Durban Roodepoort Deep, Ltd v Mostert
[2003] WASC 250
DURBAN ROODEPOORT DEEP, LTD -v- MOSTERT & ORS [2003] WASC 250
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 250 | |
| Case No: | CIV:1772/2002 | 4 DECEMBER 2003 | |
| Coram: | HASLUCK J | 4/12/03 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | The second defendant's application for costs allowed The second defendant's application to set aside dismissed | ||
| B | |||
| PDF Version |
| Parties: | DURBAN ROODEPOORT DEEP, LTD CHARLES PHILIP MOSTERT JOHN STRATTON NOBLE INVESTMENTS PTY LTD (ACN 007 998 914) LEADENHALL AUSTRALIA LTD (ACN 007 997 248) ADVENT INVESTORS PTY LTD (ACN 008 134 209) TIMOTHY OWEN LEBBON DRD AUSTRALASIA ApS DRD AUSTRALASIA PTY LTD |
Catchwords: | Practice and procedure Application for security for costs Orders made by consent Whether any necessity to bring application Appropriate order as to costs Turns on own facts |
Legislation: | Rules of the Supreme Court, O 43 r 16, O 59 r 9 |
Case References: | Archer v Channel Seven Perth Pty Ltd [2001] WASC 195 BuyQuick Com. Ltd v Foxgold Pty Ltd [2000] WASC 216 Deputy Commissioner of Taxation for Commonwealth of Australia v Robinswood Pty Ltd [2001] WASC 191 Russell-Davison v Prosin, unreported; SCt of WA (Master Sanderson); Library No 980277; 22 May 1998 Ansons Pty Ltd v Merlex Corp Pty Ltd [2001] WASC 204 APEP Pty Ltd v Smalley (1983) 8 ACLR 260 Otway v Jones [1955] 2 All ER 585 Robinson v Australian Association of Social Workers Ltd [2000] SASC 239 Scherer v Counting Instuments Ltd [1986] 2 All ER 529 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
CHARLES PHILIP MOSTERT
First Defendant
JOHN STRATTON
Second Defendant
NOBLE INVESTMENTS PTY LTD (ACN 007 998 914)
LEADENHALL AUSTRALIA LTD (ACN 007 997 248)
ADVENT INVESTORS PTY LTD (ACN 008 134 209)
Third Defendant
TIMOTHY OWEN LEBBON
Fourth Defendant
(Page 2)
FILE NO/S : CIV 1797 of 2002 BETWEEN : DRD AUSTRALASIA ApS
- First Plaintiff
DRD AUSTRALASIA PTY LTD
Second Plaintiff
AND
JOHN STRATTON
Defendant
Catchwords:
Practice and procedure - Application for security for costs - Orders made by consent - Whether any necessity to bring application - Appropriate order as to costs - Turns on own facts
Legislation:
Rules of the Supreme Court, O 43 r 16, O 59 r 9
Result:
The second defendant's application for costs allowed
The second defendant's application to set aside dismissed
Category: B
(Page 3)
Representation:
CIV 1772 of 2002
Counsel:
Plaintiff : Mr G M Abbott
First Defendant : No appearance
Second Defendant : Mr G I Macnish
Third Defendant : No appearance
Fourth Defendant : No appearance
Solicitors:
Plaintiff : Allens Arthur Robinson
First Defendant : No appearance
Second Defendant : Cocks Macnish
Third Defendant : No appearance
Fourth Defendant : No appearance
CIV 1797 of 2002
Counsel:
First Plaintiff : No appearance
Second Plaintiff : No appearance
Defendant : Mr G I Macnish
Solicitors:
First Plaintiff : No appearance
Second Plaintiff : No appearance
Defendant : Cocks Macnish
(Page 4)
Case(s) referred to in judgment(s):
Archer v Channel Seven Perth Pty Ltd [2001] WASC 195
BuyQuick Com. Ltd v Foxgold Pty Ltd [2000] WASC 216
Deputy Commissioner of Taxation for Commonwealth of Australia v Robinswood Pty Ltd [2001] WASC 191
Russell-Davison v Prosin, unreported; SCt of WA (Master Sanderson); Library No 980277; 22 May 1998
Case(s) also cited:
Ansons Pty Ltd v Merlex Corp Pty Ltd [2001] WASC 204
APEP Pty Ltd v Smalley (1983) 8 ACLR 260
Otway v Jones [1955] 2 All ER 585
Robinson v Australian Association of Social Workers Ltd [2000] SASC 239
Scherer v Counting Instuments Ltd [1986] 2 All ER 529
(Page 5)
- HASLUCK J:
The applications
1 The defendants in Supreme Court action CIV 1772 of 2002 are Charles Mostert, John Stratton, Noble Investments, Leadenhall Australia Ltd, Advent Investors and Timothy Owen Lebbon. The second defendant John Stratton, by his solicitors Cocks Macnish has brought on for hearing an application for costs arising out of a previous application for security for costs pursuant to a summons dated 2 July 2002.
