Lambourne v Baker (No 2) [2021] NSWCA 282

Lambourne v Baker (No 2) [2021] NSWCA 282

The respondents were entitled to a variation of the costs orders because the prior orders omitted an express setting aside of the Equity Division costs orders and duplicated order numbering, and because the respondents had substantially succeeded on the primary appeal issues. However, given partial success by the appellants, joint representation, comparatively small successful claims and the risk of disproportionate further disputation, the proper appeal costs order was a global order that the appellants pay 65% of the respondents' costs of the appeal, with costs below remitted to the Equity Division. No different date for interest on costs was warranted under s 101 of the Civil Procedure...

Jurisdiction
Australia
Judgment Date
19 November 2021
Procedural Posture
Notice of Motion to Vary Costs Orders in Court of Appeal Proceedings / On the Papers After Primary Judgment in Lambourne V Baker [2021] NSWCA 229
Outcome
Notice of motion dated 8 October 2021 partly allowed; costs orders varied; otherwise dismissed.
Legal Topics
['variation of Costs Orders' 'costs of Appeal' 'costs Below' 'interest on Costs' 'stay of Consent Judgment']
['civil Procedure' 'costs'] ['variation of Costs Orders' 'costs of Appeal' 'costs Below' 'interest on Costs' 'stay of Consent Judgment']

Case Brief

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Procedural Posture

Notice of Motion to Vary Costs Orders in Court of Appeal Proceedings / On the Papers After Primary Judgment in Lambourne V Baker [2021] NSWCA 229

Legal Issues

  1. 1 ['Whether the costs orders made on 24 September 2021 should be varied or set aside.' 'Whether the Court of Appeal should make costs orders for the proceedings in the Equity Division or remit that question to the Equity Division.' "Whether the appellants should pay a proportion of the respondents' costs of the appeal." 'Whether interest on costs should run from a date other than the date of the costs order.' 'Whether the consent judgment in favour of Mr Lambourne against the third respondent should be stayed.']

Ratio Decidendi

The respondents were entitled to a variation of the costs orders because the prior orders omitted an express setting aside of the Equity Division costs orders and duplicated order numbering, and because the respondents had substantially succeeded on the primary appeal issues. However, given partial success by the appellants, joint representation, comparatively small successful claims and the risk of disproportionate further disputation, the proper appeal costs order was a global order that the appellants pay 65% of the respondents' costs of the appeal, with costs below remitted to the Equity Division. No different date for interest on costs was warranted under s 101 of the Civil Procedure...

Court Disposition

Notice of motion dated 8 October 2021 partly allowed; costs orders varied; otherwise dismissed.

Orders

  • ['In addition to the orders made on 24 September 2021, order: 1A Set aside the orders made in the Equity Division on 13 December 2019.' "Vary the two orders numbered 3 made on 24 September 2021 so that they read: 3 The appellants' further amended notice of motion filed on 23 June 2021 be dismissed. 3A There be no...