Lambourne v Baker

Applicants' submissions

1. The applicants rely on a number of sets of submissions, including submissions prepared by the solicitor (Mr Rodney Kent) formerly acting for the applicants; and Mr Lambourne also made oral submissions.
2. Distilling those various submissions, which overlap to an extent, the principal basis on which the applicants contend that Basten AJA erred in making the orders for payment out of the funds is the contention that his Honour did not properly address or apprehend the "quantum issue" raised by the applicants; and wrongly proceeded on the basis that the respondents were "entitled" to the amount ordered to be paid out to them in circumstances where the costs certificate in relation to the appeal costs had not been registered and hence was not enforceable as a judgment. That said, the "core argument" identified in Mr Lambourne's reply submissions is that the orders as to no costs made on 24 September 2021 are final because the court became "functus officio" on Ms Craven's "election" not to file a notice of motion within 14 days.
3. As to the "quantum issue", the applicants contend that the stay granted on 2 March 2022 was never operative for two reasons: first, because Mr Baker did not himself pay the judgment debt into Court (the moneys being paid by the fifth respondent as authorised by Mr Buckingham), and second, because the amount required to be paid into Court (the judgment debt) included interest as from 24 September 2021 pursuant to s 101(3) of the Civil Procedure Act, and hence what was required to be paid into Court as at 21 March 2021 was more than the amount actually paid in. The applicants say that no order was made on 2 March 2022 to "countermand the work" of s 101 of the Civil Procedure Act and hence that interest commenced to accrue in accordance with s 101 in circumstances where the judgment debt was not paid within 28 days. Mr Lambourne has calculated that the amount of the judgment debt, including interest, as at 21 March 2022 (when the payment into Court was made), was $216,503.48 (see [30] of his 6 June 2024 affidavit).
4. The applicants submit that his Honour erred in 'avoiding' the quantum issue by saying that no interest had accrued on the judgment debt because the payment into Court was made within 28 days of the 2 March 2022 order.
5. On the position advanced in the applicants' submissions, the argument is that the consequence of the asserted error as to the quantum issue is that there was never any operative stay of payment of the judgment debt (and hence Punters Show was entitled to payment of that amount as at 31 May 2024 when the payment motion was determined).
6. An alternative basis on which the 'no stay' argument is put in Mr Lambourne's submissions turns on when the notice of motion seeking payment out (the 8 October 2021 motion) was filed. The 24 September 2021 orders included order (3) (that there be no order as to costs in respect of the appeal and the first instance proceedings) and order (4) which permitted the parties to reopen the question of costs by affidavit filed within 14 days in the ordinary course. As I have earlier noted, Mr Lambourne contends that the respondents' motion, although forwarded to the Registry by email on 8 October 2021, was not stamped as filed until 15 October 2021. The JusticeLink document does not support that contention.
7. Mr Lambourne argues that the Court became functus officio once the respondents' solicitor failed to file a notice of motion within 14 days "in the ordinary course"; and that therefore the 24 September 2021 order (that there be no order as to the costs of the respective proceedings) remained in force and that therefore each party must bear its own costs in the Supreme Court and in the appeal proceedings. Hence, Mr Lambourne argues that there is no set-off to be considered; and that the orders made on 19 November 2021 are inconsistent with the 24 September 2021 orders and thus otiose. Mr Lambourne relies on this argument in support of his application for a permanent stay of the 19 November 2021 orders, contending that the respondents' solicitor elected not to repair the procedural mishap (as to the filing of the 8 October 2021 notice of motion) and the respondents are bound by that election (citing Commonwealth of Australia v Verwayen (1990) 170 CLR 394; [1990] HCA 39). Mr Lambourne maintains that the respondents' solicitor became aware of this issue on receipt of the applicants' 25 February 2022 submissions and hence that since at least that date there has been an abuse of the Court process. I address this submission (notwithstanding that it appears to proceed on a wrong premise) in due course.
