16 The orders of 16 December plainly contemplated that any stay imposed automatically pursuant to them might be lifted: see paragraph 11 of those orders. In any event, it is now clear enough that even a self-executing order which dismisses an action on default does not prevent a court from extending time for compliance after that dismissal and reinstating the proceedings: see FAI General Insurance Company Limited & Ors v Southern Cross Exploration NL & Ors (1988) 165 CLR 268 and Paino v Hofbauer (1988) 13 NSWLR 193. Where the orders clearly contemplate an application to have a stay lifted, and where what is involved is a stay and not a dismissal, that must be all the more clearly the case.
17 Mr Horsley has submitted that three of the bills which were served are not in respect of costs orders contemplated by paragraph 2 of the orders of 16 December. Mr Allen submits, rightly I think, that paragraph 2 is not limited to the orders made in the Court of Appeal, but contemplates all costs orders in favour of the plaintiff so far made in the proceedings against the defendant or the defendant's solicitor. I accept Mr Horsley's submission, however, that one of the bills, namely, the bill for $3,775.99 (Bill No 4), which relates to different proceedings, is not caught by that order. The others, I think, are. Youma and/or Mr Marsh has paid $20,000 on account of the costs order, as required by the condition imposed by the Court of Appeal, and are entitled to credit for that sum.
18 It therefore follows that, unless I make some orders varying the orders made by Einstein J, the current legal position is that Youma - and Mr Marsh, to the extent that some of the orders were made also against Mr Marsh - are liable to pay to the plaintiff the amounts claimed in all of the bills of costs referred to in Mr Kekatos' affidavit, save for the bill numbered 4, which relates to other proceedings, less $20,000 already paid.
19 The question which then falls for consideration is whether, as a matter of discretion on an interlocutory application, I should give judgment for the immediate payment of that sum (or make a declaration to that effect), or whether some further opportunity, albeit a short one, should be given to the defendant to have the bills of costs assessed.
20 It is notable that, despite an opportunity afforded by the adjournment last week to adduce evidence to explain the defendant's position, and despite the passage of some months now since the bill of costs were filed, no evidence is put before the Court to explain why nothing has been done to this point. It is not even as if evidence has been adduced to say that the defendant or its solicitor thought that there was a stay on foot.
21 The defendant's position, therefore, has very little claim to further sympathy and consideration in this respect, save for one matter, and that is that the plaintiff itself was out of time, and significantly out of time, in compliance with the direction made for service of a bill of costs. Mr Allen may well be right in saying it was not necessary for him to apply for an extension of time formally and, in any event, a grant of an extension must be implicit in the lifting of the stay; but it is not difficult to see that those circumstances could have caused confusion. And if time does not run strictly against Magnate, justice seems to require that some corresponding tollerance be afforded to Youma and Mr Marsh. With considerable reluctance, I have come to the view that the defendant should be afforded a modicum of tolerance, but a very limited one. It involves requiring payment of what on a very broad overview, is likely to be indisputably recoverable on assessment, while preserving the ability of Youma to have an assessment.
22 I make the following orders: