Yule v Smith (No 2) [2012] NSWCA 301

Yule v Smith (No 2) [2012] NSWCA 301

The appellant's motion was filed within the relevant 14 day period, so the Court had power under UCPR r 36.16(1) to vary the orders made on 27 June 2012. The failure to include the orders dismissing the respondent's motion and awarding costs was an oversight, and the reasoning in the appeal judgment meant the respondent's motion filed on 13 August 2010 should have been dismissed with costs.

Jurisdiction
Australia
Judgment Date
21 September 2012
Procedural Posture
Notice of Motion in Appeal / On the Papers; Application to Vary Orders Made on 27 June 2012
Outcome
Appellant's motion granted; orders made on 27 June 2012 varied and respondent ordered to pay costs.
Legal Topics
['variation of Orders' 'costs' 'ucpr R 36.16']
['civil Procedure' 'appeals'] ['variation of Orders' 'costs' 'ucpr R 36.16']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Notice of Motion in Appeal / On the Papers; Application to Vary Orders Made on 27 June 2012

Legal Issues

  1. 1 ['Whether the Court had power under UCPR r 36.16(1) to vary the orders made on 27 June 2012.' "Whether the respondent's motion filed on 13 August 2010 should be dismissed." "Whether the respondent should pay the appellant's costs of the respondent's motion and of the appellant's motion filed on 10 July 2012."]

Ratio Decidendi

The appellant's motion was filed within the relevant 14 day period, so the Court had power under UCPR r 36.16(1) to vary the orders made on 27 June 2012. The failure to include the orders dismissing the respondent's motion and awarding costs was an oversight, and the reasoning in the appeal judgment meant the respondent's motion filed on 13 August 2010 should have been dismissed with costs.

Court Disposition

Appellant's motion granted; orders made on 27 June 2012 varied and respondent ordered to pay costs.

Orders

  • ['Pursuant to UCPR r 36.16(1), the orders made on 27 June 2012 are varied to include the following orders:' '3A The motion filed by the respondent on 13 August 2010 ("Motion") be dismissed.' "3B The respondent pay the appellant's costs of the Motion." "The respondent pay the appellant's costs of her motion filed on...