Care A2 Plus Pty Ltd v Pichardo (No 2)

[2024] NSWCA 210

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Care A2 Plus Pty Ltd v Pichardo (No 2) [2024] NSWCA 210

Hearing dates:

On the papers

Date of orders:

27 August 2024

Decision date:

27 August 2024

Before:

Bell CJ; Stern JA; Basten AJA

Decision:

(1) Pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 36.17, order that order 3 made and entered on 22 February 2024 be replaced with the following orders:

(3A)   In lieu of orders set aside by order 2, order that the first respondent pay to the first appellant, Care A2 Plus Pty Ltd:

(a)   the sum of $860,000 and

(b) interest on that amount calculated at the rates provided under s 100 of the Civil Procedure Act 2005 (NSW) for the period from 9 June 2021 until 22 February 2024.

(3B)   Further in lieu of orders set aside by order 2, order that the first respondent pay to the second appellant, Care A2 Australia Pty Ltd:

(a)   the sum of $230,000 and

(b) interest on the amount of $130,000 calculated at the rates provided under s 100 of the Civil Procedure Act 2005 (NSW) for the period from 9 June 2021 until 22 February 2024, and

(c) interest on the amount of $100,000 calculated at the rates provided under s 100 of the Civil Procedure Act 2005 (NSW) for the period from 30 June 2021 until 22 February 2024.

(2)   Order that the first respondent pay the appellants’ costs of this application.

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – correction under slip rule – application to vary orders made in February 2024 – composite sum payable by appellants – assumption that each appellant liable for particular sums – interest calculable from different dates – reformulation of orders

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 100

Corporations Act 2001 (Cth), ss 88A, 428

Uniform Civil Procedure Rules 2005 (NSW), r 36.17

Category:

Consequential orders

Parties:

Care A2 Plus Pty Ltd (First Appellant)
Care A2 Australia Pty Ltd (Second Appellant)
Karla Patricia Pichardo (First Respondent)
Dylan Charles Azzopardi (Second Respondent)

Representation:

Counsel:
A Butt (Appellants)
A J McQuillen (First Respondent)

Solicitors:
Nelson McKinnon Lawyers (Appellants)
G.H. Healey & Co (First Respondent)

File Number(s):

2023/57428

JUDGMENT

1. THE COURT: On 22 February 2024, the Court made orders in this appeal, including the following order 3:

3. … order that the First Respondent pay the Appellants amounts totalling $1,090,000 together with interest from the date of payments by the Appellants to DCA Sydney Enterprises Pty Ltd calculated in accordance with the rates provided under s 100 of the Civil Procedure Act 2005 (NSW).

2. By an email to the Chief Justice’s chambers dated 2 August 2024, the appellants sought a variation of order 3, pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 36.17 (known as the “slip rule”). The application sought to have the amount of $1,090,000 divided into two, in accordance with the judgment, so that $860,000 be paid to the first appellant (Care A2 Plus Pty Ltd) and the balance of $230,000 be paid to the second appellant (Care A2 Australia Pty Ltd). Separating the individual amounts ordered to be paid by the first respondent to the separate appellants would overcome a difficulty which had been encountered in enforcing the order by way of a bankruptcy notice.

3. The bankruptcy notice in fact included a further sum of $30,000, payable to the appellants jointly pursuant to order 4, by way of exemplary damages.

4. Because the appellants agreed to the setting aside of the bankruptcy notice, so that it was dismissed by consent, there is no ruling as to the deficiencies in the form of the orders. In principle, where two claimants are jointly involved in a venture with a third party a liability could arise to them jointly and severally. (That appears to have been accepted in relation to the separate order for payment of $30,000 “to the appellants” for exemplary damages, which was clearly not divisible between the two appellants.)

5. However, there may be another issue with the form of the order which should be addressed, namely that the composite sum is made up of separate amounts, paid on separate dates, with interest calculable from different dates to the date of judgment. While the order provided for the basis of the calculation of interest, it did not identify the actual date from which interest was to be calculated, but relied on the findings of fact made in the course of the judgment.

6. There was no dispute that the formulation of the order in global terms caused problems in its enforcement. That was a circumstance which the Court neither foresaw nor intended. It may be inferred that the order was intended to be in a form which could be enforced, otherwise it would lack utility. The slip rule was properly engaged.

