Aktas v Westpac Banking Corporation Ltd (No 2)

The High Court of Australia considered an application by the first respondent, Westpac Banking Corporation Ltd, for an order that the applicant, Mr Aktas, pay its costs of the proceedings. The dispute concerned the costs of an earlier application by Westpac for an order that Mr Aktas pay its costs of the proceedings, which had been dismissed by the Court.

The central legal issue before the High Court was whether it possessed the power to vary or set aside its own orders, specifically an order made on 17 September 2010, before that order had been formally authenticated by the Court. The Court was required to determine the circumstances in which such a power, if it existed, should be exercised.

The Court held that it had the power to vary or set aside its own orders before they were perfected or authenticated. This power, however, is exceptional and should only be exercised in limited circumstances, such as where there has been a genuine mistake or oversight, or where the order sought to be varied was made in circumstances where a party was not present or represented. The Court found that Westpac had not demonstrated any such exceptional circumstances to justify varying the earlier costs order.

Accordingly, the first respondent's further amended summons filed on 24 September 2010 was dismissed with costs.