Evans v Smith (No 2)

[2025] NSWCA 139

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Judgments and orders
3. › Amending, varying and setting aside
4. › Recall of perfected orders
5. › Rule 36.16(3A) UCPR
6. › Whether court proceeded under misapprehension of fact
7. › Whether interests of justice outweigh finality
8. › Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A)
1. Costs
2. › Party/party costs
3. › Application for variation of costs orders after judgment
4. › Whether late concession justified apportionment of costs across issues
5. › Uniform Civil Procedure Rules 2005 (NSW), r 42.1
1. Costs
2. › Indemnity costs
3. › Whether unsuccessful motion was so hopeless as to warrant indemnity costs

Quick Take

A perceived misapprehension of fact by the court does not warrant recall of perfected orders under r 36.16(3A) UCPR where the court's reasoning is in fact consistent with the orders made, even if the applicant misunderstood the basis of the reasoning.