Nutectime International Pty Ltd v Timentel Pty Ltd [2013] NSWCA 254

Nutectime International Pty Ltd v Timentel Pty Ltd [2013] NSWCA 254

Because Mr Frasca had submitted to the orders of the Court of Appeal save as to costs and the Court's reasons recorded that position, the unqualified order that the appeal be allowed with costs was an accidental slip or omission. The order should be varied to confine costs liability to the first to third respondents, and the appellants should restore the money obtained from Mr Frasca by garnishee proceedings with interest. As Mr Frasca was required to file and support a motion to obtain relief to which he was clearly entitled, the other parties should jointly and severally pay his costs of the motion.

Jurisdiction
Australia
Judgment Date
09 August 2013
Procedural Posture
Interlocutory Application / Notice of Motion on the Papers to Vary Court of Appeal Orders and for Restitution
Outcome
Motion granted; Court of Appeal costs order varied, restitution and costs ordered, and referral directed to the Law Society of New South Wales.
Legal Topics
['judgments and Orders' 'motion to Vary Orders on Appeal' 'slip Rule' 'submitting Appearance' 'restitution' 'garnishee Proceedings' 'referral to Law Society of New South Wales']
['civil Procedure' 'costs' 'corporations'] ['judgments and Orders' 'motion to Vary Orders on Appeal' 'slip Rule' 'submitting Appearance' 'restitution' 'garnishee Proceedings' 'referral to Law Society of New South Wales']

Case Brief

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Procedural Posture

Interlocutory Application / Notice of Motion on the Papers to Vary Court of Appeal Orders and for Restitution

Legal Issues

  1. 1 ['Whether Order 1 made on 5 September 2011 should be varied under the slip rule to exclude the fourth respondent from liability for appeal costs.' 'Whether the appellants should repay money obtained from Mr Frasca by garnishee proceedings, with interest.' "Who should pay Mr Frasca's costs of the motion." 'Whether the Registrar should refer the conduct of legal representatives to the Law Society of New South Wales.']

Ratio Decidendi

Because Mr Frasca had submitted to the orders of the Court of Appeal save as to costs and the Court's reasons recorded that position, the unqualified order that the appeal be allowed with costs was an accidental slip or omission. The order should be varied to confine costs liability to the first to third respondents, and the appellants should restore the money obtained from Mr Frasca by garnishee proceedings with interest. As Mr Frasca was required to file and support a motion to obtain relief to which he was clearly entitled, the other parties should jointly and severally pay his costs of the motion.

Court Disposition

Motion granted; Court of Appeal costs order varied, restitution and costs ordered, and referral directed to the Law Society of New South Wales.

Orders

  • ['Pursuant to UCPR rule 36.17 and the Court\'s inherent jurisdiction, Order 1 made on 5 September 2011 be varied to include the words "... against the 1st to 3rd respondents" after the words "with costs".' 'Pursuant to UCPR rule 51.45 and s 75A(10) of the Supreme Court Act 1970, the appellants pay to the fourth...