Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Whall v Stamp (No 2) [2019] NSWCA 284 Hearing dates: On the papers Date of orders: 28 November 2019 Decision date: 28 November 2019 Before: Basten JA; Leeming JA; Payne JA Decision: (1) Refuse proposed orders 1-3 of in the notice of motion filed on 18 October 2019. (2) Grant the respondent to the appeal (Mrs Stamp) a certificate under s 6 of the Suitors' Fund Act 1951 (NSW) in respect of Court of Appeal Proceedings No. 2019/21362, other than the costs of this motion. (3) Otherwise dismiss Mrs Stamp's notice of motion filed on 18 October 2019. (4) Order that the applicant (Mrs Stamp) pay the costs of the respondent to the motion (Mr Whall). Catchwords: COSTS – party/party – appeals – orders seeking declaratory and injunctive relief about a costs order made over three months prior dismissed as the issue was not raised in the appeal proceedings – order seeking variation of the costs order incompetent as filed out of time – Suitors' Fund certificate granted Legislation Cited: Civil Procedure Act 2005 (NSW), s 14 Suitors' Fund Act 1951 (NSW), s 6 Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 42.7 Cases Cited: Deputy Commissioner of Taxation v Meredith (No 2) (2008) 75 NSWLR 462; [2008] NSWCA 133 Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19 In the matter of an application by Sahab Holdings Pty Limited [2014] NSWCA 299 Metropolitan Petar v The Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142 Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 4) [2018] NSWCA 52 Wardle v Agricultural and Rural Finance Pty Ltd; Agricultural and Rural Finance Pty Ltd v Brakatselos (No 2) [2012] NSWCA 388 Whall v Stamp [2019] NSWCA 163 Category: Costs Parties: Arthur Whall (Appellant / Respondent on the motion) Audrey Edith Stamp (Respondent / Applicant on the motion) Representation: Counsel: J E F Brown / N Condylis (Appellant / Respondent on the motion) J Horowitz (Respondent / Applicant on the motion) Solicitors: Owen Hodge Lawyers (Appellant / Respondent on the motion) Ronald S Czinner & Co (Respondent / Applicant on the motion) File Number(s): 2019/21362 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity - Duty List Citation: [2018] NSWSC 1811 Date of Decision: 23 November 2018 Before: Lindsay J File Number(s): 2018/355313 [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 COURT: On 8 July 2019, this Court delivered its primary judgment: Whall v Stamp [2019] NSWCA 163. In what follows familiarity with that decision is assumed. The orders of the Court were: "(1) Leave to appeal granted. (2) Grant the appellant leave (to the extent necessary) to rely on further evidence to establish that he lost the possibility of a different outcome, but otherwise dismiss the appellant's motion dated 22 May 2019. (3) Dismiss the respondent's motion to call further evidence dated 1 May 2019. (4) Direct that the draft Amended Notice of Appeal in the White Folder stand as the Amended Notice of Appeal. (5) Appeal allowed. (6) Set aside orders 1 and 2 made by the primary judge dated 23 November 2018. (7) Remit the matter to the Equity Division limited to determination of the following matters: (a) the appellant's claim for the payment of damages in lieu of specific performance of any agreement entered into by the parties with respect to an interest in the property other than the leasehold; (b) the appellant's claim for equitable compensation with respect to such an interest; and (c) the appellant's claim for payment for services performed for the respondent which were unremunerated. (8) Respondent to pay the appellant's costs of the appeal." 1. On 18 October 2019, over three months after the orders contained in the principal judgment were entered, the unsuccessful respondent filed a notice of motion seeking the following orders: "(1) A declaration that the costs the subject of Order 8 made by the Court of Appeal on 8 July 2019 (the Appeal Costs) are not payable until the conclusion of Supreme Court Proceedings No. 2018/355313 (the Proceedings). (2) An order restraining the Appellant from filing in any court any costs assessor's certificate in relation to the Appeal Costs prior to the conclusion of the Proceedings. (3) In the alternative, an order staying the operation of Order 8 made by the Court of Appeal on 8 July 2019 until the conclusion of the Proceedings. (4) An order granting the Respondent a certificate under the Suitors' Fund Act 1951 (NSW) in respect of Court of Appeal Proceedings No. 2019/21362. (5) Costs. (6) Such further or other relief as the Court deems fit." 1. The applicant on the motion, Mrs Stamp, filed an affidavit by her solicitor, Ronald Steven Czinner, sworn on 25 October 2019. The respondent on the motion, Mr Whall, filed the affidavit by his solicitor, Malcolm Stoddart, sworn on 6 November 2019. That evidence established: 1. On or about 20 July 2019, Mr Whall's solicitors retained a costs consultant to prepare a bill of costs in relation to the appeal costs; 2. On 20 August 2019, Mr Whall's solicitors received an invoice in the amount of $6,342.02 for the preparation of the bill of costs; 3. On 29 August 2019, Mr Whall's solicitors wrote to Mrs Stamp's solicitors stating that Mr Whall intended to proceed with an assessment of the costs of the appeal and saying: "We note that you have flagged that you believe the costs order of your motion determined by Lindsay J should also be assessed. We note that there was no order that those costs be payable forthwith. As such they are only assessable at the end of the proceedings in the Equity Division proceedings no. 2018/355313." 1. On 9 September 2019, Mr Whall's solicitors served the bill of costs on Mrs Stamp's solicitors; 2. On 30 September 2019, Mrs Stamp's solicitors wrote to Mr Whall's solicitors seeking an undertaking from Mr Whall that he would not seek to file any costs assessor's certificate obtained in respect of his appeal costs in any court until the conclusion of the Equity Division proceedings; 3. On 14 October 2019, Mr Whall's solicitors wrote to Mrs Stamp's solicitors stating that Mr Whall would not be providing the requested undertaking and would be filing his costs assessment application within seven days; 4. Mr Whall's solicitor stated that Mrs Stamp's solicitors' letter of 30 September 2019 was the first time that Mrs Stamp's solicitors had raised any issue about the terms of the Court of Appeal's orders in relation to the costs of the appeal. The point was made that the present application had not been foreshadowed at the hearing of the appeal and no application regarding the order about costs had been made within 14 days of the Court of Appeal's orders. Consideration 1. Proposed order 1 in the notice of motion seeks a declaration from the Court about the effect of a costs order made over three months prior to the motion being filed. This Court has jurisdiction, in an appropriate case, to resolve a dispute as to the meaning or effect of one of its orders. 