John Pachos v Charles Davison & Candice Weeden [2010] NSWSC 1136

John Pachos v Charles Davison & Candice Weeden [2010] NSWSC 1136

There was no clerical mistake, error, or inadvertent omission in the making of the consent order. The issue of indemnity between plaintiff and second defendant was not litigated or disclosed so r 36.17 UCPR (slip rule) provides no basis for varying the order. The application was an abuse of process. Indemnity costs are warranted due to unreasonableness and no reasonable prospect of success.

Parties
Plaintiff: John Pachos; First Defendant: Charles Davison; Second Defendant: Candice Weeden
Jurisdiction
Australia
Judgment Date
17 September 2010
Procedural Posture
Notice of Motion (application) to Vary Order / Post Judgment Application to Vary Order Via Slip Rule
Outcome
Application dismissed with costs on an indemnity basis.
Legal Topics
Judgments and Orders, Slip Rule, Amendment of Orders, Costs, Indemnity Costs
Civil Procedure Judgments and Orders Slip Rule Amendment of Orders Costs Indemnity Costs

Case Brief

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Parties

John Pachos

Plaintiff

Charles Davison

First Defendant

Candice Weeden

Second Defendant

Procedural Posture

Notice of Motion (application) to Vary Order / Post Judgment Application to Vary Order Via Slip Rule

Legal Issues

  1. 1 Whether r 36.17 of the Uniform Civil Procedure Rules 2005 (slip rule) permits variation of a consent order as sought by the plaintiff
  2. 2 Whether there was a clerical mistake or accidental slip or omission justifying application of slip rule
  3. 3 Whether indemnity costs should be ordered against the plaintiff

Ratio Decidendi

There was no clerical mistake, error, or inadvertent omission in the making of the consent order. The issue of indemnity between plaintiff and second defendant was not litigated or disclosed so r 36.17 UCPR (slip rule) provides no basis for varying the order. The application was an abuse of process. Indemnity costs are warranted due to unreasonableness and no reasonable prospect of success.

Court Disposition

Application dismissed with costs on an indemnity basis.

Orders

  • The plaintiff's notice of motion filed 3 September 2010 is dismissed.
  • The plaintiff pay the first defendant's costs of the notice of motion on an indemnity basis.