Kevin Lucas & KDL Building Pty Limited v Robert Montgomery and Anor [2008] NSWDC 207

Kevin Lucas & KDL Building Pty Limited v Robert Montgomery and Anor [2008] NSWDC 207

Where the original judgment imposed joint liability on a builder and a guarantor, and this form creates enforceability risks in bankruptcy, the court may, pursuant to r 36.17 UCPR, correct the orders to give separate judgments against each defendant if this reflects the likely true intention had relevant authority been drawn to the trial judge's attention.

Parties
Plaintiff/cross Defendant: Kevin Donald Lucas; Plaintiff/cross Defendant: KDL Building Pty Limited; Defendant/cross Claimant: Robert Montgomery; Defendant/cross Claimant: Michelle Montgomery
Jurisdiction
Australia
Judgment Date
15 July 2008
Procedural Posture
Civil / Post Judgment Motion and Correction of Orders
Outcome
Owners' application to correct judgment orders allowed; builders' application for stay dismissed.
Legal Topics
Correction of Judgment (slip Rule), Joint and Several Liability, Stay of Execution, Enforcement of Judgment, Bankruptcy Notice, Costs Orders
Civil Procedure Contract Bankruptcy Building Law Correction of Judgment (slip Rule) Joint and Several Liability Stay of Execution Enforcement of Judgment +2 more

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Parties

Kevin Donald Lucas

Plaintiff/cross Defendant

KDL Building Pty Limited

Plaintiff/cross Defendant

Robert Montgomery

Defendant/cross Claimant

Michelle Montgomery

Defendant/cross Claimant

Procedural Posture

Civil / Post Judgment Motion and Correction of Orders

Legal Issues

  1. 1 Whether joint judgment against two defendants can be corrected to separate judgments under r 36.17 of the Uniform Civil Procedure Rules 2005
  2. 2 Whether a stay of execution of judgment pending appeal should be granted
  3. 3 Effect of judgment form on enforceability against guarantor and company

Ratio Decidendi

Where the original judgment imposed joint liability on a builder and a guarantor, and this form creates enforceability risks in bankruptcy, the court may, pursuant to r 36.17 UCPR, correct the orders to give separate judgments against each defendant if this reflects the likely true intention had relevant authority been drawn to the trial judge's attention.

Court Disposition

Owners' application to correct judgment orders allowed; builders' application for stay dismissed.

Orders

  • Orders 2 and 3 made by Phegan DCJ on 8 April 2008 vacated; instead, orders listed at paragraphs (a)-(d) of para 1 of the Notice of Motion dated 2 July 2008 made per r 36.17 UCPR 2005.
  • Order 2 of Notice of Motion made per r 36.17 UCPR 2005.