EXPO ALUMINIUM (NSW) PTY LIMITED v PATEMAN PTY LIMITED

Kirby P I agree with Meagher JA. Samuels JA I agree with Meagher JA.

Meagher JA In this matter, which was heard on 23 May 1990, judgment was given on 13 June 1990. In that judgment this Court ordered (inter alia) that W R Pateman Pty Limited pay to Expo Aluminium (NSW) Pty Limited the sum of $5,000. We also ordered that W R Pateman Pty Limited pay one-half of Expo's costs of the trial. For some reason, the Court's order was never taken out. By a Notice of Motion filed on 4 July 1990, an application to vary our orders was argued on 4 December 1990. The claimant was Pateman Pty Limited. Mr Hunt of Counsel, who appeared for the claimant, argued that the order against his client should have been for $2,000 not $5,000. He suggested that it involved merely an application of the "slip rule".

One thing is clear, and that is that the application does not involve the "slip tule". The "slip rule" governs inadvertent mistakes. The mistake suggested in the present case was, as the President pointed out in argument, the result of a deliberate decision. Nonetheless, if it be a mistake, it ought to be corrected. And in my opinion it was a mistake.

The mistake arose in this way: Expo ordered from Pateman some windows fit for a particular purpose. On the evidence, those windows were defective and unfit for this purpose. I had understood that the learned trial judge had found that the windows were unfit for any purpose, and that the sum of $3,000 would render them fit for their usual purpose; but that an additional sum of $5,000 would have to be spent to render them fit for the particular purpose for which they were ordered. On Mr Hunt's invitation, I have reconsidered the judgment of the learned trial judge and the evidence on which his Honour relied. I am now convinced that Mr Hunt is correct and that what his Honour decided was that the windows as supplied required the expenditure of a total of $5,000, not $8,000, to render them fit for their particular purpose. His Honour, in awarding Pateman a judgment of $10,832 against Expo deducted from the sale price ($10,951) the

sum of $3,000 on account of certain of the defects. That $3,000 represented part of the $5,000 to which I have referred. It follows that when we awarded a verdict in favour of Expo against Pateman, we should have, but did not, deduct the amount of $3,000 which Pateman had already lost. Accordingly the verdict in favour of Expo should have been $2,000 not $5,000.

As to the costs of the trial, Mr Hunt has referred us to Pt39 rlA and Pt20 r5(2) of the District Court Rules. The former is in the following terms:

"1A. Subject to the rules, the costs of any action, including the costs of any proceedings ancillary to the action, shall, except where otherwise ordered by the Court, follow the event of the action."

"5(2) Where a verdict is returned in an action and a verdict is returned on a cross-claim pleaded in answer to the action, unless the Court otherwise orders

(a) the amounts of the verdicts shall be set-off by the Court and judgment for the difference shall be given in favour of the party for whom the higher verdict was returned; and

(b) the judgment shall be in full discharge of all demands in respect of the causes of action to which the action and cross-claim relate."

I therefore propose that the following orders be made:

1. Order 3 made on 13 June 1990 be varied by substituting a verdict of $2,000 against WR Pateman Pty Limited in favour of Expo Aluminium (NSW) Pty Limited in lieu of a verdict for $5,000.

2. Order 4 made on 13 June 1990 be varied by deleting the order as to the costs of the trial.

3. Order that the opponent pay the claimant's costs of this motion.

1. Order 3 made on 13 June 1990 be varied by substituting a verdict of $2,000 against W R Pateman Pty Limited in favour of Expo Aluminium (NSW) Pty Limited in lieu of a verdict for $5,000;

2. Order 4 made on 13 June 1990 be varied by deleting the order as to the costs of the trial; and

3. Order that the opponent pay the claimant's costs of this motion.

Counsel for the Opponent: D Tudehope (Solicitor) Counsel for the Claimant: R W Hunt Solicitors for the Opponent: D Tudehope