Appellant's Motion to Set Aside Order Dismissed

The Court of Appeal dismissed the appellant's motion to set aside the order dismissing the amended summons, holding that the underlying claim lacked merit and thus it would be futile to allow the amended summons to stand.

[ADDRESS] of Appeal

CITATION : [COMPANY] (In Liquidation) v [COMPANY] [No 2] [2003] NSWCA 68 HEARING DATE(S) : On Written Submissions JUDGMENT DATE : 23 May 2003

JUDGMENT OF : [NAME] at 1; [NAME] at 2; [NAME] at 3 DECISION : (1) The notice of motion of 10 July 2002 is dismissed with costs (2) Paragraph (d) of the orders made by this Court on 8 May 2002 be amended to read "The appellant is ordered to pay two-thirds of the respondent's costs of the appeal from [NAME]".

CATCHWORDS : THE SLIP RULE - Whether appellant entitled under the slip rule to an order setting aside the dismissal of an amended summons when it would be futile to allow the amended summons to stand. ND LEGISLATION CITED : Commercial Arbitration Act 1984, ss 38(4), 42 PARTIES : [COMPANY] (In Liquidation) (Appellant) [COMPANY] (Respondent) FILE NUMBER(S) : CA 40666/00; 40121/01 COUNSEL : [redacted] M Pembroke SC/S Goldstein, T Catanzariti (Respondent) SOLICITORS : [redacted] [NAME] (Respondent)

LOWER COURT Supreme Court - Equity Division JURISDICTION : LOWER COURT 55003/99 FILE NUMBER(S) : LOWER COURT Einstein J/[NAME] :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40666/00 CA 40121/01 ED 55003/99

[NAME] 23 May 2003 [COMPANY] (IN LIQUIDATION) v [COMPANY] Judgment (No 2) 1 [NAME]: I agree with [NAME]. 2 [NAME]: I agree with [NAME]. 3 [NAME]: On 8 May 2002 this Court delivered judgment relating to two appeals brought by the appellant (see (2002) 54 NSWLR 416). One appeal concerned orders made by [NAME] and the other orders made by Einstein J. Both sets of orders related to certain arbitration proceedings to which the appellant and the respondent were parties and, in particular, an interim and a final award made by the arbitrator in the course of those proceedings. The relevant facts and circumstances are set out in the reasons published by the members of the court. 4 The appellant was partially successful in that its argument was upheld that, in regard to the final award, the time for appealing or challenging the award had not begun to run and it was not barred by Pt 72A r 5(3) from doing so (see s 38(4) and s 42 of the Commercial Arbitration Act 1984). In so upholding the appellant's argument, this Court overturned [NAME]'s decision that the time for bringing the appeal had indeed commenced to run. The appellant had made such a claim by amended summons filed on 8 August 2000, which summons [NAME] had dismissed. 5 Notwithstanding that the appeal against the decision of [NAME], in so far as it related to the final award, was upheld, this Court did not set aside the order dismissing the amended summons of 8 August 2000 (albeit that in its written submissions the appellant sought such an order). 6 The appellant has filed a notice of motion (dated 10 July 2002) contending that the omission to set aside the order dismissing the amended summons of 8 August 2000 was a mistake on the part of the Court and that it is entitled under the slip rule (Pt 20 r 10(1) or the inherent jurisdiction of the Court) to an order setting aside the dismissal of the amended summons. The appellant asks that such an order now be made, as well as other related relief. The registrar has ordered that this notice of motion be dealt with by written submissions without oral argument. 7 In opposing the relief sought, the respondent draws attention to the fact that the ground on which the appellant succeeded in relation to the final award was based on an error of fact by [NAME]. Such an error would not entitle the appellant to a grant of leave to appeal pursuant to s 38 of the Commercial Arbitration Act. Hence, the respondent submits, it would be futile to allow the amended summons to stand. 8 The appellant answers the respondent's submission by contending: "It is not appropriate for this Court to determine on this application whether there is any 'useful purpose' in setting aside the order dismissing the amended summons. This is a matter irrelevant to the Court exercising its power under the slip rule provisions contained in SCR Pt 20 r 10(1) or under the inherent jurisdiction of the Court. In any event [the appellant] proposes to amend the amended summons to add additional grounds to challenge the validity of the final award." 9 In proposing the orders to be made by this Court on 8 May 2002 I did not take into account the fact that the appellant had, in its written submissions, claimed an order setting aside the amended summons. This omission does not, alone, entitle the appellant to such an order at this stage. [ADDRESS] would not make such an order if the claim made by the amended summons were bound to fail. 10 In my view, for the reasons submitted by the respondent, the appellant's claim as formulated in the amended summons would have no prospect of success. On that ground, even had I appreciated that the appellant was claiming an order setting aside the amended summons, I would not have proposed such an order.

Accordingly, I would decline to accede to the appellant's claim, made in the present notice of motion, for that order. 11 The fact that the appellant intends to amend the amended summons by adding additional grounds is immaterial. It is open to the appellant to issue a new summons relying on new grounds. 12 By the notice of motion, the appellant claims, in addition, that, under the slip rule, additional orders should be made in regard to costs. These orders are all said to be consequential upon the order sought by the appellant setting aside the dismissal of the amended summons. As I would not uphold the appellant's claim in regard to the setting aside the dismissal of the amended summons, I would not uphold its claim for the additional costs orders. 13 I would dismiss the notice of motion of 10 July 2002 with costs. 14 On 19 July 2002 the respondent filed a notice of motion claiming an order, under the slip rule, varying paragraph (d) of the orders made by this Court. Paragraph (d) provides: "The appellant is ordered to pay two-thirds of the respondent's costs of the appeal before [NAME]." 15 The registrar has ordered that this notice of motion also be dealt with by written submissions without oral argument. 16 The respondent seeks an order that paragraph (d) be amended to read: "The appellant is ordered to pay two-thirds of the respondent's costs of the appeal from [NAME]." 17 The appellant consents to this order.

Accordingly, I propose that the order sought by the respondent be made. **********

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