Rare Nominees Pty Ltd v E-Coastal Developments Pty Ltd (No 2)
[2017] QDC 250
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Rare Nominees Pty Ltd v E-Coastal Developments Pty Ltd (No 2)[2017] QDC 250
- Add to List
Rare Nominees Pty Ltd v E-Coastal Developments Pty Ltd (No 2)[2017] QDC 250
Rare Nominees Pty Ltd v E-Coastal Developments Pty Ltd (No 2)[2017] QDC 250
DISTRICT COURT OF QUEENSLAND
CITATION: | Rare Nominees Pty Ltd v E-Coastal Developments Pty Ltd & Ors (No 2) [2017] QDC 250 |
PARTIES: | RARE NOMINEES PTY LTD (ACN 094 976 833), AS TRUSTEE FOR THE MACKELLAR FAMILY SUPERANNUATION FUND (plaintiff) v E-COASTAL DEVELOPMENTS PTY LTD (IN LIQUIDATION) (ACN 105 138 056) (formerly, first defendant) and CHRISTOPHER JOHN EATON (second defendant) and MODERN CITY HOLDINGS PTY LTD (ACN 122 023 803) (third defendant) and BELINDA JANE EATON (fourth defendant) |
FILE NO/S: | D4799/15 |
DIVISION: | Civil |
PROCEEDING: | Costs |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 5 October 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers |
JUDGE: | Dorney QC DCJ |
ORDERS: |
|
CATCHWORDS: | COSTS – Calderbank offer and UCPR offers – whether joint offer ineffective when one offeree succeeds in defending proceeding – whether “compromise” in offer made |
LEGISLATION: | District Court of Queensland Act 1967, s 52(1)(b) Uniform Civil Procedure Rules 1999, rr 356, 360, 360(1), 360(1)(a), 360(2), 363, 363(1), 363(2), 681, 681(1), 681(2), 684, 684(2), 687(2)(a), 698, 702, Ch 17A |
CASES CITED: | Bulsey & Anor v State of Queensland [2016] QCA 158 Cachia v Hanes (1994) 179 CLR 403 Calderbank v Calderbank [1975] All ER 333 Cardrona Property Pty Ltd & Ors v Cars.com.au Pty Ltd & Ors (No 2) [2016] QDC 137 Chiropractic Board of Australia v Jamieson [2013] QSC 77 Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd [2016] QCA 130 Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 Hadgelias Holdings Pty Ltd v Seirlis & Ors [2014] QCA 325 Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] 13 VR 435 Jones v Bradley (No 2) [2003] NSWCA 258 Jones v Millward [2005] 1 Qd R 498 Merrin v Commissioner of Police [2012] QCA 181 Messiter v Hutchinson (1987) 10 NSWLR 525 Murphy Farming Pty Ltd as Trustee for the Murphy Farming Trust v Gralike & Ors (No 2) [2016] QDC 155 Rintoul v State of Queensland & Ors [2015] QCA 79 Rivergate Marina & Shipyard Pty Ltd v Morphett (No 2) [2017] QDC 180 Roberts v Prendergast [2013] QCA 89 Rolls v Radford [2012] QSC 170 Smith & Ors v Wessling-Smith & Ors [2017] QSC 189 State Mercantile Pty Ltd v Oracle Telecom Pty Ltd (No 2) [2017] QDC 60 Stewart v Atco Controls Pty Ltd (No 2) (2014) 252 CLR 331 |
COUNSEL: | B A Hall for the plaintiff C J Eaton personally for the 2nd and 4th defendants and by leave for the 3rd defendant |
SOLICITORS: | Robinson Locke Litigation Lawyers for the plaintiff |
Introduction
- [1]On 26 September 2017, I made orders and gave judgments for two different sides in this proceeding. One of the orders made was that submissions on costs be filed and served by 4.00pm on 29 September 2017. Submissions have been made both by the plaintiff and, in combination, by the second, third and fourth defendants.
- [2]In order to understand the submissions, it is necessary to refer to the facts that: judgment was given for the plaintiff against the second defendant; judgment was given for the fourth defendant against the plaintiff; and the plaintiff’s Seventh Amended Statement of Claim, insofar as it made allegations and sought claims against the third defendant, was struck out.
