Millhouse IAG Pty Ltd v Environautics Pty Ltd
[2000] QDC 196
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- Millhouse IAG Pty Ltd v Environautics Pty Ltd[2000] QDC 196
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Millhouse IAG Pty Ltd v Environautics Pty Ltd[2000] QDC 196
Millhouse IAG Pty Ltd v Environautics Pty Ltd[2000] QDC 196
DISTRICT COURT OF QUEENSLAND
CITATION: | Millhouse IAG Pty Ltd v. Environautics Pty Ltd & Anor [2000] QDC 196 |
PARTIES: | MILLHOUSE IAG PTY LTD (Plaintiff) v. ENVIRONAUTICS PTY LTD (Defendant) & EM MACTEC PTY LTD (Third Party) |
FILE NO/S: | D439 of 2000 |
DIVISION: | |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court Brisbane |
DELIVERED ON: | 7 June 2000 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 30 May 2000 |
JUDGE: | McGill D.C.J. |
ORDER: | Ord Order that the defence of the third party filed 17 May 2000 be struck out, but with liberty to the third part to replead.Direct that, unless an amended defence is filed in the registry by midday on 23 June 2000, the defendant may be at liberty to sign judgment in default for:
Order that the costs of each party of the application be that party’s costs in the third party proceeding |
CATCHWORDS: | FRAUD, MISREPRESENTATION and UNDUE INFLUENCE – pleading – content of specific plea of fraud – Uniform Civil Procedure Rules r.150(1)(f) PRACTICE – pleading – fraud – content of specific plea – whether need to plead facts demonstrating existence of knowledge – Uniform Civil Procedure Rules r.150(1)(f), (k) PRACTICE – pleading – damages – need for pleading of particulars of claim – whether pleading to be struck out – Uniform Civil Procedure Rules r.155 PRACTICE – application to strike out pleading – letter before application – whether substantial compliance – Uniform Civil Procedure Rules r.144. Meredith v. Palmcam Pty Ltd & Anor [2000] QCA 113 – applied McGarrigle v. Miller (1878) 1 SCR NS(NSW) 5 – considered Middleton v. O'Neill (1943) 43 SR(NSW) 178 – considered O'Keefe v. Taylor Estates Co Ltd [1916] St.R.Qd 301 – considered Australian and Commercial Research and Development Ltd v. Commonwealth of Australia [1995] 2 Qd.R. 336 – followed |
COUNSEL: | D.A. Savage for the defendant S. Collins (Solicitor) for the third party |
SOLICITORS: | Quinn and Box for the defendant Clarke and Kann for the third party |
- [1]This is an application by the defendant to strike out the defence of the third party. The action was commenced by a claim filed on 4 February 2000; a Notice of Intention to Defend was filed by the defendant on 13 March 2000, and a third party notice issued on 29 March 2000. A Notice of Intention to Defend attaching a defence on behalf of the third party was filed on 4 May 2000. This application was filed on 17 May 2000.
Preliminary Point : R. 444 Letter
- [2]This rule requires that before making an application of the kind listed in r.443, the applicant must write to the respondent specifying the following matters –
- (a)the applicant’s complaint;
- (b)a brief statement of the relevant facts
- (c)the relief sought by the applicant;
- (d)why the applicant should have the relief;
- (e)a time (at least three business days after the date of the letter) within which the respondent must reply to the letter …;
- (f)that the letter is written under this part.”
Subrule (2) permits the applicant to send the letter to the respondent by fax; by subrule (4) the letter must list the persons to whom a copy of the letter is sent under subrule (3), that is any other person who would be an appropriate respondent to the application. Presumably if there is no other appropriate respondent subrule (4) does not require anything other than that the letter identify to whom it is addressed. Subrule (5) removes the obligation in certain circumstances which need not be considered as no attempt was made in this case to rely on them.
- [3]Rule 445 assumes that there will be a reply on behalf of the respondent, although r. 447 permits an application to be made if the period nominated for replying has passed without a reply being received. The applicant’s letter, the reply, and any other relevant correspondence must be filed with the application, together with a list of the affidavits, if any, on which the applicant wishes to rely: r. 447. By r. 448(3) the court may receive affidavit evidence in relation to the application only if the court directs; this supersedes the ordinary rule that evidence in a proceeding started by application is given only by affidavit: r. 390(b). By r. 448(1):
“The court may hear an application that does not comply with this party if the court directs”.
