Brooker v Friend & Brooker Pty Ltd & Anor (No 2)

[2008] NSWCA 129

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Judgments and orders
3. › Recall of reasons for judgment
4. › Whether court proceeded on misapprehension of fact or law
5. › Whether process irregularity demonstrated
6. › Whether exceptional circumstances exist to justify recall
1. Practice and Procedure
2. › Judgments and orders
3. › Recall of reasons for judgment
4. › Principles governing recall before entry of orders
5. › Public interest in finality of litigation
6. › Whether failure to present argument well is sufficient ground
1. Practice and Procedure
2. › Appeals
3. › Court of Appeal
4. › Power to give judgment nature of case requires
5. › Refinement of issues on appeal
6. › Whether narrower relief within scope of pleadings
7. › Supreme Court Act 1970 (NSW), s 75A(5), (10)
8. › Uniform Civil Procedure Rules 2005 (NSW), r 51.52
1. Practice and Procedure
2. › Pleadings
3. › Alternative claims
4. › Whether narrower claim pleaded in alternative to general accounting
5. › Whether relief confined to single transaction within scope of pleading

Quick Take

A court will not recall published reasons merely because a party failed to present its argument as well as it might have been put, or because it now wishes to re-agitate arguments already considered. The applicant must demonstrate that the court proceeded on a misapprehension of fact or law not attributable solely to the applicant's neglect or default. The Court of Appeal's power under s 75A(10) and UCPR r 51.52 permits refinement of issues on appeal and the grant of narrower relief within the scope of the pleadings, even where the primary claim fails.