Australia, April 27 -- New South Wales Land and Environment Court issued text of the following judgement on March 28:
1. THE COURT: By notice of motion filed on 27 November 2024, the respondent (Ms Marmara) applies to vary the costs order made by this Court when it dismissed the appellant's (Kmart) appeal on 21 October 2024.
2. The basis for the application is an offer of compromise purportedly served under r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) on behalf of Ms Marmara on 24 May 2024. The application has been determined on the papers, the parties having served written submissions on 16 and 19 December 2024.
3. The application should be refused, both because it was brought out of time and because it lacks merit.
4. The application was brought out of time
The notice of motion relevantly seeks the following two orders.
"1) ORDER: Vacate the costs order made on 21 October 2024.
2) ORDER: The appellant pay the respondent's costs of the appeal on the ordinary basis up to and including 24 May 2024 and thereafter on the indemnity basis."
5. The order made on 21 October 2024 was: "Appeal dismissed with costs." The costs payable under the costs component of that order are to be assessed on the ordinary basis: UCPR, r 42.2.
6. Ms Marmara does not identify, either in the notice of motion itself or in her written submissions filed on 16 December 2024, the power of the Court that she seeks to invoke to vary the costs order made on 21 October 2024.
7. That order was a final order of the Court disposing of the appeal. By UCPR, r 36.11(2), the order is taken to have been entered when it was recorded in the Court's computerised record system. That occurred on 21 October 2024.
8. As a general rule, the Court has no power to vary a judgment or order once it has been entered. In the well-known passage in Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 at 530 Barwick CJ said:
"Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed."
9. That general rule is subject to express rules of court. Significant in the context of an application to vary a final costs order is UCPR, r 36.16(3A). Rule 36.16 relevantly provides as follows:
36.16 Further power to set aside or vary judgment or order
(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.
...
(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.
...
(3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B).
...
10. Thus, as White JA said in Oikos Constructions Pty Ltd (t/as Lars Fischer Construction) v Ostin (No 2) [2021] NSWCA 98 at [35] (Basten and Macfarlan JJA agreeing), the "general rule is that a final costs order, once entered, cannot be varied unless a notice of motion is filed within 14 days after entry".
11. As already noted, the order made on 21 October 2024 is taken to have been entered on 21 October 2024. Ms Marmara's notice of motion was not filed until 27 November 2024. That was well outside the 14 day period specified in subrules (3A) and (3C).
12. Ms Marmara's solicitor made an affidavit on 19 November 2024 which should be treated as read on the notice of motion. Although the affidavit refers to communications between the parties, there is no suggestion that within the 14 day period Ms Marmara made any informal application to the Court to set aside or vary the order made on 21 October 2024, or that she gave notice to the Court of any intention to make such an application (cf., Oikos Constructions at [36]-[37]; Aukuso v Tahan [No 2] [2018] NSWCA 302 at [29]-[46] (Simpson AJA, Macfarlan JA agreeing)).
*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/195d500e80f4e28ff92c2097)
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