Thomas v Willett

[2011] NSWCA 217

Court of Appeal

New South Wales

Case Title:	Thomas v Willett
Medium Neutral Citation:	[2011] NSWCA 217
Hearing Date(s):	25 July 2011
Decision Date:	25 July 2011
Jurisdiction:
Before:	Hodgson JA
Decision:	1. The costs order made below in favour of Mrs Willett in relation to the rejection of Mr Sullivan's affidavit sworn 15 December 2009 be stayed until the determination of the appeal, so far as it relates to that costs order. 2. The costs of the notice of motion of 13 July 2011 be costs in the determination of the appeal so far as it concerns costs as between the plaintiffs and Mrs Willett. [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.]
Catchwords:	PROCEDURE - Whether order for costs should be stayed.
Legislation Cited:
Cases Cited:
Texts Cited:
Category:	Procedural and other rulings
Parties:	Applicant/Cross-appellant:  Eric Clyde THOMAS First Cross-respondent:  Deborah WILLETT
Representation
- Counsel:	Applicant/Cross-appellant:  D Hayes First cross-respondent:  E Yamine
- Solicitors:	Applicant/Cross-appellant:  Hayes Partners First cross-respondent:  Bartier Perry
File number(s):	2003/85446
Decision Under Appeal
- Court / Tribunal:
- Before:	Pembroke J
- Date of Decision:	06 October 2010
- Citation:	Thomas v SMP (International) No 5 [2010] NSWSC 1263
- Court File Number(s)	2003/85446
Publication Restriction:

Judgment

1. HIS HONOUR: I am dealing with an application which in substance seeks the stay, until the determination of the appeal, of an order that the plaintiffs below pay the costs of the fifth defendant, Mrs Willett, thrown away by reason of the rejection of an affidavit.

1. I am told that a bill of costs amounting to $150,000 has been served on the applicants to the motion on or about 26 May 2011, that a costs assessor has been appointed, that the costs assessor has sought submissions, and that Mrs Willett has provided submissions on 12 July 2011.

1. The bill of costs was originally served on 28 February 2011. That service produced a letter from the plaintiffs' solicitors on 23 March 2011 suggesting that to incur further costs before an appeal has been heard would be inappropriate. So far as the material before me goes, the plaintiffs did not take any further action to stop the assessment going ahead until they brought this present motion, which was filed on 13 July 2011.

1. I would add that the notice of motion is supported by an affidavit which does no more than annex the orders of the Court below and the letter of 23 March to which I have referred.

1. Mr Yamine, appearing for Mrs Willett, has sought an adjournment or alternatively the dismissal of the motion; and on the basis of the matters I have recited so far, I would have been minded to take one or other of those courses. However, I have been told that in May this year leave was granted both to Mrs Willett and the plaintiffs to challenge the costs orders made below, and both wished to proceed with those challenges. The matter is fixed for hearing by the Court of Appeal in October.

1. Because leave has been granted, the Court of Appeal must have taken the view that there was a reasonable prospect that the costs orders below would be altered in some way or another. These costs orders are only one small part of many orders made in the matter by the primary judge that are the subject of the appeal which, I am told, has been set down for five days.

1. In all the circumstances, I think that to permit the costs assessment to go ahead, or alternatively to adjourn this application so that more evidence can be put on by both sides, is likely to result in the incurring of unnecessary costs. On the whole, I think the appropriate course is to stay the costs order made in Mrs Willett's favour against the plaintiffs, until determination of the appeal in relation to those costs. I will not however award the costs of this motion to the applicants, having regard to their delay and the paucity of the evidence put on in support of it. I think it is appropriate that the costs of this motion be treated as costs in the appeal concerning costs as between the plaintiffs and Mrs Willett.

1. The orders that I make are:

1. The costs order made below in favour of Mrs Willett in relation to the rejection of Mr Sullivan's affidavit sworn 15 December 2009 be stayed until the determination of the appeal, so far as it relates to that costs order.

2. The costs of the notice of motion of 13 July 2011 be costs in the determination of the appeal so far as it concerns costs as between the plaintiffs and Mrs Willett.

oOo