Australia, Aug. 19 -- New South Wales Land and Environment Court issued text of the following judgement on July 18:

1. On 4 July 2025, I dismissed with costs a notice of appeal on the basis that it was incompetent, on the separate applications of each of the respondents: Byrne v Turner Freeman Lawyers [2025] NSWCA 146 (principal judgment). These reasons assume familiarity with the principal judgment.

2. In the penultimate paragraph of the principal judgment, I noted that both respondents sought their costs on an indemnity basis and had served offers of compromise under r 20.26 (read with r 51.47) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) on the appellant on 27 May 2025. In circumstances where no submissions were advanced specifically in relation to the offers of compromise, I awarded costs to the respondents on the ordinary basis and directed that, if any party wished to press for a different order for costs, written submissions of no more than 3 pages should be provided to chambers by 9 July 2025, with any reply of the same length to be provided by 14 July 2025. I took that course with a view to giving the respondents an opportunity to press for an order for indemnity costs relying on their respective offers of compromise together with submissions to which the appellant would have an opportunity to respond.

3. On 9 July 2025, the first respondent provided written submissions in support of an order "that the appellant pay Turner Freeman's costs of the proceedings, including the motion filed on 27 May 2025, on an indemnity basis". On the same date, the second respondent provided submissions seeking an order that his costs of the proceeding be paid on an indemnity basis and as a specified gross sum pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), and further submitting that the Court should consider whether the appellant's solicitor should be asked why those costs should not be ordered against him personally. The second respondent also sought leave to rely on a further affidavit of the second respondent's solicitor on the record, Ms Bartlett, affirmed on 9 July 2025, in support of that relief.

4. On 11 July 2025, I received submissions from the appellant, contending that the appropriate costs order was the one I had made but adding an exclusion with respect to the costs incurred after the delivery of the principal judgment. The appellant resisted the second respondent's application for a gross sum costs order and resisted any consideration of a personal costs order against his solicitor. The appellant did not directly address the offers of compromise made pursuant to the UCPR.

5. Ordinarily, an application under r 36.16 of the UCPR is required to vary the Court's orders. Consistently with order (3) of the orders I made on 4 July 2025, I treated the respondents' respective submissions as applications to vary order (2) of those orders.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/198170fc4d8d953424a8919c)

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