Crimson SRL v Claudia Shoes Pty Ltd (No 5)

[2007] FMCA 1768

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CRIMSON SRL & ANOR v CLAUDIA SHOES PTY LTD & ORS (No.5) [2007] FMCA 1768

PRACTICE AND PROCEDURE – COSTS – Whether indemnity costs warranted – whether successful sixth respondent should be awarded costs.

Federal Magistrates Court Rules 2001, r.21.04

Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 46 FCR 225
Crimson SRL & Anor v Claudia Shoes Pty Ltd & Ors (No.3) [2007] FMCA 1555
Ford Motor Company of Australia Ltd v Jefferson Ford Pty Ltd [2007] FCA 998
Hamod v New South Wales (2002) 188 ALR 659
Mead v Watson as Liquidator for Hypec Electronics [2005] NSWCA 133 NMFM Property Pty Ltd & Ors v Citibank Ltd(No.2) (2001) 109 FCR 77
Pacific Publications Pty Ltd v Next Publications Pty Ltd [2005] FCA 971

First Applicant: CRIMSON SRL

Second Applicant: LYNCH FASHION MARKETING PTY LTD (ACN 010 466 485)

First Respondent: CLAUDIA SHOES PTY LTD
(ACN 050 235 491)

Second Respondent: CLAUDIA ASSERAF

Third Respondent: SALAMAN ASSERAF

Fourth Respondent: YL IMAGE HOUSE PTY LTD
(ACN 113 824 230)

Fifth Respondent: XIAO LIN DONG

Sixth Respondent: YI LI QIAN

File number: MLG 1432 of 2006

Judgment of: Riley FM

Hearing date: 14 September 2007

Date of last submission: 19 October 2007

Delivered at: Melbourne

Delivered on: 21 November 2007

REPRESENTATION

Counsel for the Applicants: Michael Wise

Solicitors for the Applicants: Middletons

Counsel for the Fourth, Fifth and Sixth Respondents: Mr Young

Solicitors for the Fourth, Fifth and Sixth Respondents: Dixon Holmes du Pont Lawyers

ORDERS

1. The fourth respondent pay the applicants’ costs of the injunction application fixed in the sum of $3,919.

2. The costs order made on 19 October 2007 is stayed.

3. The fourth and fifth respondents pay the applicants the sum of $21,396.94.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1432 of 2006

CRIMSON SRL

First Applicant

And

LYNCH FASHION MARKETING PTY LTD (ACN 010 466 485)

Second Applicant

And

CLAUDIA SHOES PTY LTD (ACN 050 235 491)

First Respondent

And

CLAUDIA ASSERAF

Second Respondent

And

SALAMAN ASSERAF

Third Respondent

And

YL IMAGE HOUSE PTY LTD (ACN 113 824 230)

Fourth Respondent

And

XIAO LIN DONG

Fifth Respondent

And

YI LI QIAN

Sixth Respondent

REASONS FOR JUDGMENT

1. These are the reasons for the costs orders in the proceedings between the applicants and the fourth, fifth and sixth respondents up to and including the determination of liability. Judgement was given in the principal proceeding on 14 September 2007: Crimson SRL & Anor v Claudia Shoes Pty Ltd & Ors (No.3) [2007] FMCA 1555. The proceedings concerned passing off and breaches of the Trade Practices Act 1974 and the Fair Trading Act 1987 (NSW). The applicants substantially succeeded in relation to liability against the fourth and fifth respondents but not the sixth respondent. The position of the first, second and third respondents was considered separately. The question of the quantum of damages payable by the fourth and fifth respondents is yet to be determined.

2. The applicants submit that the fourth, fifth and sixth respondents should pay the costs of the injunction application, the summary disposal applications and the trial on an indemnity basis. The fourth, fifth and sixth respondents submit that:

   a)the fourth respondent should pay the applicants’ costs of the injunction application on the Federal Magistrates Court scale;

   b)the applicants should pay the fourth, fifth and sixth respondents’ costs thrown away by reason of the amendment to the statement of claim and application;

   c)

   the applicants should pay the sixth respondent one third of the costs of the fourth, fifth and sixth respondents incurred after

   
   21 December 2006

   on the Federal Magistrates Court scale; and

   d)the fourth and fifth respondents should pay the applicants 60% of the costs from after the injunction application on 21 December 2006 to and including 13 September 2007 (other than reserved costs which are addressed separately) calculated on the Federal Magistrates Court scale.

3. Accordingly, there are a number of discrete components to the question of costs in this case:

   a)firstly, the reserved costs of the injunction application;

   b)secondly, the reserved costs of the amendment to the statement of claim and application on 28 February 2007;

   c)thirdly, the reserved costs of the summary disposal applications;

   d)fourthly, whether the fourth and fifth respondents should pay the applicants’ costs on an indemnity basis or in accordance with the Federal Magistrates Court scale;

   e)fifthly, whether any and if so what costs should be paid to or by the sixth respondent.

A.       The injunction application

1. On 21 December 2006, an injunction was issued against the fourth respondent, restraining it from, among other things, selling counterfeit garments under the name PianuraStudio. The costs of the day were reserved. In the principal proceeding, it was found that the fourth respondent had in fact engaged in the alleged misconduct.

2. The fourth, fifth and sixth respondents note that the fifth and sixth respondents had not been served with the application or statement of claim at the time of the injunction hearing and took no part in the injunction hearing. They submit that the fourth respondent alone should pay the applicants’ costs of the injunction calculated on the Federal Magistrates Court scale. The applicants argue that the fourth, fifth and sixth respondents jointly and severally should pay the costs of the injunction application on an indemnity basis.

3. In the vast majority of cases, it is appropriate to order costs on a party- party basis. Nevertheless, indemnity costs may be ordered if they are warranted by “some unusual or special feature in the case”: Pacific Publications Pty Ltd v Next Publications Pty Ltd [2005] FCA 971. This court has undoubted power to order indemnity costs in an appropriate case. Some such cases were identified by Sheppard J in Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 46 FCR 225 at 233-4 as follows:

   ... it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152); evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp (supra)); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Keng (unreported, Court of Appeal, NSW, Kirby P, Priestley JA, Cripps JA, No 40744/1992, 27 September 1993) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records (supra)). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.

4. In Ford Motor Company of Australia Ltd v Jefferson Ford Pty Ltd [2007] FCA 998, Jessup J apparently cited with approval and applied a passage from Hamod v New South Wales (2002) 188 ALR 659 at 665 per Gray J:

   Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs.

5. On the other hand, in NMFM Property Pty Ltd & Ors v Citibank Ltd(No.2) (2001) 109 FCR 77, Lindgren J said at [56]:

   The ordinary rule is that an award of costs is on the party and party basis, and that it is only in a special case that the discretion to depart from that rule will be properly exercised: Venture Industries at 153 per Black CJ, 158 per Cooper and Merkel JJ. In my opinion, there is no counterpart ordinary rule that in the absence of special circumstances indemnity costs will be ordered where the losing party was guilty of ethical or moral delinquency in the antecedent facts which have given rise to the litigation. Even in a proved case of fraud, for example, in my opinion the presumption is that a costs order against the fraudulent party will be on the party and party basis. The conduct of a party that is relevant to the issue of indemnity costs is the party's conduct as litigant. But, as noted below, the knowledge that a party has, including knowledge of his or her past conduct, may be relevant to an assessment of his or her conduct as litigant. (emphasis in original)

6. That passage was cited and followed by the New South Wales Court of Appeal in Mead v Watson as Liquidator for Hypec Electronics [2005] NSWCA 133 at [9], where Sheller, Ipp and Tobias JJ went on to say:

   ... the impugned conduct of the party against whom such an award of indemnity costs is sought must be connected with the litigation itself. In particular, it must be related to the way the litigation is conducted. It is thus insufficient that the party against whom the award is sought has engaged in unconscionable conduct or breaches of fiduciary duty in a particularly deplorable way. The latter conduct comprises the subject matter of the litigation rather than a delinquency in its conduct.

7. The fourth, fifth and sixth respondents point out that the fact that the fourth and fifth respondents have been found to have engaged in selling counterfeit garments, however reprehensible that conduct might be, has no bearing on whether indemnity costs should be awarded against them. Rather, the fourth, fifth and sixth respondents submit that the applicants must point to conduct in the litigation that warrants an indemnity costs order. The applicants rely on a number of matters which are described later in these reasons to support their claim for indemnity costs. All of those matters relate to events which occurred after the injunction application was heard and determined.

8. In my view, the subsequent events do not warrant an indemnity costs order being made in respect of the injunction application. The application was opposed by the fourth respondent, but overall proceeded in the normal way. The fourth respondent could have consented to the injunction, but it was certainly under no obligation to do so. The mere fact of opposing the application does not warrant a costs order on an indemnity basis. The fifth and sixth respondents had not been served when the injunction was granted. In all the circumstances, I consider that the fourth respondent alone should be required to pay the applicants’ costs of the injunction on the Federal Magistrates Court scale. The application was an interim hearing as a summary event. Accordingly, by my calculation, the appropriate amount is $1,250, together with the daily hearing fee of $1,500 plus an advocacy loading of $750 and the filing fee for the injunction application being $419, making a total of $3,919.

B.       The amendment

1. An order was made on 22 February 2007 for the applicants to have leave to file and serve an amended application and an amended statement of claim in the form provided to the solicitors for the fourth, fifth and sixth respondents by letter dated 14 February 2007. There were also orders made for the filing and service of a request for further and better particulars and a response to that request. The costs of the fourth, fifth and sixth respondents with respect to the amendment to the statement of claim and application were reserved. The fourth, fifth and sixth respondents had not filed defences at the time the orders were made on 22 February 2007.

2. The fourth, fifth and sixth respondents argue that they should be paid $450 by the applicants because the fourth, fifth and sixth respondents needed to file and serve an additional request for particulars in relation to the amended statement of claim. I gather that the fourth, fifth and sixth respondents had previously served an informal request for particulars. The amendments largely added a copyright claim. That claim was not pursued at trial or in the summary judgement application. The request for particulars that was filed and served dealt extensively with the copyright claim but also addressed the unamended parts of the statement of claim. I estimate that two thirds of the request for particulars concerned the copyright claim and one third addressed the pre-existing parts of the statement of claim.

3. All in all, I consider that the fourth, fifth and sixth respondents were put to additional expense by reason of an amendment that was not pursued. In the circumstances, I consider that it is appropriate to depart from the usual rule that reserved costs follow the event. There are no particular items in the Federal Magistrates Court scale for the preparation of particular documents. The claim of the fourth, fifth and sixth respondents has been verified with a copy off counsel's fee slip in the sum of $450. I consider that it is appropriate that the applicants pay two thirds of that amount to the fourth, fifth and sixth respondents.

C.       The summary disposal applications

1. The fourth, fifth and sixth respondents brought a summary dismissal and strike out application against the applicants. It was partially successful, in that the claim in so far as it alleged that the fourth, fifth and sixth respondents manufactured the infringing garments was dismissed. However, the vast bulk of the summary dismissal and strike out application brought by the fourth, fifth and sixth respondents was unsuccessful. The application was initially listed for hearing on

   
   

   18 May 2007 but was adjourned to 30 May 2007 to enable the fourth, fifth and sixth respondents time to file and serve their affidavits of documents, which were then overdue, and to respond to a notice to produce, which had been served shortly before the hearing on 18 May 2007. The applicants filed an application for summary judgment which was also returnable on 30 May 2007. At that hearing, the fourth, fifth and sixth respondents declined an opportunity to file any affidavit material, and relied on certain technical points, including the paucity of evidence about the incorporation in Italy of the first applicant. The court’s decision was reserved.

2. After the hearing, and without leave, the applicants filed a further submission on the question of the incorporation of the first applicant. The fourth, fifth and sixth respondents were asked to indicate whether they wished to give any response to the applicants’ submission by

   
   6 June 2007

   and to file any such response by 8 June 2007. No response was received and the parties were notified on 12 June 2007 that judgment would be handed down the following morning. Later on 12 June 2007, an affidavit sworn on 8 June 2007 by the solicitor for the fourth, fifth and sixth respondents was delivered to chambers. It exhibited an uncertified translation of a purported agreement between the sixth respondent and Yili’s Fashion Pty Ltd and a Mr Jia pursuant to which Mr Jia was to operate the business at the centre of this proceeding. On the strength of that affidavit, judgment was not handed down on 13 June 2007 and the fourth, fifth and sixth respondents were given an opportunity to file more complete affidavits. They did so. On the basis of those affidavits, the application for summary judgment was dismissed.

3. The fourth, fifth and sixth respondents had only minor success in their summary disposal and strike out applications. The applicants failed in their summary judgment application only because of the evidence filed by the fourth, fifth and sixth respondents at an extraordinarily late stage. The competing summary disposal applications were heard together on 30 May 2007, but only the fourth, fifth and sixth respondents’ application was heard on 18 May 2007. It could not properly proceed on that day because the fourth, fifth and sixth respondents had not filed their affidavits of documents, which were then overdue, and had not produced documents in response to a notice to produce, although they were served with the notice quite late. The fourth, fifth and sixth respondents were represented by one solicitor and, it appears, all of their costs were incurred jointly.

4. Under r.21.04 of the Federal Magistrates Court Rules 2001, reserved costs follow the event unless otherwise ordered. The applicants at trial were largely successful against the fourth and fifth respondents. The sixth respondent was successful against the applicants. For this reason, the fourth, fifth and sixth respondents submit that:

   a)the fourth and fifth respondents should pay 60% of the applicants’ costs of the summary disposal applications, being two thirds, less a little for the applicants’ failure on the importation point; and

   b)the applicants should pay the sixth respondent one third of the costs of the summary disposal applications incurred by the fourth, fifth and sixth respondents.

5. The applicants submit that the fourth, fifth and sixth respondents should jointly pay the applicants’ costs of the summary disposal applications on an indemnity basis. The applicants say that the sixth respondent, although successful, “participated in, perpetuated, supported and stood to gain from the false grounds upon which the Yili parties sought to defend the proceedings.” The fourth, fifth and sixth respondents say that the applicants’ claim for costs against the sixth respondent is breathtakingly audacious, given that she was entirely successful, and given that the applicants at trial made no attempt to establish that she was knowingly concerned in the fourth respondent’s misconduct.

6. The effect of the applicants paying the sixth respondent one third of the costs incurred and the fourth and fifth respondents paying the applicants 60% of the costs incurred would result in the applicants receiving only about one third of their costs. That proposition only needs to be stated to reveal its unfairness.

7. The sixth respondent was ultimately successful. The usual rule is that reserved costs follow the event. The sixth respondent’s participation in mounting a defence that was ultimately found to be without merit, and the fact that, as a 70% shareholder of the fourth respondent, she stood to gain from the fourth respondent’s success, do not, in my view, warrant an order that the sixth respondent contribute to the costs payable by the fourth and fifth respondents. As far as they were concerned, the sixth respondent was in the position of a witness, albeit one who would benefit from their success.

8. On the other hand, I am not persuaded that the sixth respondent should recover any of the costs of the summary disposal applications. The hearing on 18 May 2007 was adjourned largely because the fourth, fifth and sixth respondents were late in filing their discovery, and because they had not filed any affidavits in support of their summary disposal application. The fact that they did not produce any documents in response to the notice to produce, on the basis of short service, was a subsidiary reason for the adjournment. The sixth respondent, before the hearing of the summary disposal applications, could and should have filed affidavit evidence indicating that she was not in Australia at relevant times or was otherwise not involved in the management of the business. If she had done so, it is likely that the trial would not have proceeded against her.

1. In the circumstances, as far as the sixth respondent is concerned, I consider that it is appropriate to depart from the usual rule that reserved costs follow the event. I do not consider that the applicants should pay any of the costs of the sixth respondent in relation to the summary disposal applications. I consider that the fourth and fifth respondents should pay the applicants’ costs in connection with the summary disposal applications. The fourth and fifth respondents were largely unsuccessful in their application. If they had filed their lists of documents, including the purported management agreement, by the due date, the applicants may well have not brought their summary judgment application at all.

2. I do not consider that the costs of the summary disposal applications should be discounted to 60% or 66%. Whether there were two or three respondents made minimal difference to the amount of work involved. In relation to this aspect of the case, I consider that reserved costs should follow the event.

3. There remains the question of whether the costs of the summary disposal applications should be calculated on the Federal Magistrates Court scale, or, as the applicants submit, on an indemnity basis. That question is dealt with below.

D.       The fourth and fifth respondents and indemnity costs

1. As noted above, it is the conduct in the litigation, not the conduct that gave rise to the litigation, that must be examined to determine if costs on an indemnity basis are warranted. The fourth, fifth and sixth respondents say that it was the applicants whose conduct complicated and prolonged the litigation.

2. The fourth, fifth and sixth respondents say that the applicants:

   a)began by launching a single proceeding against two entirely separate sets of respondents with the result that an application needed to be made for the matters to proceed separately;

   b)amended the statement of claim and application to add a copyright claim that they did not pursue;

   c)made no real attempt to support their claims relating to importation and manufacture of the infringing garments;

   d)made no real attempt to support their claims against the sixth respondent;

   e)adduced new oral evidence from Mr Lynch at trial without putting the fourth, fifth and sixth respondents on notice; and

   f)made no reasonable attempt to obtain the usual evidence of the incorporation of the first applicant in Italy.

3. The fourth, fifth and sixth respondents say further that their case was so far from being hopeless that the sixth respondent was entirely successful and the claims against them with respect to importation and manufacture both failed. The fourth, fifth and sixth respondents say that this was a standard case in which their evidence was simply rejected at trial. They say that they conducted the trial so as to shorten the proceedings. In particular, they note that they did not require any witnesses for cross-examination, except Mr Lynch and that was only because he supplemented his evidence orally. They say that they did not object to Mr Lynch giving supplementary oral evidence and did not seek an adjournment in order to meet that supplementary evidence. They also say that they did not contest the counterfeit nature of the garments (though nor did they formally concede it). These matters are all true.

4. It seems that when the sixth respondent produced her passport at the trial in answer to a notice to produce, the applicants apparently accepted that the sixth respondent had not been in Australia for much of the relevant period. Consequently, the applicants did not press their claim that the sixth respondent was knowingly concerned in the fourth respondent's misconduct. Nor did the applicants formally or unequivocally withdraw that claim.

5. On the other hand, the applicants rely on a number of matters, which all come down to one point, namely, that the fourth, fifth and sixth respondents defended the proceeding “in wilful disregard of the known facts”.  They alleged that the fourth respondent did not operate the Yili Boutiques but Mr Jia did. For the reasons given in the primary judgement, I was not persuaded that Mr Jia operated the Yili’s Boutiques. If that claim had not been made in the summary judgment application at the 11th hour, judgement would probably have been given at that stage against the fourth and fifth respondents and there need not have been any trial against them at all.

6. This conduct in the litigation on the part of the fourth, fifth and sixth respondents could be sufficient to warrant an indemnity costs order. However, the conduct of the applicants in the litigation was considerably less than ideal as well. In addition to the matters referred to by the fourth, fifth and sixth respondents and set out in paragraph 27 above, there was the fact that the applicants filed written submissions without leave after the conclusion of the summary judgment hearing. It was obviously necessary for the court to advise the fourth, fifth and sixth respondents of those submissions and give them an opportunity to respond. That led to the chain of events described above which culminated in summary judgment not being granted.

7. In all the circumstances of this case, in my view, on balance, an indemnity or other special costs order is not warranted. In the conduct of the litigation itself, there was some fault on both sides. Accordingly, the fourth and fifth respondents should pay the applicants’ costs of the summary disposal applications, including the costs of 18 May 2007, and the costs of the proceeding generally, calculated on the Federal Magistrates Court scale.

