Australian Securities and Investments Commission v Rich

Judgment 1By Amended Originating Process filed 30 September 2014, Mr Michael Goldring sought an order that the Court review the remuneration of the Administrators and Deed Administrators of Bestcare Foods Ltd (subject to Deed of Company Arrangement) ("Company") and certain other orders. The application was heard before me on 15 October 2014 and I delivered judgment on 19 November 2014 ([2014] NSWSC 1630). 2Mr Goldring was unsuccessful in respect of a number of aspects of his claim. However, I ordered, under s 449E of the Corporations Act 2001 (Cth), that a review be undertaken by the Registrar limited only to fees comprising a maximum amount of $100,000 approved at a creditor's meeting on 3 March 2011. I dealt (at [39]ff) with the circumstances surrounding that meeting and noted that a resolution was passed at that meeting approving the Deed Administrators' remuneration from 7 February 2011 to the completion of the deed administration to a maximum of $100,000 plus GST, on the basis that the Deed Administrators were authorised to draw that remuneration on a monthly basis or as required, but also that three nominated persons "be advised and approve (via email) any fees prior to the Deed Administrators drawing any fees". I referred (at [41]) to Mr Goldring's evidence that he had not been given subsequent notification in respect of the drawing down of fees pursuant to the resolution passed at that meeting and observed that: "It seems to me that that matter supports an order for review limited to the fees approved at that meeting, since the basis on which they were approved does not seem to have been complied with." I also observed (at [66]) that I had referred the remuneration approved in March 2011 to a Registrar for review: "... only because the issue as to the apparent failure to obtain the particular creditors' approval before the monthly remuneration was paid, as was contemplated by creditors approval of that remuneration." 3By Interlocutory Process filed, by leave, on 27 November 2014 and amended on 1 December 2014, the Deed Administrators (who have since ceased to occupy that office, by reason of termination of the Deed of Company Arrangement) apply, under r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") and the Court's inherent jurisdiction for: "2. An order that this honourable Court's judgment of 19 November 2014 be recalled or alternatively an order setting aside or varying that judgment to the effect that the remuneration, the subject of the resolution of 3 March 2011, should not be the subject of a review under s 449E of the [Corporations] Act. 3. Further or in the alternative ..., the [former Deed Administrators] have leave to re-open their case and to rely upon three emails dated 29 November 2012 and 5 December 2012 between the Plaintiff and the Defendants." 4Rule 36.16(3A) of the Uniform Civil Procedure Rules relevantly provides that, if a notice of motion to set aside or vary a judgment or order is filed within 14 days after the judgment or order is varied, the Court may determine the matter and (if appropriate) set aside or vary the judgment or order within r 36.16(1) as if the judgment or order had not been entered. That subrule in turn permits the Court to set aside or vary a judgment or order if a notice of motion to set it aside or vary it is filed before entry of that judgment or order. In this case, judgment was delivered on 19 November 2014 and the application to set it aside was filed well within the 14 day period specified in r 36.16(3A). The applicable principles 5I will first deal with the applicable legal principles in respect of an application to set aside or vary a judgment under UCPR r 36.16(3A) and the associated application to reopen and lead further evidence and then turn to the relevant evidence. 6In Smith v New South Wales Bar Association (No 2) [1992] HCA 36; (1992) 176 CLR 256 at 266 - 267, Brennan, Dawson, Toohey and Gaudron JJ noted that, where reasons for judgment have been delivered, the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to reopen should be exercised. Their Honours also noted that, where a matter had been reopened by reason of error, and the issue was one that invited further evidence, then prima facie that evidence should be allowed, although they also recognised that there may be situations in which the particular evidence involved would cause embarrassment or prejudice such that, in the circumstances, it would be unfair to allow it. The criteria for the admission of fresh evidence on appeal are, broadly, that it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; the evidence must be such that there must be high degree of probability that there would be a different verdict; and the evidence must be credible: Akins v National Australia Bank (1994) 34 NSWLR 155 at 160ff per Clarke JA. 7In Urban Transport Authority (NSW) v Nweiser (1992) 28 NSWLR 471 at 478, Clarke JA observed that: "The principle which should guide the Court in determining whether to grant an application for leave to reopen is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the Court to reject an application where the decision not call [sic] the witness in the party's case was a deliberate one ...". 