8. If the applicants' 'core argument' not be accepted, then the applicants raise the further challenge to his Honour's orders based on the contention that Punters Show has the better entitlement to the moneys for the purposes of r 41.11 of the UCPR (having the benefit of the 24 September 2021 order for payment of the judgment sum, which for the reasons above they maintain has never been stayed). The applicants contend that the 31 May 2024 determination was based on the erroneous premise that as at that date the costs certificates gave the respondents an immediately enforceable legal right to the costs as assessed.
9. The applicants submit that, as at 28 May 2023 (the day before the costs certificate was issued), the respondents were not entitled to have the funds released to them because there is no evidence of registration of the costs certificate under s 71(3) of the Legal Profession Uniform Law Application Act 2014 (NSW) (Legal Profession Uniform Law Application Act), reference also being made to s 133(2)(b) of the Civil Procedure Act (which deals with, inter alia, enforcement of unpaid assessed costs).
10. Thus, Mr Lambourne argues that, as at 31 May 2024, Punters Show was the only party "entitled" to the moneys in Court (for the purposes of r 41.3 of the UCPR) because the respondents had not registered the costs certificates issued by the Costs Assessor (the first step required for enforcement of the costs judgment).
11. Further, Mr Lambourne argues that, even if the costs certificates had been registered at that stage, they lacked the status of a judicial determination (referring to authority to the effect that registration is merely a "ministerial act", and that the mere fact of registration does not convert the certificate into a judicial determination, citing Frumar v The Owners of SP36957 [2010] NSWCA 172 at [42] where it is said that registration makes the certificate enforceable as a judgment but otherwise does not alter its legal effect).
12. Complaint is also made in the course of the applicants' submissions as to the alleged inadequacy of his Honour's reasons (reference being made to the statement by McHugh JA, sitting in this Court as his Honour then was, as to the function performed by the articulation of reasons in Soulemezis v Dudley Holdings (1987) 10 NSWLR 247 (Soulemezis)) and as to the fact that his Honour did not refer to Pt 41 of the UCPR (which deals, among other things, with the circumstances in which payment out of Court can be made and Mr Lambourne argues should have been the starting point for resolution of the controversy before his Honour).
13. Various other issues are raised in Mr Lambourne's submissions, which fall outside the scope of the applicants' review application but which, for completeness, I note as follows.
14. Mr Lambourne refers in his submissions to an article published by the Hon David Ipp, formerly a judge of appeal of this Court, entitled "Lawyers Duties to the Court" (1998) 114 Law Quarterly Review 63 as a preface to making accusations against the respondents' legal representatives of breach of their duty to disclose the law and not to mislead as to the facts (and abuse of process). It is not necessary here to explore these issues, which do not arise on the review application presently before the Court. I simply note that accusations of this kind are serious ones to be made against officers of the Court and it is difficult to see on the material before this Court how those accusations could be made out. Mr Lambourne also makes allegations against Mr Baker as to the use of the "improperly withdrawn" funds while he was sole director of Punters Show (those funds being the subject of the successful Improperly Withdrawn Moneys claim). Again, it is not relevant to consider those matters, which seem only to go to the perceived unfairness of the overall outcome of the proceedings (see [11(d)] and [55(t)] of Mr Lambourne's August affidavit).
15. In addition, Mr Lambourne's submissions make complaint in some detail as to alleged flaws in the costs assessment process (which he submits would need judicial determination before the costs certificate could be enforced) and (as mentioned above) alleged abuse of process in relation to the conduct of the proceedings on the part of the respondents and their legal representatives (including complaint as to the "smoke and mirrors" processes allegedly used by them) (see Mr Lambourne's August affidavit). None of those matters is relevant to the question here to be determined as to whether his Honour erred in making the orders made on 31 May 2024. It is conceded by Mr Lambourne that there has been no application for review of the costs assessments (AT 13.17); and the complaints as to the conduct of the proceedings largely seek to reagitate the merits of the impugned decision or the manner in which the respondents dealt with the application which led to the decision. I do not propose here to set out the various matters said to amount to an abuse of process. Such a finding could not possibly be made without embarking on a proper hearing of the allegations and in my opinion they could not affect the question as to whether his Honour erred in ordering the payments out.
