A v N
[2012] NSWSC 549
•22 May 2012
Supreme Court
New South Wales
Medium Neutral Citation: A v N [2012] NSWSC 549 Hearing dates: 18 May 2012 Decision date: 22 May 2012 Jurisdiction: Equity Division Before: Ward J Decision: Costs orders made in favour of plaintiff/cross-defendant and second defendant
Catchwords: COSTS - as between plaintiff/cross-defendant and first defendant/cross-claimant, effect of Calderbank offers - whether unreasonable for plaintiff to reject Calderbank offers - whether unreasonable for first defendant to reject offer made to her (and whether that a Calderbank offer) - as between second defendant and remaining parties who should bear liability for its costs - HELD - apportionment between the plaintiff and first defendant as to costs of the second defendant; order apportioning the costs to be borne as between the plaintiff and the first defendant of their respective costs of the proceeding Legislation Cited: Civil Procedure Act 2005 (NSW)
Contracts Review Act 1980 (NSW)
Guardianship Act 1987 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120; 67 NSWLR 706
Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12
Bennette v Cohen (No 2) [2009] NSWCA 162
Calderbank v Calderbank [1975] 3 All ER 333; 3 WLR 586
Commonwealth v Gretton [2008] NSWCA 117
Dunstan v Rickwood (No 2) [2007] NSWCA 266
Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 322
Evans of Robb Evans & Associates v European Bank Ltd (No 2) [2009] NSWCA 170
Evans Shire Council v Richardson (No 2) [2006] NSWCA 61
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20
Golding v Vella (No 2) [2001] NSWSC 731
Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19
Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; 13 VR 435
Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375
Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534; (1990) 97 ALR 45
Leichhardt Municipal Council v Green [2004] NSWCA 341
Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Ohn v Walton (1995) 36 NSWLR 77
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; (1998) 152 ALR 83
Owners Strata Plan No 64970 v Austruc Constructions Ltd (No 5) [2010] NSWSC 586
Shorten v David Hurst Constructions Pty Ltd [2008] NSWSC 609
SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323
Stena Rederi Aktiblag v Austal Ships Sales Pty Ltd [2007] FCA 1141
Sydney City Council v Geftlick [2006] NSWCA 280
Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353
Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201; (1979) 42 FLR 213; (1979) ATPR 40-141
Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368Texts Cited: N/A Category: Costs Parties: A (Plaintiff/Cross Defendant)
N (First Defendant/Cross Claimant)
E (by the NSW Trustee & Guardian (formerly Office of the Protective Commissioner) as Manager of the Estate of the Second Defendant) (Second Defendant/Second Cross Defendant)Representation: Counsel
Ms K Millist-Spendlove (Plaintiff/First Cross Defendant)
SS Ahmed (First Defendant/Cross Claimant)
C Zucker (Solicitor) (Second Defendant/Second Cross Defendant)
Solicitors
Hunt & Hunt (Plaintiff/First Cross Defendant)
Buttar Caldwell & Co (First Defendant/Cross Claimant)
Zucker Legal (Second Defendant/Second Cross Defendant)
File Number(s): 09/287664
Judgment
HER HONOUR: On 13 April 2012, I published my reasons for judgment in these proceedings, finding for the plaintiff and dismissing the first defendant's cross-claim. I made orders for the transfer of certain property to the plaintiff but I reserved, among other things, the question of costs so that the parties would have the opportunity to make submissions in relation thereto. On 18 May 2012, by consent, I made orders disposing of the remaining substantive relief to give effect to my determination in these proceedings (orders for the appointment of trustees for sale of another property the subject of the original dispute) and heard submissions in relation to costs. I reserved the question of costs and I now publish my reasons on that final issue.
The background to the dispute is set out in some detail in my judgment of 13 April 2012 and I do not repeat that here. In summary, the dispute was between A (the second wife of E, a person in respect of whom orders under the Guardianship Act 1987 (NSW) have been made) and N (E's daughter from his first marriage). A sought to enforce a Deed of Settlement entered into between each of E, A and N in March 2008 following a mediation of disputes that were then the subject of other proceedings in this Court. N sought orders to set aside the March Deed, broadly on the basis of alleged undue influence by A over E (who was alleged to lack capacity to enter into the deed) and unconscionable conduct and duress of A over N herself. A Contracts Review Act1980 (NSW) claim was made by N against A. It was alleged that A was in breach of an essential term of the March Deed and an unclean hands defence was raised by N to A's claim.
The NSW Trustee and Guardian, as E's tutor in these proceedings, submitted that, to the extent that the claims made by N might be upheld, the Court should nevertheless, as a matter of discretion, uphold the deed provisions insofar as they affected E (pointing out that a number of the provisions were to E's benefit - such as the dismissal of the 2007 Court proceedings).
A broad range of issues was raised on the pleadings and the hearing occupied some 10 days. Leading up to the hearing there had been a number of iterations of the pleadings. Relevantly, for the purposes of the costs orders that the respective parties have now sought, I note that on 8 April 2010 an amendment was made to the pleadings in which A raised a claim based on an alleged collateral agreement with E, which, if successful, would have increased the ambit of her claim by a considerable amount - it being a claim to E's remaining half interest in the Leichhardt property and for payment of his share of the proceeds of sale of the Summer Hill property once that property was sold in accordance with the March Deed (the latter being the property that is now the subject of the appointment of trustees for sale). (That claim was resisted not only by N but also by E.)
At the commencement of the hearing, a Further Amended Statement of Claim was filed, by leave, in which A abandoned that collateral agreement claim.
In summary, I found that A had made out her claim for relief by way of an order to compel performance of the obligation of N to effect a transfer of her half interest in the Leichhardt property to A and that N failed in her claims for relief against A. A was thus successful in obtaining an order for N to transfer to her N's half interest in the Leichhardt property. N was wholly unsuccessful on her cross-claim.
