Jingalong Pty Limited v Todd

[2016] NSWCA 131

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Jingalong Pty Limited v Todd [2016] NSWCA 131
Hearing dates:	On the papers
Decision date:	31 May 2016
Before:	MEAGHER JA, LEEMING JA, SACKVILLE AJA
Decision:	1. Amend Order 2 made on 12 February 2015 to include order 6 made by Kunc J on 10 April 2014. 2. Remit to the Equity Division the determination of the costs of the proceedings in the Equity Division.
Catchwords:	PRACTICE AND PROCEDURE – judgment – orders – error – correction – slip rule
Legislation Cited:	Uniform Civil Procedure Rules 2005, r 36.17
Cases Cited:	Jingalong Pty Ltd v Todd [2015] NSWCA 7
Category:	Consequential orders (other than Costs)
Parties:	Jingalong Pty Limited (Appellant) Gregory George Todd (First Respondent) Brett Pernice (Second Respondent)
Representation:	Counsel: RE Dubler SC / S Kanagaratnam (Appellant) D Brezniak (First Respondent) D Nagle (Second Respondent)   Solicitors: AL Wunderlich & Co (Appellant) Johnston Tobin Solicitors (First Respondent) Hancock, Alldis & Roskov (Second Respondent)
File Number(s):	2014/137752
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: Todd v Jingalong Pty Ltd [2014] NSWSC 362 Todd v Jingalong (No 2) [2014] NSWSC 440 Date of Decision: 10 April 2014 Before: Kunc J File Number(s): 2012/344643

Judgment

1. THE COURT: The Court delivered judgment in this appeal on 12 February 2015. [1] Orders 1-4 made by the Court were as follows:

   1. Jingalong Pty Ltd v Todd [2015] NSWCA 7.

1.   Appeal allowed.

2.   Set aside orders 1-5 and 7-9 made by Kunc J on 10 April 2014.

3.   In lieu of the orders identified in Order 2, make the following order:

Dismiss the Amended Statement of Claim filed on 18 February 2013.

4.   Remit the Second Cross-Claim filed on 20 September 2013 to the Equity Division for further hearing in the light of these reasons for judgment.

2. The appellant filed a notice of motion on 30 March 2016 pursuant to the “slip rule”[2] seeking the following orders:

“1. An Order that, in accordance with the intention of the Court of Appeal expressed at paragraph [109] of the Judgment of the Court of Appeal found at [2015] NSWCA 7, the question of the determination of costs of the Hearing at first instance before Kunc J be remitted to the Equity Division of the Supreme Court to be determined by White J.

2.   An Order that, in accordance with the intention of the Court of Appeal expressed in Order 4, Order 2 made by the Court of Appeal be amended to refer also to Order 6 of the Judgment of Kunc J.

3.   Such further or other order as the Court sees fit.”

2. Uniform Civil Procedure Rules 2005, r 36.17.

3. The respondents have not filed any submissions in opposition to the motion.

4. The orders made by the Court did contain the errors identified by the appellant. The errors should be corrected. The following orders should be made:

1.   Amend Order 2 made on 12 February 2015 to include order 6 made by Kunc J on 10 April 2014.

2.   Remit to the Equity Division the determination of the costs of the proceedings in the Equity Division.

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Endnotes