Spina v Permanent Custodians Ltd (No 2)

New South Wales

Court of Appeal

CITATION:	Spina v Permanent Custodians Limited (No 2) [2009] NSWCA 419
HEARING DATE(S):	On the papers.
JUDGMENT DATE:	17 December 2009
JUDGMENT OF:	Tobias JA at [1]; Campbell JA at [2]; Young JA at [3]
DECISION:	Orders reformulated.
LEGISLATION CITED:	Civil Procedure Act 2005, ss 14, 56 Uniform Civil Procedure Rules 2005, Part 36.16.3C
CATEGORY:	Consequential orders
CASES CITED:	Hancock v Arnold (No 2) [2009] NSWCA 19 Newmont Yandal Operations Pty Ltd v The J Aron Corporation and The Goldman Sachs Group Inc (2007) 70 NSWLR 411 Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No 2) [2009] NSWCA 336
PARTIES:	Joe Spina (Appellant) Permanent Custodians Limited (Respondent)
FILE NUMBER(S):	CA 40313/08
COUNSEL:	A Leopold SC and J Clifton (Appellant) S A Gregory (Respondent)
SOLICITORS:	Grogan & Webb (Appellant) Hicksons Lawyers (Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC 2393/06
LOWER COURT JUDICIAL OFFICER:	Hammerschlag J
LOWER COURT DATE OF DECISION:	30 June 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Angelina Spina v Permanent Custodians Ltd [2008] NSWSC 561

CA 40313 of 2008
TOBIAS JA
CAMPBELL JA
YOUNG JA


Thursday 17 December 2009

SPINA v PERMANENT CUSTODIANS LIMITED (NO 2)

Judgment

1 TOBIAS JA: I agree with Young JA.

2 CAMPBELL JA: agree with Young JA.

3 YOUNG JA: The Court gave judgment in this appeal on 22 July 2009.

4 The Court allowed the appeal from the Equity Division and made orders in substitution for those made below. Included in those orders was Order 2B(i) which varied a mortgage so that the appellant was, inter alia, prevented from making a claim under it for “costs and expenses [that] were incurred in the course of these proceedings (or in the course of the appeal), except in relation to the costs referred to in Order D made below in the appeal proceedings”.

5 The Court also made Order 2 I:

“On the cross-claim, no order as to costs below except for the costs of preparing and filing the pleadings and affidavit evidence.”

6 Liberty was given to apply to reformulate these orders if application was made within 14 days.

7 The 14 days expired on 5 August 2009.

8 However, it would seem on 4 August 2009 consent orders were made by the Registrar and duly entered that the time for applying to reformulate be extended to 18 August 2009.

9 There is great doubt as to whether such an order, even by consent, should have been entertained in view of Part 36.16.3C of the Uniform Civil Procedure Rules 2005 which provides that the court is not to extend time to vary orders. Subject to the possibility (not realised in the facts of the present case) of application being made under s 14 Civil Procedure Act to dispense with a requirement of the rules (cf Hancock v Arnold (No 2) [2009] NSWCA 19 at [9]-[12]; Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No…