Perpetual Trustees Victoria Limited v Mason
[2022] QDC 262
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- Unreported Judgment
- Perpetual Trustees Victoria Limited v Mason[2022] QDC 262
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Perpetual Trustees Victoria Limited v Mason[2022] QDC 262
Perpetual Trustees Victoria Limited v Mason[2022] QDC 262
DISTRICT COURT OF QUEENSLAND
CITATION: | Perpetual Trustees Victoria Limited v Mason [2022] QDC 262 |
PARTIES: | PERPETUAL TRUSTEES VICTORIA LIMITED ACN 004 027 258 (Plaintiff) v ELIZABETH LOUISE MASON (Defendant) |
FILE NO: | 2610/18 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane District Court |
DELIVERED ON: | 23 November 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 22 November 2022 (on the papers) |
JUDGE: | Porter KC DCJ |
ORDERS: | Order 2 made 11 November 2022 be corrected to read as follows: “2. The defendant give possession of the land described as Lot 6 on Building Unit Plan 5632 being the whole of the land contained in Title Reference Number 16479157 to the plaintiff.” |
CATCHWORDS: | COURT PRACTICE AND PROCEDURE – QUEENSLAND CIVIL PROCEDURE – JUDGMENTS – FORM OF ORDERS – Where an error in the form of orders was raised by the plaintiff – where the error arose from accidental slip. |
LEGISLATION: | Uniform Civil Procedure Rules 1999 r 388 |
SOLICITORS: | Thomson Geer for the Plaintiff Ms Mason made written submissions in person |
- [1]On 11 November 2022, I granted Perpetual’s application for summary judgment for the reasons set out in that judgment: Perpetual Trustees Victoria Limited v Mason [2022] QDC 246. I made the following orders:
- The defendant pay the plaintiff $376,733.01.
- The defendant give possession of the land described as Lot 6 on Building Unit Plan 5632 being the whole of the land contained in Title Reference Number 164971157 to the plaintiff.
- The defendant pay the plaintiff’s costs of the application and the proceeding on a standard basis.
- [2]Ms Mason had had counsel in the hearing of the application but appeared unrepresented at the delivery of judgment.
- [3]On 16 November 2022, Perpetual’s solicitor, Ms Morrow, sent an email to my associate in the following terms:
Dear Associate
An issue has arisen with the form of the order included in the Court’s judgment published on 11 November 2022. It appears there is a typographical error in paragraph 2 of the Orders, which refers to the title reference '164971157' as opposed to '16479157'. The Orders have not yet been formally taken out. The Plaintiff wishes to have the Orders corrected pursuant to rule 388(2) of the Uniform Civil Procedure Rules 1999 (Qld).
We sought the Defendant's consent to raise this issue with the Court on Friday, 11 November 2022, but have not yet received a response.
It seems to us that the matter is unlikely to be controversial, and we wonder whether the Court would be prepared to consider the matter without the need for a hearing. However, in the event that the Court considers it more appropriate to relist the matter, the Plaintiff’s representatives would be available at the Court's convenience.
- [4]A comparison of the title reference number in order 2 to the title reference number in evidence confirmed Ms Morrow’s observation. Nonetheless, given Ms Mason was self-represented, I caused my associate to write to Ms Mason, by email, in the following terms:
Dear Parties,
his Honour has looked at the matter raised in the below email. Perpetual contends that the inclusion of the extra “1” in the title reference is an accidental slip. The Title Reference in the title search in the evidence shows that the title reference is as Perpetual submits. And that is also the title reference in the claim.
Rule 388 Uniform Civil Procedure Rules provides:
388 Mistakes in orders or certificates
(1) This rule applies if—
(a) there is a clerical mistake in an order or certificate of the court or an error in a record of an order or a certificate of the court; and
(b) the mistake or error resulted from an accidental slip or omission.
(2) The court, on application by a party or on its own initiative, may at any time correct the mistake or error.
(3) The other rules in this part do not apply to a correction made under this rule.
It does appear that the inclusion of the extra “1” was an accidental slip. His Honour is inclined to correct the slip of his own motion without requiring a formal application by Perpetual.
However, given that Ms Mason appears to be self-represented, his Honour will not make an order under Rule 388 until 4pm on Monday 22 November 2022. If Ms Mason wishes to contend that a correction should not be made, she should send her contentions in writing to me before that time. If his Honour does not hear from Ms Mason before that time, he will make the order. If Ms Mason does put in written submissions on the issue, his Honour will deal with the issues raised without an oral hearing
- [5]A little later that day, Ms Morrow sent a further email identifying another apparent mistake in the title reference in order 2. She submitted that the 4th and 5th numbers in the title reference included in Order 2 of the Judgment (being the 9 and 7) have been switched. That was consistent with her earlier email. That observation was also correct when compared to the title reference in evidence. I caused my associate to communicate to Ms Mason that she ought also to address that point if she wished and extended her time to respond.
- [6]On 22 November 2022, Ms Mason provided three pages of written submissions. These did not address the question of correction of the alleged slip.
- [7]The certificate of title in evidence gives the title reference number as 16479157. Order 2 fails accurately to record that number by error. I order that order 2 be corrected pursuant to Rule 388(2) to provide:
- The defendant give possession of the land described as Lot 6 on Building Unit Plan 5632 being the whole of the land contained in Title Reference Number 16479157 to the plaintiff
- [8]It remains to deal with what was in Ms Mason’s submissions. Those submissions purport to be submissions on costs orders made in the application and proceedings on 11 November 2022.
- [9]On 3 November 2022, my associate gave the parties notice by email that judgment would be handed down on 11 November 2022. On 10 November, she sent an email asking the parties to be in a position to give submissions on costs if possible.
- [10]On 11 November, after judgment was delivered, Perpetual advanced submissions on costs seeking costs on an indemnity basis based on certain provisions in the loan agreements and Mortgage. I was not persuaded by those submissions. Perpetual sought costs on a standard basis in the alternative.
- [11]Perpetual did not lead any evidence of any relevant offer, whether under the Rules or made as a Calderbank offer. Nor could Perpetual identify any relevant offer from Ms Mason. I asked Ms Mason about that matter as well. No evidence of any offer was put before me.
- [12]It seemed to me that there was little prospect of any order being made, given my reasons and those submissions, other than that Ms Mason pay Perpetual’s costs on a standard basis. I did consider giving Ms Mason time to further consider her position on costs, but ultimately did not do so. Ms Mason did not oppose that course.
- [13]Her submissions sent on 22 November seek to re-open the issue of costs. If Ms Mason was a solicitor, those submissions should not have been provided without prior consent of Perpetual, failing which the matter would have to be mentioned in Court. However, Ms Mason is not bound by the rules of conduct which bind solicitors and barristers.
- [14]Perpetual have not responded to those submissions. I did not expect them to do so, without being asked to do so by the Court, in the circumstances I have outlined.
- [15]Bearing in mind Ms Mason is acting for herself, I read her submissions. None of those submission provide a basis to reconsider the costs order made on 11 November 2022. I will place those submissions on the file. I observe for the avoidance of doubt, however, that those submissions do not disclose any justification for suggesting that Perpetual’s solicitors acted improperly. Care must be taken, even by litigants in person, in making allegations of that kind.