I granted a declaration that N's interest in that property had been held on trust for A from the date of the March Deed. I did not grant A the declaration she had sought as to E's capacity to enter the March Deed (for the reason, as set out in [468] of my principal judgment, that I was not satisfied that the possibility of a lack of mental capacity had been excluded on the evidence adduced by A) and I did not grant the order sought by A for the vacation by N of the Concord property (for the reason set out at [592] of my principal judgment, namely that the circumstances in which N's right to occupy the property had been suspended no longer applied - and the March Deed had not dealt with the circumstances that had arisen since then). Nevertheless, as between A and N it was A who was substantially successful in her claim.
As to costs, orders were made by Black J in favour of the defendants on 7 July 2011 following the vacation of the first hearing date on the application of A (and it is not suggested that those costs orders should be disturbed). His Honour ordered that:
The Plaintiff pay the Defendants' costs thrown away by vacating the hearing and of and incidental to this application, as agreed or as assessed.
The position of the respective parties as to costs following the outcome of the hearing may be summarised as follows:
(i) for A, it is contended that:
(a) she should have her costs of prosecuting the claim and defending the cross-claim (on the basis that costs follow the event and that she was substantially, if not wholly, successful in the proceedings), other than the costs ordered against her by Black J on 8 July 2011 following the vacation of the original hearing date;
(b) she should recover her costs after 11 March 2009 (or alternatively after 10 April 2009) on an indemnity basis on the ground that she had made a verbal settlement offer on or about 10 March 2009 (and settlement offers on 1 and 9 April 2009 to essentially the same effect) which was at least as favourable as the end result (that being said on the premise that, had the circumstances surrounding E's accommodation remained the same at the hearing as they were at the time of the offers, the whole of the March Deed would have been upheld) and which it was unreasonable for the first defendant to reject; and
(c) N should bear the costs of E (on the basis that E had an interest in defending the claims made by N and in having the March Deed upheld and the sale of the Summer Hill property carried out);
(ii) for N, it is contended that:
(a) she should have her costs of the proceedings (although unsuccessful in the ultimate result) on an indemnity basis from 11 March 2009 (on the ground that the offer was at least as favourable as the end result and that it was unreasonable for A not to accept a Calderbank offer made on 10 March 2009);
(b) alternatively, that N should have her costs on an indemnity basis from 9 April 2009 (again on the ground that it was unreasonable for A not to accept a settlement offer made on 8 April 2009);
(c) further in the alternative to either of the above, that she should have her costs on an ordinary basis from either of those dates;
(d) next in the alternative that, in light of the respective offers made by N, the Court should order that each of A and N pay her own costs;
(e) finally, that if there is an order for the payment by N of A's costs she should only be ordered to pay somewhere in the order of 25% - 50% of those costs (A having rejected the respective offers made by N); support for the above is placed on the abandonment by A of the collateral agreement claim (reducing the quantum in dispute from A's perspective from over $1 million to around $300,000); and
(f) as to E's costs, it is submitted that A should pay E's costs in full or alternatively that they should be borne equally by A and N;
(iii) for E, it is contended that:
(g) his costs of the proceedings (other than the costs already ordered by Black J to be paid by A) should be paid by N (on the basis that most of the evidence related to the issue of E's capacity to enter into the March Deed or otherwise the validity of the March Deed, on which N was unsuccessful); and
(h) further, it is contended that whatever the position as between A and N consequent upon the settlement offers does not affect E's position.
Legal Principles
I do not understand there to be any dispute between the parties as to the applicable legal principles when determining the costs of contested proceedings such as these. Briefly, those principles are as follows.
The Court's power to award costs pursuant to s 98(1) of the Civil Procedure Act 2005 (NSW) is, subject to the rules of court and to statute, discretionary. The discretion is a very wide one (Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; (1998) 152 ALR 83; Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 322). It must be exercised judicially (having regard to its statutory context, established principle and the circumstances of the relevant case). The overriding statutory context in which this discretion falls to be exercised is that for which provision is made in s 56 of the Civil Procedure Act, namely, the just, quick and cheap resolution of the real issues in dispute.
Rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) provides that, subject to Part 42, if the court makes any order as to costs, it is to order that costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs. The general rule is thus that a successful party will be the recipient of an order for costs in its favour (those costs to be on the ordinary or party/party basis). This requires a determination to be made as to what is the relevant "event" for the purposes of the order to be made in accordance with the general rule (a task that may be difficult where there are multiple events - Owners Strata Plan No 64970 v Austruc Constructions Ltd (No 5) [2010] NSWSC 586 per Bergin CJ in Eq). Where there is a mixed outcome in proceedings, an apportionment of costs between issues may be made (Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20) and, if so, may be made on a broad brush basis (Fexuto; Golding v Vella (No 2) [2001] NSWSC 731). It has, however, been recognised that it is only in exceptional circumstances that this should occur (Trade Practices Commission v Nicholas Enterprises Pty Ltd(No 3) (1979) 28 ALR 201; (1979) 42 FLR 213; (1979) ATPR 40-141; Stena Rederi Aktiblag v Austal Ships Sales Pty Ltd [2007] FCA 1141 at [12]).
Costs orders are compensatory in nature, to reflect the vindication of the successful claim or defence thereof, not punitive (Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534; (1990) 97 ALR 45; Ohn v Walton (1995) 36 NSWLR 77). Save where there is a special costs order by reference to the procedure provided for under the Rules or in accordance with the principles in Calderbank v Calderbank [1975] 3 All ER 333; 3 WLR 586, it has been said that a court should depart from the general rule and award indemnity costs only where the conduct of the party against whom the order is sought is "plainly unreasonable" (Sydney City Council v Geftlick [2006] NSWCA 280; Dunstan v Rickwood (No 2) [2007] NSWCA 266). In Leichhardt Municipal Council v Green [2004] NSWCA 341 Santow JA (at [57]) said that indemnity costs orders should be reserved for the most unreasonable actions by unsuccessful plaintiffs.