16. Mr Lambourne also complains that Mr Baker "managed to delay and ultimately avoid payment of the judgment debt" through Federal Court bankruptcy proceedings started on 24 February 2022 and dismissed on 3 November 2022 (referring to the judgment of Markovic J in Baker v Punters Show Limited, in the matter of Baker [2022] FCA 1303 at [69]). This, too, is of no relevance to the present application. Mr Lambourne in his submissions also sets out various matters surrounding the transfer of $210,249.00 into Court which he says must raise questions about good governance and transparency. Concerns of this kind (such as the true source of the funds or purpose of payment into Court and whether the payment was properly authorised; or who would have been the "ultimate true beneficiary" if the funds were to have been paid out of Court pursuant to the initial request made) are not relevant to the present application. The fact is that funds were paid into Court and his Honour was addressing an application for the payment out of those funds. It is not to the point how those funds might have been disbursed when released.
17. As adverted to above, complaints of this kind all seemingly go to the unfairness Mr Lambourne perceives in the fact that Punters Show has been held out of its judgment sum (and denied the fruits of its victory) since 24 September 2021; and his submission that were relief of the kind he seeks not to be granted this would bring the administration of justice into disrepute.
18. Mr Lambourne also appears to re-agitate the recusal issue, although as I have noted there was no application for leave to appeal from his Honour's rejection of that application. Again, this is of no relevance to the present application.
19. As to the additional order sought by Punters Show in the amended notice of motion (for a permanent stay of the orders made on 19 November 2021, i.e., the costs orders made in the appeal proceedings), the applicants say that this would effectively stop the abuse of the Court's process in this satellite litigation involving only costs that has occurred since 8 October 2021.

Respondents' submissions

1. As to the applicants' contention that the "judgment debt" referred to in the orders of 2 March 2022 included post judgment interest accruing from 24 September 2021 pursuant to s 101 of the Civil Procedure Act, the respondents contend that the reference to the judgment debt in order (1) of the 2 March 2022 orders as being the one created by the 24 September 2021 orders, and the reference to payment of "that amount", directed attention to order 1 of the orders of 24 September 2021 where the judgment sum was defined as the sum of $210,249.
2. The respondents say that, had the Court intended that interest be added to the judgment sum, this could have been made clear by including a statement to the effect that the condition of the stay required payment of the judgment debt "plus interest pursuant to s 101 of the Civil Procedure Act… calculated up until the date of the payment into Court of the judgment debt".
3. The respondents argue that this conclusion is reinforced by the absence of any reference to interest in order (2) addressing the issue of set-off. The respondents argue that if post judgment interest was to be taken into account in order (1), and then likely in respect of both of the sums to be set-off, the precise date on which the set-off was to operate would have needed to have been clearly defined; whereas this was not necessary where the set-off was as to a defined judgment sum and a defined sum of assessed costs. The respondents say that if the stay required the payment of post-judgment interest, this would have produced a difficult position for Mr Baker of having to calculate precisely when the payment into Court would take effect, including when any funds would clear, and calculating in advance what the post judgment interest would be to that date, with the risk that if the calculation fell short, there would have been no compliance and the stay would not be in operation. The respondents say that it is unlikely that such a result was intended in the absence of clear words to give that effect.
4. In any event, the respondents maintain that the question as to whether the stay was in fact operative is now irrelevant since the application before Basten AJA was for payment out of moneys that had in fact been paid into Court and in respect of which there was already a separate order for set-off that operates irrespective of whether there was in fact a stay. The respondents say that the set-off provided for does not include interest (being a set-off in respect of the fixed judgment sum ordered on 24 September 2021 and the fixed assessed costs ordered on 19 November 2021).
5. Further, the respondents argue that if the payment into Court did not have the effect of achieving a stay, then there has been a failure of the purpose for which the moneys were paid into Court and they should be returned to the respondents in full (and that considerations of set-off and enforcement would then be considered separately). (This submission seems to conflict somewhat with the respondents' submission that the set-off provided for in order (2) operates separately and irrespective of whether there was a stay since on that submission there would be a set-off rather than the return of all moneys that had been paid into Court but in any event I do not consider it necessary to delve into the question whether restitutionary principles in relation to failure of consideration are apt to apply in the context of the imposition of conditions on which a stay is granted.)
