Nu Line Construction Group Pty Ltd v Fowler (No 2) - [2014] NSWCA 188

Court of Appeal

New South Wales

Case Title: Nu Line Construction Group Pty Ltd v Fowler (No 2)

Medium Neutral Citation: [2014] NSWCA 188

Hearing Date(s): On the papers

Decision Date: 12 June 2014

Before: Basten JA at [1];
Barrett JA at [28];
Young AJA at [29]

Decision:
(1) Vary orders (2), (4) and (5) so that in each case the word "respondent" is replaced with "respondents".

(2) Further vary order (4) to provide -

(a) Set aside the orders as to costs made by the trial judge on 18 July 2012 and in their place order that the defendants pay the plaintiff (Nu Line) 57.5% of its allowable costs in the Equity Division.
(b) Order that the respondents pay the appellant's costs in this Court.

(3) No order as to the costs of the motion of 2 May 2014.

[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: PRACTICE AND PROCEDURE - entry of judgment and orders - application of slip rule - orders referred to respondent in the singular - application to amend orders to refer to "respondents" - Uniform Civil Procedure Rules 2005 (NSW), r 36.17

PRACTICE AND PROCEDURE - costs - trial judge awarded costs to respondent for expenses incurred from delay by the appellant - whether costs order should be interfered with - application by respondent to vary the costs of the appeal - whether costs should be ordered for the notice of motion

Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 36.17

Cases Cited: Nu Line Construction Group Pty Ltd v Fowler [2014] NSWCA 51

Category: Consequential orders

Parties: Nu Line Construction Group Pty Ltd (Appellant)
Peter Fowler (First Respondent)
Gabriella Grippaudo (Second Respondent)

Representation

- Counsel: Counsel:
Mr T S Hale SC/Mr B R Kremer (Appellant)
Mr H W M Stitt (Respondents)

- Solicitors: Solicitors:
Diamond Conway (Appellant)
Hunter Lawyers (Respondents)

File Number(s): CA 2012/203010

Decision Under Appeal

- Court / Tribunal: Supreme Court

- Before: Ward J

- Citation: [2012] NSWSC 587; [2012] NSWSC 816

- Court File Number(s): 2008/280834

JUDGMENT

BASTEN JA: The appeal in this matter was heard on 28 November 2013; judgment was delivered on 17 March 2014: Nu Line Construction Group Pty Ltd v Fowler [2014] NSWCA 51.
The matter came back before a judge of the Court on 17 April 2014, on the motion of the respondents, seeking variation of two orders made on 17 March 2014. The directions given required that the respondents file a notice of motion with respect to "(a) the identity of the party or parties to be the subject of the orders; (b) as to the proper…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWCA 188
Decision Date: 12 June 2014

CaseChat Overview and Summary

In *Nu Line Construction Group Pty Ltd v Fowler (No 2)*, the New South Wales Court of Appeal considered an application to vary earlier orders of the court. The dispute arose from an application to amend the court's orders, specifically concerning the singular reference to "respondent" which should have been plural, and a related application to vary the costs orders made by the trial judge and on appeal.

The primary legal issues before the Court of Appeal were whether the court had the power to amend its previous orders under the slip rule, specifically rule 36.17 of the *Uniform Civil Procedure Rules 2005* (NSW), to correct a clerical mistake or an error arising from an accidental slip or omission. Additionally, the court had to determine whether to interfere with the trial judge's costs order, which had awarded costs to the respondent for expenses incurred due to the appellant's delay, and whether to vary the costs of the appeal itself.

The Court of Appeal reasoned that the slip rule was applicable to correct the erroneous singular reference to "respondent" where the context clearly indicated multiple respondents. Regarding the costs orders, the court found it appropriate to set aside the trial judge's costs order and substitute it with an order that the defendants pay 57.5% of the plaintiff's allowable costs in the Equity Division. The court also ordered that the respondents pay the appellant's costs in the Court of Appeal. No order was made as to the costs of the motion itself.

Orders

Orders of the court

(1) Vary orders (2), (4) and (5) so that in each case the word "respondent" is replaced with "respondents".

(2) Further vary order (4) to provide -

(a) Set aside the orders as to costs made by the trial judge on 18 July 2012 and in their place order that the defendants pay the plaintiff (Nu Line) 57.5% of its allowable costs in the Equity Division.

(b) Order that the respondents pay the appellant's costs in this Court.

(3) No order as to the costs of the motion of 2 May 2014.

[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.]

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.

Case Title:	Nu Line Construction Group Pty Ltd v Fowler (No 2)
Medium Neutral Citation:	[2014] NSWCA 188
Hearing Date(s):	On the papers
Decision Date:	12 June 2014
Before:	Basten JA at [1]; Barrett JA at [28]; Young AJA at [29]
Decision:	(1) Vary orders (2), (4) and (5) so that in each case the word "respondent" is replaced with "respondents". (2) Further vary order (4) to provide - (a) Set aside the orders as to costs made by the trial judge on 18 July 2012 and in their place order that the defendants pay the plaintiff (Nu Line) 57.5% of its allowable costs in the Equity Division. (b) Order that the respondents pay the appellant's costs in this Court. (3) No order as to the costs of the motion of 2 May 2014. [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:	PRACTICE AND PROCEDURE - entry of judgment and orders - application of slip rule - orders referred to respondent in the singular - application to amend orders to refer to "respondents" - Uniform Civil Procedure Rules 2005 (NSW), r 36.17 PRACTICE AND PROCEDURE - costs - trial judge awarded costs to respondent for expenses incurred from delay by the appellant - whether costs order should be interfered with - application by respondent to vary the costs of the appeal - whether costs should be ordered for the notice of motion
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 36.17
Cases Cited:	Nu Line Construction Group Pty Ltd v Fowler [2014] NSWCA 51
Category:	Consequential orders
Parties:	Nu Line Construction Group Pty Ltd (Appellant) Peter Fowler (First Respondent) Gabriella Grippaudo (Second Respondent)
Representation
- Counsel:	Counsel: Mr T S Hale SC/Mr B R Kremer (Appellant) Mr H W M Stitt (Respondents)
- Solicitors:	Solicitors: Diamond Conway (Appellant) Hunter Lawyers (Respondents)
File Number(s):	CA 2012/203010
Decision Under Appeal
- Court / Tribunal:	Supreme Court
- Before:	Ward J
- Citation:	[2012] NSWSC 587; [2012] NSWSC 816
- Court File Number(s):	2008/280834