Bob Jane Corporation Pty Ltd v Barrot FT Pty Ltd (No 2)

[2012] SASC 89

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

BOB JANE CORPORATION PTY LTD v BARROT FT PTY LTD (No 2)

[2012] SASC 89

Judgment of The Honourable Justice Kourakis

1 June 2012

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - THIRD PARTIES

PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE

COSTS – plaintiff successful at trial – following trial and judgment defendant company entered liquidation – order made for defendant company to pay plaintiff’s costs – plaintiff alleges unable to recover costs from defendant – application for non-party costs order against defendant’s director and related company – whether defendant company used as a front to bear the risk of litigation and protect the interests of director and related corporate entities – whether defendant company’s conduct of the litigation pursuant to the instructions of the director were unreasonable, and motivated by a collateral purpose or were an abuse of process.

Held: Application for non-party costs dismissed – defendant company not used as a stalking horse for the interests of director and related corporate entities – litigation not pursued by director of defendant company for improper or collateral purpose.

Supreme Court Act 1935 (SA) 40(1), referred to.
Knight v FP Special Assets Ltd (1992) 174 CLR 178; Oxer v Astec Paints Australia Pty Ltd [2008] SASC 210; Vestris v Cashman (1998) 72 SASR 449; FPM Constructions Pty Ltd v The Council of The City of Blue Mountains [2005] NSWCA 340; May v Christodoulo [2011] NSWCA 75; Dunghutti Elders Council (Aboriginal Corporation) RNTBC v The Registrar of Aboriginal and Torres Strait Islander Corporations (No 4) [2012] FCAFC 50 ; Rushton (Qld) Pty Ltd v Rushton (NSW) [2004] QSC 47; Wiseline Corporation Ltd v Hockey [2007] NZHC 456; Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2009] 2 Qd R 356; Total Spares & Supplies Ltd v Antares SRL [2006] EWHC 1537, discussed.

BOB JANE CORPORATION PTY LTD v BARROT FT PTY LTD (No 2)
[2012] SASC 89

Civil

1. KOURAKIS J:      The plaintiff (Bob Jane) is a tyre merchant.  The defendant, to which I will refer as Concord Park even though it has adopted the name of Barrot F.T. Pty Ltd for the purposes of its liquidation, operated a transport business.  Bob Jane and Concord Park fell into dispute over their contractual arrangements.  Concord Park refused to deliver up to Bob Jane the tyres which it held in storage pursuant to those arrangements.  Bob Jane commenced proceedings against Concord Park in this Court on 24 August 2007, for wrongful detention of its tyres.  On 28 November 2007 Concord Park counterclaimed for wrongful termination of its contract.  It also counterclaimed for misrepresentations made by Bob Jane in understating the size of the tyres which would be stored and transported by Concord Park and for supplying tyres which were larger than the tyres Bob Jane had warranted it would supply.

2. Concord Park’s counterclaim had originally included claims for losses arising out of contractual arrangements made with respect to both South Australia and New South Wales.  In April 2009 the counterclaim was amended by removing the claim made with respect to New South Wales.  On the face of it there were reasonable grounds for doing so.  I am not satisfied that the amendment was the result of any unreasonable tactical decision made by Mr Barrot. 

3. In the course of the proceedings Bob Jane filed offers to settle the proceedings on the basis of payments to it of varying amounts.  Concord Park did not accept those offers.  On 4 June 2010 Concord Park offered to settle on the basis of an, all inclusive, payment to it of $38,478.11.  On 18 June 2010, on the eve of the trial, Concord Park offered to settle on the basis of each party “walking away bearing their own costs”. 

4. Mr Barrot and Concept Logistics were first put on notice of Bob Jane’s intention to seek costs orders against them in October 2009.

5. Bob Jane brought a security for costs application in late May 2010.  It was opposed and ultimately dismissed by me both because of the relatively late stage at which it was brought and because there were insufficient grounds to suspect that the proceeds of the recent sale of Concord Park’s business would be improperly disposed of.  The extent of Concord Park’s insolvency was not apparent at that time. 

6. The trial was held in June 2010.  I delivered reasons for judgment on 21 July 2010.  I rejected Concord Park’s contention that it held a contractual or statutory lien and awarded Bob Jane damages in the sum of $7,388.48.  Concord Park’s counterclaim was dismissed.