2. The order was "Respondent to pay the appellant's costs of the appeal". There is nothing unclear about the meaning of that order. But there is a dispute as to its effect in light of the rules. Mrs Stamp submits that because the order made at first instance was interlocutory, the appeal was interlocutory, and that without further order, Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 42.7 applied such that the order is not enforceable until the conclusion of the proceedings. She relies on what was said in Metropolitan Petar v The Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142 at [49]. That was an appeal from an interlocutory injunction granted in pending proceedings in the Equity Division, and was itself regarded as an interlocutory proceeding to which r 42.7 applied. 3. The order from which Mr Whall's appeal was brought was a final order. It was a declaration that the defendant had no right, title or interest in the premises save for a residential tenancy. That order was made following a hearing on a final basis, albeit as a separate question. The appeal was not relevantly an interlocutory proceeding. A substantially similar submission to that made by Mrs Stamp was also made and rejected by this Court in Wardle v Agricultural and Rural Finance Pty Ltd; Agricultural and Rural Finance Pty Ltd v Brakatselos (No 2) [2012] NSWCA 388 at [96]-[99]. 4. Proposed order 2 seeks an injunction to restrain the successful appellant taking steps to give effect to that costs order. This order is consequential upon proposed order 1, and no separate submission was made in support of it. 5. Proposed order 3 seeks, in the alternative, a stay of the operation of that costs order. In contrast with proposed orders 1 and 2, the premise of order 3 is that the costs order made on 8 July 2019 was immediately enforceable. No such stay was sought during the appeal, nor within the 14 day period after the orders were entered. 6. To the extent that the motion may be treated as seeking a variation of the costs order made on 8 July 2019, under UCPR r 36.16 it is incompetent as it was filed long after the mandatory time limit permitted for such motions: see UCPR r 36.16(3A) and (3C); Deputy Commissioner of Taxation v Meredith (No 2) (2008) 75 NSWLR 462; [2008] NSWCA 133 at [15]. 7. No principle to the contrary was established by Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 4) [2018] NSWCA 52, the case relied upon by the applicant on the motion. That case involved an application for a further stay of orders of this Court which stay had been granted for the purposes of an unsuccessful appeal to the High Court. 8. No submission was made on behalf of Mrs Stamp that a sufficient application was made on her behalf within 14 days of the date of entry of the Court's orders such that this would be an appropriate case, pursuant to s 14 of the Civil Procedure Act 2005 (NSW), to dispense with the requirements of UCPR r 36.16(3A) and (3C) and consider a variation to the terms of the earlier judgment: see, for example, Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19 at [9]-[12]. Given the evidence, particularly that recorded at [3](7) above, it seems that such a submission was not available here. 9. Proposed orders 1-3 of the notice of motion filed on 18 October 2019 must be dismissed. There is no reason why Mrs Stamp should not pay Mr Whall's costs of the motion. 10. Proposed order 4 of the motion sought a certificate under the Suitors' Fund Act 1951 (NSW). The time limit provided by UCPR r 36.16(3A) does not affect jurisdiction to make such an order: In the matter of an application by Sahab Holdings Pty Limited [2014] NSWCA 299 at [11]. This is not a matter inter partes. The making of such an order is discretionary. There are no particular circumstances here weighing against the grant of a certificate. An order should be made granting the respondent, Mrs Stamp, a certificate under s 6 of the Suitors' Fund Act in respect of Court of Appeal Proceedings No. 2019/21362. 11. It should be noted that the premise underlying the present application was that this Court had ordered costs payable forthwith. That assumption was correct because the orders of the Court finally disposed of the proceedings in this Court. However, as noted at [3](3) above, Mr Whall's solicitors asserted to Mrs Stamp that the costs order made by the primary judge were not payable forthwith and were only assessable at the end of the proceedings in the Equity Division. That costs order remains on foot and was not set aside by this Court. The order did not state that the costs were payable forthwith, but for the same reason that this Court did not so state in its order as to costs, namely that the orders of the Court finally disposed of the principal issue in proceedings in that Court. The statement by Mr Whall's solicitors that the costs of the first trial are only payable at the conclusion of the remitted proceedings in the Equity Division is not self-evidently correct. However, nothing turns on that for present purposes. Orders 1. The following orders should be made: 1. Refuse proposed orders 1-3 in the notice of motion filed on 18 October 2019. 2. Grant the respondent to the appeal (Mrs Stamp) a certificate under s 6 of the Suitors' Fund Act 1951 (NSW) in respect of Court of Appeal Proceedings No. 2019/21362, other than the costs of this motion. 3. Otherwise dismiss Mrs Stamp's notice of motion filed on 18 October 2019. 4. Order that the applicant (Mrs Stamp) pay the costs of the respondent to the motion (Mr Whall). ********** 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: 28 November 2019