King v Brown (No 4) [2022] NSWSC 1402

King v Brown (No 4) [2022] NSWSC 1402

The omission to take account of sale proceeds received before the September 2021 orders was an inadvertent oversight by Mr King's solicitor and was not disputed by Mr and Mrs Brown. The case fell within r 36.17 and, in any event, within the Court's inherent power to correct an omission caused by a legal representative's inadvertence. Justice required correction of the judgment amounts effective from the date of the original orders. Because the motion was required to rectify the solicitor's error and Mr King sought no costs order against Mr and Mrs Brown or the solicitor, there should be no order as to costs.

Jurisdiction
Australia
Judgment Date
17 October 2022
Procedural Posture
Motion to Correct Orders Under R 36.17 of the Uniform Civil Procedure Rules 2005 (nsw) And/or the Court's Inherent Jurisdiction / Principal Judgment on Ex Parte Motion
Outcome
motion granted; no order as to costs
Legal Topics
['slip Rule' 'correction of Accidental Slip or Omission' 'inherent Jurisdiction to Correct Orders' 'costs of Motion' 'proceeds of Sales Not Taken Into Account']
['civil Procedure' 'judgments and Orders' 'costs'] ['slip Rule' 'correction of Accidental Slip or Omission' 'inherent Jurisdiction to Correct Orders' 'costs of Motion' 'proceeds of Sales Not Taken Into Account']

Case Brief

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Procedural Posture

Motion to Correct Orders Under R 36.17 of the Uniform Civil Procedure Rules 2005 (nsw) And/or the Court's Inherent Jurisdiction / Principal Judgment on Ex Parte Motion

Legal Issues

  1. 1 ['Whether the judgment amounts in orders 1, 4 and 7 made on 2 September 2021 should be corrected because proceeds of sales received before the orders were made were not taken into account.' 'Whether the correction should take effect from the time the original orders were made.' 'What costs order should be made on the motion.']

Ratio Decidendi

The omission to take account of sale proceeds received before the September 2021 orders was an inadvertent oversight by Mr King's solicitor and was not disputed by Mr and Mrs Brown. The case fell within r 36.17 and, in any event, within the Court's inherent power to correct an omission caused by a legal representative's inadvertence. Justice required correction of the judgment amounts effective from the date of the original orders. Because the motion was required to rectify the solicitor's error and Mr King sought no costs order against Mr and Mrs Brown or the solicitor, there should be no order as to costs.

Court Disposition

motion granted; no order as to costs

Orders

  • ['The judgment for CAD2,134,924 made on 2 September 2021 in orders 1, 4 and 7 be corrected by being reduced by CAD2,030,903.90 to CAD104,020.10, effective from the time that the orders were made.' 'There be no order as to the costs of the motion.']