Harmer v Hare (No 2)

Case [2012] NSWCA 58

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Harmer v Hare (No 2) [2012] NSWCA 58
Hearing dates:On the papers
Decision date: 29 March 2012
Before: Beazley JA
Whealy JA
Sackville AJA
Decision:

(1) The plaintiff's amended motion of 17 October 2011 is dismissed;

(2) The plaintiff is to pay the defendant's costs of the motion.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: COSTS - costs order - when a costs order takes effect - UCPR r 36.4 - interest - notice of motion claims interest levied on costs order in an original judgment where subsequent proceedings have involved no challenge to quantum - motion filed outside time permitted by UCPR r 36.16 - whether the slip rule in UCPR r 36.17 is enlivened - whether the amended notice of motion seeks relief consequential on the judgment - whether the notice of motion seeks orders to disturb the judgment.
Legislation Cited: - Civil Liability Act 2002 (NSW)
- Civil Procedure Act 2005 (NSW) - s 100
- Uniform Civil Procedure Rules 2005 (NSW) - r 36.16, r 36.17, r 36.4(3), r 42.14(2), r 51.49
Cases Cited: - AT v Commissioner of Police, NSW (No 2) [2010] NSWCA 337
- Baresic v Slingshot Holdings Pty Ltd & Anor (No 2) [2005] NSWCA 160
- Batchelor v Burke [1981] HCA 30; (1981) 148 CLR 448
- Brymount Pty Ltd v Cummins & Anor (No 2) [2005] NSWCA 69
- Clyne v Deputy Commissioner of Taxation [1984] HCA 44; 154 CLR 589
- Deputy Commissioner of Taxation v Meredith (No 2) (2008) 75 NSWLR 462
- Donellan v Watson (1990) 21 NSWLR 335
- Encyclopaedia Brittanica Australia Ltd v Campbell (No 2) [2009] NSWCA 335
- Government Insurance Office (NSW) v Healy (No 2) (1991) 22 NSWLR 380
- Hartley Poynton Ltd v Ali [2005] VSCA 53
- Moore v Woodforth (No 2) [2003] NSWCA 46
- Oshlak v Richmond River Council [1998] HCA 11; 193 CLR 72
- South Sydney Council v Morris (No 3) [2001] NSWCA 200
Category:Costs
Parties: Luke Harmer (Appellant)
Gavin Brian Hare (Respondent)
Representation: Counsel:
S.G. Campbell SC / B. Hull (Appellant)
M. Cranitch SC / M.B. Inglis (Respondent)
Solicitors:
George Mallos Lawyer (Appellant)
Commins Hendriks (Respondent)
File Number(s):2010/227358
 Decision under appeal 
Jurisdiction:
9101
Date of Decision:
2010-06-11 00:00:00
Before:
Sidis DCJ
File Number(s):
10/227358

Judgment

  1. THE COURT: On 19 September 2010 Mr Harmer ("the plaintiff"), the successful respondent to an appeal in this Court, sought by Notice of Motion the following orders:

(1)   that the defendant pay to the plaintiff costs of the subject appeal…

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Harmer v Hare (No 2) [2012] NSWCA 58
Case
[2012] NSWCA 58
Decision Date

CaseChat Overview and Summary

In *Harmer v Hare (No 2)*, the plaintiff sought to amend a notice of motion filed outside the time permitted by rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW). The original judgment had not been challenged in subsequent proceedings, and the plaintiff's motion sought to claim interest on a costs order made in that original judgment. The defendant argued that the motion was out of time and that the proposed amendments sought to disturb the original judgment, rather than merely correct a slip.

The primary legal issues before the Court of Appeal were whether the slip rule under rule 36.17 of the Uniform Civil Procedure Rules 2005 was enlivened, whether the amended notice of motion sought relief consequential on the judgment, and whether the motion sought to disturb the judgment. The court considered the operation of rule 36.4 concerning when a costs order takes effect and the time limits for setting aside or varying judgments under rule 36.16.

The court reasoned that the plaintiff's application was not a mere correction of a slip under rule 36.17, but rather an attempt to obtain a new order for interest that was not part of the original judgment. The court found that the amended notice of motion sought to disturb the original judgment by introducing a claim for interest that had not been sought or ordered previously. Consequently, the court held that the motion was out of time and that the slip rule did not apply.

The plaintiff's amended motion was dismissed, and the plaintiff was ordered to pay the defendant's costs of the motion.

Orders

Orders of the court

(1) The plaintiff's amended motion of 17 October 2011 is dismissed;

(2) The plaintiff is to pay the defendant's costs of the motion.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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