Wang v Farkas (No 4)

Case [2014] NSWCA 234

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Wang v Farkas (No 4) [2014] NSWCA 234
Hearing dates:On the papers
Decision date: 22 July 2014
Before: Bathurst CJ at [1];
Beazley P at [2];
Basten JA at [3]
Decision:

(1) The applicants are to pay the disbursements, including solicitors' fees, incurred by the first respondent Mr Farkas in seeking to enforce the orders of the District Court up to 9 September 2013 as well as the costs of cancellation at Land & Property Information of the registrations of the Writ on the properties, incurred as a result of the Court's order, consequent upon the applicants lodging the bank guarantee.

(2) The applicants pay Mr Farkas' costs of this application limited to the filing fee incurred by Mr Farkas.

[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 - variation of orders - respondent incurred disbursements enforcing orders after applicants commenced judicial review proceedings - stay of orders granted conditional on bank guarantee from applicants for costs incurred - applicants successful - allowance made for disbursements incurred by respondent enforcing orders in light of prejudice caused by delay by applicants - whether allowance extends to disbursements incurred after proceedings commenced - Uniform Civil Procedure Rules 2005 (NSW), r 36.16

PRACTICE AND PROCEDURE - application of slip rule - scope and nature of slip rule - discretion in exercising power under slip rule - whether appropriate to exercise power - variation proposed involves substantial alteration of parties' rights - Uniform Civil Procedure Rules 2005 (NSW), r 36.17 - power to waive requirement as to formal notice of motion - Civil Procedure Act 2005 (NSW), s 14
Legislation Cited: Civil Procedure Act 2005 (NSW), s14
Criminal Procedure Act 1986 (NSW), ss 211, 215
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), r 36.17
Cases Cited: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385
Hancock v Arnold (No 2) [2009] NSWCA 19
Wang v Farkas [2014] NSWCA 29
Wang v Farkas (No 3) [2014] NSWCA 111
Category:Procedural and other rulings
Parties: James Wang (First Applicant)
Y Ping Gu (Second Applicant)
George Farkas (Respondent)
Representation: Applicants (Self-represented)
Respondent (Self-represented)
Applicants (Self-represented)
Respondent (Self-represented)
File Number(s):CA 2013/22988
 Decision under appeal 
Jurisdiction:
9101
Date of Decision:
2011-05-20 00:00:00
Before:
North DCJ
File Number(s):
DC 2006/16064; DC 2006/16035

Judgment

  1. BATHURST CJ: I agree with Basten JA.

  1. BEAZLEY P: I agree with Basten JA.

  1. BASTEN JA: The substantive issue in these lengthy proceedings concerned the power to award professional costs in favour of a litigant in…

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Wang v Farkas (No 4) [2014] NSWCA 234
Case
[2014] NSWCA 234
Decision Date

CaseChat Overview and Summary

In *Wang v Farkas (No 4)*, the applicants sought to vary orders made by the court. The dispute arose from disbursements incurred by the first respondent, Mr Farkas, in enforcing earlier court orders, particularly after the applicants commenced judicial review proceedings. A stay of those earlier orders had been granted, conditional on the applicants providing a bank guarantee for costs. The applicants were ultimately successful in their judicial review proceedings.

The court was required to determine whether an allowance for disbursements incurred by the respondent in enforcing the orders should extend to those incurred after the commencement of the judicial review proceedings. Additionally, the court considered the application of the "slip rule" under rule 36.17 of the *Uniform Civil Procedure Rules 2005* (NSW), and the scope and nature of this discretionary power, particularly where the proposed variation might substantially alter the parties' rights. The court also had to consider its power to waive formal notice requirements for such applications under section 14 of the *Civil Procedure Act 2005* (NSW).

The court reasoned that an allowance for disbursements incurred by the respondent in seeking to enforce the District Court orders was appropriate, even for those incurred after the judicial review proceedings commenced. This was in light of the prejudice caused to the respondent by the delay occasioned by the applicants' actions. The court also considered the application of the slip rule, noting that while it allows for the correction of clerical mistakes or errors arising from an accidental slip or omission, it is not intended to permit substantial alterations to the rights of the parties. The court ultimately made orders allowing the applicants to pay the disbursements, including solicitors' fees, incurred by Mr Farkas in seeking to enforce the District Court orders up to 9 September 2013, as well as the costs of cancellation of registrations of the Writ on properties, consequent upon the lodging of the bank guarantee. The applicants were also ordered to pay Mr Farkas' costs of the application, limited to the filing fee.

Orders

Orders of the court

(1) The applicants are to pay the disbursements, including solicitors' fees, incurred by the first respondent Mr Farkas in seeking to enforce the orders of the District Court up to 9 September 2013 as well as the costs of cancellation at Land & Property Information of the registrations of the Writ on the properties, incurred as a result of the Court's order, consequent upon the applicants lodging the bank guarantee.

(2) The applicants pay Mr Farkas' costs of this application limited to the filing fee incurred by Mr Farkas.

[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.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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