Hall v Halcrow - [2021] SADC 114

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
HALL & ANOR v HALCROW
[2021] SADC 114
Judgment of his Honour Judge Burnett
19 October 2021
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - FORMATION OF CONTRACTUAL RELATIONS
EQUITY - GENERAL PRINCIPLES - EQUITABLE DOCTRINES AND PRESUMPTIONS - CONTRIBUTION
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - EFFECT OF JUDGMENTS
The applicants claim the respondent is liable for one half of the costs and liabilities incurred in prosecuting certain judicial review proceedings including costs and liabilities incurred after the respondent had discontinued his claim.
The applicants owned a property at Mount Osmond. A developer, City Apartments Pty Ltd (City Apartments) in about 2000 commenced a development over a property near the applicants. The applicants opposed the development. On 21 March 2005, the City of Burnside granted development approval to the proposed development and on 4 March 2005 a private certifier, Katnich Dodd, granted provisional building rules consent to the development. In November 2005, the applicants were contemplating instituting judicial review proceedings against City Apartments and City of Burnside in relation to those approvals. The applicants sought to include the respondent as a co-plaintiff in those judicial review proceedings. The respondent resided in Glen Osmond, downhill from the proposed development and would be directly affected by any safety or engineering issues that might arise from the proposed development.
In the period between 5 November 2005 and 28 January 2006, the applicants and the respondent entered into discussions about the proposed judicial review proceedings.
The applicants claim that they and the respondent entered into an agreement on 28 January 2006 whereby they agreed to share equally the liabilities incurred to any person or entity in consequence of the pursuit of the judicial review proceedings. They further claim that those liabilities included not only a liability for their own costs (whether incurred during the period in which the respondent was a party to the proceedings or after) but also all liabilities to City Apartments and the City of Burnside in respect of these judicial review proceedings, again whether those liabilities were incurred before or after the period during which the respondent was a party.
The judicial review proceedings were instituted on 31 January 2006. The applicants and the respondent were plaintiffs in those proceedings.
The judicial review proceedings required an extension of time to issue the proceedings. An order granting such an extension was initially made in March 2006, but in September 2006 the Full Court allowed an appeal against that order and refused to extend time. The applicants and respondent issued an application for special leave to appeal to the High Court.
After the loss in the Full Court in September 2006, the respondent sought to settle the proceedings. Advice was received from senior counsel, junior counsel and their solicitor that a settlement would be advantageous. In May 2007 a mediation was held between the applicants, the respondent, City Apartments and City of Burnside. Settlement in principle was reached between the respondent and City Apartments and the City of Burnside. Ultimately that settlement was finalised in a Deed entered into on about 9 July 2007 in which both City Apartments and City of Burnside released the respondent (although City Apartments reserved its rights to claim costs against the applicants). The respondent discontinued his claim against City Apartments and City of Burnside on 28 June 2007.
The applicants continued with the High Court application for special leave which was refused on 9 August 2007. Thereafter the applicants continued to pursue the judicial review proceedings and incur costs. City Apartments and City of Burnside took out an application to dismiss the proceedings which was successful, including after appeals instituted by the applicants.
In March 2008, an order was made that the applicants pay the costs of the judicial review proceedings to City Apartments and the City of Burnside.
The City of Burnside settled its claim for costs against the applicants in the sum of $80,000 and the applicants seek half of those costs from the respondent. Some of these costs included work done after the respondent had discontinued his claim on 28 June 2007. City Apartments and the applicants continued to engage in a taxation of the costs of City Apartments. The applicants seek one half of those costs from the respondent. As all of those costs have not yet been determined, the applicants seek a declaration as to the liability of the respondent for those costs. The applicants also seek payment of one half of their own costs incurred after 28 June 2007. The applicants seek $204,100 from the respondent for one half of unpaid costs and incurred liabilities plus half of the further liability to City Apartments on the taxation of costs.
In addition to their claim in contract, the applicants seek equitable contribution from the respondents.
Held:
1. The parties intended to create a contract on 28 January 2006 when the respondent agreed to share all liabilities. Post contractual conduct can be used to determine whether a contract exists, including what terms form part of the contract, but cannot be used to determine the meaning of the terms: Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 applied.
2. On a proper construction, the agreement only extended for the period when both the applicants and the respondent remained parties to the judicial review proceedings. The agreement therefore ended on 28 June 2007. The agreement also only concerned the judicial review proceedings.
3. In any event, the respondent was entitled to terminate the agreement which he did on 28 June 2007 when he discontinued his proceedings against City Apartments and the City of Burnside.
4. The respondent was liable for half of the costs incurred by the applicants and the respondent during the period that he was a party to the proceedings (which have all been paid) and further half of the liability incurred by the applicants for work undertaken by City Apartments or City of Burnside in defending the judicial review proceedings in the period from 5 November 2005 to 28 June 2007.
5. The respondent is not responsible for costs incurred by the applicants after 28 June 2007 or for any liability that the applicants may have in respect of work undertaken by City Apartments or City of Burnside after 28 June 2007.
6. Equitable contribution is founded on the notion of equality of burden amongst those having a common obligation. The common burden requires there to be co-ordinate liability to make good the one loss. A liability is co-ordinate if the fulfilment by one party discharges the liability of the other: Friend v Brooker (2009) 239 CLR 129 applied. The doctrine of equitable contribution can extend to costs that were incurred by a co-obligee in discharging the common burden: Morgan Equipment Co v Rodgers (No 2) (1993) 32 NSWLR 467 applied.
7. The claim for equitable contribution based on joint participation in the judicial review proceedings fails. There is no liability for costs, even on a contingent basis, until an order for costs is made: Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 applied. At the time that the costs order was made, the respondent had been released from all liability to the City of Burnside for costs under the Deed of Settlement and therefore had no co-ordinate liability to that entity. In relation to City Apartments, the Deed provided for a release of the respondent but reserved the right of City Apartments to pursue the applicants for costs. In respect of existing costs orders the release of the respondent should therefore be construed as a covenant not to sue: Mercantile Bank of Sydney v Taylor (1891) 12 LR (NSW) 252 and Walker v Bowry (1924) 35 CLR 48 applied. In relation to future costs, there was no reason to construe the release as a covenant not to sue.
8. The applicants, based on the agreement, have a good claim for equitable contribution to the extent of one half of the liability of the applicants in respect of work undertaken by City Apartments or City of Burnside in the period from 5 November 2005 to 28 June 2007.
9. The quantum of the applicants’ claim will be determined in further hearings.
District Court Act 1991 (SA) s 42, referred to.
Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407; Friend v Brooker [2009] HCA 21; (2009) 239 CLR 129; Morgan Equipment Co v Rodgers (No 2) (1993) 32 NSWLR 467; Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52; Mercantile Bank of Sydney v Taylor (1891) 12 LR (NSW) 252; Walker v Bowry [1924] HCA 28; (1924) 35 CLR 48, applied.
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95; Byrnes v Kendle (2011) 243 CLR 253; Victoria v Tatts Group Ltd [2016] HCA 5; (2016) 90 ALJR 392; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 89 ALJR 990; DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1989) 149 CLR 337; Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570; [2008] HCA 57; Australian Broadcasting Corp v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540; James Miller & Partners (Contractors) Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583; Ferguson v John Dawson & Partners Ltd [1976] 1 WLR 1213; Lym International Pty Ltd v Marcolongo [2011] NSWCA 303; McClelland v Northern Ireland General Health Services Board [1957] 1 WLR 594; CSR Ltd v Amaca Pty Ltd [2007] NSWCA 107; Flinders Diamonds Ltd v Tiger International Resources Incorporated [2006] SASC 139; Armstrong v Commissioner of Stamp Duties (1967) 69 SR (NSW) 38; Cunningham-Reid v Public Trustee [1944] KB 602; Dering v Earl of Winchelsea (1787) 1 Cox 318; 29 ER 1184; Albion Insurance Co Ltd v Government Insurance Office (NSW) [1969] HCA 55; (1969) 121 CLR 342; Bonner v Tottenham and Edmonton Permanent Investment Building Society [1899] 1 QB 161; McLean v Discount and Finance Ltd [1939] HCA 38; (1939) 64 CLR 312; In Re Anderson-Berry [1928] Ch 290; Mahoney v McManus (1981) 180 CLR 370; Gye v Davies (1995) 37 NSWLR 421; Burke v LFOT Pty Ltd [2002] HCA 17; (2002) 209 CLR 282; Barber v De Prima [2018] NSWSC 601; Parker v Alessi [2011] NSWSC 947; James Hardie & Co Pty Ltd v Wyong Shire Council [2000] NSWCA 107; (2000) 48 NSWLR 679; Amaca Pty Ltd v CSR Ltd [2001] NSWSC 324; Covell Matthews & Partners v French Woods Ltd [1977] 2 All ER 591; Hall & Hall v City of Burnside & Ors (No 5) [2008] SASC 82; Byrne v Australian Airlines Ltd (1995) 185 CLR 410; Richardson v Koefod [1969] 1 WLR 1812; Thorpe v South Australia National Football League (1974) 10 SASR 17; Gallagher v Pioneer Concrete (NSW) Pty Ltd (1993) 113 ALR 159; Staffordshire Area Health Authority v South Staffordshire Waterworks Co [1978] 1 WLR 1387; BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1994) 180 CLR 266; Beaumont v Senior & Bull [1903] 1 KB 282; DA Starke Pty Ltd v Yard & Anor [2012] SASC 19; Mutton v Living Australia Pty Ltd, in the matter of Living Australia Pty Ltd [2020] FCA 739; Bayly v Garford arch N.R. 125, 82 ER 441; Cheetham v Ward 1 Bos. & Pul 630; 126 ER 1102; Dennis (Denys) v Payn (1639) Cro.Car 551, 79 ER 1074; Ward v National Bank of NZ (1883) 8 App Cas 755; John Anthony Jeans v John Richard Bruce [2004] NSWSC 539; Re Perkins: Ex Parte Westpac Banking Corporation [1999] FCA 986; Clayton (Lacy) v Kynaston (1701) 2 Salkeld 573, 575; 9 ER 483; Dean v Newhall (1799) 101 ER 1326; White v Glass [1871] 2 VR (L) 46; Liu v Gu [2020] NSWSC 1469, considered.

HALL & ANOR v HALCROW
[2021] SADC 114
Civil
Introduction

The applicants, Mr Grantley Hall and his wife, Mrs Jill Hall, have sought a declaration as to a liability for payment and an order for the payment of a sum of money from the respondent, Dr Stephen Halcrow. The claim is based on an alleged agreement entered into by the applicants and the respondent in January 2006. The alleged agreement was made in the context of proceedings for judicial review that were about to be instituted by the applicants and the respondent in the Supreme Court of South Australia against City Apartments Pty Ltd (City Apartments) and the City of Burnside. The applicants have brought claims for breach of contract and equitable contribution.
The judicial review proceedings sought to review a decision made on 21 March 2005 by the City of Burnside to grant development approval, and a decision made by the private certifier, Katnich Dodd on 4 March 2005 to grant provisional building rules consent approval, to a development of land by City Apartments at Mount Osmond. That land had a right of way over the property owned by the applicants at Mount Osmond and was located above the property owned by the respondent at Glen Osmond. The applicants and the respondent also sought to injunct City Apartments from proceeding with the proposed development.
The judicial review proceedings were complex and involved an initial order made on 23 March 2006 that the applicants have leave to issue the summons and further extended the time to do so. City Apartments successfully appealed to the Full Court against that decision. The applicants and respondent brought an application for special leave to appeal to the High Court. Just prior to that application being heard, Dr Halcrow negotiated a settlement with City Apartments and City of Burnside and on 28 June 2007 discontinued his claim against them. Mr and Mrs Hall continued the claim and the application for special leave (which was unsuccessful) and brought further appeals to the Full Court. Ultimately, the judicial review proceedings were dismissed and costs were awarded to City Apartments and City of Burnside.
