Gove v Black

[2006] WASC 298 (S2)

GOVE -v- BLACK & ORS [2006] WASC 298 (S2)

Link to Appeal : [2009] WASCA 181 [2009] WASCA 181(S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 298 (S2)
Case No:	CIV:2375/1997	Heard:	6-9 & 13-21 NOVEMBER 2006, 14 FEBRUARY, 1 MARCH & 7 JUNE 2007
Coram:	TEMPLEMAN J	Delivered:	20/12/06
Supplementary Delivered:	6/07/07
No of pages:	32	Judgment Part:	1 of 1
Result:	Contained in Appendix
Category:	A
PDF Version

Parties:	SHARON LEE GOVE RICHARD ASH BLACK ASH INVESTMENTS PTY LTD (ACN 007 949 395) THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175) CITY OF FREMANTLE DREXEL LONDON (A FIRM) HALPERN GLICK PTY LTD (ACN 008 729 204) BARNABY PIERRE COLIN WOOD PAUL CHARLES BLACKMAN KYLE THEODORE PETERS MICHAEL ANTONY KUBA SHELLEY MERRILYN GOLLAN MARYANNE FIORE MIA LEE FARINOSI TINA ELIZABETH D'CASTRO JULIETTE CHLOE VIRGINIE WOOD DEAN DAVID HOLM GRAHAM IAN ROBERT MICHEL REGNARD DANNIELLE DORISSE ELIZABETH BECKWITH NIGEL KENNETH GILES MARC DREXEL ROBYN LESLEY DREXEL NEIL ALEXANDER GRANT
Catchwords:	Costs Trial of liability Plaintiffs not consolidated before trial Plaintiffs present common case at trial Plaintiffs successful against some defendants Whether several liability to successful defendants for costs specific to individual plaintiffs Whether plaintiffs have one set of costs against unsuccessful defendants Whether apportionment of costs between plaintiffs with one set of costs Whether apportionment after assessment of damages
Legislation:	Nil
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : GOVE -v- BLACK & ORS [2006] WASC 298 (S2) CORAM : TEMPLEMAN J HEARD : 6-9 & 13-21 NOVEMBER 2006, 14 FEBRUARY, 1 MARCH & 7 JUNE 2007 DELIVERED : 21 DECEMBER 2006 SUPPLEMENTARY
DECISION : 6 JULY 2007 FILE NO/S : CIV 2375 of 1997 BETWEEN : SHARON LEE GOVE

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

(Page 2)

FILE NO/S : CIV 2370 of 1997 BETWEEN : BARNABY PIERRE COLIN WOOD

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S : CIV 2371 of 1997 BETWEEN : PAUL CHARLES BLACKMAN

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

(Page 3)

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S : CIV 2373 of 1997 BETWEEN : KYLE THEODORE PETERS

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

(Page 4)

FILE NO/S : CIV 2374 of 1997 BETWEEN : MICHAEL ANTONY KUBA

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S : CIV 2376 of 1997 BETWEEN : SHELLEY MERRILYN GOLLAN

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

(Page 5)

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S : CIV 2377 of 1997 BETWEEN : MARYANNE FIORE

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

(Page 6)

FILE NO/S : CIV 2378 of 1997 BETWEEN : MIA LEE FARINOSI

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S : CIV 2381 of 1997 BETWEEN : TINA ELIZABETH D'CASTRO

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

(Page 7)

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S : CIV 2382 of 1997 BETWEEN : JULIETTE CHLOE VIRGINIE WOOD

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

(Page 8)

FILE NO/S : CIV 2398 of 1997 BETWEEN : DEAN DAVID HOLM GRAHAM

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S : CIV 2411 of 1997 BETWEEN : IAN ROBERT MICHEL REGNARD

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

(Page 9)

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S : CIV 2412 of 1997 BETWEEN : DANNIELLE DORISSE ELIZABETH BECKWITH

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

(Page 10)

FILE NO/S : CIV 2413 of 1997 BETWEEN : NIGEL KENNETH GILES

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S : CIV 2414 of 1997 BETWEEN : MARC DREXEL

