Supreme Court of the ACT|2016-05-11|Before: Refshauge J

Commonwealth of Australia v Davis Samuel Pty Limited and Ors (No 10) [2016] ACTSC 364 (11 May 2016)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Commonwealth of Australia v Davis Samuel Pty Limited and Ors (No 10)

The definition of the phrase "John Court property" in the general interpretation section of the orders made on 21 November 2014 as amended on 27 May 2015, be amended to replace the figures "17/726810" with "17/776810" and the date of "27 April 1998" with the date "5 June 1998".

JUDGMENTS AND ORDERS - JURISDICTION, PRACTICE AND PROCEDURE - Amendment - errors made in plaintiff's written submissions relied upon by the Court - typographical errors in Court orders - plaintiff sought to have errors rectified - slip rule - new orders made - r 6906 of the Court Procedures Rules 2006 (ACT)

Commonwealth v Davis Samuel Pty Ltd (No 7) [2013] ACTSC 146; 95 ACSR 258

Commonwealth v Davis Samuel Pty Ltd (No 8) [2014] ACTSC 312

Permanent Trustee Co (Canberra) Ltd (Executor estate of Andrews) v Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45; 28 FLR 195

Kamanga Holdings Pty Limited ACN 003 316 292 (Tenth Defendant)

Pellon Pty Limited ACN 082 375 951 (Eleventh Defendant)

Amative Pty Limited ACN 082 375 924 (Thirteenth Defendant)

Bisoya Pty Limited ACN 003 016 242 (Fifteenth Defendant)

Winton Oil NL ACN 001 863 878 (Sixteenth Defendant)

Quancorp Pty Limited ACN 002 755 133 (Seventeenth Defendant)

Allan Paul Endresz as representative of the members of 'Border Basketball Association Inc' an unincorporated association (Eighteenth Defendant)

Tresmonay Pty Limited ACN 073 120 635 (Twenty-first Defendant)

ACT Organics Pty Ltd ACN 008 628 662 (Twenty-second Defendant)

Graham McCann Pty Limited ACN 008 653 969 (Twenty-third Defendant)

TNG Limited ACN 008 817 023 (Twenty-seventh Defendant)

Snedden Hall & Gallop as agents for Jackson McDonald (Twenty-seventh Defendant)

1. In 1999 the Commonwealth commenced proceedings to recover money which had been transferred from it without authority and the relief sought included recovering property into which that money had been converted. In August 2013, I entered judgment for the Commonwealth. See Commonwealth v Davis Samuel Pty Ltd (No 7) [2013] ACTSC 146; 95 ACSR 258.

2. Subsequently, on 21 November 2014, after hearing submissions from the parties on draft orders, I directed that, inter alia, certain property be transferred to the Commonwealth. One such property was a residential property at 11 John Court, North Albury, which was registered in the name of Ms Dawn Endresz: Commonwealth v Davis Samuel Pty Ltd (No 8) [2014] ACTSC 312 at [423]- [424]. I made a declaration that Ms Endresz held that property (the Property) on trust for the Commonwealth and ordered that she vacate the property and deliver up any certificates of title in her possession or direct mortgagees to do so for the purpose of transferring the property to the Commonwealth.

3. Because of the number of properties involved and the complexity of the order, I included a general interpretation provision in the order. In that provision, I defined the Property as the John Court property and identified it by Certificate of Title folio and the date on which Ms Endresz became the registered proprietor. When the Property was attempted to be transferred, a requisition on the transfer was issued by the Land Titles Office because of errors in that description.

4. Regrettably, the errors were, on the one hand, a typographical error in that a seven was typed as a two, so that the folio was described as 17/726810, when it should have been 17/776810. The other error was an error made by the Commonwealth in the submissions giving the date of the transfer of the property to Ms Endresz as the date on which, in fact, Kamanga Holdings Pty Ltd (in liquidation) had paid her certain moneys instead of the date of the transfer; that is, I referred to 27 April 1998 instead of 5 June 1998.

5. The Commonwealth has now sought to have these errors rectified under the slip rule, which is r 6906 of the Court Procedures Rules 2006 (ACT). That rule vests in the Court which made the judgment a power to correct any error or slip made, which means that the order ultimately made does not reflect the intention of the court. See Permanent Trustee Co (Canberra) Ltd (Executor estate of Andrews) v Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45; 28 FLR 195.

6. The power is an exception to the general rule that a final order can only be varied on appeal. The rationale is obvious: to avoid putting the parties, much less the Court, to the expense and time required to correct an unintended error which does not express the actual and clear intention of the Court is obviously of benefit, in particular to the benefit of all parties.

7. In this case, the orders I made are presently the subject of an appeal by the defendants. I am unaware of any basis for a court not utilising the slip rule pending an appeal of the orders the subject of the slip rule application. Indeed, it would seem to me that the appeal court should be provided with orders that actually and correctly express the intention of the Court, and not those made with some kind of error that the rules permit a court to correct.

8. That may be different if something in the appeal turns on the words actually used in the order, for example, whether they are in there or not, but no such submission was put to me that this was so in this case. Initially Ms Endresz opposed the making of the amendment, but, at the hearing today, I was told by Mr Allan Endresz, who appeared for her by leave, that her opposition was not maintained.

9. It was suggested, however, that because of the earlier application which had been made to set aside as a nullity the judgment that I had entered because of

non-compliance with certain rules of the Court, it would be inappropriate to proceed today or, alternatively, that there should be a stay of the order. In my view, that has some attraction, but the fact is that there are a whole range of properties the subject of the order for sale and recovery of money and property as a consequence, and if I accede to the application that has been made to set aside the judgment as a nullity, there will have to be a wholesale review of the orders made and the consequences of those orders to date.

10. In any event, it may well be that monetary compensation would be appropriate rather than some review of the particular order. Accordingly, I am satisfied that I should proceed. I am also satisfied that the errors identified in the order were unintended and errors of the kind that should be amended under the slip rule. I am not satisfied that there is any basis for not doing so at this stage, and accordingly I will make the appropriate orders.

11. I will, therefore, order that in the definition of the phrase "John Court property" in the general-interpretation section of the orders made on 21 November 2014, as amended on 27 May 2015, be amended to replace the figures "17/726810" with "17/776810" and the date of "27 April 1998" with the date "5 June 1998".

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge

Procedures Rules 2006

Commonwealth of Australia v Davis Samuel Pty Limited and Ors

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Commonwealth of Australia v Davis Samuel Pty Limited and Ors (No 10) [2016] ACTSC 364 (11 May 2016)

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