UAERJ Pty Ltd v Jupiters Ltd (No 2)
[2014] NSWCA 284
•25 August 2014
Court of Appeal
New South Wales
Case Title: UAERJ Pty Ltd v Jupiters Ltd (No 2) Medium Neutral Citation: [2014] NSWCA 284 Hearing Date(s): On the papers Decision Date: 25 August 2014 Before: Beazley P
McColl JA
Macfarlan JADecision: (1) Order 3(a) made by this Court on 3 July 2014 is set aside.
(2) Order UAERJ to pay the State of New South Wales' and Jupiters' costs of the State's Notice of Motion filed on 17 July 2014.
(3) Dismiss UAERJ's Notice of Motion filed on 29 July 2014, with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: PRACTICE AND PROCEDURE - order amended under slip rule - no issue of principle Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 36.16(3A), 36.17 Category: Consequential orders Parties: UAERJ Pty Ltd (Appellant/First
Cross-Respondent)
Ruchitha Perera (Second Appellant/Second Cross-Respondent)
Jupiters Ltd (Respondent/Cross-Appellant)
UAE Presents Pty Ltd (Third
Cross-Respondent)
John Denison (Fourth Cross-Respondent)
Brisbane City Council (Fifth
Cross-Respondent)
State of New South Wales (Sixth
Cross-Respondent)
AEG Ogden (Perth Arena) Pty Ltd (Seventh Cross-Respondent)Representation - Counsel: Counsel:
T J Morahan (Appellants/First and Second Cross-Respondents)
K Dawson/J Curtin (Respondent/
Cross-Appellant)
Submitting Appearance (Sixth
Cross-Respondent)- Solicitors: Solicitors:
Emprise Legal (Appellants/First and Second Cross-Respondents)
King & Wood Mallesons (Respondent/Cross-Appellant)
UAE Presents Pty Ltd (Third
Cross-Respondent)
John Denison (Fourth Cross-Respondent)
Brisbane City Legal Practice (Fifth
Cross-Respondent)
NSW Crown Solicitor's Office (Sixth
Cross-Respondent)
Clayton Utz (Seventh Cross-Respondent)File Number(s): CA 2013/349095 Decision Under Appeal - Court / Tribunal: Supreme Court - Before: Stevenson J - Date of Decision: 04 October 2013 - Citation: Jupiters Ltd v UAERJ Pty Ltd [2013] NSWSC 1469 - Court File Number(s): SC 2013/164924
JUDGMENT
THE COURT: The Court delivered judgment on this appeal on 3 July 2014 ([2014] NSWCA 213). The appeal involved a contest between UAERJ and Jupiters as to which was entitled to concert ticket sale proceeds held by the owners of venues in Perth, Brisbane and Wollongong. The State of New South Wales owns the Wollongong venue. The Court reversed the primary judge's finding in Jupiters' favour in relation to the Perth concert and confirmed his Honour's findings against Jupiters in relation to the Wollongong and Brisbane concerts.
Separate from the proceedings between UAERJ and Jupiters were first instance interpleader proceedings commenced by the State (2013/131366). In those proceedings, the Equity Division ordered on 23 October 2013 (by order (1) made on that date) that the State's costs be paid on an indemnity basis from the funds held by it. There was no appeal from the orders made in those proceedings and the State was not named as a party to UAERJ's appeal in the proceedings between it and Jupiters. Nevertheless, UAERJ's Notice of Appeal sought an order setting aside the costs order made in the interpleader proceedings, apparently, as appears from its submissions, on the misconception that the latter order provided for Jupiters' costs to be paid out of the funds held by the State, whereas the order in fact related to the State's own costs.
In setting aside the interpleader costs order by its judgment of 3 July 2014, the Court acted on this misconception, overlooking the attempt in Jupiters' written submissions to correct it. If the Court had been conscious of the true character of the order, it would not have set it aside.
In these circumstances, the Court should act under the slip rule (r 36.17 of the Uniform Civil Procedure Rules 2005) to set aside order (3(a)) made by it on 3 July 2014, that is, the order that Order (1) made on 23 October 2013 in proceedings 2013/131366 be set aside. The Court therefore makes that order.
Further, UAERJ is ordered to pay the State of New South Wales' and Jupiters' costs of the State's Notice of Motion filed on 17 July 2014 seeking that order, as UAERJ opposed its making.
Another matter to be dealt with is a Notice of Motion filed by UAERJ on 29 July 2014 seeking an amendment to order (5) made by the Court on 3 July 2014, so as to have the order read as follows (the interpolation sought being highlighted):
"Order Jupiters Ltd to pay the costs of those defendants at first instance including the costs of the State of New South Wales in the interpleader proceedings 2013/131366 on an indemnity basis and of the appeal and cross-appeal".
An order in this form was not sought in the appeal proceedings and UAERJ's Notice of Motion was filed outside the period limited by r 36.16(3A) of the Uniform Civil Procedure Rules 2005 for the filing of applications to set aside or vary judgments or orders. Moreover, no relevant slip or other error occurred in the making of the Court's orders which would attract the operation of the slip rule in r 36.17. As a result, the Court does not have power to make the orders sought and the Notice of Motion should be dismissed with costs.
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