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

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:

In relation to costs, my reasons were as follows:

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).

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.

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.

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: