Shaw v Thomas [2010] NSWCA 169

New South Wales Court of Appeal

CITATION: Shaw v Thomas [2010] NSWCA 169 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 21 June 2010

JUDGMENT DATE: 23 July 2010

JUDGMENT OF: Beazley JA at 1; Tobias JA at 2; Macfarlan JA at 3

(1) Appeal allowed; (2) Set aside Orders 1 and 2 made on 26 June 2009 and Order 1 and "Further Order" 1 made on 30 July 2009; (3) Direct that judgment for the appellants be entered in the proceedings; (4) Subject to Order (5), order the respondent to pay the appellants' costs of the proceedings at first instance and on appeal; DECISION: (5) Order the appellants to pay on the ordinary basis the respondent's costs thrown away by reason of the amendment by the appellants of their written submissions on appeal and Notice of Appeal; (6) Grant leave to the appellants to amend their Amended Notice of Appeal to seek restitution, a Further Amended Notice of Appeal to be filed within 14 days of the date of this judgment; (7) Order that the respondent pay to the appellants by way of partial restitution of the amount of $30,000 paid by the appellants to the respondent's tutor on 11 August 2009, such part of that amount as the respondent's tutor did not spend for the benefit of the respondent prior to the receipt by the respondent's solicitor of the letter dated 23 June 2010 written to him by the appellants' solicitors; (8) Grant leave to the appellants to apply by notice of motion filed within 14 days of these orders, supported by affidavit and, if necessary, written submissions, for an order for payment by way of restitution of a fixed amount of money if agreement cannot be reached between the parties as to the amount referred to in Order (7); and (9) The respondent to have a certificate under the Suitors' Fund Act 1951, if qualified.