Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lambourne v Baker (No 3) [2022] NSWCA 25 Hearing dates: On the papers Date of orders: 2 March 2022 Decision date: 02 March 2022 Before: Basten JA; Gleeson JA; Emmett AJA Decision: (1) Upon the first respondent paying into Court the judgment debt created by order (2) made on 24 September 2021, payment of that amount to the third appellant is stayed pending determination, by assessment or agreement, of the costs payable by the appellants pursuant to order 3A(1) entered on 19 November 2021. (2) The amount to be paid to the third appellant will be the balance, if any, after setting off the costs determined to be payable by the appellants to the respondents. (3) Order 4 made on 19 November 2021 (otherwise dismissing the notice of motion) is varied to the extent necessary to permit the making of the above orders. Catchwords: JUDGMENT AND ORDERS – costs – costs payable by party entitled to judgment debt – joint and several liability for costs – entitlement to set-off – stay of payment of judgment debt pending assessment of costs – payment into court CIVIL PROCEDURE – slip rule – failure to address issue raised by a notice of motion – no time limit on exercise of power – application of Uniform Civil Procedure Rules 2005 (NSW), r 36.17 Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 36.17 Cases Cited: Lambourne v Baker [2021] NSWCA 229 Lambourne v Baker (No 2) [2021] NSWCA 282 Newmont Yandal Operations Pty Limited v The J. Aron Corporation & The Goldman Sachs Group (2007) 70 NSWLR 411; [2007] NSWCA 195 Category: Procedural rulings Parties: Marc Alan Lambourne (First Appellant) Glenn Craig Pollett (Second Appellant) The Punters Show Pty Limited ACN 147 950 016 (Third Appellant) Dallas Matthew Baker (First Respondent) Todd Cameron Buckingham (Second Respondent) Betmakers Technology Group Limited ACN 164 521 395 (formerly TopBetta Holdings Limited) (Third Respondent) 12Follow Pty Limited ACN 136 345 536 (Fourth Respondent) Operis Momentus Pty Limited ACN 153 419 115 (Fifth Respondent) Representation: Counsel: First Appellant (self-represented and with leave of the Court, on behalf of the Second and Third Appellants) P Silver (Respondents) Solicitors: Cockburn & Co (Respondents) File Number(s): 2019/407870 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2019] NSWSC 1777 Date of Decision: 13 December 2019 Before: Rees J File Number(s): 2016/344608 [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 original judgment in this matter was delivered on 24 September 2021: Lambourne v Baker [2021] NSWCA 229. By a notice of motion filed on 15 October 2021, and in response to leave granted by the Court, the respondents sought a variation of the proposed costs order. That matter was the subject of a second judgment, delivered on 19 November 2021: Lambourne v Baker (No 2) [2021] NSWCA 282. The notice of motion also sought a stay of "the payment of the judgment debt to the third appellant". In an affidavit of 13 December 2021, the solicitor for the respondents suggested that the Court had misunderstood the subject-matter of the proposed stay and had not addressed that issue. A notice of motion filed on 14 December 2021 sought to have the question of the stay determined. 2. It is true that the Court did not deal with the stay sought by the respondents in Lambourne (No 2). While the appellants submitted that the notice of motion filed on 14 December 2021 was out of time, the respondents invited the Court to deal with the matter pursuant to the "slip rule" in the Uniform Civil Procedure Rules 2005 (NSW), r 36.17. That power may be exercised "at any time". The power was properly invoked in the present case; the request for a stay contained in the notice of motion of 15 October 2021 was misapprehended by the Court and not addressed. The circumstances fit the criteria for invoking the rule, as explained by Spigelman CJ in Newmont Yandal Operations Pty Limited v The J. Aron Corporation & The Goldman Sachs Group (2007) 70 NSWLR 411; [2007] NSWCA 195 at [24]-[27]. The appellants, having been granted an extension of time to file submissions, availed themselves of that indulgence, but sought to file further submissions and to raise "numerous other issues which the Court has unexplainedly chosen not to address at all". The Court should now determine the respondents' application. 3. The result of the first judgment was to uphold a claim by the third appellant (The Punters Show Pty Ltd) against the first respondent (Mr Baker) in respect of improper withdrawals from the company's accounts. However, the principal claims pursued by the appellants were dismissed. As a result of the costs orders made in the second judgment, the appellants are to pay 65% of the respondents' costs of the appeal. The purpose of the proposed stay is to effect a set-off as between the judgment debt owed by Mr Baker and the costs payable to the respondents. 4. In principle, in circumstances where a party obtaining a money judgment is required to pay costs it will often be permissible to allow that there be a set-off, particularly in circumstances where there is an evidential basis to anticipate that the party likely to be the debtor after the set-off is either impecunious or otherwise at risk of not meeting the financial obligation. If the costs payable by the appellants exceed the judgment debt owing to the third appellant (which is possible), there is doubt that they would be recoverable from the third appellant, if the judgment debt is paid now and not retained by the company. 5. There is an additional complication, namely that the judgment debt is payable by one respondent to one appellant, in circumstances where there were several parties on each side of the record. Liability to pay costs is a joint and several liability of the three appellants, not just the company. That arises because there was common representation on each side of the record: thus, Mr Lambourne appeared for all three of the appellants (including the company) and the one set of legal representatives appeared for all the respondents. Accordingly, the costs order was made against the appellants jointly and severally and in favour of the respondents. 6. It is appropriate to make the order sought by the respondents. It should be conditioned upon the payment into Court of the judgment debt. 7. The Court makes the following orders: 1. Upon the first respondent paying into Court the judgment debt created by order (2) made on 24 September 2021, payment of that amount to the third appellant is stayed pending determination, by assessment or agreement, of the costs payable by the appellants pursuant to order 3A(1) entered on 19 November 2021. 2. The amount to be paid to the third appellant will be the balance, if any, after setting off the costs determined to be payable by the appellants to the respondents. 3. Order 4 made on 19 November 2021 (otherwise dismissing the notice of motion) is varied to the extent necessary to permit the making of the above orders. ********** 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: 02 March 2022