Chaina v The Presbyterian Church (NSW) Property Trust (No 3)

[2009] NSWSC 1243

CITATION:	Chaina & Ors v The Presbyterian Church (NSW) Property Trust & Ors (No 3) [2009] NSWSC 1243
HEARING DATE(S):	13/11/2009
JUDGMENT DATE :	23 November 2009
JUDGMENT OF:	Hoeben J
DECISION:	Application of plaintiffs granted. Plaintiffs to pay costs of application and 80 percent of defendants' costs previously incurred.
CATCHWORDS:	PRACTICE AND PROCEDURE - matter being case managed - no hearing date yet allocated - application by plaintiff to adduce further expert and lay evidence - effect of application would be to substantially change evidentiary basis for proceedings - if application successful most of preparation previously performed by defendants would be wasted - likelihood of further substantial delay before case ready for hearing - application of Civil Procedure Act 2005 (CPA) - exercise of discretion under s 58 CPA - balancing competing factors - application granted - need for substantial costs order.
LEGISLATION CITED:	Civil Procedure Act 2005
CATEGORY:	Procedural and other rulings
CASES CITED:	Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Chaina & Ors v The Presbyterian Church (NSW) Property Trust & Ors [2008] NSWSC 290 Chaina & Ors v The Presbyterian Church (NSW) Property Trust & Ors (No 2) [2008] NSWSC 1056
PARTIES:	George Chaina - Second Plaintiff Rita Chaina - Third Plaintiff Proton Technology Pty Limited - Fourth Plaintiff Deluxe Chemicals Pty Limited - Fifth Plaintiff The Presbyterian Church (New SouthWales) Property Trust - First Defendant Robert Iles - Second Defendant Christine Alexander - Third Defendant Gordon Black - Fourth Defendant Ewen Brown - Fifth Defendant Richard Bull - Sixth Defendant Bruce Christian - Seventh Defendant Simon Fraser - Eighth Defendant Roy Johnston - Ninth Defendant William McLaren - Eleventh Defendant Philip Mitchell - Twelfth Defendant Tony Pfeiffer - Thirteenth Defendant Robert Richards - Fourteenth Defendant Harry Taylor - Fifteenth Defendant Peter Wolnizer - Sixteenth Defendant
COUNSEL:	Mr AJ Sullivan QC/Mr AP Cheshire - Plaintiffs Mr R Stitt QC/Mr GL Turner - Defendants
SOLICITORS:	McLachlan Thorpe - Plaintiffs Curwoods Lawyers - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Monday, 23 November 2009

20472/2002 – Mathew CHAINA & Ors v THE PRESBYTERIAN CHURCH (NSW) PROPERTY TRUST & Ors (No 3)

JUDGMENT

1 HIS HONOUR:

Nature of proceedings and application
The proceedings arise from the death of a schoolboy who drowned while attending a school camp on 23 October 1999. The second and third plaintiffs are the deceased’s father and mother. The fourth and fifth plaintiffs (“the company plaintiffs”) are family companies operated by the father and mother, who are the directors and sole shareholders. The sixteen defendants were all involved in conducting the school or the camp at the relevant time.

2 The parents claim damages for nervous shock occasioned by the deceased’s death. The company plaintiffs claim for loss of the services of the parents as principals, directors and managers of the business as a result of the injuries suffered by the parents. The company plaintiffs claim past and future economic loss by way of a decline in business and the resultant loss of profits. The claim is for damages per quod servitium amisit. The defendants have admitted liability for the deceased’s death, but otherwise challenge the basis for the company plaintiffs’ claim.

3 The company plaintiffs allege that because of the inability of the two parents as key employees to function effectively, they lost the opportunity to develop and market cleaning products. The company plaintiffs allege that the cleaning products had special characteristics and would have been successful in both the industrial and domestic markets. The company plaintiffs say that by 23 October 1999 they had completed the development of these products and have suffered a loss in excess of $100 million.

4 By Notice of Motion filed 21 August 2009 the company plaintiffs seek the following orders:

(i) That leave be granted to the company plaintiffs to file and serve further statements of corroborative witnesses in support of assertions of superior quality relating to the company plaintiffs’ domestic products.

(ii) That the company plaintiffs be granted leave to file and serve expert evidence relating to the performance and manufacture of the company plaintiffs’ domestic products.

The applications are opposed.

