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[2004] NSWSC 780
procedural. The revised judgment was to substitute for the last sentence of paragraph 49: “The second of the defendant's solicitors letters purporting to cancel the contract was only written after the consent...
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The judge corrected one confusing sentence in the reasons given earlier in the case. The correction clarified what the earlier reasoning meant about a letter said to cancel a contract. The judge considered the defect to be wording rather than a mistake in legal principle, and said the change did not alter the reasoning or result. The plaintiffs' other complaints were rejected.
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2,244 words · generated 01/10/2026
Einstein J’s reasons of 27 August 2004 concern a procedural application made after reserved judgment had been delivered in the underlying commercial dispute. The earlier judgment was delivered on 18 August 2004. The plaintiffs asked the court to recall its reasons and give different reasons (paras 1–2).
The immediate focus was the final sentence of paragraph 49 of the earlier judgment. That paragraph dealt with the construction and effect of a letter dated 21 May 2004 from Roche to Metro-Edgley, and with whether the letter operated as notice cancelling the Development Contract. The court explained that its earlier paragraph had compared the letter with correspondence considered in . The judgment supplied here does not include the earlier reasons or the underlying decision, so the detail of that comparison is available only as described by Einstein J in this application.
On review, the judge identified three defects in the sentence. First, use of the word “subsequent” created ambiguity about which of two letters in Suttor was intended. Second, the word “not” had been omitted, which the judge described as a typographic error. Third, the phrase “it was too late” was not to the point and could suggest incorrectly that a letter in those terms, if written before the Treasurer’s written consent to the transfer, would have cancelled the contract (para 12).
The judge held that the final sentence could be corrected because the problem was one of expression, not principle. The replacement sentence stated that the second of the defendant’s solicitors’ letters purporting to cancel the contract was written only after the Treasurer’s written consent had been obtained, and that even if it had been written earlier, it would not have effected cancellation (para 15).
The correction was limited. The judge considered the disputed final sentence superfluous to the point already made by paragraph 49 as a whole. That point was that the 21 May 2004 letter, read as having been written on the view that a clause automatically cancelled the contract, was insufficient by itself to constitute notice of cancellation and did not avoid the Development Contract (para 14). The court rejected the plaintiffs’ further claims that paragraph 50 was erroneous or that the suit should succeed (para 18).
The judgment begins by recognising an inherent power to reopen a hearing to review and vary reasons before judgment or an order has been entered. It cites Wentworth v Wentworth for that proposition (para 3). It then describes the general threshold drawn from Autodesk v Dyason (No 2): a court may review an issue where it has good reason to consider that it proceeded on a misapprehension of fact or law, and that misapprehension cannot be attributed solely to the applicant’s neglect or default (para 4).
The reasons also stress that the approach depends on the level of court and procedural setting. The judgment recounts the stricter approach taken by appellate courts, identifying questions including whether a party was, without fault, not heard on a relevant matter, or whether reasoning proceeded on a misapprehension of fact or law (para 5). It then refers to examples of first-instance corrections, including reasons that inadvertently omitted important matters and reasons containing “infelicity of expression and ambiguous statements” (para 6).
A further passage, reproduced from Wentworth v Rogers, says that a first-instance judge should permit reopening where it is obvious that the decision has miscarried and the problem can be rectified by that judge, rather than by an appeal court. It cautions against making the first-instance judge hear what is effectively an appeal against their own decision (para 8). Einstein J’s decision does not apply that passage as an independent basis for revisiting the merits. Rather, the court uses the authorities to frame a narrow correction of its own wording.
The judgment also refers to Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd. The passage quoted there explains that the ability to alter reasons depends on matters including whether judgment has been entered and the nature and extent of the proposed change. It distinguishes correction before judgment is perfected from rewriting reasons after perfection so as to put a different complexion on the dispute (para 10). Einstein J’s reasoning fits within that distinction: the sentence was corrected before the court’s revised judgment, and the judge expressly found that the substitution did not alter the expressed reasons for the finding (paras 16–17).
