[2021] NSWCA 175

Dubow v Mid-Western Regional Council

(1) Pursuant to order 2 sought in the notice of motion of 5 August 2021, stay the enforcement of the costs orders made by Adamson J in the proceedings below for a period of seven days or until otherwise determined by agreement or by the Court. If no agreement can be reached within seven days, I direct that the notice of motion be returned to the Registrar's list on 16 August 2021. (2) Costs of today are costs in the proceedings.

Catchwords

PRACTICE AND PROCEDURE – appeal – stay pending hearing of application for leave to appeal – gross costs order – stay of enforcement

Judgment

[1]
BASTEN JA: In this matter, there is a summons seeking leave to appeal from a judgment of Adamson J delivered on 16 June 2021. There was a notice of intention to appeal filed on 20 June, within four days of the judgment below. The summons and the summary of argument in support were filed on 5 August – that is, last Thursday – and I am informed that they were served on the Council the following day. In these circumstances, the notice of motion comes before the Court with Council represented but not in a position to give firm responses in relation to the order sought.
[2]
The order sought today is a stay of the gross costs order made by Adamson J in an amount of $70,000 in circumstances where the costs understandably followed the event. The applicant seeks to challenge the manner in which that order was made and that forms part of her proposed appeal.
[3]
There is a claim by the applicant that she is impecunious which may be true, but there is no evidence before this Court in relation to the applicant's financial circumstances. The Council may not wish to pursue the costs order pending the outcome of the appeal, but Ms Sinclair, representing the Council, is not in a position to give an undertaking at this stage. I do not mean that critically given the short notice which has been given of the application before the Court today.
[4]
Accordingly, the appropriate course is to grant an interim stay for a period of seven days which the parties can vary if they wish. If there is some understanding as to whether the costs order will be enforced or not pending the hearing of the appeal, or at least the summons seeking leave to appeal, then the matter can be dealt with by agreement without coming back before a judge of the Court.
[5]
Accordingly, I make the following orders:
1. (1)
  Pursuant to order 2 sought in the notice of motion of 5 August 2021, stay the enforcement of the costs orders made by Adamson J in the proceedings below for a period of seven days or until otherwise determined by agreement or by the Court. If no agreement can be reached within seven days, I direct that the notice of motion be returned to the Registrar's list on 16 August 2021.
2. (2)
  Costs of today are costs in the proceedings.