Lambourne v Baker (No 3)

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.