Beau Timothy John Hartnett trading as Hartnett Lawyers v Anthony Robert Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell (No 2) [2023] NSWCA 311

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Beau Timothy John Hartnett trading as Hartnett Lawyers v Anthony Robert Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell (No 2) [2023] NSWCA 311 Hearing dates: 11 December 2023 Decision date: 15 December 2023 Before: Bell CJ; Adamson JA Decision: (1) Order the appellant to pay the respondent's costs, as ordered on 12 October 2023, in the gross sum of $70,000. (2) Order the appellant to pay the respondent's costs of the notice of motion filed on 2 November 2023 in the gross sum of $5,000. (3) Order that the sum of $30,000 paid into court by the appellant and received by the Court on 8 December 2022 be released to the respondent forthwith to be applied in accordance with s 136 of the Civil Procedure Act 2005 (NSW). (4) Note that the appellant will not be in breach of the undertaking given to the court by his counsel on 9 November 2022 (the Undertaking) if he pays the following sums into the respondent's solicitor's trust account: (a) $311,356.47; (b) post-judgment interest of $28,858.29; (c) $70,000 (as ordered in order (1) above); and (d) $5,000 (as ordered in order (2) above). (5) If and when the appellant pays the amounts set out in order (4) above, he is discharged from the Undertaking. Catchwords: COSTS — application for gross sum costs order pursuant to s 98(4)(c) of Civil Procedure Act 2005 (NSW) — notice of motion filed more than 14 days after entry of original costs order — whether application for gross sum costs order a variation of original order Legislation Cited: Civil Procedure Act 2005 (NSW), ss 3, 14, 60, 98, 101 Interpretation Act 1987 (NSW), s 33 Federal Court Rules 1979 (Cth), rr 3, 4 Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 36.16, 42.2 Cases Cited: Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 Eliezer v The Council of St Andrew's Cathedral School (No 2) [2021] NSWCA 227 Foundas v Arambatzis (No 5) (2022) 109 NSWLR 73; [2022] NSWCA 113 Gabrielle v Abood (No 4) [2023] NSWCA 100 Hamod v New South Wales [2011] NSWCA 375 James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84 Livers v Legal Services Commissioner (No 2) [2021] NSWCA 164 Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy t/as Fraser Clancy Lawyers (No 4) [2018] NSWCA 327 Short v Crawley (No 45) [2013] NSWSC 1541 State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 Category: Costs Parties: Proceedings 2022/299298 Beau Timothy John Hartnett trading as Hartnett Lawyers (Appellant) Anthony Robert Bell as executor of the Estate of the late Mabel Dawn Deakin-Bell (Respondent)