CITATION: Re Nortex Pty Ltd (In Liq) [2003] NSWSC 1036 HEARING DATE(S): 21/10/03 JUDGMENT DATE:
12 November 2003JURISDICTION:
Equity Division
Corporations ListJUDGMENT 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 686PARTIES :
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:
"Q5. On the true construction of the relevant Trust Deed and in the events which have happened, were the income splits from 1991 to 1995 validated by valid and effective determinations in accordance with Clause 4 (1) of that Deed? (this question does not comprehend any issue of fraud on a power).”
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…
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- AGLC
- Re Nortex Pty Ltd (In Liq) [2003] NSWSC 1036
- Case
- [2003] NSWSC 1036
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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