Supreme Court New South Wales Medium Neutral Citation: Marshall v Fleming (No 3) [2017] NSWSC 1785 Hearing dates: On the papers Date of orders: 18 December 2017 Decision date: 18 December 2017 Jurisdiction: Common Law Before: Payne J Decision: (1) Set aside order 1 made on 5 December 2017. (2) Set aside order 2 made 24 August 2017 and in lieu thereof order: (a) The plaintiffs pay the defendants' costs of the proceedings on the ordinary basis until 30 April 2017. (b) The plaintiffs pay the defendants' costs of the proceedings on the indemnity basis thereafter. (3) All other costs orders made in the proceedings remain undisturbed. Catchwords: COSTS – clarification of orders – slip rule – no point of principle Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Marshall v Fleming [2017] NSWSC 1107 Marshall v Fleming (No 2) [2017] NSWSC 1679 Texts Cited: None Category: Costs Parties: Margaret Lesley Marshall (First Plaintiff) Kim Neil Marshall (Second Plaintiff) Francis G Fleming (First Defendant) Marc S Moller (Second Defendant) Steven R Pounian (Third Defendant) James P Kreindler (Fourth Defendant) David C Cook (Fifth Defendant) David Beekman (Sixth Defendant) Bianca I Rodriguez (Seventh Defendant) Noah H Kushlefsky (Eighth Defendant) Robert J Spragg (Ninth Defendant) Brian J Alexander (Tenth Defendant) Justin T Green (Eleventh Defendant) Representation: Counsel: Mr C J Bevan / Ms E Graham (Plaintiffs) Mr D Villa / Mr A Barnett (Defendants) Solicitors: Turner Freeman (Plaintiffs) Kennedys Lawyers (Defendants) File Number(s): 2009/292935 Publication restriction: None Judgment 1. PAYNE J: On 24 August 2017, I made the following orders in the principal proceedings: 1. Amended statement of claim dated 22 November 2016 is dismissed. 2. The plaintiffs to pay the defendants' costs as agreed or assessed. See Marshall v Fleming [2017] NSWSC 1107. 1. Both parties sought an amendment of those orders. On 5 December 2017, I made the following further orders: 1. Pursuant to UCPR r 36.16 to amend order 2 made on 24 August 2017 and order that: 1. the Marshalls pay Kreindlers' costs of the trial on the ordinary basis until 30 April 2017; 2. the Marshalls pay Kreindlers' costs of the trial on an indemnity basis on and from 1 May 2017. 1. otherwise dismiss the motion filed by Kreindlers dated 7 September 2017; 2. the Marshalls should pay 50 per cent of Kreindlers' costs of the motion dated 7 September 2017; 3. the Marshalls motion dated 23 October 2017 is dismissed; 4. the Marshalls must pay Kreindlers costs of the motion dated 23 October 2017. See Marshall v Fleming (No 2) [2017] NSWSC 1679. 1. On 15 December 2017 at 11:02am, the solicitor for the defendants sent the following email to my chambers: "Dear Associate, We write to you with the consent of the solicitor for the plaintiffs. We refer to the costs orders made on 24 August 2017 as subsequently amended on 5 December 2017. Having considered the form of the costs orders made, the parties respectfully request that his Honour exercise the power under UCPR 36.15(2) to set aside the existing costs orders, and to make new costs orders, in accordance with the enclosed Consent Orders signed by the solicitors for the respective parties. Could you please advise whether his Honour is prepared to make these orders in chambers?" 1. The proposed consent orders provided as follows: 1. Subject to the making of order 3, set aside order 1 made 5 December 2017. 2. Subject to the making of order 3, set aside order 2 made 24 August 2017 and in lieu thereof order: 1. The plaintiffs pay the defendants' costs of the proceedings on the ordinary basis until 30 April 2017. 2. The plaintiffs pay the defendants' costs of the proceedings on the indemnity basis thereafter. 1. All other costs orders made in the proceedings are preserved and remain undisturbed. 1. On 15 December 2017, the following email was sent to the parties by my chambers: "Dear parties His Honour has considered the Short Minutes of Order provided below but does not presently understand the utility of making such orders. The parties have liberty to provide a joint explanation of no more than 2 pages for the making of orders sought, in particular: (a) addressing what is said to be the difference between proposed orders 1 and 2 and the orders already made by the Court on 24 August 2017 and 5 December 2017; and (b) addressing why it is in the interests of justice that proposed order 3 should be made. The joint explanation should be provided to the Court by 4:00pm today." 1. The defendants filed a submission entitled 'Joint Submission re Form of Costs Orders'. It was there explained that the parties seek to ensure that any costs assessor considering a costs application is under no misapprehension as to the scope of the costs covered by the orders. No submission was filed by the plaintiffs in accordance with my direction and I will proceed on the basis that they do not dissent from the submissions made by the defendants about the proposed consent orders. The essence of the submission is: "The orders made on 24 August 2017 were expressed in terms of the costs of the "proceeding", whereas the orders made on 5 December 2017 were expressed in terms of the costs of the "trial". Pursuant to section 4 of the Civil Procedure Act 2005 the term "trial" is defined to mean "a hearing other than an interlocutory hearing", and the purpose of proposed orders 1 and 2 is to put beyond doubt that the costs for which the plaintiffs are liable to the defendants extend to costs incurred prior to the commencement of the hearing on 1 May 2017, and which are not directly referable to that hearing, but are nonetheless costs of the proceedings that are not otherwise the subject of costs orders in favour of the plaintiffs." Consideration and orders 1. Whilst I do not think there can be any real doubt about what I intended by my 5 December 2017 orders, it is obviously undesirable that there be any room for further disagreement between these parties. I do not propose to make orders, however, in the conditional form proposed by the parties as "subject to the making of order 3". I also harbour doubts about the utility of proposed order 3, which on one view is in the nature of a direction to a costs assessor rather than an order of the Court. Given the history of internecine disputes between these parties, however, I am persuaded that it is in the interests of justice to make proposed order 3. Accordingly, to remove any doubt about the interpretation of my orders of 5 December 2017, pursuant to UCPR 36.15 I make the following orders: 1. Set aside order 1 made on 5 December 2017. 2. Set aside order 2 made 24 August 2017 and in lieu thereof order: 1. The plaintiffs pay the defendants' costs of the proceedings on the ordinary basis until 30 April 2017. 2. The plaintiffs pay the defendants' costs of the proceedings on the indemnity basis thereafter. 1. All other costs orders made in the proceedings remain undisturbed. ********** 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: 08 April 2024