Cox v Nash[2022] QDC 73

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   There are two applications before the Court.  The first, filed by the defendants on 16 December 2021, seeks an order dismissing the proceeding for want of prosecution.   The second, filed by the plaintiffs on 11 February 2022, seeks an order for leave to proceed, as no step has been taken in the proceeding for over two years. 

Factual Background

2. [2]
   The plaintiffs and the defendants own adjoining properties in Windsor.  The properties share a common side boundary. 
3. [3]
   The plaintiffs have jointly owned their property since 1 December 2010; the first plaintiff having owned the property, which was then previously part of a larger lot, since 1976.  The defendants have jointly owned their property since 23 February 2009. 
4. [4]
   Sometime prior to either of the plaintiffs or the defendants having an interest in their respective properties, excavation to the rear of the defendants’ property had been performed.  A survey shows that the excavation face is entirely within the defendants’ property but it forms a common side boundary between the plaintiffs and the defendants and extends for approximately 37 metres.  The excavation face ranges in height from about 3.7 metres at the western end and gradually reduces to zero in an easterly direction. 
5. [5]
   In the course of renovating their property, the defendants carried out further excavation works to lay a concrete patio slab along the western side of their home. The excavation was between 1.5 and 2 metres from the excavation face. 
6. [6]
   On 26 February 2014, the plaintiffs wrote to the defendants alleging that the excavation had caused some of their land to collapse onto the defendants’ property. In the letter, the plaintiffs expressed concern that they could not build a fence along the boundary because some of the ground where the fence should go had been removed.  The defendants responded, by email sent 5 March 2014, saying they welcomed the opportunity to discuss the issue of the boundary and saying they planned to retain the required areas of their property along with the remaining renovation works.
7. [7]
   There were further communications between the plaintiffs and the defendants during 2014 and into 2015.  Each party appointed solicitors in or about October 2015.
8. [8]
   The plaintiffs engaged a structural engineer, Daniel Tonino of Malcolm Douglas Consultants, in November 2015.  That expert provided a report dated 19 November 2015 and that report was provided by the plaintiffs’ solicitors to the defendants’ solicitors under cover of a letter dated 23 November 2015.  In the report, Mr Tonino expressed the opinion that a suitably designed retaining wall should be constructed for the stability of the excavation face to protect the plaintiffs’ property from potential slope failure, the underground services and house foundation settlement and to protect the neighbour’s property from significant soil subsidence.  Mr Tonino repeated that view in a further report dated 2 August 2016.
9. [9]
   Formal proceedings were commenced on 16 September 2016. 

The Substantive Proceedings

10. [10]
    The plaintiffs’ claim relies on three causes of action against the defendants:

    1. (a)
       Breach of s 179 of the Property Law Act 1974 (Qld) as a result of the alleged loss of lateral support caused by the works conducted by the defendants in the proximity of the embankment in or about October 2015, and/or alternatively between 23 February 2009 and 26 February 2014;
    2. (b)
       Negligence arising from the alleged known risk of erosion and/or subsidence of the embankment and the failure of the defendants to construct a retaining wall or other adequate support structure to support and stabilise the embankment; and 
    3. (c)
       Nuisance arising from the failure of the defendants to construct an adequate support structure to stabilise and prevent erosion and subsidence of the embankment which constitutes an unreasonable interference in the plaintiffs’ enjoyment and use of their property.
11. [11]
    The claim in nuisance was added in the amended statement of claim filed 19 April 2019. 
12. [12]
    It is alleged that the excavations by the defendants created a risk of the embankment slipping or collapsing, a risk to the underground services within the plaintiffs’ property and prevented the plaintiffs being able to construct on-site car spaces at the south western corner of the property.  The plaintiffs seek the construction by the defendants of a retaining wall or other supporting structure to provide support to the embankment. 
13. [13]
    The defendants deny that they, or anyone on their behalf, contravened their obligations as landowners under s 179 and deny that they owed a duty of care to the plaintiffs.
14. [14]
    The defendants deny that the plaintiffs have suffered any damage and deny that a retaining wall or other support structure is needed as a consequence of any excavation works undertaken by them, or generally.
15. [15]
    The defendants have not responded to the action in nuisance; though as noted subsequently in these reasons, the defendants are yet to deliver an amended defence responding to the amended statement of claim. 
16. [16]
    The pleadings make clear that a central issue in the case is the alleged instability, and ongoing erosion, of the embankment, including whether any works undertaken by the defendants have altered its appearance, composition or stability.  It was accepted by both parties that the determination of that question would depend on the expert evidence, which would also shape the pleadings.

The Applications

17. [17]
    Both parties in their submissions relied on and addressed the traditional factors relevant to these types of applications set out by Atkinson J in Tyler v Custom Credit Corporation Limited.^[1] Her Honour, in a judgment with whom the other members of the Court of Appeal agreed, also held that the Court’s discretion is not fettered by rigid rules but should take into account all of the relevant circumstances of the particular case, including that ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them.^[2] 
18. [18]
    Her Honour referred to the fact that unnecessary delay brings the legal system into disrepute and decreases the chance of a fair and just trial.^[3]  After discussing the question of onus, her Honour held that the Court must be satisfied that the continuation of the proceedings would not involve injustice or unfairness to one of the parties by reason of the delay.^[4] 
19. [19]
    The circumstances which became the focus of the defendants’ submissions were:

1. The significant delay and dilatory conduct by the plaintiffs, both in the commencement of proceeding and in the litigation;
2. The lack of any prospects of success; and
3. The prejudice to the defendants caused by the delay.

Course of the Proceedings

20. [20]
    The proceedings were served on 11 November 2016. The defendants filed their defence on 14 December 2016.
21. [21]
    By letter dated 31 January 2017, the defendants’ solicitor chased the delivery of the reply.  In response, the plaintiffs’ solicitor said instructions were being taken and they were expecting to be able to deliver the reply by 20 February 2017.  The reply was served under cover of a letter dated 29 March 2017, and at that time, the defendants were asked a series of questions, including whether insurers were involved.
22. [22]
    There was then a delay of almost five months by both parties in the service of their list of documents.  The plaintiffs’ list of documents was delivered on 21 August 2017 and the defendants’ list was delivered on 25 August 2017.
23. [23]
    The solicitors for the defendants, on behalf of their insurer, engaged a geotechnical engineer (Eric Fox) who delivered a report dated 15 February 2018.  The report was sent to the solicitors for the plaintiffs that day.  In that report, Mr Fox expressed the opinion that there was no sign of past or present instability in the excavation, and that the excavations would not undermine the footings of the plaintiffs’ house.  He did not consider that there was any need for a retaining wall.
24. [24]
    On 29 March 2018, the defendants’ solicitors delivered a r 444 letter requiring the plaintiffs to properly plead their claim for damages and to complete disclosure of any expert or other evidence.  That letter was followed by a without prejudice offer contained in a letter dated 4 April 2018 for each party to walk away. The letters were acknowledged by a letter dated 11 April 2018 with it being said that instructions were being obtained. No subsequent response to the letters was provided. 
25. [25]
    A request for further and better particulars of the statement of claim was made on 29 June 2018.  The request for further and better particulars was met with a letter from the plaintiffs’ solicitors stating that their retainer had been terminated.  New solicitors were appointed in July 2018.  In July 2018, the defendants filed an amended defence and served a second report of Mr Fox dated 16 July 2018. During this period, there were communications between the newly appointed solicitors for the plaintiffs and the defendants’ solicitors, including a request for an inspection of the property by an expert to be retained by the plaintiffs and a request for an extension of time to provide the answers to the request for particulars pending the expert’s report. 
26. [26]
    The new solicitor’s retainer was terminated in October 2018 and, at that stage, the plaintiffs became self-represented. A without prejudice meeting between the defendants’ solicitor and the plaintiffs took place on 5 December 2018 and in February 2019 the plaintiffs re-engaged their former solicitors.
27. [27]
    In March 2019, a year after the delivery of the first engineering report of the defendants, the plaintiffs’ solicitors said that the plaintiffs’ expert reports were in progress.  At that time, it was said that counsel had been briefed to amend the pleading and that may raise further issues for the experts to consider.  
28. [28]
    In April 2019, the plaintiffs’ solicitor served the amended statement of claim.  On 9 July 2019, the defendants’ solicitors responded with a further r 444 letter requesting disclosure of documents referred to in the amended pleading and requesting the delivery of the plaintiffs’ expert reports so that they could properly consider the amended pleading and prepare any amended defence. The letter also sought the transfer of the matter to the commercial list. 
29. [29]
    The solicitors for the plaintiffs responded to the r 444 letter on 16 July 2019 providing the documents referred to in the amended statement of claim and said that the expert reports of Dr Shaw, the geotechnical engineer, and Mr Tonino, the structural engineer, would be provided as soon as they were to hand.  They also said that a direction for the transfer to the commercial list was premature.
30. [30]
    The plaintiffs provided a geotechnical report by Dr Shaw to the defendants’ solicitors on 1 August 2019.  Dr Shaw stated that the excavation face consisted of a thin upper layer of soil into extremely weathered to distinctly weathered siltstone or mudstone.  Dr Shaw considered that the face of the excavation would continue to break down and become more susceptible to erosion leading to fretting of the face.  Dr Shaw stated that should the excavation collapse there would be a loss of land to the plaintiffs but considered it unlikely that the collapse would undermine the existing house.  He did, however, say that the collapse of the excavation had the potential to affect the in-ground services depending on how far the instability extends into the plaintiffs’ property.  Dr Shaw stated that the existing excavation and potential for instability was a significant constraint to the construction of a carport or garage extending to the boundary of the plaintiffs’ property.
31. [31]
    Under cover of a letter dated 4 October 2019, the plaintiffs’ solicitors delivered a further report by Mr Tonino.  In that report, Mr Tonino repeated his view that the face of the excavation was not stable and required a retaining wall to stabilise it.  He considered that the geotechnical report by Dr Shaw supported the view that the rock which makes up the face of the excavation is not durable and is subject to progressive deterioration through ongoing erosion and rock fretting and that erosion and fretting is likely to accelerate with time.  He said that the underground services were potentially at risk if the face of the excavation was not stabilised and that the proposed construction of two approved carparks had been adversely affected.  He did not consider that a fence of the type proposed by Mr Fox was a suitable safety barrier.
32. [32]
    Following the delivery of the plaintiffs’ engineering reports, there were a number of telephone conversations between the respective solicitors concerning the defendants’ solicitor obtaining a further report from Mr Fox.  There is correspondence from the solicitors for the plaintiffs dated 20 December 2019, 31 January 2020, 4 February 2020 and 24 April 2020, requesting an update regarding a possible further engineering expert report that the defendants may obtain.
33. [33]
    In the letter of 24 April 2020, the plaintiffs’ solicitors requested that the plaintiffs’ experts (and other persons assisting or required by them) be permitted to conduct a site visit.  Follow up requests were made in correspondence sent on 11 May 2020, 16 June 2020 and 2 July 2020.  On 3 July 2020, the solicitors for the defendants responded and enquired as to Dr Shaw’s updated availability to complete his testing. The email stated that they proposed having the matter transferred to the commercial list.
34. [34]
    In an email dated 23 July 2020, the plaintiffs’ solicitor stated that the site visit had been arranged for 9:00 am on 29 July 2020 and requested confirmation by tomorrow.
35. [35]
    By email sent at 12.45 pm on 29 July 2020, the defendants’ solicitors made the site inspection conditional, amongst other things, on the matter being placed on the commercial list, including directions for all future steps through to trial (subject to the views of the Court), and saying that their clients were generally available on Mondays and Fridays.
36. [36]
    The solicitors for the defendants sought a reply to that email on 25 August 2020, and stated that their clients wished to progress the proceedings to mediation or trial. 
37. [37]
    The plaintiffs’ solicitors responded on 26 October 2020, indicating that there had been strained issues on site surrounding a further inspection by the plaintiffs’ expert and that their clients had serious concerns in relation to the ongoing delays in receiving an update in respect of a further Fox report and their position regarding their amended pleading.  They indicated, however, that their clients would be agreeable to a without prejudice meeting between the solicitors but that progressing the matter to mediation or trial was premature.
38. [38]
    On 3 December 2020, and again on 18 and 28 December 2020 and 20 January 2021, the solicitors for the plaintiffs sent emails to the defendants’ solicitors referring to telephone conversations with them, and indicating that they looked forward to receipt of the further report from Mr Fox as soon as it was available.
39. [39]
    In a conversation on 27 January 2021, the solicitor for the defendants told the plaintiffs’ solicitor that the defendants’ engineer, Mr Fox, required access to the plaintiffs’ site.  In a subsequent conversation on 10 February 2021, the solicitor for the defendants told the plaintiffs’ solicitor that the requested inspection by the plaintiffs’ engineer should be on a quid pro quo basis as the defendants’ expert needed to also do an inspection on the plaintiffs’ property.
40. [40]
    In a letter dated 12 February 2021, the plaintiffs’ solicitors referred to the conversation on 10 February 2021 and the request for Mr Fox to attend the plaintiffs’ property for the purposes of investigating underground services.  In that letter, the solicitors expressed the plaintiffs’ frustration with the delays in the provision of Mr Fox’s further report and in the updating of the defendants’ pleadings.  They suggested there be a meeting to determine whether any issues could be narrowed or otherwise resolved.
41. [41]
    There is no response to that letter but, on 20 April 2021, the respective solicitors had a conversation about various matters.  On 22 April 2021, the solicitors for the defendants sent an email about the conversation on 20 April, including making reference to the nature of Mr Fox’s inspection, and stated that the defendants would permit a second examination of their property by the plaintiffs’ expert upon receiving confirmation that Mr Fox would be permitted to attend on the plaintiffs’ property.  The solicitors for the defendants confirmed their position that it made sense to have the matter placed on the commercial list.
42. [42]
    The solicitors for the plaintiffs responded by letter dated 7 May 2021 agreeing to the inspection by Mr Fox on the condition that any inspection did not entail any disruption of the land and the inspection by their geotechnical engineer occur prior to the inspection by Mr Fox.  They requested a meeting before the proceeding was placed on the commercial list.
43. [43]
    By email sent on 19 July 2021, the solicitors for the defendants responded, confirming that the inspection by Mr Fox would not involve any disruption to the plaintiffs’ property and agreeing the inspection by the plaintiffs’ geotechnical engineer would precede that of Mr Fox.  The solicitors confirmed that they had not abandoned referral of the matter to the commercial list, only that it was no longer a condition to the inspection by the plaintiffs’ expert.  They indicated that they would be applying to have the matter placed on the commercial list.  They also asked about the dates for the re-examination of the embankment by the geotechnical engineer.
44. [44]
    This email was not responded to by the plaintiffs’ solicitors until 3 September 2021. The response was evidently prompted by a phone call from the solicitor for the defendants.  The email simply stated that they would respond the following week.
45. [45]
    The further response was not made until a letter dated 26 November 2021.  The plaintiffs’ solicitor confirmed the agreement in relation to the inspection by Mr Fox and nominated 10:00 am on 7 December 2021 as the time for the inspection by the plaintiffs’ geotechnical engineer.  They also advised that there may be a need for a number of persons to be present, including the plaintiffs.  This was said to be necessary on the grounds that previously one of the defendants had shouted and harassed the consultant.  By email sent on 29 November 2021, notification was given that the site visit time was estimated to be from 8:30 am to 12 noon with the solicitors requested to confirm by close of business on 1 December 2021 the defendants’ agreement to the proposed inspection.
46. [46]
    In response, on 30 November 2021 the solicitors for the defendants sent an email stating that the second inspection would be a step in the proceeding which could not occur without the leave of the Court under r 389 of the Uniform Civil Procedure Rules 1999 (Qld) (the ‘UCPR’).
47. [47]
    On 17 December 2021, the defendants served their application returnable on 24 February 2021.
48. [48]
    On 11 February 2022, the plaintiffs filed their application, which was also made returnable the same day.
49. [49]
    This review of the course of the proceedings shows that:

