Stonestreet v Stonestreet

[2015] NSWSC 477

Supreme Court

New South Wales

Medium Neutral Citation:	Stonestreet v Stonestreet [2015] NSWSC 477
Hearing dates:	24 April 2015
Decision date:	24 April 2015
Jurisdiction:	Equity Division
Before:	Stevenson J
Decision:	Defendants' notice of motion of 3 February 2015 dismissed with costs. Defendants pay the plaintiff's costs of the notice of motion of 4 March 2015
Catchwords:	PRACTICE AND PROCEDURE – judgments and orders – order entered – whether order can be set aside – whether order “beyond recall” - no question of applicability of UCPR r 36.15 or r 36.16 - whether s 73 of Civil Procedure Act 2005 available to set aside order
Legislation Cited:	Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Bailey v Marinoff [1971] HCA 49; 125 CLR 529 Donnelly v Australia and New Zealand Banking Group Ltd (No 2) [2015] NSWCA 41
Category:	Procedural and other rulings
Parties:	Anthony Grant Stonestreet (Plaintiff) Bernard Edward Stonestreet (First Defendant) Isabell Ann Stonestreet (Second Defendant)
Representation:	Counsel: D Macfarlane (Plaintiff) D C Eardley (Defendants) Solicitors: Nelson Keane & Hemingway (Plaintiff) Campbell Paton & Taylor (Defendants)
File Number(s):	SC 2012/218022

EX TEMPORE Judgment (REVISED)

1. These proceedings involved a dispute between the plaintiff and his parents, who are the defendants. The plaintiff claimed that the defendants held two rural properties, registered in their name, on trust for him.

2. The proceedings were listed before me on 11 and 12 August 2014. On that occasion, Mr Tregenza appeared for the plaintiff and Mr Hughes appeared for defendants.

3. On 12 August 2014, I was informed the matter had settled. I marked for identification “1” a copy of a document called "Binding Heads of Agreement” that I was told had been executed by the parties that day. With the consent of the parties, I ordered the statement of claim be dismissed with no order as to costs. That order was recorded in the Court’s computerised record system, and thus entered, that day (see Uniform Civil Procedure Rules r 36.11(2)).

4. On 3 February 2015, the defendants filed a notice of motion seeking an order that my orders of 12 August 2014 be set aside.

5. In turn, the plaintiff filed a notice of motion on 4 March 2015 seeking an order that the defendants' notice of motion of 3 February 2015 be dismissed.

6. By coincidence, the matter came before me today as Applications Judge.

7. Barwick CJ stated the general rule in Bailey v Marinoff [1971] HCA 49; 125 CLR 529 at 530 as follows:

“Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court.”

8. That decision has been followed in many subsequent decisions in the High Court and in this Court; for example, recently in Donnelly v Australia and New Zealand Banking Group Ltd (No 2) [2015] NSWCA 41 at [4] to [5] per Macfarlan JA, with whom McColl and Leeming JJA agreed.

9. In those circumstances, as orders have been entered, the only basis upon which they could be set aside is under either of UCPR r 36.15 or r 36.16.

10. Mr Eardley, who appeared for the defendants today, candidly accepted that he was not able to make out the requirements of either of those rules.

11. Mr Eardley submitted that I have power under s 73 of the Civil Procedure Act 2005 (NSW) to make the order that his clients seek.

12. I am not able to accept that submission. Section 73 gives the Court jurisdiction to "determine any question in dispute between the parties to the proceedings as to whether, and on what terms, the proceedings have been compromised or settled between them". It does not provide a separate head of power to set aside orders once they are entered.

13. If the defendants wish to challenge the "Binding Heads of Agreement" they need to make a separate application. The defendants should give consideration as to whether any such application would appropriately be made under s 73 of the Civil Procedure Act or whether, rather, it should be made in separate proceedings (in view of the likely factual controversy in any such application).

14. In those circumstances, I order that the defendants' notice of motion of 3 February 2015 be dismissed with costs. I order that the defendants pay the plaintiff's costs of the notice of motion of 4 March 2015.

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Decision last updated: 28 April 2015