Austwide Maintenance and Construction Pty Ltd (In Liq) v Allan
[2023] QSC 75
•14 April 2023
SUPREME COURT OF QUEENSLAND
CITATION:
Austwide Maintenance and Construction Pty Ltd (In Liq) & Anor v Allan & Ors [2023] QSC 75
PARTIES:
AUSTWIDE MAINTENANCE AND CONSTRUCTION PTY LTD (IN LIQUIDATION) ACN 619 756 740
(First Plaintiff/First Respondent)
and
MOIRA KATHLEEN CARTER as liquidator of AUSTWIDE MAINTENANCE AND CONSTRUCTION PTY LTD (IN LIQUIDATION) ACN 619 756 740
(Second Plaintiff/Second Respondent)
v
GRAHAM VINCENT ALLAN (also known as GRAHAM VINCENT ALLEN)
(First Defendant)
and
ADRIAN FRANCIS HAWKES
(Second Defendant/Applicant)
and
MARK WILLIAM MERGARD
(Third Defendant)
and
DENNIS ANTHONY RAPHAEL RYAN
(Fourth Defendant)
and
JAMES PATRICK RYAN(Fifth Defendant)
FILE NO/S:
329 of 2022
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT: Supreme Court of Queensland at Cairns
DELIVERED ON:
14 April 2023
DELIVERED AT:
Brisbane
HEARING DATE:
15 February 2023
JUDGE:
Henry J
ORDERS:
1. The second defendant’s application for a declaration filed 2 February 2023 is refused.
2. Liberty to apply, in respect of the balance of the application filed 2 February 2023 and the oral application to amend the claim, on the giving of two business days’ notice in writing.
3. If any party wishes to be heard as to costs they should give written notice of their request to their opponent and the Registry by 28 April 2023 and the parties will be heard as to costs at 9.15am 5 May 2023.
4. In the event no party gives notice as per order 3, costs reserved.
CATCHWORDS:
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – where a company and its liquidator suing multiple defendants purportedly settled the proceeding as it related to three of the defendants – where one defendant made the agreed payment and the remaining two did not – whether the Deed called for a split settlement or all or nothing settlement
Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54
Dorgal v Buckley (1996) 22 ASCR 164
McDermott v Black (1940) 63 CLR 161
Mount Bruce Mining Pty Ltd v Wright Prospecting (2015) 256 CLR 104
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574
COUNSEL: Dr M Jonsson KC for the applicant second defendant
W Evans for the respondent plaintiffs
SOLICITORS: Hawkes Lawyers for the applicant second defendant
Moray & Agnew Lawyers for the respondent plaintiffs
A company and its liquidator suing multiple defendants purportedly settled the proceeding as it related to three of the defendants. Of those three defendants, Adrian Hawkes made his agreed payment but Dennis and James Ryan did not. As a result, the plaintiffs have obtained judgment under the terms of the settlement against the Ryans. However, a dispute has arisen about the result of Mr Hawkes having made his payment as agreed.
The Deed of Settlement and Release which purportedly recorded the settlement agreement did not expressly deal with the fate of the plaintiffs’ proceeding as against the paying defendant, Mr Hawkes, in the mixed payment scenario which has occurred. The determinative issue is whether both of the promised payments of the Ryans and Mr Hawkes needed to be made to effect the settlement (an all or nothing settlement) or whether Mr Hawkes’ payment was enough to effect settlement as between him and the plaintiffs (a split settlement). The plaintiffs say this was an all or nothing settlement agreement, which was not satisfied because the Ryans failed to pay. Mr Hawkes argues it was a split settlement agreement and his payment was enough to satisfy and discharge the plaintiffs’ action as against him. He applies for a declaration to that effect.
For the reasons which follow, Mr Hawkes has not met the onus upon him as applicant and the declaration should not be made.
The nature of the proceeding and its purported compromise
The claim in the proceeding is brought in respect of a series of transactions allegedly carried out, between July 2017 and June 2019, contrary to the defendants’ respective duties as directors and officers owed to the company at various and sometimes overlapping times. The relief sought by the plaintiffs includes damages as against Mr Hawkes and the Ryans (respectively the second, fourth and fifth defendants) for insolvent trading and breach of directors’ duties.