    1. (a)
       There was a three month delay by the plaintiffs in the filing of their reply to the defence;
    2. (b)
       Both parties waited about five months after pleadings had closed before providing their lists of documents;
    3. (c)
       It took the plaintiffs about seventeen months to deliver an expert report in response to that commissioned by the defendants’ insurer;
    4. (d)
       Albeit that the partial cause of this delay might relate to the need for an updated expert’s report (to be dealt with next), the defendants still have not responded to the amended statement of claim which was served nearly three years ago; and included a new cause of action (about which no complaint was made until the hearing of this application), despite having indicated that they knew they had to address the amended pleading;
    5. (e)
       It was not until the eve of this hearing that the defendants had an expert report responding to the plaintiffs’ report; a report which they had indicated in late 2019 was to be obtained, with the request for a site inspection not being made until some 13 months later in late January 2021 and notwithstanding numerous pieces of correspondence from the plaintiffs enquiring about the provision of the report;
    6. (f)
       Although initially requested in April 2020, with follow up requests in May, June and July 2020, to permit an inspection by the plaintiffs’ expert, no response was provided by the defendants until July 2020, with subsequent conditions being placed upon the inspection which ultimately meant that no inspection occurred before the defendants took the point that the plaintiffs needed leave to do so; and
    7. (g)
       There have been long periods when neither solicitor responded to requests from the other side.
50. [50]
    In summary, both parties have allowed this proceeding to take place at a very leisurely pace over nearly five and a half years; a pace quite inconsistent with the obligations imposed upon all parties to proceedings by r 5 of the UCPR and modern litigation practice.  The conduct shown in the correspondence is also inconsistent with the statutory obligations of both parties to proceed in an expeditious way with a minimum of expense.
51. [51]
    The way both parties dealt with the plain necessity for the experts to inspect the properties of the other party is simply unacceptable.  To say, as the defendants’ counsel submitted for the first time at the hearing, that there was no right to an inspection if refused by the defendants and that it could only be obtained by a Court order, misses the point.  Both parties should have known that some type of order would be made and they should have co-operated in a timely way to ensure that the inspections occurred without the necessity for any party to incur the unnecessary costs and delay which would attend any Court order.

