Mahendran v Chase Enterprises Pty Ltd (No 2)

Court of Appeal

New South Wales

Case Title:

Mahendran v Chase Enterprises Pty Ltd (No 2)

Medium Neutral Citation:

[2013] NSWCA 411

Hearing Date(s):

On the papers

Decision Date:

05 December 2013

Before:

Barrett JA; Emmett JA; Gleeson JA

Decision:

1. The appellant's notice of motion filed on 13 September 2013 is dismissed.
2. That the appellant pay the respondent's costs of the notice of 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:

PROCEDURE - judgments and orders - application for correction pursuant to slip rule - no "clerical mistake, or an error arising from an accidental step or omission" - application to reopen judgment because of misapprehension - no relevant misapprehension - applications dismissed - no matter of principle

Legislation Cited:

Real Property Act 1900
Uniform Civil Procedure Rules 2005

Cases Cited:

Mahendran v Chase Enterprises Pty Ltd [2013] NSWCA 280

Category:

Consequential orders

Parties:

Rajiv Kuma Mahendran (Appellant)
Chase Enterprises Pty Ltd (Respondent)

Representation

- Counsel:

Counsel:

- Solicitors:

Solicitors:
Self-represented (Appellant)
GRG Lawyers & Consultants (Respondent)

File Number(s):

CA 2012/299242

JUDGMENT

1. THE COURT: On 3 September 2013, the Court allowed the appeal in part, substituted a verdict and judgment for $138,833.29 for the verdict and judgment ordered by the District Court in the sum of $167,354.65 and ordered that the respondent pay the appellant's costs of the appeal: Mahendran v Chase Enterprises Pty Ltd [2013] NSWCA 280.

2. The rationale for the decision was threefold: first, that it had been established that the indebtedness of the appellant (Mr Mahendran) to the respondent (Chase) was in a sum smaller than that for which the District Court gave judgment; second, that Mr Mahendran had not established wrongful or inappropriate lodgment of a caveat by Chase such as gave rise to a statutory cause of action; and third, that the notice of appeal drawn by Mr Mahendran himself did not disclose any other ground of appeal.

3. On 13 September 2013, Mr Mahendran filed a notice of motion seeking "correction of the judgment under slip rule" and "variation of the judgment", in each case on grounds set out in an attachment of the notice of motion. Directions were made for written submissions on the motion which has therefore been dealt with on the papers.

4. The claims in the notice of motion are for:

   "Correction of the judgment under slip rule (please find the annexure for details). UCPR 2005 - REG 36.17.

   Variation of the judgment on the grounds claimed in the attachment (UCPR 2005 REG 36.16)".

5. Under the first aspect, therefore, Mr Mahendran maintains that there is, in the Court's judgment or order, "a clerical mistake, or an error…