Golden Paradise Corporation v Kogarah Municipal Council (No. 2)
[2003] NSWLEC 288
•11/27/2003
>
Land and Environment Court
of New South Wales
CITATION: Golden Paradise Corporation v Kogarah Municipal Council & Another (No. 2) [2003] NSWLEC 288 PARTIES: APPLICANT
Golden Paradise CorporationFIRST RESPONDENT
SECOND RESPONDENT
Kogarah Municipal Council
Blakehurst Properties Pty Ltd (ACN 074 318 424)FILE NUMBER(S): 40536 of 2002 CORAM: Cowdroy J KEY ISSUES: Practice and Procedure :- application of slip rule - orders not reflecting true intention of Court LEGISLATION CITED: Land and Environment Court Rules 1996, Pt 10 r 7 CASES CITED: Brew v Whitlock (No. 3) [1968] VR 504;
Campbell and Another v Brisbane City Council [No. 2] (1967) 14 LGRA 305;
Coppins v Helmers & Brambles Constructions Pty Ltd [1969] 2 NSWLR 279;
Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206 ;
Hall v Harris (1900) 25 VLR 455;
L. Shaddock & Associates Proprietary Limited and Another v The Council of the City of Parramatta [No. 2] (1982-1983) 151 CLR 590;
Mailman & Anor v Challenge Bank Limited (Cohen J, Supreme Court of New South Wales, 16 April 1992, unreported);
Mutual Shipping Corporation of New York v Bayshore Shipping Co of Monrovia ("The Montan") [1985] 1 All ER 520;
Raybos Australia Pty Ltd and Another v Tectran Corporation Pty Ltd and Others (1987-88) 77 ALR 190;
Storey & Keers Pty Ltd and Another v Johnstone (1987) 9 NSWLR 446;
Yore Contractors Pty Ltd v Holcon Pty Ltd (Rogers J, Supreme Court of New South Wales Commercial Division, 17 July 1989, unreported)DATES OF HEARING: 27/10/2003, 12/11/2003 DATE OF JUDGMENT:
11/27/2003LEGAL REPRESENTATIVES:
APPLICANT
Mr M. Neil QC
Mr G. Underwood (Barrister)SOLICITORS
Forshaws NeillFIRST RESPONDENT
Mr J. Ayling SCSOLICITORS
Abbott ToutSECOND RESPONDENT
SOLICITORS
Mr J. Ayling SC
Gray & Perkins Lawyers
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
40536 of 2002
27 November 2003Cowdroy J
- Applicant
- First Respondent
- Second Respondent
Introduction
1 The Court delivered judgment on 29 August 2003 (“the judgment”) and made various declarations and orders in proceedings 40536 of 2002 and proceedings 40148 of 2003.
2 By notice of motion filed 1 September 2003 Kogarah Municipal Council (“the council”) seeks an order pursuant to Pt 10 r 7 of the Land and Environment Court Rules 1996 (“the Court Rules”) that order 7 and order 8 made in proceedings 40536 of 2002 of the judgment be revoked. Part 10 r 7 of the Court Rules provides:-
- 7 Correction of judgment, order or certificate
- (1) If there is a clerical mistake, or an accidental error or omission, in a judgment or order, or in a certificate, the Court, on the application of any party or without any such application, may, at any time, correct the mistake or error.
- (2) Rules 4, 5 and 6 do not apply to a correction made under subrule (1).
3 Order 7 and order 8 of the judgment (“the challenged orders”) provide:-
7. An order that the second respondent, its servants and agents remove any construction work of any kind from lot 2 in deposited plan 740823 being the whole of the land in folio identifier 2/740823;
- 8. An order that the second respondent its servants and agents be restrained from causing any construction work of any kind to be carried out on lot 2 in deposited plan 740823 being the whole of the land in folio identifier 2/740823;
4 The council submits that the challenged orders have resulted from a slip. It submits that the Court made no finding that there was any “construction work” on lot 2 in deposited plan 740823 (“lot 2”). The council says that the challenged orders may be interpreted as requiring the removal of anything in the nature of “construction” on lot 2, when such orders were intended to address the construction of a wall erected between the applicant’s land and the second respondent’s land. The council submits that the Court did not make any finding that the applicant or any other person had a right to use lot 2 for access to the land owned by the applicant. The council submits that there was no evidence, nor any finding made to the effect that lot 2 was a public road, and that the inclusion of the challenged orders resulted from a clerical error. Furthermore if an obligation arose out of DA 191/95 to allow the applicant to use lot 2 as an access way to its land, the council says such obligation is now redundant following the finding in proceedings 40148 of 2003 that DA 191/95 has lapsed.