The decisive case-specific reasoning appears in paragraphs 12–16. The judge identified the ambiguous and erroneous wording, compared it with the paragraph’s overall meaning, and concluded that a precise substitution would clarify rather than change the reasoning. The court did not accept that the application justified a fresh consideration of the substantive result. It therefore made a narrow textual correction and left the earlier conclusion intact.
This judgment is an application of existing principles about a court’s ability to revisit reasons before judgment is entered. It does not purport to establish a new general test. The sources it discusses include Autodesk v Dyason (No 2), Wentworth v Wentworth, Wentworth v Rogers and Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (paras 3–10).
Before the correction, paragraph 49 contained a sentence which, in Einstein J’s assessment, had ambiguous wording and a typographic error. The phrase “it was too late” could also imply a proposition about the effect of a cancellation letter which the judge did not intend to state. The judge therefore considered that retaining the sentence as written would risk misunderstanding the reasoning (para 12).
After the correction, paragraph 49 was to say that the second of the solicitors’ letters was sent after the Treasurer’s written consent to the transfer, and that even if it had been sent earlier, it would not have effected cancellation (para 15). The court characterised this as clarification of expression, not a change to its reasoning. It specifically said the substitution did not alter or vary the reasons for the finding (para 16).
The judgment also distinguishes correction of reasons from a substantive reconsideration of the dispute. The court was prepared to repair an ambiguity before entry of judgment, but did not treat the application as an opportunity to replace the decision with a different one. The plaintiffs’ further submissions concerning paragraph 50 and the suit’s success were rejected (para 18).
The decision’s account of the law is bounded by its subject and procedural posture. It does not decide what rules would apply to a particular appeal, nor does it provide a complete account of every circumstance in which reasons may be reopened. Its practical contribution is the application of the cited principles to a limited correction that, in the judge’s view, preserved the original reasoning and result.
At paragraph 3, the court states that it has an “inherent power” to reopen a hearing to review or vary reasons before judgment or an order is entered. In plain English, the court recognised that it can correct or reconsider its reasons during that procedural window, while warning that different considerations may apply at first instance and on appeal.
Paragraph 4 sets out the Autodesk formulation: review may be appropriate where the court has good reason to think it proceeded on a misapprehension of fact or law, unless the problem is attributable solely to the applicant’s neglect or default. This is a threshold for considering review, not a statement that every alleged mistake warrants reopening.
Paragraph 8, through the passage from Wentworth v Rogers, stresses restraint. A first-instance judge should not turn a correction application into an appeal against their own decision. The quoted approach supports correction where the judge can plainly retrieve a miscarriage, but cautions against a broader rehearing.
At paragraph 12, Einstein J identifies the actual drafting problems: ambiguity caused by “subsequent”, a missing “not”, and language that could wrongly suggest that an earlier letter would have cancelled the contract. The judge is not reporting a new dispute about the evidence here; the point is that the sentence did not accurately express the intended reasoning.
The central statement is at paragraph 13: “there is and was no error of principle but only of expression.” In plain English, the judge considered the legal reasoning sound but the sentence an inadequate way of expressing it. That distinction justified correcting wording without reconsidering the result.
At paragraph 14, the judge explains that paragraph 49 as a whole already conveyed the relevant conclusion: the letter by itself was insufficient notice of cancellation and did not avoid the Development Contract. The final sentence was therefore unnecessary to the paragraph’s main point.
Paragraphs 15–17 record the exact remedy. The court substituted a sentence clarifying the timing of the second solicitors’ letter and stating that it would not have effected cancellation even if written earlier. The judge said this did not vary the reasons for the finding. Paragraph 18 confirms the limited outcome: the other complaints and the request for the suit to succeed were rejected.
The judgment is relevant to an application made after reasons have been delivered but before judgment or an order has been entered, where the complaint concerns a correctable problem in the judge’s own reasons. The example here was a single sentence with ambiguity, a typographic omission and wording capable of suggesting a proposition the judge did not intend (paras 11–13).