Plaintiff’s submissions
- [3]As for costs against the first defendant, considering that it was ordered to be removed as a party to the proceedings (in that it is now deregistered), the plaintiff contends that no order as to costs need be made against it. This is not contested; and ought to be the outcome anyway.
- [4]As for the third defendant, the plaintiff submits that, since the third defendant no longer held the asset that had previously been the subject of the claim against it, no order as to costs need be made against it either, in circumstances where the plaintiff “did not ultimately pursue any claim” against it.
- [5]As for the fourth defendant, who was the wife of the second defendant, as she has succeeded, the plaintiff accepts that “she should have her costs” subject to being “not entitled” to any such costs “for the period where she was self-represented”.
- [6]As to the second defendant, Mr Eaton, it is contended that the real issue for determination is whether the plaintiff is entitled to its costs on the indemnity, or the standard, basis. The reasons behind that contention are considered next.
- [7]Mr Malcolm Robinson, a principal of the solicitors for the plaintiff, has sought leave to file an affidavit, affirmed 29 September 2017. Because it does contain matters relevant to costs, I give leave to do so.
- [8]The affidavit exhibits three offers to settle, by a letter in each case. All were entitled “without prejudice”. The first, dated 22 April 2015 was not expressed to be made pursuant to the principles in Calderbank v Calderbank [1975] All ER 333 and did not, in particular, state that it was without prejudice “save as to costs”. The offer was “to settle the litigation for $100,000.00 all up” (emphasis added). It was further stated that, upon settlement, it would be a term that the plaintiff would withdraw caveats over properties at Spring Hill and Pullenvale. No specific period of time was given for acceptance of that offer – but it did state that: “Please confirm acceptance by return”.
- [9]The second offer to settle was dated 6 November 2015 and was stated to be made in accordance with the Uniform Civil Procedure Rules 1999 (“UCPR”). Rule 356 has the effect that such an offer “is taken to be an offer made without prejudice.” It was stated to be open for acceptance for 14 days. The offer was to settle the claims against the second and fourth defendants by “payment by” them to the plaintiff of $124,000.00. It further stated that, on acceptance but on a failure to pay, it was to be a condition that both those defendants “consent to judgment”.
- [10]The third offer by the plaintiff was dated 31 March 2016. Again, it was said to be in accordance with the UCPR and to be open to acceptance for 14 days. The offer was for a settlement of the plaintiff’s claim against the second, third and fourth defendants on the basis that those defendants pay the plaintiff the amount of $260,000.00. That figure, as a later table in the offer illustrated, was based upon the claim of $124,434.90, an interest calculation of $89,472.45, and an estimate of costs of $50,000.00. In total, those amounts were $263,907.35.
- [11]None of those offers was accepted.
- [12]For the sake of completeness, Mr Robinson’s affidavit exhibits a “without prejudice offer” made in “an email” by the second defendant to the plaintiff’s solicitors dated 22 July 2016. It has not been referred to in the submission by the second, third and fourth defendants – and there appear to be good reasons for that, given the terms of the offer contained at the end of that particular email, in light of the orders and judgments that I have made and given.
- [13]As for the first offer of the plaintiff, the plaintiff contends that it was an offer that was both capable of acceptance and in respect of which the plaintiff “has now obtained a better result.” While the plaintiff concedes that the offer was made not only to the second defendant but to the first and third defendants as well, it maintains that that should not be held against the plaintiff, particularly with respect to the first defendant because it was deregistered prior to trial. As for the third defendant, the plaintiff asserts that it had “divested itself of all assets” and that there was “no utility’ in the plaintiff proceeding against it, even though the plaintiff states that, had the plaintiff proceeded against the first and third defendants, it “would have succeeded to the same extent it succeeded against Mr Eaton, given that he was the guiding mind of those entities.” Further, while asserting that there was no timeframe for the expiry of the offer, the plaintiff contends that it would be appropriate to make an order for indemnity costs dating from a period of two weeks after the issue of the offer, being a “reasonable time for it to be accepted.” Unsurprisingly, since the submissions incorrectly stated that the fourth defendant was not then a party, no reference was made as to how the offer affected Mrs Eaton.
- [14]As for the second offer, the plaintiff submits that the timing of it could, in the alternative, be a date for the expiry of the first offer. As for the effect of the second offer, it is contended that, since it expired on 20 November 2015, an order for costs on the indemnity basis could be made from that date on the basis that the plaintiff “has obtained a better result” than the offer of $124,000.00. It is further submitted that it is “immaterial” that the offer was issued not only to the second defendant but also to the fourth defendant “jointly”, on the basis that it was “always open” to the second defendant to accept the offer and pay out that sum himself.
