Zabusky v Virgtel Limited[2022] QCA 223

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Bradley J.
2. [2]
   BRADLEY J:  The appellants’ claim to register and enforce a foreign judgment against the respondent is permanently stayed.  This appeal challenges the learned primary judge’s decision to refuse to lift the stay.
3. [3]
   There are three appellants.  The first is a director of the third appellant, and is now solicitor.  The second is his son.  The third is a company incorporated in the Federal Republic of Nigeria.  The respondent is a company incorporated in the Virgin Islands, a British Overseas Territory.
4. [4]
   In August 2020, the appellants applied to register or enforce an order issued by the Federal High Court of Nigeria (the foreign judgment).  The foreign judgment directed the respondent to pay special damages to the third appellant and costs to the third appellant’s lawyers.^[1]
5. [5]
   In February 2021, after a hearing before Crow J, the court permanently stayed the appellants’ proceeding (the stay).  His Honour found Queensland was a clearly inappropriate forum because the respondent had no assets in the State.^[2]  Later that month, Crow J ordered the appellants to pay the respondent’s costs of the proceeding and its costs of the stay application (the costs orders).  There was no appeal from the stay or the costs orders.
6. [6]
   In February 2022, the appellants asked the court to lift the stay.  After a hearing and further written submissions in March 2022, the primary judge refused the request and published reasons in April 2022.  The appeal is from that refusal.

Do the costs orders justify lifting the stay?

7. [7]
   The principal issue in the appeal is whether the costs orders are a new fact entitling the appellants to be relieved from the stay^[3] or a proper ground for lifting the stay.^[4]
8. [8]
   In their written submissions below, the appellants put their case this way:

“Since the [costs] orders were made [on] 22 February 2021, [the respondent] has had two costs orders in its favour …  [The respondent] therefore now has two assets in Queensland.  The basis on which the stay was ordered has disappeared, there is no longer a reason why the proceeding should remain stayed.

… there has been a material change in circumstance.  The change in circumstance is the consequence of [the respondent] applying for costs.”

9. [9]
   At the hearing below, the appellants’ counsel confirmed their position, submitting:

“So the issue for today, your Honour, is as simple as that.  Whereas before Justice Crow, my side of the case couldn’t persuade his Honour that there was an asset within the jurisdiction and hence [the respondent] was vexed by the proceeding, now there are two.  There are two substantial assets.  And those ---

HER HONOUR:  The costs orders?

MR DE JERSEY:  Correct, your Honour.  And those two substantial assets are the consequence of a decision that was made by the other side of the case.  … had they decided, for instance, not to apply for costs, the copybook would be clear, there would be no assets and this application could not be made.”^[5]

10. [10]
    The primary judge rejected the appellants’ case that the costs orders were an asset of the respondent in Queensland that entitled the appellants to be relieved of the stay or a proper ground for doing so.

Consideration of the principal issue

11. [11]
    The court has a discretionary power to order the payment of costs.^[6]  Usually, costs follow the event.  The likely consequence of the respondent succeeding in the stay application was that the appellants would be ordered to pay the respondent’s costs.
12. [12]
    The costs orders were a consequence of the appellants starting a proceeding in this court, which was a clearly inappropriate forum.  The effect of this finding by Crow J is that the appellant’s conduct was unjustifiably oppressive and vexatious, and constituted an abuse of process.^[7]  The appellants’ misconduct was not cured by them being ordered to provide the respondent with a partial costs indemnity for the consequences of that misconduct.
13. [13]
    The making of the costs orders did not change the position of the appellants.  It did not transform this court into a forum that was no longer clearly inappropriate for enforcement of the foreign judgment.
14. [14]
    The appellants’ submission - that “on any view” of the costs orders “it could no longer be said that Queensland was a ‘clearly inappropriate forum’” - should therefore be rejected.
15. [15]
    The appeal should be dismissed.

The appellants’ grounds of appeal

16. [16]
    The appellants’ grounds of appeal focus on whether the respondent is entitled to the benefit of any sum that might be paid in the future by the appellants (or on their behalf) to satisfy the costs orders.  The respondent’s written submissions engaged with the appellants’ grounds.  In this, they reflect the parties’ evidence and submissions before the primary judge.
17. [17]
    For the reasons at [11] to [15] above, the appeal should be dismissed.  This is so whether the respondent is entitled to the benefit of any sum that might be paid to satisfy the costs orders or is not entitled.
18. [18]
    It is possible to deal with each of the appeal grounds briefly, to explain why they fail in any event.

