HER HONOUR: On 8 August 2015, I delivered judgment in Trajkovski v Asiapac Securities Pte Ltd [2015] NSWSC 1432. In that judgment I declined to make an order that the defendant provide security for costs of the cross claim. Paragraphs [4] to [8] of the defendant's notice of motion filed 20 April 2015 was stood over to a directions hearing before the Registrar at 9.00 am on 29 October 2015 and the balance of the notice of motion was dismissed.
The parties agree that paragraphs [4] to [8] should have been dismissed. I make that order.
[2]
Submissions
The defendant has requested the Court make a variation of these orders pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). It reads:
"36.17 Correction of judgment or order ("slip rule")
If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error."
Counsel for the plaintiffs has drawn my attention to remarks passed by me in a discussion with him during the hearing when he said that substantive agreements existed on the making of an order for security for costs against the defendant. Counsel for the plaintiff submitted that the agreements were that security ought to be ordered in principle; the quantum should be $60,000; and that the only dispute was regarding a costs order in respect of the application for security for costs.
Trajkovski v Asiapac Securities Pte Ltd [2016] NSWSC 191 | Case summary | Zoe
According to the defendant, in the preparation of the judgment he says that I overlooked these agreements and the orders should be varied pursuant to UCPR 36.17.
Counsel for the defendant opposes the variation of the orders and says that the slip rule does not apply where the alleged mistake is a consequence of a deliberate decision: see Expo Aluminium (NSW) Pty Ltd v Pateman Pty Ltd (No 2) (NSWCA, Kirby P, Meagher and Samuels JJA, 29 April 1991, unreported) and Newmont Yandal Operations Pty Ltd v The J Aron Corp [2007] NSWCA 195 ("Newmont Yandal").
Counsel for the defendant submitted that the plaintiffs do not correctly state the grounds for the current application. The defendant says that some relied upon were "not sought". They are that the Court dismissed the application for security for costs when it was common ground at the hearing that Asiapac should give security and the quantum of it, leaving in dispute only whether the security ought to be in a form satisfactory to a registrar or otherwise escrowed; and the costs of that part of the application. Counsel for the defendant says that this is not a matter of clerical mistake, but an error arising from an accidental slip.
Counsel for the defendant submitted that while the slip rule can apply even if there are different possible corrections, the choice between the corrections cannot involve a matter of controversy of substance or require the exercise of an independent discretion: see Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 390-392.
There is no suggestion that the advent of the Civil Procedure Act 2005 (NSW) and the UCPR have narrowed the scope of the slip rule. UCPR 36.17 is to be applied having regard to the overriding purpose in s 56 of Civil Procedure Act: see Newmont Yandal at [113]. Counsel for the defendant submitted that in Newmont Yandal the Court of Appeal at [116] made clear that the words "error" and "correct" in the slip rule should not be given a narrow interpretation.
Counsel for the defendant submitted that in this case, the matter is not a "slip" but rather an appeal and the Court should not grant the relief sought by the plaintiff for the following reasons:
(a) Even if I were wrong in deciding the issue of the plaintiffs' request for security for costs from Asiapac, which is not accepted by Asiapac, this decision was formed deliberately (with written reasons) after hearing argument and on the face of the evidence ([2015] NSWSC 1432 at [54]-[61]), and after proper consideration of the requirements at law ([2015] NSWSC 1432 at [25]-[38]). Thus, as a matter of law, the slip rule is not applicable to the decision;
(b) Further, in light of the argument articulated at the hearing of the cross motions, when read in full (T41.40-44.35), the Court made no mistake deciding the matter as:
(i) The plaintiffs amended their motion dated 17 April 2015 to include an order specifically seeking security for costs from Asiapac;
(ii) Asiapac proffered a form of security for costs with a view to resolving the matter without the need for argument (made on 6 June 2015 and to which no reply was ever received from the plaintiffs);
(iii) Argument was had as to whether security should be proffered and specifically as to the form of the security;
(iv) Importantly, the Court also heard submissions in respect of existing costs orders made against the plaintiffs in favour of Asiapac which ought to be set off against any order for security for costs (T42.40 and following);
(v) A reading of the relevant parts of the transcript in full, as opposed to confining oneself to the extracts provided by the plaintiffs, reveals that Asiapac understood and squarely intended that each of these matters were to be considered and decided upon by me particularly in circumstances where Asiapac was equally pressing its motion for security for costs against the plaintiffs; and
(c) If the plaintiffs are successful and the judgment is varied in circumstances where Asiapac no longer proffers security for costs then the plaintiffs would be left with a need to press for the relief sought in their motion which, on the face of my reasons at paragraphs [54]-[61] of [2015] NSWSC 1432, would fail in any event.