5 The applicant opposes the challenged orders being revoked. It submits that the application of the slip rule is confined to those cases where a matter has been overlooked through inadvertence. The applicant relies upon L.Shaddock & Associates Proprietary Limited and Another v The Council of the City of Parramatta [No. 2] (1982-1983) 151 CLR 590; Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206 at p 209 and Coppins v Helmers & Brambles Constructions Pty Ltd [1969] 2 NSWLR 279, and submits that the inclusion of the challenged orders did not result from inadvertence and did not relate to ancillary matters. Rather the challenged orders resulted from a deliberate exercise of the Court’s discretion. Accordingly the slip rule does not apply. The applicant has referred the Court to Campbell and Another v Brisbane City Council [No. 2] (1967) 14 LGRA 305 in which it was held that the orders could not be amended where they gave effect to the Court’s intention. By analogy the applicant submits the same considerations apply to the present motion.
6 Additionally the applicant submits that the amended application class 4 sought orders in terms which are similar to the challenged orders, and that the evidence established that a wall had been erected on lot 2 which obstructed access to the applicant’s land. The applicant submits that the challenged orders were incidental to the principal issue in the proceedings, namely whether lot 2 had been invalidly transferred by the council to the second respondent.
Findings
7 Although the issues in proceedings 40536 of 2002 and proceedings 40148 of 2003 were separate and distinct, the proceedings were heard together but separate orders were made.
8 The following orders were sought in the class 4 amended application in proceedings 40536 of 2002:-
- 6A. An Order that, pending the determination of these proceedings, the Second Respondent, its servants and agents, be restrained from doing or omitting to do any act or acts the effect of which act or acts or omissions would or might interfere with the Applicant’s access to 645 Princes Highway, Blakehurst from James Street, Blakehurst over Lot 2 in Deposited Plan 740823 (“Lot 2”) being the whole of the land contained in Folio identifier 2/740823.
- 6B. An Order that, pending the determination of these proceedings, the Second Respondent its servants and agents be restrained from causing any construction work of any kind to be carried out on Lot 2.
- 6C. An Order that the Second Respondent its servants and agents be restrained from causing any construction work of any kind to be carried out on Lot 2.
9 Paragraph 10 of the amended points of claim dated 21 March 2003 alleged that in approximately August 2002 a wall was constructed across lot 2 preventing access to the applicant’s land. Paragraph 12 set out the relief the applicant claimed which included a prayer for the following order:-
- 7. An Order that the First Responent [sic] take all necessary steps to remove the wall constructed across lot 2 in DP 7 40823 abutting the Applicant’s land.
10 In its written submissions the applicant submitted it “had the right to use lot 2 to gain access from James Street to its property” and that “lot 2 was burdened with a right of way in favour of 645 Princes Highway by virtue of the development consent for 645 Princes Highway” (being DA 191/95). Letters attached to an affidavit filed by the applicant claimed that a right of way existed in its favour over lot 2, arising from DA 191/95, or from a dedication of lot 2 by the council for public use. Correspondence from the council denied the existence of a public dedication.
11 The applicant’s claim to access was predicated upon the currency of DA 191/95 and no other evidence existed to establish the applicant’s right of way over lot 2. In proceedings 40148 of 2003 the Court found that DA 191/95 had lapsed. No other basis was advanced by the applicant to establish its claim for a right of way or for access over lot 2.
12 The parties’ arguments and submissions concentrated upon the validity of transfer of lot 2 from the council to the second respondent. There was no argument from any party relating to the applicant’s claim to access over lot 2. No evidence was tendered to prove a public dedication of lot 2 as a road, and the correspondence between the applicant and the council was not referred to during the hearing.
13 The findings made in proceedings 40536 of 2002 show that it was the intention of the Court to declare invalid the council’s transfer of lot 2 to the second respondent and to require the council to effect a re-transfer of lot 2. Orders and declarations were made to give effect to the principal findings in the proceedings.
14 As an ancillary or incidental matter, the Court intended that lot 2 should be re-instated to its condition prior to its transfer to the second respondent. The evidence established that construction work had taken place on lot 2 after the invalid transfer, by the erection of the wall by the second respondent, as referred to in par 16 of the judgment. It was the Court’s intention to order the removal of such construction work, namely the wall. Otherwise the Court did not intend to interfere with the registered proprietor’s rights over lot 2, as indicated by the fact that the Court did not make order 6A sought in the class 4 amended application.
15 Part 10 r 7 of the Court Rules authorises not only the correction of a clerical mistake but also “an accidental error”. The slip rule reflects the inherent power of the Court to correct a mistake. In Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd Lockhart J observed at p 211 that the slip rule “exists to avoid injustice”.
