Dubow v Mid-Western Regional Council

[2021] NSWCA 175

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Dubow v Mid-Western Regional Council [2021] NSWCA 175

Hearing dates:

9 August 2021

Decision date:

09 August 2021

Before:

Basten JA

Decision:

(1)   Pursuant to order 2 sought in the notice of motion of 5 August 2021, stay the enforcement of the costs orders made by Adamson J in the proceedings below for a period of seven days or until otherwise determined by agreement or by the Court. If no agreement can be reached within seven days, I direct that the notice of motion be returned to the Registrar's list on 16 August 2021.

(2)   Costs of today are costs in the proceedings.

Catchwords:

PRACTICE AND PROCEDURE – appeal – stay pending hearing of application for leave to appeal – gross costs order – stay of enforcement

Category:

Procedural rulings

Parties:

Yolande Victoria Frances Dubow (Applicant)
Mid-Western Regional Council (Respondent)

Representation:

Counsel:
Applicant self-represented
Ms A Sinclair (Solicitor) (Respondent)

Solicitors:
Applicant self-represented
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2021/176714

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2021] NSWSC 699

Date of Decision:

16 June 2021

Before:

Adamson J

File Number(s):

2019/381044

Judgment

1. BASTEN JA: In this matter, there is a summons seeking leave to appeal from a judgment of Adamson J delivered on 16 June 2021. There was a notice of intention to appeal filed on 20 June, within four days of the judgment below. The summons and the summary of argument in support were filed on 5 August – that is, last Thursday – and I am informed that they were served on the Council the following day. In these circumstances, the notice of motion comes before the Court with Council represented but not in a position to give firm responses in relation to the order sought.

2. The order sought today is a stay of the gross costs order made by Adamson J in an amount of $70,000 in circumstances where the costs understandably followed the event. The applicant seeks to challenge the manner in which that order was made and that forms part of her proposed appeal.

3. There is a claim by the applicant that she is impecunious which may be true, but there is no evidence before this Court in relation to the applicant's financial circumstances. The Council may not wish to pursue the costs order pending the outcome of the appeal, but Ms Sinclair, representing the Council, is not in a position to give an undertaking at this stage. I do not mean that critically given the short notice which has been given of the application before the Court today.

4. Accordingly, the appropriate course is to grant an interim stay for a period of seven days which the parties can vary if they wish. If there is some understanding as to whether the costs order will be enforced or not pending the hearing of the appeal, or at least the summons seeking leave to appeal, then the matter can be dealt with by agreement without coming back before a judge of the Court.

5. Accordingly, I make the following orders:

1. Pursuant to order 2 sought in the notice of motion of 5 August 2021, stay the enforcement of the costs orders made by Adamson J in the proceedings below for a period of seven days or until otherwise determined by agreement or by the Court. If no agreement can be reached within seven days, I direct that the notice of motion be returned to the Registrar's list on 16 August 2021.

2. Costs of today are costs in the proceedings.

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Decision last updated: 12 August 2021