Bilbarin Holdings Pty Limited T/As David Smash Repairs v Nrma Insurance Limited [1997] ACTSC 18 (10 April 1997)

SUPREME COURT OF THE ACT

BILBARIN HOLDINGS PTY LIMITED t/as DAVID SMASH REPAIRS v. NRMA
INSURANCE LIMITED
No. SC696 of 1996
Number of pages - 2

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY MILES CJ

HEARING

CANBERRA, 7 February 1997 10:4:1997

Counsel for the applicant: Mr. R. Lucas

Solicitors for the applicant: Colquhoun Murphy

Counsel for the respondent: Mr. G. Stretton

Solicitors for the respondent: AbbottTout Harper Blain

ORDER

THE COURT ORDERS THAT:
1. The appeal brought by the plaintiff/applicant against part of the orders made by the Master on 13 September 1996 be dismissed. 2. The appeal brought by the defendant/respondent against the whole of the orders made by the Master on 13 September 1996 be allowed. 3. The said orders be set aside and the originating notice of motion dated 20 August 1996 be dismissed. 4. The plaintiff/applicant pay the defendant/respondent's costs of both appeals and of the proceedings before the Master.

DECISION

MILES CJ
1. This is an application under O.32 r.14, the "slip rule". On 7 February 1997 I granted leave to the plaintiff/applicant to file out of time a notice of appeal against the Master's decision of 13 September 1996, there being no provision in the Rules for the filing of a cross-appeal. For reasons I had already given immediately before granting leave, I went on to make orders intended to be in accordance with those reasons in order to determine both the appeal brought by the plaintiff/applicant and the appeal brought by the defendant/respondent against the same decision of the Master.

2. As Mr. Stretton, for the defendant/respondent, has submitted (and it is not disputed) the orders made by me are not in accordance with the reasons given and do not reflect my intention. The appeal by the plaintiff/applicant sought to set aside only in part the orders made by the Master under O.34A r.3 and by inference it sought to preserve the remainder of the Master's order. Insofar as I was of the view (which I expressed in the reasons) that the appeal brought by the defendant/respondent should succeed and the whole of the Master's orders be set aside, I should not have ordered that both appeals be allowed.

3. The orders made by me on 7 February 1996 are vacated and in lieu thereof I substitute the following: 1. The appeal brought by the plaintiff/applicant against part of the orders made by the Master on 13 September 1996 is dismissed. 2. The appeal brought by the defendant/respondent against the whole of the orders made by the Master on 13 September 1996 is allowed. 3. The said orders are set aside and the originating notice of motion dated 20 August 1996 is dismissed. 4. The plaintiff/applicant is to pay the defendant/respondent's costs of both appeals and of the proceedings before the Master.