Gippsreal Ltd v Paul Vincent Hanna

[2009] NSWSC 417

CITATION:	Gippsreal Ltd v Paul Vincent Hanna [2009] NSWSC 417
HEARING DATE(S):	27 April 2009
JURISDICTION:	Equity Division Duty Judge List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	27 April 2009
DECISION:	Previous order varied – order for withdrawal of caveat only applies to one property.
CATCHWORDS:	PROCEDURE – Judgments and Orders – Amendment – slip rule – where order sought and made for removal of caveat did not advert to fact that caveat operated in respect of three properties, only one of which was intended to be removed.
LEGISLATION CITED:	(NSW) Uniform Civil Procedure Rules 2005, r 36.17
CATEGORY:	Consequential orders
PARTIES:	Perpetual Trustee Company Ltd (applicant) Gippsreal Ltd (plaintiff) Paul Vincent Hanna (defendant)
FILE NUMBER(S):	SC 3038/08
COUNSEL:	Mr A Casselden (plaintiff)
SOLICITORS:	Deacons Lawyers (applicant) Leonard Legal (plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

BRERETON J

Monday 27 April 2009

3038/08 Gippsreal Ltd v Paul Vincent Hanna

JUDGMENT (ex tempore)

1 HIS HONOUR: On Monday 3 February 2009, on the application of Perpetual Trustee Co Ltd, I made an order – substantially in accordance with Perpetual's Motion filed on 20 February 2009 – that the plaintiff Gippsreal Ltd forthwith withdraw caveat AD863805. That caveat had been lodged by Gippsreal in respect of three titles – folio identifiers 12/746488, 21/749890 and 79/7853 – being properties of which the defendant Paul Vincent Hanna was the registered proprietor. One of those properties, namely 21/749890, was situate at and known as 9 Kimberley Drive, Bowral and known as Forest Ridge. Gippsreal had initially commenced the proceedings, inter alia, for an order extending the operation of the caveat, in response to a lapsing notice that had been served by Mr Hanna, and the Court had, on Gippsreal's application, made an interlocutory order extending the caveat.

2 Perpetual sought the discharge of that order and the removal of the caveat in circumstances where, as the mortgagee pursuant to a mortgage registered in priority to the caveat, it had exercised its power of sale over Forest Ridge. Perpetual's Motion referred to the caveat in general terms, and not in its operation in relation to any particular one of the three properties referred to in it. When Perpetual's application came before the Court, Gippsreal did not oppose the application, but for reasons explained in my judgment of 23 February 2009 the matter required the intervention of the Court. Mr Hanna, notwithstanding that the proceedings were initiated by his endeavour to have the subject caveat lapse, did oppose it – unsuccessfully, for reasons I then gave. The whole of the evidence, and such argument as there was, focused on the Forest Ridge property, and did not address the other two properties. Neither the evidence, nor the Court's consideration, adverted to the other two properties.

3 By Notice of Motion filed on 6 April 2009, Gippsreal seeks an order varying the order previously made, so as to limit its operation to the Forest Ridge property (and thus to leave the caveat in place in respect of the two other properties). As it had not yet been removed from their titles, I stayed the operation of the order in respect of the other properties.

4 In my view, the slip rule – now contained in UCPR, r 36.17 – extends to authorise such an order as is now sought. The operation of the slip rule is not confined to corrections that merely give effect to expressed reasons for decision, nor to mere clerical mistakes, nor to cases where the mistake, error, slip or omission is that of the Court itself. On occasion, it has been used to correct an error in a judgment which has arisen as a consequence of an accidental slip or omission by a party’s legal advisers.

5 It seems to me that, in this case, there has been an accident, slip or omission, in the drafting of the order sought, in failing to advert to the circumstance that the caveat operated in respect of two other properties as well as Forest Ridge. That error can be corrected under r 36.17. Perpetual consents to Gippsreal's application, and Mr Hanna, although he initially opposed it, has communicated to the Court and to Gippsreal that he no longer wishes to be heard in opposition to it.

6 Accordingly, I order, pursuant to r 36.17, that the order made and entered on 23 February 2009 be amended, by adding to paragraph 1 the words "in respect of the land comprised in folio identifier 21/749890", and by inserting in paragraph 2, after the word "effect", the words "in respect of the land comprised in folio identifier 21/749890". I direct that these orders be entered forthwith.

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