Fexuto Pty Limited v Bosnjak Holdings Pty Limited (No 2)

Fexuto Pty Limited (the Claimant) sought to vary orders previously made by the Supreme Court of New South Wales in a proceeding against Bosnjak Holdings Pty Limited (the Opponent). The dispute concerned an application to vary existing court orders.

The central legal issue before the Court was whether it had the power to vary the previous orders under Supreme Court Rules, Part 40, Rule 9, particularly given that the matters now sought to be raised were not canvassed during the original hearing.

The Chief Justice, Spigelman CJ, dismissed the Notice of Motion. His Honour applied the principle that a party seeking to vary orders must demonstrate a compelling reason to do so, and that matters which could and should have been raised at the original hearing are generally not grounds for variation. The Court found that the Claimant had not established such a compelling reason.

Consequently, the Claimant was ordered to pay the Opponent's costs of the Notice of Motion.