St Hilliers Property Pty Ltd v ACT Projects Pty Ltd (No 3)
[2019] ACTSC 32
•26 February 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | St Hilliers Property Pty Ltd v ACT Projects Pty Ltd (No 3) |
Citation: | [2019] ACTSC 32 |
Hearing Date: | On the papers |
DecisionDate: | 26 February 2019 |
Before: | Walmsley AJ |
Decision: | See [44] |
Catchwords: | PROCEDURE – COSTS – slip rule application – whether there was an accidental slip or omission – whether an order should be made to clarify intent ––potential for injustice |
Legislation Cited: | Building and Construction Industry (Security of Payment) Act 2009 (ACT) Court Procedures Act 2004 (ACT) Court Procedure Rules 2006 (ACT), rr 1851, 1852, 1853, 1854 1855, 6906 |
Cases Cited: | Arnett v Holloway [1960] VR 22 Brennand and Naughton v Hartung and Best Practice Education Group Ltd (No 3) [2015] ACTSC 149 |
Parties: | St Hilliers Property Pty Ltd (Applicant) ACT Projects Pty Ltd (First Respondent) Simon Wilson (Second Respondent) |
Representation: | Counsel Mr J Hall (as agent) (Applicant) Mr P Greenwood SC with Mr C Tam (First and Second Respondents) |
| Solicitors Colin Biggers & Paisley (Applicant) Aulich Civil Law (First Respondent) CCS Legal Pty Ltd (Second Respondent) | |
File Numbers: | SC 363 of 2016 |
WALMSLEY AJ:
Introduction
This is an application under the ‘slip rule’ for an order amending a costs order, or alternatively for clarification of the scope of the order.
The application came before McWilliam AsJ on 2 November 2018. Her Honour then referred it to me, and made orders for the service of written submissions. Her Honour also ordered that the application be heard and determined on the papers, unless otherwise ordered by me.
Background
There were two sets of proceedings. One was an application for judicial review of a determination by the second defendant under the Building and Construction Industry (Security of Payment) Act 2009 (ACT). The other was an appeal from the second defendant’s determination, for error of law.
I gave judgment on 20 July 2017. The plaintiff succeeded in both actions. I invited and received written submissions on costs. On 20 September 2017 I awarded costs in both actions to the plaintiff. My order said: “The defendants are to pay the plaintiff’s costs”.
The costs assessment then proceeded before Deputy Registrar Kennealy. In the course of the assessment a dispute developed between the parties as to the meaning of the costs order.
The plaintiffs asserted, unsurprisingly, that they were entitled to the costs of the proceedings, whereas the defendants argued the order only entitled the plaintiff to the costs of the final hearing.
The costs judgment dealt with a number of issues. It was the plaintiff’s primary position that it was entitled to the costs of the whole proceedings, save in respect of interlocutory applications. It was the defendants’ position essentially, that the plaintiff ought not have its costs on certain issues, and further, that it should pay the defendants’ costs on some issues. It was never argued by either defendant that costs awarded to the plaintiff should only be the costs incurred for the final hearing.
I had anticipated in the main judgment (St Hilliers Property Pty Limited v ACT Projects Pty Ltd and Simon Wilson [2017] ACTSC 177) that there might need to be a division of the costs liability as between defendants. But after receiving submissions I decided there should be no division, and said so at [3]-[4] as follows:
When giving judgment I referred to the possibility that each defendant should bear a proportion of the plaintiff’s costs and suggested a possible division.
By reason of the submissions since filed, I have formed the view that there should be no such division, but that the defendants should pay the plaintiff’s costs.
I then considered the other arguments, including one concerning the consequences from the fact that the plaintiff had abandoned one of the foundations for its case following a decision of the High Court of Australia which showed it was untenable.
I also dealt in the costs judgment (St Hilliers Property Pty Ltd v ACT Projects Pty Ltd and Anor (No 2) [2017] ACTSC 263) with the costs incurred in an examination of the first defendant’s solvency in an interlocutory application.