7. It is apparent from my reasons of 21 July 2010 that Concord Park did not act unreasonably in defending Bob Jane’s claim and in prosecuting its counterclaim.  Concord Park’s proceedings were not an abuse of process.

8. Within a month of the delivery of my reasons Concord Park went into liquidation.  I made a costs order in Bob Jane’s favour on 15 September 2010.  Bob Jane claims that its costs are about $1,000,000 and that it has little hope of any recovery against Concord Park.  For that reason Bob Jane has brought an application for a third party costs order against Concord Park’s principal, Mr Barrot, and an associated company, Concept Logistics (Australia) Pty Ltd (Concept Logistics).  Bob Jane contends that the interest of Mr Barrot and Concept Logistics in the proceeding and the way in which Mr Barrot structured the financial arrangement of Concord Park justify non-party costs orders against them.

9. I am satisfied that Mr Barrot was angered by the termination of the Bob Jane contract and the proceedings brought by Bob Jane against Concord Park.  That is, however, not uncommon in business.  I am unable to find that Concord Park’s rejection of Bob Jane’s offers or the offers made by it were unreasonably dictated by Mr Barrot for collateral purposes.  Nor am I able to find that the failure of the parties to settle their dispute was the fault of Mr Barrot.  I am not satisfied that Concord Park was a stalking horse for the interests of Mr Barrot and related corporate entities or that there is any other proper basis for making the exceptional orders sought.  My reasons for so holding follow.

   The Grounds for the Application

10. At my invitation Mr Harris QC gave the following summary of the grounds on which the orders against Mr Barrot and Concept Logistics were sought:

    That the benefit to which both Mr Barrot, who was the sole director, sole shareholder of Concord Park, which was a trustee company, sole appointer, that the benefit to it and in respect of which Concept Logistics was involved as part of the what we say was a plan, was to have Concord Park in effect as a man of straw if they lost but able to survive if they won.  Now, that is a different situation than what might be seen as a classic situation of a non-party costs order where there is a shell - that is, an unarguably insolvent entity with no assets, which is put up as the stalking horse for the real beneficiaries to be able to reap the benefit of the litigation without suffering any of the risk.

    The Barrot Entities

11. Concord Park was at all relevant times the trustee of a discretionary trust, the Barrot Family Trust.  Mr Barrot was the sole director and shareholder of Concord Park and Concept Logistics.  Concord Park and Concept Logistics were two of a group of companies controlled by Mr Barrot (the Barrot Group) which were participants in the transport industry.  The assets of the Barrot Group were largely held by corporations other than Concord Park. Concept Logistic, for example, owned warehouses in Sydney. 

12. Concept Park provided transport services and engaged employees and contractors for that purpose.  Concord Park’s trading revenue was substantial, approaching $100 million in the financial years 2008 and 2009.  The net profit in those years was, however, but a small proportion of the revenue, about $680,000 in 2008 and $721,000 in 2009.  In each of those years Concord Park distributed its profits to the beneficiaries of the Barrot Family Trust which it administered. 

13. Mr Barrot was the appointor of the Barrot Family Trust.  The primary beneficiaries of the Barrot Family Trust were the members of Mr Barrot’s family.  Other beneficiaries included corporations, shares in which were held by a member of Mr Barrot’s family.  Concept Logistics was such a beneficiary. 

    Concord Parks Insolvency

14. On 24 May 2010 Toll Holdings Limited (Toll) purchased the transport and logistics businesses of the Barrot Group and other associated corporations for $19.3 million.  Toll and the Barrot Group are not in any way related.   There is no suggestion that the sale was at an under value and it would be surprising if it were.  Most of the business assets of the Barrot Group of companies were held by Concord Park Express (Aust) Pty Ltd.  About $14.8 million of the sale price of $19.3 million was paid to financiers of the Barrot Group.  Part of the balance of the purchase price was paid into the bank account of Barrot Group of Companies Pty Ltd, and $1.45 million was then transferred to Concord Park on 25 May 2010.  A bank account kept by Concord Park with the ANZ Bank was left in credit in the sum of $1.605 million as a result.  Payments out were steadily made thereafter including substantial payments to Concord Park’s solicitors, leaving a credit of only $32,500 by 29 July 2010.  There is no evidence that the solicitors were paid other than through the Bank accounts held by Concord Park.

