Lambourne v Baker

The defendants have sought a gross costs order and an affidavit has been filed by the defendants' solicitor sworn on 18 November 2024. The power to make an order for costs is found in s 98 of the Civil Procedure Act 2005 (NSW). Section 98(4)(c) enables the Court to make a gross costs order. In Hamod v State of New South Wales [2011] NSWCA 375, Beazley JA considered at [812]-[820] the legal principles relevant to the award of a specified gross sum instead of assessed costs.

I consider it appropriate to make a gross costs order in the present proceedings having regard to the extensive nature and history of the litigation between the parties, much of which has involved costs. It is fair to both parties that the expense, delay and aggravation likely to be involved in a contested costs assessment is avoided. I have considered the solicitor's affidavit and decided that a discount should be applied. Accordingly, I make an order that the plaintiffs pay the defendants' costs of the notices of motion in the sum of $10,000.

Senior counsel for the defendant has sought an order that Basten AJA's order in Lambourne (No 4) [2024] NSWCA 132 be varied so as to insert in order 5, an order that the gross costs be paid before payment of the balance to Punters Show Pty Ltd. I decline to make such an order as it would be varying an order made by another judge of appeal.

In respect of the plaintiffs' application for a stay, I have pointed out, as Mr Lambourne well knows, that he may apply immediately to vary or discharge the judgment that I have given today. However, I consider that it is appropriate to order a stay for 28 days to enable him to proceed with that application if he wishes to do so. Accordingly, I stay the orders for 28 days from today.