Mr and Mrs Hall claim that they entered into an agreement with Dr Halcrow in January 2006 whereby they agreed to share equally any liabilities incurred to any person or entity in consequence of the pursuit of the judicial review proceedings. There are four categories of costs to which the alleged agreement might apply. They are:
(1)The payment of costs incurred by Mr and Mrs Hall and Dr Halcrow during the period that they were jointly plaintiffs in the judicial review proceedings - ie payment of the costs of solicitors, counsel and experts engaged by them. There is no dispute about these costs and Mr and Mrs Hall and Dr Halcrow have each paid one half of these costs;
(2)liability for the costs of City Apartments and City of Burnside that were incurred during the period that Mr and Mrs Hall and Dr Halcrow were joint plaintiffs in the judicial review proceedings. It was not until after Dr Halcrow had ceased to be a plaintiff that an order was made in favour of City Apartments and the City of Burnside for the payment of those costs;
(3)the payment of costs incurred by Mr and Mrs Hall in the course of the judicial review proceedings after Dr Halcrow had ceased to be a party to those proceedings, which have also included payment of their costs involved in the taxation of costs;
(4)liability for the costs of City Apartments and City of Burnside that were incurred after Dr Halcrow had ceased to be party to the judicial review proceedings.
The dispute in the current proceedings relate to the costs that fall into the second, third and fourth categories. Mr and Mrs Hall claim that they have paid to date the sum of $408,200 in respect of costs that fall into those categories and seek payment of one half of that sum, namely $204,100 from Dr Halcrow. In addition, Mr and Mrs Hall seek payment of one half of the taxed costs of City Apartments. That taxation is still proceeding. In their bill of costs, City Apartments has sought payments of its costs in the sum of $246,508.80.
Mr and Mrs Hall also seek payment of these amounts by way of contribution. They put their claim for contribution in two ways:[1] first, contribution arising from the alleged agreement and secondly, by way of equitable contribution.
[1] Applicant’s written submissions at [48].
Dr Halcrow denies the claims of Mr and Mrs Hall. He denies that he entered into the alleged agreement about costs with Mr and Mrs Hall in January 2006. Dr Halcrow says that the only agreement he entered into with Mr and Mrs Hall about costs concerned the payment of their solicitors, counsel or experts when accounts were received from those persons during the period that Dr Halcrow was a party to the judicial review proceedings. Dr Halcrow further contended that no liability for the costs of City Apartments or the City of Burnside arose when he was a party to the judicial review proceedings (other than an order relating to the initial appeal to the Full Court, in respect of which the parties paid one half of the costs and an order relating to the costs of the application for the injunction). Dr Halcrow further submitted that an order for payment of costs was only made after he ceased to be a party to the proceedings. In respect to the claim for contribution, Dr Halcrow denies that there is a proper basis for such a claim.
The parties agreed that if I were to determine that Dr Halcrow was liable for any of the costs in categories 2, 3 or 4, I should not proceed to determine that liability, even on an interim basis, without hearing further submissions as to how those costs should be calculated.
Course of the trial and factual background
There was a large amount of documentary evidence that was tendered and became exhibits in these proceedings, consisting primarily of court documents and correspondence relating to the judicial review proceedings and appeals in relation thereto, the subsequent taxations of costs in those proceedings and communications between the applicants and the respondent.
The applicants each gave evidence. Mr Hall was the primary witness for the applicants as he had most of the communications with Dr Halcrow.
Mr Hall gave evidence on two broad topics: first, the communications that he had with Dr Halcrow and the notes that he made of those communications and secondly, the prosecution of the judicial review proceedings including the appeals and the taxation of costs. The second topic was not generally in dispute.
I find Mr Hall to be an intelligent and honest witness who sought to answer questions directly and responsively. He had a very good grasp of the detail of the facts and issues relevant to this dispute. He was careful in his responses and would seek clarification if he did not understand the premise of a question. He did not exaggerate or attempt to bolster his case by reconstruction or speculation when he did not remember the detail of a particular conversation. For example, he said he could not recall using the words “costs” per se in the meeting on 5 November 2005, but believed that was implicit in Dr Halcrow agreeing to be a party to the judicial review proceedings.[2] He made appropriate concessions in cross-examination.
[2] T 206.11.
He accepted when his note of a conversation was unclear or incomplete or when he did not know to what the note was referring.
Mr Hall’s note taking of conversations and meetings was meticulous. His note taking was of a detail and accuracy rarely experienced. His practice of note taking was as follows. Prior to a meeting or telephone conversation, he would write an agenda of things which he wished to discuss in blue pen.[3] When he discussed matters with the other person, he would record that conversation in a different colour, usually red.[4] If an agenda item was covered, Mr Hall would signify that by placing a tick next to that item.[5] If an agenda item was not covered in the conversation, Mr Hall would place a dash or hyphen by the agenda item.[6]
[3]    T 46.19, 53.12.
[4]    Ibid.
[5]    eg T 55.8.
[6]    T 60.13.

I am satisfied that the notes record at least the substance of the discussions that Mr Hall had with Dr Halcrow. The respondent was not able to point to any occasion where it could be demonstrated that the note taking was wrong, such that it might cast doubt on Mr Hall’s note taking on other occasions. The respondent also accepted that he was not in a position to challenge the genuineness of the note taking.
As at the time of the judicial review proceedings, Mr Hall was experienced in litigation, including in issues involving costs and appeals, having been a party to a number of actions against City Apartments. He was determined to oppose the proposed development at all costs.
Mrs Hall also gave evidence. She had separated from Mr Hall some years prior to the hearing. Mrs Hall did not take notes of the meetings she attended, with the exception of the meeting held on 6 May 2006 (which notes were made after the meeting took place). Most of the communications were between Mr Hall and Dr Halcrow. In some respects, Mrs Hall provided some general confirmation of Mr Hall’s evidence, but often she was not, understandably given that the relevant conversations were over 15 years ago, able to recall the details of any conversation. For example, she was unable to recall the details of the conversation on 28 January 2006.[7] In these circumstances, I consider Mrs Hall to be an honest witness, but whose evidence was not of great assistance in resolving this dispute.
[7] T 494.36.
Dr Halcrow also gave evidence. I consider him to be an honest witness, but whose recollection of key conversations was often lacking, as would be expected, given that these conversations took place over 15 years ago. He did not have the benefit of notes to assist his recollection as he did not keep notes of the meetings and conversations that he had with Mr and Mrs Hall. Some of his files in relation to these matters were thrown out when he moved interstate.[8] Dr Halcrow freely admitted that he did not have a recollection of key meetings and therefore was not in a position to contradict the evidence of Mr Hall.
[8] T 568-569.
Background facts
I make the following findings of fact.
As at 2005 (and at all relevant times before and after that date), Mr and Mrs Hall lived at Mount Osmond. From about 2001, City Apartments sought to develop a parcel of land that it owned downhill from the residence of Mr and Mrs Hall.[9] To access its land, City Apartments had a right of way over Mr and Mrs Hall’s property. Dr Halcrow lived in Glen Osmond, further downhill from the land owned by City Apartments. The property of City Apartments was therefore located between the properties of Mr and Mrs Hall and Dr Halcrow.
Earlier proceedings by Mr and Mrs Hall prior to Dr Halcrow becoming involved
[9] T 41.3-41.4, 41.14.
As at December 2005, Mr and Mrs Hall had been involved in a series of actions relating to the proposed development of the land owned by City Apartments.[10] On about 14 December 2000, the Development Assessment Commission gave provisional development plan consent to City Apartments to build on its land.[11] Mr and Mrs Hall took proceedings in the Supreme Court to quash that approval on the basis that the Development Assessment Commission was not the appropriate party to provide approval.[12] Mr and Mrs Hall were successful in those proceedings and on an appeal.[13]
[10] T 224.1-224.14, T 448-451.
[11] T 249.1; 249.9.
[12] T 249.14.
[13] T 249.14-250.3.
City Apartments lodged a further application to develop the land in 2002.[14] That application was initially refused, but on an appeal instituted by City Apartments to the Environmental, Resources and Development Court (ERDC), that refusal was overturned.[15] Mr and Mrs Hall’s appeal to the Full Court was heard on 11 August 2005 and was unsuccessful and they sought, but were not granted, special leave to appeal to the High Court.[16]
[14] T 251.1.
[15] T 251.15.
[16] T 251.27-252.2.
In March 2005, City Apartments then proceeded to obtain development approval from the City of Burnside and provisional building rules approval from the private certifier, Katnich Dodd.[17] Mr and Mrs Hall appealed against the decision granting final development approval and were successful at first instance before Debelle J, but were unsuccessful on appeal.[18] The Full Court declared that the development approval obtained by City Apartments was a valid development approval.[19]
[17] T 252.17-252.22.
[18] T 252.34-253.5.
[19] T 256.3-256.18.
The above history of proceedings that had taken place prior to any involvement of Dr Halcrow demonstrates a number of matters: first, the applicants, but in particular Mr Hall, had an extensive knowledge of the litigation process, including costs; secondly, Mr and Mrs Hall were determined to take any step possible to oppose the development of City Apartments; and thirdly, the declaration made by the Full Court represented a substantial impediment to Mr and Mrs Hall obtaining the orders they later sought in the judicial review proceedings that were later instituted by Mr and Mrs Hall and Dr Halcrow.
Discussions between Mr and Mrs Hall and Dr Halcrow prior to the institution of the judicial review proceedings
As at November 2005, Mr and Mrs Hall were considering instituting proceedings for judicial review of the provisional building rules approval.[20] Following advice from their barrister, Mr Henry, Mr and Mrs Hall decided to approach the owners of the property downhill from the development to see if they were interested in opposing the development.[21] The owners of that property were Dr Halcrow and his wife, Yasmin, but she did not become involved in the proceedings. The property downhill from the development was likely to be exposed to risk from any engineering or structural defect of the proposed development.
[20] T 41.31.
[21] T 42.11.
On 5 November 2005, a Saturday afternoon, Mr and Mrs Hall visited Dr Halcrow at his property. This was the first time that the parties had met. This meeting was the only communication between the parties that was not directly recorded in a note made by Mr and Mrs Hall, although there was a reference to that meeting and part of what was said in during that meeting in a note recording a telephone conversation held on 16 February 2006.[22]
[22] T 553.15, Ex A3, p 61A.
It is not in dispute that Mr and Mrs Hall and Dr Halcrow met on or about 5 November 2006 and discussed the proposed development of City Apartments;[23] that Mr and Mrs Hall showed Dr Halcrow an engineering report and map that they had brought with them[24] and that Dr Halcrow was interested in the engineering report[25] which fed into his existing concerns about the safety of the development;[26] that Mr and Mrs Hall asked Dr Halcrow about the notice of the development that he had received from the Council;[27] that Mr and Mrs Hall asked Dr Halcrow whether he would be interested in becoming involved in legal proceedings that they were considering taking;[28] and that nothing was said about the costs of taking such legal proceedings.[29]
[23] T 42, 43.
[24] Ibid.
[25] T 261.17.
[26] T 510.27.
[27] T 261.20, 513.9.
[28] T 43.22, 434.23.
[29] T 44.3, 206.11.
What was in dispute are three matters: first, was the meeting pre-arranged as Dr Halcrow contends;[30] secondly, did Dr Halcrow at that meeting state that he was interested in becoming involved and wanted to be a party to the action;[31] and thirdly, the extent to which Mr and Mrs Hall explained to Dr Halcrow about the proceedings that they had already taken. Mr Hall gave evidence that he cannot recall the detail, but considers that he went into some, but not the whole of the history of the earlier proceedings.[32] Dr Halcrow accepted that Mr and Mrs Hall said that they had been involved in some legal issues with the council and the owner of the land, but said that they did not go into the detail of the prior proceedings.[33]
[30] T 509.
[31] T 43.25.
[32] T 259.29-260.2.
[33] T 511-512.
I do not consider whether the meeting was pre-arranged (as Dr Halcrow contends) or was without notice (as Mr and Mrs Hall contend) to be of any significance. Given that the meeting occurred over 15 years ago, a party’s recollection of how the matter was held does not cast doubt about the reliability of their evidence on this topic.
