Eliezer v The Council of St Andrew's Cathedral School (No 2)

The applicants, Eliezer and others, sought a gross sum costs order against the first respondent, The Council of St Andrew's Cathedral School, following the dismissal of their application for judicial review. The Court of Appeal of New South Wales was required to determine whether the application for a gross sum costs order was an application to set aside or vary the original costs order, and consequently, whether it was governed by rule 36.16(3) or 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW). A key issue was whether the first respondent's failure to file a notice of motion seeking the gross sum costs order within 14 days of the original costs order being entered necessitated the dismissal of the application, or if this requirement could be dispensed with.

The Court reasoned that the application for a gross sum costs order was not an application to set aside or vary the original costs order, but rather an application to specify the quantum of those costs. Therefore, rule 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW), which deals with applications to set aside or vary judgments or orders, did not apply. Instead, the Court considered the application under section 98(4)(c) of the Civil Procedure Act 2005 (NSW), which permits the court to order costs to be paid as a gross sum. The Court found that the requirement to file a notice of motion within 14 days could be dispensed with under section 14 of the Civil Procedure Act 2005 (NSW), particularly given the circumstances and the fact that submissions regarding the gross sum costs had been made.

The Court ordered that the requirement for the first respondent to file a notice of motion seeking a gross sum costs order be dispensed with. It further ordered that the costs of the first respondent's application to the Court be specified as a gross sum of $8,756. The applicants' separate application for a stay was dismissed.