Aslan v Stepanoski (No 2)

[2022] NSWCA 89

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Aslan v Stepanoski (No 2) [2022] NSWCA 89

Hearing dates:

On the papers

Date of orders:

8 June 2022

Decision date:

08 June 2022

Before:

Macfarlan JA at [1];
Gleeson JA at [15];
Payne JA at [16].

Decision:

Notice of motion dismissed with costs.

Catchwords:

COSTS – application for special costs orders made after delivery of judgment – Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A) – principle of finality favours refusal of belated application

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) rr 19.1, 36.16(1), 36.16(3A), 51.23

Cases Cited:

Aktas v Westpac Banking Corporation Ltd (No 2) (2010) 241 CLR 570; [2010] HCA 47

Australian Conservation Foundation Inc v Forestry Commission of Tasmania (1988) 81 ALR 166

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6

Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12

Fuller v Albert (No 2) [2021] NSWCA 183

Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 145

Hendriks v McGeoch [2008] NSWCA 53

Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (No 2) [2011] NSWCA 171

Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin & Anor (No 2) [2021] NSWCA 98

Real Estate Property Management Pty Ltd v WaterCorp Investments Pty Ltd [2018] NSWCA 194

Wentworth v Woollahra Municipal Council (1982) 149 CLR 672; [1982] HCA 41

Category:

Costs

Parties:

Mohammad Jamal Aslan (also known as Jim Aslan) (Appellant)
Tony Stepanoski (First Respondent)
Sonja Stepanoski (Second Respondent)

Representation:

Counsel:
L Chan / K Sharma (Appellant)
P Folino-Gallo (Respondents)

Solicitors:
Redenbach Legal (Respondents)

File Number(s):

2020/237337

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2018] NSWSC 1916;

[2019] NSWSC 1445;

[2020] NSWSC 139;

[2020] NSWSC 900

Date of Decision:

11 December 2018;
28 October 2019;
24 February 2020;
16 July 2020

Before:

Emmett AJA

File Number(s):

2016/139580

Judgment

1. MACFARLAN JA: On 25 February 2022 the Court delivered a judgment on this appeal ([2022] NSWCA 24). It allowed the appeal and set aside the substantial judgment entered against the appellant at first instance and awarded the appellant judgment against the respondents for an undisputed amount of $50,000. The Court ordered the respondents to pay the appellant’s costs of the proceedings at first instance and on appeal.

2. By notice of motion filed and presumably served within 14 days of delivery of that judgment the respondents, notwithstanding their lack of success on the appeal, seek two special costs orders in their favour, neither of which were sought before judgment was delivered.

The first special costs order sought

3. First, the respondents seek an order that the appellant pay their costs of 10 hearing days at first instance which culminated in a preliminary judgment of the primary judge of 30 July 2018 ([2018] NSWSC 1160). By that judgment his Honour determined, in…