Ground 1

19. [19]
    First, the appellants say the primary judge erred in finding the costs orders were not an asset of the respondent in Queensland and in failing to “consider or find” the costs orders were the respondent’s assets in the State.  The appellants submitted the costs orders were a chose in action, and so were property in this State.
20. [20]
    The respondent’s costs have not been assessed.^[8]  No costs certificate has been issued or filed.  So, there has been no certification of a sum or sums payable by whom and to whom.^[9]  The registrar has not made any order for the payment of any sum for those costs.^[10]  No judgment debt or other liquidated claim exists in respect of the costs orders.
21. [21]
    The power of the registrar to set off one amount of assessed costs against another has not arisen.^[11]  If it were to arise in the future, after the respondent’s costs were assessed and certified, then the registrar could decline to make an order for payment of the respondent’s certified costs until the respondent paid any amount it is liable to pay to one or more of the appellants pursuant to another costs order in their favour.^[12]
22. [22]
    The respondent has no claim against the appellants under the costs orders.  The appellants identified no claim against the respondent in which the costs orders might form the basis of a set-off.
23. [23]
    In the circumstances, the costs orders are not a chose in action.  The primary judge did not err in finding they were not an asset of the respondent in Queensland.

Ground 2

24. [24]
    The second ground of appeal is that there was not any (or any admissible) evidence to support the primary judge’s findings that the company H van Leeuwen Beheer NV (Beheer NV) provided the funds for the respondent’s legal fees and there was no (or no admissible) evidence of the relationship between the respondent and Beheer NV about the proceeding before Crow J and the costs orders.
25. [25]
    At the hearing below, a director of the respondent (Mr Simonet) gave evidence that the legal fees incurred by the respondent in the proceeding to enforce the foreign judgment had been paid by Beheer NV.  In the reasons, the primary judge noted this evidence.^[13]
26. [26]
    At the hearing of the appeal, Mr Zabusky made submissions about the credit of Mr Simonet, and the weight his evidence should be given.  Mr Zabusky said her Honour ought not to have accepted Mr Simonet’s evidence.
27. [27]
    This evidence from Mr Simonet was corroborated by the evidence of a director of Beheer NV (Mr Peeters), and by a costs agreement between the respondent’s solicitor James Conomos Lawyers Pty Ltd and Beheer NV, signed by Mr Peeters.
28. [28]
    The evidence from Mr Peeters included that Beheer NV “paid the legal fees” and did so:

“on the basis that the Beheer would be entitled to the benefit of any costs order made in favour of [the respondent] in the proceeding, as partial indemnity for the legal costs paid by Beheer.”

29. [29]
    Unlike some parts of Mr Peeters’ evidence,^[14] this passage was not the subject of objection by the appellants.
30. [30]
    Mr Peeters also gave evidence that:

“In about September 2020, I received a letter from James Conomos Lawyers Pty Ltd ACN 169 902 318 (JCL) enclosing their costs disclosure documents including the costs agreement to enable them to act in this proceeding for [the respondent].

Beheer is the only party who has provided funds for the legal fees (including disbursements) of JCL for acting in this proceeding.

Shortly after receipt of the letter from JCL dated 9 September 2020, I signed the costs disclosure documents including the cost agreement on behalf of the Beheer.  A true copy of the letter from JCL dated 9 September 2020 comprising their disclosure statement and cost agreement signed by me is contained in a bundle marked Exhibit MP-2 at pages 1-17.

The Beheer has paid the fees rendered by JCL for this proceeding.

The Beheer has done so by paying JCL directly.”

31. [31]
    The appellants raised no objection to this evidence of Mr Peeters.  On the contrary, in a further outline of submissions dated 17 March 2022, they made submissions based upon it.
32. [32]
    As a director of Beheer NV, Mr Peeters was able to give evidence about signing the costs agreement, paying the legal fees, and the basis on which Beheer NV did so.
33. [33]
    As the primary judge noted, this evidence confirmed Mr Simonet’s evidence.^[15]  There was no contrary evidence on this point.  Neither Mr Simonet nor Mr Peeters was cross-examined.
34. [34]
    These parts of Mr Peeters’ evidence establish that Beheer NV signed the costs agreement, made the payments, and did so on the basis that it would be entitled to the benefit of any costs orders made in favour of the respondent.  From this, the primary judge reached the conclusion that, as a matter of law, Beheer NV is “beneficially entitled to whatever may be produced by the costs order”, and “no one but [Beheer NV] is entitled to the benefit of the costs order.”
35. [35]
    It was open on the evidence for the primary judge to conclude there was an obligation, binding on the respondent’s conscience, so that, if circumstances arose, it would be bound to give Beheer NV the benefit of the costs orders, or to instruct its solicitor to do so.  With respect, there was no error in her Honour’s reasoning.
36. [36]
    In the appeal, the respondents advanced other arguments about the nature of a “trust” on which the respondent might “hold” the costs orders.  The primary judge’s conclusion is unaffected by these contentions.  That conclusion did not require a finding that there was an express written trust, a resulting trust, a Quistclose trust, or an implied trust.  Her Honour did not make such a finding.
37. [37]
    For the reasons at [20] to [22] above, the costs orders were not a chose in action.  On the evidence, there was no property in existence that could be the subject of any trust.
38. [38]
    I also reject the appellants’ submission that the primary judge erred in referring to, and expressing general agreement with, opinions of Dixon J and Williams J in Australian Workers Union v Bowen (1946) 72 CLR 575 that a union, which paid all the legal costs of a proceeding, may be solely entitled, in equity, to the benefit of the judgment debt.^[16]  The primary judge expressed the view that the proposition “does not, on reflection, seem to be a startling one”.  Her Honour recognised the opinions in Australian Workers Union v Bowen were obiter dicta.  Her Honour’s view itself was not necessary for the decision below.  In any case, with respect, it was not erroneous.

Ground 3

39. [39]
    Next, the appellants contended there was no admissible evidence that “the equitable obligations or the content of the obligations” on which the respondent relied were recognised at “the place where the agreement, arrangement or understanding” was made that, according to the respondent, “gave rise to the said relationship” between the respondent and Beheer NV.
40. [40]
    In their written outline for the appeal, the appellants conceded “that any trust of the costs orders was governed by the laws of Australia.”  It is not necessary to consider the recognition of equitable obligations under the law of any other place.
41. [41]
    The appellants contend that “the trust for which [the respondent] contends is not recognised under the domestic law of Australia.”  As noted above, the primary judge did not find that any trust existed.  The appellants made no other specific submissions about Ground 3.
42. [42]
    There was no error by the primary judge in this respect.

Ground 4

43. [43]
    The fourth ground of appeal involves two propositions.  First, the appellants say the respondent “had obligations in the jurisdiction in relation to the enforcement of the said costs orders” because the first and second appellants were domiciled in Australia.  Second, they say the respondent (as trustee) had a proprietary interest “in the said costs orders and/or the fruits of the said orders”.
44. [44]
    The first proposition is without basis.
45. [45]
    The evidence before the primary judge established that: the respondent had no real assets or chattels in Queensland; there were no funds in the jurisdiction to which the respondent was entitled; and the respondent had no assets anywhere else in the world.  This was consistent with the earlier finding of Crow J that the respondent “had been entirely bereft of cash since 2001”.  The appellants’ contention that, in such a position, the respondent has obligations to enforce the costs orders against the appellants should be rejected.
46. [46]
    As to the second proposition, no trust was found to exist.  It is doubtful the respondent has a proprietary interest in the costs orders.  For the reasons at [20] to [22] above, it does not seem sensible to regard an order, requiring another person to pay costs yet to be assessed or certified, as property or as a thing in which one may have a proprietary interest.
47. [47]
    In any event, a trustee who incurs no costs has nothing for which it is entitled to be indemnified from any trust assets.  Beheer NV paid all the respondent’s costs.  The respondent paid none of them.  So, the respondent would not have the proprietary interest the appellants allege, even if the costs orders were property and it held them as a trustee.

Ground 5

48. [48]
    The appellants submit that the primary judge did not consider or give due weight to “the fact that [the respondent] did not produce the original costs agreement” between the respondent and its solicitor or such an agreement with Beheer NV.
49. [49]
    It is not clear why the “original” copy of either agreement, if still in existence, would be important.  A copy of the costs agreement between the respondent’s solicitor and Beheer NV was in evidence.  Had the appellants made this complaint below, the respondent could have answered it by producing the document or explaining its non-production.
50. [50]
    For the reasons at [11] to [15] above, the absence of an original costs agreement does not affect the outcome of the appeal.  If it did, it would be inappropriate to allow the appellants to advance this argument for the first time in the appeal.

