Berryman v Joslyn (3)

[2006] NSWCA 44

New South Wales

Court of Appeal

CITATION:	Berryman v Joslyn (3) [2006] NSWCA 44
HEARING DATE(S):	On the papers
JUDGMENT DATE:	16 March 2006
JUDGMENT OF:	Mason P; Beazley JA; Tobias JA
DECISION:	ORDER that Order 5 made in proceedings No CA 40888/99 on 16 July 2004 be corrected by deleting therefrom the words “from the date of payment” and by substituting in lieu thereof the words “from 13 December 1999”.
CATCHWORDS:	N/A
LEGISLATION CITED:	N/A
CASES CITED:	N/A
PARTIES:	Allan Troy Berryman Sally Inch Joslyn
FILE NUMBER(S):	CA 40888/99
COUNSEL:	A: M L Williams SC/K Pryde 1R: B Toomey QC / G Charteris 2R: P Garling SC / J Morris
SOLICITORS:	A: Carroll & O'Dea, Sydney 1R: McMahons, Sydney 2R: Phillips Fox, Sydney
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	429/98
LOWER COURT JUDICIAL OFFICER:	Boyd-Boland A-DCJ

CA 40888/99
CA 40942/99

MASON P
BEAZLEY JA
TOBIAS JA

9 March 2006

ALLAN TROY BERRYMAN v SALLY INCH JOSLYN

Judgment on application of slip rule to orders made by the Court on 16 July 2004

1 THE COURT: In its judgment on orders and costs published on 16 July 2004, the Court made the following Order 5 in matter CA 40888/99:

“The appellant to repay to the first respondent the sum of $698,280.10 paid to him pursuant to the orders of Boyd-Boland A-DCJ made on 5 November 1999 together with interest thereon from the date of payment to the date of repayment at the rate prescribed pursuant to Pt 40 r 7(2) of Schedule J of the Supreme Court Rules 1970.”

2 On 3 January 2006 the first respondent filed a Notice of Motion in which it moved the Court for an order pursuant to Pt 36 r36.17 of the Uniform Civil Procedure Rules 2005 (the slip rule) seeking the removal from Order 5 of the words “from the date of payment to the date of repayment at the rate prescribed pursuant to Pt 40 r7(2) of Schedule J of the Supreme Court Rules 1970” and the substitution of the words “from the date of payment deemed to be 13 December 1999 to 14 December 2005 at the rate prescribed pursuant to Schedule J of the Supreme Court Rules 1970 and Schedule 5 of the Uniform Civil Procedure Rules 2005, totalling $397,561.51. The appellant is then to repay to the first respondent the total sum of $1,095,840.61”.

3 The Notice of Motion was supported by an affidavit of the first respondent’s solicitor, Mr Adrian Coombes, sworn 22 December 2005 in which after citing the relevant history of the matter, he deposed in paragraph 20 to the following:

“It was an accidental omission by the [first respondent] not to seek that a specified date of payment be entered in the orders [of 16 July 2004] at the time they were made by the Court. Accordingly, I respectfully request that this Honourable Court grant the orders sought in the form contained in the Notice of Motion.”

4 The original Notice of Motion and affidavit were served on the appellant’s solicitors, Carol & O’Dea, under cover of letter dated 9 January 2006 as well as upon Phillips Fox, the solicitors for Wentworth Shire Council. The latter advised that they only wished to be informed of the outcome of the Notice of Motion in due course, whereas by letter dated 21 February 2006, Carol & O’Dea, after confirming that they acted for the appellant Mr Berryman, stated that he

“did not wish to add any further submissions in respect of the notice of motion filed on behalf of the lawyers for Ms Joslyn.”

5 After it was pointed out to the first respondent’s solicitor that this Court’s jurisdiction under the slip rule could not extend to substituting a date in December 2005 as the date of repayment as the rule could only apply to a mistake made on or prior to the date the orders were made on 16 July 2004, an amended Notice of Motion was filed on 28 February 2006 which only sought the deletion from Order 5 of the words “from the date of payment” and substitution therefor of the words and figures “from 13 December 1999”.

6 The amended Notice of Motion was supported by a further affidavit of Mr Coombes, where in paragraph 4 of which he deposed the following:

“Paragraph 20 of my previous affidavit refers to an accidental omission by the First Respondent in that it failed to seek that a specified date of payment be entered as part of Order 5 of the orders made by the Court of Appeal on 16 July 2004. The need to seek an order in the form now sought in the Amended Notice of Motion should have been anticipated by the First Respondent in order to prevent any dispute arising between the Applicant and the First Respondent in relation to the correct date from which interest was to run on the sum to be repaid, and to allow for the issue of a bankruptcy notice in the proper form.”

7 The amended Notice of Motion and further affidavit were served upon the appellant’s solicitors who, by email dated 6 March 2006 addressed to the first respondent’s solicitor, advised that they neither consented to nor opposed Order 5 being amended in the manner proposed in the amended Notice of Motion and did not wish to be heard on the matter.

8 In our opinion the reason for the amendment deposed to in paragraph 4 of Mr Coombe’s affidavit of 28 February 2006 is sufficient to attract the exercise of the slip rule as a consequence whereof the Court makes the following order:

ORDER that Order 5 made in proceedings No CA 40888/99 on 16 July 2004 be corrected by deleting therefrom the words “ from the date of payment ” and by substituting in lieu thereof the words “ from 13 December 1999 ”.

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