Prospects of Success

52. [52]
    As to prospects of success, counsel for the defendants submitted a number of things:

    1. (a)
       The excavation was not causative of any loss to the plaintiffs’ property, taking into account the report of Dr Shaw;
    2. (b)
       Absent actual evidence that the embankment was created by the defendants’ predecessors in title after the installation of the plaintiffs’ services in 1998, the plaintiffs’ case must fail in respect of the services;
    3. (c)
       The claim under s 179 in respect of the carport cannot be maintained as the carport does not exist and support cannot be withdrawn from something that does not exist;
    4. (d)
       No duty of care or action in nuisance arises to provide support to an embankment wholly within the defendants’ property; and
    5. (e)
       Insofar as negligence and nuisance might be said to arise by reason of personal risk of falling over the embankment, the embankment was entirely within the defendants’ property, the risk could therefore only arise by reason of trespass and it could be solved by the installation of a fence.

53. [53]
    The defendants’ counsel also submitted that the pleadings were defective insofar as the statement of claim contained these claims.
54. [54]
    These submissions take no account of the evidence of Mr Tonino, who says that the face of the excavation was not stable and required a retaining wall to stabilise it, and that the underground services were potentially at risk, if the face of the excavation was not stabilised.  He says that there may be difficulties constructing the carport in the present state; meaning that the plaintiffs’ land was adversely affected by the absence of any stabilisation.  He did not consider that a fence of the type proposed by Mr Fox could be constructed; presumably absent stabilisation.
55. [55]
    No authority was cited for the proposition that an action for negligence or nuisance could not arise from conduct on the defendants’ land which affected that of the plaintiffs or the plaintiffs’ land.  This is hardly surprising.
56. [56]
    The truth is that this and the other expert opinions and the merits of the defendants’ submissions are all matters for assessment at trial.  Counsel for the plaintiffs referred to the words of caution expressed by Morrison JA, in giving the lead judgment in Pittaway v Noosa Cat Australia Pty Ltd.^[5]  His Honour stated that the question of assessing the prospects of success is but one of many factors that must be weighed in the balance.  He commented:

“The assessment can only be provisional as such an application is not the trial and will not be attended by the level of evidence that a trial involves.  Therefore, in my view the Court must be careful not to let the application become a trial, nor to treat the differences in evidentiary detail as one might on a trial.”^[6] 

57. [57]
    His Honour had warned that an application under r 280 of the UCPR must be prevented from becoming an application for summary judgment under r 292 of the UCPR.
58. [58]
    If it were an application for summary judgment or striking out on the basis that the plaintiffs could not succeed, which was hinted at in submissions, I would refuse it.
59. [59]
    The most that needs to be said is that the defendants have not satisfied me that the plaintiffs’ action has no prospect of success.

Conclusion of Litigation

60. [60]
    In the course of oral submissions, having regard to one of the factors referred to by Atkinson J in Tyler, the defendants’ counsel submitted that if leave was not granted then that would be the end of the dispute between the parties and the plaintiffs would be precluded from litigating the matter further.  It was submitted that this would create an estoppel, that it was potentially res judicata and it would be an abuse of process following the principles identified in Port of Melbourne Authority v Anshun^[7] and reaffirmed by the High Court in UBS AG v Tyne.^[8]
61. [61]
    Leave was granted on the hearing of the applications for further submissions to be made on that legal issue.

