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.”