JUDGMENTS AND ORDERS — Amending, varying and setting aside — Whether UCPR 36.16(3A) or UCPR 36.16(1) applies — Whether reasons should be recalled and amended
Patrick Wong (first plaintiff) Overseas Shipping Trading and Investment Pty Limited; Cook Islands Company number 3421/1998 (second plaintiff) Willem Van Vlymen (first defendant) Margriet Van Vlymen (second defendant) Pacific Investment Holdings Pty Ltd (ACN 001 614 964) (third defendant) Orbis Commodities Pty Ltd (ACN 003 546 898) (fourth defendant) Pacific Investment Ltd; (Cook Islands company number 3749/2000) (fifth defendant)
Representation:
Counsel: I Jackman SC, S Burchett (plaintiffs) A Leopold SC, H Somerville (defendants)
Solicitors: S Birchall, Birchall Legal (plaintiffs) S Keleher, Keleher Lawyers (first and second defendants) M Doble, Eakin McCaffery Cox (solicitor for the receiver of the third, fourth and fifth defendants)
File Number(s):
2015/00060753 2020/00145651
Judgment
Procedural history
I gave judgment in this matter on 2 July 2020 (see [2020] NSWSC 841). At paragraph [176], I invited the parties to relist the matter so orders could be made and questions of costs determined. The matter was relisted by the parties on 11 August 2020. For the first time, the first and second defendants (hereafter ‘the defendants’) referred me to Young CJ in Eq’s judgment in 260 Oxford Street Pty Ltd & Ors v Premetis & Anor [2006] NSWCA 96 at [136] (‘260 Oxford Street’), where his Honour said:
If a person considers that a judge has failed to deal with a vital point, then at least in an equity case such as the present, the procedure over many years is to go back to the judge and ask him or her to make additional findings.
They asserted I had…
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
AGLC
Wong v Van Vlymen [2020] NSWSC 1170
Case
[2020] NSWSC 1170
Decision Date
CaseChat Overview and Summary
The case of Wong v Van Vlymen involved a dispute between the two parties, concerning the applicability of certain rules under the Uniform Civil Procedure Rules 2005 (NSW) in relation to the amendment of reasons for judgment. The dispute was heard and determined in the Supreme Court of New South Wales. The primary focus of the case was on whether the court should recall and amend the reasons for judgment given, and if so, which rule under the UCPR applied to this situation.
The legal issues before the court were whether UCPR 36.16(3A) or UCPR 36.16(1) was the correct rule to apply when considering the amendment of reasons for judgment. The court had to determine the appropriate circumstances under which the reasons for judgment could be recalled and amended, and whether the provisions of UCPR 36.16(3A) should be applied in this instance. The court's interpretation of these rules would have a significant impact on the parties' rights and obligations under the UCPR.
The court found that UCPR 36.16(3A) was the correct rule to apply in this situation, as it was specifically designed to address the recall and amendment of reasons for judgment. The court emphasised that the proper application of this rule would ensure fairness and justice in the proceedings. The court held that the reasons for judgment could be recalled and amended if there was a significant error or omission in the original reasons that materially affected the outcome of the case. The court considered the nature of the error, the impact it had on the judgment, and the potential consequences for the parties. Ultimately, the court concluded that the reasons for judgment should be recalled and amended in this case.
The final orders of the court mandated that the reasons for judgment be recalled and amended in accordance with UCPR 36.16(3A). The court also directed the parties to provide any necessary information or documents to facilitate the amendment process. The outcome of this case underscores the importance of correctly applying the relevant rules under the UCPR when dealing with the recall and amendment of reasons for judgment.