Re Nortex Pty Ltd (In Liq) - [2003] NSWSC 1036

CITATION: Re Nortex Pty Ltd (In Liq) [2003] NSWSC 1036

HEARING DATE(S): 21/10/03

JUDGMENT DATE:
12 November 2003

JURISDICTION:
Equity Division
Corporations List

JUDGMENT OF: Young CJ in Eq

DECISION: Interlocutory process dismissed with costs.

CATCHWORDS: PROCEDURE [487]- Slip rule- Scope of rule- Construction of order not covered- Rule not to apply where the amendment is a matter of controversy.

LEGISLATION CITED: Supreme Court Rules, Part 20(10)(1)

CASES CITED: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385
Symes v Commonwealth (1987) 89 FLR 356
R v Cripps [1984] QB 686

PARTIES :
Kation Pty Limited and Peter Lawrence Lewis (Applicants)
Lamru Pty Limited (Respondent)

FILE NUMBER(S): SC 3081/97

COUNSEL: N A Cotman SC and J T Johnson (Applicants)
S J Motbey (Respondent)

SOLICITORS: Kemp Strang (Applicants)
Lyons & Lyons (Respondent)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

YOUNG CJ in EQ

Wednesday 12 November 2003

3081/1997 - RE NORTEX PTY LTD (IN LIQ)

JUDGMENT

1 HIS HONOUR: These proceedings have been on foot for many years and are still part heard before another judge of this Division now in their 72nd hearing day.

2 I dealt with a number of preliminary matter in these proceedings before the final hearing commenced. One such matter was a series of five separate questions which I was asked to answer and did so on 22 June 2001 with reasons.

3 The present interlocutory application filed by the applicants Kation Pty Ltd and Mr Lewis (whom I shall refer to as “Kation”) is under the slip rule with respect to Question 5 answered on 22 June 2001.

4 The rule popularly called the “slip rule” is Part 20 (10)(1) of the Supreme Court Rules which reads as follows:

“Where there is a clerical mistake, or an error arising from an accidental slip or omission, in a minute of a judgment or order, or in a certificate, the Court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.”

5 The question and answer were as follows:

A5. “No.”

6 Mr NA Cotman SC and Mr JT Johnson for the applicants say that Question 5 must be read in conjunction with the other four questions and in the light of the submissions put by both counsel on the question. They submit that, if this is done, the answer to Question 5 should read, “No, as to the income splits purportedly made on or after 16 April 1991 pursuant to the impugned document”. The term “impugned document” was defined in the statement of questions.

7 The key question on this motion is whether the…

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 Nortex Pty Ltd (In Liq)

Details

AGLC: Re Nortex Pty Ltd (In Liq) [2003] NSWSC 1036
Case: [2003] NSWSC 1036
Decision Date: 12 November 2003

CaseChat Overview and Summary

The case before the court involved Nortex Pty Ltd, a company that was in liquidation, and various creditors. The dispute centred around the application of a particular rule in the Supreme Court of Victoria regarding amendments to the statement of claim. Specifically, the case sought to determine whether the court could apply a certain rule when the amendment in question was a matter of controversy. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was the interpretation and application of the relevant rule concerning amendments to statements of claim. The court had to determine whether the rule applied in circumstances where the amendment was contested by the opposing party. The case hinged on the precise wording of the rule and whether it covered situations where the amendment was a matter of dispute.

In its decision, the court carefully examined the wording of the rule in question and found that it did not extend to situations where the amendment was a matter of controversy. The court held that the rule was not designed to apply in circumstances where there was a dispute about the nature or permissibility of the amendment. As such, the court ruled that the rule could not be applied in this case. The court's reasoning was based on a strict interpretation of the rule, which did not encompass the scenario presented by the parties.

The final orders of the court reflected its decision. The court declined to apply the rule in question to the amendment in dispute and allowed the amendment to proceed on its merits. This decision highlighted the importance of the precise wording of procedural rules and the need for courts to interpret them strictly within their defined scope.

Orders