Guttershield v LBI Holdings [2009] NSWSC 735

Guttershield v LBI Holdings [2009] NSWSC 735

The application to vary the orders was refused because the requested variation would alter the substantive conditions (the 'price') on which equitable relief was granted, which is not permissible under a liberty to apply, and there were no grounds under UCPR 36.16 or the inherent jurisdiction to justify, after such significant passage of time and in circumstances where issues about the 3G mesh were or could have been raised and argued earlier. There was no miscarrying of judicial intention or procedural accident justifying a variation.

Parties
First Plaintiff/first Cross Defendant: Guttershield Systems Australia Pty Ltd; Second Plaintiff/second Cross Defendant: Guttershield Pty Ltd; First Defendant/first Cross Claimant: LBI Holdings Pty Ltd; Second Defendant/second Cross Claimant: Leafbusters Pty Ltd; Third Cross Defendant: Bruce Wickett
Jurisdiction
Australia
Judgment Date
27 July 2009
Procedural Posture
Equity Proceedings / Post Judgment Application (variation of Orders, Consequential Orders)
Outcome
Both Notices of Motion dismissed; the Groom Interests' (Defendant) Notice of Motion dismissed with costs; the Wickett Interests' (Plaintiff) Notice of Motion dismissed with no order as to costs.
Legal Topics
Variation of Orders, Finality of Judgments, Equity—he Who Seeks Equity Must Do Equity, Liberty to Apply—scope, Consequential Orders
Equity Civil Procedure Variation of Orders Finality of Judgments Equity—he Who Seeks Equity Must Do Equity Liberty to Apply—scope Consequential Orders

Case Brief

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Parties

Guttershield Systems Australia Pty Ltd

First Plaintiff/first Cross Defendant

Guttershield Pty Ltd

Second Plaintiff/second Cross Defendant

LBI Holdings Pty Ltd

First Defendant/first Cross Claimant

Leafbusters Pty Ltd

Second Defendant/second Cross Claimant

Bruce Wickett

Third Cross Defendant

Procedural Posture

Equity Proceedings / Post Judgment Application (variation of Orders, Consequential Orders)

Legal Issues

  1. 1 Whether the orders made on 17 December 2004 should be varied to include 3G mesh in property to be shared; scope of liberty to apply; application of UCPR rule 36.16 to vary orders after four years; whether the variation changes the 'price' of equitable relief; whether intention of original orders miscarried

Ratio Decidendi

The application to vary the orders was refused because the requested variation would alter the substantive conditions (the 'price') on which equitable relief was granted, which is not permissible under a liberty to apply, and there were no grounds under UCPR 36.16 or the inherent jurisdiction to justify, after such significant passage of time and in circumstances where issues about the 3G mesh were or could have been raised and argued earlier. There was no miscarrying of judicial intention or procedural accident justifying a variation.

Court Disposition

Both Notices of Motion dismissed; the Groom Interests' (Defendant) Notice of Motion dismissed with costs; the Wickett Interests' (Plaintiff) Notice of Motion dismissed with no order as to costs.

Orders

  • Notice of Motion filed by Plaintiffs dismissed with no order as to costs.
  • Notice of Motion filed by Defendants dismissed with costs.