HIS HONOUR: On 6 April 2017 I made final orders in each of these proceedings. In the proceeding 2015/00361534 I ordered that the defendant's assessment dated 14 May 2015 be confirmed. I stood the matter over to deal with questions of costs and any consequential orders that might be required arising from the orders made on 6 April 2017.
In accordance with directions for the service of submissions, on 13 April 2017 the plaintiff served and sent to my associate an outline of submissions on costs and consequential orders on. As part of those submissions, counsel for the plaintiff noted that at the time of his death, the deceased held 33,058,580 shares in Memocorp. They submitted had the appropriation not occurred, the plaintiff would have been entitled to receive 29 per cent of those shares pursuant to the will, presumably on the application of the principles in Saunders v Vautier (1841) Cr & Ph 240; 41 ER 482.
The plaintiff argued that the Court had not expressly addressed the question of whether the DOFA was an operative cause of the plaintiff's acquisition of the part of the deceased's holding of shares in Memocorp which the plaintiff was entitled to receive under the will in any event. The plaintiff submitted that the answer to that question was no because, so it was said, the DOFA did not affect the plaintiff's entitlement as a residuary beneficiary to 29 per cent of the deceased's shares in Memocorp but only the remaining 71 per cent of the deceased's shares.
Tay v CCSR [2017] NSWSC 504 | Case summary | Zoe
The plaintiff accepts that this contention was not one that had been raised in the plaintiff's appeal statement, nor in an appeal statement in reply, nor as a submission at the hearing. The plaintiff nonetheless argues that there are good reasons of public policy, including what is said to be important issues in relation to the administration of the Duties Act 1997 (NSW), that warrant his now being allowed to raise this submission. The plaintiff says that this additional contention was responsive to an alternative case advanced by the Chief Commissioner and that in all of the circumstances, what is said to be an oversight in not raising this additional contention is understandable.
The plaintiff's application is thus to set aside or to vary the final order made and entered on 6 April 2017 confirming the Chief Commissioner's assessment dated 14 May 2015. Two questions arise on this application. The first is whether the Court has power to entertain the application. If there is such power, the second question is whether it is appropriate for such a discretionary power to be exercised to allow the new matter to be raised.
Counsel for the plaintiff accepted, rightly in my view, that the order made on 6 April 2017 finally determined the plaintiff's liability to landholder duty subject, of course, to appeal, and subject otherwise only to the availability of a statutory power to vary or set aside the order that disposed of the proceedings save for any consequential orders (Bailey v Marinoff (1971) 125 CLR 529 at 536.)
Rule 36.16(1) of the Uniform Civil Procedure Rules 2005 (NSW) provides that the Court may set aside or vary a judgment or order if a notice of motion for the setting aside or variation is filed before entry of the judgment or order. In this case the orders have been entered. The plaintiff has not filed a notice of motion seeking the setting aside or variation of the orders. Instead, he makes an oral application which, it is said, was sufficiently foreshadowed in his written submissions of 13 April, which were delivered well within the 14-day period provided for in r 36.16(3A). He says that in those circumstances, the requirement for the filing of a notice of motion can be dispensed with, citing UCPR r 18.2. Rule 13.16(3A) provides:
"36.16 Further power to set aside or vary judgment or order
(cf SCR Part 40, rule 9)
…
(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered."
Rule 18.2 provides:
"18.2 Requirement for notice
(cf SCR Part 19, rule 2; DCR Part 16, rule 2; LCR Part 15, rule 2)
(1) A person may not move the court to make any order unless notice of motion has been filed and served on each person affected by the proposed order.
(2) Despite subrule (1), a person may move the court to make an order without notice of motion having been filed or served on a person if:
(a) that person consents to the making of the order, or
(b) the preparation, filing or service of the notice would cause undue delay or other prejudice to the person by whom the order is sought, or
(c) the court dispenses with the requirement for such notice to be filed or served, or
(d) under these rules or the practice of the court, the motion may be made without the prior filing or service (as the case may be) of notice of motion."
In support of his contention that in accordance with r 18.2 the requirement in r 36.16(3A) for the filing of a notice of motion can be dispensed with, the plaintiff has cited the decision of the Court of Appeal in El Boustani v The Minister Administering the Environmental Planning and Assessment Act 1979 (No 2) [2014] NSWCA 114. In that case, the Court of Appeal had set aside orders made by the Land and Environment Court (El Boustani v The Minister Administering the Environmental Planning and Assessment Act (1979) [2014] NSWCA 33). One of the orders set aside was an order as to costs.