Ground 6

51. [51]
    By the sixth ground, the appellants contend the primary judge erred in rejecting the appellants’ submission that the payment by Beheer NV directly to the respondent’s solicitor for the respondent’s legal fees affected the conclusion that Beheer NV was beneficially entitled to whatever may be produced by the costs order.  The appellants say this “finding” was made “in disregard of Quistclose principles.^[17]
52. [52]
    In Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567, the House of Lords found an implied trust over funds paid by a third party for the express purpose of paying a company’s creditors.
53. [53]
    In Quistclose, Lord Wilberforce explained two propositions.  First, arrangements of the kind in that case give rise to a relationship of a fiduciary character or trust, as a primary trust for the creditors (intended to be paid), and, if the primary trust fails, as a secondary trust for the third party (who advanced the funds for that unfulfilled purpose).^[18]  Second, where instead of being paid directly by the third party to the creditors, the funds were loaned by the third party to the company for the express purpose of the company paying the creditors, this did not exclude the implication of a trust over the funds, enforceable in equity, if the funds were not used for the express purpose.^[19]  The funds could be traced, with the person holding them subject to implied trust.  Quistclose did not concern the result or “product” of work for which a third party paid.
54. [54]
    Beheer NV did not assert that the funds it paid to the respondent’s solicitor for legal fees were the subject of any trust.  Nor did the respondent.  The funds were used for the express purpose of paying the solicitor.  No one contended the legal fees paid to the solicitor were an asset of the respondent.
55. [55]
    The appellants’ sixth ground of appeal proceeds on a near complete misunderstanding of the decision on which it relies.
56. [56]
    The appellants made no separate submissions on ground 6.  They relied on some of their submissions on grounds 1 and 2.  Those submissions have also not been accepted.  In the circumstances, this ground of appeal also fails.

Ground 7

57. [57]
    The appellants’ final ground of appeal is that “the whole of the decision of the primary judge is contrary to the public interest and the interest of justice.”
58. [58]
    This statement appears as a rhetorical flourish at the end of the Notice of Appeal.  The appellants raise no issue of legal substance in respect of this ground.
59. [59]
    At the hearing, Mr Zabusky was asked about the utility of the appeal and what the appellants proposed to do if the stay were to be lifted.  He replied that they would seek to enforce the foreign judgment against the moneys held by the court as security for costs and the undertaking as to damages in earlier proceedings BS6547 of 2005 (6547/05) and BS4405 of 2010 (4405/10) (collectively the security moneys).  The appellants and the respondent had been among the parties in 6547/05,^[20] and 4405/10.^[21]  The security moneys were paid into solicitors’ trust accounts and subsequently into court pursuant to various orders.^[22]
60. [60]
    In 2021, before Crow J on the stay application, the appellants said the security moneys were property of the respondent in Queensland.  Crow J found that the security moneys were not property of the respondent, in any sense, within or outside the State.^[23]
61. [61]
    In 2022, before the primary judge, the appellants, by their counsel, expressly did not challenge the findings of Crow J, including the finding about the security moneys.^[24]
62. [62]
    On 21 April 2021, 6547/05 was dismissed for want of prosecution.  On 8 November 2021, Jackson J refused an application by the first and second appellants (and four other parties) for a payment out of court of the security moneys.  His Honour concluded that the evidence adduced did not enable the court to conclude that those six applicants were entitled to the money in court.^[25]
63. [63]
    If the appellants were to try to enforce the foreign judgment against the security moneys, then that conduct might be a collateral attack on the finding of Crow J and the decision of Jackson J.  This would be contrary to the interest of the successful party, and contrary to the public interest that the same issue be litigated over again between the same parties, save by an appeal.^[26]  It may be an abuse of process.^[27]
64. [64]
    The appellants advanced no argument of substance on this ground.  It should also fail.

Conclusion on the grounds of appeal

65. [65]
    The matters advanced for the appellants under each of the seven grounds of appeal do not establish an error that would justify setting aside the primary judge’s orders.

