SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: / Commonwealth of Australia v Davis Samuel Pty Limited and Ors (No 10)
Citation: / [2016] ACTSC 364
Hearing Date: / 11 May 2016
Decision Date: / 11 May 2016
Before: / Refshauge J
Decision: / The definition of the phrase “John Court property” in the general interpretation section of the orders made on 21November 2014 as amended on 27 May 2015, be amended to replace the figures “17/726810” with “17/776810” and the date of “27April 1998” with the date “5 June 1998”.
Catchwords: / JUDGMENTS AND ORDERS– JURISDICTION, PRACTICE AND PROCEDURE– Amendment – errors made in plaintiff’s written submissions relied upon by the Court – typographical errors in Court orders – plaintiff sought to have errors rectified – slip rule – new orders made – r 6906 of theCourt Procedures Rules 2006(ACT)
Legislation Cited: / Court Procedures Rules 2006 (ACT), r 6906
Cases Cited: / Commonwealth v Davis Samuel Pty Ltd (No 7) [2013] ACTSC146; 95 ACSR 258
Commonwealth v Davis Samuel Pty Ltd (No 8) [2014] ACTSC312
Permanent Trustee Co (Canberra) Ltd (Executor estate of Andrews) v Stocks & Holdings (Canberra) PtyLtd (1976) 15 ACTR 45; 28 FLR 195
Parties: / Commonwealth of Australia (Plaintiff)
Davis Samuel Pty Ltd (First Defendant)
David John Muir (Second Defendant)
Callform Pty Limited (Third Defendant)
Peter Michael Cain (Fourth Defendant)
Allan Paul Endresz (Fifth Defendant)
CTC Resources NL ACN 009 061 036 (Sixth Defendant)
Jozsef Endresz (Seventh Defendant)
Dawn May Endresz (Eighth Defendant)
William Arthur Forge (Ninth Defendant)
Kamanga Holdings Pty Limited ACN 003 316 292 (Tenth Defendant)
Pellon Pty Limited ACN 082 375 951 (Eleventh Defendant)
Michael McCann (Twelfth Defendant)
Amative Pty Limited ACN 082 375 924 (Thirteenth Defendant)
Mark Joseph Endresz (Fourteenth Defendant)
Bisoya Pty Limited ACN 003 016 242 (Fifteenth Defendant)
Winton Oil NL ACN 001 863 878 (Sixteenth Defendant)
Quancorp Pty Limited ACN 002 755 133 (Seventeenth Defendant)
Allan Paul Endresz as representative of the members of ‘Border Basketball Association Inc’ an unincorporated association (Eighteenth Defendant)
Rodney James Endresz (Nineteenth Defendant)
Joy Beverley Endresz (Twentieth Defendant)
Tresmonay Pty Limited ACN 073 120 635 (Twenty-first Defendant)
ACT Organics Pty Ltd ACN 008 628 662 (Twenty-second Defendant)
Graham McCann Pty Limited ACN 008 653 969 (Twenty-third Defendant)
Sandra Endresz (Twenty-fourth Defendant)
Lorraine Olive Forge (Twenty-fifth Defendant)
Christopher Muir (Twenty-sixth Defendant)
TNG Limited ACN 008 817 023 (Twenty-seventh Defendant)
Darren Smailes (Twenty-eighth Defendant)
Shane Smailes (Twenty-ninth Defendant)
Peter John Clark (Third Party)
Representation: / Counsel
Mr J Hogan-Doran (Plaintiff)
No appearance (First Defendant)
No appearance (Second Defendant)
No appearance (Third Defendant)
Mr A Endresz (Fourth Defendant)
In person (Fifth Defendant)
No appearance (Sixth Defendant)
Mr A Endresz (Seventh Defendant)
Mr A Endresz (Eighth Defendant)
In person (Ninth Defendant)
No appearance (Tenth Defendant)
No appearance (Eleventh Defendant)
No appearance (Twelfth Defendant)
No appearance (Thirteenth Defendant)
No appearance (Fourteenth Defendant)
No appearance (Fifteenth Defendant)
No appearance (Sixteenth Defendant)
No appearance (Seventeenth Defendant)
No appearance (Eighteenth Defendant)
No appearance (Nineteenth Defendant)
Mr A Endresz (Twentieth Defendant)
No appearance (Twenty-first Defendant)
No appearance (Twenty-second Defendant)
No appearance (Twenty-third Defendant)
No appearance (Twenty-fourth Defendant)
No appearance (Twenty-fifth Defendant)
No appearance (Twenty-sixth Defendant)
Mr W Andrews (Twenty-seventh Defendant)
No appearance (Twenty-eighth Defendant)
No appearance (Twenty-ninth Defendant)
No appearance (Third Party)
Solicitors
Australian Government Solicitor (Plaintiff)
Mr P Cain (First Defendant)
No appearance (Second Defendant)
No appearance (Third Defendant)
Self-represented (Fourth Defendant)
Self-represented (Fifth Defendant)
Mr P Cain (Sixth Defendant)
Self-represented (Seventh Defendant)
Self-represented (Eighth Defendant)
Self-represented (Ninth Defendant)
No appearance (Tenth Defendant)
No appearance (Eleventh Defendant)
No appearance (Twelfth Defendant)
No appearance (Thirteenth Defendant)
No appearance (Fourteenth Defendant)
Mr P Cain (Fifteenth Defendant)
Mr P Cain (Sixteenth Defendant)
No appearance (Seventeenth Defendant)
No appearance (Eighteenth Defendant)
No appearance (Nineteenth Defendant)
Self-represented (Twentieth Defendant)
Mr P Cain (Twenty-first Defendant)
No appearance (Twenty-second Defendant)
No appearance (Twenty-third Defendant)
No appearance (Twenty-fourth Defendant)
No appearance (Twenty-fifth Defendant)
No appearance (Twenty-sixth Defendant)
Snedden Hall & Gallop as agents for Jackson McDonald (Twenty-seventh Defendant)
No appearance (Twenty-eighth Defendant)
No appearance (Twenty-ninth Defendant)
Mr P Cain (Third Party)
File Number: / SC 75 of 1999

