State of New South Wales v Carver (No 2) [2023] NSWSC 972

State of New South Wales v Carver (No 2) [2023] NSWSC 972

Order (1) of the 14 July 2023 orders diverged from the Summons because the Court accidentally omitted paragraph 2 of the land description. That omission was a plain error within r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW). The respondent's objections, including the intended appeal and belated arguments about the land's status, did not prevent correction. Because the Crown had sought consent to correct an obvious error and the respondent refused, the respondent was ordered to pay the Crown's costs of the application.

Jurisdiction
Australia
Judgment Date
17 August 2023
Procedural Posture
Application Under R 36.17 of the Uniform Civil Procedure Rules 2005 (nsw) to Correct Orders for Possession of Land / Notice of Motion for Consequential Orders Correcting the Principal Judgment Orders Under the Slip Rule
Outcome
Orders for possession of land corrected under the slip rule; first defendant ordered to pay the plaintiff's costs of the application.
Legal Topics
['slip Rule' 'correction of Judgment or Order' 'possession of Land' 'crown Land' 'costs of Notice of Motion']
['practice and Procedure' 'real Property'] ['slip Rule' 'correction of Judgment or Order' 'possession of Land' 'crown Land' 'costs of Notice of Motion']

Case Brief

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Procedural Posture

Application Under R 36.17 of the Uniform Civil Procedure Rules 2005 (nsw) to Correct Orders for Possession of Land / Notice of Motion for Consequential Orders Correcting the Principal Judgment Orders Under the Slip Rule

Legal Issues

  1. 1 ['Whether order (1) made on 14 July 2023 contained a clerical mistake or error arising from an accidental slip or omission by failing to include the full description of the land claimed in the Summons.' 'Whether the existence of an intended appeal or objections about the legal status and description of the land prevented correction under r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW).' "Whether Mr Carver should pay the Crown's costs of the Notice of Motion filed 15 August 2023."]

Ratio Decidendi

Order (1) of the 14 July 2023 orders diverged from the Summons because the Court accidentally omitted paragraph 2 of the land description. That omission was a plain error within r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW). The respondent's objections, including the intended appeal and belated arguments about the land's status, did not prevent correction. Because the Crown had sought consent to correct an obvious error and the respondent refused, the respondent was ordered to pay the Crown's costs of the application.

Court Disposition

Orders for possession of land corrected under the slip rule; first defendant ordered to pay the plaintiff's costs of the application.

Orders

  • ['Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW), order (1) of the orders made on 14 July 2023 is varied nunc pro tunc so as to read: "Judgment for possession of the land referred to as Cottage H being: (a) the land of the Crown that is located below the mean high water mark of the Georges...