Here, both the main protagonists invoke the principles in Calderbank, to argue that special costs rules should apply. The rationale for those principles lies in the public policy (and private interest) recognised in the early settlement of litigation and the discouragement of wasteful litigation (see Commonwealth v Gretton [2008] NSWCA 117). In Leichhardt Municipal Council, Santow JA said at [14]:
... the practice of Calderbank letters is allowed because it is thought to facilitate the public policy objective of providing an incentive for the disputants to end their litigation as soon as possible. Furthermore, however, it can be seen as also influenced by the related public policy of discouraging wasteful and unreasonable behaviour by litigants.
The Court of Appeal in Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 recently reiterated the public policy objectives of special costs orders. Basten JA (with whom McColl and Campbell JJA agreed) referred at [6] to the objects underlying the formal offer of compromise procedures under the then court rules that were identified in Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 as including:
1. To encourage the saving of private costs and the avoidance of the inherent risks, delays and uncertainties of litigation by promoting early offers of compromise by defendants which amount to a realistic assessment of the plaintiff's real claim which can be placed before its opponent without risk that its "bottom line" will be revealed to the court;
2. To save the public costs which are necessarily incurred in litigation which events demonstrate to have been unnecessary, having regard to an earlier (and, as found, reasonable) offer of compromise made by a plaintiff to a defendant; and
3. To indemnify the plaintiff who has made the offer of compromise, later found to have been reasonable, against the costs thereafter incurred. This is deemed appropriate because, from the time of the rejection or deemed rejection of the compromise offer, notionally the real cause and occasion of the litigation is the attitude adopted by the defendant which has rejected the compromise. In such circumstances, that party should ordinarily bear the costs of litigation.
The onus is on the party making a Calderbank offer to satisfy the court that it should exercise the costs discretion in its favour (Evans Shire Council v Richardson (No 2) [2006] NSWCA 61).
While it is recognised that the making of a Calderbank offer is one of the circumstances in which the court may exercise its discretion under r 42.1 to make some order other than that costs should follow the event, it does not automatically follow that simply because the offer represented a genuine offer of compromise was more favourable than the final judgment that an indemnity costs order will be made. What must be considered is the reasonableness of the offeree's rejection or non-acceptance of that offer, a matter to be determined having regard to the circumstances at the time that the offer fell to be considered. The question is whether, in all the circumstances, the failure to accept the offer "warrants departure from the ordinary rule as to costs" (SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 per Giles JA at [37]).
In Miwa, the Court of Appeal confirmed (at [9]) that both an offer of compromise under the rules and an informal offer must involve "a real and genuine element of compromise" (citing Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120; 67 NSWLR 706 at [8]; and referring to the discussion in Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 at [25]; see also Herning v GWS Machinery Pty Ltd(No 2) [2005] NSWCA 375; Leichhardt Municipal Council). What must be considered is whether the offer represented or formed part of a genuine attempt to reach a negotiated settlement (Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12 at [19]). In Miwa, the Court of Appeal also noted that the appropriate inquiry is not as to the subjective intentions of the offeror (citing Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19 at [23]; Evans of Robb Evans & Associates v European Bank Ltd (No 2) [2009] NSWCA 170 at [17]-[18]) and confirmed that "the response of the offeree must be assessed at the time it was made, and not with the benefit of hindsight resulting from a known outcome, recorded in a judgment", citing Regency Media at [33] (though the Court of Appeal went on to say that this should not entail a detailed investigation into the state of preparation or knowledge of the offeree as at the date of the offer).
It was noted in Miwa that relevant factors in determining whether the rejection of an offer was unreasonable included those identified by the Court of Appeal in Victoria in Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; 13 VR 435, namely: 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 rejecting it.
Relevant chronology of events
These proceedings were commenced by Summons on 25 February 2009.
On 10 March 2009 (thus at a very early stage of the proceedings), the solicitors then acting for N wrote to A's solicitors, in a letter headed "Without Prejudice Save As To Costs", conveying their instructions to put a without prejudice offer and stating expressly that the offer was made in accordance with the principles in Calderbankv Calderbank. The offer was stated to be open for 14 days. The offer was as follows:
1. That the Defendant [N] vacate the "Concord Property" by no later than 31st March 2009 save the Plaintiff [presumably this was a typographical error and intended to refer to N] may leave minor possessions on the Property and have access to the Property in accordance with the terms of the Deed dated 28th March, 2008 [I note that under the terms of that Deed, N had been obliged to vacate the property within 3 months]
2. That within seven (7) days of the Plaintiff [A] paying the Defendant the sum of $1.00, the Defendant provide a executed Transfer in compliance with Clause 3(h) of the Deed dated 28th March, 2008 ("the Deed").
3. That the proceedings commenced in the Supreme Court of NSW by the Plaintiff being matter number 1663/09 be dismissed with no order as to costs.
That is the first offer now relied upon by N for an order departing from what would otherwise be a costs order that followed the event in these proceedings.
A's position in relation to that offer, as indicated by a letter of 11 March 2009 the Office of the Protective Commissioner informing that Office of the position in relation to the proceedings, seems to have been that A would only settle if her costs were paid and I assume that this was conveyed to N's solicitors in some fashion (though there was no direct evidence of such a response to them). (A relies on this letter as evidencing a verbal counter-offer to the first Calderbank offer made by N.)
By letter of 26 March 2009, thus outside the 14 day period open for acceptance of the first offer, A's solicitors conveyed to N's solicitors their understanding that the only outstanding issue was payment of A's costs and sought advice as to whether N would agree to payment thereof; also enquiring as to the whereabouts of the certificate of title to the Leichhardt property.
On 30 March 2009, N's solicitors wrote to A's solicitors, referring to instructions received as to a direct discussion between A and N in which it was said that N had agreed to transfer her interest in the Leichhardt property to A in accordance with the March Deed and that A and E would move to that property forthwith; that A had agreed that she and E would move out of the Concord property and that N would be entitled to rent that property out and retain the rent; and that A had agreed to the purchase by N of the Summer Hill property for a sum of $280,000 (equivalent to 35% of a valuation that had been provided by N for that property). The letter noted that N was prepared to enter into an appropriate Deed of Settlement to facilitate the arrangement and that the consent of the Protective Commissioner would be necessary in light of E's one half ownership of the Summer Hill property. (Neither party placed reliance on any offer made in this discussion.)