As to the second disputed issue, Dr Halcrow was clearly concerned about the development. He gave evidence that his focus was on the safety aspect as set out in the engineer’s report and he did not focus on what Mr and Mrs Hall said about the legal issues. He admitted that the applicants were talking about legal issues[34] and that he was happy to swear an affidavit in support, if the applicants organised that.[35] He admitted that he knew the affidavit was to be used in court proceedings relating to the proposed development.[36] Again, the difference between the parties on this issue is not as great as first appears; it is clear that Mr and Mrs Hall discussed instituting proceedings and that Dr Halcrow would swear an affidavit in support of the proceedings. I consider it likely that Mr and Mrs Hall mentioned that Dr Halcrow would be a party to those proceedings (given that Dr Halcrow admitted agreeing to swear the affidavit and later correspondence referred to him being a party). However, I accept that the nuance of being a party may not have been apparent to Dr Halcrow at that time.
[34] T 514.33, 575.
[35] T 515.4, 576.31.
[36] T 577.
As to the third issue, I accept that there had been some discussion about the previous legal action taken by Mr and Mrs Hall against City Apartments, but again I do not need to make a finding as to the extent of the discussion on this topic. There is no claim by Dr Halcrow that he was misled by Mr and Mrs Hall.[37]
[37] T 514, 575, 576.
On 17 December 2005, Mr Hall spoke by telephone to Dr Halcrow’s wife, Yasmin. She did not give evidence and therefore Mr Hall’s account of this conversation was not challenged. Mr Hall made a note of the conversation in accordance with his usual note taking practice.[38]
[38] Ex A3, p 8A.
I find, in accordance with the note and the evidence of Mr Hall on this conversation,[39] that Mr Hall provided an update on the proposed action. He advised Yasmin that the Burnside Council had declined to take action and therefore the only way to address the safety concerns was to quash the consent by taking judicial review proceedings. A draft affidavit would be sent to Dr Halcrow to check and amend.
[39] T 53-55.
By an email sent by Mrs Hall to Dr Halcrow dated 19 December 2005, Mrs Hall enclosed a draft affidavit. The draft affidavit included a covering page that described Dr Halcrow as a plaintiff along with Mr and Mrs Hall. In the covering email, Mrs Hall stated that:
George [George Manos, the solicitor acting for the applicants] also wanted to make sure that you were aware that you would be a party to the proceedings, not just a witness. By the way, he also thought that Yasmin would have standing also - It seems that being a resident at direct risk is probably enough. However, he understood that you will probably want to leave things as they stand and that is fine.
Mr Hall followed up that email with a telephone call to Dr Halcrow on the same date. He made a note of that conversation.[40] In that conversation, Mr Hall referred to the email and said that Mr Manos wanted to check that you understood that you were to be a plaintiff and not just a witness.[41] Dr Halcrow responded by saying that he definitely wanted to be a party and not just a witness.[42] Dr Halcrow did not have any recollection of the telephone call, although he accepted that it may have occurred.[43] This email and telephone conversation made it clear that Dr Halcrow had been advised and therefore knew that he was to be a party to the proceedings.
[40] Ex A3, p 8A.
[41] T 59.27.
[42] T 60.5.
[43] T 517.11.
By letter dated 14 January 2006,[44] City Apartments advised Dr Halcrow of some of the history of the matter and the previous proceedings that had been brought by the applicants against City Apartments. There is reference in this email to the applicants appealing to the Full Court and costs being awarded to City Apartments.
[44] Ex R24.
Mr Hall had a telephone conversation with Dr Halcrow on 22 January 2006 in which he discussed recent events and the further steps that had been taken, including preparing another affidavit to be signed by Dr Halcrow.[45] Again, Dr Halcrow did not have any specific recollection of that conversation.[46]
[45] T 60, Ex A3, p 8A.
[46] T 521.6.
A further letter from Moodi Rossi & Co, solicitors for City Apartments, was sent to Mr and Mrs Hall on 17 January 2006 in which they advised of the need for Mr and Mrs Hall, if there were to institute legal proceedings for judicial review, to seek an extension of time for the institution of such proceedings.[47] That letter was forwarded by Mr and Mrs Hall to Dr Halcrow on 28 January 2006.[48]
[47] Ex A3, p16.
[48] Ex A3, p 18; T 272.
Two critical conversations occurred on 26 January 2006 and 28 January 2006. On 26 January 2006, there was a telephone call between Mr Hall and Dr Halcrow.[49] Mr Hall accepted that the reason for the call was that Dr Halcrow had raised some concerns about the proposed proceedings, having received the letter from City Apartments in which they had raised the point that the judicial review proceedings were out of time and that they would need an extension of time to bring the proceedings. Mr Hall said that City Apartments were already arguing that the applicants had left it too long.[50] Mr Hall recorded inter alia in the note of this conversation that Dr Halcrow stated “I’m in. Everything from my point of view is fine”.[51]
[49] T 272, 276.2.
[50] T 270.21.
[51] Ex A3, p 9A, T 61.
I find that Dr Halcrow said words to this effect. In cross examination Dr Halcrow stated that he could not remember the details of the telephone call as it was 15 years ago,[52] but he did accept that he entered into a verbal agreement on the phone to become a plaintiff and therefore a party to the proceedings.[53] I do not accept the evidence of Dr Halcrow that it was not until 19 February 2006 (when he first saw Mr Manos) that he signed up to the proceedings.[54] That is inconsistent with the email of 19 December 2005 (in which it was said that he would be a plaintiff), the terms of the conversation on 26 January 2006 and the signing of the affidavit.
[52] T 594.
[53] T 594, 596.
[54] T 597.
On 28 January 2006, Dr Halcrow met Mr and Mrs Hall at their house. Mr Hall made notes of that conversation.[55] After discussing some engineering matters, photographs to be included in an affidavit and some detail of the earlier proceedings, there was a discussion about the costs of the proceedings. Mr Hall made a note “Split everything 50/50”. Mr Hall gave evidence, which I accept, that this statement was referring to the judicial review proceedings to quash the provisional building rules consent.[56] Mr Hall was cross examined about that meeting and its consistency with earlier versions of the statement of claim.[57] While his evidence and the note of the meeting is more precise, I do not find his evidence or the note to be inconsistent with the earlier versions of the statement of claim. For example, the first statement of claim pleaded that “financial responsibility” for the proposed proceedings would be shared.[58] That is a broader description, but in substance, to the same effect as the final pleading.
[55] Ex A3, p 9A; T 62.
[56] T 64, 221, 239.
[57] T 217.
[58] Ex R12.
Dr Halcrow also submitted, in aid of his contention that no agreement was reached on 28 January 2006, that there was no reference to that agreement or conversation in subsequent communications. Whilst that is true, the parties did not conduct themselves in a formal way where it would be expected that they would make reference to the 28 January 2006 agreement, if that agreement existed.
Dr Halcrow further submitted that the reference to costs in the 28 January 2006 conversation did not relate to any of the other agenda items or matters discussed at that meeting. That again is the case, but I consider that the discussion must be considered in the context of the earlier discussion on 26 January 2006 where Dr Halcrow had already agreed to be a party to the judicial review proceedings. Even if Mr Hall, when he made the agenda, did not consider that he needed to include costs as an agenda item (because he thought it was covered by the agreement to be a party), the addition of the note recording the agreement as to costs does not detract from its significance or that an agreement was reached in relation to costs. The discussion must be considered in the context of all the earlier communications between the parties and the imminent institution of the judicial review proceedings.
As at 28 January 2006, I am satisfied that both Mr and Mrs Hall and Dr Halcrow knew that if they were unsuccessful in the proceedings that an adverse costs order would be made against them. Mr Hall gave evidence to that effect.[59] The letter from City Apartments to Dr Halcrow made it clear, if it was not already known to Dr Halcrow, that an adverse costs order could be made against the unsuccessful party.
[59] T 228.
I accept that a number of matters were not discussed on 28 January 2006. There was no discussion about (1) how the proceedings would run their course;[60] (2) the length of proceedings or likely level of legal costs or experts’ costs;[61] (3) appeals;[62] (4) how the proceedings would be conducted if the parties differed in how they wished the proceedings to be conducted;[63] (5) the basis upon which Mr Manos or counsel were engaged and were charging for their fees; (6) an estimate of those fees;[64] (7) the costs of expert reports;[65] and (8) what would happen if the proceedings were instituted and adverse costs orders made against them.[66]
[60] T 225.
[61] T 238.
[62] T 226.
[63] T 226, 228.
[64] T 228.
[65] T 237.
[66] T 244-245, 415.
Mrs Hall recalled a meeting with Dr Halcrow shortly before they signed the affidavits,[67] but did not recall anything of the meeting itself.[68] She had no memory of a meeting on 28 January 2006.[69] She did say that an agreement was reached in around January [2006] some time that the costs would be shared 50/50.[70]
[67] T 467.
[68] T 494.
[69] T 494.36.
[70] T 495.
Dr Halcrow in cross examination stated that he did not recall the meeting at all.[71] He disagreed with the proposition that he agreed at that time to split everything 50/50[72] and said that it was on 6 May 2006 that he agreed to split the costs of their lawyers 50/50.[73]
[71] T 595.
[72] T 595.
[73] T 596.
I find that there was a meeting on 28 January 2006 at which the question of costs of the judicial review proceedings was discussed and it was agreed that the costs would be split 50/50. The note of the conversation clearly was to that effect. The evidence of Mr Hall was also to the same effect. In the absence of evidence that the note was fabricated or did not accurately record the conversation, that evidence is compelling. Dr Halcrow did not remember the content of the discussion on 28 January 2006, although he did disagree that the agreement as to costs had been made at that time.
It is logical that there would have been such an agreement at that time, given that proceedings were issued a few days later. Dr Halcrow accepted that he knew that there were costs consequences if you win or lose an action.[74] The subsequent division of costs during the period in which Dr Halcrow remained as a plaintiff to the judicial review proceedings and the provision of the undertaking as to damages by all parties are consistent with the existence of an agreement of the type propounded by Mr and Mrs Hall. This also includes the payment of the adverse costs order following the successful appeal by City Apartments in September 2006. Those costs were divided equally.
[74] T579.20.

On 30 January 2006, Mr Hall rang Dr Halcrow to enquire whether he had signed the draft affidavit.[75]
Institution of proceedings
[75] T 64.
The proceedings were issued in the Supreme Court on 31 January 2006, being proceedings No. 121 of 2006 (the judicial review proceedings). Mr and Mrs Hall were named as first and second plaintiffs respectively, Dr Halcrow as third plaintiff, the City of Burnside as first defendant and City Apartments as second defendant. Katnich Dodd was later added as the third defendant. Mr and Mrs Hall and Dr Halcrow all swore affidavits in support of the application. Dr Halcrow’s affidavit referred to his concerns as to safety and stated that he did not recall receiving notice of the proposed development, but if he had, he believes that he would have objected to it and/or become a party to an action involving that land. The summons and affidavit also included a front sheet in which Dr Halcrow was named as a plaintiff. In cross-examination, he said that he thought the front sheet of the affidavit was just a title page.[76]
[76] T 523.
The summons claimed the following relief:[77]
1 A declaration that the Development Approval issued by the City of Burnside to City Apartments in respect of DA180/0455/02/C3 is invalid.
2An order in the nature of certiorari to quash the Development Approval …
3 A declaration that the Provisional Building Rules Consent issued by Katnich Dodd in respect of DA180/0455/02/C3 is invalid.
4An order in the nature of certiorari to quash the Provisional Building Rules Consent issued by Katnich Dodd in respect of DA180/0455/02/C3.
5An injunction restraining City Apartments, its employees, agents or contractors from proceeding directly or indirectly with the development the subject of the development approval in respect of DA180/0455/02/C3.
6That the plaintiffs have their costs of these proceedings
7 Such further or other orders as the Court deems fit.
[77] Ex A3, p 30.
The proceedings, being proceedings for judicial review, were required to be instituted within 6 months of the decision being made and were therefore dependent on the plaintiffs obtaining an extension of time to bring the proceedings.
Communications following the institution of proceedings
On 4 February 2006, Mr Hall rang Dr Halcrow and advised him that proceedings had been issued and that he would provide him with a copy of the court documents.[78] These were in fact provided.[79] The possibility of a further draft affidavit being required was discussed in a telephone conversation on 8 February 2006.[80]
[78] T 65, Ex A3, p 9A.
