First Mortgage Managed Investments Pty Limited v Pittman (No 2)

In *First Mortgage Managed Investments Pty Limited v Pittman (No 2)*, the New South Wales Court of Appeal considered a motion by the respondents seeking to set aside or vary orders made by the primary judge. The dispute arose from earlier proceedings where the primary judge had made orders on 18 December 2012. The respondents sought to re-open these orders, alleging the court had proceeded on a misapprehension of the facts or evidence, or had overlooked submissions made by them.

The Court of Appeal was required to determine whether the circumstances warranted the setting aside or variation of the primary judge's orders under Rule 36.16 of the Uniform Civil Procedure Rules 2005. Specifically, the court had to assess whether there was a sufficient misapprehension of fact or evidence, or an oversight of submissions, to justify revisiting the earlier judgment.

The Court of Appeal dismissed the respondents' motion in its entirety concerning the setting aside of the primary judge's orders of 18 December 2012, and ordered the respondents to pay the appellant's costs of that motion. However, the Court granted the respondents leave to file a cross-appeal against the second cross-defendant, Ms Locke, seeking to set aside Order 5 made by the primary judge. The Court directed the respondents to file this cross-appeal within seven days and serve it on Ms Locke. Subject to compliance with this direction, the Court set aside Order 5 and remitted the respondents' cross-claim against Ms Locke to the primary judge for hearing and determination. The Court also made minor amendments to previous orders regarding the time for delivery of judgment and noted the expiry of a previously ordered stay.