- [15]As for the third offer, it was not for $227,022.65 (as stated in the plaintiff’s submissions) but, as already noted, for $260,000.00. It is submitted for the plaintiff that the judgment that it obtained against the second defendant of $226,000.55 should be contrasted against that figure. As to the date from which it would be “appropriate to order indemnity costs”, the plaintiff submits that it would be from 6 April 2016 – although there is no evidence, particularly from paragraph 6 of Mr Robinson’s affidavit, that this was the date when this offer “was expressly rejected by the Defendants’ solicitors at the time.”
Submissions of second, third and fourth defendants
- [16]These submissions correctly state that the fourth defendant was joined as a party on 23 February 2015. This is prior to the plaintiff’s first offer of 22 April 2015 and contradicts the plaintiff’s submission that Mrs Eaton “was not yet a party to the proceeding” then.
- [17]The submissions then state that they were represented by solicitors from “around October 2014” until the second, third and fourth defendants “became self-represented in May 2016”. They have remained so since.
- [18]The first defendant was placed into liquidation on 5 June 2015 and deregistered on 20 November 2016.
- [19]The defendants maintain that, as against the fourth defendant, such costs “should follow the event.” It is then contended that the Court should assess a proportion of those costs of the solicitors engaged by all the defendants from October 2014 to May 2016. In addition, it is submitted that, following self-representation, the fourth defendant should be awarded “incidentals that have been paid out of her pocket.”
- [20]As against the third defendant, the defendants submit that it was “successful” and that its costs should also follow the event. It is submitted that the basis of the assessment should be the same as for the fourth defendant.
- [21]As for the second defendant, contentions have been advanced that the plaintiff should only be entitled to its costs on the standard basis and then only be entitled to its costs on a “pro-rata share” of the overall costs of the total proceeding. Furthermore, it is submitted that the decision against the second defendant was “finely poised” and, as such, was “not a circumstance which would give rise to indemnity costs”, particularly taking into account the determinations made by the Court with respect to the third and fourth defendants.
Calderbank offer?
- [22]As noted by the New South Wales Court of Appeal in Jones v Bradley (No 2) [2003] NSWCA 258, Calderbank offers are a well-recognised means of making offers of settlement in circumstances where the party making the offer ultimately seeks a costs advantage if the offer is not accepted: at [5]. Such an offer is one which conforms to the structure of that deployed in Calderbank, which, as noted in Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 by McColl JA, is one which is marked “without prejudice”, makes an offer of settlement, and “warns” that the letter will be relied upon on the question of costs if and when that issue arises: at [97], relying on Messiter v Hutchinson (1987) 10 NSWLR 525.
- [23]As examined in Elite Protective Personnel, a costs inclusive offer in a Calderbank offer does not destroy its effectiveness: see McColl JA at [115]. Even so, such an “all-in” offer informs the question of the reasonableness of an offeree’s refusal to accept such an offer: also at [115]. As is further remarked by Basten JA, if a plaintiff were to make an offer in a particular amount, inclusive of costs, and receive damages in excess of that amount, the plaintiff “has on any view bettered his or her offer and should have it considered in relation to the question of costs”: at [141] and [145].
- [24]In this Court, the principles surrounding a Calderbank offer were considered recently by McGill SC DCJ in Cardrona Property Pty Ltd & Ors v Cars.com.au Pty Ltd & Ors (No 2) [2016] QDC 137. He looked at the effect of the adoption by the Queensland Court of Appeal in Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd [2016] QCA 130 of what the High Court said in Stewart v Atco Controls Pty Ltd (No 2) (2014) 252 CLR 331: at [3] – [7]. McGill SC DCJ’s conclusion was that the approach indicated a greater willingness to order indemnity costs on the basis of a failure to accept a Calderbank offer than was the case previously, identifying the approach formerly taken in Roberts v Prendergast [2013] QCA 89. Further, he held that the approach appears to have accepted that the onus is on the party not accepting the offer to show that its non-acceptance was reasonable.
- [25]As the extract from Stewart shows, after noting that the court has a general discretion as to costs and that the non-acceptance of such an offer is a factor, in some cases a strong factor, to be taken into account, it was held that it was necessary in that discharge of that onus to point to a reason “beyond the usual prospects of being successful in litigation.”
