Lewis Holdings Limited v Steel & Tube Holdings Limited

The plaintiffs, Lewis Holdings Limited and the liquidators of Stube Industries Ltd, sought clarification or correction of part of MacKenzie J’s final judgment in this proceeding. The plaintiffs argued that MacKenzie J’s award of interest from the date of judgment rather than from the date of liquidation contained a typographical error. The defendant, Steel & Tube Holdings Limited, opposed the plaintiffs’ application, contending that the final judgment could not be varied in the manner sought because the effect of ss 271 and 311 of the Companies Act 1993 was to disentitle Lewis to post-liquidation interest. The plaintiffs’ application was declined.

Clark J found that the plaintiffs had not demonstrated that this was a case of a clerical error arising out of an accidental slip or omission. Nor had they demonstrated that paragraph [101] of the final judgment did not express what MacKenzie J intended and decided. Consequently, there was no proper basis for invoking the slip rule. Clark J also found that the plaintiffs’ ground for recall amounted to a substantive challenge to the result recorded at paragraph [101] of MacKenzie J’s final judgment and approached being a substitute for an appeal. The power to recall may not be invoked in such circumstances. Subject to successful appeal, MacKenzie J’s judgment must stand.

The plaintiffs’ application was unsuccessful. The defendant was entitled to costs.