Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Gordon v Lever (No 4) [2020] NSWCA 280 Hearing dates: On the papers Date of orders: 06 November 2020 Decision date: 06 November 2020 Before: Bell P; Payne JA and Emmett AJA Decision: Notice of Motion dated 22 November 2019 is dismissed with costs. Catchwords: COSTS – whether costs to be ordered in relation to argument regarding application to vary costs order Cases Cited: Gordon v Lever (No 2) [2019] NSWCA 275 Gordon v Lever (No 3) [2020] NSWCA 44 Category: Costs Parties: Stanley Robert Gordon (First Appellant) Christine Margaret Gordon (Second Appellant) Allen John Lever (First Respondent) Debra Ann Lever (Second Respondent) Representation: Counsel: M R Hall SC, L Byrne (Appellants) G A Sirtes SC, C Simpson (Respondents) Solicitors: John F Gibson (Appellants) Parker & Kissane Solicitors (Respondents) File Number(s): 2019/11223 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity – Expedition List Citation: [2018] NSWSC 1888 and [2019] NSWSC 571 Date of Decision: 14 December 2018 and 17 May 2019 Before: Sackar J File Number(s): 2017/55270 [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.] Judgment 1. THE COURT: The Court delivered judgment on the substantive appeal on 13 November 2019: Gordon v Lever (No 2) [2019] NSWCA 275. The Levers were ordered to pay the Gordons' costs of the appeal. 2. Subsequent to delivery of judgment, the Gordons sought to vary this costs order by adding to the costs order in their favour the words "assessed on the ordinary basis up to 4 April 2019, and on an indemnity basis thereafter." They did so by Notice of Motion dated 22 November 2019. Written submissions were received and considered by the Court. This resulted in this Court's judgment in Gordon v Lever (No 3) [2020] NSWCA 44. 3. In that judgment, the Court concluded that it would not exercise its discretion to vary the costs order in the way sought by the Gordons: see at [4]. 4. Subsequent to delivery of that judgment, the solicitors for the Lever interests have reminded the Court that the Levers sought an order for costs in relation to the Notice of Motion dated 22 November 2019. Costs ordinarily follow the event and there is no reason why that should not be so in the instant case. 5. Accordingly, the Court will order that the Notice of Motion dated 22 November 2019 is dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 November 2020