The notice of contention

66. [66]
    In 6547/05, the court had made orders that some of the appellants pay the costs of the respondent and some other parties (the earlier costs orders).^[28]
67. [67]
    In arguing the appeal for the appellants, Mr Zabusky submitted that the earlier costs orders were property of the respondent in Queensland that would justify lifting the stay.
68. [68]
    In its notice of contention, the respondent says the earlier costs orders could not be a basis for lifting the stay under r 668, because they were known to the appellants at the time of the hearing before Crow J.  They were not facts arising or discovered after the stay.  That contention should be accepted.
69. [69]
    The appellants allowed the hearing before Crow J to conclude without raising the earlier costs orders.  Crow J found that the respondent “does not have any assets in Queensland”.  It is not appropriate to permit the appellants to submit, for the first time in this appeal, that the earlier costs orders are property of the respondent in Queensland.  As P Lyons J observed in Frith v Schubert [2010] QSC 444 at [23]:

“Any other view would be inconsistent with the general principle that a party is expected to present the entirety of its case relevant to the issues for determination, at the hearing conducted for the determination of those issues.”^[29]

70. [70]
    The appellants referred to the earlier costs orders at the hearing before the primary judge.  This was limited to a submission that in 6547/05 before Jackson J, the respondent had said the earlier costs orders might be set off against any costs that might be payable by the respondent pursuant to other orders that had been or might be made.
71. [71]
    The primary judge referred to the appellants’ submission, commenting:

“The fact that costs orders in [6547/05], made in favour of a number of parties, one of whom is the [respondent], may be set off against costs orders against those parties, does not mean that the [respondent] has an asset in Queensland.”

72. [72]
    For the reasons set out above, the primary judge did not err in this finding.  In any event, the earlier costs orders were not proper grounds to lift the stay.

Material before the court on the appeal

73. [73]
    In addition to record book 1,^[30] the parties agreed on material extending to three volumes in record book 2.  The record books ran to a total of 1423 pages.
74. [74]
    A supplementary record of proceedings, comprising 19 pages, was also prepared.  It contains email exchanges between the respondent’s solicitor and the appellants’ former solicitor of 14 and 15 March 2022 and copy of the respondent’s solicitor’s letter to Beheer NV of 9 September 2020, the attached disclosure statement, and a clear, but unsigned, copy of the costs agreement.
75. [75]
    It was common ground that all this material should be before the court for the appeal.  It was.
76. [76]
    The appellants sought to place other evidence before the court.  The respondent did not agree.  The appellants’ applications are dealt with below.

Additional record book volume

77. [77]
    The appellants sought to add an additional fourth volume to record book 2, containing another 185 pages of material.^[31]  These are copies of documents exhibited to affidavits of Mr Simonet (11 April 2011), Mr Robins (29 October 2020 and 8 December 2020) and Mr Zabusky (7 December 2020 and 16 March 2022).
78. [78]
    At the appeal hearing, Mr Zabusky took the court to only one of these additional documents: an email exchange between Mr Simonet and Mr Zabusky dated 14 June 2019.^[32]  This communication was more than a year before the appellants commenced the now stayed proceeding.  It was not brought to the attention of the primary judge.  When asked about its relevance, Mr Zabusky did not persist with his submissions about the email exchange.
79. [79]
    In considering the appellants’ application for leave to file and rely on the additional volume, I have read the email exchange.  In it, Mr Zabusky threatens Mr Simonet with “significant ramifications and personal consequences” for being “knowingly involved” in the “abuse of court processes” in “major jurisdictions” including Australia.  In his reply, Mr Simonet says the respondent “has no funds anywhere in the world.”  He states that Mr Zabusky “knew that Hendrick van Leeuwen was behind these cases and ultimately his companies took over the actions upon his demise” and:

“Any action against [the respondent] [or] myself as a director of said company will yield you no funds whatsoever.”

80. [80]
    The email is not relevant to any issues in the appeal.
81. [81]
    At the hearing, Mr Zabusky did not refer to any other document in the proposed additional volume.
82. [82]
    In the circumstances, I would refuse the appellants leave to rely on the additional volume.

