Marshall v Fleming (No 2)

[2015] NSWCA 69

Court of Appeal
Supreme Court

New South Wales

Case Name:	Marshall v Fleming (No 2)
Medium Neutral Citation:	[2015] NSWCA 69
Hearing Date(s):	On the papers
Date of Orders:	20 March 2014
Decision Date:	26 March 2015
Before:	Bathurst CJ at [1];  Beazley P at [9]; Meagher JA at [10]
Decision:	Order that the respondents pay the appellants’ costs of the application for leave to appeal and the appeal. The respondents to have a certificate under the Suitors’ Fund Act 1951 (NSW), if eligible.
Catchwords:	COSTS – where leave refused on grounds relied on by appellants in court below in circumstances where it was unnecessary to deal with other grounds – where matters not squarely raised before primary judge
Cases Cited:	Marshall v Fleming [2013] NSWSC 566 Marshall v Fleming [2014] NSWCA 64
Category:	Costs
Parties:	Margaret Lesley Marshall (First Appellant) Kim Neil Marshall (Second Appellant) Francis G Fleming (First Respondent) Marc S Moller (Second Respondent) Steven R Pounian (Third Respondent) James P Kreindler (Fourth Respondent) David C Cook (Fifth Respondent) David Beekman (Sixth Respondent) Bianca I Rodriguez (Seventh Respondent) Noah H Kushlefsky (Eighth Respondent) Robert J Spragg (Ninth Respondent) Brian J Alexander (Tenth Respondent) Justin T Green (Eleventh Respondent)
Representation:	Counsel: C J Bevan / E W Young (Appellants) D F Villa (Respondents) Solicitors: Turner Freeman Lawyers (Appellants) Kennedys (Respondents)
File Number(s):	2013/166332
Publication Restriction:	Nil
Decision under appeal:
Court or Tribunal:	Supreme Court of New South Wales
Jurisdiction:	Common Law Division
Citation:	[2013] NSWSC 566
Date of Decision:	17 May 2013
Before:	Harrison J
File Number(s):	2009/292939

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT

1. BATHURST CJ: In a judgment dated 20 March 2014, Marshall v Fleming,[1] this Court granted leave to appeal and allowed an appeal from an order of Harrison J “pursuant to UCPR 20.14 and/or the Memorandum of Understanding between the Chief Justice of New South Wales and the Chief Judge of the State of New York on References of Questions of Law of 28 October 2010 that a member of the New York Panel of Referees be appointed to act as a referee for inquiry and report on questions of foreign law.”[2] In addition, certain ancillary orders made by the primary judge were set aside.

   [1] [2014] NSWCA 64 (“appeal judgment”).

   [2] Marshall v Fleming [2013] NSWSC 566 at [25].

2. In its judgment, the Court stated that its present view was that the respondents should pay the applicants’ costs of the appeal but that the costs of the proceedings in the Court below should be determined by the primary judge or such other judge of the Common Law Division who hears the…