8In Jesseron Holdings Pty Ltd v Middle East Trading Consultants Pty Ltd (No 2) (1994) 122 ALR 717 at 719; 13 ACSR 787, Young J (as his Honour then was) referred to Urban Transport Authority (NSW) v Nweiser above and noted that the test for leave to reopen at the final address stage or after reasons for judgment appears to be what is just in the situation, and would normally be close to that applied on an appeal. His Honour permitted reopening in that case where it would be a matter of "great injustice" if, as a result of an error by a company's legal advisers, the company had not led the evidence necessary to establish an offsetting claim in an application to set aside a creditor's statutory demand. 9In De L v Director-General, Department of Community Services (NSW) (No 2) [1997] HCA 14; (1997) 190 CLR 207 at 215, Toohey, Gaudron, McHugh, Gummow and Kirby JJ pointed to the considerations involved in a Court's determination whether to reopen a judgment or orders, noting that: "The power of this Court to reopen its judgments or orders is not in doubt. The Court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded "on a misapprehension as to the facts or the law", where "there is some matter calling for review" or where "the interests of justice so require". It has been said repeatedly that a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required "without fault on his part", ie without the attribution of neglect or default to the party seeking reopening. By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice. In the case of a final court of appeal, such as this Court, that injustice may be irremediable, unless the Court itself, acting promptly, is persuaded to reopen its orders so as to afford relief in the exceptional circumstances of the case." [citations omitted] The plurality there also observed (at CLR 223) that: "It is one thing to permit reopening of the orders to allow consideration of a matter accidentally overlooked so that it may be taken into account. It is another to provide relief where the party seeking it has, by its own confession, not done all that might have been done to raise the point when it was timely and appropriate to do so." 10In Grace v Thomas Street Café Pty Ltd (No 2) [2008] NSWCA 72, the Court of Appeal (comprising Spigelman CJ, Beazley JA and McClellan CJ at CL) in turn observed at [8] that the discretion conferred by UCPR r 36.16 is to be exercised sparingly, having regard to the public interest in the finality of litigation and referred to De L v Director-General, Department of Community Services (NSW) (No 2) above. Mr Martin, who appears for the former Deed Administrators, also drew attention to the discussion by the Court of Appeal of the scope of UCPR r 36.16 in Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2) [2008] NSWCA 205, where Campbell JA (with whom McColl JA and Handley AJA agreed) observed (at [8]ff) that the 14 day window after entry of judgment under that rule created an exception to the principle that ordinarily the Court has no power to set aside a final judgment after it has been entered. His Honour noted that courts have traditionally exercised great restraint in setting aside or varying a judgment or order that has been made, but not entered, and referred to the observation of Mason CJ in Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 302 that "the jurisdiction is to be exercised with great caution, having regard to the importance of the public interest in the finality of litigation" and that "generally speaking it will not be exercised unless the applicant can show that by accident and without fault on his part he has not been heard". His Honour also quoted the observation of Mason CJ in Autodesk Inc v Dyason above at 303 that: "What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases." 11In Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22, Kenny J at [24] followed the view expressed by Clarke JA in Nweiser above in stating that a recognised class of cases where a court may grant leave to reopen was a mistaken apprehension of the facts. Her Honour also noted that another of the recognised classes of case in which a court may grant leave to reopen was where there was fresh evidence, and referred to Hughes v Hill [1937] SASR 285 at 287 and Smith v New South Wales Bar Association (No 2) above as examples of that situation. 12In New Cap Reinsurance Corporation Ltd v AE Grant [2009] NSWSC 950 (at [20]), Barrett J (as his Honour then was) in turn referred to the decision of Santow J in Wentworth v Wentworth [1999] NSW 638 and observed that: "It seems to me that these principles, as they apply in a case such as the present, can be summarised in one basic proposition, namely, that a single judge whose decision is susceptible to appeal through readily available channels (with or without any preliminary need for leave to appeal) should allow re-opening after judgment where it is obvious to that judge that the decision has miscarried and that the miscarriage may be rectified and the situation retrieved by attention to the matter by that judge rather than by an appeal court. What is highly undesirable is that the first instance judge should be cast in the role of hearing what amounts to an appeal against his or her own decision." Importantly, for present purposes, his Honour there permitted new evidence to be received and taken into account so that, in making its decision, the Court could proceed upon a correct basis as regards those matters "and thereby remedy the effects of the misapprehension which caused the original decision to miscarry". It follows from his Honour's approach that whether such a misapprehension existed is potentially to be determined, not by limiting consideration to the evidence which was previously before the Court, but also by reference to further evidence that might demonstrate the misapprehension. 13In Traianedes in his capacity as Deed Administrator of Mercury Brands Group Pty Ltd (subject to deed of company arrangement) v Mercury Bands Group Pty Ltd (No 2) [2010] FCA 1140 at [11-12], Finkelstein J observed that one category of case where a court might grant leave to reopen is where there is important fresh evidence available, and his Honour noted that it would usually be necessary to show that the evidence was not available at the hearing or could not be discovered with reasonable diligence and would most probably change the result. In McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 89, Ward J (as her Honour then was) referred to Smith v New South Wales Bar Association (No 2) above and noted (at [46]) that a distinction is drawn between the situation where an application to reopen is made after delivery of judgment (as is the case here) and between considerations which may bear on a decision to reopen and the processes involved in reconsideration once a case has been reopened. 14In Hillam v Leduva Pty Ltd (No 2) [2011] NSWSC 247 at [42], Slattery J noted that an application for leave to reopen would be governed by the principle stated in Smith v New South Wales Bar Association (No 2) above and that, once leave to reopen was granted and the new evidentiary material was considered, the Court's review of its judgment was governed by UCPR r 36.16. That approach contemplates that leave to reopen would be required before new evidence is considered for the purposes of an application under UCPR r 36.16 and may be stricter than the approach adopted in New Cap Reinsurance Corporation Ltd v AE Grant above in that regard. 15In Collins v Mutton (No 2) [2012] NSWSC 1155, Hallen AsJ (as his Honour then was) observed (at [33]) that the effect of the authorities was that "the central question to be determined ... distils to whether it is unjust to let the judgment or order stand." His Honour there referred to the observations of the Court of Appeal in Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239 at 243 - 4, where Jordan CJ (with whom Davidson and Roper JJ agreed) observed that that question was to be determined by reference to the material that had been placed before them. Whether a misapprehension of the facts is established 16Mr Martin refers to the decisions in Autodesk Inc v Dyason (No 2) above and Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2) above and submits that the relevant power is available where there is a misapprehension of the facts which cannot be attributed solely to the conduct of the party seeking the relief. 17I first address the question whether any such misapprehension can be established by reference to the evidence before the Court at the earlier hearing, and without granting leave to reopen. The former Deed Administrators point out that Mr Goldridge's Notice of Intention to Apply for a Review (Ex A2) dated 10 September 2014 identified the reasons for that review as that: "1. There has been a gross over charging of fees, legal costs and disbursements. 2. In spite of repeated requests for full details of all charges, legal costs and disbursements and the manner and method of their calculation, no such information has been provided." 