Lambourne v Baker (No 3) - [2022] NSWCA 25

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lambourne v Baker (No 3) [2022] NSWCA 25
Hearing dates: On the papers
Date of orders: 2 March 2022
Decision date: 02 March 2022
Before: Basten JA; Gleeson JA; Emmett AJA
Decision:
(1)   Upon the first respondent paying into Court the judgment debt created by order (2) made on 24 September 2021, payment of that amount to the third appellant is stayed pending determination, by assessment or agreement, of the costs payable by the appellants pursuant to order 3A(1) entered on 19 November 2021.
(2)   The amount to be paid to the third appellant will be the balance, if any, after setting off the costs determined to be payable by the appellants to the respondents.
(3)   Order 4 made on 19 November 2021 (otherwise dismissing the notice of motion) is varied to the extent necessary to permit the making of the above orders.

Catchwords:
JUDGMENT AND ORDERS – costs – costs payable by party entitled to judgment debt – joint and several liability for costs – entitlement to set-off – stay of payment of judgment debt pending assessment of costs – payment into court
CIVIL PROCEDURE – slip rule – failure to address issue raised by a notice of motion – no time limit on exercise of power – application of Uniform Civil Procedure Rules 2005 (NSW), r 36.17

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), r 36.17

Cases Cited:
Lambourne v Baker [2021] NSWCA 229
Lambourne v Baker (No 2) [2021] NSWCA 282
Newmont Yandal Operations Pty Limited v The J. Aron Corporation & The Goldman Sachs Group (2007) 70 NSWLR 411; [2007] NSWCA 195

Category: Procedural rulings
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 original judgment in this matter was delivered on 24 September 2021: Lambourne v Baker [2021] NSWCA 229. By a notice of motion filed on 15 October 2021, and in response to leave granted by the Court, the respondents sought a variation of the proposed costs order. That matter was the subject of a second judgment, delivered on 19 November 2021: Lambourne v Baker (No 2) [2021] NSWCA 282. The notice of motion also sought a stay of “the payment of the judgment debt to the third…

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 3)

Details

AGLC: Lambourne v Baker (No 3) [2022] NSWCA 25
Case: [2022] NSWCA 25
Decision Date: 02 March 2022

CaseChat Overview and Summary

In *Lambourne v Baker (No 3)*, the Court of Appeal of New South Wales considered an application concerning the payment of a judgment debt and the set-off of costs. The dispute arose between the appellants and the respondents following earlier orders of the court.

The primary legal issues before the Court of Appeal were whether the judgment debt payable by the first respondent to the third appellant should be stayed pending the assessment of costs payable by the appellants to the respondents, and whether the judgment debt should be applied to satisfy the costs order through a set-off. The court also considered the application of the slip rule under rule 36.17 of the *Uniform Civil Procedure Rules 2005* (NSW) in relation to a notice of motion.

The Court of Appeal reasoned that it had the power to make orders for the payment of money into court and to stay payment of a judgment debt pending the determination of costs, particularly where a set-off was contemplated. The court applied principles relating to the joint and several liability for costs and the entitlement to set-off. The court also noted that the slip rule could be invoked to correct an oversight where an issue raised by a notice of motion had not been addressed, and that there was no time limit on the exercise of this power.

The Court of Appeal ordered that upon the first respondent paying the judgment debt into court, payment of that amount to the third appellant would be stayed pending the determination of the costs payable by the appellants. The amount to be paid to the third appellant would be the balance, if any, after setting off the costs determined to be payable by the appellants to the respondents. The court also varied a previous order dismissing a notice of motion to permit these new orders.

Orders

Orders of the court

(1) Upon the first respondent paying into Court the judgment debt created by order (2) made on 24 September 2021, payment of that amount to the third appellant is stayed pending determination, by assessment or agreement, of the costs payable by the appellants pursuant to order 3A(1) entered on 19 November 2021.

(2) The amount to be paid to the third appellant will be the balance, if any, after setting off the costs determined to be payable by the appellants to the respondents.

(3) Order 4 made on 19 November 2021 (otherwise dismissing the notice of motion) is varied to the extent necessary to permit the making of the above orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Lambourne v Baker (No 3) [2022] NSWCA 25
Hearing dates:	On the papers
Date of orders:	2 March 2022
Decision date:	02 March 2022
Before:	Basten JA; Gleeson JA; Emmett AJA
Decision:	(1) Upon the first respondent paying into Court the judgment debt created by order (2) made on 24 September 2021, payment of that amount to the third appellant is stayed pending determination, by assessment or agreement, of the costs payable by the appellants pursuant to order 3A(1) entered on 19 November 2021. (2) The amount to be paid to the third appellant will be the balance, if any, after setting off the costs determined to be payable by the appellants to the respondents. (3) Order 4 made on 19 November 2021 (otherwise dismissing the notice of motion) is varied to the extent necessary to permit the making of the above orders.
Catchwords:	JUDGMENT AND ORDERS – costs – costs payable by party entitled to judgment debt – joint and several liability for costs – entitlement to set-off – stay of payment of judgment debt pending assessment of costs – payment into court CIVIL PROCEDURE – slip rule – failure to address issue raised by a notice of motion – no time limit on exercise of power – application of Uniform Civil Procedure Rules 2005 (NSW), r 36.17
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 36.17
Cases Cited:	Lambourne v Baker [2021] NSWCA 229 Lambourne v Baker (No 2) [2021] NSWCA 282 Newmont Yandal Operations Pty Limited v The J. Aron Corporation & The Goldman Sachs Group (2007) 70 NSWLR 411; [2007] NSWCA 195
Category:	Procedural rulings
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