Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Marshall v Fleming (No 2) [2015] NSWCA 69 Hearing dates: On the papers Date of orders: 20 March 2014 Decision date: 26 March 2015 Before: Bathurst CJ at [1]; Beazley P at [9]; Meagher JA at [10] Decision: Order that the respondents pay the appellants' costs of the application for leave to appeal and the appeal. The respondents to have a certificate under the Suitors' Fund Act 1951 (NSW), if eligible. Catchwords: COSTS – where leave refused on grounds relied on by appellants in court below in circumstances where it was unnecessary to deal with other grounds – where matters not squarely raised before primary judge Cases Cited: Marshall v Fleming [2013] NSWSC 566 Marshall v Fleming [2014] NSWCA 64 Category: Costs Parties: Margaret Lesley Marshall (First Appellant) Kim Neil Marshall (Second Appellant) Francis G Fleming (First Respondent) Marc S Moller (Second Respondent) Steven R Pounian (Third Respondent) James P Kreindler (Fourth Respondent) David C Cook (Fifth Respondent) David Beekman (Sixth Respondent) Bianca I Rodriguez (Seventh Respondent) Noah H Kushlefsky (Eighth Respondent) Robert J Spragg (Ninth Respondent) Brian J Alexander (Tenth Respondent) Justin T Green (Eleventh Respondent) Representation: Counsel: C J Bevan / E W Young (Appellants) D F Villa (Respondents) Solicitors: Turner Freeman Lawyers (Appellants) Kennedys (Respondents) File Number(s): 2013/166332 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2013] NSWSC 566 Date of Decision: 17 May 2013 Before: Harrison J File Number(s): 2009/292939 [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. BATHURST CJ: In a judgment dated 20 March 2014, Marshall v Fleming, [1] this Court granted leave to appeal and allowed an appeal from an order of Harrison J "pursuant to UCPR 20.14 and/or the Memorandum of Understanding between the Chief Justice of New South Wales and the Chief Judge of the State of New York on References of Questions of Law of 28 October 2010 that a member of the New York Panel of Referees be appointed to act as a referee for inquiry and report on questions of foreign law." [2] In addition, certain ancillary orders made by the primary judge were set aside. 2. In its judgment, the Court stated that its present view was that the respondents should pay the applicants' costs of the appeal but that the costs of the proceedings in the Court below should be determined by the primary judge or such other judge of the Common Law Division who hears the proceedings. However, leave was granted to the parties to make further submissions on this issue. 3. The appellants have submitted that they should have both their costs of the appeal and the costs in the Court below. The respondents have contended that they should have the costs of the appeal and that the costs order made by the primary judge at first instance, namely, that the costs of the notice of motion be the respondents' costs in the proceedings, should not be disturbed. 4. The respondents pointed to the fact that leave was refused on each of the grounds relied upon by the appellants in the Court below. That appears to have been accepted by the appellants. However, the appellants pointed out that leave was refused in circumstances where it was unnecessary to deal with the other grounds, some of which could be dealt with in the Common Law Division. 5. Whilst the Court was of the view that the grounds of appeal required clarification, [3] as the Court pointed out, the appellants' argument was based on three essential points which formed the subject of the amended notice of appeal. [4] In their submissions on costs, the respondents did not contend to the contrary, nor did they oppose the matters being raised at the hearing of the appeal. 6. In these circumstances, I remain of the view that was previously expressed by the Court, that the appellants should have their costs of the application for leave to appeal and the appeal. 7. The fact that the matters were not squarely raised before the primary judge is of relevance to the costs below. However, that is also a matter that the Court below can take into account in dealing with the costs of the motion before the primary judge. 8. The orders made on 20 March 2014 include an order reserving the costs of the plaintiffs' notice of motion for determination by a judge of the Common Law Division. There is no need to vary this order. However, I would make the following additional orders to those made on 20 March 2014: 1. Order that the respondents pay the appellants' costs of the application for leave to appeal and the appeal. 2. The respondents to have a certificate under the Suitors' Fund Act 1951 (NSW), if eligible. 1. BEAZLEY P: I agree with Bathurst CJ. 2. MEAGHER JA: I agree with the Chief Justice. ********** Endnotes 1. [2014] NSWCA 64 ("appeal judgment"). 2. Marshall v Fleming [2013] NSWSC 566 at [25]. 3. Appeal judgment at [33]. 4. Appeal judgment at [14]. 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