[79] Ibid at p 67.
[80] Ibid at p9, T 65.35.
A more significant telephone call was held between Mr Hall and Dr Halcrow on 12 February 2006.[81] In that telephone conversation, Mr Hall advised Dr Halcrow that City Apartments was going to argue the time point, that further affidavits would be necessary and that Katnich Dodd may need to be added as a party.
[81] Ibid.
The joining of Katnich Dodd was also discussed in a further telephone conversation held between Mr Hall and Dr Halcrow on 15 February 2006.[82] In that conversation, Dr Halcrow agreed to the joinder of Katnich Dodd. Mr Hall told Dr Halcrow that there could be potential costs implications of the joinder. Dr Halcrow gave evidence that he understood that the joining of Katnich Dodd could have costs implications in that if the claim against that entity was unsuccessful, then he and Mr and Mrs Hall would have to meet any adverse costs order.[83]
[82] T 66, Ex A3, p 9A.
[83] T 602.
Mr Hall rang Dr Halcrow on 16 February 2006 and asked him what documents were given to Dr Halcrow when they first came to see him. In responding, Dr Halcrow referred to that date as 5 November 2005. Dr Halcrow did not recollect the conversation but did not dispute it.[84]
[84] T 555.
On 19 February 2006, a conference call was held between Mr Hall, Dr Halcrow and Mr Manos.[85] During that conference call, there was a discussion about the further affidavit to be signed by Dr Halcrow. Mr Manos came to Dr Halcrow’s house later on that day with the draft affidavit for Dr Halcrow to swear. That was the first occasion that Dr Halcrow had met with Mr Manos.[86] At that meeting, Dr Halcrow signed the affidavit. In that affidavit, Dr Halcrow referred to the meeting on 5 November 2005 with Mr and Mrs Hall and said that he indicated during those discussions that he wanted to be a party to the proposed proceedings.[87]
[85] T 71.
[86] T 570.
[87] Ex A3, p 66.
Dr Halcrow gave evidence that it was from 19 February 2006 that he became a party to the proceedings.[88] I do not accept that evidence. It is inconsistent with the affidavit that he swore on 19 February 2006, the email dated 19 December 2005 and the court documents. I do not accept the explanation given by Dr Halcrow that the discussions in which he agreed to be party occurred at some later time.[89] That is not the natural meaning of the words in his affidavit. In any event, it is clear that by 19 December 2005, he knew that he was to be a party to the proceedings.
[88] T 523.
[89] T 525.
Following some communications about matters of procedure on 22 February 2006 and 2 March 2006, Mr and Mrs Hall met with Dr Halcrow at their house on 3 April 2006.[90] During that discussion and in further discussions on 4 April 2006 and 6 April 2006, the question of an injunction was discussed and the need to provide an undertaking as to damages. On the latter date, the potential costs quantum of damages was discussed.[91] On 6 April 2006, Dr Halcrow, along with Mr and Mrs Hall gave an undertaking as to damages in relation to the injunction.[92] Dr Halcrow accepted by this time at least he knew that a legal endeavour could be unsuccessful.[93]
[90] T 73, Ex A3, p 62A.
[91] T 579.
[92] Ex A3, p 69, 73-76.
[93] T 603.
By April 2006, there had been several court hearings in relation to the proceedings. In March 2006, Bleby J granted an extension of time to commence the proceedings and granted leave to serve the proceedings. On about 4 April 2006, Bleby J refused City Apartments leave to appeal from that decision.[94] On 13 April 2006, Bleby J granted an interim injunction preventing the development from proceeding. Mr Hall informed Dr Halcrow of the granting of the injunction.[95]
Meeting of 6 May 2006
[94] Ex A3, p 62A.
[95] T 77, Ex A3, p 62A.
By the end of April 2006, a number of accounts had been sent by the barristers and solicitors who were acting for Mr and Mrs Hall and Dr Halcrow in the judicial review proceedings. These included an account from Mr Henry, barrister, dated 7 April 2006 in the sum of $9955[96] and an account from Manos & Associates dated 28 April 2006 in the sum of $9460.[97]
[96] Ex A3, p 70.
[97] Ibid at p 79.
In a telephone conversation on 3 May 2006, a meeting was arranged to discuss the costs.[98] That meeting was held on 6 May 2006 at the house of Mr and Mrs Hall. Mr and Mrs Hall and Dr Halcrow were in attendance. Notes were not taken at the meeting, but Mr and Mrs Hall prepared a note of the meeting on the night of 6 May 2006.[99] That note was written by Mrs Hall, but in the presence of and in consultation with Mr Hall,[100] although the note was added to after that time.[101] Mr Hall gave evidence that the accounts were discussed at that meeting. Mr Hall said that the note of the meeting was a fair representation of the words used and the agreement reached.[102] Mr Hall gave evidence that we discussed the possibility of splitting it 50/50 or making it one third each.[103] He said those ideas were put backwards and forwards and we eventually decided 50/50 was the way to go.[104] The note of the meeting also recorded that Dr Halcrow agreed to pay his share of the costs from the time that he joined the proceedings on 5 November 2005.
[98] T 82.
[99] T 84; Ex A3, p 81.
[100] T 84.
[101] T 304.
[102] T 298.8.
[103] T 299.
[104] Ibid.
Mrs Hall also gave evidence about this meeting. She said that there were initially discussions about sharing the costs one third, one third and one third.[105] She said that she recalled this because she was surprised and annoyed that her husband had raised this (because she was under the impression that costs had already been agreed to be split 50/50). She said that at the meeting it was agreed that costs would be split 50/50.[106] She said that it was agreed at the meeting that the costs extended to subsequent proceedings. She said that was discussed because that is what her note said.[107]
[105] T 438.
[106] T 439, 472.
[107] T 477, Ex 3p 81.
Dr Halcrow gave evidence about the meeting. He agreed that a meeting took place on 6 May 2006 at which costs were discussed.[108] He said that there was a discussion about the accounts that had been received from Mr Henry and Mr Manos and that they agreed to split those costs 50/50. He said this was the first time he had seen an account, so this was when the apportioning was done.[109] Dr Halcrow said that when the first invoice was received, he contemplated whether it should be split equally or divided in some other way.[110] Dr Halcrow said that Mr Hall had initially brought up the possibility of the accounts being split one third, one third and one third, but quickly dismissed it.[111] Dr Halcrow said that at that meeting it was agreed that the lawyers’ account would be divided 50/50 and this would continue into the future in relation to the lawyers’ accounts, but the agreement did not extend to other accounts.[112] He said that in fact he was later provided with engineer’s accounts which he was prepared to pay.[113] Dr Halcrow agreed that the costs be split from 5 November 2005.[114] Dr Halcrow gave evidence that he accepted that the agreement reached on 6 May 2006 applied to further accounts received from Mr Manos and Mr Henry.[115] This is inconsistent with his opening where it was said that the agreement on 6 May 2006 applied only to the two accounts that had been received and did not apply to future costs.[116]
[108] T 524.
[109] T 528.
[110] T 80.
[111] T 529.
[112] T 523,533.
[113] T 532, 533.
[114] T 604-605.
[115] T 606.
[116] T 498-499.
Again, there was no discussion about adverse costs orders or appeals.
The evidence that there was a discussion at this meeting of the possibility of the costs being divided in three ways (ie between Mr Hall, Mrs Hall and Dr Halcrow) was, Dr Halcrow submitted, inconsistent with an agreement having been reached on 28 January 2006 that costs would be split 50/50. There is some force in that submission. However, I accept Mr Hall’s evidence that he considered that it made sense to review the question of costs when the first accounts were received.[117] I consider that this meeting was the first discussion concerning the practical application of the agreement that was reached on 28 January 2006. It included costs that were incurred prior to the involvement of Dr Halcrow and therefore the raising of the costs being divided in three ways was one way in which those costs could be addressed. The discussion about costs being divided in three ways does not cause me to alter my conclusion about the 28 January 2006 meeting and the agreement reached at that meeting. For the same reasons, I reject the evidence of Dr Halcrow that the first time that costs were discussed was at the 6 May 2006 meeting.
[117] T 307.
There was no plea and no reliance placed by the applicants on the 6 May 2006 meeting as extending the agreement to “any subsequent proceedings, should they be diverted to other courts”. Consequently, the meaning of that phrase was not explored in these proceedings and in particular whether it related to the judicial review proceedings, if they continued in some other court, or some other proceedings. The continuation of the agreement to other proceedings could occur if the parties agreed to institute some other proceedings. It did not give one party the right to unilaterally institute other proceedings. In any event, given the way that this note was compiled (and being very different from the way that Mr Hall made notes, including of the meeting of 28 January 2006 meeting) and that the compilation of these notes represented an ex post facto reconstruction of what was said, I am not prepared to make a finding that the agreement extended to any other proceedings. As Dr Halcrow submitted, it is clear that at least some of the note of 6 May 2006 was made at a later date because it contains reference to events that occurred after 8 May 2006.[118]
[118] T 440.16.
Dr Halcrow did in fact pay half of the lawyer’s accounts and the engineering accounts whilst he remained in the proceedings.
Communications from June 2006 to September 2006 (Full Court decision)
On 6 June 2006 and 7 June 2006, there were telephone conversations between Mr Hall and Dr Halcrow.[119] In each case, Mr Hall provided an update of developments in the proceedings, including that City Apartments had sought to lift the injunction and had appealed the leave point, which appeal was to be heard in July 2006.
[119] T 94, Ex A3, p 115A.
There continued to be further telephone discussions between Mr Hall and Dr Halcrow during June 2006 and early July 2006 about the progress of the matter, but they are not relevant to the matters in dispute.
Further accounts were rendered by Mr Livesey QC in the sum of $6930 (who had been retained to act in the matter with Mr Henry) and Mr Henry in the sum of $17,215. These accounts were forwarded by Mr Manos in a letter dated 13 July 2006 addressed to Mr and Mrs Hall and Dr Halcrow, but sent c/- of Mr and Mrs Hall’s address at Mt Osmond.[120] Mr Hall rang Dr Halcrow on 24 July 2006 to discuss those accounts.[121] Ultimately, Mr and Mrs Hall paid half of those accounts and Dr Halcrow paid the other half.
[120] Ex A3, p 130.
[121] T 100, Ex A3, p 116A.
The landscape of the judicial review proceedings changed dramatically on 12 September 2006 when the Full Court delivered judgment in which they allowed the appeal of City Apartments and set aside the order of Bleby J extending the time within which Mr and Mrs Hall and Dr Halcrow could commence the present proceedings.[122]
Communications following the Full Court decision
[122] Ex A3, p 269 at [76].
Following this judgment, Mr Hall had a number of discussions with Dr Halcrow about the future of the proceedings and how to proceed. On 13 September 2006, Mr Hall and Dr Halcrow met with Mr Henry.[123] The issue of an appeal to the High Court was considered including a consideration of the costs implications of such a course. Shortly after that meeting, Mr and Mrs Hall and Dr Halcrow issued an application for special leave to appeal to the High Court on 10 October 2006.
[123] Ex A3, p 134A, T 535.
On 29 September 2006, Clelands, solicitors for City Apartments, sent a letter to Mr Manos in which they stated that their position was that the judicial review proceedings were finished and therefore if they wished to proceed further, Mr and Mrs Hall and Dr Halcrow would need leave to amend their claim to bring a claim for a declaration or in nuisance.[124] If declaratory relief was sought, City Apartments contended that as a preliminary issue Mr and Mrs Hall and Dr Halcrow would need to vary the previous declaration made by the Full Court in 2005 declaring the development to be a valid development.
[124] Ex A3, p 137.
Mr Manos responded by letter dated 3 November 2006 advising that they intended to continue the present proceedings to seek declarations and injunctions and also include a claim by Dr Halcrow in nuisance.[125]
[125] Ex A3, p 144.
Further accounts were rendered by Mr Manos including accounts from Mr Livesey QC and Mr Henry which were paid in equal amounts by Mr and Mrs Hall on the one hand and Dr Halcrow on the other.