Fresh evidence

83. [83]
    The appellants also sought leave to adduce fresh evidence,^[33] being copies of the following documents:

    1. (a)
       Notice of Appeal in CA 3947/13 filed on 2 May 2013 (an appeal from the decision of Daubney J made on 4 April 2013);
    2. (b)
       A letter from HLB Den Hartog Accountants & Consultants to the respondent’s solicitor dated 10 September 2013, enclosing a notarised copy of the death certificate of Hendrik van Leeuwen dated 10 September 2013 and a notarised extract Certificate of Succession for Mr van Leeuwen’s estate dated 4 September 2013;
    3. (c)
       Amended applicant’s application in appeal CA 3947/13 dated 17 September 2013;
    4. (d)
       An English translation of Beheer NV financial statements for the calendar year 2021, filed with the Netherlands Chamber of Commerce (KVK) on 8 March 2022; and
    5. (e)
       An English translation of a search of KVK for Stichting Administratiekantoor Dompteur (Stichting) noting “No financial statements available.”
84. [84]
    All of the fresh evidence identified by the appellants relates to matters that occurred before the primary judge made the orders on 7 April 2022.
85. [85]
    In the ordinary case where fresh evidence has come to the notice of an unsuccessful party after a trial or hearing, the general rule is well settled.^[34]  The party seeking to adduce the fresh evidence must show it could not have been obtained with reasonable diligence for use at the hearing below, that the evidence is likely to have an important influence on the result of the appeal, though it need not be decisive, and that the evidence must be apparently credible.^[35]
86. [86]
    There is an important public policy interest in the finality of litigation.^[36]  That interest is upheld by a proper application of the general rule.

The 2013 documents

87. [87]
    The first appellant was a respondent in appeal CA 3947/13.  Both the notice of appeal and the amended application in the appeal are endorsed with an intention to serve them on him.  According to Mr Zabusky, the HLB Den Hartog letter was exhibited to an affidavit filed on 11 March 2013 in CA 3947/13.  This evidence was available to the appellants many years before the hearing below.  Mr Zabusky offered no explanation as to why the appellants did not rely on these 2013 documents before the primary judge, or indeed before Crow J.
88. [88]
    In written submissions, Mr Zabusky sought to use the documents to challenge the evidence of Mr Peeters and Mr Simonet on the basis they did not give evidence that an heir of the late Mr van Leeuwen “consented or was even informed about the purported trust”.  If Mr Zabusky were permitted to adduce this evidence, then in fairness the respondent should be entitled to adduce evidence about the heir.
89. [89]
    The public interest in the finality of litigation compels a rejection of the appellants’ attempt to adduce old documents, long in their possession, as if it were fresh evidence.  No special grounds have been shown.

Beheer NV financial statements

90. [90]
    The Beheer NV financial statements are more recent.  They comprise a balance sheet, without a profit and loss statement.  The balance sheet records that Beheer NV had cash assets of €20,272 on 31 December 2021, down from €194,146 on 31 December 2020, and that during 2021 it employed one employee on a full-time basis.
91. [91]
    The Beheer NV financial statements show that they were filed on 8 March 2022.  This was before the hearing below.  The appellants filed submissions for the primary judge to consider on 14 and 17 March 2022.  The copies of the financial statements bear two date/time markings: 3 August 2022 - 22:44; and 04/08/2022, 06:46.  Given the eight-hour time difference between Belgium and Queensland, this appears to be the date and time the copies were requested and downloaded from the KVK website.  The English translations of the financial statements were made on 8 August 2022.  There is no evidence of any attempt to download the documents from the KVK website between 8 March 2022 and 2 August 2022.
92. [92]
    In an affidavit sworn and filed on 25 August 2022, Mr Zabusky deposed that the KVK documents “were not available to download” from the KVK website before the primary judge delivered the decision the subject of this appeal.^[37]  It is not clear how Mr Zabusky could give this evidence from his own knowledge.  No source for that information is identified.  However, no objection was made to his evidence.

Stichting search result

93. [93]
    The Stichting search result is evidence of nothing other than that on 8 August 2022 no financial statements were available from the KVK website.

Conclusion on the fresh evidence

94. [94]
    The proposed fresh evidence from KVK is apparently credible.  None of it is likely to have any influence on the result of the appeal.  The appellants could have put this evidence before the primary judge, had they acted with reasonable diligence, save, perhaps, the Beheer NV financial statements.
95. [95]
    In the circumstances, the application for leave to adduce the proposed fresh evidence should be refused.
96. [96]
    During the hearing of this appeal, the parties were agreed that costs should follow the event.

Final disposition

97. [97]
    The court should make the following orders:

    1. (a)
       The appellants’ application filed 15 August 2022 is refused.
    2. (b)
       The appellants’ application filed 25 August 2022 is refused.
    3. (c)
       The appeal is dismissed.
    4. (d)
       The appellants pay the respondent’s costs of the appeal.
98. [98]
    COOPER J:  I agree with the reasons and orders of Bradley J.