62. [62]
    Given the conclusion that I have come to, it is not necessary to deal at any length with these submissions.  It is sufficient for present purposes to observe that none of the authorities to which I was referred by the defendants’ counsel justify the conclusion that the refusal of leave to proceed, or even dismissal of the proceedings, would create a res judicata or issue estoppel.  The submission is contrary to the decision and reasoning of the Court of Appeal in Mango Boulevard Pty Ltd v Spencer^[9]; upon which counsel for the plaintiffs relied.
63. [63]
    It is unclear how an Anshun estoppel might arise, and the defendants did not suggest any.  The present and future facts are likely to be far removed from the situation and the principles discussed in either Tomlinson v Ramsey Food Processing Pty Ltd^[10] or UBS.^[11]

64. [64]
    In any event, it is not clear to me why the submission necessarily works in favour of the defendants.  If the proceedings were to be concluded by an order, that makes the defendants’ task of striking out the proceedings even more onerous; assuming, as here, that there is a serious dispute and on-going issues which require resolution.

Prejudice

65. [65]
    In support of the application by the defendants, the female defendant has disposed to the impact of the ongoing litigation.  Ms Stanton refers to the inability to move forward in their lives as a result of this proceedings.
66. [66]
    Ms Stanton refers to living in constant fear of the first plaintiff entering her home and causing damage.  Ms Stanton refers to being harassed, of the first plaintiff entering her property uninvited and of unwanted solicitor correspondence.
67. [67]
    Ms Stanton refers to their decision to relocate and of their need to sell their home but of their inability to do so because of these unresolved proceedings.
68. [68]
    In submissions, reference was made to the disparity between the impact of these proceedings on the defendants, who reside in the property as their principal place of residence, and the plaintiffs, for whom the residence is an investment property. However, and this is not to downplay the defendants’ distress, it is well known that litigation can be personally distressing for all parties and, although appalling if the conduct of the first plaintiff occurred in the way described, it might reflect his own distress at the circumstances he has been advised he risks.
69. [69]
    It is also clear that there has been delay by both parties; particularly in relation to the finalisation of the expert reports and agreeing terms to allow site inspections by the experts to occur.
70. [70]
    There is no suggestion from any party that the delay has caused any prejudice or unfairness in terms of evidence or the matter proceeding to trial.

71. [71]
    The answer to the stress caused by the litigation is to have the matter brought forward, rather than delayed.  It is, as has been recognised, a reason why litigation needs to be brought to a conclusion.^[12]

Conclusion

72. [72]
    The history of this matter discloses that the determination of this dispute has been fraught by delays. Some of it is explicable given that it is a dispute between neighbours. It is difficult to criticise a reluctance by one party to immediately take steps to commence proceedings, particularly where the defendants were making statements suggesting they were going to address the problem. I accordingly do not accept that the delay by the plaintiffs in the commencement of proceedings is an operative delay in terms of the determination of these applications.

73. [73]
    Once proceedings were commenced, there were very significant delays in most aspects, and with correspondence often going unanswered for months.  However, both parties were responsible for these delays and they cannot solely be laid at the door of the plaintiffs. None of the conduct justifies the refusal of leave in the circumstances.

74. [74]
    A real dispute exists between these parties, and on one view of the evidence, the cause of that dispute could be ongoing between whomever were the neighbours.
75. [75]
    It is in the interests of both parties that the dispute be determined and the best way that can be achieved is for leave to be granted and the defendants’ application refused.
76. [76]
    In granting leave, as seemed to be accepted in the course of submissions, the matter should be subject to close case management by the Court to ensure that the delays that have occurred to date are not permitted to continue.  I will give the parties an opportunity to agree further directions.  Failing agreement, I will make directions in chambers.  These directions should make provision for the matter to be brought back before me for further directions by either party emailing my associate; or alternatively make provision for the making of an application to a commercial list judge to have the matter placed on the commercial list within five days of the making of my order.
77. [77]
    Subject to further submissions, my inclination is to make the parties’ costs their costs in the proceedings.

Orders

78. [78]
    The orders to be made are:

1. The defendants’ application is dismissed.

2. Pursuant to r 389(2) of the UCPR, leave be granted to the plaintiffs to proceed with the claim.
3. The parties are to confer with respect to the directions to be made for the further conduct of the matter and submit a draft order by 4.00 pm, 1 April 2022, or failing agreement each party is to submit their draft directions by 4.00 pm, 1 April 2022.
4. If the parties are unable to agree on the appropriate order as to costs, the defendants are to make submissions on costs limited to 4 pages by 4.00 pm, 4 April 2022 and the plaintiffs are to make submissions on costs limited to 4 pages by 4.00 pm, 8 April 2022.
5. Any draft orders or submissions are to forwarded electronically by email to my associate ([email protected]).