Lockie and Lockie (No. 2)

[2009] FamCA 768

FAMILY COURT OF AUSTRALIA

LOCKIE & LOCKIE (NO. 2) [2009] FamCA 768

FAMILY LAW – PRACTICE AND PROCEDURE – Amendment under slip-rule – Application made by consent

Family Law Rules 2004 (Cth)

APPLICANT: Mr Lockie

RESPONDENT: Ms Lockie

FILE NUMBER: SYF 2311 of 2004

DATE DELIVERED: 21 August 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: On submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pearson

SOLICITOR FOR THE APPLICANT: Pearson Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Menassa

SOLICITOR FOR THE RESPONDENT: John M Barbouttis Solicitors

Orders

1. Order 4(iv) made by the Court on 28 July 2009 are amended pursuant to Rule 17.02(5) (the slip rule) so as to read as follows:

   (4)Upon a sale being effected of the [E Road, Northern Sydney] property the parties are to cause the sale proceeds to be paid as follows:

   …

   (iv)     The balance thereafter to the wife.

IT IS NOTED that publication of this judgment under the pseudonym Lockie & Lockie is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2311 of 2004

MR LOCKIE

Applicant

And

MS LOCKIE

Respondent

REASONS FOR JUDGMENT

1. This is a joint application by parties that Order 4(iv) of the Orders made by me on 28 July 2009 be amended pursuant to the slip rule.

2. The application was made by email to my Associate on 3 August 2009. Although the email is from the solicitor for the wife, the solicitor for the husband is included in the email and the application is expressed to be made by consent. The email reads as follows:

   Dear Ms [Associate]

   I act for the Respondent wife in this matter.

   I refer to the Orders made by His Honour on 28 July 2009.

   It appears from paragraph 433 of His Honour's Judgment that there is a typographical error in Order 4(iv) of the Orders, in so far as the word "husband" at the end of that sentence should be "wife".  If His Honour is of the same view, both parties request by consent that the Orders be amended under the "Slip Rule" to effect this change.  If His Honour requires the matter to be listed in Court to consider submissions on this issue,  please let us know.

   Yours sincerely

   Susan Pearson | Partner

3. Since receipt of that email, it has come to my attention that there was an error in the paragraph numbering of the judgement which has since been rectified by my Associate. Paragraph 433 as referred to above is, in fact, paragraph 431. Paragraph 431 (formerly paragraph 433) reads as follows:

   431.An order will be made providing for a sale of the [E Road] property and after payment out of the sale expenses and the discharge of the mortgage the husband is to receive 83.5% of the proceeds and the wife the balance.

   A copy of the amended judgment, with a cover letter from my Associate, has been provided to the parties.

4. It is clear from the above that I intended an Order be made for the wife to receive the balance of the proceeds of sale of the E Road property after specified payments were made. This is particularly apparent given Order 4(iii) refers to the payment of the balance after “payment to the husband of 83.5% of the balance then remaining”. However, Order 4 of the Orders made 28 July 2009 reads as follows:

   (4)Upon a sale being effected of the [E Road] property the parties are to cause the sale proceeds to be paid as follows:

   (i)       Payment of sale expenses;

   (ii)      discharge of the mortgage;

   (iii)payment to the husband of 83.5% of the balance then remaining;

   (iv)     The balance thereafter to the husband.

5. Under Rule 17.02(5) of the Family Law Rules 2004 (Cth) “a judicial officer may, after giving each party a reasonable opportunity to be heard, rectify a suspected error referred to the judicial officer.” It is noted that an amendment of an order may be made under Rule 17.02(5) only if it is an error obvious when reading the order. Any other amendment must be remedied by appeal or consent.

6. In the circumstances where the application is made by consent, and being satisfied that it is an obvious error on the reading of the order given, I propose to amend Order 4(iv) of 28 July 2009 to read “The balance thereafter to the wife.”

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate: 

Date:  21 August 2009