Beau Timothy John Hartnett trading as Hartnett Lawyers v Anthony Robert Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell (No 2)

Beau Timothy John Hartnett trading as Hartnett Lawyers (the appellant) applied for a gross sum costs order against Anthony Robert Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell (the respondent). The application was made more than 14 days after the entry of the original costs order. The matter came before Bell CJ and Adamson JA of the Court of Appeal of New South Wales.

The central legal issue was whether the appellant's application for a gross sum costs order, filed more than 14 days after the original costs order was entered, constituted a variation of that original order. This question was critical to determining whether the court had the power to grant the application.

The Court determined that an application for a gross sum costs order under s 98(4)(c) of the *Civil Procedure Act 2005* (NSW) was not a variation of an original costs order. Instead, it was a distinct application for a specific type of costs order. The Court reasoned that the purpose of s 98(4)(c) was to allow for the determination of costs in a gross sum, which could be sought independently of, or in addition to, an initial costs order. The Court found that the application was properly before it and proceeded to make orders regarding the payment of costs.

The Court ordered the appellant to pay the respondent's costs in the gross sum of $70,000, and further ordered the appellant to pay the respondent's costs of the notice of motion in the gross sum of $5,000. The Court also ordered that a sum of $30,000 paid into court by the appellant be released to the respondent. Finally, the Court outlined specific payment obligations that, if met by the appellant, would discharge him from an undertaking previously given to the court.