Lambourne v Baker

Court of Appeal (NSW)|2024-05-28|Before: Rees J

Solicitors: Vintage Commercial Law (Respondents) File Number(s): 2019/407870

[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.]

Mr Lambourne's applications

Because the respondents' request for payment out of moneys held in Court was opposed by the appellants, the motions were listed for hearing before a judge of the Court. Mr Lambourne gave notice that he would seek an adjournment of the hearing and also that he opposed the hearing of the motions by me.

Recusal application

With respect to the recusal application, Mr Lambourne explained the basis of the application orally. It was, in substance, that he did not feel he had obtained a fair hearing when the appeal was before the Court on 23 and 24 June 2021. It may be assumed that the application turned on a reasonable apprehension of bias. The outcome of the proceedings is not a basis for alleging a reasonable apprehension of bias, nor was any aspect of the reasons for judgment relied on to suggest a basis for the application: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [67].
The fact that the Court rejected his application to adduce further evidence in the course of the hearing may have involved circumstances where he felt intimidated. As to that matter, the Court was unanimously of the view that the application should be rejected and indicated to Mr Lambourne that the application would be refused on the basis that relevant grounds had not been established. Reasons were reserved and were explained by Emmett AJA in Lambourne No 1 at [41]-[58]. As Emmett AJA noted at [41], "[a] considerable part of the first day of the hearing of the appeal was taken up with an application by the [appellants] for leave to adduce further evidence".
It may be inferred from this statement that the application was vigorously pursued by Mr Lambourne, who appeared unrepresented for the appellants. As the presiding judge, I assume that the refusal of the application was explained briefly by me to Mr Lambourne, in terms which may not have been accepted by him. I have no recollection of the hearing, but I accept that there may have been brisk exchanges if he continued to resist the ruling on evidence, and that he felt intimidated in not being able to pursue his case in the manner in which he had expected. The Court was not taken to the transcript of the hearing in June 2021, nor was the basis for a claim that he had been treated unfairly explained.
If Mr Lambourne considered the ruling with respect to the adducing of further evidence, or the outcome of the appeal in any other respect, was erroneous, it would have been a matter for an application for special leave to appeal to the High Court. Disagreement with the outcome of a proceeding is not a proper basis for a recusal application in respect of a post-judgment motion. Nor is any other basis shown which would be relevant to the subject matter of the proceeding, which is to give effect to the existing orders of the Court.
Further, it is not desirable that motions relating to the working out of the Court's orders be referred to a judge not involved in the making of the orders, unless that course proves necessary: accordingly I would not recuse myself unless persuaded that a reasonable apprehension of bias had been made good, which it has not.
For these reasons, I declined to recuse myself.

Adjournment application

The second aspect of Mr Lambourne's initial application was that the matter be adjourned for a period of a week to allow him to prepare his case in opposition to the orders sought by the respondents.
Rather than adjourn the motions immediately, in circumstances where there was some confusion both as to the precise orders sought and as to the basis on which they were sought, I directed that the matter proceed to allow the issues to be clarified, reserving Mr Lambourne's right to reagitate his adjournment application at a later stage. As the matter progressed, counsel for the respondents clarified the nature of the orders sought and the basis on which they were sought. While Mr Lambourne did not abandon his application, it appeared in the course of the hearing that no purpose would be served in standing the matter over. However, the application was not rejected; it will be revisited at the end of this judgment.

The origin of the motions

On 29 May 2023 the Manager, Costs Assessment sent copies to the parties of the first costs assessment certificates, relating to Mr Baker's costs of the appeal and the proceedings in the Equity Division and the costs of the assessment.
On 20 June 2023, the solicitor for the respondents wrote to the Court of Appeal Registry stating that the costs assessor had determined that the respondents' costs totalled $201,544.61 and requested that that amount be paid out to them and the balance ($8,704.39), be paid to the appellants. The Registrar gave notice to Mr Lambourne of the proposal for payment out.
On 29 June 2023, Mr Lambourne responded to the notification from the Court asserting that he had not received a copy of the costs certificate of 29 May 2023 and proposed to seek a review. He opposed the proposed payment out. He also sought advice from the Manager, Costs Assessment, as to the necessary steps for reviewing the assessment certificates.
On 24 July 2023, the Court indicated that the parties should proceed by way of notice of motion if orders were sought in relation to the release of the funds held in Court. For reasons which will be explained, that step was entirely appropriate: the 20 June 2023 application by the respondents' solicitor for payment out of Court was based on a false premise.
On 12 October 2023 a separate certificate was issued relating to the second to fifth respondents. Again, the assessment related to costs of the appeal and the proceedings in the Division (and the costs of the assessment).
The separate certificates as to the assessor's costs in each case related to both the proceedings below and the costs of the appeal. Putting those costs to one side, the costs of the proceedings below totalled $326,813.72 and the costs of the appeal (for all respondents) totalled $180,592.86.
On 15 December 2023, in accordance with the Registrar's direction of 24 July 2023, the respondents filed a notice of motion seeking orders that the sum paid into Court be disbursed, as to $201,544.61 to them and $8,704.39 to the appellants. There were two infelicities in this order. First, it sought to set off against the judgment debt the costs payable by the appellants to Mr Baker, including his costs in the Equity Division (and including interest). Secondly, it sought that the balance be paid to the "applicants/Cost respondents", whereas the judgment debt was in favour only of the third appellant (Punters Show).
The next step, taken on 13 March 2024, was the filing by the respondents of a second notice of motion, which purported to invoke the slip rule in UCPR r 36.17, "or, alternatively, the inherent jurisdiction of the court", to vary the orders made on 2 March 2022 so as to create a stay "until all costs orders" in favour of the respondents had been assessed or agreed.
Both notices of motion were amended on 18 April 2024. The 15 December 2023 motion (payment motion) was amended in two respects: first, so that the payments were to be made to the respondents (not Mr Baker alone) with a balance payable to the third appellant (not the appellants jointly). Those corrections were appropriate. The second variation was to reduce the amount payable to the respondents to $186,214.86. That sum was the amount of costs payable by the appellants to the respondents in respect of the appeal only, including a portion of the filing fees and the assessor's costs attributable to the assessment of costs of the appeal only. It also included an amount of $15,176.18 on account of interest.
The notice of motion filed on 13 March 2024 (slip rule motion) was amended by the addition of an order that the whole amount be paid out to the respondents, which seemed to assume that the orders of 2 March 2022 would be varied to permit the setting off against the judgment debt the Equity Division costs in addition to the costs of the appeal.

