New South Wales Court of Appeal CITATION: The Protective Commissioner v "D" & Ors (No 3) [2005] NSWCA 31 HEARING DATE(S): On written submissions JUDGMENT DATE: 28 February 2005 JUDGMENT OF: Mason P; Giles JA; McColl JA DECISION: Order (2) made on 21 December 2004 amended to read "(2) Protective Commissioner to pay the second respondents' costs of the s 12 application on a comon fund basis". CATCHWORDS: Clarification of scope of earlier costs order - no question of principle. ND The Protective Commissioner v "D" [2004] NSWCA 216; CASES CITED: The Protective Commissioner v "D" (No 2) [2004] NSWCA 477. The Protective Commissioner - Applicant PARTIES: "D" - First Respondent John Kotevski, Ljupka Kotevski, Nada Dimkovska and Mita Dimkovska - Second Respondents FILE NUMBER(S): CA 40892/03 S W Balafoutis - Applicant COUNSEL: No appearance - First respondent D Marks - Second respondents Timothy John Tunbridge - Applicant SOLICITORS: No appearance - First respondent McBride Harle & Martin - Second respondents LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): ED 39/03 LOWER COURT JUDICIAL OFFICER: Windeyer J IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40892/03 EQ 39/03 MASON P GILES JA McCOLL JA Monday 28 February 2005 THE PROTECTIVE COMMISSIONER v "D" & ORS (NO 3) Judgment – costs application 1 THE COURT: The Protective Commissioner applied for a direction pursuant to s 12 of the Protected Estates Act 1983. Windeyer J referred the application to the Court of Appeal. On 5 July 2004 we gave the direction, and made a costs order but with liberty to apply: The Protective Commissioner v "D" [2004] NSWCA 216 ("Protective Commissioner (No 1)"). 2 The liberty was taken up. On 21 December 2004 (The Protective Commissioner v "D" (No 2) [2004] NSWCA 477 ("Protective Commissioner (No 2)") we set aside the costs order and made orders including an order in the terms - "(2) Protective Commissioner to pay the second respondent's costs of Protective Commissioner (No 1) on a common fund basis." 3 The second respondents' solicitors wrote to the Protective Commissioner on 23 December 2004 asking that office to advise whether, for the purpose of the assessment of costs, the Protective Commissioner conceded that order (2) in Protective Commissioner (No 2) was intended also to refer to the second respondents' costs of the costs application. 4 It appears that as at 12 January 2005 the second respondents' solicitors had not received a response to their letter of 23 December 2004. On that day they wrote to the Court submitting that it was apparent from Protective Commissioner (No 2) that the Court had intended to order the Protective Commissioner also to pay the second respondents' costs associated with the second judgment. They sought an order in the following terms: "That in The Protective Commissioner v "D" & Ors (No 2) (Court of Appeal costs application) the Protective Commissioner is to pay the second respondents' costs on a common fund basis." 5 On being advised that the Protective Commissioner opposed the order sought by the second respondents, the Court directed that office to provide submissions as to why that order should not be made. 6 Those submissions have now been received. The Protective Commissioner's submissions noted that the orders made in Protective Commissioner (No 2) had been taken out on 13 January 2005. A copy of the orders was provided showing they were filed on 24 December 2004. 7 The Protective Commissioner submitted that the Court ought not accede to the second respondents' application. He argued that the costs order in Protective Commissioner (No 2) was made because of the special circumstances of Protective Commissioner (No 1) where the issues on appeal were of concern to all protected estates. The Protective Commissioner submitted that the costs application dealt with in Protective Commissioner (No 2) did not give rise to the same issues of concern to all protected estates. 8 In our view, the Protective Commissioner's submissions are captious. The second respondents are correct that the intent of Protective Commissioner (No 2) was that the Protective Commissioner was to pay all the costs of the proceedings including the costs of Protective Commissioner (No 2). The costs issue dealt with in the second judgment was integral to the principal proceedings. 9 It is unnecessary to make the order the second respondents seek, as the order taken out does not correctly express the Court's decision. It should be amended pursuant to Supreme Court Rules Pt 20 r 10. 10 We order that order (2) made on 21 December 2004 be amended to read: "(2) Protective Commissioner to pay the second respondents' costs of the s 12 application on a common fund basis." 11 We make plain that that order is intended to include the costs from commencement of the proceedings and such costs, if any, as have arisen concerning the costs issue following the delivery of judgment on 21 December 2004. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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