- [4]The importance of r. 444, and indeed Part 8 of Chapter 11 generally, was recently emphasised by the Court of Appeal in Meredith v. Palmcam Pty Ltd & Anor [2000] QCA 113. A good reason has to be shown for hearing an application which does not comply with the requirements, because the purpose of the rule is to alert the respondent to the applicant’s complaints and give the respondent the opportunity to respond or remedy the position, thereby often removing the need for an application to be brought to the court. This serves the public interest in having parties to litigation resolve their differences if possible through correspondence and negotiation rather than by rushing into court at the first opportunity.
- [5]It was conceded on behalf of the applicant that this is an application of a kind listed in r. 443, and that r. 444 had not been complied with, but this is not a case where no letter was sent; the applicant submitted that a letter of 11 May 2000 substantially complied with the requirements of r. 444, the only aspects of deficiency being a failure to state specifically that it was given under that rule, and a failure to give a time limited for reply which was not less than three business days required by that rule; the time specified for reply was later the same day, which was far too short. However, no application was made until well after a period of three business days after the sending of that letter had expired. Further, there was a reply forthcoming, admittedly after the application was filed, which said what would no doubt have been said if a letter complying with r. 444 had been sent, and it was clear that the matter sought to be raised by the application was not going to be resolved by negotiation. That letter also identified r. 444 as the relevant rule, although asserting that there had been non-compliance with it.
- [6]It is important that a rule such as this be complied with, and sometimes that may mean that a court will simply refuse to hear an application which ought otherwise to succeed because of that non-compliance. Indeed, that would be the appropriate course unless some good reasons could be shown for giving a direction under r. 448. One situation where I think it would be appropriate to direct the application to be heard is where it is clear that the failure to comply with r. 444 has not frustrated the beneficial purpose of the rule identified by the Court of Appeal. It may be clear, for example, from a course of correspondence, that there is an issue between the parties which will not be resolved other than by an application to the court, even if the particular issue the subject of the application is not dealt with specifically in a single letter complying with r. 444 and a specific reply to that letter.
- [7]In the present case the essence of the complaint of the applicant was made known to the respondent in the letter which was sent on 11 May. Some criticism was made about the justification of the complaint expressed in that letter, but that, I think, is not the point of a letter under r. 444; that rule requires that the complaint that the applicant has be ventilated in the letter prior to the application, so that what matters is that the issues raised in the letter correspond to the issues raised in the application, and the relief sought in the application should be foreshadowed in the letter. If the complaint proves to be unjustified then it can be dealt with on its merits when the application is heard, but the fact that the complaint made in the letter proves to be unjustified does not, I think, lead to a conclusion that there has been a failure to comply with r. 444. That rule is not confined in its operation to justified complaints. If a party has an unjustified complaint, the rule serves the beneficial purpose of enabling the respondent to point out why the complaint is unjustified, and hopefully thereby persuading the applicant to abandon it.
- [8]In the present case, I think that the complaint which was advanced on the hearing of the application, and the relief sought in the application that was filed, are adequately foreshadowed in the letter of 11 May. I do not think that the failure to state that the letter was sent under r. 444 should necessarily be fatal. Although the time limited by the letter for a response was far too short, and I would not want to be seen as encouraging such an approach in a matter where there seems to me to have been no objective urgency, it is the case that much more than three business days elapsed before the application was made. As well, it is clear from the attitude subsequently expressed in correspondence, and indeed in the course of submissions, that the substance of the applicant’s complaint was not going to be resolved by correspondence; if anything the correspondence between solicitors seems to have inflamed the dispute. On the whole, I thought it clear that nothing useful would be achieved by dismissing this application and making the applicant start again with a letter under r. 444; that would not be consistent with the purpose set out in r. 5(1). Accordingly, I directed at the hearing that the application proceed.