Factual background

5 It is necessary to set out in more detail how the company plaintiffs put their case. The following is a summary of the claim.

6 Since 1982 the company plaintiffs produced detergents and cleaning products and related services for the industrial, laundry and cleaning markets. In 1993 a serious fire at the company plaintiffs’ business premises destroyed a large amount of plant and equipment and severely disrupted the business.

7 In the period following the fire, Mr and Mrs Chaina comprehensively reviewed all aspects of the existing business in order to improve business operations. Once the review and implementation of the changes to the existing business were complete, it was proposed to relaunch the industrial business.

8 As of October 1999 the review of the industrial business was almost complete and the commencement of the marketing campaign was imminent. However, due to the death of their son, Mr and Mrs Chaina suffered psychiatric injury and the proposed industrial products relaunch did not proceed.

9 Although the company plaintiffs proposed to relaunch the industrial business, as at the date of the deceased’s death there already existed a successful business involving the production of detergents and cleaning products and related services for the industrial, laundry and cleaning markets. The claim made by the company plaintiffs in relation to industrial products, relates to both loss of profits associated with the failure to proceed with the industrial product relaunch and also the effect on the existing business.

10 It was the company plaintiffs’ case that in about 1995 Mr and Mrs Chaina decided to expand the business into the domestic product area. This involved the development of new products. The basis of the formulations for these products, including the use of stabilised enzymes in liquid form, was highly confidential technology which had been developed by Mr Chaina.

11 In the period from 1985 until October 1999 Mr and Mrs Chaina took a number of steps to achieve the proposed domestic product launch. They had some experience with the sale of domestic products and had previously supplied such products to the ANA Hotel and had produced a nappy wash which was sold in Woolworths supermarkets. Due to the death of the deceased and the consequent injuries suffered by Mr and Mrs Chaina, the proposed domestic product launch did not proceed.

12 The company plaintiffs claim that the domestic products would very likely have gained national distribution with major supermarkets. The company plaintiffs say that they have lost the opportunity of developing and marketing these domestic products and of relaunching the industrial products.

13 Up to the beginning of 2009, the company plaintiffs had collected and served expert evidence of marketing potential to support their case that they would have been able to generate a very significant income from the products. This evidence was based on the assumption that the products (both industrial and domestic) were superior products and could be manufactured on a cost efficient basis.

14 Until that date the only evidence as to the quality of the products and their properties was that contained in the witness statement of George Chaina dated 2 September 2005. That statement was based on Mr Chaina’s academic qualifications and his experience in the domestic and industrial products industry.

15 The following is a summary of events leading up to the present application.

16 An issue in dispute by the parties has been the existence and content of the formulae. The company plaintiffs said that these were in existence in 1999 and were ready to be utilised for the manufacture and marketing of both domestic and industrial products. The company plaintiffs opposed the provision to the defendants of those formulae.

17 That dispute formed the subject of my judgment of 7 April 2008 (Chaina & Ors v The Presbyterian Church (NSW) Property Trust & Ors [2008] NSWSC 290). I found in favour of the defendants and made orders requiring the production by the company plaintiffs of the formulae.

18 Subsequent to that judgment, the company plaintiffs objected to the defendants using the services of Dr Wynn-Hatton as an expert in the proceedings. That issue was decided in the defendants’ favour in my judgment of 13 October 2008 (Chaina & Ors v The Presbyterian Church (NSW) Property Trust & Ors (No 2) [2008] NSWSC 1056). I ordered that Dr Wynn-Hatton was to be given access to the plaintiffs companies’ formulae, subject to the implementation of a strict confidentiality regime.

19 Messrs McLachlan Thorpe, the company plaintiffs’ present solicitors, is the third firm of solicitors to act for them in these proceedings. They came into the proceedings in approximately November 2008.

20 Prior to them acting, the company plaintiffs had been represented by Messrs Mallesons Stephen Jaques and Sarvaas Ciappara. The company plaintiffs have commenced proceedings against Mallesons based on their conduct of these proceedings and it may be that the company plaintiffs will also bring proceedings against Sarvaas Ciappara.

21 Between November 2008 and August 2009 the company plaintiffs experienced difficulty in providing copies of the formulae upon which they wished to rely. In relation to those which were provided, Dr Wynn-Hatton was of the opinion that they were deficient in a number of respects. Generally speaking, the company plaintiffs were consistently out of time in complying with Court orders in relation to the production of formulae documents and other information.

22 In the course of trying to comply with the orders of the Court, Messrs McLachlan Thorpe learned that break-ins had occurred at the company plaintiffs’ premises at Broadhurst Road, Ingleburn and at Mort Street in Lithgow. At both those premises plant, machinery and equipment had been stolen and damaged. It was necessary for them to provide particulars of that equipment and the extent of the damage.

23 In June 2009 they learned of the existence of a substantial quantity of additional documentation, much of which was discoverable. The additional documentation was substantial, comprising 50 boxes of documents. This resulted in Messrs McLachlan Thorpe filing the “Third Supplementary List of Documents” on 14 August 2009.

24 One of the reasons Messrs McLachlan Thorpe had difficulty in complying with Court orders, was the state of health of George Chaina. Evidence was placed before the Court from Dr Wevers, psychiatrist, to the effect that Mr Chaina continued to suffer from serious psychiatric and psychological difficulties which were exacerbated by periodic bouts of alcohol abuse. Instructions were difficult to obtain and delay was often encountered.

25 A significant development occurred in August 2009 when Messrs McLachlan Thorpe apparently learned that Mr Chaina did not have any university or other academic qualifications. This resulted in them advising the solicitors for the defendants that “the plaintiffs will not be asserting at the hearing that the second plaintiff, George Chaina, had, at any relevant time, any university qualifications.”

Submissions

26 The company plaintiffs submitted that the orders which they sought would not change their claim or the way in which it was pleaded. What was being sought was the opportunity to prove that claim in a way different to that which had been used to date. Instead of relying entirely upon the observations and opinions of Mr Chaina, the company plaintiffs wished to rely upon the observations of approximately 40 laypersons. Instead of relying upon the opinions of Mr Chaina, the company plaintiffs wished to rely upon the opinions of two experts, Mr Williams and Mr Van Dyke.

27 The evidence of Mr Williams, an industrial chemist, goes to support the assertion of the superior performance of the domestic products. Most other expert evidence, and therefore the viability and productivity of the business, depends upon that proposition being established. The evidence of Mr Williams goes essentially to establishing the assumptions upon which previous expert opinion concerning the domestic products has been based.

28 The evidence of Mr Van Dyke is along similar lines. His speciality is in industrial product performance. It is intended that his evidence will perform the same function in respect of the industrial products as that of Mr Williams in respect of the domestic products.

29 The company plaintiffs accept that if their application is successful, it will take until the end of February 2010 at the earliest before this additional lay and expert evidence will be available. They accept that inevitably further delay will occur while the defendants endeavour to meet this new material.

30 The company plaintiffs seek to justify the application on the following bases.

31 They accept that considerable delay has already been incurred in providing important information such as the product formulae and details of manufacturing processes and of what manufacturing plant and equipment was available in 1999. They submit that it was not possible to obtain the expert opinions of Mr Williams and Mr Van Dyke until the product formulae were obtained. Delays have occurred in that process for the reasons previously referred to, particularly the health of Mr Chaina.

32 Messrs McLachlan Thorpe also frankly submit that they disagreed with the approach followed by those lawyers previously preparing the matter for the company plaintiffs. In particular, they disagreed with the assumptions upon which other expert evidence depended being established almost entirely by the evidence of Mr Chaina as set out in his statement of September 2005.

33 They submit that the risks inherent in that approach have now eventuated as a result of the revelations of August 2009 that Mr Chaina does not have university or other academic qualifications. If, as they anticipate, Mr Chaina will be heavily cross-examined as to credit, the assumptions upon which previously obtained expert evidence depends may not be capable of being established. They now seek to establish those matters by other means, i.e. the additional lay and expert evidence.

34 The company plaintiffs submit that unless they are allowed to adduce this additional evidence, they may well not be able to establish their case. They accept that to some extent this is a problem of their own making, or at least the result of an approach taken by the previous legal advisers. They submit that they do have a real and substantial case to put before the Court and as a matter of justice, they should be allowed to adduce appropriate evidence in order to establish that case.

35 The defendants oppose the orders for a number of reasons. The first is that the company plaintiffs have until this application so structured their claim that it depended upon the statement of Mr Chaina. That statement comprised the following elements:

(a) That Mr Chaina possessed academic qualifications and was professionally and scientifically qualified as an expert in the relevant field.

(b) That he had personally conducted and performed all the necessary research and development which created these products.