The decision is most closely tied to circumstances in which the proposed change clarifies expression without changing the legal reasoning or outcome. The judge’s assessment that the sentence was superfluous to the paragraph’s main point was important: the substitution did not displace the paragraph’s stated conclusion about the letter and the Development Contract (paras 14–16).
The judgment also flags a broader category of possible first-instance corrections by recounting examples involving omitted matters and ambiguous statements (para 6). But its treatment of those examples is through citations and reproduced passages; the direct decision here is narrower.
The case should not be read from this text as authorising a party to use a correction application to obtain a rehearing on the merits. The judgment identifies concern about a first-instance judge being put in the position of hearing an appeal against their own decision (para 8), and it rejects the plaintiffs’ wider complaints (para 18). It also emphasises that the timing of the proposed change and its nature and extent matter (para 10).
The supplied judgment contains no later judicial decisions discussing or applying MK and JA Roche Pty Limited & Ors v Metro Edgley Pty Limited & Anor. Its decision date is 27 August 2004, and the text does not provide subsequent treatment. It is therefore not possible, from this source alone, to say whether later courts followed, distinguished, limited or otherwise treated this decision.
The authorities listed in the judgment are authorities considered by Einstein J, not later treatment of the 2004 decision. In particular, Autodesk, Wentworth v Wentworth, Wentworth v Rogers and Fletcher Construction are used to explain the principles relevant to reopening or correcting reasons (paras 3–10). They should not be described as later applications of this case.
For legal research purposes, the distinction matters: the judgment is evidence of how Einstein J applied the cited principles to a narrow correction, but this text cannot establish the decision’s subsequent precedential reception.
The judgment leaves several questions unanswered, because the application before Einstein J required only a limited correction. First, the reasons do not set out the procedural record in full, including whether judgment or any order had formally been entered at the time of the application. The court discusses the importance of that distinction through the authorities (paras 3, 10), but the operative ruling is confined to the correction made.
Second, the judgment does not provide a comprehensive test for when a first-instance judge may reopen reasons. It recounts formulations from other decisions, including the Autodesk misapprehension principle and the Wentworth v Rogers summary (paras 4–8), but does not resolve every possible interaction between those formulations.
Third, the court does not explain how substantial a proposed correction may be before it crosses the line from clarification into a substantive rewriting of reasons. It states that the nature and extent of changes matter, and that reasons cannot be recast to put a different complexion on the dispute (para 10). The application before it involved only a replacement sentence that it considered non-substantive.
Fourth, the text does not reproduce the earlier judgment’s full paragraph 49 or the relevant correspondence. The reader is therefore dependent on Einstein J’s account of the wording, the Suttor letters and the 21 May 2004 Roche letter (paras 12–14). The reasons explain the correction, but do not independently set out all underlying contractual evidence.
Finally, the judgment does not determine what remedy might be available if a substantive error in the original reasons were alleged, or how any such issue would be addressed on appeal. It says only that a judge should not be cast in the role of hearing an appeal against their own decision (para 8), and that the plaintiffs’ further submissions did not justify changing the result in this case (para 18).