2 The second defendant has also brought on for hearing pursuant to a summons dated 8 August 2003 an application to set aside the order for payment into court of security for costs, being an order made by Registrar Rimmer on 22 October 2002. The request to have these matters listed for hearing is reflected in a letter from the defendant's solicitors Cock Macnish to the listing coordinator dated 2 September 2003.
3 I pause to say that I have before me also applications of a similar kind in respect of CIV 1797 of 2002. The parties to the latter action are different but the issues in dispute before me are recognised to be common to both matters. Counsel recognise and accept that a ruling in respect of the CIV 1772 of 2002 matter will produce the same outcome in CIV 1797 of 2002. For the moment, it will be convenient to look initially at the materials relevant to CIV 1772 of 2002.
4 The factual circumstances underlying the plaintiff's claim in that action are described in the statement of claim. They are also reflected in a judgment delivered by Master Sanderson on 30 May 2003. The Sanderson judgment is a useful point of reference in providing an overview of the dispute.
5 I understand that the plaintiff company Durban Roodepoort Deep Ltd was incorporated in South Africa and is registered in Australia as a foreign company. It seems that the plaintiff by the first defendant Mostert, as its Australian based director, became involved in a transaction whereby, in substitution for a company known as Lavender, it sought to purchase a parcel of shares in a company known as CNF. At that time the shares were held by the third defendant.
6 Arrangements were made for a facilitation fee in excess of $5,000,000 to be paid with the first and second defendants being allegedly involved in the relevant arrangements. As a consequence of this transaction the plaintiff company alleges that three payments totalling
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- $5,877,500 were made on 22 and 23 December 1999 and 13 January 2000.
7 The plaintiff company now seeks to recover the amounts in question upon the basis that the defendants were allegedly involved in various breaches of duty. These events are said to give rise to an entitlement to recover the amounts in question plus interest. There is no need, for present purposes to explore these underlying factual circumstances in any greater detail.
Security for costs
8 It will be apparent from the brief overview I have provided that the amounts in questions are sizeable and in the nature of things there is likely to be a considerable degree of effort involved in getting up the case for trial and in attending to various pre-trial procedures. The trial itself will be lengthy and expensive. This brings me to the matter of immediate concern, namely the defendant's desire to obtain security for costs.
9 It seems that over twelve months ago, on 13 June 2002, the second defendant Stratton, by his solicitors, asked if the plaintiff had assets in Western Australia. The second defendant informed the plaintiff company that if it did not have such assets, the second defendant would seek orders for security for costs.
10 By letter dated 14 June 2002 the plaintiff's solicitors suggested that provision of security was not necessary as the plaintiff company had certain shares. The second defendant, by his solicitors, disputed the adequacy of this response by a letter dated 17 June 2002. By letter dated 24 June 2002 the second defendant foreshadowed an application for security. The letter includes this passage:
"We assume from your lack of response that your client will not voluntarily provide security, so our client will make the necessary application within the next day or so."