On 13 September 2022 following a mediation at which the plaintiffs, Mr Hawkes and the Ryans agreed to settle the dispute and proceeding, they executed a Deed of Settlement and Release as the device by which they purported to record the basis of settlement.
By clause 4.1 of the Deed, the Ryans agreed, without admission, to pay the company $275,000 by 22 November 2022. By clause 4.2 of the Deed Mr Hawkes agreed, without admission, to pay the company the sum of $12,500 in various instalments in October, November and December 2022. Clause 4.3 required the payments be by direct transfer to the trust account of the plaintiffs’ solicitor.
Mr Hawkes made his payment but the Ryans did not.
Clause 5 of the Deed, of which more will be said later, provided a mechanism for consent to judgment in the sum of $500,000 against a defaulting party. In reliance upon clause 5 and in light of the Ryans’ failure to pay the $275,000 they agreed to pay, the plaintiffs have applied for and been given judgment in the sum of $500,000 as against the Ryans.
The issue to be determined
Where does all this leave Mr Hawkes? He asserts his completion of his obligations pursuant to the Deed have the effect the plaintiffs should no longer continue the proceeding as against him. The plaintiffs disagree. The disagreement prompted the present application by Mr Hawkes.
The application was advanced and argued as an exercise in construction of the Deed. I am not here concerned with how Mr Hawkes’ argument as to the consequence of him making his agreed payment in the context of an agreement to settle might be pleaded as a defence and whether such a defence will likely prevail at trial.
The orders sought at the hearing were that:
“1. There be a declaration that by the Second Defendants’ payment to the First Plaintiff of the amount totalling $12,500.00 referred to in paragraph 4.2 of the Release and Settlement Deed dated 13 September, 2022 between the Plaintiffs and the Defendants, the Plaintiffs’ pleaded causes of action against the Second Defendant were lawfully satisfied and discharged.
2. The Plaintiffs be restrained from further prosecution of this action as against the Second Defendant.”
The plaintiffs indicated during argument that were such a declaration to be made, it would be honoured by them and that there would be no utility in making the restraining order in addition to the declaration. Accordingly, the making of the second order was not pressed. In the absence of argument as to its merits I express no conclusion about it and my orders will give liberty to apply.
The present issue is whether Mr Hawkes’ application has established that, on a proper construction of the Deed, his payment of $12,500, as per clause 4.2 of the Deed, lawfully satisfied and discharged the plaintiffs’ pleaded causes of action against him. As will be apparent from the ensuing reasons, the determinative question on that issue is whether this was a split or all or nothing settlement agreement.
Was this a split or all or nothing settlement agreement?
Clauses 7 and 8
Consideration of that question requires appreciation from the outset of the Deed’s release and indemnity and bar to proceedings clauses, 7 and 8. They are as follows:
“7. Release and Indemnity
7.1 Upon:
(a)Carter notifying the Parties of approval of this settlement by the creditors of the Court; and
(b)the Settlement Sum being received to the O’Connor Law Trust Account,
the Parties mutually release, discharge and indemnify each other Party, including any Related Party, from all actions, suits, claims, demands and causes of action both at law and in equity concerning the Dispute and the Proceedings and the costs thereof which any have or at any time has or could, would or might have but for this Deed against any other Party by reason of or on account of or in any way connected with the Dispute or the Proceedings.
8. Bar to Proceedings
8.1 Upon
(a)Carter notifying the Parties of approval of this settlement by the creditors or the Court; and
(b)the Settlement Sum being received to the O’Connor Law Trust Account,
then:
(c)this Deed may be relied upon by the Parties as a bar against any action, suit, proceeding, or claim made in relation to the Dispute; and
(d)the parties agree to take all steps and do all things to discontinue the Proceedings with no order or liability as to costs.” (emphasis added)
Triggering condition (a) in each of the above-quoted clauses require the liquidator’s notification of approval of the settlement by the creditors or the Court. The need and mechanism for such approval was provided for by clause 6 of the Deed. Clause 6.2 specifically provided the plaintiffs’ “compromise of the Proceedings and the Dispute is subject to and conditional upon the happening of” either creditor or court approval “of this settlement” (the deed did not define the term “this settlement”). It is common ground that the requisite approval occurred.