In the course of dealing with the arguments, noting all the costs aspects of interlocutory proceedings had been dealt with, so there were no orders to be made by me as to those proceedings, and in the course of distinguishing between costs in the interlocutory matters, and costs in the claims for final relief, I said the following at [48]-[58]:
As to whether there ought be any allowance made because the plaintiff abandoned issues or because certain evidence was not read at the hearing, this is not an easy matter to resolve, given the plaintiff and first defendant did not agree.
However, as to the pleading issue, I accept the plaintiff’s submission that the abuse‑of‑process case overlapped the reference-date case, and I consider the plaintiff was reasonable in raising the abuse-of-process argument initially and then, after the High Court had made the position clear, in abandoning it. As I see it, they were arguments about the same thing and I cannot see how the initial assertion of an abuse of process can have led to the incurring of any additional costs by the first defendant.
I consider the argument concerning the solvency evidence is in a different position.
The plaintiff says most of this evidence was assembled for an argument about either urgent relief or concerning subpoenas. In the record of proceedings before Elkaim J it appears that on 10 October 2016 his Honour ordered by consent that each of the plaintiff and first defendant pay its own costs.
So his Honour has dealt finally with those costs. I do not consider I should revisit his Honour’s orders. They dealt finally with the costs on that application.
The solvency documents were again relevant on the first defendant’s application before me on 1 March 2017. Orders were made that day concerning costs and they should not be revisited either.
It is not suggested the documents were used thereafter.
In those circumstances I do not consider it necessary to make a special order about the costs on preparation with respect to the solvency issue either in favour of the plaintiff or the first defendant. The order for costs I am about to make will cover only the costs of the hearing. What those costs are, will be for the taxing officer to decide.
In summary, I do not consider the first defendant has any entitlement to costs, since the solvency issue was relevant only to interlocutory matters, where costs issues have been dealt with, and deleting the abuse of process claim did not materially alter the amount of necessary preparation.
There will be an order that the plaintiff’s costs be paid by the defendants.
ORDERS
The defendants are to pay the plaintiff’s costs.
Argument concerning this application
The plaintiff’s arguments
The plaintiff submitted (as it had before I delivered the costs judgment) that it had succeeded in its claims for final relief, and costs should ordinarily follow the event. It referred to [220] of the main judgment, where I had anticipated that that would be the outcome on costs, given the plaintiff’s success.
It submitted further that it had construed my order as meaning that the defendants would pay the costs of the proceedings.
It referred to the fact that the statement in [55] set out above had been relied on by the Deputy Registrar to read down the reach of the costs order.
The plaintiff referred to this Court’s power to amend under the slip rule, submitting I had made a slip, that the costs order made had not articulated my intention, alternatively had been ambiguous, and should be clarified.
The defendants’ submissions
The defendants submitted the application had been made too late, and was being used as an appeal from the Deputy Registrar’s ruling while the assessment process was underway. Further, they argued that the plaintiff could have appealed against my costs decision but had not.
They submitted the assessment should run its course, and that the Court Procedures Rules 2006 (ACT) provide a comprehensive scheme for the assessment of costs.
They submitted that the plaintiff may, if it disagrees with the Deputy Registrar’s rulings, ask him to reconsider, and give reasons, and then apply to the Court for a review if still unsatisfied in accordance with rr 1851, 1852, 1853, 1854 and 1855 of the Court Procedures Rules.
They submitted that even if the order sought was made, it would not be consistent with “the costs judgment which specifically excised the entitlement to costs which would be included if that amendment was made”.
They also relied on the principle of finality of judgments.
They asked to be permitted to make oral submissions on form and finality if their other arguments failed.
Plaintiff’s submissions in reply
The plaintiff, in reply, submitted that there was no way they could have known that the Deputy Registrar would have construed the order in the way he did until he began the taxing hearing, so it should not be criticised for not appealing the costs judgment upon delivery.
It averred that this application was open to it, and it did not have to wait until the end of the taxation process before exercising its rights; it was not attempting to appeal from the ruling during the assessment process. The latter is a different, and not inconsistent, avenue of redress. Further, the only excising done in the costs judgment had concerned interlocutory matters, dealing with issues such as seeking urgent relief.
It argued the application is being brought to assist the Deputy Registrar, so he will not proceed on an incorrect interpretation of the judgment.
In the alternative to its main argument that a slip had occurred, it submitted that even in the absence of error, an order may be made to clarify intent: Newmont Yandal Operations Pty Limited v The J Aron Corporation & The Goldman Sachs Group, Inc [2007] NSWCA 195; 70 NSWLR 411 at [116]-[117]; Petrovic v Waterhouse Racing [2007] NSWSC 740 at [6]-[7] per Hidden J.
In the context of the cases in [25], the plaintiff submitted that given the main purpose of civil procedure, earlier authorities on the slip rule before the Court Procedures Act 2004 (ACT) and rules came into effect should be treated with caution.
Consideration
Rule 6906 provides:
(1) This rule applies if –
(a) there is a clerical mistake in an order or certificate of the court or an error in a record of an order or certificate of the court; and
(b) the mistake or error resulted from an accidental slip or omission.
(2) On application by a party to the proceeding or on its own initiative, the court may at any time correct the mistake or error.
(3) Part 2.7 (Amendment) does not apply to a correction made under this rule.
An application under this rule, known as the ‘slip rule’, may succeed if error is shown to have occurred from an accidental slip or omission: Arnett v Holloway [1960] VR 22 at page 24. The purpose of the rule is to avoid injustice: Hanave Pty Ltd v LFOT Pty Ltd [2004] FCAFC 180; 136 FCR 566 at [32] per Kiefel J (as she then was).
In Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385, 404, Lindgren J said the slip rule was available where, when “the mistake, slip or omission comes to light, one might expect the response [to be] ‘Of course, it must be attended to. It is obvious. It goes without saying’”.
An order may not be made however, when “something has intervened which would render [the order] inexpedient or inequitable”: L Shaddock & Associates Pty Ltd v Parramatta City Council(No 2) (1982) 151 CLR 590, 597.
I shall consider first, whether the costs order made was in error.
When a Court orders a party to pay another party’s costs of proceedings, the conventional order made is that the defendant pay “the plaintiff’s costs”. Where the Court wants to excise costs, such as the costs of points unsuccessfully run, the order will usually specify the extent of the excision.
In Ezekiel-Hart v Law Society (ACT) [2013] ACTSC 182 at [10], Master Mossop (as he then was), when asked to construe an order for ‘costs incidental to’ an application, said:
There is a debate as to whether the words “and incidental to” add anything to an order that a party pay costs of an application or proceedings. My view is that it does not, and an order that a party pay costs, is sufficient. …
His Honour’s observation is consistent with the view that the sentence: “The defendants are to pay the plaintiff’s costs” is a conventional expression, and in need of no addition or expansion.
I am not persuaded any error in the costs order is demonstrated.
However I can see that my statement in [55] of the costs judgment as to the costs of the hearing might be understood as confining the reach of the costs order as the defendants contend for. I can see an ambiguity by the presence of those words in the costs judgment.
The costs judgment read as a whole expresses no reason to limit the order’s extent in the way the defendants contend for. Indeed, the discussion of the various issues demonstrates an underlying assumption the order is not to be confined to the very costs of the hearing. No reason (other than those referred to and dealt with in the costs judgment) was put forward by the defendants to limit the extent of the order to the costs of the hearing only, when arguments were made before the costs judgment.
When the costs judgment was delivered, had the hypothetical counsel asked: “But does that order cover all the plaintiff’s costs, not just those incurred for the hearing?”, the inevitable reply would have been: “Of course!”
My reasons of 20 September 2017 should be read as meaning that the plaintiff was entitled to its costs of the proceedings.
Were I not to give the requested clarification, I consider the plaintiff might suffer an injustice.
I am satisfied I have jurisdiction to clarify my order, given what I am satisfied is an ambiguity. A judicial officer may amend reasons: Brennand and Naughton v Hartung and Best Practice Education Group Ltd (No 3) [2015] ACTSC 149 at [29]-[50].
Although the defendants sought leave to make further submissions orally, I see no need for them given the extensive written submissions I received from each party.
As neither party was to blame in any way for the need for this application, I consider it appropriate that in respect of this application I make no order as to costs.
Orders
The orders of the Court are:
1. Application allowed to the extent of clarifying costs judgment of 20 September 2017.
2. No order for the costs of this application.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Walmsley Associate: Date: 26 February 2019 |
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