11 By a letter dated 24 June 2002; that is, on the same day, the plaintiff, by its solicitors, said that it was prepared to provide an appropriately worded bank guarantee as security for costs up to and including discovery.
12 Further exchanges between the solicitors for the parties ensued concerning the proposed arrangements, including a letter dated 27 June 2002, in which the second defendant, by his solicitors, affirmed that he
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- required security "in respect of the entire proceedings" and again foreshadowed that within the next day or so he would be making an application for security. I pause here to say that the explicit terms of that letter imparted a sense of urgency to the correspondence which can be said to have alerted the other side to the need for prompt responses on each occasion.
13 In essence, the plaintiff continued to assert that security by bank guarantee up to discovery was a sufficient response to what was being sought from it by way of security on the defendant's side. This was not acceptable to the second defendant on the grounds that he required security for the entire proceedings and not in the form of a bank guarantee. This remained the second defendant's position prior to the filing of his application for relief on 2 July 2002 and up to the hearing before Anderson J some weeks later. I will turn to the hearing of the second defendant's application in a moment.
14 The difference between the parties during this period can be illustrated in this way: by its pre-application letter dated 1 July 2002, which was faxed to the plaintiff's solicitor on that day, the second defendant sought security for the costs of the proceedings; that is, quite clearly, the full proceedings as illustrated by the draft bill of costs he submitted to the plaintiff's solicitors at that time. As I have noted, this was implicit in the previous course of correspondence. On the other hand, the plaintiff company, as appears from par 22 of the affidavit of its solicitor, Simon Jonathan Davis, sworn 29 August 2002, contended that security of the kind being sought was not appropriate. Mr Davis said in par 22 of that affidavit, which was filed shortly before the crucial hearing:
"The plaintiff does not consider it appropriate for full security up to and including trial to be determined and provided at this stage because of the difficulty in estimating at this stage what the costs of the action will be."
15 In addition, as I have indicated, other exchanges revealed a rather deeply rooted difference of opinion between the parties as to the form of the proposed security for costs. I note in passing that similar arrangements concerning security for costs were contemplated in the concurrent action CIV 1797 of 2002 concerning a claim by DRD Australasia against John Stratton.
16 An application for security for costs must be made promptly or delay may preclude relief. This point is brought out in Seaman Civil Procedure
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- at par 25.3.2. This was alluded to by the solicitors for the second defendant in the course of the correspondence. The plaintiff company was put on notice that an application concerning security for costs would be made promptly to the intent that a ruling would be sought in order to resolve the impasse.
The second defendant's application for security
17 The plaintiff's solicitors did not respond immediately to the faxed letter from the defendant's solicitors dated 1 July 2002 in which the second defendant, having regard to the exchange between the parties, gave notice of his intention to apply for an application for security. By summons dated 2 July 2002, the defendant applied for orders in chambers that security for costs in the action be provided.
18 This application was brought on for hearing initially before an Acting Master of the Court. However, it eventually came on for hearing before Anderson J on 29 August 2002.
19 The affidavits on either side reflected the exchanges between the parties as to the terms upon which security for costs should be granted, much as I have described them. It can be seen, with the benefit of hindsight, that there was a degree of ambiguity or, putting it another way, room for argument as to whether the parties had conferred in the manner contemplated by O 59 r 9 of the Rules of the Supreme Court prior to the matter coming on for hearing before the Acting Master and before Anderson J. Order 59 rule 9 provides that no order shall be made on an application in Chambers unless the application was filed with a memorandum stating that the parties have conferred to try to resolve the matters giving rise to the application and describing the matters that remain in issue between the parties. Importantly, for present purposes, sub-par (2) of the rule provides that the Court may waive the operation of par 1 in a case of urgency or for other good reason.