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CITATION : MK and JA Roche Pty Limited & Ors v Metro Edgley Pty Limited & Anor [2004] NSWSC 780 HEARING DATE(S) : 24/08/04 JUDGMENT DATE : 27 August 2004
JURISDICTION: Equity Division Commercial List JUDGMENT OF : Einstein J DECISION : See paragraphs 17, 18
CATCHWORDS : Application to recall reasons for Judgment - Principles Autodesk v Dyason (No 2) (1993) 176 CLR 300 Bromley v Bromley (No 2) [1965] P 111 De L v Director-General, New South Wales Department of Community Services (No 2) (1997) 190 CLR 207 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 2) (1998) 29 ACSR 290 Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (2001) 4 VR 28 Harrison's Share Under a Settlement, Re; Harrison v Harrison [1955] Ch 260 Mulvena v Government Insurance Office of New South Wales (Mahoney, Clarke and Sheller JJA, Court of Appeal of New South Wales, 16 June 1992, unreported) BC9201810 Nakhla v McCarthy [1978] 1 NZLR 291 CASES CITED : Nova Scotia v Province of Nova Scotia (1977) 23 NSR 357 Sherpa v Anderson (Young J, Supreme Court of New South Wales, 14 October 1993, unreported) Smith v Australia and New Zealand Banking Group Ltd (Priestley, Sheller and Powell JJA, NSW Court of Appeal, 21 November 1996, unreported) Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29 Twenty-First Australia Inc. v Shade & Anor (1998) NSWSC 325 Wentworth v Rogers [2002] NSWSC 921 Wentworth v Wentworth [1999] NSWSC 638 Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672 MK & JA Roche Pty Limited (ABN 25 076 529 952) (First Plaintiff) PARTIES : Michael Kevin Roche, Christopher John Roche, William Timothy Roche, Kevin Michael Roche, Gabrielle Mary Roche (Second Plaintiff) Metro Edgley Pty Limited (ABN 37 082 440 042) (First Defendant) Multiplex Limited (formerly Multiplex Constructions Pty Limited (ACN 008 687 063) (Second Defendant) FILE NUMBER(S) : SC 50069/04 COUNSEL : Mr DJ Hammerschlag SC, Mr VF Kerr (Plaintiffs) Mr CR Newlinds SC, Ms RS Francois (Defendants) SOLICITORS : Lane & Lane (Plaintiffs) Clayton Utz (Defendants)
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST
50069/04 MK and JA Roche Pty Limited & Ors v Metro Edgley Pty Limited & Anor JUDGMENT on application to recall reasons 1 A reserved judgment was delivered in these proceedings on 18 August 2004. 2 The plaintiffs have submitted that the reasons should be recalled and that the Court should give different reasons. The principles 3 The Court has an inherent power to reopen a hearing, inter alia, for the purpose of reviewing and varying reasons for judgment before any judgment or order has been entered [Wentworth v Wentworth [1999] NSWSC 638 paragraph 6, per Santow J]. However care must be taken in distinguishing between the precise approaches appropriate, bearing in mind whether or not the application concerns a suggested reopening of a decision at first instance or of a decision at an intermediate or final appellate level. 4 The circumstances in which an issue might be reviewed as described by Mason CJ in Autodesk v Dyason (No 2) (1993) 176 CLR 300 were as follows:
"Where a court has good reason to consider that it had proceeded on a misapprehension as to the facts or the law and where the misapprehension cannot be attributed solely to the applicant's neglect or default." 5 The matter was put as follows by Barrett J in Wentworth v Rogers [2002] NSWSC 921:
"7. On the application for re-opening of the hearing, senior counsel for the second plaintiff referred to a number of the High Court decisions on re-opening after judgment but before entry of orders. The first plaintiff, who again appeared in person, made reference to a great number of authorities. While cases on this subject as it affects appellate courts are no doubt instructive, the fact remains that treatment of the issue at that level is affected by considerations which do not apply when it is sought to have proceedings determined by a single judge at first instance re-opened after judgment. In R v Nitin Giri (No 2) [2001] NSWCCA 234, Heydon JA distilled from High Court authority ( Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672, State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29, Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300) the three issues central to the re-opening jurisdiction which the High Court regarded as exercisable by appellate courts in only "extremely rare" or "quite exceptional" circumstances and then only with "great caution": • first, whether the appellant has shown that, without accident or fault on the appellant's part, he or she has not been heard on a relevant matter; • second, whether the appellant has shown an error in the court's reasoning because of a misapprehension of the facts; and • third, whether the appellant has shown an error in the court's reasoning because of some misapprehension of the relevant law. [See also, in particular, Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 and De L v Director-General, New South Wales Department of Community Services (No 2) (1997) 190 CLR 207.)" 6 Justice Barrett then proceeded to cite portions of a judgment delivered by Justice Santow (Wentworth v Wentworth [1999] NSWSC 638) in the course of which excerpts Justice Santow had given the following examples of where review had been allowed in the case of a judgment or order of a court of first instance. "(i) Where the court's reasons for judgment inadvertently did not deal with important matters argued by counsel at the hearing where an appeal to correct this would involve inevitable delay; Twenty-First Australia Inc v Shade (NSWSC, Young J, 31 July 1998, unreported) in Butterworths Unreported Judgments at 18.