On 1 April 2009, A's solicitors advised that A rejected the "settlement proposal" contained in the 30 March correspondence (a stance that N's solicitors maintained meant that A had resiled from the agreement reached in the discussion she had had directly with N). It was noted that A did not have any authority in relation to the Summer Hill property. The letter also conveyed A's advice to her lawyers that N had vacated the Concord property on 26 March 2009 and advised that A was prepared to settle the proceedings on the basis that:
1. Your client forthwith Transfer her interest in the Leichhardt property to our client.
2. Your client pay our client's costs and expenses in the sum of $11,120.45, as set out in the enclosed copy memorandum. (The costs would have to be paid by way of a bank cheque, simultaneously with signing the Transfer and withdrawal of the Supreme Court proceedings. Our client is not prepared to enter into a Deed of Release with your client, as it is the previous Deed of Release, with which your client has not complied, that has resulted in the present proceedings becoming necessary.)
Although the letter was not headed "Without Prejudice", by its contents it clearly attracted such privilege. It did not expressly invoke the Calderbank principles nor did it refer to any costs consequences of non-acceptance. (It called for service of evidence in the proceedings that had been ordered to be provided by that date, if N was not prepared to settle on the above basis.) This is relied upon by A as an offer to settle the proceedings on that date.
On 8 April 2009, there was an exchange of correspondence in relation to the matter. First, N's solicitors wrote, responding to the 1 April letter and noting that A had resiled from the offer made to N, said that their client did not wish to enter into protracted legal proceedings and went on to "note" that:
1. Our client has vacated the property.
2. Your client to date has failed to pay to our client the sum of $1.00 for the purposes of the transfer of our client's interest in the Leichhardt property.
3. Upon your client paying to our client the sum of $1.00 our client will provide a executed Transfer in accordance with the terms of the Deed. We enclose a copy of a draft Transfer executed by our client for your records.
The letter went on to state that "Given you client has failed to comply with the Deed (insomuch as she has failed to pay $1.00 to our client), we believe that the most appropriate order with respect to costs is that each party pay their own costs". (Counsel for A, Ms Millist-Spendlove, refers to this as an outright refusal by N to pay any of the plaintiff's costs.)
The response to this letter, written on the same day, was that A had been under the impression that N had vacated the property on 26 March 2009 but had since noticed that not all of her furniture had been removed; that N had not surrendered her keys to the premises; that A had observed N in the property on certain evenings in early April 2009 and her vehicle parked at the property on those dates. The letter asserted that N had not vacated the property, stated that the $1.00 would be paid in accordance with normal conveyancing practice on settlement; noted that N had "declined to comply" with the Deed either by vacating the Concord property or by transferring her interest in the Leichhardt property; and asserted that A was not prepared to settle on the basis that each party pay her own costs but required payment by N of her costs and expenses in the sum of $11,120.45.
The matter was due to come before the Court for directions on 9 April 2009. Prior to the Court appearance, N's solicitors wrote to A's solicitors on 9 April 2009 responding to the latter's assertions in their 8 April correspondence. In it they asserted repeatedly that N had vacated the Concord property; asserted that she was not required under the March Deed to surrender the keys to the Concord property (although arguably it might have been expected that someone vacating property would be expected to do so); and advised that they proposed to hand up in Court that day the Leichhardt transfer and enclosed short minutes of order (providing for the dismissal of the proceedings and for the defendant, N, to pay A's costs as agreed or assessed).
This letter is relied upon by N as the second offer of settlement of the proceedings. I consider in due course whether it should be so characterised, in circumstances where it is not framed in terms as an offer (being a statement of intention) and makes no provision for any acceptance of the offer.
Regrettably, as matters transpired, it seems that the course of action foreshadowed in the above letter was not pursued. The reason for that was not articulated in correspondence between the parties, although by letter dated 9 April 2009, A's solicitors wrote noting that the matter had been adjourned to 7 May 2009 "as there exists a dispute in relation to whether or not [N] has vacated the Concord property" (from which it might perhaps be inferred that any offer sought to be conveyed in terms of the proposed course of action outlined in the 8 April letter had not been one to which A was prepared to consent in the absence of confirmation as to whether there had in fact been a vacation of the Concord property).
In their 9 April letter, A's solicitors proposed short minutes in the stated hope that the matter could be resolved without incurring additional costs. Those short minutes provided, relevantly, for orders to be made for N to give A possession of the Concord property in accordance with the March Deed; to pay mesne profits if she failed to do so; that N execute a transfer of her interest in the Leichhardt property and provide it to A in return for consideration of $1.00 and do all things necessary to procure the production of the certificate of title for the purposes of registration and pay A's costs in the amount of $12,500. This letter was not in terms expressed to be an offer of settlement but clearly it invited a response by N to the proposed disposal of the proceedings on the terms therein set out.
Obviously agreement was not reached to those orders. On 23 April 2009 there was further correspondence from A's solicitors (referring to an incident where N had apparently called the police to the Concord premises when A had sought to change the locks). That letter made various assertions as to N's failure to vacate the premises and alleged breach by N of the March Deed.
On 27 April 2009, N's then solicitors advised that they were ceasing to act in the matter. In those circumstances, on 1 May 2009, A's solicitors wrote to N directly. In that letter, they recited their instructions as to the position in relation to the Concord property and asserted non-compliance with clause 3(e) of the March Deed. They enclosed a transfer of the interest in the Leichhardt property as well as a cheque in favour of N for the sum of $1.00. The letter stated that if certain matters were complied with by 6 May 2009 (including removing contents from the Concord property, tidying the property, explaining to A the claim for the premises, reimbursing A for the cost of new keys and executing the Leichhardt transfer) it would not be necessary for the Court to make the specific performance orders but that A would still request an order for costs "as a result of having to institute proceedings, due to your failure to comply with the provisions of the Deed" (and indicated that the matter might be stood over for a short hearing on costs if N wished). A copy of that letter was forwarded in due course to the new solicitors instructed to act for N but it appears no response was received thereto. Reliance is placed by A on this letter for the submission that, as at 1 May 2009, A had done everything requested of her in the settlement offers (other than agree to the dismissal of the proceedings) "without [N] performing any of her obligations under the March Deed or any of the settlement offers".
