Bird v Bird (No 2) - [2013] NSWCA 380

Court of Appeal

New South Wales

Case Title: Bird v Bird (No 2)

Medium Neutral Citation: [2013] NSWCA 380

Hearing Date(s): On the papers

Decision Date: 18 November 2013

Before: Beazley P at [1]
Macfarlan JA at [2]
Ward JA at [23]

Decision:
(1) Vary order (3) made on 16 August 2013 to substitute the amount of $122,652.35 for the amount of $188,920.25.

(2) Otherwise dismiss the respondents' Notices of Motion.

(3) Note that the Court declines to make any order as to the costs of the respondents' Notices of Motion or as to the post 16 August 2013 interest submissions and calculations.

(4) Direct Deborah Bird to lodge with the Court, and serve on the respondents, within seven days of the date of this judgment a calculation of the interest to which she is entitled in accordance with the Court's reasons for judgment, with a view to the Court making a final order in chambers as to the amount of the judgment inclusive of interest.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: PROCEDURE - judgments and orders - amending, varying and setting aside - UCPR r 36.16 - Court under misapprehension as to aspect of evidence relevant to judgment amount - misapprehension not the fault of the parties - judgment amount varied - applications to vary Court of Appeal orders concerning costs at first instance and on appeal - no submissions on costs put at appeal hearing - principle of finality - applications dismissed

Legislation Cited: Civil Procedure Act 2005
Limitation Act 1969
Uniform Civil Procedure Rules

Cases Cited: Aktas v Westpac Banking Corporation (No 2) [2010] HCA 47; 241 CLR 570
Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd [2013] HCA 44; 87 ALJR 1159
Streetscape Projects (Australia) Pty Ltd v City of Sydney (No 2) [2013] NSWCA 240
Tobin v Ezekiel (No 2) [2012] NSWCA 409

Category: Procedural and other rulings

Parties: Deborah Michelle Bird (Appellant)
Warrick Lindsay Bird (First Respondent)
Rodney David Bird (Second Respondent)
Herbert James Cannington (Third Respondent)
Estate of Mona Ethel Bird (Fourth Respondent)

Representation

- Counsel: Counsel:
B W Rayment QC/J S Drummond (Appellant)
R Darke SC/M K Condon SC (First and Second Respondents)
C Champion (Third Respondent)

- Solicitors: Solicitors:
Wilson & Co Lawyers (Appellant)
Hills Solicitors (First and Second Respondents)
Middletons Lawyers (Third Respondent)

File Number(s): CA 2012/203657

Decision Under Appeal

- Court / Tribunal: Supreme Court

- Before: Rein J

- Citation: Bird v Bird (No 4) [2012] NSWSC 648Bird v Bird (No 5) [2012] NSWSC 734

- Court File Number(s): SC 2005/262267

JUDGMENT

BEAZLEY P: I agree with the reasons of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bird v Bird (No 2)

Details

AGLC: Bird v Bird (No 2) [2013] NSWCA 380
Case: [2013] NSWCA 380
Decision Date: 18 November 2013

CaseChat Overview and Summary

The Court of Appeal of New South Wales considered applications by the parties to vary a previous judgment. The primary dispute concerned the amount of a judgment awarded to Deborah Bird, and related applications sought to vary orders concerning costs at first instance and on appeal.

The court was required to determine whether to vary its previous orders regarding the judgment amount and costs. Specifically, it had to consider whether a misapprehension regarding an aspect of the evidence relevant to the judgment amount, which was not the fault of the parties, warranted a variation of the judgment. The court also had to address applications to vary costs orders, particularly in circumstances where no submissions on costs were made at the appeal hearing, and consider the principle of finality in relation to such applications.

The court varied the judgment amount, finding that it had been under a misapprehension as to the evidence concerning the calculation of the judgment sum. This misapprehension was not attributable to the parties. However, the applications to vary the costs orders were dismissed, applying the principle of finality, especially given the absence of submissions on costs at the appeal hearing. The court declined to make orders as to the costs of the applications to vary the judgment or as to post-judgment interest submissions, directing one party to lodge a calculation of interest for a final order to be made in chambers.

Orders

Orders of the court

(1) Vary order (3) made on 16 August 2013 to substitute the amount of $122,652.35 for the amount of $188,920.25.

(2) Otherwise dismiss the respondents' Notices of Motion.

(3) Note that the Court declines to make any order as to the costs of the respondents' Notices of Motion or as to the post 16 August 2013 interest submissions and calculations.

(4) Direct Deborah Bird to lodge with the Court, and serve on the respondents, within seven days of the date of this judgment a calculation of the interest to which she is entitled in accordance with the Court's reasons for judgment, with a view to the Court making a final order in chambers as to the amount of the judgment inclusive of interest.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Case Title:	Bird v Bird (No 2)
Medium Neutral Citation:	[2013] NSWCA 380
Hearing Date(s):	On the papers
Decision Date:	18 November 2013
Before:	Beazley P at [1] Macfarlan JA at [2] Ward JA at [23]
Decision:	(1) Vary order (3) made on 16 August 2013 to substitute the amount of $122,652.35 for the amount of $188,920.25. (2) Otherwise dismiss the respondents' Notices of Motion. (3) Note that the Court declines to make any order as to the costs of the respondents' Notices of Motion or as to the post 16 August 2013 interest submissions and calculations. (4) Direct Deborah Bird to lodge with the Court, and serve on the respondents, within seven days of the date of this judgment a calculation of the interest to which she is entitled in accordance with the Court's reasons for judgment, with a view to the Court making a final order in chambers as to the amount of the judgment inclusive of interest. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PROCEDURE - judgments and orders - amending, varying and setting aside - UCPR r 36.16 - Court under misapprehension as to aspect of evidence relevant to judgment amount - misapprehension not the fault of the parties - judgment amount varied - applications to vary Court of Appeal orders concerning costs at first instance and on appeal - no submissions on costs put at appeal hearing - principle of finality - applications dismissed
Legislation Cited:	Civil Procedure Act 2005 Limitation Act 1969 Uniform Civil Procedure Rules
Cases Cited:	Aktas v Westpac Banking Corporation (No 2) [2010] HCA 47; 241 CLR 570 Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd [2013] HCA 44; 87 ALJR 1159 Streetscape Projects (Australia) Pty Ltd v City of Sydney (No 2) [2013] NSWCA 240 Tobin v Ezekiel (No 2) [2012] NSWCA 409
Category:	Procedural and other rulings
Parties:	Deborah Michelle Bird (Appellant) Warrick Lindsay Bird (First Respondent) Rodney David Bird (Second Respondent) Herbert James Cannington (Third Respondent) Estate of Mona Ethel Bird (Fourth Respondent)
Representation
- Counsel:	Counsel: B W Rayment QC/J S Drummond (Appellant) R Darke SC/M K Condon SC (First and Second Respondents) C Champion (Third Respondent)
- Solicitors:	Solicitors: Wilson & Co Lawyers (Appellant) Hills Solicitors (First and Second Respondents) Middletons Lawyers (Third Respondent)
File Number(s):	CA 2012/203657
Decision Under Appeal
- Court / Tribunal:	Supreme Court
- Before:	Rein J
- Citation:	Bird v Bird (No 4) [2012] NSWSC 648Bird v Bird (No 5) [2012] NSWSC 734
- Court File Number(s):	SC 2005/262267