Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2)

Perpetual Trustees Australia Ltd (the applicant) sought to re-open perfected final orders made in earlier proceedings against Heperu Pty Ltd (the respondent). The dispute concerned whether the applicant was entitled to have these orders set aside or varied due to alleged irregularities in the original proceedings. The matter came before the Court of Appeal of New South Wales.

The primary legal issues before the Court were whether a breach of the duty of parties to assist the court, as contemplated by the Civil Procedure Act 2005 (NSW) s 63(1), could constitute an irregularity capable of justifying the re-opening of perfected final orders, and whether perfected final orders, once made, were subject to re-opening on grounds of such an irregularity. The court also considered the principle of res judicata and the general restrictions on re-opening perfected orders.

The Court of Appeal, in considering the application to amend the separate question, acknowledged that a breach of the duty to assist the court could potentially fall within the ambit of s 63(1) of the Civil Procedure Act 2005 (NSW). However, the court also emphasised the strong policy favouring the finality of litigation and the significant restrictions on re-opening perfected orders. The court's reasoning indicated that while s 63(3) grants broad powers to set aside or vary orders in cases of irregularity, the threshold for re-opening perfected final orders, particularly on grounds related to a party's conduct in assisting the court, would be high and require compelling circumstances.

The court ordered that the separate question be amended to include the alternative ground that the matters, if proved, fell within s 63(1) of the Civil Procedure Act and attracted the court's powers under s 63(3). The court then proceeded to answer the separate questions posed.