- [26]In the later decision of Rivergate Marina & Shipyard Pty Ltd v Morphett (No 2) [2017] QDC 180, McGill SC DCJ not only referred to his views in State Mercantile Pty Ltd v Oracle Telecom Pty Ltd (No 2) [2017] QDC 60, but also stated that: the modern trend has been away from the notion that it is appropriate for a court to keep a register of wins and losses rather than taking a global view in respect of costs (at [6]); and the general proposition, (namely, that where the judgment is no less favourable than the offer because of something that has happened or something that has changed such that some other order would be appropriate), extended to the situation where the judgment was no less favourable only because of accrual of additional interest (at [11]). It should be noted that the last mentioned consideration was with respect to r 360 of the UCPR – but there is nothing which would distinguish the general proposition in a way which would make in inapplicable to a Calderbank offer in the determination of reasonableness.
- [27]Turning then to State Mercantile: it was there considered that Hadgelias Holdings Pty Ltd v Seirlis & Ors [2014] QCA 325, though following Stewart, “still placed greater emphasis on a prospective assessment of the position at the time of the offer, than on the outcome”: at [10]-[11]. After then referring to Bulsey & Anor v State of Queensland [2016] QCA 158, it was determined that “it is not clear whether the Court of Appeal still regards the offeree’s prospects assessed as at the date of the offer as still relevant”: at [13].
- [28]My own view is that the very brief consideration in Stewart does not support the proposition that the ultimate outcome of the proceeding is to be a more relevant factor than the prospects of the offeree assessed as at the date of the offer. Rather, Stewart seems to regard the factor of the Calderbank offer as dependant on the strength of the reason advanced for not accepting the offer. In Stewart the reason was simply the intermediate decision (which should not have been made). Within that construct, the general approach of determining the unreasonableness of rejection can only be one determined from all of the circumstances that existed at the time of an appropriate response to the offer, otherwise it excludes the appropriate context of reasonableness. Beyond that, Stewart does not appear to lay down any new guidelines – apart from leaving open the fundamental issue of whether the test is properly formulated in terms of the unreasonableness of the rejection – as contrasted, perhaps, with the blunt instrument that the UCPR provisions provide, even if softened in part by the proviso to r 360(1).
- [29]It is to be noted that in Smith & Ors v Wessling-Smith & Ors [2017] QSC 189, Bond J stated that cases concerning the consideration of ordering costs to be assessed on the indemnity basis “make very clear that the assessment whether the rejection of the offer should be characterised as imprudent or unreasonable is to be carried out by reference to the circumstances which existed at the time the offer was made and rejected” (at [16]).
- [30]On that path, it is necessary then to consider the non-exhaustive list of matters formulated in Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] 13 VR 435. As set out in State Mercantile, that list identifies:
the stage of the proceeding at which the offer was received;
the time allowed to the offeree to consider the offer;
the extent of the compromise offered;
the offeree’s prospects of success, assessed as at the date of the offer;
the clarity with which the terms of the offer were expressed; and
whether the offer foreshadowed an application for indemnity costs in the event of the offeree’s rejection of it: at [5].
- [31]The fact that a purported Calderbank offer does not comply completely with principles laid down in Calderbank does not necessarily mean that the general principles that would otherwise apply become inapplicable. Thus, for instance, the absence of a reference to the “without prejudice” being directed to the issue of “save as to costs” would not negate the application of relevant principles, though (as just noted) it may be a matter brought into account: see Bulsey at [54].
- [32]In this proceeding, the offer of 22 April 2015, while lacking some of the identifiers of a Calderbank offer, such as a reference to “save as to costs”, is to be analysed as a strict Calderbank offer would be, in the context of the Hazeldene’s and Bulsey matters. That offer was an offer which was “all up”. Consequently, it needs a close examination of whether the amount offered can be properly assessed in terms of reasonableness after considering the non-exhaustive list and the omission of seeking indemnity costs.
- [33]Regarding the stage of the proceeding at which the offer was received, it was a time after the fourth defendant was joined as a party – but not long after. There was no time period stated during which the offerees could consider the offer. More importantly, there was a requirement to “confirm acceptance by return”. That, in the context of no time period identified and of the confident assertion that the “claim will be validated in full” (by the use of “confirm”) strongly suggests an immediate answer (that is, “by return” communication). If that were to be the appropriate interpretation – which I find that it is – then it is clearly an insufficient time in which to consider the offer.
