Fulton Hogan Construction Pty Limited v Grenadier Manufacturing Pty Limited (No 2)
[2012] VSC 569
•23 November 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
S CI 2010 04249
| FULTON HOGAN CONSTRUCTION PTY LIMITED | Plaintiff |
| V | |
| GRENADIER MANUFACTURING PTY LIMITED (In Liquidation) AND OTHERS | Defendants |
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JUDGE: | ALMOND J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 21 September 2012 | |
DATE OF JUDGMENT: | 23 November 2012 | |
CASE MAY BE CITED AS: | Fulton Hogan Construction Pty Limited v Grenadier Manufacturing Pty Limited (No 2) | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 569 | |
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COSTS – Calderbank offer – Plaintiff seeking solicitor and client costs – Whether it was unreasonable for the defendants to reject the offer – Plaintiff seeking indemnity costs due to prolongation of the trial arising from the third defendant’s failure to make proper discovery – Apportionment of costs between the defendants.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms K J Le Faucheur | Cornwall Stodart |
| For the Second Defendant | Mr J J Isles | Acquaro & Co |
| For the Third Defendant | Mr P J Cosgrave SC and Ms B Lim | Norris Coates |
HIS HONOUR:
This proceeding concerned delamination of an industrial coating which had been applied to a footbridge to be installed over the Burwood Highway at Vermont South in Victoria. On 23 August 2012, I published my reasons for judgment. I found that the batch of Galvit EP100 primer manufactured by Wattyl Australia Pty Ltd (“Wattyl”) and used by the applicator Cox Coating Pty Ltd (“Cox”) to coat the trusses on the footbridge was, on the balance of probabilities, defective and caused widespread delamination of the coating and ultimately necessitated re-blasting and re-coating of the trusses.
I found that some delamination of the coating was attributable to inadequate preparation of the substrate on the trusses and apportioned liability 5% to Cox and 95% to Wattyl. Fulton Hogan also claimed for delamination of coating on some of the handrails of the footbridge. I found that there was insufficient evidence to determine whether the defects to the coatings on the handrails were caused by defective product or poor application by other contractors. Accordingly, I found that Fulton Hogan succeeded in establishing liability with respect to the trusses, but not with respect to the handrails.[1]
[1][2012] VSC 358.
The proven loss and damage with respect to the trusses totalled $1,593,805.83.
Fulton Hogan claims interest on the damages awarded from the date of issue of the proceeding on 5 August 2010 to 23 August 2012 at the rate fixed from time to time under s 2 of the Penalty Interest Rates Act 1983 in an amount of $343,869.07.[2] The entitlement to some interest and the accuracy of the calculation is not in dispute. Fulton Hogan seeks judgment with respect to the claim and interest against Wattyl for the amount of $1,840,791.16 and Cox for the amount of $96,883.74.
[2]Penalty Interest Rates Act 1983 (Vic) s 2.
With respect to costs, Fulton Hogan submits that Cox and Wattyl should pay Fulton Hogan’s party and party costs of and incidental to the proceeding in proportion to their respective liability up to and including 5 August 2011, being the expiry date for acceptance of a settlement offer contained in a Calderbank letter from Fulton Hogan to Cox and Wattyl dated 22 July 2011.
Fulton Hogan seeks:
(a)an order that Wattyl and Cox pay Fulton Hogan’s costs of and incidental to the proceeding in proportion to their liability from and including 6 August 2011 on a solicitor and client basis by reason of it having made a Calderbank offer to settle the proceeding which was not accepted;
(b)an order that Wattyl pay Fulton Hogan’s costs on an indemnity basis with respect to costs which were incurred by reason of the prolongation of the trial which Fulton Hogan submits occurred as a consequence of Wattyl’s conduct with respect to discovery; and
(c)an order against Wattyl and Cox in proportion to their liability with respect to the costs of the fourth defendant, Daniel Joseph Ryan, trading as Goldfields Surface Coatings (“Goldfields”).
Wattyl and Cox submit that with respect to the trusses, the usual rule of costs following the event should apply and that Cox and Wattyl should pay Fulton Hogan’s costs of this claim on a party and party basis. With respect to the costs relating to the handrails, Wattyl submits that the usual rule of costs following the event should also apply and that Fulton Hogan should pay Wattyl’s costs of this claim on an indemnity basis.