15. On 26 August 2010, Mr Barrot presided over a meeting of the members of Concord Park in which a resolution for its voluntary winding up was passed.  The principal creditors listed in the Summary of Affairs signed by Mr Barrot were members of the Barrot Group which held, between them, debts of over $5 million.  Concord Parks’s total debt was stated to be about $10 million.

16. Bob Jane heavily relies on the following transactions, relating to the distributions to, and loan accounts of, Concept Logistics and Mrs Barrot (the impugned transactions) to justify the third party costs orders it seeks.

17. The financial records of Concord Park show that in the financial year ending June 2009 it made a distribution in the sum of $669,000 to Concept Logistics.  The distribution is evidenced in a tax return which was lodged before the commencement of the trial and before settlement on the sale to Toll.  Other financial records show that the distribution was in the sum of $1 million.  The discrepancy does not matter for the purposes of this application.

18. I accept Concept Logistics’ submission that there are tax advantages in making trust distributions of this kind.  I accept that those advantages were at least the primary purpose for making the distributions.

19. In July 2010 Mrs Barrot was paid close to $1 million by Concord Park to discharge its liability for unpaid past distributions.  In that month Mrs Barrot was also repaid two outstanding loans which she had made to Concord Park.  The first was in the sum of $200,000 and had been made in December 2009.  The second was for $1 million and had been made in March 2010.  The first loan enabled Concord Park to pay expenses over the Christmas holiday period and the second allowed it to pay a large fuel bill.  I acknowledge that the loan monies advanced by Mrs Barrot may also have facilitated the payments subsequently made by Concord Park to its solicitors by easing the credit limits under which it operated.  However, I am satisfied that the overwhelming purpose of the advances was to ensure that Concord Park continued to operate until the sale to Toll was completed.  The loans were secured by a charge dated 23 December 2009 which also secured Mrs Barrot’s unpaid trust distributions.  On the face of the charge, the debts repaid to Mrs Barrot would always have ranked above any costs order made in these proceedings. 

20. At the end of the financial year ending 2010, Concept Logistics was indebted to Concord Park in the sum of $1.7 million despite the distribution which had been made in its favour.  In early July 2010 an equivalent sum was paid into a bank account maintained by Concept Logistics.  Mr Barrot deposed that the source of the deposit was largely the money paid to Mrs Barrot in discharge of Concord Park’s indebtedness, and that she advanced the money to Concept Logistics to put it into sufficient funds to repay its debt to Concord Park.  Mr Barrot deposed, without contradiction, that the money was withdrawn from Concept Logistics’ account a few days later and paid to Concord Park to discharge its indebtedness. 

21. The impugned transactions could not have caused any deterioration in the cash position of Concord Park because the cash it paid out to Mrs Barrot was returned to discharge the indebtedness of Concept Logistics.  Nonetheless, the impugned transactions were probably calculated to advantage Mrs Barrot by repaying her debt in full before the validity of the charge might be questioned by the liquidators.  They also advantaged Concept Logistics by discharging a debt which the liquidator of Concord Park might have enforced, making its assets available to the creditors of Concord Park.  The result of the impugned transactions is that, if necessary, Mrs Barrot can recover her advance to Concept Logistics against its assets.  In summary, the impugned transactions appear to be calculated to protect the interests of the Barrot family against the creditors of the Barrot Group.

    Findings

22. On the basis of Mr Barrot’s testimony at the trial and on the affidavit material that has been received on this application I am satisfied of the following:

    a)Mr Barrot was upset about the way in which the Bob Jane contract had become unprofitable, at least in New South Wales, because of the greater size and bulk of the tyres it handled and by the circumstances of its termination.

    b)Mr Barrot took a hard and aggressive negotiating stance in the immediate aftermath of the termination of the contract.

    c)Mr Barrot, as the director and sole shareholder of Concord Park, was responsible for the robust conduct of its litigation with Bob Jane.

    d)Mr Barrot initially took that approach both because he believed that it was a sound commercial position for Concord Park to take and because if the counterclaim were successful his family might benefit through a profit distribution. 