18The affidavit of one of the former Deed Administrators, Mr David Ingram, dated 30 September 2014, which was read at the hearing and tendered (in respect of paragraphs 46, 48 - 52 and 54) by Mr Goldring in this application (Ex R1) in turn referred to the meeting of creditors held on 3 March 2011, to which I referred in paragraph 30ff of my judgment, including a resolution to approve the Deed Administrators' future fees of $100,000 plus GST. Paragraph 46 of that affidavit referred to the minutes of the meeting, which were exhibited to that affidavit, and which recorded the former Deed Administrators' agreement to submit proposed payments to the specified persons, Messrs Goldring, Stobl and Ms Russel for approval. Mr Ingram did not refer to the Deed Administrators' having obtained any such approval but paragraph 54 of his affidavit in turn stated that: "These fees were subsequently drawn in full in accordance with those resolutions." Taking Mr Ingram's evidence on its face, the Deed Administrators had agreed to obtain further approval from the specified persons before drawing the remuneration that had been approved at the creditors' meeting on 3 March 2011, there was no evidence that they did or did not do so, and the relevant remuneration had been drawn down. 19Mr Goldring's affidavit in reply, dated 9 October 2014, also referred to the meeting on 3 March 2011 and his evidence was that: "The first time that I recall the Deed Administrators seeking approval for the payment of these fees was in late 2013, when Mr Ingram sent an email to Mr Strobl [another director and creditor of the Company] and myself. I do not remember if this email was also sent to Ms Russel. I recall that no permission was given at this time, though I am presently unable to locate these emails. Subsequently however, during the course of these proceedings Mr Strobl and I agreed to the Deed Administrators being permitted to draw down these funds in the consent orders. As set out in the consent orders, these orders were made without prejudice to the right of the Company to subsequently seek review of the Administrators and Deed Administrators' remuneration, as is now sought." (Goldring 9.10.14 [62]) Mr Goldring also referred, in paragraph 63 of his affidavit, to Mr Ingram's statement, to which I have referred above, that the relevant fees had been drawn in full in accordance with resolutions of the meeting of 3 March 2011. 20It seems to me that the effect of the evidence led at the hearing before me was that the Deed Administrators' future fees had been approved at the meeting on 3 March 2011, in the amount of $100,000 plus GST, on the basis that the relevant persons would be required to give further approval for the payments; that no further approval was given at the relevant time, since that was Mr Goldring's recollection which Mr Ingram did not contest; that Mr Ingram had acknowledged that the fees had been drawn in full in accordance with the resolutions, implicitly without such further approval; and that approval was subsequently given by two of the three specified persons (but not Ms Russel) for payment by consent orders made in this application, on a basis which preserved any subsisting rights to review of the Administrators and Deed Administrators' remuneration. 21Mr Goldring' written submissions served on 14 October 2014 had in turn referred to the approval of further deed administrators' fees of $100,000 at the meeting on 3 March 2011 and specifically noted that "Director/Janetta Russel approval not provided". A chronology handed up in the course of the hearing had again pointed to the requirement arising from the 3 March 2011 resolution that the approval of Ms Russel, Mr Strobl and Mr Goldring be obtained before drawing fees, although it did not specifically state that such approval had not been obtained. In the course of oral submissions, Mr Laughton, who appears for Mr Goldring, referred (at T61) to the requirement that the approval of Ms Russel, Mr Strobl and Mr Goldring be obtained before the former Deed Administrators drew remuneration, although he did not specifically go on to refer to Mr Goldring's recollection that such approval had not been given or to Mr Ingram's evidence that the fees had been drawn. Having said that, there would have been little purpose in referring to the requirement for such approval, unless Mr Goldring was taking the point that it had not been met. 22On this basis, it seems to me that the evidence that was before the Court at the hearing would not be sufficient to establish any misapprehension as to my finding that remuneration approved at the 3 March 2011 meeting, subject to a condition that further approval be obtained from three named persons, had been drawn without that condition being satisfied. It was common ground between the parties that that condition existed; Mr Goldring's evidence that his recollection was that it had not been satisfied had not been contradicted by Mr Ingram; and Mr Ingram's evidence was that the remuneration had been drawn down pursuant to the resolution. Mr Ingram had not then relied on the later consent orders to support the drawing down of that remuneration and, even if he had done