7. However, having challenged the validity of the bankruptcy notice, the first respondent (Ms Pichardo) opposed the appellants’ request for a reformulation of the order. It is necessary to address the basis of the opposition. It was, in substance, that on 2 December 2022, whilst the proceedings in the Equity Division were on foot, a receiver was appointed to a property of the first appellant. That fact was not disclosed to the Court, or to the first respondent until discovered by the first respondent in conducting an ASIC search in late March 2024.

8. The relevance of this matter is by no means clear. Three points were alluded to, but without explaining their relevance in the present case. First, the first respondent noted that the first appellant had sought to “change its name” in proceedings in the High Court brought by Ms Pichardo, presumably by adding the descriptor “(receiver appointed)” after its name. It was assumed that the present application was made with the same intention. However, that was not correct: there was no attempt to change the company’s name in this Court. Nor did it seek to add “(receiver appointed)” after the name. In fact, by the time the request was received to correct the order (on 2 August 2024) ASIC records revealed that the receiver had already retired (on 22 July 2024).

9. Secondly, the first respondent submitted that, pursuant to s 428 of the Corporations Act 2001 (Cth), the first respondent was obliged to refer to the receivership in “every public document” after the name of the corporation where it first appeared. The “public document” of a body corporate is defined in s 88A of the Corporations Act; whether a summons or a defence in court proceedings falls within that definition need not be addressed. If there were a failure to make a proper disclosure, it was an offence: s 428(3). No reference was made to any provision of the Corporations Act which provided a consequence for the present civil proceedings.

10. Thirdly, it was at least implied that the receivership applied to the choses in action, the subject of the proceedings in this Court. That was not the case. The first appellant tendered the form recording the appointment of the receiver “of the property described in the schedule to this form”, the schedule identifying a parcel of land in Mulgrave, Victoria, together with personal property of the company situated at the land. There was no connection with the present proceedings.

11. Finally, and despite the limited relevance of the receivership, the first respondent submitted that the error sought to be corrected under the slip rule was an error caused or induced by the deliberate misconduct of the first appellant. Therefore, it was submitted, the slip rule could have no application. While the conclusion may follow from the premise, the premise was unfounded. Even if there had been misconduct, and it is unnecessary to decide this, the form of order 3 was unaffected by the non-disclosure of the (irrelevant) receivership.

Form of order

12. To avoid further difficulties, a greater degree of precision than that sought by the first appellant is appropriate in formulating the new order. There is a risk that the form of the order sought, which did not distinguish interest from capital and which did not specify the dates from which interest ran, might be the subject of further disputation. The form of the order should seek to avoid that further complication.

13. As to the form of the order, it should be explained that the first three words, “in lieu thereof”, were apt because the orders were in place of orders entered in the Court below which have been set aside by order 2.

14. As the orders have been amended, over opposition, the first respondent should pay the appellants’ costs of the application.

15. Accordingly, the Court proposes to replace order 3 made and entered on 22 February 2024 with the following orders:

1. Pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 36.17, order that order 3 made and entered on 22 February 2024 be replaced with the following orders:

(3A)   In lieu of orders set aside by order 2, order that the first respondent pay to the first appellant, Care A2 Plus Pty Ltd:

(a)   the sum of $860,000 and

(b) interest on that amount calculated at the rates provided under s 100 of the Civil Procedure Act 2005 (NSW) for the period from 9 June 2021 until 22 February 2024.

(3B)   Further in lieu of orders set aside by order 2, order that the first respondent pay to the second appellant, Care A2 Australia Pty Ltd:

(a)   the sum of $230,000 and

(b) interest on the amount of $130,000 calculated at the rates provided under s 100 of the Civil Procedure Act 2005 (NSW) for the period from 9 June 2021 until 22 February 2024, and

(c) interest on the amount of $100,000 calculated at the rates provided under s 100 of the Civil Procedure Act 2005 (NSW) for the period from 30 June 2021 until 22 February 2024.

2. Order that the first respondent pay the appellants’ costs of this application.

16. The amounts of interest require calculation. If orders specifying those amounts are required and the parties are agreed on those amounts and the Court is so advised within 14 days, those orders may be amended to include the agreed amounts. If the parties are not agreed, the appellants may seek to have their calculations inserted in the orders and, if disputed by the first respondent, the Court will adjudicate on the amount, on the basis of any material filed within 14 days of the date of this judgment. It is to be hoped, however, that the purely arithmetical calculation required can be undertaken by agreement.

**********

Decision last updated: 27 August 2024