Ward P at [1]; Mitchelmore JA at [108]; Kirk JA at [109]
Decision:
1. Applicants’ notice of motion dated 6 June 2024 dismissed with costs.
2. Respondents’ notice of motion dated 3 September 2024 dismissed with costs.
Catchwords:
CIVIL PROCEDURE – Costs – Judgment in favour of applicant stayed pending assessment of respondent’s costs – Whether condition for operation of stay satisfied – Whether respondent’s costs set off against judgment debt – Application for review dismissed
David Ipp, ‘Lawyers Duties to the Court’ (1998) 114 Law Quarterly Review 63
Category:
Procedural rulings
Parties:
Marc Alan Lambourne (First Applicant) Glenn Craig Pollett (Second Applicant) Punters Show Pty Ltd (Third Applicant) Dallas Matthew Baker (First Respondent) Todd Cameron Buckingham (Second Respondent) BetMakers Technology Group Limited (Third Respondent) 12 Follow Pty Limited (Fourth Respondent) Operis Momentus Pty Limited (Fifth Respondent)
Representation:
Counsel: MA Lambourne (First Applicant) (Self represented)
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.
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Details
AGLC
Lambourne v Baker (No 5) [2024] NSWCA 241
Case
[2024] NSWCA 241
Decision Date
CaseChat Overview and Summary
The applicants, Lambourne and Baker, sought a review of a decision concerning the operation of a stay of judgment pending the assessment of the respondent's costs. The dispute centred on whether the respondent's costs should be set off against the judgment debt owed to the applicants. The matter came before the Court of Appeal of New South Wales, constituted by Ward P, Mitchelmore and Kirk JJA.
The primary legal issue before the Court of Appeal was whether the condition for the operation of the stay, as previously ordered, had been satisfied. This involved determining whether the respondent's assessed costs were to be set off against the judgment debt owed to the applicants, and if so, how this set-off impacted the effectiveness of the stay.
The Court of Appeal dismissed the applicants' application for review. The reasoning focused on the interpretation of the prior orders regarding the stay and the set-off of costs. The Court found that the conditions for the stay had not been met in a manner that would prevent the respondent from pursuing their costs. Consequently, both the applicants' and the respondents' notices of motion were dismissed, with costs ordered in favour of the respondents.
Orders
Orders of the court
1. Applicants’ notice of motion dated 6 June 2024 dismissed with costs.
2. Respondents’ notice of motion dated 3 September 2024 dismissed with costs.