Shazbot Pty Ltd v Warner Capital Pty Ltd (No 4) [2023] NSWSC 1001

Shazbot Pty Ltd v Warner Capital Pty Ltd (No 4) [2023] NSWSC 1001

The references in the relevant orders contained obvious errors. There was no third plaintiff, and Clarence Street Partners Pty Limited, the third defendant, was the intended party in order 1. Orders 6(a), 6(b) and 7(b) were intended to require Mr Warner, the second defendant, to account for partnership income and assets appropriated by him; Warner Capital was included by mistake and there was no suggestion that Mr Warner had appropriated assets to Warner Capital. The evidence did not support refusal for hardship, and the Court of Appeal's variation of other aspects of the orders did not prevent correction because the Court of Appeal had not addressed the identity of the accounting parties...

Jurisdiction
Australia
Judgment Date
22 August 2023
Procedural Posture
Procedural Application by Notice of Motion to Vary Orders Under the Slip Rule / Notice of Motion Filed 19 July 2023 Heard on 4 August 2023; Decision and Orders on 22 August 2023
Outcome
Application succeeds; orders varied and respondents ordered to pay the applicants' costs of the motion.
Legal Topics
['slip Rule' 'variation of Orders' 'partnership Accounting Orders' 'misdescription of Parties' 'effect of Appellate Variation on Slip Rule Application']
['civil Procedure' 'equity' 'partnership'] ['slip Rule' 'variation of Orders' 'partnership Accounting Orders' 'misdescription of Parties' 'effect of Appellate Variation on Slip Rule Application']

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Procedural Posture

Procedural Application by Notice of Motion to Vary Orders Under the Slip Rule / Notice of Motion Filed 19 July 2023 Heard on 4 August 2023; Decision and Orders on 22 August 2023

Legal Issues

  1. 1 ['Whether order 1 should be varied by replacing "third plaintiff" with "third defendant".' 'Whether orders 6(a), 6(b) and 7(b) should be varied to refer to the second defendant rather than, or in addition to, the first defendant.' 'Whether the Court could grant slip rule relief after the original orders had been varied on appeal.' 'Whether relief should be refused on grounds of hardship.']

Ratio Decidendi

The references in the relevant orders contained obvious errors. There was no third plaintiff, and Clarence Street Partners Pty Limited, the third defendant, was the intended party in order 1. Orders 6(a), 6(b) and 7(b) were intended to require Mr Warner, the second defendant, to account for partnership income and assets appropriated by him; Warner Capital was included by mistake and there was no suggestion that Mr Warner had appropriated assets to Warner Capital. The evidence did not support refusal for hardship, and the Court of Appeal's variation of other aspects of the orders did not prevent correction because the Court of Appeal had not addressed the identity of the accounting parties...

Court Disposition

Application succeeds; orders varied and respondents ordered to pay the applicants' costs of the motion.

Orders

  • ['Order that the orders made by the Court on 16 September 2019 (as varied on 25 June 2020) be varied by substituting for order 1 the declaration set out in the judgment referring to the third defendant and the holding of shares in the fourth defendant by the third defendant.' 'Order that the word "first" be replaced...