Triggering condition (b) in clauses 7 and 8 is significant in the present context. It requires the receipt of what is described as “the settlement sum”. That was a term defined by clause 1.1(i) of the agreement as follows:
“Settlement Sum means the amount of $287,500 payable in accordance with clause 4”.
The settlement sum amount of $287,500 is the total of both the amounts which the Ryans agreed to pay pursuant to 4.1 of the Deed, namely $275,000, and which Mr Hawkes agreed to pay pursuant to clause 4.2 of the Deed, namely $12,500. The latter amount has been paid but the former has not been paid. This means that the condition for the operation of the release and indemnity and bar to proceedings clauses quoted above has not been met, in that the “settlement sum” has not been received.
Those clauses therefore do not operate in the present situation to release, discharge and indemnify Mr Hawkes and will not operate as a bar against the continuation of the proceeding against Mr Hawkes. The plaintiffs contend that is a determinative obstacle to Mr Hawkes’ application. As against this Mr Hawkes argues clauses 7 and 8 do not cover the field of potential ways by which his agreed payment would have the effect of protecting him from further pursuit of the action against him.
It is clear clauses 7 and 8 only apply in the scenario where both Mr Hawkes and the Ryans made the payments which clause 4 records they agreed to make. It is likewise clear the Deed did not expressly impose a positive obligation upon the plaintiffs to cease pursuit of the dispute and proceeding as against Mr Hawkes in the event of present scenario, where he did what he agreed to do but the Ryans did not. However, Mr Hawkes argues it does not follow that the present scenario was excluded from meeting the “accord and satisfaction” inherent in the plaintiffs and Mr Hawkes agreeing to settle and Mr Hawkes complying with that agreement.
Mr Hawkes’ accord and satisfaction argument
Mr Hawkes’ accord and satisfaction argument is founded upon the last of the Deed’s five recitals. The Deed’s recitals A to D record some presently neutral information about the parties and the nature of the proceedings commenced by the plaintiffs and defended by Mr Hawkes and the Ryans. Then recital E states:
“E. The Parties have agreed to settle the Dispute and the Proceedings on the basis set out in this Deed.” (emphasis added)
Recital E acknowledges the parties have agreed to do a certain act, namely settle the dispute and proceeding. This carries the potential for it to meet a qualification to the general principle that the recitals of a deed may inform its interpretation but do not have operative effect. That qualification, identified by Mason J in Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth,[1] is that where a deed recital acknowledges the parties have agreed to do certain acts, the promise to do those acts will be read into the agreement if the Deed does not contain an express promise to that effect and there is no indication of a contrary intention. In this respect there is a potential distinction in the consequence of a recital which acknowledges an agreement to do something, as distinct from a recital which merely expresses the object of the parties; in that the latter likely reflects the parties’ intention to secure the object by means provided for within the Deed and not otherwise.[2]
[1](1977) 139 CLR 54, 72.
[2]Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54, 73.
Recital E does more than express the object of the parties. It is a specific acknowledgment the parties have agreed to do something, namely, to settle the dispute and the proceedings, on the basis set out in the Deed. If the Deed does not adequately identify how the settlement is to be effected, then it may be a reasonable inference there has been a drafting oversight and the nature of the acts necessary to effect the agreed settlement may be inferred. Mr Hawkes effectively argues such an inferred act is the ceased pursuit of the action against him, on the basis it is the countervailing satisfaction for him satisfying his agreed payment obligation.
In Thompson v Australian Capital Television Pty Ltd,[3] Gummow J, after noting the distinction between the defence of release and that of accord and satisfaction, observed:
“Accord and satisfaction (the former being the agreement or consent to accept the latter) requires acceptance of something in place of the full remedy to which the recipient is entitled, coupled with provision of the consideration agreed upon.”[4]
[3](1996) 186 CLR 574.
[4](1996) 186 CLR 574, 610.
Here the accord acknowledged in recital E involved the plaintiffs’ acceptance of Mr Hawkes’ payment in place of the full remedy they had hitherto been pursuing against him. Curiously the Deed records at clause 4.4 that the clause 4 payments are not contingent upon the plaintiffs entering the Deed. Both sides submitted that clause is merely a machinery clause to deal with the possibility of delay in the execution process. In any event nothing turns on it. Clause 4.4 is interpretatively inconsequential in the context of a deed which recorded in recital E that the parties had “agreed to settle” on the basis set out in the Deed and recorded in clause 4.2 that Hawkes “agrees to pay” the amount stipulated.
