Bird v Bird (No 2)

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.