Gordon v Lever (No 4)

[2020] NSWCA 280

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Gordon v Lever (No 4) [2020] NSWCA 280

Hearing dates:

On the papers

Date of orders:

06 November 2020

Decision date:

06 November 2020

Before:

Bell P; Payne JA and Emmett AJA

Decision:

Notice of Motion dated 22 November 2019 is dismissed with costs.

Catchwords:

COSTS – whether costs to be ordered in relation to argument regarding application to vary costs order

Cases Cited:

Gordon v Lever (No 2) [2019] NSWCA 275

Gordon v Lever (No 3) [2020] NSWCA 44

Category:

Costs

Parties:

Stanley Robert Gordon (First Appellant)
Christine Margaret Gordon (Second Appellant)
Allen John Lever (First Respondent)
Debra Ann Lever (Second Respondent)

Representation:

Counsel:
M R Hall SC, L Byrne (Appellants)
G A Sirtes SC, C Simpson (Respondents)

Solicitors:
John F Gibson (Appellants)
Parker & Kissane Solicitors (Respondents)

File Number(s):

2019/11223

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity – Expedition List

Citation:

[2018] NSWSC 1888 and [2019] NSWSC 571

Date of Decision:

14 December 2018 and 17 May 2019

Before:

Sackar J

File Number(s):

2017/55270

Judgment

1. THE COURT: The Court delivered judgment on the substantive appeal on 13 November 2019: Gordon v Lever (No 2) [2019] NSWCA 275. The Levers were ordered to pay the Gordons’ costs of the appeal.

2. Subsequent to delivery of judgment, the Gordons sought to vary this costs order by adding to the costs order in their favour the words “assessed on the ordinary basis up to 4 April 2019, and on an indemnity basis thereafter.” They did so by Notice of Motion dated 22 November 2019. Written submissions were received and considered by the Court. This resulted in this Court’s judgment in Gordon v Lever (No 3) [2020] NSWCA 44.

3. In that judgment, the Court concluded that it would not exercise its discretion to vary the costs order in the way sought by the Gordons: see at [4].

4. Subsequent to delivery of that judgment, the solicitors for the Lever interests have reminded the Court that the Levers sought an order for costs in relation to the Notice of Motion dated 22 November 2019. Costs ordinarily follow the event and there is no reason why that should not be so in the instant case.

5. Accordingly, the Court will order that the Notice of Motion dated 22 November 2019 is dismissed with costs.

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