I conclude, given that context, that Mr Hawkes’ payment referred to in clause 4.2 was the payment he was required to make to effect the settlement he and the plaintiffs had agreed to. But was it the only payment required to effect that settlement?
The effect of Mr Hawkes’ argument is that I should read the plaintiffs’ cessation of their dispute and proceeding vis a vis Mr Hawkes into their agreement to settle as necessary to give effect to it, unless the Deed’s operative content indicates a contrary intention, viz that this was an all or nothing settlement. Such an approach would be consistent with the qualification identified in Ansett Transport Industries, but it is premised on an assumption unsupported by recital E. That assumption is that the payment Mr Hawkes was required to make was the only payment required to be made in order for there to have been the satisfaction required by the accord. Such an assumption is not supported by recital E, which only refers generally to the parties’ agreement to settle. It is silent on the determinative issue of whether both of the promised payments of the Ryans and Mr Hawkes needed to be made to effect the settlement or whether Mr Hawkes’ payment was enough to effect settlement as between him and the plaintiffs
Recital E does not assist either way on the determinative issue. The difficulty in turn for Mr Hawkes’ application is that consideration of the broader content of the Deed, interpreting it by reference to its text, context and purpose,[5] provides only limited assistance on the determinative issue.
[5]Mount Bruce Mining Pty Ltd v Wright Prospecting (2015) 256 CLR 104,116 [46]-[47].
Purpose
Consideration of the Deed’s purpose does not assist in much the same way as recital E does not assist. The Deed’s purpose was obviously to record the basis of the agreed settlement but that says nothing as to whether the agreed settlement was a split or all or nothing settlement.
The plaintiffs highlight that because the purpose of the Deed was to record the terms of settlement between the parties it is significant that it did so in one deed in respect of all three defendants. They emphasise it was open to the parties to have drafted and executed two separate deeds – one relating to Mr Hawkes and one to the Ryans – and the fact there was only one deed suggests this was an all or nothing rather than split settlement. The point is of neutral significance. There is no reason why the one deed cannot record the basis of an agreement involving multiple parties clearly identifying what if any different obligations arise as between different parties to the agreement and the deed. The problem is that this Deed did not do that clearly enough.
Text and context
Turning to consideration of text and context, the clauses most strongly favouring the plaintiffs are clauses 7 and 8 and the clause most strongly favouring Mr Hawkes is clause 5. It is convenient to consider those clauses before touching on some other clauses, not already referred to in that exercise.
Clauses 7 and 8 revisited
The text of clauses 7 and 8 has already been reviewed above. It expressly refers to the consequence of payment of a “settlement sum”, that is, the total of the clause 4 amounts to be paid by both Mr Hawkes and the Ryans. There are no other similar clauses dealing with the outcome of the case against Mr Hawkes in the mixed payment scenario which has occurred. The plaintiff’s argument, founded on clause 7 and 8’s textual reference to settlement sum and the contextual absence of similar clauses in respect of payment by only Mr Hawkes, was that clauses 7 and 8 reveal an intention that payment by him only would not satisfy the accord reached.
Mr Hawkes emphasised the adoption of such all party inclusive indemnity and bar clauses in agreements of this kind may merely be a conservative drafting response to risk. Specifically, it may be a drafting response to the risk arising from the common law principle that a release of one of several co-debtors who are jointly or severally liable for the same debt releases all of them.[6] That possibility is hardly compelling given the law qualifying that principle, discussed by McLelland CJ in Dorgal v Buckley.[7] In any event it at best reduces but does not eliminate the combined force of the textual point that clauses 7 and 8 refer to settlement sum and the contextual point that there are no like clauses in respect of payment by only Mr Hawkes. This culmination of points supports the inference this was an all or nothing rather than split settlement agreement.
[6]Walker v Bowry (1924) 35 CLR 48, 58.
[7](1996) 22 ASCR 164, 167.
