Croc’s Franchising Pty Ltd v Alamdo Holdings Pty Ltd (No 2) [2023] NSWCA 286

Croc’s Franchising Pty Ltd v Alamdo Holdings Pty Ltd (No 2) [2023] NSWCA 286

The orders disposing the appeal were inconsistent with the reasons; Croc's remained liable for the sum in rental arrears and outgoings with interest. Orders must be varied under UCPR rr 36.16(3A), 36.17 to properly reflect liability, as no defence of set-off had been pleaded or conducted, nor raised on appeal.

Parties
First Appellant: Croc's Franchising Pty Ltd; Second Appellant: Brett Christopher Aldons; Third Appellant: Lawrence John Cusdin; First Respondent: Alamdo Holdings Pty Ltd; Second Respondent: State of New South Wales
Jurisdiction
Australia
Judgment Date
29 November 2023
Procedural Posture
Appeal / Post Judgment Correction / Consequential Orders
Outcome
Orders varied pursuant to UCPR rr 36.16(3A) and 36.17; judgment entered for first respondent in sum of $189,279.87; opportunity to file costs submissions; appellants to pay respondent’s costs of notice of motion.
Legal Topics
Slip Rule Correction, Variation of Orders, Judgment for Debt and Outgoings, Costs Submissions
Civil Procedure Remedies Slip Rule Correction Variation of Orders Judgment for Debt and Outgoings Costs Submissions

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Parties

Croc's Franchising Pty Ltd

First Appellant

Brett Christopher Aldons

Second Appellant

Lawrence John Cusdin

Third Appellant

Alamdo Holdings Pty Ltd

First Respondent

State of New South Wales

Second Respondent

Procedural Posture

Appeal / Post Judgment Correction / Consequential Orders

Legal Issues

  1. 1 Whether orders disposing of appeal should be corrected under Uniform Civil Procedure Rules 2005 (NSW) rr 36.16(3A) or 36.17
  2. 2 Whether judgment for rental arrears and outgoings should remain given appellant’s conceded liability
  3. 3 Whether opportunity should be given for further submissions regarding costs

Ratio Decidendi

The orders disposing the appeal were inconsistent with the reasons; Croc's remained liable for the sum in rental arrears and outgoings with interest. Orders must be varied under UCPR rr 36.16(3A), 36.17 to properly reflect liability, as no defence of set-off had been pleaded or conducted, nor raised on appeal.

Court Disposition

Orders varied pursuant to UCPR rr 36.16(3A) and 36.17; judgment entered for first respondent in sum of $189,279.87; opportunity to file costs submissions; appellants to pay respondent’s costs of notice of motion.

Orders

  • Appeal allowed in part.
  • Orders 1 and 2 of Stevenson J dated 28 February 2023 and all orders dated 8 March 2023 set aside; substituted orders entered.