Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lambourne v Baker [2024] NSWCA 281 Hearing dates: 18 November 2024; 25 November 2024 Date of orders: 25 November 2024 Decision date: 25 November 2024 Before: Price AJA Decision: (1) I make an order the plaintiffs pay the defendants' costs of the notices of motion in the sum of $10,000. (2) The orders are stayed for 28 days from today. Catchwords: JUDGMENTS AND ORDERS – gross costs order – stay of orders Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Hamod v State of New South Wales [2011] NSWCA 375 Lambourne v Baker (No 4) [2024] NSWCA 132 Category: Costs Parties: Marc Alan Lambourne (First Plaintiff) Glenn Craig Pollett (Second Plaintiff) Punters Show Pty Ltd (Third Plaintiff) Dallas Matthew Baker (First Defendant) Todd Cameron Buckingham (Second Defendant) BetMakers Technology Group Ltd (Third Defendant) 12 Follow Pty Ltd (Fourth Defendant) Operis Momentus Pty Ltd (Fifth Defendant) Representation: Counsel: A Cheshire SC (Defendants) Solicitors: M Lambourne (First Plaintiff, Second Plaintiff, Third Plaintiff) (Self represented) Vintage Law (Defendants) File Number(s): 2019/00407870 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Court of Appeal Citation: [2024] NSWCA 132 [2024] NSWCA 241 Date of Decision: 31 May 2024 11 October 2024 Before: Basten AJA Ward P, Mitchelmore and Kirk JJA File Number(s): 2019/00407870 [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 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. 2. 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. 3. 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. 4. 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. Orders 1. I make an order the plaintiffs pay the defendants' costs of the notices of motion in the sum of $10,000. 2. The orders are stayed for 28 days from today. ********** 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: 26 November 2024