Clause 5
Mr Hawkes’ best interpretative argument to the contrary arises from clause 5 of the Deed. Clause 5.1 recorded that Mr Hawkes and the Ryans had instructed their solicitors to separately execute a Consent to Judgment in the sum of $500,000 including interest and costs. Clause 5 continued:
“5.2In the event the payments referred to in clause 4 are not paid by the date they are required, then Carter and Austwide will be at liberty to obtain judgment against the Defaulting Party in accordance with the terms of the Consent to Judgment.
5.3For the avoidance of doubt, the Consent to Judgment does not require Carter or Austwide to obtain judgment against all parties and is enforceable against each of Hawkes, D Ryan and J Ryan separately and individually or any combination at the discretion of Carter & Austwide.” (emphasis added)
Clause 5.2 refers to “the Defaulting Party”. The term “Defaulting Party” is defined in clause 1.1(d) of the Deed as meaning, “a party who has failed to make the payments required of them in either Clause 4.1 or Clause 4.2”. The effect of clause 5.2’s reference to “the Defaulting Party” is to confine the plaintiffs’ capacity to obtain judgment against a defendant, in consequence of a clause 4 non-payment, to a non-paying defendant. That effect is consistent with clause 5.3’s clarification that the consent to judgment referred to in clause 5 is not confined to deployment on an all or nothing basis and may be deployed against any mix of the Hawkes and Ryans.
Three related arguments derive from the Deed’s confining of clause 5.2’s operation to the defaulting party.
The first argument, is that if the agreed settlement was an all or nothing outcome, requiring payment of the total of both Mr Hawkes’ and the Ryans’ agreed payments, then the Deed’s authorised use of their consents to judgments would not be confined to only those of them that were in default of payment. The answer to that argument is that it would have been a commercially draconian outcome, most unlikely to be agreed to even by parties who intended an all or nothing settlement, to permit the deployment of the consent to judgment against a non-defaulting defendant.
That apparently reasonable answer heralds the second argument. Accepting that the parties only intended to visit the price of non-payment upon the defaulting party, why would the party who is not in default be left in limbo? It is not as if the Deed went on to provide that in the event of a mixed payment outcome the payment made by the non-defaulting party would be returned. The only scenario in which the return of a clause 4 payment was contemplated by the Deed was the scenario, referred to in clause 6.4, in which creditor or court approval of the settlement did not occur. That scenario did not arise here. The only obvious answer to this second argument is that not providing for the return of the non-defaulting defendant’s payment was likely a drafting oversight. That is a real possibility, for this was evidently an imperfectly drafted deed. However, it remains that the absence of such a provision is consistent with clause 5.2 and supports the inference that this was a split settlement agreement. Importantly though, its support for that inference does not outweigh the above discussed way in which clauses 7 and 8 support the contrary inference.
The third argument draws on the principle articulated by the plurality in Mount Bruce Mining Pty Ltd v Wright Prospecting,[8] that in the absence of a contrary intention it should be assumed the parties intended to produce a commercial result, avoiding commercial nonsense or working commercial inconvenience. That argument is that on the interpretation urged by the plaintiffs, the compliance of Mr Hawkes, by paying as agreed, worked no commercially beneficial result to him. To the contrary, it would see him out of pocket to the extent of the sum paid and still facing the very dispute and proceeding he sought to settle in making that payment.
[8](2015) 256 CLR 204 at [51].
The answer to that argument has several threads. A deed which delivered an all or nothing settlement was commercially advantageous from the liquidator’s perspective because the liquidator would not want to give up its case as against one paying defendant in the event another defendant or defendants failed to pay. It is true the liquidator gained some protective assurance through being able to deploy the consent to judgment against the defaulting party but there would be no certainty until enforcement of that judgment as to whether the liquidator could successfully recoup the judgment amount. Further, if this was an all or nothing settlement agreement, it still gave Mr Hawkes the potential commercial advantage of settling the case, even if it was contingent on the Ryans also making their payment. Further, such a settlement only involved Mr Hawkes paying an amount of $12,500 which was relatively modest in comparison to the $275,000 required of the Ryans.
In summary then, the countervailing considerations in respect of the first and third arguments neutralise the force of those arguments. However, there is substance to the second argument in that the absence of a clause requiring repayment of the money, taken with clause 5.2’s confinement to the defaulting party, supports the inference this was a split settlement agreement.
