Lambourne v Baker (No 4)

Case [2024] NSWCA 132

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Lambourne v Baker (No 4) [2024] NSWCA 132
Hearing dates: 28 May 2024
Date of orders: 31 May 2024
Decision date: 31 May 2024
Before: Basten AJA
Decision:

(1)   Dismiss Mr Lambourne’s recusal application.

(2)   Dismiss Mr Lambourne’s adjournment application.

(3)   Dismiss the respondents’ application to reopen and vary the orders made by the Court on 2 March 2022.

(4)   Grant the respondents leave to rely upon the amended notice of motion, filed on 19 April 2024, seeking payment out of moneys paid into Court.

(5)   Order that the sum of $210,249.00 paid into Court on 21 March 2022, together with such interest as may have accrued on that sum, be disbursed as follows:

   (a)   payment of $186,214.86 to the respondents; and

   (b)   payment of the balance to the third appellant (Punters Show Pty Ltd).

(6)   There be no order as to the costs of the motions with the intention that each party bear its own costs.

Catchwords:

CIVIL PROCEDURE – recusal application – adjournment application – application pursuant to slip rule to vary orders made in 2022 – judgment in favour of one appellant with set off for respondents’ costs – judgment stayed and amount paid into court pending determination of costs of otherwise successful respondents – order for payment out

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 101

Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 36.15, 36.16, 36.17

Cases Cited:

Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49

Gamser v Nominal Defendant (1977) 136 CLR 145; [1977] HCA 7

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Category:Consequential orders
Parties:

Marc Alan Lambourne (First Appellant) (unrepresented)
Glenn Craig Pollett (Second Appellant)
Punters Show Pty Limited (Third Appellant)

Dallas Matthew Baker (First Respondent)
Todd Cameron Buckingham (Second Respondent)
Betmakers Technology Group Limited (formerly TopBetta Holdings Limited) (Third Respondent)
12Follow Pty Limited (Fourth Respondent)
Operis Momentus Pty Limited (Fifth Respondent)
Representation:

Counsel:
D Helvadjian (Respondents)

Solicitors:
Vintage Commercial Law (Respondents)
File Number(s): 2019/407870

JUDGMENT

  1. BASTEN AJA: In 2016, a company, Punters Show Pty Ltd, commenced proceedings in the Equity Division against Dallas Matthew Baker and two other defendants. There were also two other plaintiffs, Marc Alan Lambourne and Glenn Craig Pollett. The plaintiffs were unsuccessful and, on 13 December 2019, Rees J dismissed the proceedings with costs: In the matter of Punters Show Pty Ltd [2019] NSWSC 1777. The unsuccessful defendants (Messrs Lambourne, Pollett and Punters Show) appealed that decision. In the Court of Appeal, Punters Show was successful in part, but only against Mr Baker. It obtained a judgment in an amount of $210,249: Lambourne v Baker [2021] NSWCA 229 (Lambourne No 1). No order was made as to costs, but the parties were given leave to reopen that issue.

  2. Pursuant to that grant of leave, the respondents filed a motion on 8 October 2021 seeking a costs order in their…

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AGLC
Lambourne v Baker (No 4) [2024] NSWCA 132
Case
[2024] NSWCA 132
Decision Date

CaseChat Overview and Summary

In *Lambourne v Baker (No 4)*, the Honourable Basten AJA of the Court of Appeal of the Supreme Court of New South Wales considered applications by Mr Lambourne for the recusal of the judge and for an adjournment, as well as an application by the respondents to reopen and vary previous orders made in 2022. The underlying dispute concerned a judgment in favour of one appellant, subject to a set-off for the respondents' costs, with the judgment amount paid into court pending the determination of those costs.

The primary legal issues before the court were whether the judge should recuse himself, whether an adjournment was warranted, and whether the court had the power to vary its prior orders under the slip rule. Additionally, the court had to determine the appropriate disbursement of funds paid into court, representing the judgment amount and accrued interest, in light of the costs orders.

Basten AJA dismissed Mr Lambourne's applications for recusal and adjournment, finding no grounds to support them. The application to reopen and vary the 2022 orders was also dismissed, as the court found no basis for such an application under the slip rule. However, the respondents were granted leave to rely on an amended notice of motion seeking payment out of the moneys held in court. The court ordered that the sum of $210,249.00, plus accrued interest, be paid out, with $186,214.86 to the respondents and the balance to the third appellant. No order was made as to the costs of these motions, with each party to bear their own costs.

Orders

Orders of the court

(1) Dismiss Mr Lambourne’s recusal application.

(2) Dismiss Mr Lambourne’s adjournment application.

(3) Dismiss the respondents’ application to reopen and vary the orders made by the Court on 2 March 2022.

(4) Grant the respondents leave to rely upon the amended notice of motion, filed on 19 April 2024, seeking payment out of moneys paid into Court.

(5) Order that the sum of $210,249.00 paid into Court on 21 March 2022, together with such interest as may have accrued on that sum, be disbursed as follows:

(a) payment of $186,214.86 to the respondents; and

(b) payment of the balance to the third appellant (Punters Show Pty Ltd).

(6) There be no order as to the costs of the motions with the intention that each party bear its own costs.

Background

Background to the litigation

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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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