Fulton Hogan’s Calderbank letter of 22 July 2011
By letter dated 22 July 2011, Fulton Hogan by its solicitors made an offer to Cox and Wattyl to settle the proceeding in accordance with the principles in Calderbank v Calderbank[3] and Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2)[4] on terms that :
· either or both of Cox and Wattyl pay to Fulton Hogan the amount of $1,390,000.00 in full and final settlement of its claim within one month of the date of the letter;
· either or both of Cox and Wattyl pay Fulton Hogan’s party and party costs of and incidental to the proceeding; and
· Fulton Hogan pay the fourth defendant’s party and party costs of the proceeding as at the date of the letter.
[3][1975] 3 All ER 333.
[4](2005) 13 VR 435.
The offer provided for mutual releases between Fulton Hogan and Cox and Wattyl and was marked “without prejudice save as to costs”. Fulton Hogan reserved its right to seek solicitor and client costs against either or both of Cox and Wattyl should the offer not be accepted.
In a separate offer in the Calderbank letter, Fulton Hogan offered to release the fourth defendant (Daniel Joseph Ryan, trading as Goldfields Surface Coatings) from the proceeding on the basis that::
· Fulton Hogan discontinue its claim against Mr Ryan;
· Cox discontinue its contribution proceedings against Mr Ryan; and
· Mr Ryan discontinue his contribution proceeding against Wattyl.
· The question of who would pay Mr Ryan’s party and party costs of the proceeding as at the date of the offer would be reserved to the trial judge to be determined at the conclusion of the proceeding.
Fulton Hogan advised that both offers would remain open for acceptance until 5.00pm on Friday 5 August 2011.
Fulton Hogan submits that by reason of the outcome at trial and (taking into account interest) it is entitled to judgment in the amount of $1,937,674.90, apportionable 95% to Wattyl ($1,840,791.16) and 5% to Cox ($96,883.74), as the Calderbank offer was for an amount of $1,390,000.00 payable by either or both Cox or Wattyl. The damages Fulton Hogan was awarded at trial substantially exceeded the offer amount.
Fulton Hogan submits that:
(a)Cox and Wattyl had time to evaluate their prospects a reasonable time before the commencement of the trial when the issues between the parties were well defined and parties had exchanged expert reports;[5]
(b)Cox and Wattyl had sufficient time to consider the Calderbank offer;
(c)the extent of the compromise offered by Fulton Hogan was reasonable as it accepted Wattyl’s assessment of quantum as determined by Wattyl’s quantity surveyor, Mr Rodney Alsop;
(d)Fulton Hogan’s prospects of success at the date of the offer were good, because the issue was one of liability between Cox and Wattyl which need not have involved the further participation of Fulton Hogan;
(e)the liability issues at trial could have been dealt with discretely between Cox and Wattyl with Fulton Hogan’s witnesses being called in either Cox or Wattyl’s case as necessary;
(f)given late discovery of crucial documents addressing liability, Wattyl was in a better position to assess its position on liability at the time of the Calderbank offer than Fulton Hogan or Cox;
(h)the terms of the offer were expressed with clarity and dealt with all relevant issues and was capable of acceptance by Cox, Wattyl or both; and
(i)the offer foreshadowed an application for solicitor and client costs and Cox and Wattyl would have known the potential cost consequences of rejecting the offer at the relevant time.
[5]The parties had the benefit of a CSIRO Test Report dated 17 July 2009, a CETEC Report dated December 2010, a KTA-Tator Australia Report dated 10 December 2010, a Uniquest Pty Ltd Report dated 7 July 2011 and a report on quantum by Mr Rodney Alsop dated 7 July 2011.
In the circumstances, Fulton Hogan submits that it was unreasonable for Cox and Wattyl to reject the offer and that Fulton Hogan should be entitled to solicitor and client costs from the date of the expiration of the offer on 5 August 2011 to the date of judgment on 23 August 2012.
Was it unreasonable for Wattyl to reject the Calderbank offer?
Wattyl submits that it was not unreasonable for Wattyl to reject the offer and that the offer was not clear and was not capable of acceptance by Wattyl in such a way as to compromise the proceeding.
In assessing whether rejection of a Calderbank offer is unreasonable, the Court must exercise its discretion and would ordinarily have regard to the following matters:
(a)the stage of the proceeding in which the offer was received;
(b)the time allowed to the offeree to consider the offer;
(c)the extent of the compromise offered;
(d)the offeree’s prospects of success, assessed as at the date of the offer;
(e)the clarity with which the terms of the offer were expressed;
(f)whether the offer foreshadowed an application for indemnity costs in the event of the offeree rejecting the offer.[6]
[6]Hazeldene’s Chicken Farm v Victorian WorkCover Authority (No 2) (2005) 13 VR 435, 442 [25].
