Motor Yacht Sales Australia Pty Ltd t/as the Boutique Boat Company v Cheng (No 2)

[2021] NSWSC 1281

Supreme Court

New South Wales

Medium Neutral Citation:	Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company v Cheng (No 2) [2021] NSWSC 1281
Hearing dates:	On the papers
Date of orders:	8 October 2021
Decision date:	08 October 2021
Jurisdiction:	Common Law
Before:	Payne JA
Decision:	Vary order 2 made on 10 September 2021 in Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company v Cheng [2021] NSWSC 1141 to substitute the word “proceedings” for “trial”.
Catchwords:	JUDGMENTS AND ORDERS — amending, varying and setting aside — correction under slip rule
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 36.17
Category:	Consequential orders
Parties:	Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (Plaintiff; Cross-Defendant) Jian Ling Cheng (Defendant; Cross-Claimant)
Representation:	Counsel: M Hall (Plaintiff; Cross-Defendant) J Mitchell (Defendant; Cross-Claimant) Solicitors: Pure Legal (Plaintiff; Cross-Defendant) Luminous Legal (Defendant; Cross-Claimant)
File Number(s):	2018/356960
Publication restriction:	Nil

Judgment

1. On 10 September 2021, I delivered judgment in these proceedings concerning a contract for the sale of a 48-foot yacht entered into in 2016: Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company v Cheng [2021] NSWSC 1141. Familiarity with those reasons is assumed and the same abbreviations will be used in this judgment. I made the following orders:

Amended statement of claim

1. Defendant to pay the plaintiff damages in the sum of $62,720;

2. Defendant to pay the plaintiff’s costs of the trial;

3. Pursuant to s 100 of the Civil Procedure Act 2005 (NSW), defendant to pay pre-judgment interest on the principal sum of $62,720 for the period from 10 January 2017 to 10 September 2021 at the rate identified by Practice Note SC Gen 16.

Amended statement of cross-claim

4. Cross-claim dismissed with costs.

2. In relation to costs, my reasons were as follows:

“Costs of the trial

[198]   MYSA has succeeded, albeit in recovering a much smaller amount than that claimed. Costs ordinarily follow the event. I have given consideration as to whether there were separable issues such that a differential award of costs should be made: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296.

[199]   Although MYSA failed to recover a substantial part of the damages it claimed, this case was made much more complicated than it needed to be by the conduct of Ms Cheng. MYSA was forced to defend a multitude of issues raised about liability. The central issue raised on liability was based on evidence from Ms Cheng and Mr Cheng Shu which I have concluded cannot be accepted. This is not a case that lends itself to treating the issues as separable such that a set-off in relation to costs would be appropriate. Much less do I conclude that the outcome of any such set-off would be that there be no order as to costs. MYSA is entitled to its costs of the claim.”

3. On 2 October 2021, my associate received an email from the solicitor for MYSA requesting that the word “trial” in order 2 be amended to the word “proceedings” pursuant to the “slip rule”, r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW).

4. On 6 October 2021, I granted leave to each party to file a submission addressing the question of whether an amendment to the orders pursuant to the slip rule in the terms sought by MYSA should be made.

5. MYSA filed short submissions on 7 October 2021. On 8 October 2021, Ms Cheng filed submissions indicating that she does not have a position as to whether the reference to the “trial” was an error and that she would be content for me to make any order that I consider appropriate in the circumstances.

6. I regard it as tolerably clear that the effect of my order, as made, is that Ms Cheng pay MYSA’s costs of the proceedings. I certainly did not intend to limit the costs payable by Ms Cheng to the four days of trial on 24-26 and 28 May 2021. Accordingly, to avoid any possible argument that order 2 should be construed as limited to the costs of four days of trial, I will amend my order pursuant to UCPR r 36.17. I make the following order:

1. Vary order 2 made on 10 September 2021 in Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company v Cheng [2021] NSWSC 1141 to substitute the word “proceedings” for “trial”.

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