Trajkovski v Asiapac Securities Pte Ltd (No 2)

1. [1]

   HER HONOUR: On 8 August 2015, I delivered judgment in Trajkovski v Asiapac Securities Pte Ltd [2015] NSWSC 1432. In that judgment I declined to make an order that the defendant provide security for costs of the cross claim. Paragraphs [4] to [8] of the defendant’s notice of motion filed 20 April 2015 was stood over to a directions hearing before the Registrar at 9.00 am on 29 October 2015 and the balance of the notice of motion was dismissed.

2. [2]

   The parties agree that paragraphs [4] to [8] should have been dismissed. I make that order.

Submissions

1. [3]

   The defendant has requested the Court make a variation of these orders pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). It reads:

2. [4]

   Counsel for the plaintiffs has drawn my attention to remarks passed by me in a discussion with him during the hearing when he said that substantive agreements existed on the making of an order for security for costs against the defendant. Counsel for the plaintiff submitted that the agreements were that security ought to be ordered in principle; the quantum should be $60,000; and that the only dispute was regarding a costs order in respect of the application for security for costs.

3. [5]

   According to the defendant, in the preparation of the judgment he says that I overlooked these agreements and the orders should be varied pursuant to UCPR 36.17.

4. [6]

   Counsel for the defendant opposes the variation of the orders and says that the slip rule does not apply where the alleged mistake is a consequence of a deliberate decision: see Expo Aluminium (NSW) Pty Ltd v Pateman Pty Ltd (No 2) (NSWCA, Kirby P, Meagher and Samuels JJA, 29 April 1991, unreported) and Newmont Yandal Operations Pty Ltd v The J Aron Corp [2007] NSWCA 195 (“Newmont Yandal”).

5. [7]

   Counsel for the defendant submitted that the plaintiffs do not correctly state the grounds for the current application. The defendant says that some relied upon were “not sought”. They are that the Court dismissed the application for security for costs when it was common ground at the hearing that Asiapac should give security and the quantum of it, leaving in dispute only whether the security ought to be in a form satisfactory to a registrar or otherwise escrowed; and the costs of that part of the application. Counsel for the defendant says that this is not a matter of clerical mistake, but an error arising from an accidental slip.

6. [8]

   Counsel for the defendant submitted that while the slip rule can apply even if there are different possible corrections, the choice between the corrections cannot involve a matter of controversy of substance or require the exercise of an independent discretion: see Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 390-392.

7. [9]

   There is no suggestion that the advent of the Civil Procedure Act 2005 (NSW) and the UCPR have narrowed the scope of the slip rule. UCPR 36.17 is to be applied having regard to the overriding purpose in s 56 of Civil Procedure Act: see Newmont Yandal at [113]. Counsel for the defendant submitted that in Newmont Yandal the Court of Appeal at [116] made clear that the words “error” and “correct” in the slip rule should not be given a narrow interpretation.

8. [10]

   Counsel for the defendant submitted that in this case, the matter is not a “slip” but rather an appeal and the Court should not grant the relief sought by the plaintiff for the following reasons:

9. [11]

   For these reasons, counsel for the defendant submitted that the Court ought not vary the orders made in Trajkovski v Asiapac Securities Pte Limited [2015] NSWSC 1432.

10. [12]

    Mr Parsons appeared for the plaintiffs. Mr Mirzai appeared for the defendant. The relevant portion of the transcript is as follows:

Conclusion

1. [13]

   Initially, the parties indicated that they agreed on the amount of $60,000 for security for costs at $60,000 but this was subject to conditions that were not agreed upon. Mr Mirzai then stated that there would be some off setting exercise and the amount of costs owed would be far less than $60,000. He asked if in those circumstances the Court would be minded to order security for costs.

2. [14]

   In Trajkovski v Asiapac Securities Pet Ltd [2015] NSWSC 1432 at [61], I concluded that while I accepted that Asiapac is registered in Singapore, nevertheless I was satisfied that it is in a position to pay the costs of Ashlee Holdings Pty Ltd and the Trajkovskis’ claims, should they be successful. The threshold issue had not been satisfied so I declined to order that Asiapac provide security for costs. In reaching that conclusion, I did so after a deliberate consideration of the issues.

3. [15]

   In these circumstances, the application of the slip rule is not appropriate. I decline to amend this order.