(c) That after those products had been brought into existence by him, he had compared their performance and characteristics with competitors and had concluded that his products were superior.

36 On the basis of this material, the experts retained by the company plaintiffs whose reports have previously been served, calculated a huge loss of profits.

37 The defendants submit that this approach was deliberately chosen because of the difficulties which it posed for them in meeting it. Such assertions by Mr Chaina, of their nature, were difficult to refute. They depended very much upon Mr Chaina being accepted. If he were, then the claim of the company plaintiffs was largely made out.

38 The revelation that Mr Chaina does not have any university or academic qualifications must place in doubt many of his other assertions. This was a risk always inherent in the way in which the case on behalf of the company plaintiffs had been conducted up to this point in time. The defendants submit that the company plaintiffs should accept the consequences of this deliberate tactic which has been followed for the last seven years and should not be allowed at this late stage to change the entire evidentiary basis for their claim.

39 The second reason for opposing the applications is that the additional expert evidence which has been foreshadowed will inevitably be based on formulae which are of themselves defective. The existence and content of the formulae depend on the evidence of Mr Chaina being accepted. The formulae are not complete. Mr Williams and Mr Van Dyke have to reconstruct products from these formulae as they were alleged to have been in 1999 in circumstances where many of the original ingredients can no longer be sourced. The defendants submit that even if the company plaintiffs are allowed to adduce this expert evidence, it will have little probative value.

40 The defendants submit that the last of the evidence on behalf of the company plaintiffs was served in October 2006. Before that date, but most particularly since that date, the defendants have been seeking particulars and documents to enable them to serve their evidence in chief to meet that evidence. Their efforts in that regard have been frustrated by the conduct of the company plaintiffs in refusing to provide the formulae and when failing in that endeavour, in challenging their use of Dr Wynn-Hatton. Nevertheless, the defendants have endeavoured to meet the case which was put forward by the company plaintiffs. If this application is successful, almost all of that work by the defendants will have been wasted.

41 The defendants rely upon the provisions of the Civil Procedure Act 2005 (CPA) in particular, sections 56-59 and s 61. Those sections stress that “the overriding purpose of this Act and of the rules of Court in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings” (s 56(1)).

42 The defendants submit that the giving of leave to file fresh evidence in chief more than seven years after the commencement of the proceedings, after extensive case management by the Court and ten years after the accident, would be contrary not only to the spirit of those sections but to their content.

43 In that regard the defendants rely upon the decision of the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27. The defendants relied upon the statement of principle by the plurality as follows:

“111 An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.

112 A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
113 In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy . It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
114 Rule 21 of the Court Procedure Rules recognises the purposes of case management by the courts. It recognises that delay and costs are undesirable and that delay has deleterious effects, not only upon the parties to the proceedings in question, but to other litigants. The Rule's objectives, as to the timely disposal of cases and the limitation of cost, were to be applied in considering ANU's application for amendment. It was significant that the effect of its delay in applying would be that a trial was lost and litigation substantially recommenced. It would impact upon other litigants seeking a resolution of their cases. What was a "just resolution" of ANU's claim required serious consideration of these matters, and not merely whether it had an arguable claim to put forward. A just resolution of its claim necessarily had to have regard to the position of Aon in defending it. An assumption that costs will always be a sufficient compensation for the prejudice caused by amendment is not reflected in r 21. Critically, the matters relevant to a just resolution of ANU's claim required ANU to provide some explanation for its delay in seeking the amendment if the discretion under r 502(1) was to be exercised in its favour and to the disadvantage of Aon. None was provided.”

44 In line with those sections of the CPA and the statements of principle in Aon, the defendants submit that they have devoted significant costs and resources over three years since October 2006 to preparing to meet the case thus far put forward by the company plaintiffs. They submit that if the company plaintiffs are permitted to serve further evidence, they will be forced to incur further significant costs and will likely be obliged to seek further orders for particulars and discovery. They will need to carry out their own manufacturing and testing at great expense.

Consideration

45 In relation to how the claim by the company plaintiffs has been prepared in the past, I am not prepared to find the Machiavellian motivation which has been suggested. What is apparent, however, and what has been conceded by the company plaintiffs is that the way in which the evidence in the matter was previously structured was almost entirely dependent upon the acceptance of the evidence of Mr Chaina and was a high-risk tactic. That risk has now eventuated and it provides, to some extent, an explanation for why the company plaintiffs now wish to change how they propose to prove their case.

46 While there is considerable force in the defendants’ submission that the deficiencies in the formulae so far produced are such that Messrs Williams and Van Dyke will have difficulty in accurately reproducing these products as they were in 1999, this is a matter for the trial and not a matter which I can decide at this stage. This is particularly so when the evidence of Messrs Williams and Van Dyke is not complete on this issue. The evidence before me is not such as would enable me to decide that the granting of leave to adduce further expert evidence would be futile.

47 There is no doubt and in oral submissions this was conceded, that the effect of this application by the company plaintiffs is to significantly change the way in which the case on behalf of the company plaintiffs has thus far been presented. The defendants’ submission that much of the work which they have done to date will have been wasted is correct. That, however, is a matter which can be appropriately remedied by a costs order.

48 The real problem facing the company plaintiffs is that referred to in Aon, i.e. the need to balance the entitlement of the company plaintiffs to properly present their claim against competing considerations such as substantial delay, wasted costs, the concerns of case management and the interest which the public has in cases being expeditiously dealt with. In order to carry out that process, it is necessary to have regard to the stage of preparation which these proceedings have reached.

49 The tragic death of the young boy which is the genesis of these proceedings took place over ten years ago. The proceedings were commenced in October 2002. A number of complex and factual legal issues emerged which had to be dealt with between October 2002 and October 2006. While minds might differ as to the wisdom of the points taken by the company plaintiffs in relation to the provision of the formulae and the appropriateness of Dr Wynn-Hatton continuing to provide expert opinion for the defendants, compelling arguments were put to support them and these were matters which the company plaintiffs were entitled to raise. The real delay, however, is that which has occurred since October 2008 and is likely to occur over the next twelve months before this matter is ready to be allocated a hearing date.

50 In relation to the delay in the last twelve months, I am sympathetic to the difficulties confronted by Messrs McLachlan Thorpe in obtaining instructions. What is difficult to understand, however, is why these formulae, which seem to me to be so fundamental to the case of the company plaintiffs even on the case as previously put, were not ready and available for production to the defendants if so ordered. One would have thought that before commencing litigation of this kind, an essential step would have been to collect and collate these formulae. For reasons not at all clear to me, and which clearly Messrs McLachlan and Thorpe cannot explain, this was not done. Even now much of the delay in the future will arise because products will have to be reconstructed or reproduced from these formulae many of which have still not been provided to the defendants.

51 That having been said, the circumstances of this case are rather different to those which were considered by the High Court in Aon. Undoubtedly, time spent in case management has been wasted. Hearing time, however, has not. While the public have an interest in matters proceeding expeditiously and undue delay not occurring, some allowance has to be made for the complexity of matters and for changes which inevitably occur in their preparation. There is a real difference between a matter being fixed for hearing on the basis of a specific pleaded case and a matter where the case pleaded has not changed but a need has arisen to supplement, or in this case, significantly change the emphasis and structure of the evidence, at a time when the case is still being prepared and a hearing date not yet allocated.

52 Other than the inevitable prejudice which arises by the effluxion of time when delay occurs, the defendants have not identified any specific prejudice which cannot be overcome by a costs order if the application by the company plaintiffs is successful. Nevertheless, the existence of such a general prejudice needs to be recognised.

53 The decision which the Court has been asked to make is essentially one governed by s 58 CPA. That section relevantly provides:

“(1) In deciding:

(a) whether to make any order or direction for the management of proceedings, including:

(i) any other order of a procedural nature,
…
(b) the terms in which any such order or direction is to be made,
the court must seek to act in accordance with the dictates of justice.
(2) For the purpose of determining what are the dictates of justice in a particular case, the court:
(a) must have regard to the provisions of sections 56 and 57, and
(b) may have regard to the following matters to the extent to which it considers them relevant:
(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),
(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,
(vii) such other matters as the court considers relevant in the circumstances of the case.”

54 For the reasons set out in para [50] hereof, I can sympathise with the concern and doubts which must have been felt by the legal advisers of the company plaintiffs as they sought to comply with Court orders and the reasonable requests for particulars received from the defendants during the first half of 2009. As Mr Hodges sets out in his affidavits, particularly that of 3 September 2009, the absence of any previous attempts to collect and collate the product formulae must have been a matter of serious concern. I have already referred to the significant dependence of the case at that point in time on the evidence of Mr Chaina.

