Nutectime International Pty Ltd v Timentel Pty Ltd - [2014] NSWCA 16

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Nutectime International Pty Ltd v Timentel Pty Ltd [2014] NSWCA 16
Hearing dates: 19 December 2013
Decision date: 14 February 2014
Before: Macfarlan JA at [1];
Meagher JA at [21];
Gleeson JA at [22]
Decision:
The Notice of Motion is dismissed with costs.
[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 -correction under slip rule - Uniform Civil Procedure Rules r 36.17 - inherent power to amend to give effect to meaning and intention of court - whether respondent an active party to the appeal
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Suitors' Fund Act 1951(NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 36.17, 42.1
Cases Cited: Aktas v Westpac Banking Corporation Ltd (No 2) [2010] HCA 47; 241 CLR 570
Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300
Bird v Bird (No 2) [2013] NSWCA 380
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1
Ehsman v Nutectime International Pty Ltd (No 2) [2009] NSWSC 1096
Flint v Richard Busuttil & Co Pty Ltd [2013] FCAFC 131
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; 151 CLR 590
Newmont Yandal Operations Pty Ltd v J Aron Corporation [2007] NSWCA 195; 70 NSWLR 411
Nutectime International Pty Ltd v Timentel Pty Ltd [2011] NSWCA 257
Nutectime International Pty Ltd v Timentel Pty Ltd [2013] NSWCA 254
Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446
Category: Procedural and other rulings
Parties: Nutectime International Pty Ltd (First Appellant)
David Neilan Brady (Second Appellant)
David Bruce Paix (Third Appellant)
Timentel Pty Ltd (First Respondent)
Patricia Mary Ehsman (Second Respondent)
Michael David Ehsman (Third Respondent)
Francis Joseph Frasca (Fourth Respondent)
Representation: Counsel:
F C Corsaro SC/B C A Bradley (Appellants)
S A Benson (Third Respondent)
Solicitors:
Mason Lawyers (Appellants)
John Hollier (Third Respondent)

File Number(s): CA 2005/261666

Judgment

MACFARLAN JA: This is an application by Mr Michael Ehsman for an order varying a costs order made by this Court when it delivered judgment on 5 September 2011 in appeal proceedings in which Mr Ehsman was the third respondent (Nutectime International Pty Ltd v Timentel Pty Ltd [2011] NSWCA 257). The background to those proceedings is sufficiently set out in that judgment and in the first instance judgment of Gzell J from which the appeal was brought (Ehsman v Nutectime International Pty Ltd (No 2) [2009] NSWSC 1096). The order made on 5 September 2011 that is now sought…

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 16
Decision Date: 14 February 2014

CaseChat Overview and Summary

Nutectime International Pty Ltd (the applicant) sought to amend a judgment of the Court of Appeal of New South Wales. The respondent, Timentel Pty Ltd, argued that it was not an active party to the appeal and therefore the applicant could not seek to amend the judgment against it.

The primary legal issue before the court was whether the applicant could invoke the slip rule, specifically Uniform Civil Procedure Rules r 36.17, or the court's inherent power to amend the judgment to reflect the court's intended meaning and intention, given the respondent's alleged lack of active participation in the appeal.

The court considered the respondent's role in the appeal proceedings and determined that it had not been an active party. Consequently, the court found that it lacked the power to amend the judgment under r 36.17 or its inherent jurisdiction, as these powers are generally exercised to correct errors in expressing the court's true intention, which requires the court to have had an intention regarding the party in question.

The Notice of Motion seeking the amendment was dismissed with costs.

Orders

Orders of the court

The Notice of Motion is dismissed with costs.

[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.

Medium Neutral Citation:	Nutectime International Pty Ltd v Timentel Pty Ltd [2014] NSWCA 16
Hearing dates:	19 December 2013
Decision date:	14 February 2014
Before:	Macfarlan JA at [1]; Meagher JA at [21]; Gleeson JA at [22]
Decision:	The Notice of Motion is dismissed with costs. [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 -correction under slip rule - Uniform Civil Procedure Rules r 36.17 - inherent power to amend to give effect to meaning and intention of court - whether respondent an active party to the appeal
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Suitors' Fund Act 1951(NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 36.17, 42.1
Cases Cited:	Aktas v Westpac Banking Corporation Ltd (No 2) [2010] HCA 47; 241 CLR 570 Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300 Bird v Bird (No 2) [2013] NSWCA 380 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 Ehsman v Nutectime International Pty Ltd (No 2) [2009] NSWSC 1096 Flint v Richard Busuttil & Co Pty Ltd [2013] FCAFC 131 L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; 151 CLR 590 Newmont Yandal Operations Pty Ltd v J Aron Corporation [2007] NSWCA 195; 70 NSWLR 411 Nutectime International Pty Ltd v Timentel Pty Ltd [2011] NSWCA 257 Nutectime International Pty Ltd v Timentel Pty Ltd [2013] NSWCA 254 Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446
Category:	Procedural and other rulings
Parties:	Nutectime International Pty Ltd (First Appellant) David Neilan Brady (Second Appellant) David Bruce Paix (Third Appellant) Timentel Pty Ltd (First Respondent) Patricia Mary Ehsman (Second Respondent) Michael David Ehsman (Third Respondent) Francis Joseph Frasca (Fourth Respondent)
Representation:	Counsel: F C Corsaro SC/B C A Bradley (Appellants) S A Benson (Third Respondent) Solicitors: Mason Lawyers (Appellants) John Hollier (Third Respondent)
File Number(s):	CA 2005/261666