    e)During 2009 Mr Barrot became aware of Concord Park’s looming financial difficulties, and possible insolvency.  He continued to instruct solicitors to defend Bob Jane’s claim and prosecute Concord Park’s counterclaim both because of his assessment of the merits of its position and in order to forestall the further financial strain that a judgment in favour of Bob Jane would create.  I cannot say that that approach was collateral to or antithetical to Concord Park’s interests. 

    f)From late 2009 Mr Barrot foresaw the probability that Concord Park would be placed in liquidation.  He also foresaw the possibility that, as a result, Bob Jane might not recover any damages or costs even if it were successful.  Even though that prospect probably pleased him, I am not satisfied that the decision to continue to defend the proceedings was taken primarily to cause Bob Jane financial loss.  I cannot say that the defence of the proceedings and the prosecution of the counterclaim could not reasonably have been regarded as being in the interests of Concord Park and its creditors.  In particular, the merits of Concord Park’s case were sufficient to justify continuing the litigation and thereby avoiding a judgment against it which may have jeopardised the sale to Toll.

    g)The impugned transactions were calculated to protect Mr Barrot’s family and Concept Logistics from claims which might be made by the liquidators of Concord Park, or other Barrot related corporations, but were neither intended to, nor capable of, causing substantial disadvantage to Bob Jane over the many other creditors of Concord Park.

    Exceptional Nature of Non-Party Costs Orders

23. In Knight v FP Special Assets Ltd,[1] Mason CJ and Deane J held that a widely expressed general costs power in the Rules of Court of the Supreme Court of Queensland extended to making orders against persons who were not parties.  Mason CJ and Deane J recognised a general category of case in which an order for costs could be made against non-party and which would include, as was the case in Knight, a receiver of a company.  They identified the characteristics of cases which fell within that category to be that:

    a)     the party to the litigation is insolvent or without substantial assets;

    b)the non-party, or some person in whose interest the non-party is acting, has an interest in the subject of the litigation and; 

    c)     the non-party had played an active part in the conduct of the litigation.

    [1] (1992) 174 CLR 178.

24. Dawson J observed that ordinarily an order for security for costs is the appropriate remedy where a receiver and manager conducts litigation through a company.[2]  Dawson J accepted that there was a long asserted jurisdiction to award costs “against a person who is not a party to the proceedings where that person is the effective litigant standing behind an actual party or where there has been a contempt or abuse of the process of the court”.[3] 

    [2]    Knight v FP Special Assets Ltd (1992) 174 CLR 178, 204.

    [3]    Knight v FP Special Assets Ltd (1992) 174 CLR 178, 202.

25. McHugh J, in dissent, observed that there was little to distinguish between the cases of receivers and managers and directors against whom a costs order would not ordinarily be made by virtue only of the office they held.

26. In Oxer v Astec Paints Australia Pty Ltd,[4] this Court held that s 40(1) of the Supreme Court Act 1935 conferred a power to make non-party costs orders.[5]

    [4] [2008] SASC 210.

    [5] [2008] SASC 210 [28].

27. In Vestris v Cashman,[6] Lander J discussed generally the principles affecting the exercise of the discretion, under a statutory power, to make an order for costs against a non-party.  First, he observed that such orders are exceptional.  Secondly, he emphasised that there must be a connection or association between the party to the litigation and the non-party against whom the order for costs is sought, which makes it just to make the order.[7]  Lander J accepted that it is not necessary to demonstrate any improper conduct, but if there is improper conduct it will plainly be a relevant factor. 

    [6] (1998) 72 SASR 449.

    [7]    Vestris v Cashman (1998) 72 SASR 449, 467. See also Kebaro Pty Ltd v Saunders [2003] FCAFC 5 [103].

28. In FPM Constructions Pty Ltd v The Council of The City of Blue Mountains,[8] Basten JA, with whom Beazley and Giles JJA agreed, identified that cases in which orders were made against non-parties tend to include some, if not the majority, of the following criteria:

    a) the unsuccessful party to the proceedings was the moving party and not the defendant;

    b)     the source of funds for the litigation was the non-party or its principal;

    c)     the conduct of the litigation was unreasonable or improper;

    d)the non-party or its principal had an interest (not necessarily financial) which was equal to or greater than that of the party or, if financial, was a substantial interest;

    e)the unsuccessful party was insolvent or could otherwise be described as a person of straw.

