Bullivant's Natural Health Products Pty Ltd ((ACN 010 008 616) v C F Planners Pty Limited (ACN 006 887 225)

[1999] QSC 28

IN THE SUPREME COURT

OF QUEENSLAND

No.450 of 1992
Brisbane

Before  White J

[Bullivant’s Natural Health Products Pty Ltd ((ACN 010 008 616) v C F Planners Pty Limited (ACN 006 887 225)]

BETWEEN:

BULLIVANT’S NATURAL HEALTH PRODUCTS PTY LTD

(ACN 010 008 616)   

Plaintiff
AND:

C F PLANNERS PTY LIMITED (ACN 006 887 225)

First Defendant

AND:

MAURICE BERNARD BYRNE and ROBIN O’HAIR

Second Defendants

AND:

BERIMAH PTY LTD (ACN 005 905 895)

THE NEWS VENDING INSTITUTE INCORPORATED and

W HOLDINGS PTY LTD (ACN 005 936 265)

Third Defendants

AND:

DAVID VAUGHAN BULLIVANT

Third Party

BY ORIGINAL ACTION      

AND BETWEEN:

ROBIN O’HAIR

Plaintiff
AND:

BULLIVANTS NATURAL HEALTH PRODUCTS PTY LTD

(ACN 010 008 616)

Defendant

BY COUNTERCLAIM          

Writ No. 322 of 1996

AND BETWEEN:

ROBIN BRIAN O’HAIR

Plaintiff

AND:

TOWER LIFE AUSTRALIA LIMITED (ACN 004 979 426)

First Defendant
AND:

BRETT SCHMIDT

Second Defendant
AND:

RICHARD EDWARDS

Third Defendant
AND:

DAVID COMINOS

Fourth Defendant
AND:

GEOFFREY HARLEY

Fifth Defendant
AND:

DAVID RUSSELL

Sixth Defendant
AND:

DONALD MACGREGOR

Seventh Defendant
AND:

WARWICK MOWBRAY

Eighth Defendant
AND:

ABE ERDYNAST

Ninth Defendant
AND:

STEPHEN MURPHY

Tenth Defendant
AND:

KAREN MURPHY

Eleventh Defendant
AND:

TERREY BELL

Twelfth Defendant

AND:

GEOFFREY PUTLAND

Thirteenth Defendant

AND:

THE NEWS VENDING INSTITUTE INCORPORATED

Fourteenth Defendant
AND:

MORGAN McCONNAH (AUST) PTY LTD (ACN 009 832 428)

Fifteenth Defendant

Writ No. 10752 of 1998

AND BETWEEN:

ROBIN BRIAN O’HAIR

Plaintiff
AND:

PHILLIPS FOX (a firm)

First Defendants
AND:              

BULLIVANT’S NATURE HEALTH PRODUCTS PTY LTD

(ACN 010 008 616)   

Second Defendant
AND:

TOWER VICTORIA LIMITED (ACN 004 979 426)

Third Defendant

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 24 February 1999

CATCHWORDS:     Consolidation - 3 actions - different stages of readiness - one common party to the 3 actions - some common issues.

Counsel:Mr A Blow QC for the applicant

Dr O’Hair

Mr S Doyle SC for the respondents

Bullivant’s Natural Health Products Pty Ltd   and Mr D V Bullivant

Mr G Newton for the respondent

Stephen and Karen Murphy

Mr D Clothier for the respondents

Phillips Fox

Mr R S Butler for the respondent

Tower Life Australia Ltd

Solicitors:  No solicitor for the applicant

Dr O’Hair

redchip lawyers for the respondents

Bullivant’s Natural Health Products Pty Ltd

and Mr Bullivant

McInnes Wilson for the respondents

Stephen and Karen Murphy

Phillips Fox for the respondent

Phillips Fox

Blake Dawson Waldron for the respondent

Tower Life Australia Ltd

Hearing Date:              18 February, 1999

IN THE SUPREME COURT

OF QUEENSLAND

No.450 of 1992
Brisbane

Before             White J

[Bullivant’s Natural Health Products Pty Ltd ((ACN 010 008 616) v
 C F Planners Pty Limited (ACN 006 887 225)]

BETWEEN:

BULLIVANT’S NATURAL HEALTH PRODUCTS PTY LTD

(ACN 010 008 616)   

