Eliezer v The Council of St Andrew’s Cathedral School (No 2) [2021] NSWCA 227

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Eliezer v The Council of St Andrew's Cathedral School (No 2) [2021] NSWCA 227 Hearing dates: On the papers: submissions received 17 and 27 August 2021 and 17 September 2021 Date of orders: 21 September 2021 Decision date: 21 September 2021 Before: Payne JA and Stevenson J at [1]; White JA at [34] Decision: (1) Pursuant to s 14 of the Civil Procedure Act 2005 (NSW) order that the requirement that the first respondent file a notice of motion seeking an order pursuant to s 98(4)(c) of the Act for a gross sum costs order be dispensed with. (2) Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) the costs of the first respondent's application to this Court are specified as a gross sum of $8,756. (3) The applicants' application for a stay is dismissed. Catchwords: COSTS – gross sum costs order – where submissions and evidence in support of application for gross sum costs order served prior to the hearing of the applicants' application for judicial review against the possibility that the application for judicial review was unsuccessful – where application for judicial review dismissed with costs – where Court made directions on delivery of judgment for applicants to provide submissions in response – whether application for a gross sum costs order was an application to set aside or vary the original costs order – whether application governed by UCPR r 36.16(3) or 36.16(3A) – where applicant for the gross sum costs order did not file a notice of motion seeking the order within 14 days of the costs order being entered – whether any requirement to do so should be dispensed with Legislation Cited: Civil Procedure Act 2005 (NSW), s 98(4) Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16, 36.17 Cases Cited: Aukuso v Tahan (No 2) [2018] NSWCA 302 Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 294 Boateng v Dharamdas [2019] NSWCA 233 Deputy Commissioner of Taxation v Meredith (No 2) (2008) 75 NSWLR 462; [2008] NSWCA 133 Eliezer v The Council of St Andrew's Cathedral School [2021] NSWCA 144 Foundas v Arambatzis (No 2) [2020] NSWCA 51 Hamod v State of New South Wales [2011] NSWCA 375 Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 Livers v Legal Services Commissioner (No 2) [2021] NSWCA 164 Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Osten (No 2) [2021] NSWCA 98 Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy t/as Fraser Clancy Lawyers (No 4) [2018] NSWCA 327 Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd & Ors (No 2) [2008] NSWCA 205 Rodi v Gelonesi [2016] NSWCA 348 Short v Crawley (No 45) [2013] NSWSC 1541 Tjiong v Tjiong (No 2) [2018] NSWSC 1981 Category: Costs Parties: Supriya Eliezer (First Applicant) Joseph Eliezer (Second Applicant) The Council of St Andrew's Cathedral School (First Respondent) District Court of NSW (Second Respondent) Local Court of NSW (Third Respondent) Representation: Counsel: Dr G O'Shea (First Respondent)