Lambourne v Baker

[2024] NSWCA 281

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Lambourne v Baker [2024] NSWCA 281

Hearing dates:

18 November 2024; 25 November 2024

Date of orders:

25 November 2024

Decision date:

25 November 2024

Before:

Price AJA

Decision:

(1) I make an order the plaintiffs pay the defendants' costs of the notices of motion in the sum of $10,000.

(2) The orders are stayed for 28 days from today.

Catchwords:

JUDGMENTS AND ORDERS – gross costs order – stay of orders

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Cases Cited:

Hamod v State of New South Wales [2011] NSWCA 375

Lambourne v Baker (No 4) [2024] NSWCA 132

Category:

Costs

Parties:

Marc Alan Lambourne (First Plaintiff)
Glenn Craig Pollett (Second Plaintiff)
Punters Show Pty Ltd (Third Plaintiff)
Dallas Matthew Baker (First Defendant)
Todd Cameron Buckingham (Second Defendant)
BetMakers Technology Group Ltd (Third Defendant)
12 Follow Pty Ltd (Fourth Defendant)
Operis Momentus Pty Ltd (Fifth Defendant)

Representation:

Counsel:
A Cheshire SC (Defendants)

Solicitors:
M Lambourne (First Plaintiff, Second Plaintiff, Third Plaintiff) (Self represented)
Vintage Law (Defendants)

File Number(s):

2019/00407870

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Court of Appeal

Citation:

[2024] NSWCA 132

[2024] NSWCA 241

Date of Decision:

31 May 2024
11 October 2024

Before:

Basten AJA
Ward P, Mitchelmore and Kirk JJA

File Number(s):

2019/00407870

JUDGMENT

1. The defendants have sought a gross costs order and an affidavit has been filed by the defendants' solicitor sworn on 18 November 2024. The power to make an order for costs is found in s 98 of the Civil Procedure Act 2005 (NSW). Section 98(4)(c) enables the Court to make a gross costs order. In Hamod v State of New South Wales [2011] NSWCA 375, Beazley JA considered at [812]-[820] the legal principles relevant to the award of a specified gross sum instead of assessed costs.

2. I consider it appropriate to make a gross costs order in the present proceedings having regard to the extensive nature and history of the litigation between the parties, much of which has involved costs. It is fair to both parties that the expense, delay and aggravation likely to be involved in a contested costs assessment is avoided. I have considered the solicitor's affidavit and decided that a discount should be applied. Accordingly, I make an order that the plaintiffs pay the defendants' costs of the notices of motion in the sum of $10,000.

3. Senior counsel for the defendant has sought an order that Basten AJA's order in Lambourne (No 4) [2024] NSWCA 132 be varied so as to insert in order 5, an order that the gross costs be paid before payment of the balance to Punters Show Pty Ltd. I decline to make such an order as it would be varying an order made by another judge of appeal.

4. In respect of the plaintiffs' application for a stay, I have pointed out, as Mr Lambourne well knows, that he may apply immediately to vary or discharge the judgment that I have given today. However, I consider that it is appropriate to order a stay for 28 days to enable him to proceed with that application if he wishes to do so. Accordingly, I stay the orders for 28 days from today.

Orders

1. I make an order the plaintiffs pay the defendants' costs of the notices of motion in the sum of $10,000.

2. The orders are stayed for 28 days from today.

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Decision last updated: 26 November 2024