Malouf v Prince (No 2)

[2010] NSWCA 51

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Judgments and orders
3. › Setting aside or varying after entry
4. › Notice of motion filed within 14-day time limit
5. › Amended notice of motion filed outside time limit seeking more extensive orders
6. › Whether power to entertain amended application
7. › Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A), (3C)
1. Practice and Procedure
2. › Judgments and orders
3. › Setting aside or varying after entry
4. › Finality of judgments
5. › Whether court may dispense with rules under s 14 Civil Procedure Act 2005 (NSW)
6. › Whether dispensing power overcomes general rule against recalling perfected orders
7. › Civil Procedure Act 2005 (NSW), s 14
8. › Bailey v Marinoff (1971) 125 CLR 529
1. Practice and Procedure
2. › Costs
3. › Variation of costs order
4. › Whether costs order should be varied where leave to appeal refused on basis injustice remedied by stay
5. › Whether primary judge's factual findings affected by appellable error
6. › Fox v Percy (2003) 214 CLR 118
1. Appeal
2. › Leave to appeal
3. › Factual findings of primary judge
4. › Whether findings inconsistent with incontrovertible fact, glaringly improbable or contrary to compelling inference
5. › Fox v Percy (2003) 214 CLR 118

Quick Take

A notice of motion filed within the 14-day period under UCPR 36.16(3A) only preserves the Court's power to set aside or vary the specific judgment or order challenged in that notice of motion. An amended notice of motion filed outside the 14-day period cannot expand the scope of the challenge to orders not originally challenged. Even if s 14 CPA could dispense with the requirements of UCPR 36.16, the applicant would still need to overcome the general rule in Bailey v Marinoff against recalling perfected orders. The question whether s 14 CPA can dispense with UCPR 36.16 requirements was left open.