Ying Mui and Ors v Frank Kiang Ngan Hoh and Ors (Ruling No 5) (Slip Rule)
[2017] VSC 211
•24 APRIL 2017
| 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:
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][2016] VSC 519.
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.
[2][2017] VSC 29.
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].
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).
[4][2017] VSC 85 [4].
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.
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.
It would not be in the interests of justice to permit the error to remain in the Judgment uncorrected.
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.
It is directed that the answer to the first tranche question 3(a) in paragraph 574 of the Judgment be amended to ‘Yes’.
The costs of this application shall be costs in the cause.
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