The matter was remitted to the Land and Environment Court for that court to determine the amount of compensation that would be payable on a compulsory acquisition of land. It appears that the parties had agreed that irrespective of the outcome of the redetermination of the appellant's claim for compensation on the remitter, costs of the proceedings to that date in the Land and Environment Court should be unaffected by the remitter.
The Court of Appeal varied its order setting aside all of the orders of the Land and Environment Court by excepting from that order the costs order made in the Land and Environment Court that the respondent to the appeal pay the appellants' costs of the proceedings in that court. It did so notwithstanding that the appellants had not filed a notice of motion seeking the variation of the orders of the Court of Appeal. The period of fourteen days provided for by r 36.16(3A) had expired, but the appellants had provided a letter to the Court which the Court had accepted as being sufficient notice of the application for the variation of the costs orders.
The Court of Appeal observed in para 14,
"[14] However, there may be power under r 36.16(1) and (3A) of the UCPR to vary this court's orders. The judgment and orders of this court were taken to be entered when they were recorded in the court's computerised court record system, which was on the day judgment was delivered on 28 February 2014. Application to vary the orders was made on 10 March 2014, which is within 14 days after the orders were entered. As noted above, this court considers it appropriate in the circumstances of this case to dispense with the requirement for a notice of motion and has accepted the letter as sufficient application. In these circumstances, the court has power to vary its orders as if the judgment and orders had not been entered (r 36.16(3A)). The power to vary the orders is under r 36.16(1)."
The plaintiff in this case submits that by parity of reasoning, its submission of 13 April 2017 can be taken as sufficient notice of its application to justify the Court's dispensing with the requirement for the filing of a notice of motion. To insist on that requirement, it is said, would be to insist on form over substance. I note that in Kable v State of New South Wales [2012] NSWCA 361, the Court of Appeal took a similar course in relation to proceedings that had been remitted for further hearing in the Common Law Division.
It seems to me that in both El Boustani (No 2) and Kable, the principles as to finality of judgments, exemplified in Bailey v Marinoff, were inapplicable because the effect of the remitter of the proceedings to the Land and Environment Court or the Common Law Division meant that the proceedings had not been finally determined. In those circumstances, there seems to me to be no inhibition in the Court's exercising the power under r 18.2 or under s 14 of the Civil Procedure Act 2005 (NSW) to dispense with the requirement for the filing of a notice of motion within fourteen days of the orders being entered.
The present case is different. As I said in Short v Crawley (No 45) [2013] NSWSC 1541 at [46], I have difficulty in seeing how the power conferred by r 36.16(3A), which is conditioned upon the filing of a notice of motion within fourteen days of the entry of orders, can be modified by the exercise of a power to dispense with the requirement of the rules, for the reasons given by Basten JA in AT v Commissioner of Police NSW (No 2) [2010] NSWCA 337 at [7]-[11]. Basten JA there pointed out that dispensing with the restriction on a statutory power to vary a judgment which is otherwise final and beyond correction involves not the dispensing with a rule of court but the conferring of an additional power which the Court has no inherent jurisdiction to exercise if proceedings have been finally disposed of.
In my view, the Court does not have the power to entertain the application which the plaintiff now seeks to advance.
If, however, I am wrong in that conclusion, I am nonetheless satisfied that it would not be appropriate to exercise the power to set aside or vary the order of 6 April 2017 on this application. Unquestionably, the time for the argument to be raised to have been raised was at, and indeed prior to, the hearing. It seems to me that the argument now sought to be advanced is one which would need to have been articulated in the plaintiff's appeal statement or in an appeal statement in reply.
It is possible, and I put it no more highly than that, that had the plaintiff's appeal statement included the contention now sought to be advanced, that that might have caused the defendant to consider pleading the issue that he did not seek to raise by amended appeal statement as to whether or not a "distribution" for the purposes of s 163A(d) of the Duties Act includes an appropriation which might arguably operate not as a distribution, but in lieu thereof.
Moreover, the argument sought to be raised by the plaintiff is not simple. For it to be entertained, there would have to be a further hearing, which would probably involve a re-ventilation of the arguments addressed at the earlier hearing. It seems to me that the type of issues that would be raised by the plaintiff's alternative contention would overlap with the matters that have already been the subject of argument and decision.
I do not think that it would be consistent with the requirements of s 56 of the Civil Procedure Act for this application now to be entertained. For these reasons, I refuse the plaintiff's application to set aside the order made on 6 April 2017 to enable his further application to be considered.
I order that the plaintiff's application to vary or set aside the order made on 6 April 2017 in proceeding 2015/00361534 be refused.
I order that the plaintiff pay the defendant's costs of the plaintiff's application to vary or set aside the order made on 6 April 2017 in proceeding 2015/00361534.
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Decision last updated: 02 May 2017