Application for Correction of Judgment Dismissed

The Court dismissed an application for correction and variation of a judgment under the slip rule and on the grounds of misapprehension, finding no clerical mistakes or errors arising from accidental steps or omissions.

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: [NAME] v [COMPANY] (No 2) [2013] NSWCA 411 Hearing dates: On the papers Decision date: 05 December 2013 Before: Barrett JA; Emmett JA; Gleeson JA Decision:

1. The appellant's notice of motion filed on 13 September 2013 is dismissed.

2. That the appellant pay the respondent's costs of the notice of motion. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - judgments and orders - application for correction pursuant to slip rule - no "clerical mistake, or an error arising from an accidental step or omission" - application to reopen judgment because of misapprehension - no relevant misapprehension - applications dismissed - no matter of principle Legislation Cited: Real Property Act 1900 Uniform Civil Procedure Rules 2005 Cases Cited: Mahendran v Chase Enterprises Pty Ltd [2013] NSWCA 280 Category: Consequential orders Parties: [NAME] (Appellant) [COMPANY] (Respondent) Representation: Counsel: [redacted] Self-represented (Appellant) [NAME] (Respondent) File Number(s): CA 2012/299242

Judgment 1THE COURT: On 3 September 2013, the Court allowed the appeal in part, substituted a verdict and judgment for $138,833.29 for the verdict and judgment ordered by the District Court in the sum of $167,354.65 and ordered that the respondent pay the appellant's costs of the appeal: Mahendran v Chase Enterprises Pty Ltd [2013] NSWCA 280. 2The rationale for the decision was threefold: first, that it had been established that the indebtedness of the appellant ([NAME]) to the respondent ([NAME]) was in a sum smaller than that for which the District Court gave judgment; second, that [NAME] had not established wrongful or inappropriate lodgment of a caveat by [NAME] such as gave rise to a statutory cause of action; and third, that the notice of appeal drawn by [NAME] himself did not disclose any other ground of appeal. 3On 13 September 2013, [NAME] filed a notice of motion seeking "correction of the judgment under slip rule" and "variation of the judgment", in each case on grounds set out in an attachment of the notice of motion. Directions were made for written submissions on the motion which has therefore been dealt with on the papers. 4The claims in the notice of motion are for: "Correction of the judgment under slip rule (please find the annexure for details). UCPR 2005 - REG 36.17. Variation of the judgment on the grounds claimed in the attachment (UCPR 2005 REG 36.16)". 5Under the first aspect, therefore, [NAME] maintains that there is, in the Court's judgment or order, "a clerical mistake, or an error arising from an accidental step or omission": Uniform Civil Procedure Rules 2005, rule 36.17. In putting forward the second claim, [NAME] invokes rule 36.16 and contends that the judgment should be re-opened because it proceeded on a misapprehension. 6The alleged error warranting attention under the slip rule is said to affect the calculation of the sum of $138,833.29 to which reference has already been made. 7In the course of the hearing on 3 July 2013, it became clear that the calculations underpinning the respondent's debt claim in the District Court may have been made on an erroneous basis, having regard to the loan terms. That possibility affected not only the two loans in respect of which the respondent had brought its District Court action but also a third loan that had been repaid in full. The possibility was that an incorrect method of calculation had caused more than was due to have been paid and retained in respect of that third loan. 8This Court made directions with a view to consultation between the parties as to the true state of the account between them. The directions were on the footing that, if there was no agreement, the respective contentions were to be made known in writing and the Court would then deal with the matter of calculation on the papers. 9As stated at [35] of the principal judgment, [NAME] accepted the calculations made by [NAME], in the course of the consultation, but only as to the principal sum balances as at 19 February 2010. He did not accept [NAME]'s calculations of interest; nor did he put forward any interest calculations of his own. [ADDRESS] accepted the [NAME] interest figures for reasons stated as follows (at [36]): "The [NAME] figures should be accepted. The first of them tallies with the arithmetical calculation. The second is slightly smaller than the arithmetical calculation and, in that sense, advantageous to [NAME]." 10The main proposition [NAME] advances in support of his application under the slip rule is that no interest should have been payable after 19 February 2010 since it was [NAME]'s refusal to accept [NAME]'s contentions at that time that caused the principal to continue to be outstanding. Two things may be said about this contention: first, it is inconsistent with the terms of the loan contracts; and second, it is not of such a nature as to warrant any conclusion that this Court's judgment is affected by a clerical mistake or an error arising from an accidental slip or omission. 11On that footing, the application under rule 36.17 must be dismissed. It should be observed, in addition, that the matter raised would not have warranted re-opening of the judgment on the basis of some misapprehension by the Court of the true position. 12A matter of alleged misapprehension by the Court of the true position underlies the second part of [NAME]'s application, that is, the claim based on rule 36.16 concerning the aspect of the decision about the caveat. 13The Court decided that [NAME]'s cross-claim in the District Court with respect to the caveat was properly characterised as a claim under s 74P of the Real Property Act 1900 which deals with caveats lodged "without reasonable cause". The decision was that [NAME] was not entitled to relief under that section because the evidence before the District Court did not permit any examination of the actual belief of the caveator (which may have made problematic establishment of the matters that must be established to activate s 74P(1)(a) according to the "honest belief based upon reasonable grounds" test), but more particularly because the evidence was insufficient to justify any finding of loss by [NAME] "attributable to" the lodgment of the caveat. 14One observation made by the Court in relation to the latter aspect was that it had not been shown that [NAME] had sought to negotiate for the withdrawal of the caveat or that he took steps (as he could have) to cause it to lapse. 15In his submissions on the present motion, [NAME] said that the significance of his actions with respect to negotiation of withdrawal was something that he had come to appreciate only after reading the judgment of this Court. Attached to his submissions were three documents, not tendered before the District Court (and therefore not available to this Court), that he said were relevant to the question of attempts to negotiate withdrawal. It is simply not open to [NAME] to attempt to adduce further evidence at this stage when not only the District Court proceedings but also the appeal proceedings have been determined. In any event and as the submissions of [NAME]'s counsel on the motion point out, those documents, if available, would not have altered the ultimate conclusion based on s 74P. 16Mr [NAME] has not established any basis for the grant of the relief sought by his notice of motion. 17The orders are:

2. That the appellant pay the respondent's costs of the notice of motion.

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