SAS Trustee Corporation v Arthur Cox (No 2)

[2012] NSWCA 9

Court of Appeal

New South Wales

Case Title:	SAS Trustee Corporation v Arthur Cox (No 2)
Medium Neutral Citation:	[2012] NSWCA 9
Hearing Date(s):	On the papers
Decision Date:	13 February 2012
Jurisdiction:
Before:	McColl JA; Campbell JA; Sackville AJA
Decision:	(a) Vary order 4 made on 20 December 2011 to read: "4. Respondent to pay the costs of the appeal but to have a certificate under the Suitor's Fund Act 1951 if otherwise qualified. (b) Respondent to pay the costs of the notice of motion filed on 23 December 2011. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
Legislation Cited:	Suitor's Fund Act 1951
Cases Cited:	SAS Trustee Corporation v Arthur Cox [2011] NSWCA 408
Texts Cited:
Category:	Costs
Parties:	SAS Trustee Corporation - Appellant Arthur Cox - Respondent
Representation
- Counsel:	T Ower - Appellant G Lindsay SC with P O'Rourke - Respondent
- Solicitors:	SAS Trustee Corporation - Appellant Oates and Smith Solicitors - Respondent
File number(s):	CA 2009/326261
Decision Under Appeal
- Court / Tribunal:
- Before:	Ashford DCJ
- Date of Decision:	26 November 2009
- Citation:
- Court File Number(s)	RJ540 of 2008
Publication Restriction:	No

Judgment

1. THE COURT: Judgment in these proceedings was handed down on 20 December 2011: SAS Trustee Corporation v Arthur Cox [2011] NSWCA 408. The Court allowed the appeal, made other orders it is not necessary to repeat and ordered the respondent to pay the costs of the appeal. At the time judgment was handed down the respondent's legal representatives sought a certificate under the Suitor's Fund Act 1951. Campbell JA, who handed down the Court's reasons, directed that any application for that relief be made by notice of motion.

2. The Court's orders were entered on 20 December 2011. On 23 December 2011 the respondent's legal representatives filed a notice of motion seeking orders granting a certificate under the Suitor's Fund Act and that costs be costs in the cause. The appellant consents to the application for a certificate under the Suitor's Fund Act , but opposes the costs order sought. It contends that any order for costs should follow that granted in disposing of the appeal.

3. The Court has power to vary the orders made on 20 December 2011 having regard to the fact that the notice of motion seeking the Suitor's Fund certificate was filed within 14 days after the orders were entered: Uniform Civil Procedure Rules 36.16(3A). The Court is of the view that it should vary its 20 December 2011 orders to grant the respondent a certificate under the Suitor's Fund Act . However the making of that order is a matter which, had it been sought by the respondent during submissions on the appeal, would have been made at the time the principal orders were made, thus rendering the notice of motion unnecessary. Accordingly the Court is of the view that the costs of the motion should be paid by the respondent.

4. The Court makes the following orders:

   (a) vary order 4 made on 20 December 2011 to read:

   "4. Respondent to pay the costs of the appeal but to have a certificate under the Suitor's Fund Act 1951 if otherwise qualified.

   (b) respondent to pay the costs of the notice of motion filed on 23 December 2011.

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