Set-Off Pleaded By Third Party
- [9]The defence to the third party notice in substance relies on a set-off to extinguish the plaintiff’s claim against the defendant; the set-off pleads that the third party has a claim for damages in respect of loss or damage “in excess of $2 million”. The document is not identified as a defence and counterclaim, although it does have endorsed on it a “notice as to reply and answer” which would have been appropriate if there had been a counterclaim. I was told that this was a mistake. It appears however that it does not matter whether or not the set-off is pleaded as a counterclaim. By r. 173(2), if the amount of a set-off is more than the amount of the claim, then regardless of whether the set-off is pleaded as a counterclaim, it may be treated as a counterclaim and the court may give judgment for the amount of the difference or other appropriate relief. This rule is balanced by r. 184, which has the effect that where there is a successful counterclaim the court may always give judgment for the balance, and therefore may always set-off. These rules have produced some flexibility in the proceedings, but they may give rise to some ambiguity in the present case as to whether or not there really is a counterclaim.
- [10]Whether it is a set-off or a counterclaim, the third party alleges that the defendant is liable to it for damages for fraudulent misrepresentation, negligence, breach of contract, or contravention of the Trade Practices Act. The pleading does not separate out the material facts relied on to support each particular cause of action; such separating out is not essential, but it is desirable: Davey v. Garrett (1878) 7 Ch.D. 473 at 489. Its absence does sometimes make it more difficult to identify what facts are relied on in support of any particular cause of action, or perhaps whether a particular cause of action is pleaded.
- [11]There was some argument about whether a cause of action for fraud was pleaded, but it seems to me that the pleading does allege the material facts necessary to establish fraud, namely, a representation, the falsity of the representation, that it was made with knowledge of the falsity, that it was intended to be relied on and was in fact relied on, and that damage had been suffered as a result. Ultimately the argument about the pleading of the cause of action in deceit came down to complaints that there was a failure to comply with r. 150(1)(f) and (k), and that there was a failure to include in the pleading the necessary particulars of damages.
Rule 150(1)(f) – Pleading Fraud
- [12]Rule 150 requires that fraud be specifically pleaded. It is clear that a mere allegation that a party was guilty of fraud without any explanation of how that arose is insufficient: McGarrigle v. Miller (1878) 1 SCR NS(NSW) 5. In that case a plea that “the directors of the said company were induced to make and execute the said policy by the fraud of the plaintiff” was described as a general plea of fraud, and therefore struck out as insufficient.
- [13]This was consistent with older authorities which rejected as inadequate a general plea of fraud, and required that the pleading alleged the material facts on which the claim of fraud rested, that is, it was necessary to allege facts which showed that the other parties conduct was not consistent with innocence: Davey v. Garrett (1878) 7 Ch.D. 473 at 489, Wallingford v. Directors of Mutual Society (1880) 5 App Cas 685 at 701. There have been numerous subsequent authoritative statements of the same general proposition, which however do not state in any detail just what material facts have to be alleged and with what amount of particularity: e.g. Garden Neptune Shipping Ltd v. Oxidental Worldwide Investment Corporation (1989) 1 Ll.R. 305 at 308; Spies v. Commonwealth Bank of Australian (1991) 24 NSWLR 691 at 700; Banque Commerciale SA v. Akhil Holdings Ltd (1990) 169 CLR 279 at 285; Krakowski v. Eurolynx Properties Ltd (1995) 183 CLR 563. Under the former Supreme Court Rules, a party relying on fraud was required to give particulars with dates and items if necessary in the pleading: O. 22 r. 6(1).
- [14]There is however less in the way of clear guidance in the authorities as to just what needs to be alleged expressly in a pleading in order to make the difference between one which is acceptable as an adequate pleading of an allegation of fraud and one which ought to be struck out as inadequate for that purpose. Most of the cases seem to concern pleadings which are hopelessly inadequate, and others turn on what particulars ought to be provided. There are, however, some decisions which give more specific guidance. When it is alleged that a representation is false, it is necessary to give as particulars how it is said that the false statements are false; the party pleading fraud should “state in a general way the nature of their objections to the several items”: Newport Slipway Drydock and Engineering Co v. Paynter (1886) 34 Ch.D. 88 at 94 per Cotton LJ. In the present case this has been done in the pleading; it is said that the value attributed to the particular piece of machinery was false because it was too high. My impression from the pleading (although in this respect it could have been drawn more clearly) is that the representation relied on was made expressly in the contract; if that is not the case, then the ordinary particulars about the representation ought to be given, but that is a matter of particulars rather than deficiency in material facts. The allegation of falsity could and should be further particularised by stating what the defendant alleges was the true value which ought to have been used in the contract, but that, I think, is a matter properly the subject of further particulars rather than an omission which justifies striking out the pleading.
