Spina v Permanent Custodians Limited (No 2) [2009] NSWCA 419

Spina v Permanent Custodians Limited (No 2) [2009] NSWCA 419

The orders should be amended in accordance with the respondent's submissions. The reference to "Order D" in Order 2B(i) was a clear error. Order 2 I was ambiguous, but the respondent's construction was correct because it was artificial to describe a defence to a cross-claim as a "claim", the respondent's cross-claim required pleading and evidence of the debt secured by the mortgage, and the respondent retained part of its money judgment on the cross-claim. No costs should be ordered after 22 July 2009 because the respondent succeeded on the post-judgment matters and both sides contributed to procedural irregularities and misunderstandings.

Jurisdiction
Australia
Judgment Date
17 December 2009
Procedural Posture
Consequential Orders / On the Papers; Post Judgment Application to Reformulate Appeal Orders
Outcome
Orders reformulated.
Legal Topics
['reformulation of Orders' 'slip Rule' 'extension of Time to Vary Orders' 'inherent Powers' 'costs of Cross Claim']
['civil Procedure' 'appeals' 'costs'] ['reformulation of Orders' 'slip Rule' 'extension of Time to Vary Orders' 'inherent Powers' 'costs of Cross Claim']

Case Brief

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Procedural Posture

Consequential Orders / On the Papers; Post Judgment Application to Reformulate Appeal Orders

Legal Issues

  1. 1 ['Whether orders made after the appeal judgment should be corrected or reformulated despite procedural difficulties about the time for applying to vary orders.' 'Whether the reference to "Order D" in Order 2B(i) was an error to be corrected.' 'How Order 2 I concerning costs of the cross-claim should be clarified, including whose costs were covered.']

Ratio Decidendi

The orders should be amended in accordance with the respondent's submissions. The reference to "Order D" in Order 2B(i) was a clear error. Order 2 I was ambiguous, but the respondent's construction was correct because it was artificial to describe a defence to a cross-claim as a "claim", the respondent's cross-claim required pleading and evidence of the debt secured by the mortgage, and the respondent retained part of its money judgment on the cross-claim. No costs should be ordered after 22 July 2009 because the respondent succeeded on the post-judgment matters and both sides contributed to procedural irregularities and misunderstandings.

Court Disposition

Orders reformulated.

Orders

  • ['Order 2B(i) amended so that the reference to "Order D" is corrected to "Order 3".' 'Order 2B(i) amended to conclude "except in relation to the costs referred to in Order 2 I or Order 3 made below in the appeal proceedings."' 'Order 2 I clarified to read: "On the cross claim, no order for costs below except that...