Dickson v Petrie (No 2)

[2025] NSWCA 176

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Dickson v Petrie (No 2) [2025] NSWCA 176

Hearing dates:

On the papers

Date of orders:

07 August 2025

Decision date:

07 August 2025

Before:

Stern JA; Ball JA; Griffiths AJA

Decision:

(1) Notice of motion filed 5 June 2025 is dismissed.

(2) Appellants/cross-respondents to pay the respondent’s/cross-appellant’s costs of and incidental to the notice of motion.

Catchwords:

JUDGMENTS AND ORDERS — amending, varying and setting aside — application under Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A) — motion to vary costs orders — whether misapprehension on part of Court warrants orders being varied

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 42.1

Cases Cited:

Dickson v Petrie [2025] NSWCA 110

DSHE Holdings Ltd (Receivers and Managers) (in liq) v Potts (No 2) [2022] NSWCA 258

Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373

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

Majak v Rose (No 5) [2017] NSWCA 238

Owners Corporation Strata Plan 533 v Random Primer Pty Ltd [2025] NSWCA 8

Theunissen v Barter [2025] NSWCA 50

Category:

Costs

Parties:

Graeme Dickson (First Appellant and First Cross-Respondent )
Denise Carmel Dickson (Second Appellant and Second Cross-Respondent)
Janet Marie Petrie (Respondent and Cross-Appellant)

Representation:

Counsel:
P Tomasetti SC and D Robertson (Appellants and Cross-Respondents)
T Alexis SC and C Winnett (Respondent and Cross-Appellant)

Solicitors:
Ristevski & Associates (Appellants and Cross-Respondents)
Hones Lawyers Pty Ltd (Respondent and Cross-Appellant)

File Number(s):

2024/0339682; 2024/00402826

Publication restriction:

Nil

JUDGMENT

1. THE COURT: On 23 May 2025, the Court published reasons for judgment in the substantive proceeding, allowing the appeal in part and dismissing the cross-appeal (see Dickson v Petrie [2025] NSWCA 110). The Court ordered that orders below dated 29 August and 23 October 2024 be set aside. The Court made no order as to the costs of the proceedings below. The respondent was ordered to pay 50% of the appellants’ costs of the appeal and the cross-appellant was ordered to pay 50% of the cross-respondents’ costs of the cross-appeal. The respondent’s notice of objection to competency filed 10 October 2024 was also dismissed, with no order as to costs. We will assume familiarity with the reasons for judgment as well as the abbreviations.

2. By a notice of motion filed 5 June 2025 and within the 14-day period permitted, the appellants applied under r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) seeking to have the orders dated 23 May 2025 varied as follows:

1. The costs order below dated 23 October 2024 be set aside and in lieu thereof the plaintiff to pay the defendants’ costs of the proceedings.

2. The respondent to pay the appellants’ costs of the appeal and the cross-appellant to pay the cross-respondents’ costs of the cross-appeal.

3. The respondent’s notice of objection to competency filed 10 October 2024 be dismissed with costs.

3. In support of their motion, the appellants…