Hunt Leather Pty Ltd v Transport for NSW [No 2]

On 17 December 2025, the High Court allowed appeals in part in proceedings between Hunt Leather Pty Ltd and others and Transport for NSW. The orders made included dismissal with costs of the appeal and cross-appeal in the Court of Appeal of the Supreme Court of New South Wales, upholding the trial judge's substantive orders and the trial judge's rejection of claims concerning recovery of litigation funding costs. Hunt Leather and Ancio Investments had not sought orders for remittal of the question of the costs of the trial in their notices of appeal or in the section of their written submissions dealing with orders sought. However, a footnote in their written submissions noted that a separate application for leave to appeal from the trial judge's costs orders had been brought in the Court of Appeal, and the body of their submissions maintained that the outstanding costs issue should be referred to the Court of Appeal if the trial judge's substantive orders were reinstated. This costs issue was not repeated in oral submissions, was not the subject of an application to amend the notices of appeal, and was not addressed by Transport for NSW. In making its orders on 17 December 2025, the Court overlooked the footnote. Hunt Leather and Ancio Investments promptly applied to recall and amend the orders before they were perfected by formal entry.

• Whether the High Court has a discretionary power to correct an error or omission in a judgment or order, and what is the source of that power
• Whether the factors supporting the exercise of the discretionary power to correct an error or omission were present in this case
• Whether the orders should be varied to remit the costs issue to the Court of Appeal, and what costs order should be made on the correction application

• ratioThe High Court has a discretionary power to correct an error or omission in a judgment or order where the interests of justice so require. This power may derive from r 3.01.2 of the High Court Rules 2004 (Cth) (permitting correction of clerical mistakes or errors arising from accidental slip or omission) or from the broader powers incidental and necessary to the exercise of the Court's jurisdiction. — applied [5]
• ratioThe discretionary power to correct an error or omission is to be exercised sparingly due to the interests of finality, with a heavy burden cast upon the applicant. — applied [5]
• ratioThe strongest factors supporting exercise of the discretionary power include: (1) the error or omission is plain or obvious, such as where a matter has been overlooked; (2) the application is promptly made and any relevant orders, although publicly announced, have not been perfected by formal entry; (3) the application is not brought for the purpose of re-agitating arguments already considered by the Court; and (4) there is no relevant disadvantage to the respondent. — applied [6]
• ratioWhere a party did not seek particular orders in its notice of appeal or oral submissions, but the omission from the Court's orders was caused by the Court overlooking a matter raised in written submissions, the appropriate remedy is to vary the orders rather than refuse the application — but the failure to seek the orders in the notice of appeal or oral submissions may result in no costs order on the correction application. — applied [2, 3, 7]
• ratioWhere the High Court on appeal upholds the trial judge's substantive orders but a separate application for leave to appeal from the trial judge's costs orders is pending in the Court of Appeal, the appropriate course is to remit the costs issue to the Court of Appeal for determination rather than for the High Court to determine it. — applied [6]

• cited_applied De L v Director-General Department of Community Services (NSW) [[1997] HCA 14] — Applied at [5] as authority for the discretionary power to correct an error or omission in a judgment or order and the factors governing its exercise.
• cited_applied Autodesk Inc v Dyason (No 2) [[1993] HCA 6] — Applied at [18] as authority for the discretionary power to correct an error or omission and the requirement that the power be exercised sparingly.
• referred Batistatos v Roads and Traffic Authority of New South Wales [[2006] HCA 27] — Referred to at [5] in the context of the Court's power to correct errors or omissions.
• referred Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander [[2015] HCA 52] — Referred to in the context of the Court's power to correct errors or omissions.
• referred Gould v Vaggelas [[1985] HCA 85] — Referred to at [8] in the context of the discretionary power to correct orders.
• referred Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [[2012] HCA 56] — Referred to in the context of the Court's power to correct errors or omissions.
• referred Achurch v The Queen [[2014] HCA 10] — Referred to at [18] in the context of the discretionary power to correct orders.
• referred Gould v Vaggelas [[1984] HCA 68] — Referred to at [8] in the context of the discretionary power to correct orders.
• referred Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [[2001] HCA 1] — Referred to at [64] in the context of the Court's power to correct errors or omissions.
• referred Hunt Leather Pty Ltd v Transport for NSW [[2025] HCA 53] — Referred to as the substantive decision in which the orders now varied were originally made.

This decision consolidates the established principles governing the High Court's power to recall and amend its own orders before perfection. It confirms that the power will be exercised where the omission results from the Court's own oversight rather than a party's failure to advance an argument. Critically, it also demonstrates a practical consequence for parties who bury important relief in footnotes rather than including it in the notice of appeal and oral submissions: the correction may be granted, but costs of the application will not follow. Practitioners should ensure that all orders sought — including remittal of subsidiary issues such as costs — are expressly included in the notice of appeal and repeated in oral submissions.

• Ensure all orders sought on appeal, including remittal of subsidiary issues such as costs, are expressly stated in the notice of appeal and repeated in oral submissions — not merely referenced in footnotes to written submissions.
• An application to correct an overlooked matter should be made promptly and before orders are perfected by formal entry; delay or perfection may defeat the application.
• The power to correct is not a vehicle for re-agitation; it is confined to plain or obvious errors or omissions such as matters overlooked by the Court.
• Failure to seek the order in the notice of appeal or oral submissions may result in no costs order on the correction application, even where the application succeeds.
• Where the High Court reinstates trial orders but a costs appeal is pending in an intermediate court, the appropriate course is remittal of the costs issue rather than determination by the High Court.

• [[2025] HCA 53]
• [[1997] HCA 14]
• [[1993] HCA 6]
• [[2006] HCA 27]