Re Amazon Pest Control Pty Ltd (No 2) - [2016] NSWSC 1590

Supreme Court

New South Wales

Medium Neutral Citation: Re Amazon Pest Control Pty Ltd (No 2) [2016] NSWSC 1590
Hearing dates: In chambers on the papers
Date of orders: 10 November 2016
Decision date: 10 November 2016
Jurisdiction: Equity
Before: Young AJ
Decision:
Amend order 1(a) to $1,069,125.73, order 1(b) to $488,916.48 and the last line of order 2 to “The final judgment sum is thus $1,558,042.21”.

Catchwords:
PRACTICE & PROCEDURE – slip rule – application to reduce judgment sum because of mistake in calculation – defendant became bankrupt after judgment pronounced – whether jurisdiction to make the amendment
BANKRUPTCY – application to reduce judgment amount under slip rule – order made before bankruptcy – application under slip rule after bankruptcy – whether prohibited fresh step in proceeding – Bankruptcy Act 1966 (Cth) s 58(3)
Legislation Cited: Bankruptcy Act 1966 (Cth)
Cases Cited: ANZ Banking Group v Computer Plus [1992] 1 VR 607
Australian Broadcasting Commission v Industrial Court (SA) (1985) 159 CLR 536; [1985] HCA 71
Deighton v Cockle [1912] 1 KB 206
Doran v Isaacs (1912) 12 SR (NSW) 699
Category: Consequential orders (other than Costs)
Parties:
2015/87126
Plaintiff: Edward Ted Lakis
Defendant 1: Michael Victor Lardis
Defendant 2: PestHelp Holdings Pty Ltd
2015/89913
Plaintiff: Michael Victor Lardis
Defendant: Edward Ted Lakis
Representation: Websters (for ET Lakis)
David Leamey Solicitor & Barrister (for MV Lardis and PestHelp Holdings Pty Ltd)

File Number(s): 2015/87126; 2015/89913

Judgment

I heard these proceedings in March this year and gave the principal judgment on 12 May. I gave additional reasons when I made formal orders on 1 September 2016. Following delivery of those reasons on 1 September, it would seem that a formal order was taken out which is attached as an appendix to these further reasons.
Three problems have now surfaced, namely:

can I now under the slip rule amend the amount of the judgment by reducing the amount of $1,090,076.24 referred to in order 1(a)?

is the order in the appendix irregular or invalid?

should I deal with this matter ex parte?

I will deal with all three points together.
A problem arises because the solicitors for Mr Lakis, who seek the variation of the order, have informed the Court that their understanding is that Mr Lardis became a bankrupt on 8 September 2016.
Section 58(3) of the Bankruptcy Act 1966 (Cth) says:

“Except as provided by this Act, after a debtor has become a bankrupt, it is not competent for a creditor:
…
(b) except with the leave of the Court … to commence any legal proceeding in respect of a provable debt or take any fresh step in such a proceeding.”

Is then an amendment of the judgment under the slip rule after it has been entered a fresh step which cannot be taken without leave of a federal court?

I have found no authority directly on the point. However, there are three cases dealing with fresh steps in proceedings decided outside the area of bankruptcy, though both…

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.

Continue reading Re Amazon Pest Control Pty Ltd (No 2)

Details

AGLC: Re Amazon Pest Control Pty Ltd (No 2) [2016] NSWSC 1590
Case: [2016] NSWSC 1590
Decision Date: 10 November 2016

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Re Amazon Pest Control Pty Ltd (No 2) involved the applicant seeking to amend a judgment sum due to an arithmetic error. The original judgment had been entered against the defendant, Amazon Pest Control Pty Ltd, but the applicant discovered a miscalculation in the amount owed. The defendant subsequently entered into bankruptcy, which raised questions about the court's jurisdiction to amend the judgment sum post-bankruptcy. The legal issue centred on whether the court could apply the 'slip rule' to correct the sum owed by the defendant after the defendant had become bankrupt, and whether such an amendment would constitute a prohibited fresh step in the bankruptcy proceedings.

The court examined the provisions of the Bankruptcy Act 1966 (Cth), specifically section 58(3), which restricts the ability to take certain steps in bankruptcy proceedings. The applicant argued that the amendment was not a fresh step but a correction of an obvious error. The court held that the slip rule could be applied to correct obvious errors in judgments, and that such a correction did not constitute a fresh step in bankruptcy proceedings. The court found that, because the original judgment was entered before the defendant's bankruptcy, the application to amend the judgment sum was permissible under the slip rule, and did not contravene the restrictions imposed by section 58(3) of the Bankruptcy Act.

The Federal Court of Australia allowed the application to reduce the judgment sum to correct the arithmetic error. The court's decision hinged on the distinction between an amendment that corrects an obvious error and one that introduces a new element into the proceedings. The court found that the amendment in this case was a correction of an obvious error, and not a fresh step that would be prohibited by the Bankruptcy Act. Consequently, the court exercised its jurisdiction under the slip rule to amend the judgment sum, notwithstanding the defendant's subsequent bankruptcy.

Orders