6. As to the respondents' notice of motion, as adverted to earlier this is pressed in the event that, in determining the set-off, the orders of 2 March 2022 are construed to take into account interest on the judgment sum. If that is the case, then the respondents say that there should be mutuality; i.e., that interest should be taken into account on both sides: interest on the judgment sum and interest on the amounts under the costs certificates. The respondents point to the fact that the costs certificates addressed the costs not only of the appeal but also of the proceedings at first instance and they say that on that basis, there would be a net balance owing to the appellants far exceeding the total sum in Court (attaching a spreadsheet of calculations demonstrating that position as Annexure A to the submissions).
7. The respondents argue that the issue of payment out is to be addressed separately not only to the question of whether there was a stay but also to the question of any formal set-off; and that it would be artificial not to take into account all relevant debts between the parties and to ignore the fact that the costs of the first instance proceeding have been assessed. They submit that in the proper exercise of the general discretion for the payment out of moneys held in Court, consideration is given to all possible claims over the moneys in Court, often without requiring formal pleadings between all relevant parties on all the possible claims.
8. Thus it is submitted by the respondents that if the full position between the parties, including the judgment debt, that all assessed costs and interest is taken into account then the result would be an order for the payment out of all moneys (together with accrued interest) to the respondents.

Determination

1. As outlined above, the errors identified in Basten AJA's reasons, as I understand the applicants' submissions, are: first, as to the "quantum issue", namely that his Honour failed to apprehend or fairly deal with this issue (and in particular the contention that there was no operative stay); and, second, that his Honour failed properly to address the entitlement of the respective parties to the sum paid into Court. As part of those issues, complaint is made as to the adequacy of his Honour's reasons, which I understand to be a further error that the applicants contend was made.

Quantum issue

1. As to the first, which encompasses a number of issues, I do not accept that error of the kind required on an application for review has been established.
2. Insofar as the applicants' argument rested in part on the identity of the person or entity which made the payment into Court, his Honour addressed this at [37] and did not accept that it had substance. His Honour there said that: As to the second matter [i.e., uncertainty as to when the stay actually commenced and would expire - see [35]], 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.
3. What his Honour was there addressing was a submission that he understood that the applicants were making as to the uncertainty as to the commencement and expiry of the stay (not whether interest had accrued on the judgment debt or was required to be included in the amount paid into Court as a condition of the stay). However, in the course of so doing, his Honour was clearly aware of the assertion that there was no stay because Mr Baker had not himself paid the funds into Court. I am not persuaded that there was error in rejecting that argument as being of no substance. His Honour accepted that the payment had been made on Mr Baker's instructions. That suffices for the purpose of satisfaction of a condition as to payment into Court. There would not ordinarily be enquiry into the precise identity of the payer - the question is on whose behalf or instructions the payment was made.
4. I would, however, note that insofar as his Honour suggested that payment into Court had been made within the time allowed for payment of a judgment debt without interest appears to be in error. As Mr Lambourne has pointed out, the judgment debt was outstanding for more than 28 days from the date that judgment was entered on 24 September 2021. Therefore, subject to dispensation under s 101(3), if the amount of the judgment is not paid in full within 28 days after the judgment takes effect, then in the ordinary course (and in the absence of an order otherwise) interest commences to run from the date on which the judgment takes effect (s 101(2)) on so much of the amount of the judgment (exclusive of any order for costs) as is from time to time unpaid. His Honour appears to have here been referring to the fact that the payment into Court was made within 28 days of the order granting the stay but I do not see why the imposition of the stay of payment of the judgment would have negated a claim for post-judgment interest up until the time of the stay.
5. In the absence of the stay order having retrospective operation (and I do not understand it here to be argued that it did), there is, therefore, some force in Mr Lambourne's contention that interest had already commenced to run on the judgment debt by the time of the payment into Court. However, that does not answer the question as to whether the condition imposed on the grant of the stay required the payment into Court of not simply the judgment sum but also post-judgment interest accrued up to the time of the payment into Court.