8. The costs of the summary disposal applications calculated on the Federal Magistrates Court scale, bearing in mind that the filing fees need to be halved because they also apply to the other three respondents, are as follows:

   a)half of the filing fees of $419 being $209.50;

   b)the interim application costs of $1,250;

   c)the costs of the half day hearing on 18 May 2007, including the advocacy loading, being $1,125

   d)the costs of the full day hearing on 30 May 2007, including the advocacy loading, being $2,250; and

   e)the costs of receiving judgment, being $205;

   making a total of $5,039.50.

9. For the same reasons, the fourth and fifth respondents will be required to pay the applicants’ costs of the proceedings, other than the matters specifically addressed above, on the Federal Magistrates Court scale. By my calculation, those costs are as follows:

   a)half of the filing fees of $698 being $349;

   b)stage 1: initiating application: $2,005 plus the half day hearing fee of $1,125, including the advocacy loading, making $3,130;

   c)mediation fee: $278;

   d)setting down fee of $837;

   e)stage 5: preparation for final hearing: $6,770;

   f)stage 6: final hearing solicitor’s costs: $3,000 plus $205 to take judgment;

   g)daily hearing fee for counsel including advocacy loading: $4,500.

   making a total of $19,069.

E.         The sixth respondent

1. The sixth respondent was wholly successful. However, she made a summary disposal application without providing relevant evidence to the court and actively participated in a defence that was found to be a fabrication as far as the fourth and fifth respondents were concerned. In the circumstances, I do not consider that the sixth respondent should be awarded any costs at all.

Conclusion

1. I will hear the parties on the calculation of costs before signing the orders.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate:  Melissa Gangemi

Date:  21 November 2007

ADDENDUM

1. After publishing the above reasons, I have heard the parties and make the following amendments. In paragraph 34(b), the amount should be halved, because the work was referable to the first, second and third respondents as well as the fourth, fifth and sixth respondents.

2. The mediation fee in paragraph 34(c) should be deleted, as it applied to the first, second and third respondents only. That means the total in paragraph 34 should be $17,226.

3. There should in addition be orders for the fourth and fifth respondents to pay the applicants disbursements of $530 for photocopying, $115.40 for search fees and $1,680 for travelling costs.

4. Finally, the applicants sought an order that the costs payable by them to the fourth, fifth and sixth respondents should be offset against the costs payable by the fourth and fifth respondents to the applicants. The solicitor for the fourth, fifth and sixth respondent submitted that an offsetting was not appropriate as the order in favour of the respondents applied to the fourth, fifth and sixth respondents and the orders against the respondents applied only to the fourth or the fourth and fifth respondents.

5. That is true. The applicants are to pay the fourth, fifth and sixth respondents $300 in accordance with paragraph 14 hereof, and $2,844 fixed on 19 October 2007 in relation to the change of venue application, making a total of $3,144. The fourth respondent is to pay the applicants $3,919 in respect of the injunction application. The fourth and fifth respondents are to pay the applicants $24,540.94 for the proceedings generally.

6. However, as a matter of practical reality, the fourth, fifth and sixth respondents are all represented by one solicitor and have acted in unison throughout the proceedings. I consider that it is fair, in the circumstances of this case, to make an order offsetting the amount payable to the applicants against the amount payable by them. The fourth, fifth and sixth respondents can make an adjustment between themselves.

7. Accordingly, I will not order the applicants to pay the $300 in respect of the amendment, and will deduct that sum from the amount payable to the applicants. Additionally, I will stay the order made on

   
   19 October 2007

   , and reduce the amount payable to the applicants accordingly. That is, the fourth and fifth respondents are to pay the applicants:

   a)$5,039.50, being the costs of the summary disposal applications,

   b)$17,226, being the costs of the proceedings generally; and

   c)disbursements of $1,680 for travelling costs, $530 for photocopying and $115.44 for search fees

   making a total of $24,540.94, less the offset amount of $3,144, leaving the sum of $21,396.94.