20 It was common ground before me that no certificate of compliance with O 59 r 9 was filed with the application in question and to date there has been no order specifically purporting to waive compliance with the rule.
The 29 August hearing
21 The hearing before Anderson J on 29 August 2002 was adjourned sine die by consent, as it seemed that the parties would shortly be in a
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- position to agree satisfactory arrangements for security for costs by consent.
22 I pause here to note that by O 43 r 16, the parties to proceedings may file a written consent to the making of an order. By O 43 r 16(2), upon the written consent being filed, the Registrar may settle, sign and seal the order without any other application being made and such an order shall be of the same force and validity as if it had been made after a hearing by the Court.
23 It was therefore open to the parties, if orders could be agreed, either to return before Anderson J to have the proposed consent orders approved by him and to have him rule upon any outstanding issue concerning costs; or, alternatively, to file consent orders pursuant to O 43 r 16. In the event, there seems to have been a degree of confusion and/or misunderstanding between the parties as to which of these courses of action were being followed. That has given rise to an ongoing issue that now comes before me as to how the costs associated with the application for security should be dealt with.
Subsequent events
24 I understand that a consent order signed by the solicitors for the parties was submitted to the Supreme Court. In its original form the relevant draft commenced by referring to the application brought before Anderson J. This is evident from the opening words of the draft order and from par 8 of the draft in that the proposed consent orders refer to the summons being otherwise adjourned.
25 However, the fact of the matter is that the preface to the consent orders was amended to delete the reference to an application by summons dated 2 July 2002, with a view to establishing, it seems, that it was to be regarded simply as a consent order made pursuant to the discrete procedure allowed for by O 43 r 16. The order was then approved by Registrar Rimmer in Chambers on 22 October 2002.
26 The consent orders made provision for security for costs which appeared to be more extensive than that contemplated by the original exchanges between the parties. Provision was made for security for costs up to trial. Importantly, for present purposes, the consent orders did not make provision for the costs of the application for security. Because that matter remained in contention, the matter was brought back before Anderson J on 16 January 2003.
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The 16 January hearing
27 It is immediately apparent from the consent order made by the Registrar that it is far more extensive than anything proposed originally by the solicitors for the plaintiff company. It will be recalled from what I have said that the plaintiff spoke of their willingness to provide security for costs but their proposal was, at least in the early stages of the correspondence, that the security should be provided up to the stage of discovery only.
28 The fact that the consent orders were eventually made in a far more extensive form leads one to believe that eventually the solicitors for the plaintiff company were persuaded that the realities of the situation were that a more extensive order was appropriate.
29 The stance of the defendants at the second hearing before Anderson J on 16 January 2003 was expressed by Mr Macnish for the second defendant at page 92 of the transcript of the hearing. In that regard I refer to page 40 of the affidavit of Julia Routley sworn 7 November 2003. Mr Macnish submitted that the defendants should be awarded the costs of the application because they were ultimately successful in obtaining security for costs and upon a basis that was more extensive than that originally offered by the plaintiff company.
30 Counsel for the second defendant submitted also that the absence of a conferral certificate pursuant to O 59 r 9 did not stand in the way of such an award of costs because the parties had effectively conferred, as reflected in the correspondence I have referred to, and in any event the requirement should be waived pursuant to O 59 r 9(2).
31 Counsel submitted further, and in any event, that the signing of consent orders by the parties and the making of the orders by the Registrar effectively amounted to a waiver of the requirement in regard to conferral.
32 The stance of the plaintiff company at the 16 January hearing was that a reasonable offer in regard to providing security for costs had been made by the plaintiff at the outset. Costs should be awarded to the plaintiff because it was the action of the defendant in making a precipitate application that had given rise to the parties incurring costs in respect of a matter that would otherwise have been worked out and settled by consent.
33 It seems that no orders resolving this dispute were made as a consequence of the hearing before Anderson J on 16 January 2003. The matter was adjourned so that inquiries could be made as to how it came
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- about that consent orders of the kind I have referred to were made. Thus the dispute has run onwards.
Further events
34 The stance of the plaintiff company at the hearing on 16 January 2003 and thereafter has been that the absence of a certificate of compliance in regard to conferral, or any order for waiver, was a bar, and remains a bar, to the making of orders of any kind pursuant to the original summons. It is said the Registrar did not have power to waive compliance and the making of consent orders pursuant to O 43 r 16 cannot be regarded as a waiver.
35 I understand that in order to avoid possibly being prejudiced by the making of the consent orders by the Registrar, and as a further line of argument, the second defendant has applied to set aside the consent orders made by Registrar Rimmer. It is thought that by this avenue the second defendant will be at liberty to argue the waiver issue and the costs issue as an alternative plea.
36 Simultaneously, counsel for the second defendant contends that the consent orders previously made should be replaced by new orders made by the Judge in Chambers in essentially the same terms as the Registrar's order because it is apparent, having regard to the arrangements previously made between the parties, that these are the appropriate orders.
37 The plaintiff company submits that the second defendant's application to set aside the consent orders is merely a technical pretext to avoid the consequences of the second defendant's failure to confer and create and lodge a certificate of compliance before the original application for security was commenced. In that regard, I refer to the plaintiff's written submissions dated 2 December 2003 at par 18.
38 The plaintiff company says further that the second defendant's failure to accept the plaintiff's initial offer as to security and his failure to confer has resulted in all of the costs of the applications being incurred. It is said the costs of the application should, therefore, be allowed to the plaintiff or there should be no order as to costs.
General observations
39 As indicated in earlier discussion, I consider that the present impasse has come about because both parties apparently failed to appreciate that O 43 r 16 is a discrete procedure. Both parties therefore failed to take
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- appropriate corrective action when the draft consent orders submitted to the Court were amended in order to reflect the proper procedure.
40 Because it is a discrete procedure, I am of the view that the Registrar's order cannot be regarded as a waiver for the purposes of O 59 r 9. However, for reasons I will come to in a moment, I do not consider that it is either necessary or appropriate to recall or to set aside the consent orders affirmed and sealed by the Registrar. Those orders are confined to the substantive issues as to what should be provided by way of security. However, in my view, the application for security dated 2 July 2002 previously brought before Anderson J on two occasions remains on foot, having been adjourned on both occasions. If the parties had brought the consent orders before his Honour, he would undoubtedly have approved them and then dealt with the outstanding issue as to costs, subject only to resolution of the conferral issue.
41 In my mind that is how I should approach the matter, save that it is not necessary to address the security issue because that is now covered by the Registrar's order. It is as if the parties had simply settled that aspect of the summons by agreement or by another process. It remains for me to deal with the outstanding issue as to costs enlivened by the summons dated 2 July 2002 and subsequent events, including the two previous hearings in Chambers.
42 This brings me to the waiver issue under O 59 r 9(2).
The waiver issue
43 The principles underlying O 59 r 9 are set out succinctly in Seaman Civil Procedure at par 59.9.1. The learned author says that r 9 is an important rule which is very much in the interests of the parties and of justice. Its purpose is to ensure that the parties resolve issues between themselves so far as is possible so that only matters really in dispute come before the court, and when they do come before the court the parties appreciate the real issues in dispute: Deputy Commissioner of Taxation for Commonwealth of Australia v Robinswood Pty Ltd [2001] WASC 191 at par 12.
44 The learned author says further that the provision was introduced because the issue of Chambers applications without prior communication between the parties frequently gave rise to expense and delay and the clogging of lists. The rule demands a conference as a necessary step in the generality of circumstances before a Chambers application is made and this is so no matter how unlikely it is that the parties will reach
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- complete agreement or even narrow the issues: Russell-Davison v Prosin, unreported; SCt of WA (Master Sanderson); Library No 980277; 22 May 1998; BuyQuick Com. Ltd v Foxgold Pty Ltd [2000] WASC 216 at par 19.
45 The requirements with respect to conferral in this context are described by McLure J in a recent decision, namely Archer v Channel Seven Perth Pty Ltd [2001] WASC 195. Her Honour said this, commencing at par 5:
"The notion of conferral for the stated purpose implies an exchange of views, oral or in writing, between the parties for the purpose of trying to resolve the matters in issue.
This interpretation of conferral, which I adopt, is consistent with the spirit and purpose of r 9 which is to ensure that only matters which cannot be resolved between the parties are the subject of an interlocutory application."
46 Her Honour went on to say at par 6:
"A proposed applicant has limited avenues to force an opposing party to engage in an exchange of views in an attempt to resolve matters. However, in the event an applicant has given adequate notice of the nature and grounds of a proposed application, an opposing party's failure to respond would be good reason for the Court to waive the operation of paragraph 1 of Order 59 rule 9 and in appropriate circumstances justify a Court's order which reflects the opposing party's failure to facilitate compliance with Order 59 rule 9."
47 It is significant that in that case the nature of the conferral was based upon correspondence only. It is described in her Honour's judgment where she said at par 8:
"…the plaintiff's solicitors rejected the assertion that the defendant's letter of 24 April 2001 was a conferral, said they were prepared to confer but provided no substantive response to the objections to the statement of claim."
48 It was against that background that the defendant in that case filed and served its application to strike out the statement of claim. Her Honour held in the circumstances she had described that the operation of O 59 r 9 in regard to the certificate of compliance should be waived.
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The present case
49 Let me now return to the circumstances of the present case. I note, having regard to what was said by McLure J in Archer (supra) that there can be a conferral based upon correspondence only.
50 In the circumstances of the present case, I consider that in the exercise of the discretion allowed to me by O 59 r 9(2) I should make an order for waiver. It is apparent to me that the exchanges between the parties prior to the application for security being made and prior to the matter being brought on for hearing before Anderson J can properly be regarded as a conferral. There was a joinder of issue and, prior to the application being made, attempts to resolve the issue had failed. The second defendant, as the party seeking security, was obliged to act promptly, and did so. The dispute reflected in the joinder of issue ran on.
51 In the circumstances of this case, this amounts to a good and sufficient reason, in my view, for the grant of a waiver, being one of the criteria provided for by sub-par (2) of the relevant rule. In other words, the nature of the exchanges before the application was issued on 2 July 2002 were sufficient to define the matters in issue and to establish that there was a significant dispute between the parties which could not be resolved by conferral as to the manner in which security for costs was to be provided. That it was a significant dispute is borne out by subsequent events and the fact that the impasse continued until the date of the first hearing before Anderson J. It continued beyond that date as is reflected in subsequent exchanges.
52 I illustrate my conclusion in that regard by turning to the letter by the second defendant's solicitors to the plaintiff's solicitors dated 19 August 2002 in which there is a reference to accepting the proposed initial security in the amount of $60,000 in regard to the period up to discovery. The defendant's solicitors then seek the proposals of the plaintiff's solicitors as to the "provision of the balance of security to be provided to our client." It is quite clear that they are insisting upon the stance reflected in their correspondence before the application was made whereby they were looking for security for the entire proceedings.
53 That letter was responded to by the plaintiff's solicitors in a letter dated 26 August 2002 in which reference is made to the balance of the security in terms which indicate that there remain matters in issue between the parties in that regard.
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54 I have already referred to that paragraph in the affidavit of Simon Davis where, in the day or so before hearing, he affirmed that the plaintiff did not consider it appropriate for full security up to and including trial to be determined and provided at this stage because of the difficulty in estimating at that stage what the costs of the action will be.
55 I do not intend to traverse the entirety of all the events that then followed. I have noted that after the hearing before Anderson J was adjourned, further exchanges took place. However, in summary, it is clear from the chronology and related documents placed before me that it was not until 26 September 2002 that it was possible to finalise all matters in the form of consent orders corresponding to the consent orders that were eventually endorsed by the Court. Thus, it is clear that the seeds of the dispute were evident prior to the application for security being filed on 2 July. The fact that it was a significant dispute is evidenced by the fact that it took a number of months thereafter before the parties could finally come together and reach an amicable agreement.
56 Having waived the need for compliance, as I have indicated I will do, it is open to me by that means to return to consider orders in response to the original summons including an order for costs. As to that matter, I consider that the second defendant should be allowed the costs of the application.
57 In my view it was necessary, against the background I have described, for the second defendant to press its claim for security notwithstanding the plaintiff's apparent offer to provide security. Closely analysed, it emerges that the offer made by the plaintiff was of a limited kind and left matters in issue as to whether the security should take the form of a bank guarantee and as to whether it should be of a staged kind for various phases of proceedings.
58 There was clearly a difference of opinion between the parties and in the context of litigation concerning a foreign company and in respect of sizeable amounts of money. The context suggested also that the litigation would be accompanied by complexity in various respects. In these circumstances, it appears to me, it was necessary for the second defendant by his solicitors, in order to obtain appropriate relief, to press for orders of the kind he eventually obtained by way of the Registrar's order.
59 Put shortly, one can infer from the history of the exchanges in the 3 month period of July, August, September 2002, as I have described them, that the second defendant's desire to obtain full security for the full
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- proceedings, as foreshadowed in its pre-application letter of 1 July 2002, was opposed by the plaintiff from that time, at the beginning of July 2002, until all matters were finally resolved on 26 September 2002. This indicates and establishes to my satisfaction that the second defendant was obliged to press its application for security and can be described as having been ultimately successful in regard to the application it was pressing.
60 In essence, the plaintiff's original offer was not acceptable to the second defendant because it was limited to the bank guarantee to cover costs and to cover costs only up to discovery. It was not until the hearing before Anderson J and following exchanges that proposals were forthcoming on the plaintiff's side that led, pursuant to the consent orders, to cash payments to cover costs up to a trial.
61 Counsel for the plaintiff at the hearing before me sought to answer this line of thought by referring to a draft minute dated 14 August 2002 and earlier exchanges which contemplated that the plaintiff would be willing to allow there to be liberty to apply for security at various stages of the litigation beyond the initial stage.
62 However, to my mind a facility of that kind cannot be said to have met the second defendant's reasonable requirement for full security for the full amount of the proceedings. The second defendant was not able to obtain agreement prior to the hearing before Anderson J and was obliged to press its application for security.
63 It follows from all of this that, in my view, owing to the plaintiff's intransigence, it was necessary for the second defendant to make and persevere with the application for security. It obtained sufficient security for the various stages of the litigation eventually. This conclusion underpins my view that the second defendant should be characterised as the successful party. I am not persuaded that the second defendant's actions in some way precipitated or brought about a situation in which costs were unnecessarily incurred.
64 It, therefore, seems to me that the usual rule whereby costs follow the event should be applied, so that a party characterised as the successful party is able to obtain its costs.
Summary
65 In summary, then, I will order that there be a waiver pursuant to O 59 r 9(2). For the reasons I have given, the costs of the application for security referred to in the summons dated 2 July 2002 will be allowed to
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- the second defendant. The second defendant's application to set aside the Registrar's order will be dismissed without any order as to costs on the grounds that it was simply a matter incidental to the principal dispute.
66 As I noted at the outset, both counsel accepted that the ruling made in respect of CIV 1772 of 2002 would apply with equal force or application to CIV 1797 of 2002. Accordingly, although the parties and issues in that case are different, I apply the line of reasoning I have previously outlined to that matter also. It follows that I will make the same orders with respect of CIV 1797 of 2002.
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