The matter seems then to have proceeded on the path to a contested hearing. A Statement of Claim was filed on 21 May 2009. As noted above, it was not until 8 April 2010 that the collateral agreement claim (later abandoned) was pleaded.
In the context of the above correspondence, it is relevant to note that although, under the terms of the March Deed, N was to vacate the Concord property within 3 months (ie by June 2008), the evidence in the hearing before me was that she did not do so until May 2009. Although at T 432.32, to which I referred at [229] of my reasons, there was evidence that as at the time N vacated the property E was already in a nursing home, this would not be the case if in fact N had vacated the property in March since E first entered the nursing home in Chipping Norton in May 2009 (as noted from my review of the medical evidence at [253]). (From 18 November 2008, E and A had returned to live in the Concord property and continued to do so until E's admission to the nursing home.)
Therefore, to the extent that there was a dispute in the correspondence around March/April 2009 as to whether or not N had in fact vacated the Concord property, it can be seen that this was something that could reasonably be expected to have an impact on A and E (particularly having regard to the disputes that had already occurred in relation to their co-residence with N) and thus to be a circumstance to be taken into account when assessing the reasonableness of the rejection of one or other of the various offers.
Consideration of various offers
Taking the respective offers (or proposals) for settlement or disposal of the proceedings in order, I consider below whether that was a genuine offer of compromise so as to attract the Calderbank principles and, if so, whether the relevant offeror has established that it was unreasonable for the offeree not to accept that offer or proposal.
N's offer of 10 March 2009
There is no doubt that this offer was put forward as a Calderbank offer (it expressly stated as much). It was served at an early stage of the proceedings but at a time when the relevant relief sought was for performance by N of her obligations under the March Deed and A would have been cognisant of the terms of the March Deed and able to assess the strength of her claim at that time. Counsel for N, Mr Ahmed, notes that the offer was almost a complete capitulation by N to the claims for relief made by A and submits that it was a genuine compromise of the dispute. It is submitted that it was more advantageous to A than the Court's ultimate orders because it not only offered a transfer of the Leichhardt property for one dollar but it also contained an offer by N to vacate the Concord property. The latter is said to have been a very significant compromise by N and it is noted that ultimately no order was made for N to vacate that property.
The time allowed for consideration of the offer was less than the 28 days for which a formal offer of compromise is required under the Rules to remain open (a matter that it has been suggested may in some cases be relevant to take into account when considering a Calderbank offer - see McColl JA in Elite at [117] who commented where the relevant offer in that case was open only for 7 days, that "Prima facie, I see no reason why litigants who choose not to avail themselves of the rules as to Offers of Compromise should be in a better position than those who do, if they radically foreshorten the period in which an offer is open for consideration"). As to the time allowed for consideration of the offer by A, it does not seem to me in the circumstances that 14 days was insufficient to permit a proper assessment to be made (particularly as A was well aware of the provisions she was seeking to enforce in relation to the March Deed).
As to the extent of the compromise there being offered, at this stage there was no formal articulation of the basis on which N was intending to defend the claim made by A (at least not on the evidence tendered on costs) nor of the ultimate cross-claim that was filed by N. Therefore, assessing the compromise at that stage, what A was being offered was compliance by N with her obligations under the March Deed (something to which A maintained she was, and was ultimately held to be, entitled) but A was being asked to bear her own costs of having forced to bring the matter to court to enforce those obligations. Implicitly, the offer involved an abandonment of any defence N might have to the claim but it does not appear that any such defence had been then raised (so the extent of any compromise in that regard would not have been apparent to a party in A's position). What N was thus giving up (although the basis on which she maintained that she would not have been required to provide this had not then been articulated) was any claim to a half interest in the Leichhardt property and a right to reside in the Concord property. (In relation to the limitation placed on the vacation of the Concord property, that is not inconsistent with clause 3(e) of the March Deed which permitted N "to leave small items and toiletries in the downstairs part of the property ...".)
In determining whether the offer was more favourable to A than the ultimate result, I do not consider it appropriate to take into account the fact that no order was ultimately made to require N to vacate the property since, at the time the offer was made, the events that led to such an order not being made had not arisen.
Was it unreasonable for A to refuse to accept the offer (on the assumption that the only thing A was then being asked to give up was an order for costs in her favour)? Her prospects of success at the time would in my view have been seen as reasonable (there being no defence then articulated and N having not vacated the property within the time period required under the March Deed - even if it was open to N to maintain that there was technically no breach of the transfer obligations until a $1 cheque was delivered to her). Ms Millist-Spendlove submits that it was uncertain on the face of the offer whether costs were included. However, on my reading of the offer, a term providing for dismissal of the proceedings on the basis of no order as to costs makes it reasonably clear that N was not offering to pay A's costs. Any uncertainty on the part of A in that regard would have been quickly able to be clarified (and in any event it does not seem there was any such uncertainty at the time, having regard to the position A seems to have adopted and conveyed at that stage to the Office of the Protective Commissioner).
It cannot reasonably have been assumed at that stage of the proceedings that A would have received a full indemnity for her costs of the proceedings to that date had the issue of costs then been determined. Therefore, in assessing the compromise A was being asked to make it seems to me to be relatively minor (and in assessing the offer as made compared to the result ultimately achieved - if costs are taken into account the offer must surely have been more favourable since the exposure to unrecovered costs at the end of the hearing considerably higher than at the time the offer was made).