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

(Page 11)

CITY OF FREMANTLE
Fourth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Fifth Defendant

FILE NO/S : CIV 2415 of 1997 BETWEEN : ROBYN LESLEY DREXEL

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Fifth Defendant

(Page 12)

FILE NO/S : CIV 1202 of 1998 BETWEEN : NEIL ALEXANDER GRANT

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

Catchwords:

Costs - Trial of liability - Plaintiffs not consolidated before trial - Plaintiffs present common case at trial - Plaintiffs successful against some defendants - Whether several liability to successful defendants for costs specific to individual plaintiffs - Whether plaintiffs have one set of costs against unsuccessful defendants - Whether apportionment of costs between plaintiffs with one set of costs - Whether apportionment after assessment of damages

Legislation:

Nil

(Page 13)

Result:

Contained in Appendix

Category: A

Representation:

CIV 2375 of 1997

Counsel:

Plaintiff : Mr G Porter
First Defendant : Mr P B O'Neal
Second Defendant : Mr S V Forbes
Third Defendant : Mr C L Hollett
Fourth Defendant : Mr J Eller
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr S F Popperwell

Solicitors:

Plaintiff : Talbot & Olivier
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners

CIV 2370 of 1997

Counsel:

Plaintiff : Mr G Porter
First Defendant : Mr P B O'Neal
Second Defendant : Mr S V Forbes
Third Defendant : Mr C L Hollett
Fourth Defendant : Mr J Eller
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr S F Popperwell

(Page 14)

Solicitors:

Plaintiff : Talbot & Olivier
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners

CIV 2371 of 1997

Counsel:

Plaintiff : Mr G Porter
First Defendant : Mr P B O'Neal
Second Defendant : Mr S V Forbes
Third Defendant : Mr C L Hollett
Fourth Defendant : Mr J Eller
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr S F Popperwell

Solicitors:

Plaintiff : Talbot & Olivier
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners

CIV 2373 of 1997

Counsel:

Plaintiff : Mr C L Phillips
First Defendant : Mr P B O'Neal
Second Defendant : Mr S V Forbes
Third Defendant : Mr C L Hollett
Fourth Defendant : Mr J Eller
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr S F Popperwell

(Page 15)

Solicitors:

Plaintiff : Chris Phillips
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners

CIV 2374 of 1997

Counsel:

Plaintiff : Mr C L Phillips
First Defendant : Mr P B O'Neal
Second Defendant : Mr S V Forbes
Third Defendant : Mr C L Hollett
Fourth Defendant : Mr J Eller
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr S F Popperwell

Solicitors:

Plaintiff : Chris Phillips
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners

CIV 2376 of 1997

Counsel:

Plaintiff : Mr C L Phillips
First Defendant : Mr P B O'Neal
Second Defendant : Mr S V Forbes
Third Defendant : Mr C L Hollett
Fourth Defendant : Mr J Eller
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr S F Popperwell

(Page 16)

Solicitors:

Plaintiff : Chris Phillips
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners

CIV 2377 of 1997

Counsel:

Plaintiff : Mr C L Phillips
First Defendant : Mr P B O'Neal
Second Defendant : Mr S V Forbes
Third Defendant : Mr C L Hollett
Fourth Defendant : Mr J Eller
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr S F Popperwell

Solicitors:

Plaintiff : Chris Phillips
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners

CIV 2378 of 1997

Counsel:

Plaintiff : Mr G Porter
First Defendant : Mr P B O'Neal
Second Defendant : Mr S V Forbes
Third Defendant : Mr C L Hollett
Fourth Defendant : Mr J Eller
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr S F Popperwell

(Page 17)

Solicitors:

Plaintiff : Talbot & Olivier
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners

CIV 2381 of 1997

Counsel:

Plaintiff : Mr C L Phillips
First Defendant : Mr P B O'Neal
Second Defendant : Mr S V Forbes
Third Defendant : Mr C L Hollett
Fourth Defendant : Mr J Eller
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr S F Popperwell

Solicitors:

Plaintiff : Chris Phillips
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners

CIV 2382 of 1997

Counsel:

Plaintiff : Mr G Porter
First Defendant : Mr P B O'Neal
Second Defendant : Mr S V Forbes
Third Defendant : Mr C L Hollett
Fourth Defendant : Mr J Eller
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr S F Popperwell

(Page 18)

Solicitors:

Plaintiff : Talbot & Olivier
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners

CIV 2398 of 1997

Counsel:

Plaintiff : Mr C L Phillips
First Defendant : Mr P B O'Neal
Second Defendant : Mr S V Forbes
Third Defendant : Mr C L Hollett
Fourth Defendant : Mr J Eller
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr S F Popperwell

Solicitors:

Plaintiff : Chris Phillips
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners

CIV 2411 of 1997

Counsel:

Plaintiff : Mr G Porter
First Defendant : Mr P B O'Neal
Second Defendant : Mr S V Forbes
Third Defendant : Mr C L Hollett
Fourth Defendant : Mr J Eller
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr S F Popperwell

(Page 19)

Solicitors:

Plaintiff : Talbot & Olivier
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners

CIV 2412 of 1997

Counsel:

Plaintiff : Mr C L Phillips
First Defendant : Mr P B O'Neal
Second Defendant : Mr S V Forbes
Third Defendant : Mr C L Hollett
Fourth Defendant : Mr J Eller
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr S F Popperwell

Solicitors:

Plaintiff : Chris Phillips
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners

CIV 2413 of 1997

Counsel:

Plaintiff : Mr G Porter
First Defendant : Mr P B O'Neal
Second Defendant : Mr S V Forbes
Third Defendant : Mr C L Hollett
Fourth Defendant : Mr J Eller
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr S F Popperwell

(Page 20)

Solicitors:

Plaintiff : Talbot & Olivier
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners

CIV 2414 of 1997

Counsel:

Plaintiff : Mr B D Campbell
First Defendant : Mr P B O'Neal
Second Defendant : Mr S V Forbes
Third Defendant : Mr C L Hollett
Fourth Defendant : Mr J Eller
Fifth Defendant : Mr S F Popperwell

Solicitors:

Plaintiff : Mony de Kerloy
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Pynt & Partners

CIV 2415 of 1997

Counsel:

Plaintiff : Mr B D Campbell
First Defendant : Mr P B O'Neal
Second Defendant : Mr S V Forbes
Third Defendant : Mr C L Hollett
Fourth Defendant : Mr J Eller
Fifth Defendant : Mr S F Popperwell

(Page 21)

Solicitors:

Plaintiff : Mony de Kerloy
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Pynt & Partners

CIV 1202 of 1998

Counsel:

Plaintiff : Mr G Porter
First Defendant : Mr P B O'Neal
Second Defendant : Mr S V Forbes
Third Defendant : Mr C L Hollett
Fourth Defendant : Mr J Eller
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr S F Popperwell

Solicitors:

Plaintiff : Talbot & Olivier
First Defendant : Downings Legal
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : John Eller
Fifth Defendant : Jackson McDonald
Sixth Defendant : Pynt & Partners

Case(s) referred to in judgment(s):

Nil

(Page 22)

1 TEMPLEMAN J: On 23 March 2007, I published my reasons in relation to the costs of the liability issues in these actions. I appended to my reasons a draft order which I invited the parties to consider and to comment on, as they thought fit. I took this course because the costs issues are complex and I wanted to be sure that all parties had a full opportunity to state their respective positions and to correct any errors or omissions in my draft.

2 Subsequently, the solicitors for all parties other than the fourth defendant made short submissions in the form of letters to my associate.

3 I then sat again, at the request of the parties, to permit them to speak to their respective submissions. Having taken these further submissions into account, I have re-drawn the order. It forms an appendix to these reasons.

4 The final order differs from the draft in a number of respects. Some of these differences reflect the correction of errors and omissions and need no further comment. However, there are some matters of principle which require further clarification.