(ii) Where the court's reasons involve 'infelicity of expression and ambiguous statements' which may be corrected by the trial judge upon the bringing in of short minutes; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 2) (1998) 29 ACSR 290." 7 Justice Barrett went on to cite the following paragraph from Justice Santow:
"While illustrations of where the courts have or have not re-opened a judgment not yet entered are of value, they can be subsumed more generally in what Mason CJ said in Autodesk (at 301-302). He delimited the scope of the discretion by explaining that "the exceptional step" of reviewing an issue might occur where a court has good reason to consider that it had proceeded on a misapprehension as to the facts or the law and where the misapprehension cannot be attributed solely to the applicant's neglect or default." 8 Justice Barrett then concluded as follows:
"It seems to me that the relevant 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." 9 In Twenty-First Australia Inc. v Shade & Anor (1998) NSWSC 325, Young J, [now Young CJ in Eq], also had occasion to refer to the significance of the Autodesk decision being one of the High Court. His Honour in the appendix to the judgment said as follows:
"Mr Russell, for the defendant, says that I should not permit Mr Robinson to raise these matters. He says, and his submission is based on the decision of the High Court in Autodesk Inc v Dyson [No 2] (1993) 176 CLR 300, that leave to reopen a matter after reasons for judgment have been handed down, even though there has been no formal entry of the judgment, is something to be given only in exceptional circumstances.
The first thing to note is the decision relied on is a decision of the High Court. The High Court has for many years adopted the policy that not even submissions made in writing the day after the court's oral hearing will be take into account, and that counsel either says what needs to be said on the day or not at all.
The practice in the Equity Division of this court has not been so severe. Indeed, it quite frequently happens in this Court that counsel uninvited put in further written submissions before the judge delivers judgment. Leave, as far as I know, has never been sought on these occasions, though if counsel does not communicate with the Judge's Associate, counsel runs the risk judgment will be delivered before the written submissions are seen. Indeed, this is a tactic often used by counsel to remind the judge that he has been sitting on the judgment too long.
Further, the procedure in the Equity Division has been that because counsel are in court to assist the judge, rather than with the prime purpose of winning the case, a freer attitude is taken to reopening decisions than may be the case elsewhere.
Accordingly, although the Autodesk case does set out some general principles, it is important that one apply those principles in the facts and circumstances of the procedure of each particular court." 10 A convenient summary of the principles is to be found in Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (2001) 4 VR 28 at 47 [49]:
"The extent to which judges of a superior court may properly alter reasons for judgment subsequent to their being given may depend not only on whether the changes are sought to be made before or after judgment has been entered, but also on the nature and extent of the alterations. A litigant is entitled to a decision that is based on reasons that have led the judge to that conclusion. It would obviously impede the proper administration of justice and work unfairness to the parties if the judge could, at a later time, give different reasons for the decision which were crafted after judgment had been pronounced. Thus, the courts limit the rights of a judge to change the reasons, but they do so consistently with the practical requirements of justice. In the case of a superior court of record, judgment is not relevantly finalised until it is entered in the records of the court. Hence, until that occurs, the judge can recall the order and the reasons and make a different order and give different reasons: Smith v Australia and New Zealand Banking Group Lt, unreported, NSW Court of Appeal, 21 November 1996, per Priestley, Sheller and Powell JJA; Sherpa v Anderson, Unreported, NSW Supreme Court, 14 October 1993, per Young J; Mulvena at 11 per Mahoney JA; Re Harrison's Share Under a Settlement, [1955] Ch 260 at 284. But once judgment is perfected the judge cannot, in substance, rewrite the given