Woodhouse v Fitzgerald (No 2)

In *Woodhouse v Fitzgerald (No 2)*, the New South Wales Court of Appeal considered an application to vary an order made on appeal concerning the costs of a trial. The dispute arose after the Court of Appeal had set aside an earlier costs order in favour of the cross-appellant, the plaintiff, and made a new order that the plaintiff pay the defendants' costs of the trial on an indemnity basis from a specific date. The plaintiff sought to vary this new order, arguing it did not reflect the agreement reached at trial regarding costs.

The primary legal issue before the Court of Appeal was whether the "slip rule" under rule 36.17 of the *Uniform Civil Procedure Rules 2005* (NSW) applied to permit the variation of the entered costs order. This rule allows a court to correct an accidental slip or omission in an order. Alternatively, the Court considered whether rule 36.16, which permits variation of an order despite its entry, could be invoked, particularly given the plaintiff's contention that the order did not reflect a consent reached at trial. A further consideration was whether the proposed variation would cause prejudice to the opposing party, the defendants.

The Court of Appeal reasoned that the slip rule was not engaged because the proposed variation was not to correct an accidental slip or omission. Instead, it sought to introduce an order that had not been sought or made at the original hearing. The Court noted that the order made on appeal was not a consent order and that the plaintiff had not sought to have the order varied on that basis at the time it was made. The Court found that the plaintiff's failure to seek the proposed costs order at the hearing was a mistake by the party, not an accidental slip by the court.

The Court of Appeal ultimately varied order (2)(b) made on 9 April 2021. The variation ensured the order provided that the plaintiff pay the defendants’ costs of the trial to be assessed on the ordinary basis up to 21 November 2019 and on the indemnity basis on and from that date, reflecting the terms of the consent reached at trial.