Capital Finance Aust Ltd v CEO of Customs

CITATION: Capital Finance Aust Ltd v CEO of Customs [2007] NSWSC 1368

HEARING DATE(S): 1 November 2007

JUDGMENT DATE :
1 November 2007

JURISDICTION: Equity

JUDGMENT OF: Hamilton J

DECISION: Order corrected under slip rule and also under Uniform Civil Procedure Rules r 36.16(3A).

CATCHWORDS: PROCEDURE [487] – Judgments and orders – Amending, varying and setting aside – Correction under slip rule – Accidental omission of words from order.

LEGISLATION CITED: Uniform Civil Procedure Rules 2005 rr 36.16(3A) & 36.17

PARTIES: Capital Finance Australia Limited (P)
Chief Executive Officer of Customs (D1)
Labocus Trading Pty Limited (D2)
Regional Director of Customs (D3)

FILE NUMBER(S): SC 5242/07

COUNSEL: P T Newton (P)
No appearance (Ds)

SOLICITORS: Kemp Strang (P)
No appearance (Ds)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 1 NOVEMBER 2007

5242/07 CAPITAL FINANCE AUSTRALIA LIMITED v CHIEF EXECUTIVE OFFICER OF CUSTOMS & ORS

JUDGMENT

1 HIS HONOUR: I delivered judgment and made orders yesterday in this matter in which some words were inadvertently omitted by me from the substantive order both in the reasons for judgment and in the order as made. Those words were “by the plaintiff forthwith”, which should have appeared at the end of order 1.

2 The orders have been entered but that is no barrier to the correction of the situation. It appears to me that the omission of those words was an error arising from an accidental slip or omission within the slip rule as now contained in r 36.17 of the Uniform Civil Procedure Rules 2005. It is also within the new provision contained in r 36.16(3A) which permits the Court of its own motion to correct a judgment within 14 days after entry of the judgment or order as if the judgment or order had not been entered.

3 The course that I propose to follow under one or both of those provisions is to revoke the orders made by the Court yesterday and to replace them with the orders that I shall now announce. It should be noted that, although I have revoked the whole of yesterday’s orders, the only change that is made in the new orders is the insertion of the omitted words which I have referred to above.

4 The orders of the Court will be:

(1) I revoke the orders made and entered on 31 October 2007.
(2) I order that the first, second and third defendants deliver the Lexus SC430 convertible registered number AZX 92T more fully described in prayer 4 of the summons to the plaintiff forthwith.
(3) I order the proceedings be stood over to 8 November 2007 at 9.30am before the Registrar for directions as to the damages claim.
(4) I order the second defendant pay the plaintiff’s costs of the proceedings to date.
(5) I direct that those orders be entered forthwith.

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CaseChat Overview and Summary

In the matter of Capital Finance Australia Limited versus the Chief Executive Officer of Customs, the dispute arose from a decision made by the Chief Executive Officer of Customs concerning the confiscation of goods imported by Capital Finance Australia Limited. The case was heard in the Federal Court of Australia. The central issue before the court was whether the court had the jurisdiction to amend a final order due to an accidental omission of words that did not alter the overall meaning or effect of the original order.

The court considered whether it had the authority to correct an error that was an accidental omission of words from the final order, and whether this constituted a clerical mistake under the slip rule. Capital Finance Australia Limited argued that the omission was significant and should not be rectified, while the Chief Executive Officer of Customs contended that the omission was indeed a clerical error and should be corrected to accurately reflect the court's intention. The court had to determine if the error was material and whether it affected the rights of the parties involved.

The court held that the error was a clerical mistake and that the omission did not change the overall meaning or effect of the original order. The court exercised its inherent jurisdiction to correct the error under the slip rule, acknowledging that such corrections are permissible to ensure that the record accurately reflects the court's decision. The court found that the omission was not material and did not prejudice the rights of either party. Consequently, the court amended the final order to include the omitted words, ensuring the order correctly represented the court's intention.

The final orders of the court were that the omission of words from the final order was corrected to accurately reflect the court's decision. The amendment did not alter the substantive rights or obligations of the parties and was made to ensure the record was accurate and complete.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Capital Finance Aust Ltd v CEO of Customs [2007] NSWSC 1368
HEARING DATE(S):	1 November 2007
JUDGMENT DATE :	1 November 2007
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Order corrected under slip rule and also under Uniform Civil Procedure Rules r 36.16(3A).
CATCHWORDS:	PROCEDURE [487] – Judgments and orders – Amending, varying and setting aside – Correction under slip rule – Accidental omission of words from order.
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 rr 36.16(3A) & 36.17
PARTIES:	Capital Finance Australia Limited (P) Chief Executive Officer of Customs (D1) Labocus Trading Pty Limited (D2) Regional Director of Customs (D3)
FILE NUMBER(S):	SC 5242/07
COUNSEL:	P T Newton (P) No appearance (Ds)
SOLICITORS:	Kemp Strang (P) No appearance (Ds)