A number of matters occurred in late 2006 in relation to the proceedings. In November 2006, City Apartments filed an application to dismiss the summons.[126] Mr and Mrs Hall and Dr Halcrow filed an application to amend the summons to include a claim based in nuisance and to seek declarations and injunctions.[127] That application was not proceeded with, but Mr Hall was not able to explain why that was the case.[128] In December 2006, City Apartments brought an application to remove the injunction that had been previously been granted preventing City Apartments from proceeding with the development.[129] In January 2007, Bleby J delivered judgment on that application and discharged the injunction.[130] In that judgment, Bleby J held that by reason of the decision of the Full Court, Mr and Mrs Hall and Dr Halcrow were presently barred from obtaining the relief claimed in paragraphs 2 and 4 of the summons (in which orders were sought in the nature of certiorari to quash the development approval and the building rules consent approval). Bleby J further held that paragraphs 1 and 3 of the summons, although seeking declaratory relief, related solely to the alleged invalidity of the two decisions sought to be quashed and therefore were merely supportive of the relief sought by way of judicial review, a remedy to which the plaintiffs were not presently entitled. He held that if the plaintiffs’ claim was one for judicial review alone, it had no present prospect of succeeding, given the decision of the Full Court.
Settlement advice and negotiations/mediation with City Apartments
[126] Ex A4, p 696, T 289.
[127] Ex A4, p 697; T 289.
[128] T 342.
[129] T 291.
[130] T 293, Ex A3, p 172.
On 15 December 2006, Mr Manos sent an email to Mr and Mrs Hall and Dr Halcrow in which he provided advice about settling the matter.[131] In that email, Mr Manos stated:
(1)From the outset of this litigation, I have always expressed concern that the action will not be successful because the court will give CA [City Apartments] an opportunity to rectify any issues regarding the safety of the embankment…Whilst I believe we have been able to demonstrate the unsuitability and therefore the unsafe condition of the embankment, there is still a risk that the injunction will be discharged and that CA will seek damages as a result of the injunction. There would then be various costs order not to mention the costs orders that have been made in the litigation to date.
(2)CA are simply were wishing [sic] to establish a dwelling on the land in accordance with the approvals that have been issued in its favour. If the site can be made safe, there is no reason why the right of way cannot be used. It seems to me that will be the inevitable outcome because there is no doubt there are mechanisms available to make the embankment safe.
(3)I therefore repeat that you should give very serious consideration to seek to resolve the matter which will allow the retaining wall and embankment to be made safe, use of the right of way (in an appropriate way) gates if possible, a reduction in the fuel load and an overall settlement including costs.
(4)In simple terms we are not in a strong position and our position will be substantially weakened if the Supreme Court varies (and even more so if it discharges) the injunction at the hearing set for 22 December 2006. In my view every effort to be made to seek to resolve the matter given the buyout approach is obviously not going to work.
[131] Ex R16.
On 21 December 2006, Mr Henry, counsel for Mr and Ms Hall and Dr Halcrow, gave written advice[132] that it was his strong recommendation that Mr and Mrs Hall consent to the discharge of the injunction and consider their position on future challenges to amended consents and approvals. Sometime in early 2007, both Mr Livesey QC and Mr Henry gave advice that the judicial review proceedings should be settled.[133]
[132] Ex R23.
[133] T 489, 542-543, 633.
From at least this time, Dr Halcrow wished to settle the proceedings.[134] Dr Halcrow, at about this time, received independent advice from Minter Ellison, although they did not take over the conduct of the proceedings.[135]
[134] T 561, 622, 632.
[135] T 540, 623.

In May 2007, Mr Nosworthy conducted a mediation with all of the parties to the proceedings.[136] It was evident by this stage that Dr Halcrow was determined to settle.[137] At that mediation, Dr Halcrow reached an agreement in principle with City Apartments to settle the dispute, although the detail of the Deed of Settlement was later finalised.[138] The same position was reached between Dr Halcrow and the City of Burnside.[139] Mr and Mrs Hall did not reach any settlement with any party, although they were involved in the settlement negotiations.[140] Mr Hall gave evidence that there were a long list of reasons (relating to engineering concerns) as to why he was not prepared to settle.[141] He did not have a specific recollection of whether a costs offer was made by City Apartments.[142] Mrs Hall was also vague about whether a costs offer was made.[143] However, she gave evidence that at the time of the mediation that in exchange for the payment of a sum of money in costs to the City of Burnside, Katnich Dodd and City Apartments, the judicial review proceedings would have ended.[144]
[136] T 557, Ex A3, p 206, 207, 211.
[137] Ex A3, p 207 and 211, T 634.
[138] T 557-560.
[139] T 560-561.
[140] T 136.
[141] T 293.1.
[142] T 294.12.
[143] T 488.13-488.21.
[144] T 488.22.
On 21 May 2007, the solicitors for the City of Burnside sent to all of the parties to the judicial review proceedings a draft deed of settlement that provided for either the payment of $20,000 in costs by Mr and Mrs Hall and Dr Halcrow collectively or the determination of costs by expert determination. The City of Burnside did not seek costs. This draft Deed of Settlement did not represent a agreement or agreement in principle that had been reached, but rather was a basis for further negotiation.
On 4 June 2007, the solicitors for City Apartments said that following the mediation they would not enter into further negotiations with Mr and Mrs Hall but would entertain any formal offer made by them.[145] No such offer was forthcoming.[146]
[145] T 363.
[146] T 364.
Following the mediation, Dr Halcrow, City Apartments and City of Burnside continued to negotiate the terms of a Deed of Settlement. On 4 June 2007, Mr Hall had a long conversation with Dr Halcrow about the proposed settlement and made detailed notes of that conversation.[147] The general tenor of that conversation was that Mr Hall pointed out the risks and consequences of a settlement from his perspective and Dr Halcrow said why he wished to settle. There was reference to the chance of getting special leave to appeal from the High Court as being “pretty small”.[148] Dr Halcrow said words to the effect “A huge problem for me if you keep fighting this and keep losing and I have to pay out myself as a result”.[149]
[147] Ex A3, p 213A; T 135-145.
[148] T 145.
[149] Ibid.
Mr Hall and Dr Halcrow had a further telephone call on 12 June 2007. In that conversation, the main topic of conversation was that a conflict would be created if Dr Halcrow settled and Mr and Mrs Hall did not.[150] Mr Manos had given advice that he would not be able to act in that event.[151] Dr Halcrow said he did not see it as a conflict.[152] In this conversation, Dr Halcrow said that he would be throwing away $100,000-$200,000 if he proceeded with the action, rather than settle. He further said that if he settled with City Apartments, he would have to pay costs of about $12,500.[153] Dr Halcrow said that he was going to settle with City Apartments.[154]
[150] T 146; Ex A3, p 214A.
[151] T 146.
[152] T 152-153.
[153] T 150.
[154] T 154.
There was a still further telephone conversation between Mr Hall and Dr Halcrow on 13 June 2007 about the proposed settlement. In that conversation, Mr Hall gave evidence that from his perspective there were a great many unanswered questions relating to engineering issues, landscaping, gates, costs etc.[155] The matters raised by Mr Hall again demonstrate that his opposition to the development was based on many factors and not just safety concerns.
[155] T 157, Ex A3, p 215A.
On 17 June 2007, there was yet another telephone between Mr Hall and Dr Halcrow about the settlement and the terms of the proposed Deed. Mr Hall said he should put something in the Deed to the effect that half of the costs are expunged if he settles with City Apartments.[156] Dr Halcrow said that he was not going to change his mind about settlement and that he was taking the lesser of two evils and had blown enough money.[157]
[156] T 161, 164, Ex A3, p 216A.
[157] T 164.
There continued to be further telephone calls between Mr Hall and Dr Halcrow relating to settlement on 18 June 2007,[158] 19 June 2007 and 22 June 2007.[159] Mr Hall continued to attempt to persuade Dr Halcrow that he should not settle. In the conversation on 22 June 2007, Dr Halcrow reiterated that Mr Hall was not going to talk him out of it, that he was sick and tired of hearing from him and that he had told him repeatedly that he was getting out of the proceedings. Mr Hall responded by saying that it was not as simple as that and it was not a question of warning him, but whether he had the right to withdraw from the proceedings.[160] Dr Halcrow disagreed with this proposition and said that he did not want to hear from Mr Hall or Mr Bebbington (the director of City Apartments) or Mr Walker (from Clelands) again.[161] Dr Halcrow further said that he was going to sign the Deed on 24 June 2007.[162]
Settlement between Dr Halcrow and City Apartments and City of Burnside
[158] T 166; Ex A3, p 216A
[159] T 170; Ex A3, p 217A.
[160] T 171,
[161] T 172.
[162] T 170.
A Deed of Settlement was executed by City Apartments on 27 June 2007, Dr Halcrow on 29 June 2007 and City of Burnside on 9 July 2007.[163] In this Deed, City Apartments agreed to vary the drainage work, Dr Halcrow agreed to discontinue the proceedings and pay certain costs and the parties mutually released each other from all claims. In addition, City Apartments expressly reserved the right to seek costs and damages from Mr and Mrs Hall. There was no such reservation by the City of Burnside. The costs that Dr Halcrow agreed to pay were $5000 towards the costs of City Apartments of the Full Court appeal, $14,800 towards the costs of City Apartments in the proceedings, $100 to the costs of City Apartments in the High Court and $100 towards the damages suffered by City Apartments as a result of the interim injunction.
[163] Ex A3, p 228.
Dr Halcrow filed a notice of discontinuance of his claim against City Apartments and the City of Burnside on 28 June 2007[164] and later filed a notice of discontinuance against Katnich Dodd on 3 August 2007.[165]
[164] Ex A3, p 218.
[165] Ex A3, p 346.
Up to this time, Dr Halcrow continued to pay half of the costs that had been incurred in the prosecution of the proceedings.
Following Dr Halcrow settling the proceedings, Mr Manos and Mr Livesey QC withdrew from acting for Mr and Mrs Hall. Mr and Mrs Hall engaged Mr Clisby to act for them in the High Court. Mr Clisby in turn engaged Mr Quick QC to act as counsel in the High Court proceedings. The application for special leave came on for hearing on 8 August 2007 and 9 August 2007.[166] On 8 August 2007, the High Court made an order removing Dr Halcrow as a party to the proceeding and on 9 August 2007 made an order dismissing the application for special leave.[167]
Continuation of the proceedings by Mr and Mrs Hall after Dr Halcrow settled
[166] Ex A5.
[167] Ex R17; T 330.
Following the dismissal of the application for special leave, Mr and Mrs Hall continued to prosecute the judicial review proceedings and incur costs to their solicitors and barrister. Mr Clisby and Mr Quick QC both rendered accounts to Mr and Mr Hall in respect of their involvement in the High Court proceedings.
On 3 August 2007, City Apartments took out an application to dismiss the proceedings on three bases: that there was no reasonable prospect that the Court would made an order for judicial review, want of prosecution and abuse of process.[168] The City of Burnside made a similar application,[169] as did Katnich Dodd.[170] Mr and Mrs Hall opposed the application and instructed new lawyers, Brian Deegan & Associates, and a new barrister, Mr Swan, to act for them. They sought to amend their claim.[171]
[168] Ex A3, p 350.
[169] Ex A3, p 364.
[170] Ex A3, p 376.
[171] Ex A3, p 367 at [20].
Bleby J heard the application on 11 October 2007 and delivered judgment on 21 December 2007 granting the applications and dismissing the claim.[172] Bleby J considered the proposed amendments in reaching his conclusion. He noted that the application by Mr and Mrs Hall to plead nuisance had not been renewed until 21 September 2007. He held that the action must be dismissed because the claim for judicial review was unable to proceed and the alternative claim for declarations and injunctions were an abuse of process. The claims based on nuisance and non-compliance were dismissed as having no prospect of success.[173]
[172] Ex A3, p 385; T 338.
[173] Ibid at [61].
Mr and Mrs Hall appealed against that judgment in January 2008.[174] That appeal ultimately came on for hearing on 1 December 2008. Mr and Mrs Hall initially failed to set down the appeal in time and required an extension of time from the Full Court to do so. That application for an extension of time was initially refused by Anderson J,[175] but was later granted by the Full Court.[176] Ultimately, the appeal from the decision of Bleby J dismissing the action was dismissed by the Full Court on 19 December 2008.[177] Doyle CJ held that that in its unamended form, the summons for judicial review was liable to be struck out once the application for an extension of time within which to issue the summons had been refused.[178] Costs of $28,898 were paid by Mr and Mrs Hall in respect of this second Full Court appeal.[179]
[174] Ex A3, p 452.
[175] Ex R19.
[176] Ex R21.
[177] Ex R18.
[178] Ibid at [51].
[179] T 186; Ex A4, p 617.
City Apartment’s costs in relation to the High Court proceedings were assessed by the High Court registrar in the sum of $15,819.40.[180] That sum was paid by Mr and Mrs Hall.
[180] Ex A3, p 407.
On 27 March 2008, Bleby J delivered judgment on an application for costs against Mr and Ms Hall following the dismissal of the claim.[181] In that judgment, Bleby J held that following the refusal by the Full Court in September 2006 of the plaintiff’s application for an extension of time to bring judicial review proceedings, there was an effective bar to the judicial review proceedings and proceedings for incidental declarations. Thereafter, the only possible action was for nuisance.[182] Bleby J found that the claim for declaratory relief and judicial review failed with the decision of the Full Court to refuse the extension of time.[183]
[181] Ex A3, p 411 at [10].
[182] Ibid at [11].
[183] Ibid at [19].
Bleby J accepted that the claim in nuisance effectively proceeded in the name of each of Mr and Mrs Hall and Dr Halcrow (although there was no express pleading to the effect) until Dr Halcrow discontinued his claim. Thereafter, Mr and Mrs Hall had no prospects of success and indemnity costs should be awarded against them from 3 August 2007. Formal costs orders were made that reflect those reasons. Those orders provided that:[184]
(1)subject to paragraph 2, to any particular order as to costs and to any costs of the action paid or payable by the former third plaintiff Stephen John Halcrow to the defendants, the plaintiffs [Mr and Mrs Hall] pay the defendants’ costs of the action.
(2)As from 3 August 2017, the plaintiffs pay the costs of the second defendant, City Apartments Pty Ltd on a indemnity basis.
[184] Ex A3, p 423.
It appears to me that from this background, Mr Hall in particular was implacably opposed to the proposed development of City Apartments. He did not appear to have any real desire to settle the proceedings, unless there was a capitulation from City Apartments. He did not act upon the advice that had been received from Mr Livesey QC, Mr Henry and Mr Manos. He was determined to push ahead with the judicial review proceedings at any cost.
Costs issues and taxation
On 10 June 2008, Mr Cogan, who was acting for Mr and Mrs Hall in relation to costs matters, wrote to Dr Halcrow and requested that he pay one half of the costs of the Full Court appeal that was determined in September 2006.[185] Those Full Court costs were ultimately agreed in June 2008 in the sum of $16,000.[186] This amount was paid equally by Mr and Mrs Hall on the one hand and Dr Halcrow on the other (Dr Halcrow had already paid $5000 towards this sum as a result of the settlement that he reached with City Apartments in June 2007).
[185] Ex A3, p 426.
[186] Ex A4, p 532 and 533; T 117.
On 17 June 2008, Clelands, solicitors for City Apartments, wrote to Brian Deegan, solicitors for Mr and Mrs Hall, and said that the total amount of their legal fees from September 2005 to May 2008 was in the sum of $242,142.32.[187] The letter noted that City Apartments had received $43,492.39 as contribution to these costs. The amount claimed included costs incurred by City Apartments in defending a District Court action brought by Mr and Mrs Hall about the right of way. The right of way action continued to 2010 and went to a hearing and an order was made which allowed for two gates rather than the no gates proposed by City Apartments. The action was discontinued or dismissed with no order as to costs.[188] The letter also noted that engineering costs were in the sum of $65,468.81 (which was included in the $242,142.32).[189] An affidavit filed by the solicitors for City Apartments indicated Mr and Mrs Hall had made no offer to resolve the matter since 4 June 2007.[190]
[187] Ex A3, p 436.
[188] T 376.
[189] T 373.
[190] Ex A3, p 485 at [8].
City Apartments, through their costs lawyers, Finlaysons, prepared a long form bill of costs in which they claimed costs in the sum of $217,931.30 plus interest on those costs in the sum of $77,264.11.[191] The costs adjudication between City Apartments and Mr and Mrs Hall has continued over many years and still continues. Mr and Mrs Hall have paid two interim allocators totalling $100,000.[192]
[191] Ex A4, p 553.
[192] T 178-189; Ex A4, p 638, 652.
Mr and Mrs Hall settled the costs claim with the City of Burnside on 22 September 2016 in the sum of $80,000.[193] The City of Burnside had earlier sent a short form bill of costs in which they claimed $162,855.19.[194]
[193] T 179; Ex A4, p 179.
[194] Ex A4, p 556.
The amount claimed by Mr and Mrs Hall in these proceedings is for $204,100, being one half of the $408,200 that Mr and Mrs Hall have either (1) incurred and paid to their own lawyers since Dr Halcrow discontinued his claim or (2) paid to City Apartments and City of Burnside to date in respect of their costs of the judicial review proceedings. Mr and Mrs Hall also claim such further costs that are assessed as owing to City Apartments or are incurred in defending the costs claim of City Apartments.
The amount claimed to date by Mr and Mrs Hall comprises:
(1)The two interim allocators totalling $100,000 paid to City Apartments in part payment of the costs of the judicial review proceedings;
(2)The sum of $80,000 paid to City of Burnside for its costs of the judicial review proceedings as a result of the settlement entered into between the City of Burnside and Mr and Mrs Hall;
(3)The sum of $69,556 paid to Mr Cogan from 3 September 2008 to 2 November 2020 for costs in acting for Mr and Mrs Hall in relation to the costs dispute and assessment with City Apartments and City of Burnside;[195]
(4)The sum of $8085 paid to Mr Swan, barrister, in relation to costs arguments in which he was engaged by Mr Cogan;[196]
(5)The sum of $12,100 paid to Mr Clisby, who acted as solicitor for Mr and Mrs Hall. This sum was in respect of the costs in the High Court matter (when Mr Clisby took over acting for Mr and Mrs Hall);[197]
(6)The sum of $4400 paid to Mr Quick QC in acting for Mr and Mrs Hall in the High Court;[198]
(7)The sum of $29,516 paid to Mr Deegan who acted for Mr and Mrs Hall in the judicial review proceedings in the second half of 2007 and in 2008 after Dr Halcrow had discontinued his claims;[199]
(8)The sum of $63,956 paid to Mr Swan, barrister in acting for Mr and Mrs Hall from 12 October 2007 to 2 December 2008 in relation to the judicial review proceedings and the appeal to the Full Court in 2008;[200]
(9)The sum of $5170 paid to Mr Quick QC in acting for Mr and Mrs Hall in the judicial review proceedings after Dr Halcrow had discontinued and from 20 August 2007 to 17 September 2007;[201]
(10)The court fee of $1345 paid in relation to lodging the notice of appeal to the Full Court in January 2008;[202]
(11)The sum of $28,898 paid to City Apartments for costs. This sum represents the costs incurred in relation to the appeal determined in December 2008;[203]
(12)The sum of $5174 in interest on appeal costs.
[195] T 416.
[196] T 181, 416.
[197] Ex A3 p 343, 357.
[198] Ex A3, p 363.
[199] Ex A3, p 383, 418-421, 430-432, 443-445, 446-469, 491-494, 516-517; Ex A4, p 535-539.
[200] Ex A3, p 370-381, 401-402, 405, 435, 446, 464-5, 499, 512-513; Ex A4 520 and Ex A6.
[201] Ex A3, p 371.
[202] Ex A4, p 522.
[203] Ex A4, p 618.
Legal principles
The process of contractual interpretation
The central tenet of contractual interpretation is the principle of objectivity. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd,[204] the High Court unanimously said:
This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction. [Citations omitted.]
[204] (2004) 219 CLR 165 at [40].
The principle of objectivity applies in determining whether there was an intention to create contractual relations. As Gaudron, McHugh, Hayne and Callinan JJ stated in Ermogenous v Greek Orthodox Community of SA Inc:[205]
Because the search for the "intention to create contractual relations" requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word "intention" is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties. [Citations omitted]
[205] [2002] HCA 8; (2002) 209 CLR 95 at [25].
The use of surrounding circumstances and contractual purpose in the context of contractual interpretation has been subject of much analysis. In Byrnes v Kendle,[206] Heydon and Crennan JJ said at [98]:
A contract means what a reasonable person having all the background knowledge of the ‘surrounding circumstances’ available to the parties would have understood them to be using the language in the contract to mean. But evidence of pre-contractual negotiations between the parties is inadmissible for the purpose of drawing inferences about what the contract meant unless it demonstrates knowledge of ‘surrounding circumstances.
[206] (2011) 243 CLR 253 at [98].

For the above reasons, I find that that agreement as to costs related only to the judicial review proceedings for such period of time as both Mr and Ms Hall and Dr Halcrow were parties to those proceedings. That period ended when Dr Halcrow discontinued the proceedings against City Apartments and City of Burnside on 28 June 2007. It is immaterial for present purposes that the proceedings against Katnich Dodd were discontinued a little later on 3 August 2007 as Katnich Dodd has not claimed costs against Mr and Mrs Hall and Dr Halcrow.
I also find that the agreement as to costs concerned only the judicial review proceedings as instituted at that time. Those proceedings ended on the loss in the Full Court, subject to an application to the High Court for special leave and subject to the costs incurred in deciding what to do about those proceedings and how to bring them to an end. Even taking into account the last two matters, the judicial review proceedings against City Apartments and City of Burnside were effectively at end by 28 June 2007. The claims that were continued by Mr and Mrs Hall after that date were not the same judicial review proceedings that the parties had agreed to institute in January 2006. Bleby J put it this way in his judgment as to costs in March 2008:[242]
On 12 September 2006, the Full Court of this Court refused the plaintiffs’ application for an extension of time to bring judicial review proceedings. That effectively barred any judicial and proceedings for incidental declarations.
[242] Hall & Hall v City of Burnside & Ors (No 5) [2008] SASC 82 at [10]; Ex A3. p 411 at 415.
Even if I am wrong in my construction of the agreement as to its duration or subject matter, I find that the agreement was in fact terminated by Dr Halcrow on 28 June 2007 when he discontinued his claim against City Apartments and City of Burnside. The agreement between Mr and Mrs Hall and Dr Halcrow as to sharing costs had two components: that they would be all parties to the agreement and share the costs. Dr Halcrow by discontinuing the proceedings had therefore terminated the agreement.
Lastly, I consider that it was an implied term of the agreement that either party could terminate on reasonable notice. In the context of contracts of employment, the High Court held that a contract for no set term, is to be regarded as containing an implied term that the employer can terminate on reasonable notice, although that term can be excluded as a matter of construction.[243] Other cases involving the supply of goods have been held to contain an implied term permitting termination on reasonable notice.[244] I reject the submission of the applicants that neither party could unilaterally terminate the agreement without the consent of the other party. There is no basis for the implication of such a term. It is not reasonable and equitable as it would prevent a party from terminating the agreement when they had received advice from counsel to settle (as in the present case) or where it would be an abuse to continue the proceedings. Such an implied term would ignore the context and commercial purpose of the agreement.
[243] Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 429 citing Richardson v Koefod [1969] 1 WLR 1812; Thorpe v South Australia National Football League (1974) 10 SASR 17 at 29.
[244] Gallagher v Pioneer Concrete (NSW) Pty Ltd (1993) 113 ALR 159 at 190; Staffordshire Area Health Authority v South Staffordshire Waterworks Co [1978] 1 WLR 1387.
It appears to me that it is appropriate in this case to imply a term that the contract can be terminated on reasonable notice. I have already referred to the context in which the contract was made, namely the different objectives being sought by Mr and Mrs Hall and Dr Halcrow from the proceedings. Further, circumstances could arise where, as in the present proceedings, counsel had given advice that the proceedings should be settled or the parties wish to take the proceedings in a different direction or one party wishes to institute an appeal. In each of these circumstances, I consider that the other party is not bound to continue in the proceedings. In my opinion, the criteria for the implication of a term set out by the High Court in BP Refinery (Westernport) Pty Ltd v Shire of Hastings[245] are satisfied. An implied term that the contract be terminated on reasonable notice is:
(1)reasonable and equitable. It is so for the reasons that I have expressed above, namely that there are a variety of circumstances in which it would it is reasonable and fair that one party be permitted to withdraw from the proceedings, notwithstanding that the other party may wish to continue;
(2)necessary to give business efficacy to the contract. The term was necessary to provide a mechanism and certainty as to when the contract could come to an end and to define the obligations of the parties;
(3) so obvious that it goes without saying. For the reasons that I have expressed, in my view, the proposed term is so obvious in that it is one party must be able to withdraw from the proceedings and the obligation to pay for further costs in the designated circumstances. In the absence of such an implied term, the contract is of an indefinite duration where one party may be forced to accede to the demands of the other party;
(4) clearly capable of clear expression. It is in the same terms as the implied term found by the High Court in Byrne v Australian Airlines Ltd,[246] referred to above;
(5) not contradictory to any express term of the contract. The parties did not expressly agree or consider any term relating to the termination of the agreement or the continuation of the proceedings by way of an appeal.
[245] (1994) 180 CLR 266 at 282-3.
[246] (1995) 185 CLR 410 at 440.
Dr Halcrow, during the course of the negotiations with City Apartments in 2007, advised Mr and Mrs Hall of his intention to settle and discontinue his claim. By the end of the mediation conducted in May 2007, he advised Mr and Mrs Hall that an agreement in principle had been reached, subject to the execution of a Deed of Settlement. At the mediation held in May 2007, Dr Halcrow advised Mr and Mrs Hall that he proposed to settle the proceedings. On 22 June 2007, Dr Halcrow expressly advised Mr Hall that he was going to sign the Deed on 24 June 2007. Throughout June 2007, Mr Hall continued to attempt to persuade Dr Halcrow not to settle. In these circumstances, I consider that Dr Halcrow has given reasonable notice of his intention to terminate the agreement relating to costs.
The applicants in their written submissions referred to the decision in Beaumont v Senior & Bull[247] in which it was stated that in the absence of an agreement between two defendants as to how costs are to be borne, it was clear that each of the two defendants are liable to their solicitor for half of the costs. That decision was approved by Kourakis CJ in DA Starke Pty Ltd v Yard & Anor.[248] In that case, Kourakis CJ held that co-plaintiffs had not, in the circumstances of that case, accepted joint and several liability for the fees charged by their solicitor, noting that there was some support for the proposition that there is a presumption that retainers with multiple clients are separate and not joint.[249] The principles referred to in the above case do not assist in determining the terms of this contract, including in particular what might occur if one party wished to cease their participation in the proceedings. The principle espoused in DA Starke would be relevant if there was no agreement as to costs.
[247] [1903] 1 KB 282 at 284.
[248] [2012] SASC 19 at [26].
[249] Ibid at [24].
I have found that the agreement made on 28 January 2006 covers the parties’ own costs (including barrister’s and solicitors, experts and courts costs). In relation to those costs, there is no dispute that Dr Halcrow has paid half of those costs that were incurred during the period that he was a party to the judicial review proceedings.
I have also found that under the agreement, Dr Halcrow is not liable for costs incurred after he ceased to be a party, whether they be costs owed to his own solicitors and barristers (or those solicitors engaged by Mr and Mrs Hall) or whether they be a liability for costs incurred after he ceased to be a party.
That leaves the costs of City Apartments and City of Burnside that are referrable to the period in which Dr Halcrow was a party to the proceedings. Dr Halcrow submitted that no liability for costs had accrued or been incurred during the period that he was a party to the proceedings. That is because until a costs order is made, there is no liability for costs, not even on a contingent basis.[250] In Foots v Southern Cross Mine Management Pty Ltd,[251] Gleeson CJ, Gummow, Hayne and Crennan JJ held:
[35]What, then of the appellant's first submission? This is, that his exposure to an adverse costs order arose from an "obligation" incurred prior to his bankruptcy. The submission should be rejected: no such obligation arose until the costs order was made. This conclusion is consistent both with the Australian authorities upon which Chesterman J had relied and the 20th century English authorities regarding the proof of costs in bankruptcy, particularly In re A Debtor, In re Pitchford and Glenister. Each of these authorities emphases the distinct nature of the proof of a costs order and the proof of an underlying debt (footnotes omitted)
[36]The most that can be said, as Mummery LJ observed in Glenister, is that "[o]nce legal proceedings have been commenced there is always a possibility or a risk that an order for costs may be made against a party". But that risk is not a contingent liability within the sense of s 82(1). The order for costs itself is the source of the legal liability and there is no certainty that the court in question will decide to make an order. It should be remarked that in support of his reasoning in Glenister, Mummery LJ referred to what had been said by Kitto J in Community Development Pty Ltd v Engwirda Construction Co and by Tadgell J in Federal Commissioner of Taxation v Gosstray. The first submission by the appellant should be rejected (footnotes omitted).
[250] Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 at [35]-[36]; see Mutton v Living Australia Pty Ltd, in the matter of Living Australia Pty Ltd [2020] FCA 739 at [30]-[33].
[251] Ibid.
If the agreement made on 28 January 2006 provides only for payment of costs of the respondents to the judicial review proceedings where the liability has been incurred during the period in which Dr Halcrow was a party to the proceedings, Dr Halcrow would have no liability for those costs. The liability for those costs has not been incurred until an order for those costs has been made. Bleby J made an order for costs in the judicial review proceedings in March 2008. Based on Foots v Southern Cross Mine Management Pty Ltd,[252] it is not until that date that Dr Halcrow would have incurred a liability for those costs.
[252] [2007] HCA 56; (2007) 234 CLR 52 at [35]-[36].
On the other hand, if the agreement is construed as requiring all costs to be shared which be incurred as a consequence of the pursuit of the proposed proceedings), then Dr Halcrow will be equally responsible for the costs incurred by the respondents in the judicial review proceedings during the period in which he was a party and for which a liability was later imposed.
In my opinion, this latter construction is to be preferred, although with the limitation that the obligation is limited to those liabilities which arose out of matters that took place when Dr Halcrow was a party to the judicial review proceedings. The words used on 28 January 2006 (“split everything 50/50”) are broad and in my view not confined to, in this instance, a liability for costs actually incurred during the term of the contract. It would be unduly technical and legalistic to ascribe an objective intention to the parties to confine their obligation to share costs in that way. In my view, the context in which the agreement was made on 28 January 2006 supports the position that they were going to share all costs associated with the proceedings that arose out of matters that took place when they were parties to the proceedings. The parties at the time of entering into the agreement knew that they might be liable for the costs of the respondents to the judicial review proceedings. Having that knowledge (objectively, but also subjectively), they agreed to share those costs.
The above conclusion could be tested by reference to the costs of the parties’ own solicitors and barristers. The liability for those costs might not be incurred until after one of the parties had ceased their involvement in the proceedings (because the account was not rendered until after that time, even though the work was done prior to the party ceasing to be involved). In that instance, I consider that Mr and Mrs Hall and Dr Halcrow had agreed to equally share the costs of the work done whilst they were both parties, even if the account and therefore liability for the work was not rendered until after one party ceased to be involved.
In summary, in relation to the claim made by Mr and Mrs Hall in contract, I make the following findings:
(1)Dr Halcrow is equally responsible with Mr and Mrs Hall for the costs of the barristers and solicitors, experts and incidental costs that were incurred during the period that Dr Halcrow was a party to the action. I find, on the evidence, that there are no costs outstanding in this category. No claim has been pressed in relation to these costs;
(2)Dr Halcrow is equally responsible with Mr and Mrs Hall for the costs of City Apartments in respect of which Mr Hall and Mrs Hall have a liability to City Apartments that is referrable to work undertaken by City Apartments’ barristers and solicitors (and including experts) during the period from 5 November 2005 to 28 June 2007 (being the period when Dr Halcrow was a party to the judicial review proceedings);
(3)Dr Halcrow is equally responsible with Mr and Mrs Hall for the costs of City of Burnside in respect of which Mr and Mrs Hall have a liability to City of Burnside that is referrable to work undertaken by City of Burnside’s barristers and solicitors (and including experts) during the period from 5 November 2005 to 28 June 2007 (being the period when Dr Halcrow was a party to the judicial review proceedings);
(4)Dr Halcrow has no liability for costs incurred by Mr and Mrs Hall after he ceased to be a party to the judicial review proceedings, whether those costs relate to costs of solicitors, barristers or experts engaged by Mr and Mrs Hall or other costs incurred by them in pursuing the judicial review proceedings and other proceedings and in contesting the taxation of costs, including any liability to City Apartments or City of Burnside for costs that is referrable to work undertaken by those entities after Dr Halcrow ceased to be a party to the judicial review proceedings.
I have given careful consideration as to whether Dr Halcrow should bear any responsibility under the contract for the costs incurred by Mr and Mrs Hall in reasonably defending the claim for costs of City Apartments in respect of work undertaken in the period between 5 November 2005 and 28 June 2007. I have determined that Dr Halcrow should not bear any responsibility for those costs. I have come to that conclusion for the following reasons. First, the liability for these costs did not arise in consequence of the pursuit of the judicial review proceedings or in respects of matters that occurred during the period when Dr Halcrow was a party: they arose as a consequence of the orders for costs made after this time. It appears to me that to capture such a liability is to extend the terms of the contract beyond its proper reach. These matters were not within the objective contemplation of the parties when they entered into the agreement. The costs were incurred because of Mr and Mrs Hall’s continued reluctance to settle any part of the proceedings, with City Apartments, including costs. Secondly, the requirement of Mr and Mrs Hall to spend money on the taxation arose because of their continued pursuit of the proceedings after Dr Halcrow had settled. There was at least a reasonable chance that the proceedings could have settled at mediation without the need for a taxation of costs. It is apparent from the email sent by City Apartments on 4 June 2007 that Mr and Mrs Hall were not prepared to make any further offer to settle the proceedings. I do not consider that Dr Halcrow obtained any benefit from Mr and Mrs Hall disputing the costs claimed by City Apartments compared to the costs that could have been agreed at or around the time of the mediation or after the proceedings had finalised. Mr and Mrs Hall acted for their own purposes in contesting the taxation of costs, rather than negotiating a resolution to the claim for costs. In these circumstances, I do not consider that it is correct to characterise the costs incurred by Mr and Mrs Hall in defending the claim by City Apartments as a liability incurred in pursuit of the judicial proceedings.
The parties agreed that I should not attempt to assess those claims that I have permitted at this time (irrespective of which category the costs are incurred), but should hear further submissions before determining how to address the quantum of damages.
Equity of Contribution
Section 42 of the District Court Act gives the Court a statutory power to award costs in any proceedings. Bleby J exercised that power in March 2008 when he awarded costs in the judicial review proceedings in favour of City Apartments and City of Burnside. Section 42 does not give a power to make an order for contribution between Mr and Mrs Hall and Dr Halcrow.
It is difficult to see how a common law right to contribution could take the case of Mr and Mrs Hall further than their claim in contract. The common law claim rests on the obligation to make contribution that arises from an agreement between the parties. In the absence of a contractual right, there is no common law claim available to Mr and Mrs Hall for contribution. The common law claim for contribution will in any event fail in that such a claim requires the party seeking contribution to have already made the payment of a sum in excess of their just proportion of the co-ordinate liability. In the present case, apart from the payment of the $80,000 to the City of Burnside and the interim payments of $100,000 to City Apartments, there have been no other payments of the amount claimed by City Apartments. Therefore, there is no common law right to contribution other than in respect of those payments.
