendant's amended notice of motion dismissed; no orders made on the plaintiffs' notices of motion; first defendant ordered to pay plaintiffs' indemnity costs of the amended notice of motion, assessed and payable forthwith.

Orders

  • ['I order that the amended notice of motion filed by the first defendant on 8 April 2009 be dismissed.' 'I make no orders in respect to the notices of motion filed by the plaintiffs on respectively 6 April 2009 and 15 April 2009.' 'I order that the first defendant pay the costs of the plaintiffs of the amended...