The Calderbank offer was made at an advanced stage in the proceedings after mediation and after an exchange of expert reports as to liability and quantum. The compromise offered appeared significant in monetary terms. The amount of the claim particularised at the time of the Calderbank letter was $1,896,887.00. The offer in the Calderbank letter was $1,390,000.00 (on the basis that the quantum assessed by the Wattyl’s expert Mr Alsop on 7 July 2011 was $1,270,155.70, interest on the claim was $127,520.15 and the total rounded down from $1,397,675.85). The Calderbank offer foreshadowed that an application for solicitor and client costs would be made in the event of rejection of the offer.
As to Wattyl’s prospects of success, Wattyl must have known that:
· Fulton Hogan would in all likelihood succeed at trial against one or other of Cox or Wattyl;
· the substantive issue to be determined at trial was whether the failure of the coating came about as a result of application issues or defective product;
· Fulton Hogan’s continued involvement in the litigation would inevitably mean that substantial additional costs would be incurred; and
· the quantum of Fulton Hogan’s offer was in line with and based on the opinion of Wattyl’s expert on quantum whose estimate of Fulton Hogan’s loss and damage (plus interest) approximated the amount offered.
Wattyl was also aware that there were issues with respect to failure of the Galvit primer including the spontaneous delamination of primer on test panels prepared by Wattyl a year earlier.
Wattyl was aware that Mr Eccleston of CSIRO had concluded that the primer coating on the trusses had failed to cure sufficiently and that the Galvit EP100 base may have been past its shelf life when it was applied. Wattyl was aware from batch numbers that the batch of Galvit primer it had supplied to the fourth defendant, its distributor for on-supply, was manufactured in October 2006, more than two years before it was used to coat the trusses and the handrails from December 2008 onwards.[7]
[7]The Wattyl product information sheet indicated that the product had a shelf life of “at least twelve months”.
Wattyl would have been aware that if the evidence of the experts called by Fulton Hogan and Cox was accepted in preference to the evidence of the experts called by Wattyl, that Wattyl would in all likelihood be liable for the whole of Fulton Hogan’s claim. Wattyl must be taken to have known and appreciated the risks entailed in the litigation.
With the benefit of hindsight, the offer of Fulton Hogan appears to have been very reasonable, but at the time it was made it may not have appeared so to Wattyl. As at 5 August 2011, Wattyl had a revised expert report from a senior quantity surveyor, Mr Alsop, who assessed the fair value of Fulton Hogan’s claim, based on the material available to him, at $1,239,290, substantially less than Fulton Hogan’s claim of $1,937,564.48.
Acceptance of the Calderbank offer, absent any contribution from Cox, would have required Wattyl, in effect, to pay out the fair value of Fulton Hogan’s claim plus interest plus the plaintiff’s party and party costs. If it sought contribution, Wattyl would have then needed to prosecute a claim against Cox with no certainty of recovery, as Cox may or may not have been in a position to pay substantial damages. Had Cox made an offer to contribute to the proposed settlement amount of $1.39 million and in the process alleviated a proportion of the monetary exposure faced by Wattyl, there would be a stronger case for a special costs order against Wattyl. Rejection of the Calderbank offer would have become less reasonable the more Cox offered to contribute. Cox however did not offer to contribute anything, so Wattyl was faced with the prospect of underwriting the whole of the settlement amount itself without any discount to the fair value of the claim (as assessed by Wattyl’s expert).
Further, at the time the offer was made there were conflicting independent expert reports, some attributing the failure of the coating to application issues, others to defective product. In particular Wattyl had a report from Mr Haig of Uniquest which was relatively scathing of the expert report of Dr Garnys, which was relied on by Fulton Hogan. Wattyl was not to know at that stage that the probative value of Mr Haig’s evidence would be substantially undermined by his lack of objectivity at trial and his failure to adequately reconcile the presence of corrosion products within a single layer of Galvit primer which had failed.
Whilst the issue is finely balanced, taking these matters into account, including the submissions of counsel, I find it was not unreasonable for Wattyl to reject the offer at the time it was made.
Was it unreasonable for Cox to reject the Calderbank offer?
In my view, it was not unreasonable for Cox to reject the Calderbank offer at the time. Whilst there were independent expert reports suggesting applications issues were the cause of failure, Cox had contemporaneous internal records which suggested it had prepared the substrate of the trusses adequately and an independent report from Mr Eccleston of CSIRO whose testing showed that the coating on the trusses had failed to cure properly.
Further, at the time it made the Calderbank offer Fulton Hogan had not discovered two reports written by Mr Stone of Macspec dated 27 May 2009 and 9 June 2009 respectively. These reports pointed to cohesive failure of the Galvit primer coating and revealed some failure of the coating to adhere to the substrate. This failure to adhere implied there were some shortcomings in preparation of the substrate. At the time Fulton Hogan made the Calderbank offer, Cox’s vulnerability in this regard was not apparent from the expert reports which had been discovered. In my view, Cox was entitled to consider it had reasonably good prospects of defending the plaintiff’s claim which indeed proved to be the case at trial, save in a minor respect. In my view, a special costs order against Cox is not warranted.
Clarity of the Calderbank offer
On the question of clarity of the Calderbank offer, senior counsel for Wattyl submitted that the Calderbank letter was not clear as to the extent to which the plaintiff’s offer to Cox and Wattyl was interrelated or connected with the plaintiff’s offer to release the fourth defendant from the proceedings.
Wattyl submitted that the Calderbank letter containing both offers suffered from internal inconsistency, because it was not obvious from the terms of the letter whether Wattyl had to accept one offer or both offers. Both offers independently addressed the disposition of the fourth defendant’s costs in the proceeding.
The main problem with this submission is that no issue of internal inconsistency or resulting confusion was raised at the time. Both Cox and Wattyl accepted the plaintiff’s offer to release the fourth defendant without evident concern about any interrelationship or connection between the two offers and entered into consent orders to that effect.[8]
[8]Order of the Honourable Justice Almond dated 9 September 2011.
In relation to the other offer, there is some awkwardness in the manner of its expression and inconsistent treatment as to the disposition of the fourth defendant’s costs. In my view, the inconsistency is without consequence. Had the offer been accepted Fulton Hogan would have been required to pay the fourth defendant’s party and party costs of and incidental to the proceeding. The reservation of the question of who would pay the fourth defendant’s party and party costs to the trial judge would have become otiose. Otherwise, in my opinion the offer was sufficiently clearly expressed. In effect, Fulton Hogan was saying it would accept $1.39 million plus costs either from Wattyl or Cox or both.
Costs on an indemnity basis due to prolongation of the trial
Fulton Hogan seeks 1½ days’ costs assessed on an indemnity basis to reflect costs incurred by reason of prolongation of the trial. Fulton Hogan submitted this occurred as a consequence of Wattyl’s failure to make proper discovery of relevant documents, including a failure to provide samples of the coating products when requested. Senior counsel for Wattyl conceded that the trial was prolonged as a consequence and accepted that Fulton Hogan should receive some indemnity costs. In my view, Wattyl took a cavalier attitude to its obligation to make discovery. It discovered highly relevant documents on the eve of and during the trial and declined to discover the manufacturing record (batch ticket) for the relevant batch of paint. No explanation was proffered to the Court to explain this non–compliance. Wattyl’s conduct was inconsistent with the overarching obligations in the Civil Procedure Act 2010.[9]
[9]Civil Procedure Act 2010 (Vic) ss 25, 26.
Senior counsel for Wattyl submitted that Fulton Hogan was itself dilatory in its performance of discovery obligations by discovering documents late. Wattyl submitted that between 21 and 30 September 2011, Fulton Hogan discovered the Macspec reports, correspondence between SEITA and Fulton Hogan, the Project Manager’s diary, employee site diaries and a site visitor’s log.
Wattyl submitted that due to their significance, the details of the Macspec reports were put to Dr Garnys and Mr Eccleston, and that about half a day was taken up with dealing with those reports. In the circumstances, Wattyl submits that there should be an offset to allow for this and accepts that one day’s indemnity costs are reasonable. I accept Wattyl’s submission and allow indemnity costs in favour of Fulton Hogan of one day instead of the 1 ½ days claimed.
Interest
Wattyl submits that Fulton Hogan should not recover interest for the whole of the period from the conclusion of the trial on 17 November 2011 to the delivery of reasons for judgment on 23 August 2012, on the basis that it had no control over the time between the conclusion of the trial and the giving of judgment. Wattyl submits that it should be liable for interest for a period from the date the proceedings were issued on 5 August 2010 to 31 March 2012 instead of until 23 August 2012 to allow for a reasonable period of interest.
In my view, a period of nine months from the conclusion of the trial to the delivery of judgment does not amount to good cause under s 60 of the Supreme Court Act 1986 for not awarding the plaintiff damages in the nature of interest.[10] The issues in the case were complex. The trial ran for a period of approximately six weeks and included 10 days of concurrent evidence from experts. There were numerous technical reports, more than 2,000 pages of transcript and a substantial court book, all of which necessitated extensive reasons for judgment. Furthermore, Cox and Wattyl have had the use of the money in the meantime.
[10]Supreme Court Act 1986 (Vic) s 60.
In the circumstances, I propose to allow the interest in favour of the plaintiff for the whole of the period claimed.
Handrail claim offset
Wattyl submits that Fulton Hogan ran the trial on the basis of allegations of product defects and product application issues regarding the trusses and the handrails; that the experts dealt with chemical issues and the question of application in relation to the trusses and also in relation to the handrails; that there was a substantial amount of evidence in common and specific evidence about handrails. This included the expert reports of Dr Garnys and Mr Pellegrino and the evidence given by Mr Haig and Mr Cook regarding tests on samples taken from the handrails.
Wattyl submits it would be fair to apportion 25% of the costs of the proceeding to the handrail claim and that a convenient way of dealing with this is for Fulton Hogan to recover 75% of its costs of the proceeding to reflect its failure to succeed in relation to handrails.
Counsel for the plaintiff submitted that if there is to be an allowance in relation to the handrails the allowance should be in the order of about 5%.
In my view, it is not possible in this case to clearly demarcate the time and resources devoted to issues upon which the parties were successful or unsuccessful. The evidence was interwoven and overlapping.
I consider it would be just in all the circumstances to make some allowance for the fact that the plaintiff failed in its claim with respect to handrails. Balancing matters as best I can, I assess the percentage at 20%.
In order to simplify taxation of costs, I propose to order that Fulton Hogan be entitled to 80% of its costs of the proceeding. In that way, it will be unnecessary to separately cost handrail related issues.
Apportionment of costs
Counsel for Cox submitted that the apportionment of costs in respect of the truss claim should be on a 95% and 5% basis because the plaintiff spent most of the time prosecuting Wattyl during the course of the trial and that Cox took a subsidiary role during the trial. Indeed, due to funding issues at times counsel for Cox was not required to attend court.
Senior counsel for Wattyl submitted that in respect of the truss claim, Cox should bear half the party and party costs of Fulton Hogan because Cox adopted an intransigent attitude and did not offer to contribute to a settlement.
I propose to divide responsibility for Fulton Hogan’s costs in the proportions 5% to Cox and 95% to Wattyl. I do so because Wattyl very substantially failed in its defence of the proceeding. Wattyl asserted that the Galvit primer used on the trusses was sound and that the delamination of the coating on the trusses was caused by application issues. It failed on both counts (save that it established some minor adhesion failure). The major cause of failure of the coating on the trusses was defective product. On the other hand, Cox very substantially succeeded in its defence of the proceeding and the apportionment of costs should reflect that outcome.
Cox’s costs
Counsel for the second defendant submitted that Wattyl should pay a proportion of Cox’s costs. I do not accept this submission. I do not propose to require Wattyl to pay any proportion of Cox’s costs. Cox made no offer either to the plaintiff alone or in conjunction with Wattyl to settle the proceeding. In its own way, it contributed to the prolongation of the dispute between the parties and took no positive step to avoid a lengthy trial.
Reserved costs relating to the release of the fourth defendant from the proceedings
The fourth defendant, Daniel Joseph Ryan, traded as Goldfields Surface Coatings. Goldfields Surface Coatings supplied the coating products manufactured by Wattyl. It was appropriate to join the fourth defendant to the proceeding. Equally it was sensible for Cox and Wattyl to accept the Calderbank offer releasing the fourth defendant and reserving the question of who should pay the fourth defendant’s party and party costs of the proceeding as at the date of the Calderbank offer.
In my view, Fulton Hogan, having succeeded at trial, should not bear the fourth defendant’s party and party costs of the proceeding.
Fulton Hogan submits that Cox and Wattyl, being the unsuccessful parties, should bear Goldfields’ costs in proportion to their liability as determined in the judgment, 5% to Cox, 95% to Wattyl; that it was reasonable to have joined Goldfields; that the conduct of Wattyl and Cox was such as to make it just to require them to indemnify Fulton Hogan;[11] and that Fulton Hogan’s claims against Wattyl, Cox and Goldfields were interdependent or essentially alternative claims.[12] I accept that it was reasonable for Fulton Hogan to have joined the supplier Goldfields[13] (as well as the manufacturer Wattyl) in a claim in negligence.
[11]State of Victoria v Horvath(No 2) [2003] VSCA 24, 8-9 [10].
[12]Ibid 7-8 [9]; Berrigan Shire Council v Ballerini (No 2) [2006] VSCA 65, 6, 9, 16-17, [13], [22] and [40]-[41].
[13]Being the supplier of the coating products to the first defendant Danfab.
It was submitted by Fulton Hogan that the proper order is that Cox pay the party and party costs of Goldfields related to Cox’s notice of contribution and otherwise pay 5% of Goldfields’ costs of and incidental to the proceedings on a party and party basis and that Wattyl pay 95% of Goldfields’ costs of and incidental to the proceeding (excluding those costs related to Cox’s notice of contribution) on a party and party basis.
Wattyl submits that Fulton Hogan should itself bear Goldfields’ party and party costs of the claim made against it. Alternatively, Cox and Wattyl should each pay half the party and party costs of Goldfields.
In my view, Wattyl’s submission that there was no basis upon which it was reasonable for Fulton Hogan to join Goldfields as a party to the proceeding as the supplier of the product to the first defendant Danfab is without merit. There was no doubt that Goldfields supplied the product. Arguably, it would have been remiss not to join the fourth defendant which was clearly in a proximate relationship to Fulton Hogan, the head contractor responsible for supplying a footbridge with high quality coating.
Wattyl submits that Cox’s intransigent attitude to any settlement of the proceeding meant that the proceeding continued longer than it should have. This submission does not in my view bear on the question of who should pay Goldfields’ party and party costs. At least in relation to Goldfields, Cox was not intransigent. Cox accepted the Calderbank offer relating to the fourth defendant together with Wattyl, releasing the fourth defendant from further involvement in the proceeding. This meant that the proceeding against the fourth defendant was brought to an end at an early stage and prevented the further incurring of costs by Goldfields. I am not persuaded by Wattyl’s submission that given that Fulton Hogan succeeded against both Cox and Wattyl, those defendants should share equally in the party and party costs of Goldfields. In my opinion Goldfields’ costs should be apportioned in proportion to the liability as determined in the judgment, namely 5% to Cox and 95% to Wattyl, save that Wattyl should not be required to pay any costs of Goldfields relating to Cox’s notice of contribution. Cox should pay the party and party costs of Goldfields relating to Cox’s notice of contribution.
Accordingly, I order that:
1.There be Judgment for the Plaintiff for the amount of $1,937,674.90 (being damages in the amount of $1,593,805.83, together with interest calculated on such damages in the amount of $343,869.07) and that Judgment be entered against:
(a)the Second Defendant for the amount of $96,883,74; and
(b)the Third Defendant for the amount of $1,840,791.16.
2.The Second and Third Defendants pay eighty per cent of the Plaintiff’s costs of and incidental to the proceeding, assessed on a party and party basis to be taxed by the Costs Court in the absence of agreement (‘the Plaintiff’s party and party costs’), to be apportioned between them in accordance with orders 3(a) and 4(b) below.
3.The Second Defendant:
(a)pay five per cent of the Plaintiff’s party and party costs of and incidental to the proceeding (excluding the Plaintiff’s costs referred to in paragraph 4(a) below);
(b)pay the Fourth Defendant’s costs of and incidental to the Second Defendant’s Notice of Contribution, assessed on a party and party basis; and otherwise,
(c)pay five per cent of the Fourth Defendant’s costs of and incidental to the proceeding assessed on a party and party basis.
4.The Third Defendant:
(a)pay the Plaintiff’s costs with respect to one day of the trial assessed on an indemnity basis; and
(b)otherwise and subject to Order 2, pay ninety-five per cent of the Plaintiff’s party and party costs of and incidental to the proceeding; and
(c)pay ninety-five per cent of the Fourth Defendant’s costs of and incidental to the proceeding, assessed on a party and party basis (excluding the costs of the Fourth Defendant of and incidental to the Second Defendant’s Notice of Contribution).
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