Lambourne v Baker (No 2) - [2021] NSWCA 282

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lambourne v Baker (No 2) [2021] NSWCA 282
Hearing dates: On the papers
Date of orders: 19 November 2021
Decision date: 19 November 2021
Before: Basten JA; Gleeson JA; Emmett AJA
Decision:
(1)   In addition to the orders made on 24 September 2021, order:
1A   Set aside the orders made in the Equity Division on 13 December 2019.
(2)   Vary the two orders numbered 3 made on 24 September 2021 so that they read:
3   The appellants’ further amended notice of motion filed on 23 June 2021 be dismissed.
3A    There be no order as to costs in respect of the appeal and the proceedings below.
(3)   Set aside order 3A made on 24 September 2021 and in place thereof make the following orders:
3A   (1)   Order that the appellants pay 65% of the respondents’ costs of the appeal;
(2)   Remit the question of costs of the proceedings in the Equity Division to the Equity Division.
(4)   Otherwise dismiss the notice of motion dated 8 October 2021.

Catchwords:
COSTS – variation of order – apportionment where appellant partly successful on appeal – interest on costs

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 101

Cases Cited:
Drummond & Rosen Pty Ltd v Easey (No 2) [2009] NSWCA 331
Lambourne v Baker [2021] NSWCA 229

Category: Costs
Parties: Marc Alan Lambourne (First Appellant)
Glenn Craig Pollett (Second Appellant)
The Punters Show Pty Limited ACN 147 950 016 (Third Appellant)
Dallas Matthew Baker (First Respondent)
Todd Cameron Buckingham (Second Respondent)
Betmakers Technology Group Limited ACN 164 521 395 (formerly TopBetta Holdings Limited) (Third Respondent)
12Follow Pty Limited ACN 136 345 536 (Fourth Respondent)
Operis Momentus Pty Limited ACN 153 419 115 (Fifth Respondent)
Representation:
Counsel:
First Appellant (self-represented and with leave of the Court, on behalf of the Second and Third Appellants)
P Silver (Respondents)
Solicitors:
Cockburn & Co (Respondents)

File Number(s): 2019/407870
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2019] NSWSC 1777

Date of Decision:

13 December 2019

Before:

Rees J

File Number(s):

2016/344608

Judgment

THE COURT: The primary judgment in this matter was delivered on 24 September 2021: Lambourne v Baker [2021] NSWCA 229. The respondents have sought a variation of the costs orders made by majority in that judgment. In accordance with usual practice, directions were given for submission to be made in writing. After an extension was granted, the appellants were required to file any response to the application by 12 November 2021. They failed to do so.
There were three appellants in this Court, namely Mr Lambourne, Mr Pollett and The Punters Show Pty Limited (Punters Show). A claim by Mr Lambourne against the first respondent, Mr Baker, was settled whilst judgment was reserved. The judgment upheld a part of the claim brought by Punters Show against Mr Baker. The primary claims made by the appellants against the respondents were dismissed. However, given that Mr Lambourne…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lambourne v Baker (No 2)

Details

AGLC: Lambourne v Baker (No 2) [2021] NSWCA 282
Case: [2021] NSWCA 282
Decision Date: 19 November 2021

CaseChat Overview and Summary

In *Lambourne v Baker (No 2)*, the New South Wales Court of Appeal considered an application to vary previous costs orders. The dispute arose from an appeal concerning orders made in the Equity Division of the Supreme Court.

The primary legal issue before the Court of Appeal was how to apportion costs following a partly successful appeal. Specifically, the court had to determine the appropriate order for the costs of the appeal itself and the costs of the proceedings in the Equity Division, given that the appellants had achieved some success on appeal but not entirely.

The Court of Appeal varied its previous orders to reflect the apportionment of costs. It ordered that the appellants pay 65% of the respondents' costs of the appeal, acknowledging the partial success of the appellants. The question of the costs of the proceedings in the Equity Division was remitted back to that division for determination. The court also set aside certain earlier orders and dismissed a further notice of motion.

Orders

Orders of the court

(1) In addition to the orders made on 24 September 2021, order:

1A Set aside the orders made in the Equity Division on 13 December 2019.

(2) Vary the two orders numbered 3 made on 24 September 2021 so that they read:

3 The appellants’ further amended notice of motion filed on 23 June 2021 be dismissed.

3A There be no order as to costs in respect of the appeal and the proceedings below.

(3) Set aside order 3A made on 24 September 2021 and in place thereof make the following orders:

3A (1) Order that the appellants pay 65% of the respondents’ costs of the appeal;

(2) Remit the question of costs of the proceedings in the Equity Division to the Equity Division.

(4) Otherwise dismiss the notice of motion dated 8 October 2021.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Lambourne v Baker (No 2) [2021] NSWCA 282
Hearing dates:	On the papers
Date of orders:	19 November 2021
Decision date:	19 November 2021
Before:	Basten JA; Gleeson JA; Emmett AJA
Decision:	(1) In addition to the orders made on 24 September 2021, order: 1A Set aside the orders made in the Equity Division on 13 December 2019. (2) Vary the two orders numbered 3 made on 24 September 2021 so that they read: 3 The appellants’ further amended notice of motion filed on 23 June 2021 be dismissed. 3A There be no order as to costs in respect of the appeal and the proceedings below. (3) Set aside order 3A made on 24 September 2021 and in place thereof make the following orders: 3A (1) Order that the appellants pay 65% of the respondents’ costs of the appeal; (2) Remit the question of costs of the proceedings in the Equity Division to the Equity Division. (4) Otherwise dismiss the notice of motion dated 8 October 2021.
Catchwords:	COSTS – variation of order – apportionment where appellant partly successful on appeal – interest on costs
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 101
Cases Cited:	Drummond & Rosen Pty Ltd v Easey (No 2) [2009] NSWCA 331 Lambourne v Baker [2021] NSWCA 229
Category:	Costs
Parties:	Marc Alan Lambourne (First Appellant) Glenn Craig Pollett (Second Appellant) The Punters Show Pty Limited ACN 147 950 016 (Third Appellant) Dallas Matthew Baker (First Respondent) Todd Cameron Buckingham (Second Respondent) Betmakers Technology Group Limited ACN 164 521 395 (formerly TopBetta Holdings Limited) (Third Respondent) 12Follow Pty Limited ACN 136 345 536 (Fourth Respondent) Operis Momentus Pty Limited ACN 153 419 115 (Fifth Respondent)
Representation:	Counsel: First Appellant (self-represented and with leave of the Court, on behalf of the Second and Third Appellants) P Silver (Respondents) Solicitors: Cockburn & Co (Respondents)
File Number(s):	2019/407870
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2019] NSWSC 1777 Date of Decision: 13 December 2019 Before: Rees J File Number(s): 2016/344608