In my view it was unreasonable of A not to accept that offer. It provided her with precisely the relief she was then seeking and there is no suggestion that the costs that would have been recoverable had the matter been determined at that stage were in a significant sum. It must have been apparent that the consequence of rejection of the offer was that (unless N improved her offer or A changed her mind) the matter would proceed to a hearing in which the overall costs would be considerably more and would not be fully recoverable at least on a party/party basis. As Mr Ahmed in effect submits, the rejection of the offer on the basis that it required A to bear her own costs must be seen in the context of a 10 day Supreme Court hearing 3 years later in the course of which considerable further expense was incurred by all parties.
It would seem to me inconsistent with the policy underlying special costs orders in the context of Calderbank offers (especially that of discouraging wasteful litigation) not to give recognition to the making of this offer, though I am by no means convinced that the public policy rationale requires an indemnity costs order for the whole of the proceedings thereafter. (I consider below the consequences that should in my view be attached to the non-acceptance of this offer.)
Verbal "offer" by A on or about 11 March 2009
Ms Millist-Spendlove submits that there was a verbal counter-offer made to the 10 March Calderbank offer (on which counter-offer A relies) and that this is evidenced by the reference in the letter of 11 March 2009 to the Office of the Protective Commissioner to N's solicitors having been informed that A "would only settle if her costs were paid" (and adverting to the possibility that Terms of Settlement could be prepared but with the issue of costs to be placed before the Court for decision). It is submitted by Ms Millist-Spendlove that this was a counter-offer for the vacation of the Concord property and the transfer of Leichhardt plus the payment of A's costs which N unreasonably failed to accept.
I have difficulty inferring, from what A's solicitors advised the Protective Commissioner, that a counter-offer of any particular description had been made to N's solicitors at that time. In its terms the letter simply states what seems to have been an ultimatum by A in relation to the payment of her costs. There is nothing to indicate that there was an offer on the terms set out in N's solicitors' correspondence but with the modification that N was to pay the costs (nor as to whether A was seeking those costs on a party/party or full indemnity basis).
Furthermore, even apart from the evidentiary difficulties of proving the making of a Calderbank offer in this way (and there was no evidence from any person on behalf of A to depose to the making of such an offer), and the uncertainty as to what any offer so conveyed in fact comprised, it seems to me difficult to rely on this as amounting to a genuine offer of compromise since what it seems to have been calling for was complete capitulation by N. It is clear that a Calderbank offer must involve "a real and genuine element of compromise" to attract the operation of the special costs rules (Herning v GWS Machinery Pty Ltd(No 2); Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2); Leichhardt Municipal Council v Green). Where an offer is in substance a demand for payment of the full amount or relief claimed, then the necessary element of compromise can be seen to be lacking (see Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353 at [355]; Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358 at [368]; Shorten v David Hurst Constructions Pty Ltd [2008] NSWSC 609 at [6]; Bennette v Cohen (No 2) [2009] NSWCA 162 at [40]-[41]).
Therefore, even if the so-called verbal counter-offer had been made in March 2009 in terms of the kind submitted by Ms Millist-Spendlove, I do not consider that its rejection would have warranted a departure from the ordinary order in relation to costs.
Letter of 1 April 2009
This letter indicated A's preparedness to settle on the basis of a transfer to her of N's interest in the Leichhardt property and payment of a set amount of costs and expenses. As noted earlier, this was not expressed to be a Calderbank offer. Nevertheless, read as part of an ongoing series of communications between the parties it can be read as a proposal for settlement. The difficulty I again have with this proposal is that it requires complete capitulation to the claim by the plaintiff and does not appear to involve any real element of compromise. The fact that there may have been no suggestion by N that the costs would be paid if assessed (to which Ms Millist-Spendlove points in her submissions) does not assist in that regard.
Letter of 9 April
The second offer on which N relies for a departure from the ordinary rule that costs follow the event is the 9 April letter, forwarded shortly before a directions hearing to be held in the matter, in which her lawyers foreshadowed an intention to hand up in Court an executed transfer in respect of N's interest in the Leichhardt property and short minutes of order providing for the dismissal of the proceedings and, significantly, that N pay A's costs as agreed or assessed. (This letter followed A's rejection of the 8 April proposal that N would provide an executed transfer on receipt of the sum of $1 and that the parties pay their own costs.)
At the outset, there is some doubt in my mind whether this was an 'offer' as such or simply a statement as to what N's solicitors had been instructed to do when the matter was before the Court. The significance of this is that, had the course of action as foreshadowed been followed, then A's response thereto would have been a matter of record. As it is, whatever discussion there was in relation to the offer is not before me (other than the statement contained in A's solicitors' subsequent letter as to the basis on which the matter was adjourned on that occasion).
There was no term in the then proposed short minutes in relation to N's vacation of Concord. (That is consistent with the assertion that she had already vacated the property.) Certainly, there was no suggestion in the correspondence of 8 or 9 April 2009 that N was asserting an entitlement to remain in the property. However, in light of the ongoing dispute as to whether she had in fact already vacated the property, this might reasonably explain a failure on the part of A to accept an offer based on short minutes which made no provision for this.
Mr Ahmed submits that whether or not N had in fact vacated at that time does not derogate from the unreasonableness of A in refusing to settle on the above basis since, that once orders were made dismissing the proceedings, N would have to vacate. As to this last proposition, it is by no means clear that a dismissal of proceedings in which an order for vacation of the premises was sought would result in N then having some obligation to vacate them. True it is that N had an obligation under the March Deed to do so, but it was this very obligation that A was seeking to enforce. Therefore, there may be a basis on which it could be said that it was not unreasonable for A to reject a compromise that left open the position as to the vacation of the premises by N (and it seems that this was the basis on which that proposal did not eventuate).
Whatever the uncertainty or otherwise in relation to the first (and only so-labelled Calderbank) offer in relation to costs, the 9 April letter clearly envisages payment of A's costs (albeit reserving the prospect of an assessment of those costs). It is submitted by Mr Ahmed that this indicates that the real factor preventing A from settling the proceedings was her insistence on payment of her costs in full by N.
