Boral Ltd v Foley and Bear Pty Ltd trading as J and R Industries; Foley and Bear Pty Ltd trading as J and R Industries v Boral Ltd (No 2)

[2015] NSWDC 241

District Court

New South Wales

Medium Neutral Citation:

Boral Ltd v Foley & Bear Pty Ltd trading as J & R Industries; Foley & Bear Pty Ltd trading as J & R Industries v Boral Ltd (No 2) [2015] NSWDC 241

Hearing dates:

23-26 February 2015; 5 March 2015; 4 May 2015; 23 June 2015; 25 June 2015; 31 July 2015

Decision date:

10 September 2015

Jurisdiction:

Civil

Before:

Cogswell SC DCJ

Decision:

Orders of this Court made 31 July 2015 amended pursuant to the slip rule. The amount in clause 1 is to read "$138,105.59" and clause 3A to be inserted: "The costs order made by Judge Mahony SC in Albury on 18 March 2013 remains in effect.”

Catchwords:

CIVIL LAW – practice and procedure – consent orders entered – orders failed to include interest component – clarification of earlier costs order – application to amend orders – slip rule

  WORDS AND PHRASES – “judgment” – statutory definition

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 3
Uniform Civil Procedure Rules 2005 (NSW), r 36.17

Cases Cited:

Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group, Inc [2007] NSWCA 195; 70 NSWLR 411

Category:

Consequential orders (other than Costs)

Parties:

Local Court Proceedings:

 

Boral Ltd (First Plaintiff)
Boral Resources (Country) Pty Ltd (Second Plaintiff)
Foley & Bear Pty Ltd trading as J & R Industries (First Defendant)
Stephen George Bear (Second Defendant)

 

District Court Proceedings:

  Foley & Bear Pty Ltd trading as J & R Industries (Plaintiff)
Boral Ltd (Defendant)

Representation:

Counsel:
C P Locke (Boral Ltd and Boral Resources (Country) Pty Ltd)
B Lloyd (Foley & Bear Pty Ltd trading as J & R Industries and Stephen George Bear)

  Solicitors:
Oliveri Lawyers (Boral Ltd and Boral Resources (Country) Pty Ltd)
Slater and Gordon Lawyers (Foley & Bear Pty Ltd trading as J & R Industries and Stephen George Bear)

File Number(s):

2012/00196212; 2012/00357464

Judgment

1. On 23 June 2015 I delivered judgment in this case.  Boral had sued J&R Industries in the Local Court and J&R Industries had sued Boral in the District Court.  For reasons that I gave on that day, I found in favour of Boral in the Local Court proceedings and I indicated that there should be a verdict and judgment in the District Court proceedings in favour of J&R Industries.

2. The parties, through their experienced counsel, agreed on the form of orders which I should make in order to give effect to my judgment.  They produced two sets of short minutes of order which became MFI 28 and MFI 30.

3. MFI 30, which was signed and sealed by me and dated 31 July 2015, contained consent orders disposing of the Local Court proceedings.  Those orders involved a judgment ‑ I will say generally ‑ in favour of Boral for an amount of $17,682.52 "together with interest thereon...in the amount of $4,357.27."

4. MFI 28 contained the consent orders disposing of the District Court proceedings.  Again, I initialled and sealed those on 31 July 2015.  They provided for a judgment in favour of J&R Industries "in the amount of $133,748.32."

5. Both consent short minutes of order made provision for the judgment in

the Local Court proceedings to be set off against the judgment in the District Court proceedings.  That order was made in both cases.

6. My associate received correspondence from counsel indicating that they could not agree on a particular issue which had arisen since I made those orders.  Both counsel then sensibly agreed that I could resolve that issue on written submissions.  I received written submissions from the solicitors for Boral, Oliveri Lawyers, dated 18 August 2015.  I will ask my associate to print a fresh copy of that letter and to place it on the file marked for identification 32.  I received written submissions from Mr B Lloyd of counsel for J&R Industries dated 24 August 2015.  Again, my associate will print a fresh copy and put those submissions on the file marked for identification 33.

7. It is on the basis of those respective and helpful written submissions that I will determine the issue that could not be resolved by agreement.  I should briefly say what the issue is.  The judgment in favour of J&R Industries in the District Court for the amount of $133,748.32 included the principal amount of the Local Court judgment, namely $17,682.52. But the judgment amount did not include the interest component of $4,357.27.  Mr Lloyd argues that it is an oversight that can be dealt with by the slip rule. Oliveri Lawyers argue that it cannot be so dealt with.

8. These are my reasons for determining that issue. There was clearly a judgment for Boral in the Local Court for two amounts: $17,682.52 and $4,357.27. J&R Industries would not be able to resist an order against it to pay Boral both amounts of money. The order to pay each amount, either together or separately - I do not need to decide - constituted a "judgment" against J&R Industries (see the definition of "judgment" in s 3 of the Civil Procedure Act 2005).

9. The "Local Court judgment" was ordered in both consent short minutes of order to be set off against the judgment in the District Court proceedings (see MFI 30).  The amount of the District Court judgment, I am told, was "grossed up" to include the Local Court judgment.  So it seems that by consent the District Court judgment would be increased to accommodate the Local Court judgment.  But for no apparent reason the increase was for $17,682.52 and did not include the amount of $4,357.27 interest.  This was despite the Local Court judgment including that interest amount.

10. Given the definition of "judgment" and the intention to recoup the amount of the adverse judgment in the Local Court from the judgment in the District Court, it does not make sense for the District Court order to compensate for only part of that judgment.  The figure of $4,357.27 itself is not controversial.  It was included in a Local Court order.  It is contrary to the express effect of clause 3 in MFI 30.  The only conclusion I can reach is that it was omitted by oversight.  It was "an accidental slip or omission" and, therefore, falls within UCPR r 36.17 which is the regulatory form of the slip rule.

11. It was an issue in the proceedings in that it was pleaded.  In any event it is not clear that it needs to be an issue in the proceedings (see Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group, Inc [2007] NSWCA 195; 70 NSWLR 411 at [144]). Despite Boral submitting that it would have been "argued", at this stage it is beyond argument in the sense that I was presented with an agreed form of orders which included the controversial amount in one clause but inexplicably omitted it from the other.

12. In accordance with the slip rule, I will amend the para 1 of the form of order in MFI 28.

13. Another issue was raised by the solicitors for Boral.  They pointed out that the "District Court orders ought to be amended so as to clarify that the costs order in favour of the Plaintiff does not [supersede] any prior costs order made in the proceedings, and that all prior costs orders remain in full force and effect." They referred to the fact that on 18 March 2015 J&R Industries was ordered by my colleague Mahony SC DCJ in the District Court at Albury "to pay the costs of the defendant in respect of the plaintiff's notice of motion for the transfer of the Local Court proceedings to Albury." The Court record does indicate that just such an order was made by his Honour on that date.

14. It seems to me to be obvious that the District Court order should make clear, as the solicitors for Boral argue, that that order by his Honour is not affected.

15. To the extent that that was not made clear in the form of orders I made on 31 July 2015 I would, again, permit a correction in accordance with the slip rule.

16. In accordance with the judgment I have just given, I am going to make that amendment.

**********

Decision last updated: 30 October 2015