Aurora Australasia Pty Ltd v Hunt Prosperity Pty Ltd (No 2)

Aurora Australasia Pty Ltd and another appellant sought to vary an order made by the Court of Appeal on 20 February 2025. The application arose in the context of new proceedings commenced by Hunt Prosperity Pty Ltd and others (respondents), which sought a winding-up order against the first appellant. The respondents alleged that the second appellant was not the beneficial owner of units in a relevant unit trust. The appellants contended that the Court of Appeal's judgment had inadvertently set aside an unchallenged declaration concerning the second appellant's beneficial ownership of these units.

The primary legal issue before the Court of Appeal was whether the orders made on 20 February 2025 should be corrected under rule 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) to accurately reflect the court's intention regarding the declaration of beneficial ownership. Specifically, the court had to determine if the existing order mistakenly referred to "declarations" (plural) and the number "(1)" when it should have referred to a single "declaration" and the number "(2)".

The Court of Appeal reasoned that rule 36.17 permits the correction of clerical mistakes or errors arising from an accidental slip or omission in judgments or orders. Applying this rule, the court found that the order of 20 February 2025 contained a clerical error in its wording and numbering concerning the declaration of beneficial ownership. The court concluded that the intention was to address a specific declaration, not multiple declarations, and that the numbering in the order did not accurately reflect the intended scope.

Consequently, the Court of Appeal ordered that Order (2) of the orders made on 20 February 2025 be varied by replacing the word "declarations" with "declaration" and the number "(1)" with "(2)". The court also ordered the second and third respondents to pay the appellants’ costs of the notice of motion filed on 24 March 2025.