Slip rule motion

In so far as the slip rule motion sought to have the Court revisit its orders of 2 March 2022, the basis of the motion was misconceived. There was no ambiguity in the form of the orders, which permitted the respondents to set off the appeal costs but not any costs which might be the result of further orders made in the Equity Division. The Court stated in Lambourne No 3: "3 … As a result of the costs orders made in the second judgment, the appellants are to pay 65% of the respondents' costs of the appeal. The purpose of the proposed stay is to effect a set-off as between the judgment debt owed by Mr Baker and the costs payable to the respondents."
Reading the order made in context there can be no doubt that the Court was accepting the appropriateness of the stay sought in relation to the costs of the appeal payable by the appellants. At that time there was no other extant costs order.
There was no "slip" or error on the part of the Court in making those orders. While it was true that the respondents had sought a stay (and set off) in respect of "all costs" payable by the appellants to the respondents, the orders of the Court were precise in distinguishing those costs to which the stay and set off related and those to which it did not. That was not based upon any misapprehension as to what was sought, but rather reflected the fact that the Court was dealing with a judgment debt created by the earlier orders of the Court and the costs order made by the Court. It was not then known what, if any, costs orders would be made in the Equity Division on the remittal.
Accordingly, there was no basis for the attempted invocation of the slip rule in UCPR r 36.17. There was no clerical mistake, nor an accidental slip or omission, which required correction.
Further, so far as the orders of 2 March 2022 were concerned, the power to set aside or vary an order pursuant to r 36.16(3A), or (3B) is only available within 14 days after a judgment or order is entered (with respect to the latter power of the court on its own motion) or pursuant to a notice of motion filed within that period. Subrule (3C) denies the Court the power to extend that time and disapplies r 1.12, which might otherwise have permitted the Court to grant such an indulgence. One might add that, the notice of motion filed on 13 March 2024 being the first occasion on which some such variation was sought in clear terms, an extension of two years would not have been favourably considered, had there been power to do so.
That leaves the question of the Court's inherent jurisdiction. It originally appeared that the inherent jurisdiction was sought to be invoked to override the effect of r 36.16. That should not be accepted. The function of r 36.16 is often misunderstood. It constitutes an exception to the general law principle that a Court has no power to vary its own orders once they have been entered, with exceptions in circumstances where there has been a mistake, or where an order has been obtained by fraud. That is an aspect of the principle of finality explained in Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49; and Gamser v Nominal Defendant (1977) 136 CLR 145; [1977] HCA 7. Prior to the change with respect to the entry of orders made in 2005, orders were not entered when a judgment was delivered, but only upon a party filing a short minute seeking to have the orders entered. When, under the new system, orders were entered automatically by the Court, and usually immediately following the delivery of judgment, it became necessary to allow a period within which a party could take issue with the form of the orders and seek a variation of the orders as if they had not been entered. That was the purpose and effect of r 36.16. (The exceptions are now found in rr 36.15 and 36.17 and general law principles with respect to fraud.)
The slip rule motion should be dismissed.

