Trajkovski v Asiapac Securities Pte Ltd (No 2) - [2016] NSWSC 191

Supreme Court

New South Wales

Medium Neutral Citation: Trajkovski v Asiapac Securities Pte Ltd (No 2) [2016] NSWSC 191
Hearing dates: By way of written submissions
Date of orders: 07 March 2016
Decision date: 07 March 2016
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court:
Declines to make an order under the slip rule.
Catchwords: PROCEDURE – civil judgments and orders – slip rule – failure to make order for security for costs – agreement between parties as to amount but not as to conditions – decision not to make order a result of a deliberate consideration of the issues – slip rule inapplicable
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385
Expo Aluminium (NSW) Pty Ltd v Pateman Pty Ltd (No 2) (NSWCA, Kirby P, Meagher and Samuels JJA, 29 April 1991, unreported)
Newmont Yandal Operations Pty Ltd v The J Aron Corp [2007] NSWCA 195
Trajkovski v Asiapac Securities Pte Limited [2015] NSWSC 1432
Category: Procedural and other rulings
Parties: Helen Trajkovski (First Plaintiff)
Paul Trajkovski (Second Plaintiff)
Asiapac Securities Pte Ltd (Defendant)
Representation:
Counsel:
R Parsons (Plaintiffs)
N Mirzai (Defendant)
Solicitors:
Kells (Plaintiffs)
Taylor & Scott (Defendant)

File Number(s): 2014/140627
Publication restriction: Nil

Judgment

HER HONOUR: On 8 August 2015, I delivered judgment in Trajkovski v Asiapac Securities Pte Ltd [2015] NSWSC 1432. In that judgment I declined to make an order that the defendant provide security for costs of the cross claim. Paragraphs [4] to [8] of the defendant’s notice of motion filed 20 April 2015 was stood over to a directions hearing before the Registrar at 9.00 am on 29 October 2015 and the balance of the notice of motion was dismissed.
The parties agree that paragraphs [4] to [8] should have been dismissed. I make that order.

Submissions

The defendant has requested the Court make a variation of these orders pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). It reads:

“36.17 Correction of judgment or order (“slip rule”)
If there is a clerical mistake, or an error arising from an accidental slip or omission, in 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.”

Counsel for the plaintiffs has drawn my attention to remarks passed by me in a discussion with him during the hearing when he said that substantive agreements existed on the making of an order for security for costs against the defendant. Counsel for the plaintiff submitted that the agreements were that security ought to be ordered in principle; the quantum should be $60,000; and that the only dispute was regarding a costs order in respect of the application for security for costs.
According to the defendant, in the preparation of the judgment he says that I overlooked these…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWSC 191
Decision Date: 07 March 2016

CaseChat Overview and Summary

The case of Trajkovski v Asiapac Securities Pte Ltd (No 2) involved a dispute between the plaintiff and the defendant, with the proceedings taking place in the Federal Court of Australia. The dispute centred on the application for an order for security for costs. The plaintiff had sought such an order, and the parties had reached an agreement on the amount but differed on the conditions of the order.

The primary legal issue the court had to decide was whether the slip rule applied in this case. The slip rule is a legal principle that allows for an appeal against a decision not to make an order for security for costs, even if the order was not made due to a deliberate consideration of the issues. The court needed to determine if the slip rule was applicable in situations where the parties agreed on the amount of the security but not on the conditions of the order.

The court found that the slip rule did not apply in this instance. The decision not to make an order for security for costs was the result of a deliberate consideration of the issues by the primary judge. Given that the decision was not made inadvertently or without proper consideration, the court held that the slip rule was inapplicable. Consequently, the appeal was dismissed.

The court did not make any further orders, as the primary judge's decision was upheld. The court's ruling clarified the circumstances under which the slip rule applies, reinforcing the requirement for the decision to be made without proper consideration for the rule to be applicable.

Orders