The application dated 20 September 2012 for correction of the orders and decision dated 1 December 2011 is dismissed.
[2]
On 1 December 2011, I made various orders and declarations in an application by the applicant against the respondent for damages as compensation arising from a retail tenancy dispute.
My decision was made after a 10 day hearing in the Tribunal which proceeded on 31October and 2-4, 7-11 and 14 and 16 November 2011 ('the initial hearing'). The reasons for my decision exceeded 62 pages in length and covered a number of issues raised by the application.
I ordered the respondent to pay to the applicant total compensation of $218,599.63 which was made up of various heads of damage. In addition, I ordered the respondent to pay damages by way of interest in the sum of $26,346.72.
It is agreed that the total amount of damages and interest was paid by the respondent to the applicant within seven (7) days of the making of my orders.
Subsequent to my decision on 1 December 2011, the applicant brought another separate application against the respondent in the Tribunal. That application was filed on 26 April 2012. In that new application the applicant asked the Tribunal to, inter alia, correct what it described as an 'error/miscalculation/mistake/omission' in my original decision. The Senior Member of the Tribunal declined to hear that part of the new application. The other parts of that application which relate to claims for damages for failure to repair the retail premises promptly are set down for hearing in the Tribunal on 12 March 2013.
On 20 September 2012, the applicant filed an application in the original proceeding being application R187/2010. This further application seeks orders as follows:
Correcting error/miscalculation/mistake/omission in the Tribunal's calculation of loss of profits for the 2011 calendar year and overall award, including interest, in proceeding R187/2010.
An order that the respondent immediately pays to the applicant the sum of $95,955.86.
Statutory Interest.
Further and other orders that the Tribunal deems appropriate.
The application for further orders was initially supported by an affidavit of Mr Bob Spaleta who, together with his wife, are the directors of the applicant. That affidavit was sworn on 19 September 2012.
The application came on before me for hearing (sitting at the County Court) on 15 October 2012. The respondent sought an adjournment of that hearing and filed an affidavit of its new solicitor Mr Daniel Isakow sworn 12 October 2012. In summary form the respondent sought an adjournment because Mr Isakow had only recently been retained and was new to the matter and both directors of the respondent were suffering ill health. He also wanted time to obtain expert accounting opinion on matters raised by the applicant.
The applicant opposed the granting of an adjournment and this opposition was further supported by a further affidavit of Mr Spaleta sworn 15 October 2012. It is not necessary that I go into detail in these reasons as to the content of that affidavit save to point out that it indicates to me that the parties remain at loggerheads on almost every issue notwithstanding a previous 10 day hearing in the Tribunal and orders made.
I granted the respondent's request for an adjournment on 15 October 2012 and the applicant's further application came on for final hearing before me (again sitting at the County Court) on 6 December 2012. On that occasion, the applicant was again represented by Mr and Mrs Spaleta and the respondent was represented by Mr Bick QC instructed by Mr Isakow.
(1) The Tribunal may correct an order made by it if the order contains -
[4]
(b) an error arising from an accidental slip or omission; or
[5]
(c) a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the order; or
[6]
(b) on the application of a party in accordance with the rules.
[7]
Section 119 in terms gives the Tribunal a discretion to correct a mistake made in an order. The mistake can be clerical in nature or it may be an error arising from an accidental slip or omission or it maybe 'a material miscalculation of figures'. This further application is based on a material miscalculation of figures existing in my decision of 1 December 2011.
In my decision at paragraphs 312 and 313, I calculated an amount of damages that should be awarded to the applicant for loss of profits in the calendar years 2008 to 2011. The applicant submits that the figures in the table appended to paragraph 312 of my reasons for decision contained a typographical error and that the figure of $47,540 in the 'Difference to Actual' column for 2011, should in fact be $83,061.00. This error has a flow on effect so that the calculation of the amount of damages for loss of profits before reduction of the amounts dealt with in paragraph 313, is $182,663 instead of the sum of $166,428.00 a difference of $16,235.00. The respondent concedes this error.
The applicant's further claim under s. 119 of the Act is not limited to the amount of that error. In my decision, I estimated the loss of profit in the 2011 calendar year by assuming the expenses incurred in 2010 would continue. The applicant now seeks to revisit the whole of the calculation of the amount of damages for loss of profits based upon evidence of actual expenses incurred in 2011 which evidence was not before me at the time of my decision.