Ms Millist-Spendlove submits that in circumstances where it was clear that there was a dispute as to whether N had vacated the Concord property or intended to honour any obligation to do so, it could not be said to be unreasonable for A not to accept the offers made to her. Insofar as that submission is confined to the 9 April proposed short minutes, I am inclined to agree that (the vacation of the property being hotly in dispute at that time) it was not unreasonable for A not to accept a proposed disposal of the proceedings that did not involve a term requiring N to vacate the property (notwithstanding N's assertion that she had already done so).
Assessing the reasonableness of non-acceptance of the offer at the time it was made, and given that A and E were living in the Concord property at the time, I consider that the dispute over this aspect of the proposed settlement was a factor that made it not unreasonable for A not to accept the proposed resolution set out in the short minutes that had been prepared in advance of the directions hearing on 9 April (and I note that there was no explanation as to why provision for this could not have been built into the orders if that was indeed the intent of both parties in relation to the then resolution of the matter).
1 May 2009 proposal
The final relevant offer was that comprised in the letter from 1 May 2009 to N directly (after her first solicitors had ceased to act for her). While not couched as a Calderbank offer (or indeed as an offer at all), this letter forwarded a cheque for the $1 payable in relation to the Leichhardt transfer, together with a transfer form for execution by N and made clear that (provided N attended to various other matters in relation to the Concord property), A would not seek orders for specific performance and the only issue left to be determined by the court would be the question of costs. N did not respond to that letter and nor did her new solicitors to whom it was copied on 5 May 2009.
Strictly speaking, I do not see this as an offer calling for acceptance as such - rather it seems to be a demand for N to do certain things coupled with a statement that if those are done then all A would do would be to seek to have costs determined by the Court. Further, it included a variety of miscellaneous obligations not readily able to be quantified and it is not apparent that it involved any real element of compromise. That said, N's apparent refusal to entertain a disposal of the proceedings on those terms is in my view a matter to be taken into account when determining as a matter of fairness what costs orders should now be made (since it suggests that by then, N was not prepared to resolve the matter other than by reference to her own claims).
Conclusion as to offers made re settlement
For the reasons set out above, I consider that it was unreasonable for A not to accept the initial Calderbank offer made in March 2009 but that N's conduct from shortly thereafter was inconsistent with the maintenance of a willingness to settle on that basis and that N herself then not only eschewed an opportunity in May 2009 to dispose of the substantive dispute on effectively the same terms (leaving to be determined by the Court solely the issue of costs) but escalated the dispute by raising the matters she did by way of defence and cross-claim.
What follows, as a matter of fairness, on that scenario?
N's primary position is that A should pay N's costs of the proceedings on an indemnity basis from 11 March 2009. Her secondary position is that she is entitled to indemnity costs from 9 April 2009 (that being the date of the second "offer"). She then maintains a number of fallback positions in relation to costs: namely, that if the Court is not minded to order indemnity costs in her favour from either of the above dates, the Court should nevertheless award costs in her favour on an ordinary basis from either of these dates; or should order that A and N each pay her own costs; or, in the worst case scenario, that any costs order in favour of A should be only for a proportion of her costs (on application of a deduction to reflect a disentitling factor by reason of her rejection of the respective offers).
Insofar as A pleaded in 2010, and then did not pursue, the collateral agreement case against E, it is submitted by Mr Ahmed that this strengthens the submission that a favourable cost order ought to be made in N's favour. Mr Ahmed submits that these proceedings ought to have been commenced in the District Court (as the monetary jurisdictional limit of $750,000 was not reached and the declaratory relief is ancillary to the orders that were sought and made) and that for this reason (among others) E's costs should be borne by A (and not N).
As to the position between A and N, but for the events surrounding the proposed short minutes submitted to N on 1 May 2009 I would have found that the failure of A to accept the initial Calderbank offer warranted an order that she pay N's costs of the ultimate proceedings at least on a party/party basis (and most likely on an indemnity basis), since the consequence of that refusal was that A was thereafter pursuing the claim solely to secure payment of a relatively small amount of costs (N having agreed to the substantive relief sought).
However, as events proceeded after the rejection of that offer, it became apparent that there were real issues in relation to N's vacation of the Concord property (even accepting that, under the March Deed, N was to be entitled to leave minor personal possessions on the premises) and once the matter proceeded by way of pleadings N then raised numerous bases on which she resisted the relief sought by A and brought her own cross claim on which she was wholly unsuccessful.
Moreover, N's failure to consent to or participate in the proposed disposal of the proceedings on the basis outlined in the 1 May 2009 letter, even though that does not appear to be an offer invoking the Calderbank principles as such, makes clear that by May 2009 (whatever her position as at March or even April 2009), N was no longer prepared to resolve the proceedings on the basis initially offered and was, in a very real sense, responsible for costs thereafter being incurred in relation to the issues raised in the defence/cross-claim (that had not been in the contemplation of the parties or at least articulated in the proceedings at the time of the first Calderbank offer or the subsequent offers).
Therefore, while I accept that the failure to accept the Calderbank offer should have some consequences in relation to costs I consider that the import of this failure had run its course by the time N chose to raise a whole raft of other matters in relation to E's capacity and as to undue influence/unconscionable conduct by A and the like.
Concerning the position in relation to A, I do not consider that A has established a basis on which to have part or all of her costs of the proceedings paid on an indemnity basis. I do not consider that either the so-called verbal counter-offer (assuming such an offer was made) or the proposal put forward in the 1 May 2009 letter involved any real element of compromise - rather, it invited capitulation by N to A's position. The April correspondence stands in the same position.
Balancing those matters, it seems to me that the appropriate costs orders as between A and N (leaving aside any costs referable to the existing costs orders made by Black J in July 2011 which remain in force), are that N should pay A's costs of the proceedings up to 10 March 2009 on the ordinary (party/party) basis; that A should pay N's costs from 11 March 2009 until 1 May 2009 on an indemnity basis; and that from 2 May 2009, N should pay A's costs on the ordinary (party/party) basis.