The dilemma for Mr Hawkes, as the applicant, is that the degree of that support does not outweigh the support which clauses 7 and 8 provide for the inference that this was an all or nothing settlement agreement.
Before leaving this topic I emphasise an issue not argued, and thus not considered here, is what consequence in equity the plaintiffs’ recovery of the judgment amount, if that occurs, may have upon their entitlement to continue to pursue its action against Mr Hawkes. Argument on that point was not apt to the nature and timing of the application but it may be a point of importance to the future conduct of the litigation.
Do any other clauses assist?
The only clause, other than clauses 7 and 8, in which the Deed deploys the term “settlement sum” is clause 4.5. That clause clarifies that no taxable supply has occurred in connection with the Deed and the settlement sum includes no GST or, in the alternative, if GST is assessed on the settlement sum then the settlement sum includes GST. If this was a split settlement agreement it is difficult to understand why clause 4.5 would not have referred to the Ryans’ and Mr Hawkes’ separate payments per clauses 4.1 or 4.2 rather than the total thereof. On the other hand, if this was to be an all or nothing settlement it is likewise difficult to understand why the agreements to pay were articulated as separate agreements to pay different amounts in clauses 4.1 and 4.2 respectively. On balance such points of drafting minutiae are of no material assistance.
Mr Hawkes placed weight upon clause 15.1 of the Deed, which provides:
“15.1 The parties must execute and deliver all documents and must do all things as are necessary for the complete performance of their respective obligations under this Deed.”
Mr Hawkes submits this clause obliges the plaintiffs not to further sue him, that being a thing necessary as a result of him completing his performance of his obligations. That submission assumes this was a split settlement agreement and clause 15.1 is of neutral assistance on that determinative issue. It merely demonstrates the Deed included a mechanism other than clauses 7 and 8 by which Mr Hawkes could be protected from the continued pursuit of the proceeding against him if this was a split settlement agreement.
The plaintiffs highlighted clause 6.2 in submitting that the accord reached was executory rather than of immediate effect, citing McDermott v Black.[9] As much seems uncontroversial given clause 6.2’s specific provision that the compromise was subject to and conditional upon creditor or court approval of the settlement. But the requisite approval occurred. So too did the payment Mr Hawkes agreed to make. The question remains whether that was the only satisfaction required to effect settlement. Clause 6.2 and some associated submissions made in argument on the delineation between an accord executory and accord and satisfaction, do not assist in resolving that question.
[9](1940) 63 CLR 161, 176.
Conclusion
In my conclusion the Deed’s content provides at least as much, if not more, support for the implication that this was an all or nothing settlement agreement than it does for the implication this was a split settlement agreement. That conclusion means that Mr Hawkes has not met the onus upon him as the party seeking the declaration and I should decline to make it.
It will be apparent from the finely balanced nature of that conclusion and other aspects of these reasons that this outcome says nothing as to whether Mr Hawkes’ payment of the agreed sum may support a viable defence in the proceeding.
Other order sought
The plaintiffs made an oral application for an order giving leave for the filing of an amended claim. That they would seek to do so when next the matter was before the Court was flagged some time ago. The need to do so is apparently a consequence of the case having been transferred from the District Court which lacked jurisdiction in some respects. While I was told the amendments are consented to they received no real attention in submissions. In any event it is prudent Mr Hawkes considers these reasons before finalising his attitude to the proposed amendments. In the circumstances I will made no order at this point but give liberty to apply.
Orders
While costs would usually follow the event in respect of Mr Hawkes’ application, I note the application was a product of uncertainty in a deed in which each side joined. Further, it remains to be seen whether the foreshadowed liberty to apply is exercised. My tentative view is that costs should be reserved. I will give the parties an opportunity to be heard as to costs should they wish to contend otherwise.
My orders are:
1. The second defendant’s application for a declaration filed 2 February 2023 is refused.
2. Liberty to apply, in respect of the balance of the application filed 2 February 2023 and the oral application to amend the claim, on the giving of two business days’ notice in writing.
3. If any party wishes to be heard as to costs they should give written notice of their request to their opponent and the Registry by 28 April 2023 and the parties will be heard as to costs at 9.15am 5 May 2023.
4. In the event no party gives notice as per order 3, costs reserved.
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