[20] Nor do I consider that, as the applicant argued, the effect of the grant of liberty to apply was to obviate the need for the applicant to file a notice of motion in accordance with r 36.16. Rather, it contemplated the possibility of an application for variation being made in accordance with the UCPR, that is, by notice of motion. At most, it imposed an additional requirement that the party applying give the other party seven days’ notice, rather than the minimum period of three days specified in r 18.4 of the UCPR in respect of notices of motion generally. That possible further requirement is not however relevant in the present case as the respondent did not contend that it received insufficient notice of any application made by the applicant.
[21] This approach is supported by Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201; [2007] NSWCA 104 at [50]– [52] where this Court held that (i) the grant of liberty to apply does not preclude orders being final, (ii) the manner of invoking liberty to apply is by a substantive motion on notice and (iii) liberty to apply cannot be used to alter the substance of an order already made (see also Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 at [70]). Thus, in the present case, the primary judge’s power to vary his costs order was derived from r 36.16(3A), assuming that the subrule was properly invoked.
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[67] Liberty to apply cannot be used to alter the substance of an order already made (Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201 at 214 [52]; [2007] NSWCA 104).