- [15]There is also authority that an allegation that the other party knew it was not entitled to do what it did, or did it recklessly, is essential to a pleading of fraud: Strike Holdings Pty Ltd v. Cigna Insurance Australia Ltd (Queensland Court of Appeal, 79/92, 12.11.92, unreported). Such an allegation appears in paragraph 16(a) of this defence. When defending an action on a contract because of fraud it is necessary to plead and prove either that the contract was repudiated in reliance on the fraud or that the subject of the contract proved valueless or of less value than the price payable so that there is a claim for damages to be set off: O'Keefe v. Taylor Estates Co Ltd [1916] St.R.Qd 301 at 309. This pleading does allege that as a result of the fraudulent misrepresentation, the third party has suffered loss, so that element of the cause of action is covered; I will deal separately with whether or not the damages have been properly particularised.
- [16]The question of what has to be pleaded was discussed in the judgment of Jordon CJ in Middleton v. O'Neill (1943) 43 SR(NSW) 178 at 184-5. His Honour pointed out that the use of the word “fraud” was neither necessary nor sufficient, and that it was necessary to plead the facts alleged to constitute the fraud. His Honour also addressed the question of whether a statement of claim which alleged fraud could lead to recovery on some other basis which did not involve the finding of fraud if another cause of action was made out, as long as the other facts alleged did justify relief on some other basis. That is not of immediate concern. An indication of the contents appropriate for a plea of fraud as part of a claim for damages for deceit may be found in Bullen & Leake & Jacobs “Precedents of Pleading” (13th ed., 1990) Form 273; in my opinion, there is nothing in r. 150(1)(f) which requires anything more than the facts identified as material in that text and illustrated in that precedent.
- [17]In my opinion, the requirement that fraud be pleaded specifically should be interpreted as reflecting the prior law on the subject, that is as a requirement that all of the facts necessary to constitute fraud should be alleged where fraud is relied on, either as a cause of action in deceit or on some other basis. There is a difference between pleading the material facts constituting the fraud and providing particulars of those material facts. For example, in the present case it was alleged that the value of certain equipment which had been sold was misrepresented in the contract because the value attributed to it there was greater than its true value. That is sufficient as an allegation that the representation relied on was false, even though it can properly be particularised by identifying the value alleged to be the true value, and, as long as the answer would not be obvious from the terms of the contract, identifying the amount alleged to have been represented as the value of the machines.
- [18]In my opinion, what is required is that the allegation of fraud be pleaded as something clearly recognisable as an allegation of fraud, and that all of the elements necessary to establish fraud be covered expressly in the pleading, but a pleading is not in breach of r. 150(1)(f) merely because it is not fully particularised. There is a distinction between a deficiency in pleading material facts, which ordinarily results in the pleading being struck out, but with liberty to replead, and a deficiency in particularisation, which ordinarily results in an order for the provision of particulars or further particulars. In my opinion, in this aspect of the present case any deficiency is in the latter category.
Rule 150(1)(k) – Pleading Knowledge
- [19]Under this provision of the rule knowledge is something that is required to be specifically pleaded. Under the previous rules of the Supreme Court, O.22 r.22, it was expressly provided that where it was material to allege knowledge, it was sufficient to allege it as a fact without setting out the circumstances from which it was to be inferred. This was said in the commentary in Ryan Weld and Lee, para. 22.22.1 to be a restatement of the general proposition in O.22 r.1(1) that a pleading shall contain the material facts but not the evidence by which they are to be proved. That general approach to the correct contents of a pleading remains in r. 149(1)(b). I would not expect that compliance with a specific provision in r. 150 would ordinarily require something inconsistent with that provision.
- [20]The question of pleading knowledge was discussed by the Court of Appeal in Australian and Commercial Research and Development Ltd v. Commonwealth of Australia [1995] 2 Qd.R. 336. In that case the majority said at p. 339:
“Whether there was a particular intention, and if so who held it, are distinct matters of fact.”