so, they would not have assisted, because only two of the three specified persons had given that approval and it was without prejudice to any right of review of the remuneration that had arisen from drawing down the remuneration prior to those orders being made. 23I now turn to the question whether such a misapprehension is demonstrated by reference to the further evidence relied on in the application to reopen. That evidence was led without objection on that application, possibly (implicitly) by way of voir dire. The position that now emerges, from further evidence led by Mr Ingram by his affidavit dated 27 November 2014, and from an email dated 13 February 2014 from Mr Ingram to Mr Goldring and Mr Strobl tendered on the application (Ex A1), is different from that which was before the Court at the earlier hearing. As Mr Martin points out, that evidence indicates that, on 29 November 2012, Mr Ingram requested approval from Mr Goldring, Mr Strobl and Ms Russel to draw down $10,000 plus GST for remuneration; he followed up on that request by email to Mr Goldring dated 5 December 2012; and, on 5 December 2012, Mr Goldring responded, in an email copied to Mr Strobl and Ms Russel that Mr Strobl, Ms Russel and Mr Goldring "agree with your proposal to withdraw $10,000 from funds available to Bestcare creditors for payment of your fees to date". Mr Ingram's evidence is that he drew $10,000 plus GST in fees shortly thereafter (Ingram 27.11.14 [10]). While there is some ambiguity as to the treatment of GST in that correspondence, that further evidence establishes that Mr Ingram did not draw the amount of $10,000 until after he had received approval to do so. The finding in my judgment, by reference to the evidence at the earlier hearing, was incorrect at least to that extent. 24The former Deed Administrators also now lead evidence that, on 13 February 2014, Mr Ingram requested approval from Mr Strobl and Ms Russel for payment of a further amount of $50,000 plus GST, and no such approval was given. Mr Ingram's further evidence in this application is that: "The Deed Administrators did not draw any further fees in relation to this resolution until after the Short Minutes of Order were signed by the parties on 18 June 2014, which were subsequently entered by the Court on 25 June 2014. As per those Short Minutes of Order the Deed Administrators were then authorised to draw fees as per the Company, and the fees agreed to be drawn as per the Short Minutes of Order have now been drawn." (Ingram 27.11.14 [11]-[12]) 25The position that emerges from Mr Ingram's further evidence, by contrast with the incomplete evidence which he had given in the earlier hearing, has the consequence that he did not draw the initial amount of $10,000 in fees until the relevant persons had approved his doing so, and he did not draw the balance of the $100,000 until short minutes of order had been signed by the parties, later reflected in consent orders made by the Court, authorising that amount to be drawn. I am satisfied, by reference to the further evidence led in this application, that I proceeded under a misapprehension in my earlier judgment, albeit by reference to the then incomplete evidence that had been led at the hearing before me. Whether reopening should be permitted 26The case law to which I have referred above indicates that reopening would not generally be permitted if the misapprehension of the facts to which I have referred can be attributed solely to the conduct of the former Deed Administrators. The parties are at issue in that respect. 27Mr Martin submits that the former Deed Administrators' failure to lead more detailed evidence at the hearing was not solely attributable to them, since Mr Goldring's Notice of Intention to Apply for Review (Ex A2) did not specifically draw attention to an issue of the conditions to the 3 March 2011 approval or to any non-compliance with them; the matter was conducted without pleadings, and the Plaintiff's submissions had also placed primary focus on a range of other matters, although Mr Martin acknowledges the reference in those submissions to the fact that the approval of the directors and Ms Russel had not been provided for fees paid under the 3 March 2011 resolution. Mr Martin also points out, correctly, that Mr Goldring's original affidavit in chief dated 10 September 2014 referred to the 3 March 2011 resolution but did not identify any complaint relating to any failure by the former Deed Administrators to comply with its conditions and that Mr Goldring's supplementary, or reply, affidavit dated 9 October 2014 first raised that matter, after Mr Ingram had sworn his affidavits dated 30 September 2014 and 9 October 2014. 