Payment motion

As noted above, the amended payment motion was limited to the costs payable to the respondents in respect of the appeal, together with interest. Although the Court did not order interest on costs, since an amendment to s 101(4) of the Civil Procedure Act 2005 (NSW) in 2015, interest is payable on an amount ordered for costs unless the Court otherwise orders: the Court did not otherwise order. Accordingly, the payment motion complied with the order made by the Court on 2 March 2022.
Mr Lambourne resisted the proposed payout orders, effectively on three grounds which may be summarised as follows: 1. until he received an email from the respondents' solicitor on Sunday 26 May 2024, he was uncertain "as to the direction or the proposed intent" of the motions; 2. uncertainty as to when the stay actually commenced and would expire; and 3. the amount to which Punters Show was entitled should include interest, which had not been calculated.
In respect of the first matter, Mr Lambourne submitted that the email the previous Sunday night had provided the first indication that "the amended release motion is now to be relied upon via the affidavit sworn on 15 December [2023]". However, that was not the first notification that he had received about that matter. It was clear from the respondents' written submissions of 22 March 2024 that the first notice of motion of 15 December 2023 and the supporting affidavit, were to be relied upon, with amendments which, as noted above, reduced the amount claimed by way of costs.
As to the second matter, although there was a suggestion at one point that the stay had not actually operated at any time because Mr Baker had not made a payment into Court, there was no substance in that point. The payment in had been made on his instructions within the time allowed for payment of a judgment debt without incurring interest. As to the expiration, there may have been an issue as to precisely when the balance was payable, but in terms of the order, that appears to have been when the relevant costs determination was made.
As to the third matter, the suggestion that interest on the judgment debt was payable pending payment out of court, was inconsistent with the stay and appeared to be based on the proposition that the stay had never had effect. Whether interest (other than interest accruing on the amount held by the court) was payable from the date the whole of the respondents' costs were calculable, that was not until the second determination made in October 2023. To the extent that there is a dispute as to whether interest should be paid by the respondents from that time on the balance of the judgment, that is not a matter which affects the rights of the parties under the orders made by this Court.
There was no other apparent basis for delaying the payments out of court. Accordingly, there was no reason for adjourning the hearing of the respondents' motions.

Conclusions

Absent a variation of the orders made on 2 March 2022, pursuant to UCPR r 36.17, the respondents were not entitled to set-off against the judgment debt paid into Court their costs incurred in the Equity Division. Accordingly, the request to the Registrar for payment out based on Mr Baker's costs as assessed, but including both the appeal and the proceedings in the Division, was misconceived.
There is no information before the Court as to why the assessment of the costs of the remaining respondents was not completed for another five months, but it may be accepted that it was not until 12 October 2023 that the calculations now relied upon by the respondents could be made. However, once it is accepted that the slip rule motion should be dismissed, the conditions for the payment out are satisfied and orders should be made accordingly, in the terms sought by the respondents.
Whilst I accept that Mr Lambourne has made statements as to the possibility of a review application in relation to the costs assessment certificates, in my view that possibility should be discounted. Whether he obtained notice of the first certificate on about 29 May 2023, or a month later in June, when he received notice from the Court of the application for payment out, some 12 months have now passed. Although the period is shorter with respect to the costs certificate issued on 12 October 2023, the period is still several months. No doubt there may be circumstances which would allow an extension of time to be granted by the Manager, Costs Assessment, but no such application has been made and the basis for such an application is not known to this Court. Further delay in paying out the moneys presently in Court will tend to disadvantage Punters Show, as well as the respondents. In any event, to resolve the present issue, namely the fate of the moneys paid into Court, is not to foreclose further proceedings in relation to the costs assessment certificates.
As the foregoing explanations demonstrate, the issues for resolution are confined. Had there been a question as to whether the orders made by the Court on 2 March 2022 should be varied so as to allow for a set-off to include the costs incurred in the Equity Division, I would have been minded to grant Mr Lambourne's application for an adjournment. However, the slip rule motion having been dismissed, that issue does not arise. Accordingly, I propose to dismiss Mr Lambourne's adjournment application.
The money paid into Court will have accrued interest. An order that the balance after payment of the respondents' costs be paid to the third appellant will mean that the interest goes to it. That is appropriate; the respondents' costs certificates carried interest, at least up to the date of the determinations, whereas the third appellant's judgment debt does not. Rather than allow interest on interest with respect to the costs, it is fair that the third appellant receive any interest that has accrued whilst the debt has been sitting in the Court's account. (If this conclusion is based on a false factual assumption, it should be borne in mind that neither party sought to address this issue and the amounts involved do not warrant the invitation of further submissions.)
In relation to the costs of the motions, three factors should be borne in mind. First, the amended notices of motion did not seek costs. Secondly, the slip rule motion, which was potentially the most contentious matter, is to be dismissed. Thirdly, until amended on 19 April 2024, the payment motion did not have the correct amount for payment out of the respondents' costs. Taking these matters into account, there should be no order as to the costs of either motion, nor in relation to the additional matters raised at the hearing.
The Court makes the following orders: 1. Dismiss Mr Lambourne's recusal application. 2. Dismiss Mr Lambourne's adjournment application. 3. Dismiss the respondents' application to reopen and vary the orders made by the Court on 2 March 2022. 4. Grant the respondents leave to rely upon the amended notice of motion, filed on 19 April 2024, seeking payment out of moneys paid into Court. 5. Order that the sum of $210,249.00 paid into Court on 21 March 2022, together with such interest as may have accrued on that sum, be disbursed as follows: 1. payment of $186,214.86 to the respondents; and 2. payment of the balance to the third appellant (Punters Show Pty Ltd). 1. There be no order as to the costs of the motions with the intention that each party bear its own costs.

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: 31 May 2024

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (11)

Cited By (2)