Vesuvius Australia Pty Ltd (formerly known as Cookson Plibrico Pty Ltd) v V&M Davidovic Pty Limited

Judgment The Application 1HIS HONOUR : In this matter, I delivered judgment on the Plaintiff's application for summary judgment on 11 November 2010, the citation of which is [2010] NSWSC 1171. 2On 18 November 2010, the Plaintiff filed in Court a notice of motion seeking, inter alia, the following relief: "2. An order that the hearing of the plaintiff's amended notice of motion filed 24 September 2010 and the decision of the Court in its judgment of 11 November ([2010] NSWSC 1171) be re-opened. 3. In lieu of the Court's orders indicated in the judgment, the Court makes the orders claimed in paragraphs 2, 3 and 4 of the plaintiff's amended statement of claim and sought in paragraph 1 plaintiff's amended notice of motion filed 24 September 2009, namely: (a) a declaration that the plaintiff is entitled to be repaid the whole of the funds standing to the credit of Illawarra Credit Union Limited account number xxxxxxxx being the funds paid into that account pursuant to the provisions contained in clause 13 of the Deed of Options for Lease dated 8 October 2007 made between the plaintiff therein described as the Tenant of the one part and the defendant therein described as the Landlord of the other part; (b) an order that within three business days of the date of this order, the defendant do all things and execute all such documents as may be necessary to procure the release of funds standing to the credit of such account and deliver such documents to the solicitors for the plaintiff; and (c) an order that in the event the Defendant shall fail so to execute and deliver within the time specified the documents referred to in the previous paragraph, the Registrar of the Court shall sign and deliver such documents on the Defendant's behalf pursuant to section 94 of the Civil Procedure Act 2005. 4. An order that the defendant pay the plaintiff's costs of and incidental to this motion, the plaintiff's notice of motion filed 10 August 2010 and the plaintiff's amended notice of motion filed 24 September 2010. 5. Such further or other orders as this honourable Court may seem fit." 3The notice of motion was heard by me on 8 February 2011. Legal Principles 4There was no dispute as to the principles of law that apply in determining the Plaintiff's application. Those principles were recently summarised by Ward J in Brand v Monks [2010] NSWSC 313 at [13] - [17]: "13 In Paul Andrew Dwyer v John Maxwell Morgan [2009] NSWSC 1343 Barrett J (at [5]) outlined the principles, which his Honour observed were well settled, in relation to the exercise of the court's power to recall its judgment and to re-open its decision, by reference to what his Honour had said in Wentworth v Rogers [2002] NSWSC 921 at [9]: 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. (my emphasis) [14] His Honour had referred to the observation of Rix LJ in Compagnie Noga d'Importation et d'Exportation SA v Abacha [2001] 3 All ER 513 , to the effect that, other than in circumstances where there is a clear error of fact or law which may be corrected without imposing on the parties the need for an appeal, it would be the antithesis of justice according to law and would subvert the appeal process for the trial judge to open up reconsideration of his or her judgment. Rix LJ said: It is in my judgment wrong for a judge to be treated to an exposition such as would be presented to a court of appeal. If in such circumstances a judge should be tempted to open up reconsideration of his judgment, an appeal would not be avoided, it would be made inevitable. [15] This is of particular relevance, I note, to the current application insofar as it is said that I have misapprehended or misapplied Court of Appeal authority - a matter which would most appropriately by determined by the Court of Appeal itself (or have misapprehended facts going to the question of acquiescence). [16] Barrett J in Wentworth (at [7]) referred to three matters which have been identified as central to the re-opening jurisdiction: 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 and then to the further consideration identified by Young J (as his Honour then was) in Twenty-First Australia Inc v Shade (unreported, 31 July 1998), namely the situation where the court's reasons for judgment inadvertently did not deal with important matters argued by counsel at the hearing and where an appeal to correct this would involve inevitable delay. [17] In Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 ; (1993) 111 ALR 385 (at 387) Mason CJ said: However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases." 5Even more recently, the majority of the High Court in Aktas v Westpac Banking Corporation Limited (No 2) [2010] HCA 47, noted: "5. This Court's orders have not yet been authenticated. There is no doubt that the Court has power to recall the orders made on 4 August 2010. The question is whether it should. 6. As Mason CJ rightly said in Autodesk Inc v Dyason [No 2] , the exercise of the jurisdiction to re-open a judgment and to grant a rehearing "is not confined to circumstances in which the applicant can show that, by accident and without fault on the applicant's part, he or she has not been heard". The jurisdiction is, however, to be exercised with great caution, having regard to the importance of the public interest in the finality of litigation. That Mason CJ dissented in the result in that case does not deny the accuracy of the propositions just made." 6Mr Wells, counsel for the Defendant, accepted that I had the power to recall, or amend, the reasons for Judgment and the orders made. The debate, at the hearing, centred on the question whether I should do so.