28In written submissions, Mr Martin initially contended that the issue of approval before the drawing down of fees, after March 2011, was not part of the Plaintiff's case. I do not accept that submission, where that matter was raised in Mr Goldring's evidence, in the chronology tendered in the hearing and in written and oral submissions. In oral submissions, Mr Martin put a more qualified proposition, which seems to me to have greater force, that the matter was raised relatively late and in a manner that did not put particular focus on it, among a number of other complaints as to the Deed Administrators' remuneration that were given greater emphasis, and that it was understandable that the Deed Administrators had not focused on leading evidence in response to it at the hearing. Mr Martin submitted that, in these circumstances, given the limited evidence concerning the issue and the limited emphasis on it in the Plaintiff's submissions, the relief now sought by the former Deed Administrators did not amount to an attempt to relitigate issues that had been already litigated or better put a case that the former Deed Administrators had already been advanced; that the Court, without detailed argument or exposition, had been allowed to "misapprehend" a factual matter; and that the misapprehension arose as a result of limited evidence, where additional evidence (now sought to be led by the former Deed Administrators) could have removed it. 29On the other hand, Mr Laughton submitted that there was no evidence before the Court of consent to the remuneration of $100,000 as required by the resolution dated on 3 March 2011 and that the Court had correctly determined the matter on the evidence then before it. He submitted that Mr Goldring had squarely raised the issue whether there was such consent in paragraphs 61 and 62 of his affidavit dated 9 October 2014 and that the former Deed Administrators had not addressed that matter by evidence in reply and that the Court was entitled and obliged to determine the matter on the evidence then before it. Mr Laughton placed particular weight on Mr Ingram's evidence, to which I have referred above, that the fees had subsequently been drawn in full "in accordance with these resolutions", and submitted that evidence was inconsistent with the evidence which Mr Ingram now gives in this application. It seems to me that that inconsistency does not involve any change of evidence on Mr Ingram's part, but a more precise account of what occurred, and I accept the evidence which he now gives, and as to which he was not cross-examined. 30Mr Laughton also submitted that the application is, in substance, an application to adduce fresh evidence and it does not meet the requirement for such an application, namely that the evidence was not available at the trial. Mr Laughton submitted that the fundamental principle to be applied in determining an application for leave to reopen is whether the interests of justice are better served by allowing or rejecting the application and submitted, by reference to Smith v New South Wales Bar Association (No 2) above, to which I have referred above, that the appeal rules relating to fresh evidence provide a guide as to the manner in which the discretion to reopen should be exercised, after reasons for judgment have been delivered. He also referred to the decision in Australian Securities and Investments Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587 at [18] as identifying matters relevant to the exercise of the Court's discretion to permit a party to adduce further evidence after it had closed its case. It seems to me that that decision is of limited application in this context, where the application is made after judgment and not merely after the party had closed its case, and where the evidentiary complexities in this matter are much less substantial than they were in ASIC v Rich above. Mr Laughton also referred to Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88 at 89, where Wolff CJ held, in dealing with the position where judgment had not yet been delivered, that a case could be reopened to admit new evidence where the material interests of justice required it; the new evidence would probably produce a different result; and the evidence could not by reasonable diligence have been discovered before the trial. Mr Laughton also submitted that a more liberal test has been applied, in some circumstances, in applications to reopen a case before the delivery of judgment, but that is not the present position. 