6. At [38], his Honour addressed what he understood to be the applicants' contention that the amount to which Punters Show was entitled should include interest, which had not been calculated (the third matter identified in the reasons at [35] as a ground on which Mr Lambourne resisted payment out of the moneys). His Honour said that: 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.
7. The inconsistency to which his Honour was there referring was, as I read the reasons, the suggestion that during the period in which payment of the judgment debt was stayed interest on the judgment debt was payable to the applicants. I do not understand his Honour to be suggesting that interest would not have accrued pursuant to the provisions of the UCPR on the monetary sum held in Court (and payable in due course when the moneys held in Court were to be paid out). In oral submissions, the respondents acknowledged that the imposition of the stay would not deprive the applicants of an entitlement to post-judgment interest (or interest on the funds held in Court) subject to the operation of the set-off.
8. I do not see any error in his Honour's conclusion that what order (1) of the 24 September 2021 orders required was payment of the judgment debt which had been entered in a fixed sum. True it is that the definition of "judgment debt" in the UCPR (see s 3) includes (b) any interest after judgment that is payable on that amount under s 101. However, the use of the term "judgment debt" in order (1) of the 2 March 2022 orders is within the phrase "judgment debt created by [the 24 September 2021] order". That order in terms was for the entry of judgment in the sum of $210,249. The common sense reading of the stay of payment of "that amount", reading the orders of 2 March 2022 and 24 September 2021 together, is that what was required as a condition of the stay was for the payment into Court of the sum of $210,249, that being the amount for which entry of judgment was ordered on 24 September 2021. As the respondents submit, the impracticality of a condition requiring the payment of a variable amount into Court as a condition of the stay tends against the construction for which Mr Lambourne contends (as does the lack of any reference to interest in either of the 24 September 2021 orders - for a stay or for set-off).
9. Hence there is no error as to the "quantum issue". Even had there been error in this regard, and there was no operative stay, I would have concluded that nothing turned for present purposes on this error since, once the costs had been determined through the costs assessment process, the operation of the set-off provided for under order (2) of the 24 September 2021 orders meant that Punters Show was only entitled to the balance of the sum paid into Court after that set-off (and the respondents were entitled to payment out of the costs as so determined). This turns on the determination of the "entitlement issue", which I discuss below.
10. Mr Lambourne's complaint that the 2 March 2022 orders operated in effect as providing security for costs in the respondents' favour but without having regard to the relevant discretionary considerations for such an order amounts to a complaint as to the stay being granted in the first place, which is not within the scope of the review of Basten AJA's 31 May 2024 decision.
11. As to the complaint that there was no operative stay because the 8 October 2021 motion was not filed until 15 October 2021 (and the contention that by then the Court was functus officio), the Court was not functus in circumstances where liberty to apply had been given to reopen the question of costs. As was observed by Drummond J in Australian Competition Consumer Commission v Shell Co of Australia Ltd (1997) 72 FCR 386, at 395, superior courts of record do not become functus officio merely upon the making and entry of the judgment or order that determines the rights of the parties: they retain power in the same suit to make supplemental orders thereafter in aid of the enforcement and working out of the orders determining the parties' rights.
12. A court is functus officio where it has exhausted its judicial functions in a case and is precluded from further considering the matter (see Patterson v Humfrey (No 2) [2016] WASC 343 at [8] per Le Meire J). Where parties are afforded the liberty to apply, that expressly reserves the future exercise of judicial function in respect of that matter. The essence of that power was explained by Bleby JA (with whom Kelly P and Doyle JA agreed) in Eckert v Roberts (2021) 405 ALR 515; [2021] SASCA 73 (at [50]) as being "to make any orders necessary to address any issues arising on account of the final orders determining the claim and which therefore remain within the court's jurisdiction so engaged…" (emphasis added). Unlike in David Barry Logistics Pty Ltd v State of Victoria (No 3) (2022) 68 VR 157; [2022] VSC 575, the respondents were not attempting to circumvent the 24 September 2021 orders; rather, they were acting within the scope of the reservation.