- [34]Dealing, then, with the extent of the compromise offered and the prospects of success assessed as at the date of the offer, the only ground found against E-Coastal Developments Pty Ltd (as it then existed) was a breach of a “limited” fiduciary duty. As analysed in the Reasons given, this was an argument which fell, in the end, against E-Coastal. But it was not in any way incontestable that the contractual provisions of the Joint Venture Agreement might not be interpreted in a way which would exclude the concurrent application of some fiduciary duty, even a limited one.
- [35]But the compromise offered was significant considering that the judgment, without interest, was more than the sum of $100,000.00 which, being was offered and which, being “all up”, included costs.
- [36]Lastly, there was no foreshadowed offer of an application for indemnity costs in the event of rejection.
- [37]Although the extent of the compromise offered was significant, the absence of any foreshadowed application for indemnity costs, taken together with the extremely abbreviated time for confirmation, in the light of there being a significant argument open to the defendants as they then were, leads me to the conclusion that, in the circumstances of this case, it was not unreasonable for the defendants to have failed to accept the offer made. Thus, in Stewart terms, this non-acceptance is not a strong factor in all of the circumstances considered.
UCPR offers
- [38]The first of the offers made under the UCPR was that of 6 November 2015. This offer did contain a time frame, being 14 days. What is not clear about it is what the $124,000.00 was meant to cover. In the third paragraph it was stated that, if the offer was not accepted, “upon obtaining a judgment for a higher amount (i.e. including interest and costs), our client will be seeking costs on an indemnity basis”. That statement implies that the figure offered to settle the claim was one that included interest and costs, even though the second paragraph, if taken in isolation, might suggest the contrary.
- [39]Before turning to resolve that complication, another concern is that the offer made was that the second defendant and fourth defendant, only (but together), make that payment. A “comment” accompanied the offer as to why the third defendant was excluded from the offer, being on the basis of an assessment of it “having no remaining resources”. On the face of the offer, it purports to be an offer within r 360 of the UCPR. Within Part 5 of Chapter 9 of the UCPR, r 363 deals with multiple defendants. Rule 363(1) states if there are two or more defendants, the plaintiff may make an offer to settle with any defendant. It has not been submitted here that r 363(2) is applicable, since there are no allegations of joint or joint and several liability. Hence, the offer to settle here is not with any one defendant but, rather, with both the second and the fourth defendants, together. This is particularly so where the offer, in its second paragraph attaches a “condition” which contains a default provision that the second and fourth defendants “consent to judgment” upon failure to pay within 21 days of acceptance. That is, they both would be subject to that condition upon acceptance.
- [40]Where, as here, judgment has been given for the fourth defendant against the plaintiff, it is difficult to see how this particular offer triggers r 360(1)(a), being that the plaintiff obtains an order “no less favourable than the offer”. The offer was to involve the fourth defendant as well – but she has succeeded entirely. It may have been open to argument that this offer was wide enough if the terms of the offer had simply requested that the payment be made by the second defendant, or the fourth defendant, or both. But that has not occurred.
- [41]Accordingly, r 360 of the UCPR has not been triggered for the offer of 6 November 2015. That means that r 360(2) also has not been triggered and a later “offer” can be considered.
- [42]Therefore, the next consideration is of the offer made on 31 March 2016. It, also, was served by way of “letter”. It simply seeks the payment of an amount of $260,000.00. The offer is stated to be open for acceptance for 14 days after receipt. In an explanation of how the sum was determined it is clear that, like the Calderbank offer, it was an “all up” offer. This interpretation is gleaned from a note to the effect that the amount of the claim, plus interest, plus costs (estimated on a standard basis and excluding “recent costs Order”) was in a total of $263,907.35. On the only reasonable assumption open to me (namely that the estimate of costs was reasonably accurate), it is difficult to see that there is any real offer of compromise. The necessity for such was examined by Bowskill QC DCJ (as she then was) in Murphy Farming Pty Ltd as Trustee for the Murphy Farming Trust v Gralike & Ors (No 2) [2016] QDC 155. As she noted, the offer to settle there included a specified payment, plus interest and payment of costs on an indemnity basis: at [23]. As was further noted, insofar as the claim was concerned, that represented only about a $2,500.00 reduction in the whole of the claim and, in her view, was an offer which “was not a genuine offer of compromise”, referring to Jones v Millward [2005] 1 Qd R 498 in which Holmes J (as she then was) noted that “an offer under the rules must be one that contains a genuine offer of compromise”: at [24]. Bowskill QC DCJ then observed that, even though there was a small reduction in the claim, in Rolls v Radford [2012] QSC 170, Philippides J (as her Honour then was) expressed a similar view “where there was a small reduction in the amount of the claim in making the offer”: at [25].