    [8] [2005] NSWCA 340.

29. That passage was approved in May v Christodoulo[9] and by the Full Court of the Federal Court in Dunghutti Elders Council (Aboriginal Corporation) RNTBC v The Registrar of Aboriginal and Torres Strait Islander Corporations (No 4).[10]The Full Court in Dunghutti went on to hold:

    The Court has power to make an order for costs against a non-party where the non-party is connected with the unsuccessful party to the proceeding, and has caused that party to start, continue or prosecute the proceeding in circumstances where the non-party’s conduct makes it just an equitable that the non-party be visited with an order for costs in favour of the successful party either in addition to such an order against the unsuccessful party or in substitution for such an order.[11]

    [9] [2011] NSWCA 75.

    [10] [2012] FCAFC 50 [83].

    [11] [2012] FCAFC 50 [88].

1. An application for costs against a sole director and shareholder of a defendant corporation, brought on the basis that he deliberately caused litigation against the defendant companies to be protracted so as to increase the expense of the plaintiffs, who were business competitors, was dismissed in Rushton (Qld) Pty Ltd v Rushton (NSW).[12]Muir J expressed the view that an adverse costs order should not be made against a non-party simply because he or she is the sole director and shareholder.[13]  Muir J observed that the principle that shareholders and directors are not personally liable for the defaults of the corporation which has as independent legal personality generally militates against burdening them with costs orders, even if they knew that the corporation might not be able to meet the other party’s costs if it were to lose.

   [12] [2004] QSC 47.

   [13]   Rushton (Qld) Pty Ltd v Rushton (NSW) [2004] QSC 47 [12] – [15].

2. In FPM Constructions, Basten JA, with whom Beazley and Giles JJA agreed, explained that the derivative interest of a shareholder in litigation involving the corporation does not of itself constitute the shareholder the “real party” for the purpose of the non-party costs discretion.  As Basten JA observed, “Were it otherwise the corporate veil would, in effect, be nullified”.[14]

   [14]   FPM Constructions Pty Ltd v The Council of The City of Blue Mountains [2005] NSWCA 340 at [207].

3. Basten JA also observed that the involvement of a director and shareholder in litigation is usually a neutral consideration because he or she might have good reason to take an active part in the litigation involving the corporation.[15]  However, a costs order may be appropriate where the person in control of a corporation conducts litigation in such a manifestly unreasonable and vexatious manner that it may be inferred that the controller is prosecuting the action for his or her personal motives or purposes which are collateral, if not inimicable, to its interests of the corporation.[16]

   [15]   FPM Constructions Pty Ltd v The Council of The City of Blue Mountains [2005] NSWC 340 [207], [212].

   [16]   FPM Constructions Pty Ltd v The Council of The City of Blue Mountains [2005] NSWC 340, [212].

4. The circumstances in which a costs order against a shareholder/director might properly be made are illustrated by the facts in Beach Retreat Pty Ltd v Mooloolaba Marina Ltd.[17]  In Beach Retreat the corporation was the conduit through which its director, N, made advances to business enterprises in a marina development near the mouth of the Maroochy River in Mooloolaba.  The corporation did not conduct any other business.  The corporation was a trustee for beneficiaries including N.  When the Marina businesses failed N provided further finance, directly and through the corporation, in an attempt to secure the equity in the entities which had undertaken the development.  N also funded the litigation which was brought by the corporation for that purpose but then abandoned the litigation on the first day of trial.  The trial judge found that N had conducted the litigation unreasonably and made a third party costs order against him.  As a matter of form, the benefit to N from the litigation, if successful, would flow to him as a shareholder and beneficiary, but, in substance, the corporation was a mere shell and conduit for the investment of N’s personal financial resources.

   [17] [2009] 2 Qd R 356.

5. The costs order made against the director/shareholder in the New Zealand case of Wiseline Corporation Ltd v Hockey[18] was made for similar reasons.  It was based on a finding that the corporation was no more than “a shield of limited liability” behind which the director conducted his personal financial affairs.  The director had put financial structures in place which would have denied the other party any costs recovery.  The result was described in that case as an advantage for the director of “heads I win, tails you lose”.

   [18] [2007] NZHC 456.