13. There was clearly discretion for the Court to extend the time for the filing of the 8 October 2021 motion or to dispense with the time requirement for the leave that had been given to be exercised. Even if Mr Lambourne's assertion as to the date of the filing of the 8 October 2021 notice of motion were correct, in circumstances where the notice of motion had been forwarded to the Registry within the time specified and there (hypothetically) was only a short delay before it was formally filed, it is difficult to see why leave would not have been given. In any event, there was no appeal or application for leave to appeal from the 19 November 2021 orders and, again, a challenge to those orders is not within the scope of the present review application.

Entitlement issue

1. Turning then to the "entitlement issue", which is the contention that his Honour erred in proceeding on the basis that the respondents were "entitled" to a payment out of the amount assessed as the costs of appeal (or as Mr Lambourne puts it, making a determination based on the major premise that the costs certificates gave the respondents an immediately enforceable legal right), this assumes that entitlement for the purposes of r 41.11 of the UCPR is to be equated with the enforceability of the right giving rise to that entitlement (as I explain below).
2. First, however, I address the complaint that his Honour did not expressly refer to Pa 41 of the UCPR, which Mr Lambourne maintains should have been the starting point for his Honour's consideration of the application (or to legal principle or authority in relation to the operation or application of Pt 41 as Mr Lambourne suggests).
3. What his Honour was clearly doing was determining the entitlement of the respective parties to the funds in Court, irrespective of the fact that no reference was made to Pt 41. Mr Lambourne emphasises that r 41.11 of the UCPR provides that: Subject to these rules, funds in court may not be paid out of court except to the party entitled or (on the party's written authority or by order of the court) to the party's solicitor.
4. Mr Lambourne argues that the question posed by his Honour in the course of argument (as to what was the basis for opposing the order for payment out now being made) should have been a question as to what was the basis for the respondents' entitlement to be paid.
5. In my opinion, no error has been demonstrated in this regard. Understandably, his Honour's reasons focused on the arguments raised in opposition to the payment out, since his Honour was quite properly addressing the applicants' opposition to the application. The question of the respondents' entitlement to their costs of the appeal was clear - there were costs orders in their favour which had not been set aside. Nor could the entitlement of Punters Show to the judgment sum have been in dispute. However, what the orders of 2 March 2022 clearly contemplated was that, once the respondents' costs had been determined "by assessment or agreement" then there was to be a set-off of those costs against the amount of the judgment debt created by the 24 September 2021 order in favour of Punters Show. In other words, the entitlement of Punters Show to payment of the judgment sum (or judgment debt) was subject to the set-off ordered in order (2) of the 2 March 2022 orders.
6. The nub of the complaint by Mr Lambourne is as to the perceived unfairness of Punters Show being held out of its judgment sum by operation of the 2 March 2022 orders. However, the effect of the set-off that was ordered was that its entitlement to that sum was subject to the order as to costs of the appeal. The delay while that process was being undertaken was capable of being met by the payment of interest on the amounts held in Court (and, prior to their payment into Court when the payment order was stayed, any post-judgment interest that had accrued since judgment was entered). That entitlement to post-judgment interest (other than for the period when the stay was in operation) remains; it would fall to be recovered in the ordinary course (subject to any other set-off as against other costs orders in the respondents' favour); simply not out of the funds held in Court (which are first to be applied to the respondents' assessed costs of the appeal). Further, given that the overall costs position must be taken into account it is difficult to see any unfairness on the stay operating in accordance with its clear terms.
7. As to the submission that Mr Baker and the respondents have no "entitlement" to the assessed costs in the absence of registration of the costs certificate and enforcement of the judgment debt to which registration gives rise, as adverted to above, that conflates legal entitlement with enforceability of the judgment in relation to that entitlement. Since the 19 November 2021 judgment, the respondents have been entitled to 65% of their costs of the appeal (as assessed or agreed). They have a judgment in their favour to that effect and it is a final judgment. The fact that steps had to be taken for enforcement of the costs orders (and that until costs were assessed there was not a determination of the precise amount owing to the respondents as a consequence of the said costs orders) does not alter the fact that there was an entitlement to those costs as assessed or agreed.