5 In par 84 of my reasons, I noted that in actions involving multiple parties who have a common interest, it is usual to award a single set of costs in favour or against those parties, as may be appropriate. For that reason, I included in the draft order a provision that the fourth and fifth defendants, jointly and severally, were to pay the plaintiffs' costs of the Group A, Group B and Drexel actions "to be taxed as one set of costs".

6 This proposal for joint and several liability was not the subject of any submissions at the previous hearing. However, the plaintiffs object to an order in those terms. They submit that because there were 17 separate actions, each of the successful defendants could, in theory, recover from one plaintiff an amount far greater than the costs of the action brought by that plaintiff. The plaintiffs therefore propose that where a defendant has incurred costs for work done in respect of all actions, those costs should be apportioned equally between the individual plaintiffs who would then only be liable for one-seventeenth of such costs.

7 In my view, it is appropriate for the plaintiffs to be jointly and severally liable for those costs of the successful defendants which were common to all the actions. The plaintiffs consented to the order made on 17 September 2004 by which action 2375 of 1997 became the lead action. Thus, the other plaintiffs united with the plaintiff in that action, so that the plaintiffs, in effect, sued jointly. In my view, because all the plaintiffs

(Page 23)

stood to benefit from findings of liability, they should be required to accept the risk of their respective claims being unsuccessful.

8 However, I accept that where costs have been incurred by a successful defendant in relation to a specific plaintiff (that is, costs which have not been duplicated), it would be unfair to burden the other plaintiffs with the payment of those additional costs.

9 I therefore consider that the appropriate order is for the plaintiffs to be jointly and severally liable for those costs which are common to their actions, but to be liable individually for any costs relating specifically to individual actions. Paragraphs 12 to 19 of the Order are intended to achieve that result.

10 The plaintiffs object also to the proposal that they have only one set of costs against the unsuccessful defendants. The plaintiffs contend that such an approach would be unworkable. Several reasons were advanced in support of this contention. They include the following:

(1) There have been changes in representation as between the plaintiffs during the course of the litigation.

(2) Each plaintiff has incurred different expenses in preparing his or her claim for mediation and trial. A taxation of the plaintiffs' costs as one set would not allow a proper claim by each plaintiff for the relevant costs and is likely to result in unfairness.

(3) Before the order was made on 17 September 2004, binding the plaintiffs to the outcome of the lead action, the other plaintiffs had intended not to proceed to trial until that action had been determined. After the order was made, solicitors who acted for more than one plaintiff generally charged the plaintiffs in equal shares for work which was of general application: and charged individual plaintiffs for work specific to his or her case.

(4) Only some of the Group A and Drexel action plaintiffs incurred a liability for the costs of the final stages of preparation for the trial and of the trial itself. Other plaintiffs made no commitment to contribute to those costs: and some plaintiffs incurred costs with other firms before the mediation took place.

11 In short, the plaintiffs contend that because they have been represented by a number of different solicitors at different stages of their actions, the preparation and taxation of one set of costs for 17 actions would be unworkable, because it would create practical and professional
(Page 24)

problems for the one solicitor or firm of solicitors ultimately responsible for preparing the bill.

12 Thus, it is submitted, the appropriate order would be for each plaintiff to submit a bill of costs for taxation, all bills being taxed by the Taxing Officer at the same time unless agreed otherwise, or unless directed by the Taxing Officer.

13 The principal objection to this course was articulated by counsel for the first defendant. However, I understand that his submissions were supported by all defendants. Counsel submitted, in substance, that the potential for duplication of costs inherent in the taxation of 17 bills, gave rise to a risk of injustice and would involve a burden that the plaintiffs should not be permitted to impose either on the defendants or on the Court. Counsel submitted that the plaintiffs should have cooperated for the purpose of ensuring that they avoided the kinds of difficulties summarised above.

14 In the course of argument, it emerged that the dispute may be one of form rather than substance. That is because the plaintiffs accept that they should not recover (or have to pay) for work which has been duplicated. And, as I understand it, the defendants accept that where work has been carried out justifiably for or against individual plaintiffs, the proper costs should be allowed on taxation.

