Lambourne v Baker (No 9)

Representation: Counsel:
MA Lambourne (Applicants) (Self represented)
AP Cheshire SC (Respondents)
Solicitors:
Vintage Law (Respondents)

File Number(s): 2019/407870

Publication restriction: Nil

JUDGMENT

1. THE COURT: On 27 March 2025, the Court delivered a judgment in this matter: Lambourne v Baker (No 6) [2025] NSWCA 45 (Lambourne v Baker (No 6)). By that judgment, the Court dismissed an application under s 46(4) of the Supreme Court Act 1970 (NSW) to review a decision of Price AJA by which his Honour, among other things, refused an application made under the slip rule to amend orders previously made by Basten AJA in Lambourne v Baker (No 4) [2024] NSWCA 132 that of an amount of $210,249 that had been paid into Court on 21 March 2022 by the respondents, $186,214.86 be paid to the respondents and the balance (including any interest) be paid to the third applicant, Punters Show Pty Ltd.

2. At the time judgment was delivered, Mr Lambourne, who appeared for the applicants, made an oral application for a stay. The Court refused that application and said it would deliver reasons later. These are those reasons. These reasons are to be read together with the judgment in Lambourne v Baker (No 6) and adopt the same abbreviations as used in that judgment.

3. Mr Lambourne, who appeared for the applicants, advanced two reasons for a stay. First, he submitted that the applicants were considering making further applications to the Court and the stay should be granted in order to permit them to do so. Second, he submitted that a stay should be granted in aid of an application for special leave to appeal to the High Court.

4. Mr Lambourne did not identify the nature of any further applications to this Court. It is difficult to see what those applications could be. The proceedings were finally resolved by the orders made on 27 March 2025. Accordingly, this ground can be put to one side.

5. The relevant principles regarding granting a stay pending an application for special leave to appeal to the High Court were summarised by Kirk JA (sitting alone) in 123 259 932 Pty Ltd v Cessnock City Council (No 2) [2023] NSWCA 89 in these terms:

[2] It was held in *Rinehart v Welker (*2012) 83 NSWLR 347; [2012] NSWCA 1 that this Court, when considering whether to stay its own orders pending the determination of an application for special leave to the High Court, should apply the principles applied by the High Court itself in resolving such applications. The most commonly quoted statement of principle in that regard is by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 at 684-685; [1986] HCA 84:

A stay to preserve the subject matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted. If an order for a stay is made, the respondent is kept out of the benefit of the order of the court in which the matter is pending until the hearing of the application for special leave to appeal. …

In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court’s discretion. In each case when the Court is satisfied that a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.

[3] Of the four factors, the second is a factor peculiar to consideration by the High Court and is not relevant in this Court. The third factor can be seen as an element of the fourth. The relevant factors identified by Brennan J, thus, are whether there is a substantial prospect that special leave to appeal will be granted and where the balance of convenience lies. The prospects question relates to obtaining special leave, not the prospects of an appeal succeeding if special leave was to be granted: note Gerah Imports Pty Ltd v Duke Group Ltd (1994) 68 ALJR 196 at 197; [1994] HCA 3 per Dawson J.

[4] These factors are not to be applied in a mechanical way: note Rinehart v Welker at [49]. Nor are they exhaustive: Obeid v R (2016) 90 ALJR 447; [2016] HCA 9 at [14] per Gageler J. As explained below, the overall issue is whether the grant of a stay (perhaps on terms) is warranted taking account of all the circumstances. A particularly important matter in that regard is whether the absence of a stay may render the special leave application, and any subsequent appeal, nugatory because of the loss of the subject matter of the appeal: see eg in Gerah at 197–198 per Dawson J.

…

[10] In summary, then, exceptional circumstances must be shown to warrant the grant of a stay pending the determination of a special leave application; significant factors in that regard are whether the applicant has substantial prospects of obtaining special leave, where the balance of convenience lies and whether the application for special leave may be rendered nugatory unless a stay is granted; those factors are not exhaustive; “substantial prospects” does not require that the court conclude that a grant of special leave is likely; the overall question is whether, taking account of all the circumstances, there are sufficiently significant prospects of special leave being obtained to warrant a grant of a stay, perhaps on terms designed to protect the interests of the respondent.

Those passages were cited with approval by this Court in Piety Developments Pty Ltd v Cumberland City Council (No 2) [2024] NSWCA 196 at [26]-[27] (Payne and Adamson JJA, Griffiths AJA).

6. In considering the application of those principles to this case, it is important not to lose sight of how the money came to be paid into Court in the first place.

7. On 24 September 2021, as a consequence of a decision of this Court in Lambourne v Baker (No 1), Mr Baker, the first respondent, was ordered to pay Punters Show damages in the amount of $210,249. Subsequently, the respondents obtained costs orders against the applicants in the proceedings and the proceedings in the court below for what were likely to be substantial sums of money. The respondents applied for a stay of the judgment against Mr Baker pending the assessment of those costs with the obvious intention of setting off the costs judgments in Mr Baker’s favour against the judgment against him in favour of Punters Show. That stay was granted on condition that the judgment amount be paid into Court, which it was. Again, it is obvious that that condition was designed to protect Punters Show as the judgment creditor against the possibility that the costs payable by it to Mr Baker would ultimately be less than its judgment debt against Mr Baker.

8. On 29 May 2023, costs in the amount of $207,067.43 were assessed as being payable to Mr Baker by the applicants (including Punters Show). Subsequently, the costs payable by the applicants to the other respondents were assessed as being $315,956.56, but nothing turns on that for present purposes. There has been no application for special leave to appeal against the judgment in favour of Punters Show, nor any application to review the final costs certificate issued in favour of Mr Baker. The time for making any such application has long since expired. Consequently, leaving aside interest and any subsequent costs orders in the respondents’ favour, Mr Baker owes Punters Show $210,249 in damages and Punters Show owes Mr Baker $207,067.43 in costs. The question, then, was how the money in Court was to be disbursed. That question was determined by Basten AJA who on 31 May 2024 ordered that an amount of $186,214.86 be paid to the respondents and the balance (including any interest) be paid to Punters Show. The reasons his Honour gave for making those orders are not relevant for present purposes. All subsequent applications by the applicants have involved attempts by Mr Lambourne to resist the implementation of those orders. But that does not alter the underlying rights of the parties. Once the amount held in Court is disbursed in accordance with Basten AJA’s orders (and against leaving interest and subsequent costs orders in the respondents’ favour to one side), Mr Baker will owe Punters Show $3,181.57 ($210,249 less $207,67.43) but will have paid $24,034.14 ($210,249 less $186,214.86). That is, following the implementation of the orders that Mr Lambourne has fervently resisted, Punters Show will owe Mr Baker a significant sum of money.

9. Two points emerge from what has been said. First, a stay is not necessary to preserve the subject matter of the dispute pending determination of an application for special leave to appeal. The underlying rights of the parties arising from their dispute have already been finally determined. It is true that, absent a stay, the amount in Court will not be preserved. But the amount was paid into Court simply as a mechanism for protecting the underlying rights of Punters Show. It has served that purpose.

10. Second, and following on from the first point, any dispute now concerning the proper distribution of the amount held in Court is an arid one, since it cannot affect the underlying rights of the parties. For that reason, any application for special leave to appeal has minimal prospects of success.

11. It is for those reasons that we refused the stay sought by the applicants.

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