8. The effect of s 71(3) of the Legal Profession Uniform Law Application Act is that the filing of a costs certificate in the relevant court constitutes a judgment. While in some cases there has been a relevant distinction between filing and lodgement for filing of costs certificates (see, for example, Infact Consulting Pty Ltd v Kyle House Pty Ltd [2007] NSWSC 56 per White J (as his Honour then was) at [15]), here there is no dispute that the registration process in relation to the costs certificates had not been taken as at the time of the application for payment out of the moneys (and so no enforcement action in respect of the judgment that would have been constituted by the filing of the costs certificates could have been taken).
9. However, the fact that the registration of the costs certificates is a "ministerial act" rather than a judicial determination and the recognition that registration of a costs certificate does not convert it into a judicial determination (matters to which Mr Lambourne in his submissions refers) are matters that do not affect the conclusion that the costs order itself gave rise to a legal entitlement on the part of the respondents to the costs the subject of that order and made provision for those costs once determined to be set-off against the judgment debt. There is no basis for the suggestion that the "determination" of those costs "by assessment or agreement" required the registration of the costs certificates (as opposed to the requirement for the set-off to occur being satisfied simply on the determination of those costs by the issue of a costs certificate). In this regard, the absence of any review of that costs assessment is significant because it means that there was no challenge to the determination of those costs within the requisite time.
10. Thus I consider that there was no error on the "entitlement issue".
11. As to the complaint as to inadequacy of reasons, that can be disposed of relatively briefly. As noted above, reliance has been placed by Mr Lambourne on the well-known observations of McHugh JA in Soulemezis (a case in which the trial judge had given no reasons) as to the purpose for which reasons are given. It is relevant in this context to note that, in Soulemezis, McHugh JA said that: If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given: Wright v Australian Broadcasting Commission [[1977] 1 NSWLR 697] (at 701, 713). …
12. Similarly, in Soulemezis, Mahoney JA (at 269-270) reiterated his earlier observations in Housing Commission of New South Wales v Tatmar Pastoral Co Ltd ([1983] 3 NSWLR 378 at 385-386) to the effect that it is not the duty of the judge to decide every matter raised in argument and that the judge may decide in a way which does not require the determination of a particular submission if the decision on a particular submission is not within the judge's reasoning to the final conclusion.
13. Accepting that a recognised purpose for the giving of adequate reasons by judicial officers is to enable the parties to see the extent to which their arguments have been understood and accepted, as well as the basis for the relevant decision (Soulemezis at 279), it has been said that the standard of reasons is properly defined negatively (Alexandria Landfill Pty Ltd v Transport for New South Wales (2020) 103 NSWLR 479; [2020] NSWCA 165 at [29] per Basten JA) namely that: … it must be shown that the decision has not been reached capriciously or arbitrarily, but rationally. The reasons must thus reveal that all material factors have been identified and addressed, and that no prohibited considerations have been operative. If there is an available process of reasoning from the evidence to the outcome which has been adopted, either expressly or by implication, the appellate court should be slow to reach the conclusion that the function of the trial court has not been exercised according to law.
14. The adequacy of reasons is not to be judged as against a standard of perfection (see Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 255); rather, the question is whether the reasons attained the minimum acceptable standard (see New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [66] per Bell P (as his Honour then was); Broken Hill Cobalt Project Pty Ltd v Lord [2022] NSWCA 271 (Broken Hill Cobalt)). As I noted in Broken Hill Cobalt at [105], a minimum requirement is that the reasons be given in a form that will enable the losing party to understand properly the grounds on which the case was lost, and will not frustrate the losing party's right of appeal (there referring to Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666-667; [1986] HCA 7).
15. In the present case, the context in which the reasons were given was that there was a hearing on 28 May 2024 on a discrete issue - the application for payment out of moneys that had been paid into Court as a condition of a stay of payment of the judgment debt. The application was consequential on the earlier orders in relation to entry of the judgment sum and then the stay of payment. There was not a need for an elaborate discussion of statutory provisions, legal principle and authority. The reasons given by his Honour in my opinion were more than sufficient to meet the minimum acceptable standard. Although Mr Lambourne, in identifying the perceived flaws in the 31 May 2024 reasons, submits that Punters Show (and, he says, most members of the public) would find it difficult to make sense of the statement at [37] to which I have already referred (i.e., that payment in had been made on Mr Baker's instructions within the time allowed for payment of a judgment debt incurring interest), I consider that his Honour's reasons overall made clear the basis on which his Honour ordered the payment out of Court of the moneys in question and there was no inadequacy of reasons such as to give rise to any reviewable error. Disagreement with the outcome of the reasoning process does not demonstrate inadequacy of reasons.
