Evans v Smith (No 2)

The appellants, Evans and Smith, sought to recall and replace an earlier order of the court concerning the scope of an extended curtilage. They contended there was a misapprehension regarding vehicular access across their land, which they sought to address by varying the existing declaration. The application was brought under rule 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW). The respondents also sought indemnity costs for the motion.

The primary legal issue before the court was whether the appellants had established grounds to recall and replace the previous order under UCPR r 36.16(3A). This rule permits the court to recall or vary an order if it was made in the absence of a party, or if there has been a misapprehension of fact or law. A secondary issue concerned the appropriate costs orders, including whether the respondents should be awarded indemnity costs for the motion.

The court dismissed the appellants' application. It found that the appellants had not demonstrated a sufficient basis to satisfy the requirements of rule 36.16(3A). The court was not persuaded that there had been a misapprehension of fact or law that warranted recalling and replacing the original order. Consequently, the application to vary the declaration regarding the extended curtilage was refused.

The notice of motion filed on 30 May 2025 was dismissed with costs.