I have considered whether there should be a deduction to the last component of the costs in order to reflect costs thrown away by the pleading and then abandonment of the collateral agreement claim. As to the matters raised in relation to this aspect of the case, I have concluded that there should not be any deduction by reference to the suggestion that the case could have been pursued (but for the collateral agreement claim) in the District Court, for the reason that there was no attempt to refer the matter to the District Court in the period from 2009 when the Summons was filed to April 2010 when the collateral agreement claim was first pleaded.
I note that the pleading of the collateral agreement claim had the consequence that it might be said to have been necessary for E's representatives to play a greater role in the proceedings than would otherwise have been the case (as it was necessary to protect E's interests in relation to that claim). However, it seems to me that it would have been necessary for E to be represented at the hearing in any event in order to protect E's position in the event that findings in favour of N had been made on the capacity/undue influence claims. In that regard, I accept the submission of E's solicitor that E had an interest not only assisting the Court, but also in asserting and maintaining his entitlements pursuant to the March Deed.
Finally, while I accept that, but for the pleading of the collateral agreement, it may not have been necessary for some of the evidence to have been adduced in relation to that agreement, ultimately N relied upon that evidence in support of her undue influence case.
Therefore, I consider that the appropriate order to reflect costs thrown away by the abandonment of this claim would be to order that the costs order in A's favour is not to include costs of or incidental to the abandoned collateral agreement claim. That would, in my view, encompass the costs of the pleading itself and the costs of any evidence prepared by A in support of that claim but not ultimately relied upon at the hearing (but would not include any time occupied in relation to that issue at the hearing since the only use of the material in relation to that claim at the hearing was by N in support of her own case).
As to E's costs, both A and N accept that E should be entitled to his costs on an ordinary basis. Each submits that the other should bear those costs (although N accepts as a fallback that the costs should be shared as between she and A).
Mr Zucker (whose assistance in the course of the hearing I found to be of great value) submitted that it was necessary for E to be represented at and to participate in the hearing in order to protect his interest in matters of evidence and submissions. I agree. It is also noted that the NSW Trustee mitigated the costs of E by not instructing Counsel and by having its own legal officer present to assist Mr Zucker, who appeared as advocate in the proceedings. I accept that the NSW Trustee acted responsibly in the interests of mitigating E's costs of the proceedings.
Mr Zucker submits that in circumstances where nearly all of the evidence in cross examination of A's witnesses and in the case of N was generally concerned with E's capacity to enter into the March Deed or otherwise went to the validity of the March Deed, and where N was unsuccessful in challenging either E's capacity or the validity of the March Deed, N should bear E's costs. Not surprisingly, A adopts that submission.
For N, it is noted that it was A who, by her Amended Statement of Claim, joined E into the proceedings in April 2010. That said, it seems to me that the relief sought by N in her cross-claim was relief that would necessarily have affected E and that he would have been a necessary party to that claim even apart from the collateral agreement claim brought and then abandoned by A. Mr Ahmed accepts that much of the evidence in the case went to the issue of capacity (though noting that the evidence of the four solicitors largely went to the undue influence on which N was also unsuccessful). However, Mr Ahmed submits that, in circumstances where E's position in his defence to the third further amended cross claim filed in Court on 13 February 2012, was that he neither admitted nor denied capacity (see [6] and [11] of the defence) and did not plead to the allegations of unconscionable conduct or undue influence by A over E in procuring him to sign the March Deed, the real issue that E had was the abandoned collateral agreement case. Hence it is submitted that it was really the collateral agreement case that "necessitated" E's involvement in the proceedings from April 2010 until the abandonment of that claim on the first day of the hearing. It is on this basis that it is submitted that A should pay E's costs in whole or, in the alternative, that E's costs should be borne equally by A and N.
I consider that, apart from E's costs of the pleading which are referable to the collateral agreement claim (and which are to be borne by A) the costs of the proceedings should be borne by N (other than as encompassed by the orders made by Black J in 2011), as it was she who unsuccessfully raised the capacity/undue influence and unconscionable conduct issues by reference to which she sought to have the March Deed set aside (a result which would necessarily affected E's interests). An illustration of the need for E's representatives to participate in the hearing in order to protect his interests can be seen in the recognition, during the course of the hearing, by N's interests that the relief sought would have had the potential to revive the proceedings earlier commenced by her against E and dismissed pursuant to the March Deed (a matter on which E had an interest in being heard).
Finally, while I consider that the more effective means of formulating the costs orders as between A and N would be to determine an overall deduction to be placed on the costs recoverable by A (so as to minimise further expenses in any assessment process) and I note that the authorities suggest a broad brush approach would not necessarily be inappropriate, I do not have sufficient information to make an educated assessment at this stage as to the cumulative effect of the orders I propose to make as between A and N so as to enable an overall percentage costs figure to be struck.
For the reasons above, I make the following orders:
(1) As between the plaintiff and the first defendant, I order that, apart from those of the first defendant's costs the subject of the costs orders made by Black J on 7 July 2011 (and which are to be paid by the plaintiff):
(i) the first defendant pay the plaintiff's costs of the proceedings up to 10 March 2009 on the ordinary (party/party) basis;
(ii) the plaintiff pay the first defendant's costs of the proceedings from 11 March 2009 until 1 May 2009 on an indemnity basis;
(iii) the first defendant pay the plaintiff's costs of the proceedings from 2 May 2009 on the ordinary (party/party) basis; and
(iv) for the avoidance of doubt, the first defendant pay the plaintiff's costs of the cross-claim on the ordinary (party/party) basis.
(2) As to the second defendant's costs, I order that, apart from those of the second defendant's costs that fall within the costs orders made by Black J on 7 July 2011 (and which are to be paid by the plaintiff):
(i) the plaintiff pay the second defendant's costs of pleading to the abandoned collateral agreement claim; and
(ii) the first defendant pay the balance of the second defendant's costs of the proceedings
in each case on the ordinary (party/party) basis.
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Decision last updated: 22 May 2012
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