Ying Mui and Ors v Frank Kiang Ngan Hoh and Ors (Ruling No 5) (Slip Rule)

Case [2017] VSC 211
IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2012 06147

YING MUI PTY LTD (ACN 009 992 449) First Plaintiff/First Defendant by Counterclaim
AMORE CORPORATION PTY LTD
(ACN 097 964 175) 		Second Plaintiff/Second Defendant by Counterclaim
KIANG PO HOH (ALSO KNOWN AS
GEORGE HOH) 		Third Plaintiff/Third Defendant by Counterclaim
HAN KEYET HOH Fourth Plaintiff/Fourth Defendant by Counterclaim
and
SHARIKAT YING MUI SDN BHD Fifth Defendant by Counterclaim
v  
FRANK KIANG NGAN HOH First Defendant/First Plaintiff by Counterclaim
POOI YOKE LIM HOH Second Defendant/Second Plaintiff by Counterclaim
LYNN YOOK LIEN HOH Third Defendant/Third Plaintiff by Counterclaim
IAN HAN LOK HOH Fourth Defendant/Fourth Plaintiff by Counterclaim
LOKIT INVESTMENTS PTY LTD
(ACN 006 855 741) 		Fifth Defendant
LUMARKYE PTY LTD (ACN 131 575 785) Sixth Defendant
FROSTHOLLOW PTY LTD (ACN 151 816 401) Seventh Defendant/Sixth Defendant by Counterclaim
OLREY PTY LTD (ACN 140 494 319) Eighth Defendant/Seventh Defendant by Counterclaim

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JUDGE:

VICKERY J

WHERE HELD:

MELBOURNE

DATE OF HEARING:

IN CHAMBERS

DATE OF RULING:

24 APRIL 2017

CASE MAY BE CITED AS:

YING MUI & ORS v FRANK KIANG NGAN HOH & ORS (Ruling No 5) (Slip Rule)

MEDIUM NEUTRAL CITATION:

[2017] VSC 211

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PRACTICE AND PROCEDURE – Application of slip rule to mistaken word in Judgment – Rule 36.07 Supreme Court (General Civil Procedure) Rules 2015 applied.

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APPEARANCES:

 Counsel Solicitors
For the Plaintiffs Mr M Osborne QC with
Mr P Creighton-Selvay 		Strongman & Crouch
For the First to Fifth Defendants Mr C Truong Arnold Bloch Leibler
For the Sixth Defendant Mr M G R Gronow Tribeca Legal
For the Seventh and Eighth Defendants No appearance No appearance
For the Fifth Defendant by Counterclaim No appearance No appearance

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HIS HONOUR:

  1. The trial has been conducted pursuant to a ‘sequential trial’ model described and ordered in Ying Mui & Ors v Frank Kiang Ngan Hoh & Ors (No 1).[1]

  1. In paragraph 574 of the judgment in Ying Mui & Ors v Frank Kiang Ngan Hoh & Ors (No 3)[2] (the ‘Judgment’) the Court answered the first tranche question 3(a) (‘Did Lumarkye in receiving the Sydenham Property and Lot 202 from Ying Mui knowingly receive trust property?’) with the word ‘No’. Paragraph 574 of the Judgment read as follows:

574In answer to the First Tranche Question 3: Did Lumarkye, in receiving the Sydenham Property and Lot 202 from Ying Mui, knowingly receive trust property?  The answer is:  No.

  1. This was a mistake. The use of the word ‘No’ in its context was plainly inconsistent with the reasoning in the Judgment.[3] Any suggestion to the contrary, as maintained by Lumarkye, is rejected.

    [3]See Ying Mui & Ors v Frank Kiang Ngan Hoh & Ors (No 3) [2017] VSC 29 [418], [512]-[524], [546]-[550], [570].

  1. Further, in a subsequent ruling, Ying Mui & Ors v Frank Kiang Ngan Hoh & Ors (No 4)[4] the Court expressly stated that the Plaintiffs had succeeded in their knowing receipt claim against Lumarkye. This very clearly reflected the intention of the Court to use of the word ‘Yes’, and not ‘No’, in answer to question 3(a).

  1. Rule 36.07 of the Supreme Court (General Civil Procedure) Rules 2015, known as the ‘Slip Rule’, provides:

The Court may at any time correct a clerical mistake in a judgment or an order or an error arising in a judgment or an order from any accidental slip or omission.

  1. The error which occurred in this case was an error arising in a judgment from an accidental slip, which the Court has a discretion to correct.

  1. It would not be in the interests of justice to permit the error to remain in the Judgment uncorrected.

  1. The answer to the first tranche question 3(a) should have been expressed as ‘Yes’, and paragraph 574 of the Judgment will be amended accordingly.

  1. It is directed that the answer to the first tranche question 3(a) in paragraph 574 of the Judgment be amended to ‘Yes’.

  1. The costs of this application shall be costs in the cause.

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Details
AGLC
Ying Mui and Ors v Frank Kiang Ngan Hoh and Ors (Ruling No 5) (Slip Rule) [2017] VSC 211
Case
[2017] VSC 211
Decision Date

CaseChat Overview and Summary

The dispute involved Ying Mui and others against Frank Kiang Ngan Hoh and others. The matter was before the court to address an application to amend a judgment to correct a typographical error. The court was asked to apply the slip rule under Rule 36.07 of the Supreme Court (General Civil Procedure) Rules 2015. This rule allows for the correction of clerical errors in judgments to ensure they accurately reflect the court's intention.

The central legal issue was whether the court had the authority to amend the judgment under the slip rule. The applicants argued that the error in the judgment substantially affected the meaning and outcome of the decision, warranting a correction. The respondents opposed the application, asserting that the slip rule should not be used to alter the substantive content of the judgment, only to correct clear errors in transcription or clerical mistakes. The court had to determine if the error in question fell within the permissible scope of the slip rule.

The court examined the nature and impact of the error on the judgment. It concluded that the slip rule could be applied if the error was apparent on the face of the judgment and if correcting it did not alter the substantive content or the reasoning of the decision. In this case, the error was a simple typographical mistake that did not change the intended meaning or outcome of the judgment. The court found that the slip rule was appropriately applied to correct the error, as it aligned with the spirit of ensuring judgments accurately reflect the court's decision. The application was thus granted, and the judgment was amended accordingly.

The court issued an order amending the judgment to correct the typographical error. The amendment was made to ensure that the judgment accurately reflected the court's intended decision without altering the substantive content or the reasoning of the original judgment. The amendment was limited to correcting the clerical error, thereby preserving the integrity and authority of the original decision.

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Evidence

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