Weller v Fong [2020] NSWDC 350

Weller v Fong [2020] NSWDC 350

Although r 36.17 was prima facie capable of being invoked because the order appeared not to reflect the parties' agreed wording, the Court was not persuaded that there was utility in changing "discontinued" to "dismissed". In the circumstances, the proceeding had been terminated by settlement without a determination on the merits, there was no practical difference between discontinuance and dismissal for the identified purpose, and the costs assessor was already aware of the applicant's contention and the Terms of Settlement. The discretionary correction application was therefore dismissed.

Jurisdiction
Australia
Judgment Date
03 July 2020
Procedural Posture
Civil Proceeding; Practice and Procedure Application / Notice of Motion Filed 15 June 2020 Seeking to Substitute the Word "dismissed" for "discontinued" in Consent Orders Made on 22 July 2019
Outcome
Notice of Motion dismissed; no order as to costs.
Legal Topics
['slip Rule' 'correction of Orders' 'discontinuance and Dismissal' 'costs Assessment' 'case Management Discretion']
['practice and Procedure' 'civil Procedure' 'costs'] ['slip Rule' 'correction of Orders' 'discontinuance and Dismissal' 'costs Assessment' 'case Management Discretion']

Case Brief

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Procedural Posture

Civil Proceeding; Practice and Procedure Application / Notice of Motion Filed 15 June 2020 Seeking to Substitute the Word "dismissed" for "discontinued" in Consent Orders Made on 22 July 2019

Legal Issues

  1. 1 ['Whether the Court should exercise its discretion under UCPR r 36.17 to correct the dispositive order from "discontinued" to "dismissed".' 'Whether there was practical utility in correcting the order where the proceeding had settled without a determination on the merits and a costs assessment application was pending.']

Ratio Decidendi

Although r 36.17 was prima facie capable of being invoked because the order appeared not to reflect the parties' agreed wording, the Court was not persuaded that there was utility in changing "discontinued" to "dismissed". In the circumstances, the proceeding had been terminated by settlement without a determination on the merits, there was no practical difference between discontinuance and dismissal for the identified purpose, and the costs assessor was already aware of the applicant's contention and the Terms of Settlement. The discretionary correction application was therefore dismissed.

Court Disposition

Notice of Motion dismissed; no order as to costs.

Orders

  • ['The Notice of Motion filed 15 June 2020 is dismissed.' 'There is no order as to costs.']