In the matter of Shepherds Producers Co-Operative Limited (in liquidation) (No 2)

[2012] NSWSC 1146

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of Shepherds Producers Co-Operative Limited (in liquidation) (No 2) [2012] NSWSC 1146
Decision date:	21 September 2012
Jurisdiction:	Equity Division - Corporations List
Before:	Black J
Decision:	Orders made 19 March 2012 amended.
Catchwords:	PRACTICE AND PROCEDURE - Judgments and orders - Uniform Civil Procedure Rules 2005 (NSW) r 36.17 - Slip rule - Whether error identified may properly be corrected under slip rule.
Legislation Cited:	- Uniform Civil Procedure Rules 2005 (NSW) rr 36.11, 36.17
Cases Cited:	- DJL v The Central Authority (2000) 201 CLR 226 - Hatton v Harris [1892] AC 547 - L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590 at 594 - Newmont Yandal Operations Pty Ltd v The J Aron Corporation [2007] NSWCA 195; (2007) 70 NSWLR 411
Texts Cited:	- Ritchie's Uniform Civil Procedure NSW
Category:	Interlocutory applications
Parties:	David John Kerr (First Plaintiff) Peter William Marsden (Second Plaintiff) Shepherds Producers Co-Operative Limited (in liquidation) (Third Plaintiff)
Representation:	S. Golledge (Plaintiffs) HWL Ebsworth Lawyers (Plaintiffs)
File Number(s):	2011/411999

Judgment

1. By Notice of Motion filed on 16 August 2012, the Plaintiffs, the liquidators of Shepherds Producers Co-Operative Limited (in liquidation) ("Company") and that entity seek an order under r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") that a judgment delivered by the Court on 19 March 2012 be amended.

1. In that judgment, I noted that the Plaintiffs sought orders that the entirety of the remaining funds available in the winding up of the Company after payment of costs and expenses be made available to certain creditors ("Funding Creditors") and noted that I was satisfied that such an order should be made. I declared that each of the creditors listed in Schedule "A" to the Originating Process was entitled to a preferential payment of net settlement proceeds received by the liquidators in the amounts set out in that schedule and ordered that the liquidators pay each of those creditors the specified amounts.

1. Since the date of my judgment, it has emerged that three of the entities listed in Schedule A to the Originating Process were not creditors of the Company, although they had funded the relevant litigation, since the liquidators had rejected their claims. The affidavit of the liquidators' solicitor dated 10 August 2012 in support of the motion indicates that those three entities were included in the original Schedule A attached to the Originating Process in error. The Notice of Motion seeks an order to amend the judgment so that the Schedule A which was referred to in the judgment be replaced with an "Amended Schedule A" in the form attached to the Notice of Motion.

1. Rule 36.17 of the UCPR provides that:

"If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error."

That rule permits the correction of an order which has been entered under UCPR r 36.11. The rule can be applied to correct a matter which does not involve a controversy of substance or require the exercise of an independent discretion and permits the correction of an order whose consequences are contrary to those intended by the Court, including where an error arises from inadvertence of a party's legal representative: L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590 at 594; DJL v The Central Authority (2000) 201 CLR 226 at [34]; Newmont Yandal Operations Pty Ltd v The J Aron Corporation [2007] NSWCA 195; (2007) 70 NSWLR 411 at [114], [140], [142], [185], [194]; Ritchie's Uniform Civil Procedure NSW at [36.17.5]. A matter may be corrected under the operation of that rule if it would have been corrected as a matter of course, had it been drawn to the Court's or the parties' attention at the relevant time: Hatton v Harris [1892] AC 547 at 558.

1. I am satisfied that the error identified in Mr Young's affidavit may properly be corrected under UCPR r 36.17. Had it been drawn to the Court's or the liquidators' attention at the time I delivered my judgment, that there was an error in the schedule of funding creditors attached to the Originating Process, I would have made orders for distribution of the relevant monies to the persons who were in fact the funding creditors. The Interlocutory Process and Mr Young's affidavit has been served on each of the affected entities. None of them appeared to oppose the relief sought.

1. Accordingly, I order that:

1. Pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 36.17, Orders 1 and 2 made on 19 March 2012 be amended by replacing the words "Schedule "A" to the Originating Process" with the words "Amended Schedule "A" to the Notice of Motion filed by the Plaintiffs on 16 August 2012".

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Decision last updated: 04 October 2012