The then Chief Justice at p.337 spoke of the process by which the mental state of a corporation would be proved in terms which identify the matters from which an inference of a particular mental state was to be drawn as circumstantial evidence. That case turned on the scope of O.22 r.22, but I think it does recognise the distinction between the existence of a state of mind, such as knowledge, as a fact in itself, and the matter on the basis of which a court is to be asked to draw the inference that knowledge existed, which is really a matter of evidence.
- [21]The rules of the Federal Court provide expressly that where a condition of mind (including a fraudulent intention) is alleged, particulars of the facts and circumstances on the basis of which the condition is to be inferred are to be given but expressly exclude “knowledge”: O.12 r.3. There is no direct equivalent of that provision in the Uniform Civil Procedure Rules. I do not think that the mere mention of knowledge among the list of things to be specifically pleaded in r. 150 indicates an intention when dealing with an allegation of knowledge to depart from the general rule in r. 149(1)(b) about not pleading evidence. In my opinion, r. 150(1)(k) does not require that anything more than the existence of knowledge as a material fact be expressly pleaded where a party is proposing to rely on the existence of that knowledge in establishing a cause of action or defence. Even if something further ought to be provided by way of particulars, such as, in the case of a corporation, who on behalf of the corporation is alleged to have had the relevant knowledge, that is a matter which is, in my opinion, properly dealt with, if not pleaded initially, by a request for particulars, and if necessary an order for particulars, under r. 161. It is not a ground for striking out the pleading for failure to comply with r. 150. In my opinion, the pleading in the present case sufficiently alleges knowledge specifically and there was no breach of r. 150(1)(k).
Rule 155 – Pleading Damages
- [22]Rule 155 requires that a pleading in which damages are claimed state the nature and amount of the damages claimed. What is claimed in the present case is a set off sufficient to extinguish the plaintiff’s claim, but what is sought to be set off must be a claim for damages and therefore it contains a claim for damages so that in my opinion r. 155 applied. Indeed, the contrary was not argued. The Court of Appeal in Meredith (supra) did regard compliance with the quite specific provisions of that rule as to pleading damages as important, although it omitted to state whether a failure to comply with r. 155 (or in the case of special damages with r. 150(1)) should ordinarily lead to a pleading being struck out. These rules are in that part of the chapter dealing with pleadings which deals with the fundamental requirements for a pleading, rather than particulars, which supports a conclusion that a failure to comply with these rules ought ordinarily result in striking out.
- [23]In the present case, the pleading does not even identify an amount as the quantum of the loss alleged to have been suffered, merely that the amount is in excess of $2 million, and says nothing about the nature of the loss or damage suffered, the exact circumstances in which the loss or damage was suffered, or the basis on which the amount claimed has been worked out or estimated. If the claim is in respect of a sum properly regarded as special damages rather than general damages, the requirements of r. 150(1)(b) would not be likely to be less strict. I think that the defence does not satisfy the requirements of r. 155 and the appropriate consequence of that failure where there is no offer to remedy the deficiency is to strike out the pleading, but with liberty to replead. This deficiency is not confined to the cause of action of damages for fraud; all the causes of action relied on as giving an entitlement to damages, which is the basis of the set off, alleged the same damages, which in my opinion is alleged in a way which is inadequate in the light of r. 155.
Trade Practices Act Claim In A Set-Off
- [24]With regard to the claim for damages for breach of the Trade Practices Act, there was further argument advanced that this was not available because the proceeding did not fall within s. 82 of that Act. That section provides that “a person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV or V may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.” It was submitted that what was pleaded here was merely a setoff and was not an action, so that it did not satisfy s. 82.
- [25]In my opinion, the effect of s. 82 is to establish that there is a cause of action for damages for breach of certain provisions of the statute; it does not have the effect that the loss or damage alleged to have been suffered may be recovered only by something which is identifiable as “an action” as distinct from some other form of proceeding. Traditionally, the term “action” has identified a court proceeding commenced by a Writ of Summons; that was the effect of the last sentence of O.2 r.1 of the former Supreme Court Rules, reflecting earlier practice in Queensland and in England. It may be that the association with a proceeding commenced by writ is merely historical. The term “action” generally meant a proceeding in one of the common law courts as opposed to a suit in equity, and a proceeding in the common law courts was ordinarily commenced by Writ of Summons: Osbourne “A Concise Law Dictionary” (5th ed., 1964), p.12.
