Brown v The Stables Perisher Management Pty Ltd (No 4)

BELL CJ: By order 1 of my judgment of 14 June 2024, the Defendant was ordered to pay to the First Plaintiff by way of account the sum of $88,336.20 with interest at Court rates from 6 August 2021.

By order 2, the Defendant was ordered to pay to the Second and Third Plaintiffs by way of account the sum of to $4,406.85 plus interest at Court rates from 20 June 2021.

My reasons for judgment in Brown v The Stables Perisher Management Pty Ltd (No 3) [2024] NSWSC 720 supplied the reasons for those orders.

On 27 June 2024, my Associate received the following letter from the solicitor for the Defendant:

This letter was not accompanied by any Notice of Motion or submissions other than the bare assertion contained in it.

The Plaintiffs were invited to respond to the letter, which it did in the form of short written submissions dated 16 July 2024. Unsurprisingly, they contended that there was no basis to take such steps to reconsider the judgment that had been delivered the previous month and that, to do so, would be to subvert the appeal process.

This matter has a long history. An initial judgment was delivered on 21 December 2021 (Brown v The Stables Perisher Management Pty Ltd [2021] NSWSC 1688), a second judgment on 6 July 2022 (Brown v The Stables Perisher Management Pty Ltd (No 2) [2022] NSWSC 902) and a third judgment, as noted above, was delivered on 14 June 2024.

The Plaintiffs in their submissions recounted the back and forth of submissions and evidence leading to the third judgment delivered earlier this year, noting that “not once during the course of submissions throughout 2024 and despite the relief sought in the Plaintiffs’ submissions dated 18 July 2022 did the Defendant assert that it had already accounted to the Plaintiffs in respect of those matters.” Rather, the Defendant had claimed, in an argument rejected in the third judgment, that the amounts claimed were not outstanding by reason of a Deed of Consent to Transfer executed in 2019.

The Plaintiffs submitted that the Defendant’s application was not one in the nature contemplated by r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), the slip rule in r 36.17 of the UCPR or by reason of matters arising subsequent to delivery of the third judgment.

The Plaintiffs’ submitted (omitting references) that:

The Plaintiffs continued:

These submissions are sound.

No basis has been advanced beyond mere assertion to support the relief sought somewhat irregularly by the Defendant. The history of this litigation has been one where the deficiency of the evidence advanced on behalf of the Defendant has been a feature. The Defendant had ample opportunity to adduce satisfactory accounting evidence and submissions in support of its position. This it has regularly failed to do, and the informal application by letter to my chambers was no better.

I decline to exercise the discretion sought, essentially for the reasons advanced by the Plaintiffs and as noted above at [8]-[11]. The important principle of finality required no less.

Treating as I have the letter of 27 June 2024 as an application to vary my orders of 14 June 2024, I dismiss that application with costs.