15 Although the formula I proposed involved a single set of costs, it continued by providing that the scale limits were not to apply to the costs of the mediation, or to any other item(s) which, in the opinion of the Taxing Officer, it was reasonable for a plaintiff to incur individually. Ultimately, I think, the question is whether the responsibility for identifying common or duplicated costs should be left to the plaintiffs' solicitors or whether it should be for the Taxing Officer to resolve.

16 After some hesitation, I have come to the conclusion that the practical difficulties referred to above, and the potential for conflict between the solicitors, is such that it would be preferable for the matter to be left to the Taxing Officer. I say "the Taxing Officer" (singular) to emphasise that one Taxing Officer should be responsible for the taxation of all bills so that there can be uniformity in the exercise of the various discretions which will inevitably arise.

17 I therefore consider that it is appropriate for the plaintiffs to prepare individual bills of costs, to be taxed at the same time, and in any event, by the same Taxing Officer.

(Page 25)

18 That being so, I have set out, in par 9 of the Order, the procedure to be followed in the taxations and the basis on which they are to be conducted. By way of further clarification, I note that the apportionment provision in par 9(5) is not necessarily the same as the Formula defined in par 2. That is because, under par 9(5), there may be an apportionment among (for example) a small number of plaintiffs within Groups A and B, for whom work has been duplicated: while work has been carried out for others for which individual allowances are appropriate.

19 I consider that where costs are apportioned between plaintiffs, it is more appropriate to do so in accordance with the Formula (or par 9(5) where applicable) than by an equal division: par 20 of the Order.

20 It is true that in one sense, the plaintiffs stood on an equal footing in relation to the issue of liability: they all had the same interest in the outcome of the trial. However, they did not have the same financial interest in the outcome. That being so, I think it appropriate to provide for an apportionment of costs payable and recoverable by the plaintiffs to reflect the respective risks they took in the litigation.

21 I do not accept that apportionment should await the outcome of the assessment of damages. Such an approach would delay unreasonably the taxation of the costs of the successful defendants. The actions against those defendants having been dismissed, the proceedings should now be brought to an end by a taxation of costs.

22 In my view, the trial on liability should be regarded as a discrete matter. That being so, the taxation of costs of any trial in relation to the assessment of damages, will depend on the outcome of such trial and the effect of any offers made in that context.

23 Different considerations apply in relation to the fourth and fifth defendants. Counsel for the fourth defendant told me that if the plaintiffs now sought a taxation of their costs against his client, it would apply for a stay.

24 Counsel for the plaintiffs then said that the plaintiffs understood the fourth defendant's position, and did not object to waiting "until the end of the process" (TS 1214).

25 In these circumstances, I do not think it necessary to make a formal order preventing the plaintiffs from taxing their costs now. Indeed, it would be inappropriate to grant a stay when the fourth defendant does not seem to be at risk and no application has been made for such relief.

(Page 26)

26 Where costs are to be apportioned between the plaintiffs, or some of them, I consider that it should be based on the amounts of their respective claims as they stood at the commencement of the trial. That is, 6 November 2006: par 2 of the Order.

27 Those amounts reflect the potential liabilities of the defendants and hence, the magnitude of the risks and benefits contemplated by the parties.

28 I accept that the amounts in question were put forward for the purposes of the mediation. The plaintiffs will not, therefore, be prejudiced by any subsequent amendment.

29 The order provides for the fifth defendant's third party proceedings (against the sixth defendant) to be dismissed with no order as to costs. That is because I accept the submission of counsel for the sixth defendant that the proceedings were effectively subsumed in the trial.

30 I have included in the order a provision for liberty to apply. This is intended to facilitate the resolution of any unforeseen issues of principle. It is not intended to detract from the discretion of the Taxing Officer.

31 The parties will appreciate that the taxation of costs is likely to be a difficult and expensive exercise. However, if the costs issues cannot be agreed without the need for a taxation, the parties may wish to resolve their differences by mediation. If the parties wish to proceed in that way, they should contact the Principal Registrar, who will make the appropriate arrangements and give directions if necessary.

(Page 27)

APPENDIX

Order

1. In this Order, the following terminology is used:

(1) "the Group A Actions" means the actions brought by the plaintiffs and having the numbers listed below:

Sharon Lee Gove 2375 of 1997

Barnaby Pierre Colin Wood 2370 of 1997

Paul Charles Blackman 2371 of 1997

Mia Lee Farinosi (Martin) 2378 of 1997

Juliette Chloe Virginie Wood 2382 of 1997

Ian Robert Michel Regnard 2411 of 1997

Nigel Kenneth Giles 2413 of 1997

Robyn Drexel 2415 of 1997


Neil Alexander Grant 1202 of 1998
(2) "the Group B Actions" means the actions brought by the plaintiffs and having the numbers listed below:

Kyle Theodore Peters 2373 of 1997

Michael Antony Kuba 2374 of 1997

Shelley Merrilyn Gollan 2376 of 1997

Maryanne Fiore 2377 of 1997

Tina Elizabeth D'Castro (Ackerman) 2381 of 1997


Dannielle Dorisse Elizabeth Beckwith 2412 of 1997
(3) "the Drexel Action" means action number 2414 of 1997 brought by Marc Drexel;

(4) "the Graham Action" means action number 2398 of 1997 brought by Dean David Holm Graham.

2. "The Formula" means the proportion which the claim maintained by an individual Group A or Group B plaintiff as at 6 November 2006, bears to the total amount of such claims.

(Page 28)

3. References to costs in this Order includes reserved costs.

4. In each of the Group A and Group B Actions:

(1) judgment is to be entered for the plaintiffs against the fourth and fifth defendants, for damages to be assessed;

(2) as between the fourth and fifth defendants, the damages are to be paid as to 70 per cent by the fourth defendant and 30 per cent by the fifth defendant;

(3) the plaintiffs' claims against each of the first, second, third and sixth defendants are dismissed.

5. In the Drexel Action:

(1) judgment is to be entered for the plaintiff against the fourth defendant, for damages to be assessed;

(2) the plaintiff's claims against each of the first, second, third and fifth defendants are dismissed;

(3) the fifth defendant's third party proceeding is dismissed with no order as to costs.

6. In the Graham Action:

(1) judgment is to be entered for the plaintiff against the fourth defendant, for damages to be assessed;

(2) the plaintiff's claims against each of the first, second and third defendants are dismissed.

7. The fourth and fifth defendants, jointly and severally, do pay the plaintiffs' costs of the Group A and Group B Actions, to be taxed in accordance with the procedure and on the basis set out in paragraph 9.

8. The fourth defendant do pay the plaintiffs' costs of the Drexel and Graham Actions, to be taxed in accordance with the procedure and on the basis set out in paragraph 9.

9. (1) Each of the plaintiffs is to prepare a bill of costs for taxation.

(2) Subject to any agreement between the parties or any direction by the Taxing Officer, all such bills of costs are to be taxed at the same time.

(Page 29)

(3) The scale limits are not to apply to the costs of the mediation, or to any other item(s) which, in the opinion of the Taxing Officer, it is reasonable for a plaintiff to claim individually.

(4) Subject to (3) above, only a single set of costs shall be allowed: that is, for any item or items which, in the opinion of the Taxing Officer, has or have been duplicated unreasonably.

(5) Where a single set of costs is allowed for any item, then, subject to any agreement between the relevant plaintiffs, such costs shall be apportioned between those plaintiffs in the same proportion as their individual claims, maintained as at 6 November 2006, bear to the total amounts claimed by those plaintiffs.

(6) Where costs are allowed on an individual basis, those costs shall be paid to the plaintiffs concerned.

10. The fourth and fifth defendants, jointly and severally, do pay the costs of the Group A plaintiffs of obtaining a transcript of the trial, such costs to be apportioned between the Group A plaintiffs in accordance with the Formula.

11. As between the fourth and fifth defendants, the costs are to be paid as to 70 per cent by the fourth defendant and 30 per cent by the fifth defendant.

12. (1) The plaintiffs in the Group A, Group B, Drexel and Graham Actions, jointly and severally, do pay:

(a) the first defendant's costs of the actions including the cost of obtaining a transcript of the trial;

(b) the second defendant's costs of the actions; and

(c) the third defendant's costs of the actions, with a certificate for Queen's Counsel and junior counsel and including as a disbursement, the cost of removal and storage of the collapsed balcony timbers.

(2) The scale limits are not to apply to the costs of the mediation or to any other item(s) which, in the opinion of the Taxing Officer, it was reasonable for the first, second or third defendants to duplicate by reason of the number of plaintiffs.

(3) Subject to subparagraph (2) above, the costs of each of the first, second and third defendants are to be taxed as a single set of costs.

(Page 30)

(4) Where costs were incurred by the first, second or third defendants in relation to individual claims, those costs shall be paid by the plaintiffs concerned.

13. (1) The plaintiffs in the Group A, Group B and Drexel Actions, jointly and severally, do pay the sixth defendant's costs of the actions (the sixth defendant being the fifth defendant in the Drexel Action) including the cost of obtaining a transcript of the trial.

(2) The scale limits are not to apply to the costs of the mediation or to any other item(s) which, in the opinion of the Taxing Officer, it was reasonable for the sixth defendant to duplicate by reason of the number of plaintiffs.

(3) Subject to subparagraph (2) above, the costs of the sixth defendant are to be taxed as a single set of costs.

(4) Where costs were incurred by the sixth defendant in relation to individual claims, those costs shall be paid by the plaintiffs concerned.

14. Subject to any agreement between the plaintiffs, any costs for which they are liable jointly and severally shall be apportioned between them in accordance with the Formula.

15. The fifth defendant is to pay to the plaintiffs in the Group A and Group B Actions the amount of the costs they are ordered to pay to the sixth defendant.

16. The costs are to be apportioned between these plaintiffs in accordance with the Formula.

17. The first defendant's contribution notices dated 14 October 2004 to the second, third, fourth, fifth and sixth defendants are dismissed.

18. The first defendant do pay the costs of each of the second, third, fourth, fifth and sixth defendants of those proceedings insofar as those proceedings may have increased any of those defendants' costs of the trial, to be taxed.

19. The third defendant's third party proceedings against the fifth defendant are dismissed.

(Page 31)

20. The third defendant do pay the fifth defendant's costs of the proceedings, insofar as those costs may have increased the fifth defendant's costs of the trial, to be taxed.

21. The third defendant's contribution notices dated 6 October 2004 against the first, second, fourth and sixth defendants are dismissed.

22. The third defendant do pay the first, second, fourth and sixth defendants' costs of those proceedings insofar as those costs may have increased any of those defendants' costs of the trial, to be taxed.

23. The fourth defendant's contribution notice dated 14 October 2004 against the first, second, third and sixth defendants are dismissed.

24. The fourth defendant do pay the first, second, third and sixth defendants' costs of the proceedings insofar as those costs may have increased any of those defendants' costs of the trial, to be taxed.

25. The fourth defendant's contribution notice dated 14 October 2004 against the fifth defendant is dismissed.

26. The fourth defendant do pay the fifth defendant's costs of those proceedings insofar as those costs may have increased the fifth defendant's costs of the trial and do pay the costs of the hearing on 1 March 2007, to be taxed.

27. (1) The fifth defendant's contribution notices dated 23 December 1998 and 18 January 1999 against the first defendant, and their fourth party proceedings against the sixth defendant are dismissed.

(2) The fifth defendant do pay the costs of the first and sixth defendants of those proceedings insofar as those proceedings may have increased either of those defendants' costs of the trial, to be taxed.

28. (1) The sixth defendant's contribution notices dated 13 October 2004 against the first, second, third, fourth and fifth defendants are dismissed.

(2) The sixth defendant do pay the costs of the first, second, third, fourth and fifth defendants of the proceedings insofar as those costs may have increased any of those defendants' costs of the trial, to be taxed.

(Page 32)

29. All parties are to have liberty to apply on 48 hours written notice to the other parties.