REASONS FOR DECISION
1 The respondents have applied under O 35 r 7(3) of the Federal Court Rules to have the orders made in this matter on 1 June 2010 altered on the basis that they contain errors arising from an accidental slip or omission. The orders have been entered, but there is no dispute about the power of the Court to make such a correction, if it is appropriate.
2 The orders were made in two separate documents. They are attached to these reasons for decision.
3 I delivered judgment in this matter on 11 May 2010: Plaza Carpark Pty Ltd v Chor Shing Ma [2010] FCA 449. At that time, I directed the applicants, who had been successful in the proceeding, to prepare and submit within 14 days draft orders to give effect to the reasons for judgment in the expectation that the parties would be able to agree the terms of those orders. They were unable to do so, and the applicant's exercised the liberty to apply to make submissions on the appropriate orders.
4 The orders of 1 June 2010 were then duly made. At the time, orders 1-9 were not resisted by the respondents. Orders 10-12 were made to enable the respondents, as they had requested, to pursue an application to adduce further evidence on a particular issue. Orders 13-15 were made, but as is apparent were not to be sealed until 11 June 2010, to cover the eventuality that the foreshadowed application by the respondents for leave to re-open their case on that particular issue was not pursued. The application was not pursued and those orders were duly entered on 10 June 2010. The appeal from those orders is listed for hearing before the Full Court on 25 November 2010.
5 The present application, apart from a minor typographical error in para 3 of the orders to substitute "his" for "its" (an order which the applicants accept is appropriate) is to delete the words "and second respondents" and substitute the word "respondent" in orders 7 and 13 of the orders so made. The respondents contend that the liability of the second respondent under orders 7 and 13 reflects an accidental slip in those orders.
6 I note that, at present, there is no ground of appeal which challenges the correctness of orders 7 and 13, insofar as they prescribe joint liability of the first and second respondents. Counsel for the respondents indicated that it is proposed, at the hearing of the appeal, to seek leave to amend the grounds of appeal to include such a ground. I do not regard the fact that, at present, there is no ground of appeal raising the particular matter the subject of this application, in the circumstances, as a reason to decline it.
7 In Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385, the Full Court considered the scope of O 35 r 7(3). Lockhart J (with whom Black CJ agreed) said at 391:
It is well settled that the application of the slip rule is not confined to giving effect to the intention of the judge at the time when the court's order was made, or judgment given. It extends to the intention which the court would have had, but for the failure that caused the accidental slip or omission. The rule also extends to permit the correction of an order or decree where the omission results from the correction of an order or decree where the omission results from the inadvertence of a party's legal representative. (References omitted.)
8 That rule reflects what is commonly called the slip rule, which may be invoked whether or not the orders in question have been duly entered. It is to enable the correction of judgments which did not correctly state what was actually decided and intended.
9 In that case, Lindgren J at 404 suggested that the slip rule might be applied in respect of an accidental slip or omission, where one might expect the response when the slip or omission comes to light of it being acknowledged to be an obvious one.
10 The claim in this matter largely concerned the sum of $700,000 received by the first respondent in circumstances which it found to be inappropriate and applied by him firstly as to $350,000 to acquire units in the name of the second respondent in units in the Plaza Unit Trust, and as to the balance of $350,000 applied by him for personal purposes. It is the second-mentioned sum of $350,000 which is the subject of orders 7 and 13.
11 The second respondent's position in relation to the sum of $350,000 the subject of orders 7 and 13 is clearly different from its position in relation to the orders in respect of that sum applied to acquire units in the Plaza Unit Trust. In respect of that sum, the second respondent was the direct beneficiary of the improper receipt and application of those funds.
12 It was at all times the applicants' case that the second respondent should jointly be liable with the first respondent in respect of the misapplied sum of $350,000 dealt with in orders 7 and 13, based upon the relationship between the first and second respondents as discussed in [3], [7], [17], [24], [25], [29] and [31] of the reasons for decision, as well as [40] and [67]. That position was asserted in the application, and in the closing submissions on behalf of the applicants. The applicant's proposed orders, as presented on 1 June 2010, in particular order 7 as made, indicated its position clearly. That order was duly made without, at the time, opposition on behalf of the respondents. As noted, their concern was then confined to the order dealing with interest payable on that sum.
13 I have considered the reasons for judgment, and in particular [12], [19], [40], [52], [67] and [76] referred to by counsel for the respondents.
14 Some of those paragraphs refer to the relationship between the two respondents. In [12], there is a reference to the fact that neither paid for the units in the Plaza Unit Trust from its own resources. Some simply refer to the actual transactions which occurred. In [52] and [76] there is reference to the first respondent's liability for the use of the $350,000 in question, but in the context of him being the principal actor, it is not a finding that the second respondent is not accountable to the applicants in respect of it. There is elsewhere, including in [52] reference to the second respondent's position, as well as in those parts of the reasons for judgment referred to by the applicants.
15 Having regard to the applicant's claim as consistently expressed, and the reasons for judgment, addressing it, I do not consider that the terms of orders 7 and 13, insofar as they provide for the second respondent to be jointly liable with the first respondent, were made in circumstances in which it is appropriate to invoke Order 35 r 7(3) of the Federal Court Rules. In my view, the terms of those orders do not reflect an accidental slip or omission of the character to which that rule refers. There are a number of examples of the application of that rule, or its analogues, or under the implied powers of a court, so as to correct an order under the slip rule. I do not think they extend to circumstances where the order sought to be corrected was made on the basis of the case consistently presented by the successful party, and in respect of which findings as sought by the successful party have been made in the course of the reasons for judgment.
16 Accordingly, subject to correcting order 3 by substituting the word "his" for the word "its", I decline to make the order sought by the respondents. In those circumstances, the respondents should pay to the applicants their costs of the application dealt with by these reasons for decision.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.