Khan v Polyzois (No 2)

Case [2006] NSWCA 225

New South Wales


Court of Appeal


CITATION: KHAN v POLYZOIS (NO 2) [2006] NSWCA 225
HEARING DATE(S): 21 July 2006
 
JUDGMENT DATE: 
14 August 2006
JUDGMENT OF: Mason P at 1; Hislop J at 11
DECISION: Motion dismissed with costs.
CATCHWORDS: JUDGMENTS AND ORDERS – Variation after judgment entered – When hearing conducted on agreed basis that statutory provision would not apply – Whether slip rule applies – Workers Compensation Act 1987, s 151Z(1), Uniform Civil Procedure Rules, 36.16. (ND)
LEGISLATION CITED: Workers Compensation Act 1987
CASES CITED: Franklins Self Serve Pty Ltd v Wyber (1999) 48 NSWLR 249
PARTIES: Hamid KHAN
John POLYZOIS
FILE NUMBER(S): CA 40755/04
COUNSEL: Appellant: S Kalfas SC
Respondent: M Fraser
SOLICITORS: Appellant: David Ian Brown
Respondent: Bryden's Law Office




                          CA 40755/04

                          MASON P
                          HISLOP J

                          Monday 14 August 2006
Hamis KHAN v John POLYZOIS (No 2)
JUDGMENT

1 MASON P: On 12 April 2006 orders were made in this appeal as follows (Khan v Polyzois [2006] NSWCA 59):

          1) Appeal upheld;
          2) Judgment for the respondent set aside and in lieu thereof judgment for the appellant.
          3) The judgment monies of $86,204.00 paid into the District Court on behalf of the appellant on 5 October 2004 pursuant to order of Judge Twigg made on 20 September 2004 together with any interest that has accumulated thereon to be repaid.
          4) The respondent is to pay the appellant’s costs of the appeal and in court below and is to have a certificate under the Suitor’s Fund Act 1951 if otherwise qualified.

2 The orders were entered on 20 April. An application for special leave to appeal was lodged in the High Court on 10 May 2006.

3 On 28 April 2006 further submissions were filed on behalf of the respondent, seeking orders setting aside those made and entered and substituting a verdict in favour of the respondent for the sum of $17,622.70 with an order that the verdict should be stayed. The respondent also sought an order that the appellant pay the costs of the hearing in the District Court.

4 The matter was listed for argument. The appellant opposed the application, invoking UCPR 36.16, and submitting that no occasion had arisen for the invocation of the slip rule or any other principle justifying this Court in recalling the now completed matter. It was pointed out that the notice of appeal had expressly contemplated that the respondent’s damages might be reduced to nil in which event the appellant was seeking a verdict in his favour with costs.

5 The respondent’s application concerns pars [43]-[49] of the reasons of Hislop J (with whom I agreed). It is submitted that s151Z(1) of the Workers Compensation Act 1987 applies, par (b) in particular. On this basis, there should have been no deduction with respect to the workers compensation lump sum payment. Rather, there should have been a verdict in the respondent’s favour in the sum of $17,622.70 (see par [48]), leaving the respondent liable to pay an…

Continue reading Khan v Polyzois (No 2)

Sign in free to access the full text

Details
AGLC
Khan v Polyzois (No 2) [2006] NSWCA 225
Case
[2006] NSWCA 225
Decision Date

CaseChat Overview and Summary

In *Khan v Polyzois (No 2)*, the New South Wales Court of Appeal considered a motion to vary a judgment entered following an earlier hearing. The dispute arose from an application to vary a judgment where the original hearing had proceeded on the agreed basis that a specific statutory provision, section 151Z(1) of the *Workers Compensation Act 1987* (NSW), would not apply.

The primary legal issue before the Court of Appeal was whether the "slip rule," as codified in rule 36.16 of the *Uniform Civil Procedure Rules 2005* (NSW), could be invoked to vary the judgment. Specifically, the court had to determine if the circumstances of the original hearing, where parties had agreed to exclude the operation of section 151Z(1), constituted a "slip" or error that could be corrected under the slip rule, or if it represented a deliberate and binding agreement on the application of the law.

The Court of Appeal reasoned that the slip rule is intended to correct clerical mistakes or errors arising from an accidental slip or omission, not to re-litigate or alter a judgment that was deliberately made on a particular basis. In this instance, the original hearing had proceeded on an agreed basis that section 151Z(1) would not apply, and this agreement was fundamental to the conduct of that hearing and the resulting judgment. To allow a variation under the slip rule would effectively undo the agreed premise of the original hearing, which the court found was not the purpose of the rule.

The motion to vary the judgment was dismissed with costs.

Orders

Orders of the court

Motion dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.