Plaintiff
AND:

C F PLANNERS PTY LIMITED (ACN 006 887 225)

First Defendant

AND:

MAURICE BERNARD BYRNE and ROBIN O’HAIR

Second Defendants

AND:

BERIMAH PTY LTD (ACN 005 905 895)

THE NEWS VENDING INSTITUTE INCORPORATED and

W HOLDINGS PTY LTD (ACN 005 936 265)

Third Defendants

AND:

DAVID VAUGHAN BULLIVANT

Third Party

BY ORIGINAL ACTION      

AND BETWEEN:

ROBIN O’HAIR

Plaintiff
AND:

BULLIVANTS NATURAL HEALTH PRODUCTS PTY LTD

(ACN 010 008 616)

Defendant

BY COUNTERCLAIM          

Writ No. 322 of 1996

AND BETWEEN:

ROBIN BRIAN O’HAIR

Plaintiff

AND:

TOWER LIFE AUSTRALIA LIMITED (ACN 004 979 426)

First Defendant

AND:

BRETT SCHMIDT

Second Defendant
AND:

RICHARD EDWARDS

Third Defendant
AND:

DAVID COMINOS

Fourth Defendant
AND:

GEOFFREY HARLEY

Fifth Defendant
AND:

DAVID RUSSELL

Sixth Defendant
AND:

DONALD MACGREGOR

Seventh Defendant
AND:

WARWICK MOWBRAY

Eighth Defendant
AND:

ABE ERDYNAST

Ninth Defendant
AND:

STEPHEN MURPHY

Tenth Defendant
AND:

KAREN MURPHY

Eleventh Defendant
AND:

TERREY BELL

Twelfth Defendant

AND:

GEOFFREY PUTLAND

Thirteenth Defendant
AND:

THE NEWS VENDING INSTITUTE INCORPORATED

Fourteenth Defendant
AND:

MORGAN McCONNAH (AUST) PTY LTD (ACN 009 832 428)

Fifteenth Defendant

Writ No. 10752 of 1998

AND BETWEEN:

ROBIN BRIAN O’HAIR

Plaintiff
AND:

PHILLIPS FOX (a firm)

First Defendants
AND:              

BULLIVANT’S NATURE HEALTH PRODUCTS PTY LTD

(ACN 010 008 616)   

Second Defendant
AND:

TOWER VICTORIA LIMITED (ACN 004 979 426)

Third Defendant

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 24 February 1999

1.  The applicant (“Dr O’Hair”) who is the second named second defendant seeks to have action no. 450 of 1992 consolidated with actions nos.322 of 1996 and 10752 of 1998. In each of the latter actions he is the plaintiff. That course is opposed by the other parties to the three actions represented on the summons. Mr Maurice Byrne, the first named second defendant, was not represented at the hearing but has written that he is in favour of consolidation. His letter suggests that he is concerned that all the issues between all the parties ought to be heard at the same time rather than for consolidation of the actions.

2.  The parties who are opposed to consolidation or even that the actions be heard together do so on a number of grounds:

·that proceedings no. 450 of 1992 are far more advanced than the other two and will be unduly delayed if consolidation occurs;

·that there are issues of no concern to some of the parties to the other actions and the additional expense to them would far outweigh any benefits;

·the state of Dr O’Hair’s pleadings suggests that there are few, if any, common questions to the three actions.

The Parties to the Various Proceedings

No. 450 of 1992 - Bullivant’s Proceedings

3.  The plaintiff (“Bullivant’s”) does not propose to proceed against the first defendant or the third defendants, all corporations. The other defendants are Mr Byrne and Dr O’Hair. Mr S Doyle SC appears for Bullivant’s and the third party (“Mr Bullivant”). Dr O’Hair has counterclaimed against Bullivant’s in these proceedings and issued third party proceedings against Mr Bullivant. Mr A Blow QC of the Tasmania Bar appears for Dr O’Hair.

No. 322 of 1996 - The Tower Life and Murphy Proceedings

4.  Dr O’Hair is the plaintiff in these proceedings. Tower Life Australia Limited (“Tower Life”) is the first defendant and Stephen & Karen Murphy are the tenth and eleventh defendants respectively. There are fifteen defendants and all but three are individuals, however, only the first, tenth and eleventh defendants have been served. I am informed that if there is consolidation the action will be discontinued against the other defendants.  Mr G Newton appears for the Murphys.  Mr R S Butler, solicitor, appears for Tower Life.