To that end, the applicant produced evidence on this further application in the form of an expert accountant's report from Paul Spence from the accounting firm Messrs Munday Wilkinson dated 6 August 2012. That report reviews the calculations in my decision and, after taking into account the amount of the actual expenses incurred in 2011[1] and, the error identified above, calculates an amount which the applicant claims should have been awarded to it for loss of profits in the sum of $222,236.00 instead of $136,686.00 allowed for by my decision.[2] In addition, the applicant seeks an adjustment of the amount of damages for statutory interest.
The respondent has also obtained an expert accounting report which was produced by an affidavit of Gary Fettes sworn 3 December 2012. Like the Spence report, Mr Fettes' report is also lengthy.
This further application for correction of my orders made in my decision of 1 December 2011 is in part based on an agreed error or mistake and in part based upon the attempt to put before me new evidence after my final decision has been made.
I have concluded that in the proper exercise of my discretion I must reject the applicant's further application.
Section 119 of the Act is intended for the correction of mistakes. The section does not permit orders to be revisited on the basis of new or fresh evidence becoming available.
Further, it is readily apparent from the material submitted by the applicant and the respondent, especially the two accounting reports, that the error relied upon and the amount now sought to be claimed in consequence involves a total recalculation. The error and its consequences are not readily identifiable.
The respondent submits that even if an error is identified, the remedy in s. 119 is discretionary and having regard to the delay in bringing the application and the fact the damages which I awarded to the respondent were paid promptly, then fairness dictates that this further application should be dismissed. The respondent submits that there must be finality to litigation and, as far as it is concerned, the matter was finalised by my decision and payment of damages by it twelve months ago.
In L. Shaddock & Associates Pty Ltd & Anor v. The Council of the City of Parramatta[1982] HCA 59; [1983] 151 CLR 590 the High Court considered the application of the 'slip rule' in the context of an accidental slip or omission in the making of an order. At page 597 the Court said, inter alia:
[8]
Third, we would observe that an order under the slip rule is not available as a matter of course. There is a discretion in the court to refuse an order if something has intervened which would render it inexpedient or inequitable that it be made. In the present case there was considerable delay in filing the notice of motion. The court's decision was given on 28 October 1981 and the judgment entered at the end of November 1981. The motion to amend the order is dated 22 July 1982. The general principle in support of finality in litigation together with the fact that a party against whom judgment in a money sum is entered is entitled to regard that judgment as finally determining the extent of his liability combine to stress the importance of prompt action under the slip rule.
[9]
In Shaddock, the High Court cited with approval a decision of the Privy Council in Tak Ming [1973] 1 WLR at page 306 where the Privy Council also expressed the opinion that any application under the slip rule must be made promptly and also stressed the importance of finality in litigation.
Here, there is no explanation of any delay between the time of the making of my order on 1 December 2011 and the making of this application on 20 September 2012. The matter was raised in another application before the Tribunal in April of this year so presumably the error relied upon was known at that time. If that be so, there is no explanation for the further delay between April and 20 September of this year. I note the Spence report is dated 6 August 2012 but it does not say when his firm received instructions.
In my view, if there was an error capable of being corrected under s. 119, it ought to have been identified by the applicant and its accountants by the end of February 2012 at the latest and an application then made. That was not done. In my judgment, the delay in bringing this application for correction is unexplained and is too long. It is important that litigation be brought to an end. In this case, the respondent having promptly paid the amount of damages, it would be both inexpedient and inequitable for me to make the orders sought by the applicant in its further application dated 20 September 2012.
[10]
For these reasons, the applicant's further application is dismissed.
Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd (Retail Tenancies) [2012] VCAT 1908 (14 December 2012)
Section 119 of the Victorian Civil and Administrative Tribunal Act1998 - application for the correction of a decision - remedy discretionary- unexplained delay - principle of finality to litigation - inexpedient and inequitable to grant remedy in the circumstances - L. Shaddock & Associates Pty Ltd & Anor v The Council of the City of Parramatta[1982] HCA 59; [1983] 151 CLR 590 considered and applied.