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[2017] VSC 211
Supreme Court of Victoria
2017-04-24
VICKERY J
Original judgment source is linked above.
PRACTICE AND PROCEDURE - Application of slip rule to mistaken word in Judgment - Rule 36.07 Supreme Court (General Civil Procedure) Rules 2015 applied.
1 The trial has been conducted pursuant to a 'sequential trial' model described and ordered in Ying Mui & Ors v Frank Kiang Ngan Hoh & Ors (No 1).[1]
2 In paragraph 574 of the judgment in Ying Mui & Ors v Frank Kiang Ngan Hoh & Ors (No 3)[2] (the 'Judgment') the Court answered the first tranche question 3(a) ('Did Lumarkye in receiving the Sydenham Property and Lot 202 from Ying Mui knowingly receive trust property?') with the word 'No'. Paragraph 574 of the Judgment read as follows:
3 This was a mistake. The use of the word 'No' in its context was plainly inconsistent with the reasoning in the Judgment.[3] Any suggestion to the contrary, as maintained by Lumarkye, is rejected.
4 Further, in a subsequent ruling, Ying Mui & Ors v Frank Kiang Ngan Hoh & Ors (No 4)[4] the Court expressly stated that the Plaintiffs had succeeded in their knowing receipt claim against Lumarkye. This very clearly reflected the intention of the Court to use of the word 'Yes', and not 'No', in answer to question 3(a).
5 Rule 36.07 of the Supreme Court (General Civil Procedure) Rules 2015, known as the 'Slip Rule', provides:
The Court may at any time correct a clerical mistake in a judgment or an order or an error arising in a judgment or an order from any accidental slip or omission.
6 The error which occurred in this case was an error arising in a judgment from an accidental slip, which the Court has a discretion to correct.
7 It would not be in the interests of justice to permit the error to remain in the Judgment uncorrected.
8 The answer to the first tranche question 3(a) should have been expressed as 'Yes', and paragraph 574 of the Judgment will be amended accordingly.
9 It is directed that the answer to the first tranche question 3(a) in paragraph 574 of the Judgment be amended to 'Yes'.
10 The costs of this application shall be costs in the cause.
[3] See Ying Mui & Ors v Frank Kiang Ngan Hoh & Ors (No 3) [2017] VSC 29 [418], [512]-[524], [546]-[550], [570].
[4] [2017] VSC 85 [4].
Ying Mui & Ors
Frank Kiang Ngan Hoh & Ors