No. 10752 of 1998 - The Phillips Fox Proceedings

5.  In this action Dr O’Hair is the plaintiff, Phillips Fox, Bullivant’s solicitors until 17 February 1999, is the first defendant, Bullivant’s the second defendant and Tower Life the third defendant. Mr Clothier appears for Phillips Fox.

Bullivant’s Proceeding

6.  Bullivant’s commenced proceedings against, inter alia, Dr O’Hair by writ dated 30 March 1992. The statement of claim was delivered on 22 October 1992 and an amended statement of claim was delivered on 11 April 1996 containing relatively minor amendments. The first defendant (“CF Planners”) carried on the business of giving financial advice. Mr Byrne was a director of that company. Bullivant’s alleges that:

·Dr O’Hair and Mr Byrne on behalf of C F Planners made certain false, negligent and/or misleading representations with respect to the taxation consequences of Bullivant’s entering into certain insurance policies with Tower Life and a service contract with Mr Bullivant, its principal and the third party in 1991;

·As a consequence of the representations Bullivant’s entered into the policies with Tower Life and a service contract with Mr Bullivant. It paid $2.6M in premiums to Tower Life and incurred other costs and expenses associated with borrowings and loss of the use of money expended. Bullivants obtained a partial refund from Tower Life of the premiums of approximately $1.3M.

The Deputy Commissioner of Taxation gave a ruling allowing as a deduction the first year’s premium.

·C F Planners was Bullivant’s agent in effecting the Tower Life policies and in breach of its fiduciary obligations failed to disclose a commission of approximately $1.1M (a small commission only was allegedly disclosed) to be payable by Tower Life to it or at C F Planners’ direction to Mr Byrne and Dr O’Hair and each were knowingly involved in the breach of duty.

7.  On 23 November 1992 Dr O’Hair delivered a defence and counterclaim to the action. By this pleading:

·He denied acting on behalf of C F Planners at any time vis-à-vis Bullivant’s.

·He denied having made any of the representations set out in the statement of claim.

·He alleged that he was to be paid a set fee by the second named third defendant whether or not Bullivant’s entered into any agreement with C F Planners. The fee was to be paid:

“In respect of O’Hair’s expression of an opinion as to whether it was likely the plaintiff’s ability to attract external capital on favourable terms - debt or equity - when its audited account showed about TWENTYFIVE MILLION DOLLARS ($25,000,000) in goodwill and D V Bullivant [the third party] was described by the plaintiff as its principal “strength” and “opportunity”, would be enhanced if he were to be tied to the plaintiff, such goodwill consisting of numerous brands and product registrations backed by D V Bullivants qualifications,” para 4(e).

·He denied that there was any reliance on any representations made by him because Bullivant’s took other advice.

·That the premiums were allowed as a tax deduction by way of a ruling requested by Bullivant’s (pleaded by Bullivant’s).

·He alleges that the policy was terminated prior to the receipt of the taxation ruling.

·He alleges that there was no loss suffered by Bullivant’s.

8.  By his counterclaim Dr O’Hair alleges that Bullivant’s through Mr Bullivant made false, negligent and/or misleading representations concerning the academic qualifications of Mr Bullivant, the business, the level of goodwill and the amount of income of the company. Dr O’Hair alleges that he relied upon those representations in giving his “opinion” referred to in paragraph 4(e) and as a consequence has been sued and has thereby suffered loss and damage. Particulars of the opinion referred to in paragraph 4(e) of the defence and counterclaim have been sought on several occasions without success. On a plain reading of the pleading that opinion (whatever it was) in respect of  the subject matter described in paragraph 4(e) is not the same as  the representations and/or advice alleged to have been given by Dr O’Hair to Bullivant’s in Bullivant’s statement of claim.

9.  On 20 November 1992 Dr O’Hair issued a third party notice against Mr Bullivant. The pleading is not easy to follow, but the major allegation against Mr Bullivant is that he falsely represented his qualifications to Dr O’Hair in the field of alternative medicine. Dr O’Hair pleads that Mr Bullivant falsely represented these qualifications to Dr O’Hair:

“... in order to induce O’Hair to render a favourable opinion, which O’Hair so did, so as to justify to the insurance underwriters the appropriateness of the policy to him, establish valid commercial reasons for the plaintiff effecting the policy with the third party as a major commercial beneficiary of the arrangements, and to make it easier for the plaintiff to seek funds from bankers and other financiers by strengthening the value of the goodwill figure in the accounts,” para 5.

Relying on the representations as to academic qualifications “O’Hair expressed the aforesaid opinion” (para 8). The opinion is not set forth and although sought has not been provided by Dr O’Hair.

10.                  Dr O’Hair alleges that as a consequence of the fraudulent and/or negligent misrepresentations he has been sued by Bullivant’s and has suffered loss and damage. There is a curious allegation that since 28 June 1991 Mr Bullivant has continued to be involved in misleading or deceptive conduct in publications made to the public (para 20) and seeks an injunction restraining his (Mr Bullivant’s) involvement in Bullivant’s business, but what this has to do with Dr O’Hair now, who presumably has no connection with Bullivant’s is not made clear. Essentially what Dr O’Hair seeks is an indemnity against any claims which Bullivant’s may successfully litigate against him.

11.                  Mr Byrne delivered his defence on 22 June 1993. It is relatively straightforward and requires no further comment.  Discovery was given by Bullivant’s on 26 March 1993, by Mr Byrne on 8 September 1993, and by Dr O’Hair on 20 August 1993. Requests for particulars have been made of Mr Byrne’s defence and Dr O’Hair’s defence and counterclaim and the third party statement of claim together with interrogatories for the examination of Mr Byrne and Dr O’Hair. Correspondence in respect of the provision of the particulars and answers to interrogatories has ensued. On 30 November last year Mackenzie J ordered by consent that Mr Byrne and Dr O’Hair file and serve the requested particulars and answers to interrogatories by 4 December 1998. Leave was given to Bullivant’s to amend its statement of claim in accordance with the document which had been delivered on 11 April 1996. Particulars and answers to interrogatories were provided by Mr Byrne and Dr O’Hair in December 1998. There are summonses before the court which were to be heard in connection with this application for consolidation concerning the adequacy of the particulars and the answers to interrogatories. Those summonses were unable to be reached on 18 February and the parties are to provide written submissions. 

12.                  Mr G Barnes, the new solicitor for Bullivant’s and Mr Bullivant, deposes that once the issue of the interrogatories and particulars has been concluded there are no further interlocutory steps to be taken by his clients  and that the action will shortly  be ready to be placed on the callover list. If that were to occur, from my knowledge of the list, it is likely that it will be offered trial dates this year.

The Tower Life and Murphy Proceedings

13.                  These proceedings were commenced by a writ issued out of the registry in Rockhampton in 1996. I was informed that the matter was transferred to Brisbane at some unspecified time. The statement of claim was not delivered until 26 November 1998. As I have mentioned above it appears that only Tower Life and the Murphys have been served with process. I pass over the poor quality of the pleading and the assumption that a person reading it is familiar with Bullivant’s proceedings.  I note that paragraph 10 of the statement of claim states that a copy of the statement of claim in no. 450 of 1992 is served with the statement of claim in action no. 322 of 1996.

14.                  In effect

·Dr O’Hair pleads that Tower Life (and Berimah Pty Ltd the first named third defendant in action no. 450 of 1992, allegedly a Tower Life agent) made representations to Mr Byrne “and others” concerning the tax deductibility of its insurance policy premiums;

·that Tower knew that these representations would be passed on inter alia by C F Planners and Mr Byrne, to anyone who was connected with the proposed transaction involving Bullivant’s and Mr Bullivant;

·acting on the representations Bullivant’s placed a proposal for insurance with Tower Life;

·if Dr O’Hair is found to have made the representations alleged against him by Bullivant’s in action no. 450 of 1992 he did so induced by the negligent and/or misleading representations made by Tower Life and as a consequence has suffered loss and damage.

15.                   Although Mr Doyle submits that there is nothing in the pleading which alleges that Dr O’Hair acted relying upon any representations of Tower Life such an allegation can be teased out of the discursive paragraphs in the first part of the statement of claim.

16.                  With respect to the Murphys, it is alleged that they carried on business as accountants in New South Wales and audited Bullivant’s accounts for the year ended 30 June 1990 in which the goodwill was alleged to be in excess of $24M and provided a certificate to state that the accounts were prepared in accordance with Australian Accounting Standards.   Dr O’Hair complains that the intangible assets and goodwill recorded in the accounts were not recorded in accordance with the appropriate accounting standards (which he does not particularise), that the accounts did not provide a true and fair view of the state of the company and the audit certificate was thereby, inter alia, misleading and deceptive. It is further alleged that at the request of Bullivant’s the Murphys confirmed the goodwill figure and other “associated information” (not particularised).  It is alleged that the Murphys:

·knew that the confirmation and associated information would be given by Bullivant’s to persons giving it advice in respect of financial matters;

·that Dr O’Hair was such a person who relied upon the accuracy of the confirmation, associated information and/or audit certificate;

·was induced by it in giving his opinion (the opinion referred to in paragraph 4(e) in action no. 450 of 1992).

·had Dr O’Hair known of the misleading and inaccurate nature of that information he would not have rendered the opinion which he gave to Bullivant’s;

·as a consequence he had been sued and has suffered loss and damage which is equivalent to any liability which is found in him in the action by Bullivant’s.

17.                  Dr O’Hair further pleads that in 1991 and 1992 the Murphys gave wrong advice to Bullivant’s that the premiums paid in respect of the Tower Life policy were not tax deductible and as a consequence Bullivant’s terminated the Tower Life policy with the losses which it has sought to recover from Dr O’Hair.  In a rather shadowy way in paragraphs 44 and 45 a duty of care is alleged to those to whom Bullivant’s might pass on the information from the Murphys who might be advising Bullivant’s.

18.                  In this action Dr O’Hair again alleges that he is being sued about an opinion concerning the raising of capital by Bullivant’s which is not the representation or advice in respect of which Bullivant’s sues him in action no. 450 of 1992.

19.                  These are in effect third party proceedings wherein Dr O’Hair seeks, as I understand the pleading, to allege that Tower Life and the Murphys gave advice which was relied upon by Bullivant’s to its detriment and further that representations made by each to Bullivant’s was known by each of them to be likely to be given to persons in the position of Dr O’Hair who would rely on it in rendering advice to Bullivant’s, and in relying on that advice he has become the subject of a suit for damages.

20.                  This action is at a particularly early stage. A request for particulars has been sought by solicitors acting for the Murphys. Although there was a response on 22 January most of the requests have not been answered and it is likely that there will be further applications. The defence was delivered with the request for further and better particulars on 4 January 1999.

The Phillips Fox Proceedings

21.                  The writ in this action was issued on 19 November 1998 and the statement of claim delivered on 15 January 1999.

22.                  Dr O’Hair claims in the Phillips Fox proceedings that:

·Phillips Fox has conducted Bullivant’s proceedings for improper purposes:

·to conceal negligent conduct arising out of advice in respect of the tax deductibility of the premiums paid by Bullivant’s to Tower Life;

·to conceal a conflict of interest arising out of Phillips Fox acting for both Tower Life and Bullivant’s in respect of the settlement over the premiums and proceedings to set aside that settlement;

·to conceal a conflict of interest arising out of Phillips Fox acting for Mr A R Taylor, Mr Byrne’s trustee in bankruptcy  in action no. 450 of 1992 against Mr Byrne;

·to conceal Phillips Fox’s failure to provide adequate discovery in  Bullivant’s proceedings including tax returns and documents relating to the “favourable private taxation ruling”;

·to delay the progress of the action until the limitation period in respect of negligence had expired;

·by  failing to abandon the allegation that the premiums paid by Bullivant’s in respect of the Tower Life policies were not tax deductible even though a tax ruling had been obtained to the contrary effect;

·to minimise its liability in these matters.

·Phillips Fox has engaged in an abuse of the court’s process and breached its duty to the court by conducting action no. 450 of 1992.

·These proceedings have been conducted at the expense of Dr O’Hair and Phillips Fox has been unjustly enriched to the extent that it has obtained its professional fees from Bullivant’s in connection with the work performed in action 450 of 1992.

23.                  Dr O’Hair claims damages - compensatory, aggravated and extemporary - alternatively, his costs on an indemnity basis in defending the proceedings in no. 450 of 1992, alternatively, an account of the profits earned by Phillips Fox arising out of that action and declarations relating to the abuse of process of the court by Phillips Fox.

24.                  There is no allegation against either Bullivant’s or Tower Life in the statement of claim.  There are apparently only joined because they were the clients.

25.                  It is clear that the issues in the Phillips Fox case are quite different from those in Bullivant’s proceedings and the Tower Life and Murphy proceedings although they revolve around the same core issue of advice given to Bullivant’s in respect of its taxation position vis-à-vis the payment of premiums to Tower Life and its contract of service with Mr Bullivant.

Consolidation

26.                  Order 61 rule 5 of the Rules provides that causes or matters may be consolidated:

“... in any case in which it appears that substantially the same question is involved in all the causes or matters, or that the decision in one cause or matter would determine the other or others or that for some other reason it is desirable to make an order under this rule.”

The principles are not in dispute. There are many aspects of Dr O’Hair’s pleadings in the three actions which are unclear, prolix and, in some instances, embarrassing but this is not an application about the pleadings.  In essence the Tower Life and Murphy proceedings are in the nature of third party proceedings in which an indemnity is claimed in respect of any adverse judgment against Dr O’Hair in Bullivant’s proceedings. Credit will be a significant issue and the possibility of inconsistent findings on such matters is to be avoided.

27.                  The Phillips Fox proceedings give rise to issues that concern only that firm and Dr O’Hair. In essence they relate to his loss of reputation and financial losses arising from Bullivant’s proceedings.

28.                  Tower Life’s role in the advice which Bullivant’s alleges that it received from C F Planners, Mr Byrne and Dr O’Hair is relevant to a proper understanding of the various roles played by the parties. The Murphy’s negligence or inaccuracies in respect of the audit have not been particularised but I would infer that their part in the proceedings is discreet and somewhat peripheral. It would be inappropriate to have them engaged in a lengthy trial between Bullivant’s,

Tower Life, Mr Byrne and Dr O’Hair. I am however persuaded that the Tower Life and Murphy proceedings should become third party proceedings in Bullivant’s proceedings.

29.                  The concern of Bullivant’s, not without cause, is that if consolidation is to occur action no. 450 of 1992 will be unduly delayed. If the third party action against Tower Life and the Murphys does not make progress to keep pace with no. 450 of 1992 it may be ordered to be heard separately. If the third party proceedings involving the Murphys are to be heard at the same time as Bullivant’s claim an order can be made which limits their involvement in that aspect of the trial.  The pleadings are quite unsatisfactory in no. 322 of 1996 and will certainly give rise to a strike out application unless a competent pleader recasts them. However, if Dr O’Hair does not undertake to discontinue against the other defendants in no. 332 of 1996 then the order to consolidate will not be made. Nothing is known of their involvement in these proceedings.

30.                  The Phillips Fox proceedings raise issues unconnected with the other two actions except in a most general way. That action has just commenced and can conveniently proceed at its own pace or await the outcome of the other proceedings. It will serve no good purpose to delay the other proceedings and for a considerable time so as to accommodate it, as well as causing the other parties to incur unnecessary costs.

31.                  What I propose to order is that action no. 322 of 1996 be consolidated with action no. 450 of 1992 upon Dr O’Hair undertaking to discontinue against the defendants in that action other than Tower Life and the Murphys. Directions will need to be given for the further conduct of the proceedings and it is appropriate that the action be placed on the List of Supervised Cases.

32.                  The formal orders are that

Upon Dr O’Hair undertaking to the Court to discontinue his action against the 2nd to 9th defendants and 12th to 15th defendants in action no. 322 of 1996:

(i)Action no.450 of 1992 and action no. 322 of 1996 be consolidated with action no. 450 of 1992 being the substantive action.

(ii)The claims in action no. 322 of 1996 are to be reconstituted as third party proceedings in action no. 450 of 1992.

(iii)Any amendments which Dr O’Hair may be advised to make to his pleadings in the consolidated action be made by leave obtained on application made to the Court on or before 24 March 1999.

iv)Liberty to apply on the giving of 2 days notice in writing to each other party.

(vi)The 3 actions be placed on the List of Supervised Cases.

33.                  After hearing submission the orders as to costs are:

(i)The applicant, Dr O’Hair, pay the costs of and incidental to the application to consolidate of Phillips Fox to be taxed.

(ii)The costs of all other parties to be reserved.