16 The scope of the slip rule was addressed by McHugh JA in Storey & Keers Pty Ltd and Another v Johnstone (1987) 9 NSWLR 446. His Honour referred to several authorities including the following passage from Brew v Whitlock (No. 3) [1968] VR 504 where the Full Court of Victoria said at p 506-507:-
- In our view it is necessary that it should appear not only that the judgment was wrong, but also what could and should be done to it to make it right; not only what was omitted, but what would need to be put in. It is impossible, in our view, to apply the rule to a case where, on the application to correct the judgment, it is necessary to exercise an independent discretion, not only as to whether interest should have been awarded but also as to the rate at which it should run and as to the time from which it should run.
17 McHugh JA made the following observations at p 452:-
- If the proposed variation of an order relates to a matter which was in issue in the proceedings or to something which was incidental to such a matter, the court, in my opinion, has power to amend its order if the need for the variation is the result of an accidental omission or mistake.
- His Honour also said at p 453-
- In general the test of whether a mistake or omission is accidental is that applied by Lord Herschell in Hatton v Harris (at 558) if the matter had been drawn to the court’s attention would the correction at once have been made?
18 Toohey J in Raybos Australia Pty Ltd and Another v Tectran Corporation Pty Ltd and Others (1987-88) 77 ALR 190 made a similar observation and stated at p 191:-
- In many cases the slip rule or its equivalent is invoked when, through error or oversight, a judgment or order fails to express correctly the intention of the court at the time when the judgment or order was announced. But it is clear that this power of correction extends to cases where a matter, through inadvertence, was not dealt with at the hearing. In that case the purpose of correction is not to give expression to the intention of the court at the time the judgment or order as pronounced: Coppins v Helmers & Brambles Constructions Pty Ltd [1969] 2 NSWR [sic] 279.
Although His Honour cited Coppins v Helmers, that decision was distinguished by McHugh JA in Storey at p 452.
19 More recently the slip rule has been applied in Yore Contractors Pty Ltd v Holcon Pty Ltd (Rogers J, Supreme Court of New South Wales Commercial Division, 17 July 1989, unreported) to correct a judgment where a trial judge misunderstood the submissions of counsel or acted contrary to the material in a manner which he did not intend. In that case Rogers J assumed that the defendant’s counsel had conceded certain matters, when in fact they had not. His Honour relied on Hall v Harris (1900) 25 VLR 455 and Mutual Shipping Corporation of New York v Bayshore Shipping Co of Monrovia (“The Montan”) [1985] 1 All ER 520 to find that he was permitted to use the slip rule to amend his mistake. In Rogers J said:-
In my opinion, I have power to correct the mistake made by me in entering judgment due to my misunderstanding of the position taken by counsel for the defendant. Apart from anything else, how would a Court of Appeal be able to say whether or not I acted under a mistaken impression? Surely it is the person whose mind was afflicted by the mistake who is the one to identify it and correct it.
20 The circumstances giving rise to the challenged orders are similar to those referred to in Mailman & Anor v Challenge Bank Limited (Cohen J, Supreme Court of New South Wales, 16 April 1992, unreported). In that decision an order of an incidental nature had been made in the form set out in the summons and in the absence of any argument. Cohen J acknowledged that he overlooked the terms in such order and did not intend to make it. The order was revoked pursuant to the slip rule.
21 Similarly to the matter before Cohen J, the errors in the orders have resulted from the conduct of the hearing. During the hearing no reference was made by any party to the relief claimed in the class 4 amended application which led to the challenged orders, and on the Court’s part the effect of the challenged orders was overlooked. It is a mistake that can be rectified pursuant to the slip rule.
22 In the present proceedings the Court did not intend to make and did not make orders concerning the applicant’s alleged right of way over lot 2 in the absence of any evidence or argument. In relation to order 6B claimed in the class 4 amended application, the term “any construction work” was interpreted by the Court as referrable to the wall constructed across lot 2, and no other “construction”. Order 7 of the challenged orders does not accurately reflect the intention of the Court and will be amended by the deletion of the words “any construction work” and by the substitution of the words “the wall constructed across lot 2 in approximately August 2002”.
23 The Court did not intend to impose any constraint upon construction work, nor to interfere with the rights of the registered proprietor of lot 2 other than in relation to the wall. The terms of order 8 of the challenged orders are not so limited, and have been made in error.
24 The revocation of the challenged orders do not arise from the exercise of a discretion relating to matters of judgment, since the corrections do not result from the Court “having second thoughts or intentions”: see The Montan at p 526. In these circumstances the challenged orders will be varied pursuant to Pt 10 r 7 of the Court Rules to reflect the true intention of the Court.
Orders
25 The Court orders that:-
1. The words “any construction work of any kind” in Order 7 made in proceedings 40536 of 2002 on 29 August 2003 be deleted and substituted by the words “the wall constructed across lot 2 in approximately August 2002”;
2. Order 8 made in proceedings 40536 of 2002 on 29 August 2003 be revoked;
3. No order be made for the costs of this motion.
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