- [43]Hence, it is my conclusion that that offer of 31 March 2016 does not give rise to the operation of r 360 of the UCPR as it is not one that contains a genuine offer of compromise. In neither UCPR offer was any intent disclosed of the offer still having effect irrespective of whether or not the UCPR applied to make it effective: see Trustee for the Salvation Army (NSW) Property Trust v Becker (No 2) [2007] NSWCA 194 at [27], per Ipp JA.
Summary
- [44]Given my conclusions that the various offers that have been made by the plaintiff do not qualify for a consideration of costs to be assessed on the indemnity basis, r 702 of the UCPR takes its default effect and the costs must be assessed on the standard basis.
- [45]Because the second defendant and the fourth defendant had been self-represented and the third defendant, at least from the beginning of the trial onwards, has been represented by the second defendant pursuant to an order made under s 52(1)(b) of the District Court of Queensland Act 1967 for leave to represent the third defendant, the various costs orders to be made will need to take into account the relevant principles applying, at least in part, pursuant to Cachia v Hanes (1994) 179 CLR 403. As analysed by Jackson J in Chiropractic Board of Australia v Jamieson [2013] QSC 77, Merrin v Commissioner of Police [2012] QCA 181 denies the recoverability of such expenses as travelling and parking expenses of attending court as allowable costs by a litigant who is self-represented: at [26]. But, as he also concluded, certain other out-of-pocket expenses that are actually, necessarily and reasonably incurred can be allowed: at [28] – [32]. Further, in Rintoul v State of Queensland & Ors [2015] QCA 79 it was held that: a litigant in person cannot recover compensation for time spent in preparing his or her case; outlays should be recoverable only to the same extent as they would where the litigant is represented; and those outlays do not extend to travelling costs: at [22], referring both to Cachia and Merrin.
- [46]But it is not for this Court (on the very limited information given to it), but for the relevant costs assessor, pursuant to Chapter 17A of the UCPR, to make these relevant assessments of allowability.
- [47]Although r 681(1) of the UCPR states that costs of a proceeding are in the discretion of the court but follow the event, unless the court orders otherwise, and although r 681(2) states that r 681(1) applies “unless these rules provide otherwise”, there is nothing in this proceeding which triggers any basis for the court declaring, for instance, pursuant to r 684(2) that a percentage of the costs of the proceedings is attributable to a particular question in, or particular part of, this proceeding. It was held in State Mercantile that the traditional view is that “event” is to be determined by reference to separate events or issues if more than one arise in the proceeding: at [21]. This case, as observed earlier, is a case where the event involving the second defendant is a judgment against him, where the event involving the fourth defendant is a judgment for her and where the third defendant’s position has been dealt with by a striking out of the allegations and claims against it. In consequence, there are no evidential reasons advanced for r 684 to have been triggered. Additionally, there is nothing evidential which has triggered the application of r 687(2)(a), there being no circumstances warranting a conclusion that it is appropriate to order that a party pay to another party a specified part or percentage of assessed costs.
- [48]Although no submission has been made about any reserved costs, to the extent which they may have been made, r 698 states that, where they are reserved, the costs “follow the event”, given that this is not a case where there is any material justifying the court “ordering otherwise”.
Orders
- [49]The orders that I intend to make are as follows:
The plaintiff is given leave to file, and read, the affidavit of Malcolm Robinson, affirmed 29 September 2017.
The second defendant is to pay the plaintiff’s costs of the proceeding against him.
The plaintiff is to pay the fourth defendant’s costs of the proceeding against her.
The plaintiff is to pay the third defendant’s costs of the proceeding against it up to and including 6 November 2015 (where there is no submission that the third defendant had any role after that date and no submission at trial to support any contention of the kind advanced in the plaintiff’s submissions here concerning the role of Mr Eaton).