Dixon Projects Pty Ltd v Masterton Homes Pty Ltd
[1996] FCA 889
•31 Jul 1996
CATCHWORDS
INTELLECTUAL PROPERTY - Copyright - assignment - whether assignee can sue in respect of pre-assignment conduct - alleged equitable owner obtaining legal assignment after action brought - whether doctrine of estoppel can establish equitable title against third party.
Copyright Act 1968 s 10
Property Law Act 1974 s 11
Taypar Pty Ltd v Santic (1989) 17 IPR 146
Wigan v Edwards (1973) 1 ALR 497
The Commonwealth of Australia v Verwayen (1990) 170 CLR 394
Cropper v Smith [1884] 26 Ch 700
DIXON PROJECTS PTY LTD v MASTERTON HOMES PTY LIMITED
No. QG 16 of 1995
SPENDER J
BRISBANE
31 JULY 1996
IN THE FEDERAL COURT OF AUSTRALIA )
QUEENSLAND DISTRICT REGISTRY ) No. QG 16 of 1995
GENERAL DIVISION )
BETWEEN: DIXON PROJECTS PTY LTD
(ACN 010 828 172)
ApplicantAND: MASTERTON HOMES PTY LIMITED
(ACN 002 873 047)
Respondent
AND: MASTERTON HOMES (NSW) PTY LIMITED (ACN 002 283 963)
First Cross-Claimant
AND: MASTERTON HOMES PTY LIMITED
(ACN 002 873 047)
Second Cross-Claimant
AND : DIXON PR0JECTS PTY LTD
(ACN 010 828 172)
Cross Respondent
CORAM: Spender J
PLACE: Brisbane
DATE: 31 July 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The relief sought in the notice of motion filed by the respondent on 6 September 1995 is refused.
Leave is granted to join Raymond John Mc Donald Sweeney as a co-applicant.
The applicant has leave to amend its application and statement of claim as set out in annexures "A" and "B" to its notice of motion filed 26 October 1995.
The costs of the parties on the motion of Masterton Homes Pty Limited filed 6 September 1995 be the costs of those parties in the proceedings, and Dixon Projects Pty Ltd pay the costs of Masterton Homes Pty Limited of and incidental to the motion filed 26 October 1995, those costs to be taxed if not agreed.
Dixon Projects Pty Ltd pay any costs of Masterton Homes Pty Limited thrown away by the necessity to replead to the amended statement of claim.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
QUEENSLAND DISTRICT REGISTRY ) No. QG 16 of 1995
GENERAL DIVISION )
BETWEEN: DIXON PROJECTS PTY LTD
(ACN 010 828 172)
ApplicantAND: MASTERTON HOMES PTY LIMITED
(ACN 002 873 047)
Respondent
AND: MASTERTON HOMES (NSW) PTY LIMITED (ACN 002 283 963)
First Cross-Claimant
AND: MASTERTON HOMES PTY LIMITED
(ACN 002 873 047)
Second Cross-Claimant
AND : DIXON PR0JECTS PTY LTD
(ACN 010 828 172)
Cross Respondent
CORAM: Spender J
PLACE: Brisbane
DATE: 31 July 1996
REASONS FOR JUDGMENT
There are two notices of motion before the Court. The first was filed on 6 September 1995 by the respondent, Masterton Homes Pty Limited ('Masterton Homes') in the principal proceedings and seeks that the application in the principal proceedings be dismissed. The second notice of motion was filed by the applicant, Dixon Projects Pty Ltd ('Dixon Projects') in court at the hearing of the first, and seeks that leave be granted to join Raymond John McDonald Sweeney as a co-applicant and that the applicant have leave to amend its application and statement of claim.
The parties to this action design, market and build project homes. The application in the principal proceedings, filed on 15 February 1995, seeks, inter alia, an injunction restraining the respondent from infringing the copyright which the applicant claims to hold in project house design drawings and plans known as the "Silver Birch" and the "Silver Palm". It is claimed by the applicant that the plans and drawings of "The Caroline" - a project home marketed by the respondent - are substantially identical to the plans and drawings of the "Silver Palm" and the "Silver Birch".
It is the claim by the applicant that copyright in the plans and drawings of the "Silver Palm" and the "Silver Birch" resided in it at the time of the application that is the subject of the present proceedings.
