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:

"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 scenario presented by Kation is one which enlivens the slip rule.

8 Counsel for Kation rely on statements such as the following from the judgment of Gallop J in Symes v Commonwealth (1987) 89 FLR 356, 357 (ACT Supreme Court):

It now seems to be settled law that the application of the slip rule is not confined to giving effect to the judge’s intention at the time when his judgment or order was made. It extends also to the intention which the Court would have had but for the failure by reason of which there was an accidental slip or omission.”

9 Mr SJ Motbey of counsel for interests opposed to Kation says that the application is premature, academic and probably an abuse of process. He says that the matter has arisen because in the final hearing it has been put that the answer to Question 5 operates as an issue estoppel. That matter is before the trial judge, and, until he rules on it in a certain way, the current question is academic.

10 Mr Motbey puts that the motion should be summarily dismissed or adjourned until after the trial judge has disposed of the issue before him. Mr Motbey also points out that the application is made two and a half years after the order was made.

11 Mr Motbey also puts that Question 5 was answered in the only way it could have been answered on the evidence and no application for leave to appeal was ever filed. He says, “One suspects that what Kation is really troubled by is not the form of the answer, but the form of the question."

12 In reply, Kation points out that delay is no answer to a claim made under the Slip Rule. This is clearly correct from the terms of the Rule itself. It also submits that the Rule applies whenever “a Judgment of the Court has unintended consequences”.

13 There is no doubt that the Slip Rule has a wide operation: R v Cripps [1984] QB 686, 695. However, it is also clear that there are limits to its operation. The rule is to cover situations where no real difference of opinion can exist. “It does not apply where the amendment is a matter of controversy; nor does it extend to mistakes that are the consequence of a deliberate decision”, per Lockhart J Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385, 391.

14 In the present case, there is deep controversy between the parties as to the form of the question and answer. Further, it seems to me that what I am really being asked to do is to construe the answer I gave using as material to establish the factual matrix the transcript and submissions of 2001. This is beyond the scope of the slip rule. Construing a judgment or answer to a question is to be done in separate proceedings, not by the original judge reopening his or her mind and proceeding under the slip rule.

15 Again the submission that the slip rule can be invoked when the judgment has unintended consequences is too wide. A judgment can have unintended consequences because of a number of events occurring quite independently of the acts or omissions of the parties or of the judge. The Rule only operates where there has been a mistake or error in the wide sense of those words as interpreted by the cases.

16 This being so, Kation’s motion must be dismissed with costs as inappropriate.

17 It is thus unnecessary to deal with Mr Motbey’s submission that as a matter of discretion I should not deal with the motion or that I should stand it over to be considered after the relevant decision has been made by the trial judge.

18 I thus order that the interlocutory process filed on 24 September 2003 by Kation Pty Ltd and Peter Lawrence Lewis be dismissed with costs.

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Last Modified: 11/13/2003