6. The circumstances which warranted a costs order against a director/shareholder in Total Spares & Supplies Ltd v Antares SRL,[19] were slightly different.  The unsuccessful corporate litigant conducted a business which had been built up largely by the personal exertion of the director.  In my view that circumstance alone is not a good reason to go behind the corporation’s separate legal identity.  However, in Antares the director/shareholder transferred assets out of the corporation into other entities controlled by him for the sole purpose of evading an anticipated costs order.

   [19] [2006] EWHC 1537.

   Reasons for Dismissing Application

7. In my view there are insufficient grounds in the circumstances of this case to make the exceptional orders sought by Bob Jane. 

8. First, the subject matter of the litigation arises out of the contractual relationship between Bob Jane and Concord Park.  Concord Park was at all material times the “real” party with its own substantial business interests which were affected by the contractual dispute with Bob Jane. 

9. Secondly, it was not manifestly unreasonable for Concord Park to defend Bob Jane’s claim and to prosecute its own counterclaim. 

10. Thirdly, I accept that Mr Barrot’s personal animosity towards Bob Jane’s executive may have played a part in the litigation posturing which he instructed Concord Park’s solicitors to take, but that is not uncommon in corporate litigation.  I am not satisfied that Mr Barrot’s failure to settle was so manifestly unreasonable that it should be attributed to a personal desire to cause Bob Jane financial loss by incurring additional expense. The offers made just before the trial are inconsistent with that suggested motive.  In the circumstances of this case the litigation did not become hostage to his personal collateral vendetta. 

11. Fourthly, the prosecution of the counterclaim was unlikely to confer a substantial personal benefit on Mr Barrot or his family.  Despite the amount claimed in Concord Park’s filed counterclaim, the actual recovery was always likely to be substantially less.  I am not satisfied that Mr Barrot believed that the proceeds of the litigation would make substantial net contribution to Concord Park’s trading profit. 

12. Fifthly, at least by the commencement of the trial Mr Barrot was prepared to compromise the litigation on terms which left Concord Park without any recovery.  I am not in a position to make any finding about the reasonableness or otherwise of Mr Barrot’s attitude to settlement before then because Bob Jane objected to the disclosure of any communications made for the purposes of settlement, unless the right to rely on the communications for cost had been expressly reserved.  I ruled in its favour on that question and did not receive the material.  However, the consequence is that I cannot make any adverse finding against Mr Barrot and Concept Logistics on that question.  True it is that Mr Barrot nonetheless refused to compromise on terms which reimbursed Bob Jane its legal costs.  It can be accepted that if Concord Park had agreed to pay a settlement sum to Bob Jane that payment would have reduced Concord Park’s capacity to make distributions to the Barrot family beneficiaries, but that capacity would be even more greatly reduced by Concord Park’s liability for the additional costs of the trial if it were unsuccessful.

13. Sixthly, the sale to Toll and the impugned transactions were not made for the purpose of stripping Concord Park of assets that would otherwise have been available to satisfy a costs order in Bob Jane’s favour.  The purpose of the impugned transactions was to secure the position of Concept Logistics and Mr Barrot’s family from claims which might be made by the liquidator, but they were not closely enough related to the conduct of the litigation to warrant a non-party costs order. 

14. Seventhly, it is not appropriate to make costs orders directly against Mr Barrot and Concept Logistics which would in effect give Bob Jane a preference over other creditors who may have been adversely affected by those transactions.  If those transactions are to be set aside such benefit as there might be should flow to all of Concord Park’s creditors.  Equally, to the extent that Mr Barrot may have continued to trade Concord Park knowing it was insolvent by conducting the proceedings, it is not appropriate to make an order which would give Bob Jane the exclusive benefit of a compensatory order against him for doing so.[20]

    [20]   Cf s 588M and s 588R of the Corporations Act.

15. Eighthly, even though I am satisfied that Mr Barrot, at least indirectly, used the cash resources made available to Concord Park by the Toll sale and the impugned transactions to continue the proceedings through to trial believing that Concord Park would probably be put into liquidation with a substantial deficiency, the decision to contest the trial was not in itself unreasonable, despite the possible collateral benefit to Mr Barrot and his family in delaying the insolvency. 

    Conclusion

16. I dismiss Bob Jane’s application for non-party cost orders.