Lambourne v Baker (No 3) [2022] NSWCA 25

Lambourne v Baker (No 3) [2022] NSWCA 25

Because the Court had misapprehended and failed to address the respondents' earlier request for a stay, r 36.17 was properly invoked notwithstanding the appellants' timing objection. A stay conditioned on payment of the judgment debt into Court was appropriate to preserve the possibility of setting off the respondents' costs against the judgment debt, particularly given the appellants' joint and several liability for costs and the risk that costs might not be recoverable if the judgment debt were paid out immediately.

Jurisdiction
Australia
Judgment Date
02 March 2022
Procedural Posture
Procedural Rulings / Court of Appeal Notice of Motion for Stay of Payment of Judgment Debt and Variation Under the Slip Rule, Determined on the Papers After Prior Judgments
Outcome
The respondents' application for a stay was granted, conditioned on payment of the judgment debt into Court, and the earlier order dismissing the notice of motion was varied to permit the new orders.
Legal Topics
['stay of Payment of Judgment Debt' 'set Off of Costs Against Judgment Debt' 'payment Into Court' 'slip Rule' 'joint and Several Liability for Costs']
['civil Procedure' 'costs' 'judgments and Orders'] ['stay of Payment of Judgment Debt' 'set Off of Costs Against Judgment Debt' 'payment Into Court' 'slip Rule' 'joint and Several Liability for Costs']

Case Brief

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Procedural Posture

Procedural Rulings / Court of Appeal Notice of Motion for Stay of Payment of Judgment Debt and Variation Under the Slip Rule, Determined on the Papers After Prior Judgments

Legal Issues

  1. 1 ["Whether the Court should determine a stay sought in the respondents' earlier notice of motion that was not addressed in Lambourne v Baker (No 2) [2021] NSWCA 282." "Whether Uniform Civil Procedure Rules 2005 (NSW), r 36.17 permitted variation despite the appellants' submission that the later notice of motion was out of time." "Whether payment of the judgment debt to the third appellant should be stayed pending assessment or agreement of costs so that the respondents' costs can be set off against the judgment debt."]

Ratio Decidendi

Because the Court had misapprehended and failed to address the respondents' earlier request for a stay, r 36.17 was properly invoked notwithstanding the appellants' timing objection. A stay conditioned on payment of the judgment debt into Court was appropriate to preserve the possibility of setting off the respondents' costs against the judgment debt, particularly given the appellants' joint and several liability for costs and the risk that costs might not be recoverable if the judgment debt were paid out immediately.

Court Disposition

The respondents' application for a stay was granted, conditioned on payment of the judgment debt into Court, and the earlier order dismissing the notice of motion was varied to permit the new orders.

Orders

  • ['Upon the first respondent paying into Court the judgment debt created by order (2) made on 24 September 2021, payment of that amount to the third appellant is stayed pending determination, by assessment or agreement, of the costs payable by the appellants pursuant to order 3A(1) entered on 19 November 2021.' 'The...