REFSHAUGE J:

1.  In 1999 the Commonwealth commenced proceedings to recover money which had been transferred from it without authority and the relief sought included recovering property into which that money had been converted. In August 2013, I entered judgment for the Commonwealth. See Commonwealth v Davis Samuel Pty Ltd (No 7) [2013] ACTSC146; 95 ACSR 258.

2.  Subsequently, on 21 November 2014, after hearing submissions from the parties on draft orders, I directed that, inter alia, certain property be transferred to the Commonwealth. One such property was a residential property at 11John Court, North Albury, which was registered in the name of MsDawn Endresz: Commonwealth vDavis Samuel Pty Ltd (No 8) [2014] ACTSC 312 at [423]-[424]. I made a declaration that MsEndresz held that property (the Property) on trust for the Commonwealth and ordered that she vacate the property and deliver up any certificates of title in her possession or direct mortgagees to do so for the purpose of transferring the property to the Commonwealth.

3.  Because of the number of properties involved and the complexity of the order, I included a general interpretation provision in the order. In that provision, I defined the Property as the John Court property and identified it by Certificate of Title folio and the date on which MsEndresz became the registered proprietor. When the Property was attempted to be transferred, a requisition on the transfer was issued by the Land Titles Office because of errors in that description.

4.  Regrettably, the errors were, on the one hand, a typographical error in that a seven was typed as a two, so that the folio was described as 17/726810, when it should have been 17/776810. The other error was an error made by the Commonwealth in the submissions giving the date of the transfer of the property to MsEndresz as the date on which, in fact, Kamanga Holdings PtyLtd (in liquidation) had paid her certain moneys instead of the date of the transfer; that is, I referred to 27 April 1998 instead of 5 June 1998.

5.  The Commonwealth has now sought to have these errors rectified under the slip rule, which is r 6906 of the Court Procedures Rules 2006 (ACT). That rule vests in the Court which made the judgment a power to correct any error or slip made, which means that the order ultimately made does not reflect the intention of the court. See Permanent Trustee Co (Canberra) Ltd (Executor estate of Andrews) v Stocks &Holdings (Canberra) PtyLtd (1976) 15 ACTR 45; 28 FLR 195.

6.  The power is an exception to the general rule that a final order can only be varied on appeal. The rationale is obvious: to avoid putting the parties, much less the Court, to the expense and time required to correct an unintended error which does not express the actual and clear intention of the Court is obviously of benefit, in particular to the benefit of all parties.

7.  In this case, the orders I made are presently the subject of an appeal by the defendants. I am unaware of any basis for a court not utilising the slip rule pending an appeal of the orders the subject of the slip rule application. Indeed, it would seem to me that the appeal court should be provided with orders that actually and correctly express the intention of the Court, and not those made with some kind of error that the rules permit a court to correct.

8.  That may be different if something in the appeal turns on the words actually used in the order, for example, whether they are in there or not, but no such submission was put to me that this was so in this case. Initially MsEndresz opposed the making of the amendment, but, at the hearing today, I was told by MrAllan Endresz, who appeared for her by leave, that her opposition was not maintained.

9.  It was suggested, however, that because of the earlier application which had been made to set aside as a nullity the judgment that I had entered because of non-compliance with certain rules of the Court, it would be inappropriate to proceed today or, alternatively, that there should be a stay of the order. In my view, that has some attraction, but the fact is that there are a whole range of properties the subject of the order for sale and recovery of money and property as a consequence, and if I accede to the application that has been made to set aside the judgment as a nullity, there will have to be a wholesale review of the orders made and the consequences of those orders to date.

10.  In any event, it may well be that monetary compensation would be appropriate rather than some review of the particular order. Accordingly, I am satisfied that I should proceed. I am also satisfied that the errors identified in the order were unintended and errors of the kind that should be amended under the slip rule. I am not satisfied that there is any basis for not doing so at this stage, and accordingly I will make the appropriate orders.

11.  I will, therefore, order that in the definition of the phrase "John Court property" in the general-interpretation section of the orders made on 21 November 2014, as amended on 27 May 2015, be amended to replace the figures "17/726810" with "17/776810" and the date of "27 April 1998" with the date "5 June 1998".

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge
Associate:
Date: 2016