Killen v Rennie & 1 Ors [2006] NSWCA 189 (14 July 2006)

Last Updated: 17 July 2006

NEW SOUTH WALES COURT OF APPEAL

CITATION: Killen v Rennie & 1 Ors [2006] NSWCA 189



FILE NUMBER(S):
40054/04
40044/04

HEARING DATE(S): In Chambers

DECISION DATE: 14/07/2006

PARTIES:
Rosanne Lyle Fulton KILLEN (Appellant)
Kenneth John RENNIE (First Respondent)
AROONA DEVELOPMENTS PTY LIMITED (in liquidation) ACN 008 441 129 (Second Respondent)

JUDGMENT OF: Mason P Santow JA Brownie AJA

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:


SOLICITORS:
McKells Solicitors (Appellant)
Hugh & Associates (First Respondent)
Watson Mangioni (Second Respondent)

CATCHWORDS:
VARIATION OF ORDER made in judgment [2005] NSWCA 392 dated 15 November 2005

LEGISLATION CITED:
Uniform Civil Procedure Rules 2005, r36.17

DECISION:
ORDER that Order 3 made in proceedings No CA 40054/04 and CA 40044/04 by judgment dated 15 November 2005 be vacated and replaced with the following order:
“The second respondent to pay the costs of the appellant and of the first respondent in this Court and in the court below but to have with respect to the former a certificate under the Suitors Fund Act 1951 if otherwise qualified.”


JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40054/04

CA 40044/04

MASON P

SANTOW JA

BROWNIE AJA

14 JULY 2006

Rosanne Lyle Fulton KILLEN v Kenneth John RENNIE & 1 Ors

Judgment

1 THE COURT: In its judgment published on 15 November 2005, the Court made the following Order 3 in this matter:

“The respondents to pay the appellant’s costs in this Court and in the court below but to have with respect to the former a certificate under the Suitors Fund Act 1951 if otherwise qualified.”

2 Following the handing down of this judgment, correspondence was received by the Court relating to an error in the terms of Order 3 on the basis that the first respondent, Mr Rennie, had not taken any part in the hearing of the appeal beyond submitting an appearance and that accordingly the costs order should only have been made against the second respondent. Mr Rennie was the liquidator of Rotor-Work Pty Ltd, a Killen family company, but had no position within the second respondent, Aroona Developments Pty Ltd.

3 The chronology of the key pieces of correspondence on this issue can be summarised as follows:
(a) Letter from Mr A E F Rofe AM, brother of the successful appellant, to the Associate to Justice Santow dated 1 March 2006;
(b) Faxed letter from Associate to Justice Santow to the solicitors for the parties (copied to Mr A E F Rofe AM) dated 9 March 2006 attaching the letter from Mr A E F Rofe;
(c) Letter from McKell’s to the Associate to Justice Santow dated 28 March 2006 with a second letter of that date correcting the first letter;
(d) Faxed letter from Watson Mangioni to the Associate to Justice Santow dated 30 March 2006;
(e) Faxed letter from Hugh & Associates to the Associate to Justice Santow dated 30 March 2006;
(f) Faxed letter from Mr B G L Killen (husband of the successful appellant) to the solicitors for the first and second respondents (copied to the Associate to Justice Santow) dated 5 April 2006 with a second letter dated 6 April 2006 correcting errors in the first letter;
(g) Faxed letter from Associate to Justice Santow to the solicitors for the parties (copied to Mr A E F Rofe and Mr B G L Killen) dated 7 April 2006;
(h) Letter from Mr B G L Killen to the Associate to Justice Santow dated 12 April 2006, attaching a copy of the legal costs of Ms Killen for the appeal;
(i) Faxed letter from Associate to Justice Santow to the solicitors for the parties dated 13 April 2006;
(j) Letter from Mr A E F Rofe AM to the Associate to Justice Santow dated 1 May 2006 withdrawing form the course of correspondence;
(k) Faxed letter from Watson Mangioni to the Associate to Justice Santow dated 19 May 2006.

4 In our opinion the oversight identified through this correspondence is sufficient to attract the exercise of the ‘slip rule’. Accordingly, this Court acts pursuant to Rule 36.17 of the Uniform Civil Procedure Rules 2005, as a consequence whereof the Court makes the following order:

ORDER that Order 3 made in proceedings No CA 40054/04 and CA 40044/04 by judgment dated 15 November 2005, be vacated and replaced with the following order:

“The second respondent to pay the costs of the appellant and of the first respondent in this Court and in the court below but to have with respect to the former a certificate under the Suitors Fund Act 1951 if otherwise qualified.”

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LAST UPDATED: 14/07/2006