- [26]If the term is confined in a precise way as suggested by O.2 r.1, it would make it impossible to recover damages for contravention of s. 52 by a proceeding in the Federal Court, where proceedings are not commenced by a Writ of Summons. But plainly the legislature intended that such a claim could be brought in the Federal Court: see s. 86. In my opinion, the use of the word “action” in s.82 does not have the effect of confining the process by which damages under that section may be recovered to something which would be called an action as distinct from some other form of court procedure. I would think that it has always been accepted that a claim for damages under s. 82 may be properly included in a counterclaim, in various courts including the District Court, and I think that it is only a small step, particularly in the light of the provisions of the Uniform Civil Procedure Rules referred to earlier, to conclude that as a result it may be included in a set off. Perhaps the only real significance of the use of the term in s. 82 is to emphasise that the entitlement to damages is one which lies in law rather than in equity. In my opinion, there is no substance to this argument on behalf of the defendant.
- [27]In my opinion, therefore, it is appropriate to strike out the defence of the third party, but with liberty to replead. I have given some thought to the question of whether I should also make an order for particulars but ultimately have decided that that is not practicable in circumstances where I am striking out the pleading but with liberty to replead, since any deficiency in the provision of particulars may well be made good in the course of the repleading, and indeed the pleading may be completely recast so as to render meaningless any order that I may make for particulars. Obviously, any new pleading should be properly particularised. If it is not, and if a request for appropriate particulars does not produce proper particulars, a further order can be made under r. 161. I think in view of the terms of r. 161 and r. 163, the ordinary consequence of a failure to give proper particulars should be an order for particulars rather than striking out in the first instance; I think these rules provide a specific regime which should ordinarily displace the general power in r. 371 to set aside a step taken in the proceeding where there has been a failure to comply with the rules.
- [28]That rule gives jurisdiction to set aside or strike out the defence because of the failure to comply with r. 155. It may be as well that there is jurisdiction to strike it out under r. 170(1)(a) on the ground that it discloses no reasonable defence, although I think that the failure to give particulars of damage is not a matter which would ordinarily be regarded as leading to a conclusion that no reasonable cause of action or defence had been pleaded. Rule 155 is a new provision, and prior to 1 July 1999 it was generally regarded as permissible for a cause of action, or defence by way of set off, to be pleaded which alleged an entitlement to damages without providing the detail now required by r. 155. I do not think that any of the other provisions of r. 171 apply, although some attempt was made to rely on (b), (c) and (d). The expressions used there have fairly well settled meanings which do not extend to a failure to provide the sort of detail now required by r. 155. The application did not indicate under what rule the applicant sought to have the defence struck out; that I think was required both by r. 372 in the case of an application under r. 371, and by the requirement in the approved form for such an application, to state inter alia:
“Where an order is sought under a rule … state the rule number … relied on”.
Costs
- [29]With regard to the question of costs there was a failure to comply with r. 444, and perhaps to comply with r. 372. The application was ultimately successful in getting the pleading struck out, but only on one of the grounds argued. Prima facie, costs should follow the event: r. 689(1). On the other hand, a failure to comply with r. 444 would, I think, be ample justification for depriving a successful applicant of costs. Neither set of solicitors have approached the problems in this matter in a constructive way; as I mentioned earlier, my impression is that such exchange of correspondence as did occur in connection with this application was conducted in terms apparently calculated to inflame the dispute rather than to attempt to resolve it. There has therefore been plenty of conduct on both sides which is deserving of criticism, and indeed, being punished by an order for costs. I shall resist the temptation to order both parties to the application to pay the costs, and instead order that the costs of both parties be costs in the third party proceedings.
- [30]The orders that I make are therefore:
- Order that the defence of the third party filed 17 May 2000 be struck out, but with liberty to the third part to replead.
- Direct that, unless an amended defence is filed in the registry by midday on 23 June 2000, the defendant may be at liberty to sign judgment in default for:
- (a)a declaration that the third party is liable to indemnify the defendant in respect of such amount as the defendant may be found liable to the plaintiff in the proceedings;
- (b)an order that the third party pay to the plaintiff the amount found in the proceeding to be the liability of the defendant to the plaintiff, including any liability in respect of costs.
- Order that the costs of each party of the application be that party’s costs in the third party proceeding.