reasons so as to give different reasons for the decision or, in the words of Willmer LJ in Bromley v Bromley, [1965] P 111 at 114, "put a different complexion on the issue in dispute". In Nakhla v McCarthy, [1978] 1 NZLR 291, Woodhouse J, at 296 for the Court of Appeal, said that in general a judge cannot alter the reasons so as to modify or change the effect of the judgment once it has been perfected. Similarly, in Nova Scotia v Province of Nova Scotia, (1977) 23 NSR 357 at 357-8, the Nova Scotia Court of Appeal held that once judgment is entered, the substance of the reasons cannot be changed; if correction is needed it can only be made by a higher court." Dealing with the issue 11 The plaintiffs have submitted that the last sentence of the judgment in paragraph 49 is incorrect. 12 Having carefully read the sentence and re-read Suttor at page 442 the following seems to me to be a correct statement of the position: · the use [in paragraph 49] of the word "subsequent" threw up an ambiguity. My intent was to refer to the second of the two letters written by the defendant's solicitors in Suttor [the first of those being the letter of 6 January 1948, said by the High Court not to have contained a clear statement that the contract was considered by the defendant as cancelled]; · the word "not" should have appeared towards the end of the sentence following the comma and after the word "would". This represents a typographic error; · the words "it was too late" were not to the point and are capable of incorrectly suggesting that a letter in precisely those terms written prior to the Treasurer's consent in writing to the transfer being obtained, would have effected a cancellation. 13 It does seem to me that within the principles already cited, the court's reasons [in relation to this particular last sentence of paragraph 49] involve 'infelicity of expression and/or ambiguous statements' which may and now should be corrected by the trial judge. Importantly as I see it there is and was no error of principle but only of expression. No different reasons for the decision are to be given. 14 The final sentence of paragraph 49 was in any event superfluous. The paragraph made plain that in like fashion to the second of the letters [that of 15 January 1948] written in Suttor, the proper construction of the 21 May 2004 letter from Roche to Metro-Edgley, is to regard the letter as having been written on the view that the particular clause had effected an automatic cancellation of the contract. The simple point clearly made in the whole paragraph is that such a letter by itself was insufficient to constitute notice of cancellation of the contract and did not effect an avoidance of the Development Contract. 15 To my mind the authorities in the circumstances permit the Court to clarify its reasons in the above-described fashion. In terms of procedure it appropriate to substitute in the place of the last sentence of paragraph 49 the following sentences:
"The second of the defendant's solicitors letters purporting to cancel the contract was only written after the consent in writing of the Treasurer to the transfer had been obtained. Even had it been written earlier, it would not have effected the cancellation." 16 Such a substitution in no way alters or varies the court's expressed reasons for the finding. 17 Accordingly the revised form of the judgment will substitute the above sentence in place of the last sentence of paragraph 49. 18 There is no substance in the plaintiffs submissions that paragraph 50 is in error, nor that the suit should now succeed.
I certify that paragraphs 1 - 18 are a true copy of the reasons for judgment herein of the Hon. Justice Einstein given on 27 August 2004
Susan Piggott
Associate
27 August 2004
Last Modified: 09/02/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
MK and JA Roche Pty Limited & Ors
Metro Edgley Pty Limited & Anor
(1993) 176 CLR 300
(1997) 190 CLR 207
(2001) 4 VR 28
(1992) 176 CLR 256
(1982) 150 CLR 29
(1982) 149 CLR 672
The revised judgment was to substitute for the last sentence of paragraph 49: “The second of the defendant's solicitors letters purporting to cancel the contract was only written after the consent in writing of the Treasurer to the transfer had been obtained. Even had it been written earlier, it would not have effected the cancellation.” The court held that this did not vary its expressed reasons for the finding and rejected the plaintiffs' submissions about paragraph 50 and the suit's success (paras 15–18).