For these reasons, counsel for the defendant submitted that the Court ought not vary the orders made in Trajkovski v Asiapac Securities Pte Limited [2015] NSWSC 1432.
Mr Parsons appeared for the plaintiffs. Mr Mirzai appeared for the defendant. The relevant portion of the transcript is as follows:
"HER HONOUR: Have you agreed on an amount?
MIRZAI: Yes.
HER HONOUR: So we don't have to worry about that.
…
PARSONS: It is $60,000. If that is satisfactory to the Registrar so it be.
MIRZAI: I hand it up and I can take your Honour through it. This letter was sent on 26 June. The short submission is that we never received a response.
…
EXHIBIT #1 LETTER TAYLOR & SCOTT LAWYERS TO KELL LAWYERS DATED 26 JUNE 2015 TENDERED, ADMITTED WITHOUT OBJECTION
HER HONOUR: $60,000, that is the amount. That is all right, the said guarantee in Escrow pending the cost orders made.
…
HER HONOUR: There is already a motion asking for this order, that is what I am understanding. If you put up $60,000 on the ground that they don't get it until you get the costs assessed, et cetera.
MIRZAI: There would be some off‑setting exercise. It would be far less than $60,000 in the first instance. In those circumstances your Honour would not be minded to order security for costs because there has been sufficient on the table.
HER HONOUR: You are in Singapore.
MIRZAI: Yes, I think, can I put it this way, without being too succinct, if ordered to pay any costs to the extent we need, there is evidence about our cash position. My friend is no doubt going to try to impeach that, there is enough here to‑‑
HER HONOUR: Assets here. In other words we are no further advanced, we have to argue the whole thing.
PARSONS: I thought it was other than that.
HER HONOUR: Except it wouldn't be $60,000.
MIRZAI: My friend is going to say we asked for it, got to‑‑
HER HONOUR: This has just made it longer.
MIRZAI: That is all I wish to say about the motion against my client on security for costs.
HER HONOUR: You are or you are not offering $60,000?
MIRZAI: We are in the form that has been expressed.
HER HONOUR Mr Parsons, you don't like the Escrow?
PARSONS: We say it is appropriate, conventional.
HER HONOUR: It is exceptional in that you have come here with a lot of unpaid costs owing to them. Normally it is costs owing up to a point, in one lot of proceedings you have asked for indulgences of the Court and lost and got a costs order against you. You don't think there should be some sort of cost‑setting exercise?
PARSONS: The security is meant to be there.
HER HONOUR: I can do it on terms, whatever terms I like.
PARSONS: That is so. My understanding, we would pump up our simply expressed positions and you would then choose one or the other, some sort of merge.
MIRZAI: I apologise if I have not assisted. The offer is in the letter. If I have confused the Court, I apologise.
HER HONOUR: Mr Parsons, you want the $60,000?
PARSONS: Conventional form of order.
HER HONOUR: The only dispute, if withheld for a costs order?
PARSONS: Yes."
(T41.44-50; T42.1-5; T4217-22; T43.21-49; T44.1-49)
[3]
Conclusion
Initially, the parties indicated that they agreed on the amount of $60,000 for security for costs at $60,000 but this was subject to conditions that were not agreed upon. Mr Mirzai then stated that there would be some off setting exercise and the amount of costs owed would be far less than $60,000. He asked if in those circumstances the Court would be minded to order security for costs.
In Trajkovski v Asiapac Securities Pet Ltd [2015] NSWSC 1432 at [61], I concluded that while I accepted that Asiapac is registered in Singapore, nevertheless I was satisfied that it is in a position to pay the costs of Ashlee Holdings Pty Ltd and the Trajkovskis' claims, should they be successful. The threshold issue had not been satisfied so I declined to order that Asiapac provide security for costs. In reaching that conclusion, I did so after a deliberate consideration of the issues.
In these circumstances, the application of the slip rule is not appropriate. I decline to amend this order.
[4]
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Decision last updated: 07 March 2016