16. Thus, the heavy burden on a s 46(4) review of a decision of a judge of appeal has not been met.
17. As to the particular relief sought in the amended notice of motion, having regard to the conclusions reached above for completeness, I note as follows (adopting the numbering from the amended notice of motion): 1. there is no basis established for the interlocutory injunction sought in respect of any enforcement proceedings by the respondents in relation to the costs ordered in their favour; 2. it is not necessary for there to be a direction as to provision of a statement of interest accrued in relation to the sum paid into Court on 21 March 2022; such a request may be made of the Registry; 3. no error has been demonstrated in relation to the 31 May 2024 orders and the application for review should be dismissed; (3A) there is no basis for a permanent stay of the orders made on 19 November 2021 in these proceedings; 1. although now strictly unnecessary since the submissions have been considered by the Court, the time for filing of written submissions by the applicant be extended to 28 August 2024; (4A) leave be granted for the applicants to rely upon the affidavit of Marc Alan Lambourne filed and served on 20 August 2024 limited to the content relevant to the s 46(4) application; 1. the application to set aside the orders made on 31 May 2024 should be refused (it has not been established that those orders were in error, nor would they damage public confidence in the administration of justice or otherwise constitute an abuse of the Court process); 2. I note that the declaration (to the effect that the 'judgment debt' that was due and payable on 21 March 2022 in relation to Order (1) made by this Court in these proceedings on 24 September 2021 was in the sum of $ 216,503.48.") was not pressed. 3. [Deleted] 4. any application sought to be made by the applicants in relation to the costs assessments issue does not arise in the scope of this review application and the liberty sought is not granted; 5. not applicable in light of (5) and (8) above; 6. the application for an order for payment out pursuant to r 41.3 is dismissed in light of the conclusion reached on the review application; 7. not applicable in light of (10); 8. not applicable in light of the conclusion reached on the review application; 9. application for a gross sum costs order is refused, there being no basis established for the making of such an order in relation to the only costs order here made in the applicants' favour (which is limited to the costs of the respondents' amended notice of motion which is being dismissed).

Conclusion

1. For the reasons above, I consider that the stay did become operative on the payment into Court (on Mr Baker's instructions or behalf) of the funds on 21 March 2022 and that there was no error in the order for payment out of the moneys held in Court after the respondents' costs had been determined by reference to the costs assessment process and the set-off process that was provided for by order (2) was undertaken (i.e., after the assessed appeal costs were set off against the amount of the fixed sum judgment). The orders made by Basten AJA correctly provided for the payment to Punters Show of the amount to which it was entitled (out of the funds in Court) in respect of the judgment sum in its favour and for the balance of the funds in Court to be paid to the respondents in satisfaction of the assessed costs of the appeal proceedings. I would therefore dismiss the applicants' notice of motion.
2. I would also dismiss the respondents' notice of motion. I do not consider it appropriate to revisit the basis on which Basten AJA made the orders for payment out of Court. The costs of the first instance proceeding were not part of the costs regime for which provision was made on 19 November 2021. While there is no doubt merit in reaching finality in the satellite litigation over costs, I do not consider it appropriate in the context of a review application in relation to his Honour's decision now to embark upon a separate exercise in relation to the costs of the first instance proceeding (and I note that the circumstance in which the respondents urged this to be done - namely if Mr Lambourne's contention were to be accepted as to the interest payable on the judgment sum forming part of the amount required to be paid into Court - does not arise on the conclusion I have reached as to that issue).
3. I see no reason why costs should not follow the event. Each notice of motion should be dismissed with costs.
4. MITCHELMORE JA: I agree with Ward P.
5. KIRK JA: I agree with Ward P.

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