31On balance, it seems to me that this is a case where the interests of justice require that the former Deed Administrators be permitted to reopen their case to admit new evidence. The evidence of Mr Ingram led in this application, without objection, undermines the finding reached in my judgment that remuneration had apparently been paid to the Deed Administrators without the further approval contemplated by the March 2011 resolution, by demonstrating that approval was obtained prior to the payment of $10,000 and that the further payment was not made, until after the parties had agreed consent orders permitting it. I accept that this is not a case where the evidence could not have been discovered or led at the hearing. However, it seems to me that, as Mr Martin submits, this issue had not been given significant prominence in Mr Goldring's case, and it is understandable that the former Deed Administrators had not sufficiently focused upon it in leading evidence at the hearing. There is no reason to think that any deliberate decision had been made by the former Deed Administrators not to call such evidence, and there would have been no reason for them to make such a decision. It does not seem to me that the misapprehension can be attributed solely to the default or neglect of the former Deed Administrators, where it reflects, at least in part, the manner in which the case was put by Mr Goldring as noted in paragraphs 27ff above. 32The extent of the further evidence which is required, and the consequential argument, is very limited, having been completed in a hearing of one hour before me. That evidence is of substantial significance, and it seems to me that it causes no relevant prejudice to Mr Goldring, in the sense of depriving him of an opportunity to address that evidence. It does not seem to me that a possible correction of a factual error made, on the basis of incomplete evidence, can be treated as relevant prejudice in that regard. The interests of justice also support leave to reopen being granted where I had, as noted above, only referred the amount of remuneration paid on the basis of that resolution to a Registrar for review by reason of the fact that it had apparently been paid without such approval, and the different position indicated by Mr Ingram's evidence would very likely lead to a different result. It seems to me that the need to permit reopening to correct this matter is greater where it involves at least an implication that the former Deed Administrators had acted inconsistently with the terms of a creditors' resolution or paid themselves remuneration in circumstances that they were not entitled to do so, and such an implication should not be left uncorrected where it is inconsistent with the evidence which is now available. Whether the earlier judgment should be set aside or varied 33Mr Martin submits that the power to set aside or vary the earlier judgment should be exercised, where the evidence now read on this application demonstrates that a factual misapprehension existed which, he submits, "would have the very likely possibility of producing a different outcome or judgment" and that: "The interests of justice would require, the [former] Deed Administrators' respectfully submit, the judgment to be varied where the primary reason for the referral of the 3 March 2011 remuneration to review, the lack of consent, has been demonstrated to be a misapprehension of fact." 34Mr Laughton submitted that, on the evidence now led by the former Deed Administrators, there was at best approval given for $10,000, and no approval had been given in respect of the further request for approval made in February 2014. While I accept that proposition, so far as it goes, the significance of Mr Ingram's further evidence seems to me to be that the amount of further remuneration was not drawn down at the time it had not been approved and until the orders agreed between the parties and subsequently made by the Court authorised that to occur. While Mr Ingram's further evidence therefore does not establish further approval by the three specified persons of the claim for further remuneration, it removes the basis for a conclusion that that further remuneration had been drawn down without such authority, which was given by the parties' agreement and the consent orders. 35I am satisfied, by reference to the further evidence led in this application, that I proceeded under a misapprehension in my earlier judgment, albeit by reference to the then incomplete evidence that had been led in the hearing before me. I have held that leave should be granted to reopen and to lead that further evidence. On the basis of that further evidence, Mr Goldring cannot now establish that any payment of remuneration was made to the former Deed Administrators other than in accordance with the conditions to the resolution passed on 3 March 2011 and the later consent orders. On that basis, I would not have made the order for review of the former Deed Administrator's remuneration approved at the March 2011 meeting made in my judgment, which was expressly directed to the position where remuneration had, on the evidence then before me, apparently been drawn without compliance with those conditions. That order should now be vacated. It will be necessary to hear the parties as to costs, if they cannot reach agreement between themselves as to costs. Orders 36For these reasons, I make the following orders: