Brown v The Stables Perisher Management Pty Ltd (No 4) [2024] NSWSC 1153 (16 September 2024)

Last Updated: 16 September 2024

Supreme Court New South Wales

Case Name:	Brown v The Stables Perisher Management Pty Ltd (No 4)
Medium Neutral Citation:	[2024] NSWSC 1153
Hearing Date(s):	On the papers
Date of Orders:	16 September 2024
Decision Date:	16 September 2024
Jurisdiction:	Equity - Real Property List
Before:	Bell CJ
Decision:	Application for Court “on its own motion” to amend the amount stated in order 1 of 14 June 2024 to $7,725.00 refused with costs.
Catchwords:	JUDGMENTS AND ORDERS – Application to vary orders – No issue of principle – Where application not supported by notice of motion or submissions
Category:	Consequential orders
Parties:	Karen Brown (First Plaintiff) Jake Brown (Second Plaintiff) Sam Brown (Third Plaintiff) The Stables Perisher Management Pty Ltd (Defendant)
Representation:	Counsel: Mr B DeBuse (Plaintiffs) Solicitors: Marsdens Law Group (Plaintiffs) Brock Partners (Defendant)
File Number(s):	2020/00217171

JUDGMENT

1. 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.
2. 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.
3. My reasons for judgment in Brown v The Stables Perisher Management Pty Ltd (No 3) [2024] NSWSC 720 supplied the reasons for those orders.
4. On 27 June 2024, my Associate received the following letter from the solicitor for the Defendant:

“We refer to the Judgement [sic] in this matter handed down on 14 June 2024.

We note from paragraph 46 of the Judgement [sic] there is reference to a gross income of $89,360.59 and from paragraph 52 reference to income of $18,121.01 for apartment 26.

Both of these amounts have been extracted from Annexure A annexed to the submissions of the Defendant of 7 March 2022.

Annexure A in respect to apartment 26 with supporting information was provided to the First Plaintiffs solicitors on 21 February 2022.

The amounts of $89,360.59 and $18,121.01 were accounted to the First Plaintiff on 21 February 2022.

Our client accepts the requirement to account for occupation of apartment 26 as set out in paragraph 49 of the Judgement being $10,300 less 25% = $7,725.00.

Our client requests that the Court on its own motion amend the amount stated in Order 1 of 14 June 2024 to $7,725.00.

Our client accepts Order 2 of the Judgement of 14 June 2024.”

5. This letter was not accompanied by any Notice of Motion or submissions other than the bare assertion contained in it.
6. 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.
7. 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.
8. 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.
9. 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.
10. The Plaintiffs’ submitted (omitting references) that:

“The Defendant’s application rather extraordinarily seeks that the trial judge in effect reopen/redetermine the judgment and orders which have been entered. The principles governing the circumstances in which the court should re-open a decision already completed by the making of final orders are well settled.

The jurisdiction to re-open after judgment is discretionary and is to be exercised having regard to the public interest in maintaining the finality of litigation. The policy of finality of litigation underpins the legal system and the entry of judgments assists to achieve that objective. It would be contrary to that overarching principle for the Court to entertain the Defendant’s present application. The Court ought not to permit the litigious saga between the parties to proliferate and deprive the Plaintiffs of the finality of the judgment which has been entered.

Prior to the entry of judgment, the Court has jurisdiction to rehear if the Court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing.”

11. The Plaintiffs continued:

“The Defendant actively participated in the proceedings and the dispute as it related to the further account. In this regard, the Defendant has been given ample opportunity to be heard, and was heard, upon the matters which it now seeks to raise again. Annexure A to the Defendant’s 7 March 2022 submissions which is the document relied upon to assert the misapprehension was considered by His Honour as conceded by the Defendant in the letter from its solicitor dated 27 June.

To the extent that the Defendant contends that Annexure A to the March 2022 submissions was to be construed in some certain way, not once prior to the entry of judgment and despite the issues which had been raised by the Plaintiffs in a long series of submissions, did the Defendant raise the matters which it has now sought to raise.

That is despite that in July 2022 the Defendant was ordered to serve an affidavit which annexed all relevant documentation in relation to the lettings of each apartment and should also provide a calculation of any management fees payable in relation to the income for those periods. The Affidavit subsequently served by the Defendant did not comply with the direction by the Court and there was no source documentation provided as to the letting of each of the apartments. Having failed to comply with the Court’s direction and serving irreconcilable accounts, the Defendant cannot now complain that the Court has made the determination that it did.

This is not a matter where the Defendant is simply seeking an amendment to some mathematical calculations or minor factual issues, what is sought is a review of the findings underpinning the judgment and that is appropriately done by way of an appeal.”

12. These submissions are sound.
13. 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.
14. 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.
15. 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.

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