55 The reality is that unless this application by the company plaintiffs is granted, their case may well fail for lack of evidence. There are as the defendants pointed out a number of reasons for this. Some of them would seem, at least on the information before me, to be due to decisions made by earlier legal advisers and also the false assertion by Mr Chaina in his statement of his university and academic qualifications. Nevertheless, the effect of a refusal to grant the application may well sound the death knell of the case for the company plaintiffs.

56 What the Court has to do in the exercise of its discretion is to balance that likely result against the admonition in sections 57 and 58 to achieve “the just determination of the proceedings”. Implicit in that requirement is that the proceedings be properly run and be decided on their merits.

57 What the Court also has to take into account are the other matters referred to in those sections, such as the efficient disposal of the business of the Court and the efficient use of available judicial and administrative resources. The Court has to take into account that the reason that the company plaintiffs find themselves in this parlous position is largely of their own making.

58 On the material before me, and given that the case is still in a state of preparation and no hearing date has been allocated, and given the potentially disastrous consequences for the company plaintiffs if the applications were not granted, I have concluded that the company plaintiffs should receive the indulgence which they seek. Their success in these applications, however, will not be without cost. During the time that I have been case managing the matter the defendants have consistently complied with Court orders and done their best to efficiently conduct this litigation and move it forward. The defendants to the extent that the Court is able to do so should not be disadvantaged by the granting of these applications.

59 The complaint by the defendants that much of the work which they have done to date will have been wasted if these applications are granted is correct. I accept as the company plaintiffs submitted that some of the work which has been done to date will not be wasted, such as the inspection of documents which occurred before 2009. Unfortunately, however, much of that work will need to be repeated because of the necessity to take account of the additional evidence and assess the extent to which that changes the case of the company plaintiffs and to what extent it needs to be answered by the defendants.

60 In making a costs order in favour of the defendants, I wish to avoid a situation where yet more time is spent in Court, either now or in the future, with argument taking place as to what work by the defendants was wasted and what was not. I propose to make a costs order which I trust will be capable of being implemented in a simple way without the need for a lengthy costs assessment process. I should also make clear that the costs order which I make only relates to the claim by the company plaintiffs and it excludes any costs orders previously made in relation to the claims by those companies.

Conclusion

61 I propose to grant the application by the company plaintiffs. The orders which I make are as follows:

(1) Orders 1(b) and 2 made by the Court on 9 June 2009 are to be varied in relation to those industrial products which the company plaintiffs intended to relaunch in the market as at October 1999 by extending the time for compliance for service of the balance of the industrial product formulae and the method of manufacture documentation.

(2) Order 5 made by the Court on 9 June 2009 is to be varied by:

(a) Extending the time for compliance for the service of any further statement of George Chaina in support of assertions of superior quality relating to the company plaintiffs’ domestic products.
(b) Extending the time for compliance for the service of any further statements of corroborative witnesses in support of assertions of superior quality relating to the company plaintiffs’ domestic products.
(c) Extending the time for compliance for the service of any expert evidence relating to performance and manufacture of the company plaintiffs’ domestic products.


(3) To the extent necessary, the company plaintiffs have leave to file and serve the evidence set out in paragraphs 2(a) – (c).

(4) The company plaintiffs have leave to file and serve expert evidence relating to the performance and manufacture of the company plaintiffs’ industrial products.

(5) The company plaintiffs are to prepare a draft timetable in relation to the provision of the above evidence and to serve same on the solicitors for the defendants by 4pm on Friday, 27 November 2009.

(6) The solicitors for the company plaintiffs and defendants are to confer in relation to that timetable and if agreement cannot be reached, the defendants are to serve on the solicitors for the company plaintiffs their alternative timetable by 4pm on Friday, 4 December 2009.

(7) The company plaintiffs are to pay 80 percent of the defendants’ costs incurred from the date when the defendants accepted liability for the death of the deceased up to 21 August 2009, being the date on which this motion was filed. This costs order is confined to the costs incurred by the defendants in defending the claim brought by the company plaintiffs and does not apply to costs incurred in relation to any of the personal injury claims brought by members of the Chaina family. This costs order is subject to any other costs orders previously made in relation to the claim brought by the company plaintiffs.

(8) The company plaintiffs are to pay the costs of this application.

(9) This matter is to come back before me for directions at 9.30am on Monday, 7 December 2009.

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