Wardle v Agricultural & Rural Finance Pty Ltd (No 3) [2013] NSWCA 207

Wardle v Agricultural & Rural Finance Pty Ltd (No 3) [2013] NSWCA 207

The Motion under UCPR r 36.17 was a distinct matter arising after the Supplementary Judgment, and the reconstituted Court of Appeal had jurisdiction to determine it. The incorrect spelling of the First Appellant's name was a clerical mistake, and the omission of orders 7A and 7B on appeal costs was plainly accidental because the Supplementary Judgment had expressly reasoned that such orders should be made. However, the proposed amendments to the trial costs orders were not within the slip rule because, even if Mr Atkinson's bankruptcy had been drawn to the Court's attention, the Court would not have made the proposed corrections at once and would have invited argument about his active...

Jurisdiction
Australia
Judgment Date
11 July 2013
Procedural Posture
Notice of Motion Under the Slip Rule, Uniform Civil Procedure Rules 2005, R 36.17, Seeking Correction of Alleged Errors and Omissions in Court of Appeal Orders / Court of Appeal Determination of Consequential Orders After Appeal and Cross Appeal Judgments
Outcome
Motion allowed in part and otherwise dismissed.
Legal Topics
['slip Rule' 'reconstitution of Appellate Bench After Retirement of Judge' 'correction of Orders' 'procedural Fairness' 'costs Orders']
['civil Procedure' 'courts and Jurisdiction' 'costs'] ['slip Rule' 'reconstitution of Appellate Bench After Retirement of Judge' 'correction of Orders' 'procedural Fairness' 'costs Orders']

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Procedural Posture

Notice of Motion Under the Slip Rule, Uniform Civil Procedure Rules 2005, R 36.17, Seeking Correction of Alleged Errors and Omissions in Court of Appeal Orders / Court of Appeal Determination of Consequential Orders After Appeal and Cross Appeal Judgments

Legal Issues

  1. 1 ['Whether a reconstituted Court of Appeal had jurisdiction to hear and determine an application under the slip rule after the retirement of one member of the original appellate bench.' "Whether the incorrect recording of the First Appellant's name was a clerical mistake within UCPR r 36.17." 'Whether orders for the costs of the appeal had been accidentally omitted and could be inserted under UCPR r 36.17.' "Whether proposed amendments to trial costs orders concerning Mr Atkinson's bankruptcy and the apportionment of costs were within UCPR r 36.17."]

Ratio Decidendi

The Motion under UCPR r 36.17 was a distinct matter arising after the Supplementary Judgment, and the reconstituted Court of Appeal had jurisdiction to determine it. The incorrect spelling of the First Appellant's name was a clerical mistake, and the omission of orders 7A and 7B on appeal costs was plainly accidental because the Supplementary Judgment had expressly reasoned that such orders should be made. However, the proposed amendments to the trial costs orders were not within the slip rule because, even if Mr Atkinson's bankruptcy had been drawn to the Court's attention, the Court would not have made the proposed corrections at once and would have invited argument about his active...

Court Disposition

Motion allowed in part and otherwise dismissed.

Orders

  • ['The orders made by the Court on 30 November 2012 be amended so that the name of the First Appellant in the title of the proceedings be corrected to "David James Wardle".' 'Orders 7A and 7B be inserted after Order 7: "7A. Subject to the costs orders already made, the Respondents pay Mr Wardle one-ninth of the total...