On 19 May this year, after pleadings had closed, it was ordered by Cooper J that the applicant deliver statements of its witnesses on or before 7 July 1995 and that the respondent deliver the statements of its witnesses on or before 25 August 1995. The applicant was to deliver any further statements of witnesses in reply on or before 8 September 1995.
In accordance with those orders, on 7 July 1995 the applicant served a statement of Raymond John McDonald Sweeney upon the respondents. Mr Sweeney is an architect who acts as a consultant to the Dixon group of companies which includes the applicant, Dixon Projects. He has been a consultant to the Dixon group since 1984. Mr Sweeney was the architect largely responsible for developing the series of Dixon Project culminating in the "Silver Palm" and the "Silver Birch" designs. In the third paragraph of his statement Mr Sweeney says:
"I have assigned copyright in the drawings, plans, designs and sketches that I have produced to the applicant. Whilst it was always the intention for Dixon to have the copyright in the drawings, plans, designs and sketches that I produced for it, and discussions relating to this were had over the years, it was only on 29 June this year that a formal agreement giving effect to this intention was signed. Annexed hereto and marked 'RJMS 2' is a true copy of the signed agreement. "
Annexed to his statement is an agreement dated 29 June 1995 between Mr Sweeney and the applicant. The agreement is prospective in its operation. The recitals are:
"A. Dixon has requested the Architect to provide Dixon with architectural services in connection with its Dixon Homes Operation.
B.The Architect has agreed to provide those services.
C.Dixon and the Architect desire to execute this Agreement for the purpose of recording the terms and conditions on which the said services are to be provided. "
The "Term of this Agreement" by cl 1 means "the period from the date of this Agreement until it is terminated or otherwise comes to an end in accordance with this agreement". Clause 6 of the agreement is in these terms:
"The Architect acknowledges and agrees:-
(a)That the plans and designs prepared for Dixon as listed in the attached Schedule A and any plans or designs produced for Dixon in accordance with this Agreement remain at all times the property of Dixon with the copyright vesting in Dixon and will be used solely for the purpose of Dixon business and that neither the plans nor designs either wholly or in part will at any time during the Term of this Agreement or subsequently be used for any other purpose except for the purpose of providing Services.
(b)Where part or all of the Services consisted of the creation and/or development of material (including without limitation architectural designs, plans and drawings) then any copyright in such material which would otherwise have been owned by the Architect or any contractor of the Architect by virtue of Section 35(2) of the Copyright Act 1968 is now the property of Dixon, including but not limited to the exclusive right to copy and prepare derivative works.
(c)Without limiting the generality of the foregoing, the provisions of this clause apply irrespective of:
(i)where the work was performed;
(ii)whether the work was performed during contract hours or not;
(iii)whether the work was performed with the aid of materials and equipment owned by Dixon, the Architect, any contractor of the Architect or any other person, firm or corporation; and
(iv)whether any money has been or is due or payable at any time by Dixon to the Architect in respect of the said work.
(d)That Dixon now owns or is intended to own all technical notes, tangible and intangible property and work product required to be delivered and/or created by the Architect in connection with the preparation of the designs and plans.
(e)The Architect agrees to execute any documents reasonably requested by Dixon to fully vest any and all of the rights referred to in this Agreement in Dixon or its nominee.
(f)To the extent that Dixon does not already own any of the tangible and intangible property in respect of the designs and plans, the Architect hereby assigns to Dixon all rights in any copyright, patent, design and/or other intellectual property in the designs and plans listed in Schedule A. It is also agreed between the parties that the copyright in the designs and plans produced for Dixon in accordance with this Agreement will vest in Dixon and that the parties will regularly confirm this in writing.
(g)That the Architect will not, at any time during the Term of this Agreement or subsequently, disclose or make known to any person, except in connection with and for the purpose of supplying or providing Services, any information concerning the business or affairs of Dixon or any other confidential information.
(h)The Architect acknowledges that all confidential information of Dixon which may come into the possession of the Architect is and remains the property of Dixon and the Architect agrees that he will not at any time without Dixon's consent copy or take extracts from such confidential information or remove any such confidential information from Dixon's premises except for the purposes of the business of Dixon and in the case of the removal of any such confidential information will as promptly as possible and in any case immediately upon demand return it to Dixon.
(i)Dixon acknowledges that the Architect has been involved in designing houses prior to his involvement with Dixon and has designed houses for other parties during his involvement with Dixon and acknowledges that Dixon does not own the copyright in those designs and this Agreement does not transfer any right in those designs. "
A document headed "Schedule A" and which bears date 22.6.95, has a series of four columns, within each column there being sub-columns headed "Standards", "Date Drawn", "Brochure Date" and "Job/no". The schedule includes two items referred to as "Silver Ash (86)" which are said to be drawn on October 1985 and 12 July 1986, and two entries in the sub-column headed "Standards" labelled "Silver Birch (90)" and "Silver Birch (93)" which in the "Date Drawn" column are said to be respectively drawn on 29/7/91 and 13/10/93.
On 8 August 1995 the solicitors for the respondent wrote to Messrs Clayton Utz, solicitors for the applicant, in the following terms:
"I refer to the above matter and, in particular, to the Application filed in these proceedings. The relief sought in the Application is premised on the contention by your client that it had, at the time the Application was filed, copyright in the project homes known as the "Silver Palm" and the "Silver Birch". The Application was filed on 15 February 1995.
Your client has served a Statement of Raymond John McDonald Sweeney dated 7 July 1995. That statement makes it clear that copyright in the "Silver Palm" and the "Silver Birch" did not vest in your client at the time of the filing of the Application in these proceedings. The statement makes it abundantly clear that on the basis of your client's own case, copyright did not vest in your client prior to 29 June 1995.
In the circumstances, your client cannot cure its Application by amendment because, of course, an amendment would take effect as from the date of the original pleading.
In those circumstances, I have been instructed to ask whether your client is prepared to have its Application dismissed with costs... "
The solicitors for the applicant in a reply dated 14 August 1995 said:
"...
Your comments are, with respect, misconceived. We do, however, recognise the need to amend the Pleadings. Senior Counsel is presently attending to this and we hope to be in a position to deliver the proposed amendments shortly. The amendments will simply bring the pleadings into line with the statements.
Nothing in the statements prevents our client from having properly commenced this litigation or from continuing it. Any application by your clients will be vigorously contested and costs sought on an indemnity basis. "
In a letter dated 15 August 1995, the solicitors for the respondent replied in the following terms:
"I refer to your letter of 14 August 1995.
Please apply for leave to amend the pleadings by way of Notice of Motion.
It would be convenient for the motion fore- shadowed in my letter to you of 8 August 1995 to be heard on the same occasion. "
In a further reply dated 17 August 1995 the solicitors for the applicant said:
"The foreshadowed amendments, as we have advised, do no more than bring the pleadings into line with the Statements. Accordingly, we can see no warrant for wasting the Court's time with an application now and consider that the appropriate time to formally seek leave to make the amendments is at the trial of this action. "
And later:
"Any proposed application by your clients is of course a matter for them. We would, however, ask that should your clients persist with an intention to make an application to the Court that you liaise with us so that we may arrange a mutually satisfactory time. We again repeat that our client shall seek the costs of any such application on an indemnity basis as any reference to the facts and the law readily demonstrates that such an application must fail. "
Unperturbed by those threats, the respondent filed the notice of motion on 6 September 1995 seeking that the application be dismissed, as outlined above. At the hearing, the applicant sought to amend its application and statement of claim.
If the applicant had no interest in the copyright at 15 February 1995, it is fatal to its case and the respondent would have to succeed on its motion seeking that the proceedings by it be dismissed.
I said in Taypar Pty Ltd v Santic (1989) 17 IPR 146 at 152-53:
"In my view the owner of a copyright or the respective owners of parts of the copyright are the only persons entitled to bring an action for infringement of the copyright or the respective parts of the copyright, and it is not competent for an assignee of a copyright to bring an action in respect of an infringement that occurred prior to his becoming the owner of the copyright, merely by virtue of being the assignee of the copyright. "
The potential defect in the applicant's case cannot be cured by amendment. In Wigan v Edwards (1973) 1 ALR 497 at 515, Mason J, as he then was, said:
"To succeed a plaintiff must establish his cause of action at the date of the plaint, for that is the origin of the action. An amendment dates back to the original filing of the plaint (see Sneade v Wotherton Barytes and Lead Mining Co Ltd [1904] 1 KB 295, at 297, per Collins MR). It is for this reason that a plaintiff cannot, in the
absence of statutory authority, amend the proceedings without the consent of the defendant by adding a cause of action which has accrued to him since the commencement of the action (Eshelby v Federated European Bank Ltd [1932] 1 KB 254). And in the absence of such authority an amendment, if allowed, must be regarded as asserting a cause of action existing at the date of the writ.
Although the District Court is not a strict court of pleading there is no good reason for concluding that in the absence of appropriate statutory provision, or the consent of the defendant, the respondents could succeed in obtaining a judgment on a cause of action which had not accrued at the date of the plaint. Rule 104(b) of the District Court Rules 1966 (Qld) allows a 'new cause of action' to be added by amendment, but I read it as meaning a cause of action 'different' from that already pleaded, and not new in the sense of a cause of action accruing after filing of the plaint. Now that it appears that the cause of action pleaded in paragraph 6A arose after the date of the plaint, it is my opinion that the amendment should not have been allowed and that the respondents must fail. "
If the applicant was not an owner of the copyright in the respective plans at 15 February 1995, the date of the commencement of the proceedings, the joinder of Mr Sweeney as a co-applicant would not rectify the defect so far as it relates to the applicant.
The applicant needs to establish that, at the time the application was filed, it had an interest in the copyright. To this end the applicant submitted that its managing director was a co-author of the plans or, alternatively, that the applicant was the owner in equity of the copyright.
I deal first with the submission that the applicant had an interest in the copyright as a result of its managing director being a co-author.
It is clear from the decision of Gowend J in Prior v Lansdowne Press Pty Ltd (1977) VR 65, which was followed in Acorn Computers Ltd v MCS Microcomputer Systems Pty Ltd (1984) 4 IPR 214, that co-authors hold copyright as tenants-in-common rather than as joint tenants, and that therefore one co-author, independently of the other, can institute proceedings in respect of the copyright.
In paragraph 5 of his statement, Mr Sweeney says:
"I was largely responsible for developing the series of Dixon Project Homes culminating in the Silver Palm and Silver Birch designs. Mr Martin Edwards of Dixon provided an assistance with respect to the development of the homes. Martin's involvement included the following:
(a)Discussion of the design brief with particular input on the buyer profile and marketing elements of the design;
(b)Evaluation of alternative design ideas (in the form of sketch drawings) and selection of the design option to develop into a Dixon design;
(c)Selection of design elements and design style in relation to buyer preferences. "
In the statement of the applicant's managing director, Mr Martin Hugh Edwards, which formed part of Exhibit 'DJN-1' of an affidavit of David John Neile Lemon filed on 6 September 1995, Mr Edwards said in paragraph 3:
"Part of my functions involve the overseeing and assisting in the development of new project homes. In this regard I have worked closely with Mr Raymond Sweeney, and have been involved with him in the development of Dixon project home designs, including development of the Silver Palm and Silver Birch project homes the subject of this litigation. I am responsible for the establishment of marketing requirements and the development of product briefings for sale staff. I make suggestions and request changes to Mr Sweeney with respect to the designs plans and drawings. Once a design has been finalised to my satisfaction it is reproduced in brochure form, and in some cases built as a display home and marketed to the general public... "
And in paragraph 7 he says:
"In January 1988 a design team from Dixon Homes visited a large number of display centres in California and Florida in the United States. Mr Sweeney and myself were members of that team. In Florida we saw a large number of homes, including those built on canal sites similar to the Gold Coast area. In these homes there was a central entry looking through an open living room to the rear aspect. It was decided to include this sense of openness into the basic Silver genre. "
And then in paragraph 18:
"Mr Sweeney and myself are responsible for the various designs for Dixon Homes that the company sells. The working drawings for these homes are produced by draftsmen employed by Dixon Homes. "
Mr Edwards holds a degree in commerce from the University of New South Wales, acquired in 1970 with majors in marketing and economics. He has been involved in the housing industry since 1973 and his principal focus has been in sales, marketing and general management, according to his statement. He has been the managing director of the applicant since 1984.
The sections from the statements of Mr Edwards and Mr Sweeney which I have outlined represent the only material
presently before the court directly touching upon the issue of whether or not Mr Edwards and Mr Sweeney were joint authors of the plans and designs in question.
In s 10 of the Copyright Act 1968, "work of joint authorship" is defined to mean "a work that has been produced by the collaboration of two or more authors and in which the contribution of each author is not separate from the contribution of the other author or the contributions of the other authors;". On the limited material presently before the Court, it seems to me to be arguable that there was collaboration by Mr Sweeney and Mr Edwards, and that their respective contributions are not necessarily separate.
As an alternative to the co-authorship argument, the applicant submitted that Dixon Projects was at least entitled in equity to a share of the copyright and for that reason the proceedings were properly commenced.
The applicants submit that at the commencement of these proceedings, 15 February 1995, Dixon Projects was entitled to an assignment of Mr Sweeney's legal ownership in the copyright because Mr Sweeney was estopped from denying an obligation to transfer that copyright to Dixon Projects and as a result that company was the only party entitled in equity to the ownership of the copyright.
That argument involves the use of promissory estoppel in its role as a doctrine of substantive law creating new rights rather than as a defensive rule of evidence, and in particular the creation of rights by the conduct of one party assertable against a third party.
There is no writing to evidence this transfer of the equitable entitlement to the copyright to Dixon Projects However, the requirement in s 11(1)(c) of the Property Law Act 1974 relates only to equitable interests subsisting at the time of the disposition. The equitable interest in the present case is said to have been created by an estoppel. One might therefore wonder at what time the disposition is said to have occurred. Section 11(2) of the Property Law Act provides that the section does not affect the creation or operation of resulting, implied, or constructive trusts.
Mr Edwards's statement, which is dated 7 July 1995, in paragraph 1 simply says:
"Copyright in the plans, drawings, advertising and brochures are vested in the applicant. "
(emphasis added)
Supplementary statements of both Mr Edwards and Mr Sweeney were produced at the hearing of these motions as annexures to an affidavit of David Murdoch Hensler which was filed by leave on that day. The supplementary statement by Mr Edwards contains the following:
"...
3.Until early 1988 it is probably correct to say that Dixon paid little attention to the question of ownership of copyright in any plans, designs and drawings with which Mr Sweeney was involved. It was however always the intention and expectation of Dixon that ownership of the copyright would reside in one of the companies in the group, this being appropriately Dixon Investments Pty Ltd until 1988 and then Dixon Projects Pty Ltd which took an assignment of intellectual property rights from Dixon Investments Pty Ltd. At the time of the assignment Mr Sweeney was actively involved in designing homes for Dixon.
4.In early 1989 I instructed Dixon's then solicitors to prepare a draft assignment agreement. That agreement was never finalised.
5.In June 1995 a formal agreement was finally executed.
6.As a result of the arrangements and understanding between Dixon and Mr Sweeney that had been reached with respect to the ownership of copyright, I always considered that it was the owner of the copyright notwithstanding that a written agreement was not finally executed until June of this year. I always expected that Mr Sweeney would sign whatever documents were necessary to meet any formal requirements for giving Dixon sole ownership of the copyright.
7.As a consequence of the matters referred to above I expected that Mr Sweeney would do all things necessary to transfer any of his rights to any copyright in the plans drawings and designs that he produced for Dixon to Dixon, and would do all things necessary to assist Dixon in producing designs for the production and sale of project homes, and to assist Dixon (if required) in protecting the copyright in the designs plans and drawings of the homes marketed sold and built by it.
8.Dixon started these proceedings believing that it was the owner of the copyright. Mr Sweeney rents an office at the premises of Dixon and is actively aware of the day-to-day activities of Dixon. He was aware that these proceedings had been instituted in the name of Dixon alone and he at no time suggested that Dixon had no right to bring the proceedings on the basis that he was the owner of the copyright. Had Mr Sweeney raised any queries about ownership of the copyright, then I would have ensured that the agreement executed in June of this year was attended to prior to the institution of these proceedings. "
Mr Sweeney, in his supplementary statement, says:
"...
2.I have read the supplementary statement of Martin Hugh Edwards made on 25th October 1995 and I confirm as correct the statements that he makes in paragraphs 2, 3, 4, 5 and 8 thereof.
3.I am aware from my discussions with Mr Edwards that he believed that Dixon was the owner of the copyright and entitled to sue in the company name alone for any infringements of it. Moreover, I am aware from my dealings with Dixon that it conducted its business on the basis that it was the owner of the copyright in the designs, plans and drawings produced by me for it.
4.From early 1988 onwards I was prepared to assign and it was my intention to assign the copyright in the plans designs and drawings prepared by me for Dixon and I was and am prepared to assist Dixon in protecting that copyright. "
Mr Sweeney is not disputing Dixon Projects' equitable interest in the copyright. It seems to me that it would be difficult for Dixon Projects to establish that they are suffering the kind of detriment that usually lies at the heart of an alleged estoppel. Mr Sweeney is not attempting to act in a way inconsistent with the equitable right alleged by the applicants and in no way has attempted to depart from any impression, assumption or intention on which the applicants have relied.
In The Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 413, Mason CJ said:
"...it would confound principle and common sense to maintain that estoppel by conduct occupies a special field which has as its hallmark function the making good of assumptions. There is no longer any purpose to be served in recognizing an evidentiary form of estoppel operating in the same circumstances as the emergent rules of substantive estoppel. The result is that it should be accepted that there is but one doctrine of estoppel, which provides that a court of common law or equity may do what is required, but not more, to prevent a person who has relied upon an assumption as to a present, past or future state of affairs (including a legal state of affairs), which assumption the party estopped has induced him to hold, from suffering detriment in reliance upon the assumption as a result of the denial of its correctness. A central element of that doctrine is that there must be a proportionality between the remedy and the detriment which is its purpose to avoid. It would be wholly inequitable and unjust to insist upon a disproportionate making good of the relevant assumption. "
At 412 Mason CJ said:
"...as a matter of principle and authority, equitable estoppel will permit a court to do what is required in order to avoid detriment to the party who has relied on the assumption induced by the party estopped, but no more. In appropriate cases, that will require that the party estopped be held to the assumption created, even if that means the effective enforcement of a voluntary promise. "
And later:
"Moreover, as I have already indicated, the fact that estoppel by conduct has expanded beyond its evidentiary function into a substantive doctrine means that there is no longer any justification for insisting on the making good of assumptions in every case. "
The party to be estopped is the one who has induced the assumption in question and who causes detriment by denying the correctness of the assumption induced. In the present case, Mr Sweeney is not attempting to deny the assumption and therefore no detriment can be said to have flowed from such a denial. Equity provides a remedy when it would be inequitable to allow the party who induced the assumption to deny its correctness. Equity will not make good the relevant assumption unless to do otherwise would lead to inequity as between the party who holds the assumption and the party who induced the assumption.
In my opinion, it is not open to the applicant to validly assert that when these proceedings commenced on 15 February 1995 it was the equitable owner of Mr Sweeney's legal ownership in the copyright because of an estoppel said to prevent Mr Sweeney from denying his obligation to transfer his copyright to the applicant. In my opinion, the doctrine of estoppel does not extend that far.
In the opinion I take of the matters the subject of the two notices of motion, it is arguable that the applicant was a co-owner with Mr Sweeney of the copyright in the subject plans. Consistent with the longstanding principles reflected in cases like Cropper v Smith [1884] 26 Ch 700 at 710-711, the Court should grant leave to Mr Sweeney to be joined as a co-applicant and to give leave to the applicant, on terms, to
amend its application and statement of claim as set out in the annexures "A" and "B" to the notice of motion filed in Court on 26 October 1995.
The course on which the applicant has chosen to embark is fraught with risk because if the factual position be that as at 15 February 1995 the applicant, Dixon Projects, had no interest in the copyright the subject of the proceedings, it would fail, with the consequences in costs of such failure. An alternative manner of dealing with the difficulties raised by the fact that the agreement between Mr Sweeney and Dixon Projects was not executed until June 1995, namely, that of discontinuing the proceedings commenced on 15 February 1995 and commencing afresh, is a matter of which all the parties are aware. The applicant has made its choice.
For the above reasons I will not grant the relief sought by the respondent's notice of motion filed on 6 September 1995; as earlier indicated, the Court grants leave to Raymond John McDonald Sweeney to be joined as co-applicant, and the applicants have leave to amend their application and statement of claim as set out in Annexures "A" and "B" to the notice of motion filed in Court on 26 October 1995.
On the question of costs of the two notices of motion, the position is not straightforward.
Having regard to the correspondence between the solicitors for the respondent and the first applicant, Dixon Projects, and the fact that the applicant and Mr Sweeney sought leave to amend the case to that which they together now wish to propound, I think a fair and just order is to order the costs of the parties on the motion of Masterton Homes filed on 6 September 1995 be the costs of those parties in the proceedings, and to order that Dixon Projects pay the costs of and incidental to the motion filed on 26 October 1995, those costs to be taxed if not agreed. Dixon Projects should also pay the costs of Masterton Homes occasioned by any necessity to replead.
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