It appears to me that the claim for contribution by Mr and Mrs Hall against Dr Halcrow can only be made in equity. Insofar as it goes beyond reliance on the agreement as to costs, the only matter that can support the equitable claim is that Mr and Mrs Hall on the one hand and Dr Halcrow on the other were all parties to the litigation. As such, as a general rule, when an adverse costs order is made, they are jointly and severally liable for the costs of the other party.[253]
[253] See G E Dal Point “Law of Costs”, 4^th ed, 2018 at [11.2] and the cases citied in footnote 6.
A consequence of the joint and several liability for costs is that one party who discharges a costs liability can seek contribution from others who are jointly liable to meet that liability.[254] The issue is one between the parties who are jointly responsible for those costs.[255]
[254] Ibid.
[255] Ibid.
The applicants must show that they and Dr Halcrow have a co-ordinate liability to make good the one loss. The relevant question therefore is whether the fulfilment by Mr and Mrs Hall of the costs liability to City Apartments and City of Burnside thereby discharges the liability of Dr Halcrow such that the latter would have a good defence against any subsequent claim in respect of that obligation.[256]
[256] GE Dal Point “Equity and Trust in Australia” 7th ed, 2019 at [41.130] citing Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342 at 346.

The applicants seek to establish that such co-ordinate liability arose either as a consequence of the costs order made by Bleby J in March 2008 or as a result of the contract entered into between Mr and Mrs Hall and Dr Halbrow in January 2006.
Dealing first with any liability arising from the costs order, the applicants are faced with the difficulty posed by the decision in Foots v Southern Cross Mine Management Pty Ltd, to which reference has already been made. The order for costs is the source of the liability. Until that time, there is only the possibility that an order may be made. In those circumstances, there is not even a contingent liability until the order for costs is made.
In these circumstances, the notice of discontinuance and the Deed of Settlement presents a significant obstacle to the claim for contribution in equity arising out of the costs order.
Dr Halcrow had no liability for the liability for costs incurred by City Apartments after he ceased to be a party. Under 2006 Supreme Court Rules (SCR) 107(4), unless the parties agree or the Court orders to the contrary, the party against whom the action, claim or defence is discontinued is entitled to costs arising from the action, or the claim or the defence (as the case may be) up to the time of receiving notice of the discontinuance. No order was made to the contrary in this case. It follows that there was no co-ordinate liability for the costs of City Apartments subsequent to the notice of discontinuance. There was no co-ordinate liability for those costs at the time that Bleby J made the order for costs against Mr and Mrs Hall in March 2008. Therefore, there is no right of contribution in respect of those costs.
There is similarly no co-ordinate liability for costs incurred by Mr and Mrs Hall in pursing the judicial review proceedings after 28 June 2007.
Further, in my opinion, the Deed of Settlement prevents Mr and Mrs Hall pursuing a claim for contribution against Dr Halcrow arising from the costs order made in March 2008.
The Deed of Settlement provided that:
(1)Both the City of Burnside and City Apartments agreed to fully and finally release Dr Halcrow from all Claims and Liabilities (as defined) in relation to the Dispute Matters (clauses 5.1 and 6.1);
(2)Each release will operate on and from the execution of this Deed by all the parties so as to have the effect of wholly extinguishing and discharging all Claims and Liabilities the subject of the relevant release.
However, the Deed also contains a clause that City Apartments and Dr Halcrow acknowledge that City Apartments intends and is at liberty to seek and enforce orders for costs and damages against any person not a party to this Deed including Mr and Mrs Hall (clause 3.3). There is no similar provision relating to the City of Burnside.
The Deed was signed in the context that two existing costs orders had been made against Mr and Mrs Hall and Dr Halcrow. They were for Mr and Mrs Hall (1) to pay the costs of City Apartments of the successful appeal in September 2006, which costs were ordered by the Full Court on 12 September 2006 and (2) to pay the costs of City Apartments of and incidental to the application for an interlocutory injunction dated 12 April 2006, which costs were ordered by Bleby J on 5 July 2007.
All other costs were future claims for costs.
In the case of the costs of the City of Burnside, I consider that the words of the Deed of Settlement are clear and unambiguous. They expressly provide for a full release of Dr Halcrow from all liability and discharge him from all future claims (future claims for costs being within the definition of “Claims” in the Deed). There is nothing in the Deed that in any way detracts from the breadth of this release. The applicants submitted that the release should be read down because it was known to the parties that the City of Burnside may pursue a claim for costs against Mr and Mrs Hall. In my opinion, that fact does not provide any justification for reading down the express words of the Deed. The parties, could, if they had wished, included a reservation of rights for the City of Burnside to pursue Mr and Mrs Hall. They chose not to do so. There is therefore no basis to imply such a reservation of rights.
The position in relation to City Apartments is different in that there is an express preservation of rights in the Deed of Settlement for City Apartments to pursue Mr and Mrs Hall. The reason for the rationale is that the release of Dr Halcrow would, but for the reservation of rights, also operate to release Mr and Mrs Hall of any joint and several liability they have to City Apartments. Where there is a reservation of rights, the exclusion clause is generally treated as a covenant not to sue.
The learned author, Glanville Williams in “Joint Obligations”[257] stated:
A believer in the logical consistency of English law might therefore be forgiven for supposing that a release of one joint and several covenantor would not work a release of a co-covenantor, for, although it would release the joint obligation, it would not release the other several ones, this, however, is not the rule. The rule is that a release of one joint and several coventantor discharges the others, in precisely the same way as with purely joint covenants.
[257] G.L Williams “Joint Obligations”, Butterworth & Co, 1949 at p135.
Williams went on to refer to numerous cases that had followed the above rule uncritically.[258] One of those cases was a decision by the Full Court of the Supreme Court of New South Wales in Mercantile Bank of Sydney v Taylor[259] where Windeyer J held:
In the case of Ward v The National Bank of New Zealand, one of the latest in the subject, their Lordships of the Privy Council, citing Bonser v Cox, recognise it as clear law that “when the creditor releases one of two or more sureties who have contracted jointly and severally, the others were discharged, the joint suretyship of the others being part of the consideration of the contract of each”. As the bond in this case was joint and several and the defendant had clearly a right of contribution from this co-surety, which he has now lost through the action of the creditor, I am of the opinion that the defendant was discharged from the obligation of his bond.
[258] Ibid citing Bayly v Garford arch N.R. 125, 82 ER 441; Cheetham v Ward 1 Bos. & Pul 630; 126 ER 1102 at 1104 where it was held that there was but one duty owing to both obligors and the discharge of one is the discharge of both ; Dennis (Denys) v Payn (1639) Cro.Car 551, 79 ER 1074; Ward v National Bank of NZ (1883) 8 App Cas 755 at 764 where it was held that where the creditor releases one of two or more sureties who have contracted jointly and severally, the others are discharged, the joint suretyship of the others being part of the consideration of the contract of each.
[259] (1891) 12 LR (NSW) 252.
An appeal to the Privy Council was dismissed with the Privy Council upholding the decision of the Full Court.[260]
[260] [1893] AC 317.
The decision in Walker v Bowry[261] and John Anthony Jeans v John Richard Bruce[262] are further instances of court approval of the above principle. Phillips and O’ Donovan in “The Modern Contract of Guarantee”[263] stated:
The application of the normal rule as to joint and joint and several parties means that a release of one of two joint and several guarantors releases the other even of the release is given after judgment is obtained against the guarantor who is released.
[261] [1924] HCA 28; (1924) 35 CLR 48 at 57-58.
[262] [2004] NSWSC 539 [255]-[256].
[263] 2^nd ed, 1992, Law Book Company.at 329 citing Walker v Bowry (1924) 35 CLR 48 at 57-58; re E.W.A (a debtor) [1901] 2 KB 642 at 648; Mee v ANZ Banking Group Ltd, unreported NSW Supreme Court, 16 July 1982.
The above rule (ie the release of one party who is jointly and severally liable release the co-debtor) does not apply where the creditor only provides to the first debtor a covenant not to sue rather than a release.[264] In such a case, the creditor is able to sue the co-debtor.[265] If there is an indication that the co-debtor is not to be discharged, the deed will be construed as covenant not to sue rather than a release, even if worded as a release.[266]
[264] See Re Perkins: Ex Parte Westpac Banking Corporation [1999] FCA 986 at [55]; Mercantile Bank of Sydney v Taylor (1891) 12 LR (NSW) 252.
[265] Williams “Joint Obligations” (above) at p 107 citing Clayton (Lacy) v Kynaston (1701) 2 Salkeld 573, 575; 9 ER 483 at 484; Dean v Newhall (1799) 101 ER 1326.
[266] Williams “Joint Obligations” at 110-11 citing 2 Brod. & B. 38, 129 ER 871; White v Glass (1871) 2 VR (L) 46.
Henry J considered this issue recently in Liu v Gu[267] in the context of guarantees. Henry J held:
[267] [2020] NSWSC 1469 at [39]-[43].
39.The principle that a joint and several guarantee will usually involve an obligation that all parties remain parties does not require that all parties remain liable on the guarantee. Where a creditor covenants not to sue a co-guarantor or affects a compromise with a co-guarantor falling short of an absolute release, the other joint and several guarantors are not discharged. A creditor can avoid releasing a remaining guarantor if the agreement with a co-guarantor, such as a settlement, is structured as a covenant not to sue rather than a release. A covenant not to sue does not affect the underlying liabilities of the other guarantors who will remain liable: Lavin v Toppi (2015) 254 CLR 459; [2015] HCA 4 (Lavin v Toppi) at 470-471; James v Surf Road Nominees Pty Limited [2004] NSWCA 475 (James v Surf Road) at [40]; James Donovan and John Phillips, Modern Contract of Guarantee (4th ed, 2004, Thomson Reuters, looseleaf) at [8.300].
40.It is a question of construction whether a settlement agreement operates as an absolute release or a covenant not to sue. If, upon its proper construction, in the context of the whole document in which the covenant is found, an intention is found not to release all joint and several promisors, that will point to a covenant not to sue: James v Surf Road at [41].
41.In James v Surf Road, the Court of Appeal recognised that the question of construction as to whether a particular provision in a document amounts to a release in law or whether it is a covenant not to sue is not always easy to resolve and identified, at [43]-[44], three factors that may determine the issue as follows:
(a)     where there is a joint obligation, a covenant which is expressed in terms of a release is usually construed as such;
(b)     even where there are joint obligations, the terms of a document containing the release may indicate that what was intended was a covenant not to sue. If any intention to reserve rights against the other co-promisors is found expressly or impliedly in the document containing the release, then it is most likely that the parties intended a covenant not to sue; and
(c)     the Court may have regard to the surrounding circumstances in determining whether what was intended was a release or a covenant not to sue the party who bears a joint or joint and several liability.
42.Where a document purports to release a joint debtor and contains in terms a reservation of rights against the other joint debtor, the document should be construed, not as a release, but as an undertaking not to sue with the result that the right to proceed against the co-debtor is reserved. Language importing an absolute release may be construed as a covenant not to sue where that intention appears. If an agreement falls within the qualification, in that it expressly or impliedly reserves rights against a joint debtor, there is no room for the application of the principle of construction that as between two mutually repugnant provisions in a deed or other contract, the earlier prevails over the later. Rather, the qualification provides the basis for the proper construction of the agreement or deed to enable a right to proceed against a co-debtor: Dorgal Holdings Pty Ltd v Buckley (1996) 22 ACSR 164 (Dorgal v Buckley) at 167; Carr v Thomas [2009] NSWCA 208 (Carr v Thomas) at [16]–[19].
43.An agreement may constitute a covenant not to sue rather than a release, even where there is no express reservation of rights against other debtors: Pollak v National Australia Bank Limited [2002] FCA 237; [2002] FCAFC 55 (Pollak v NAB) at [16] referring with approval to Murray-Oates v Jjadd Pty Limited (1999) 76 SASR 38; [1999] SASC 537 at 54.
It follows from the above authorities that, in the case of the two existing orders for costs, the Deed should be construed as a covenant not to sue rather than a release, as the express purpose of the Deed was to preserve a right to sue Mr and Mrs Hall. The position is different in the case of the future costs orders. There is no liability until the order for costs is made. The release is therefore not of one of joint and several obligees. Mr and Mrs Hall are therefore not released from any liability in respect of the future costs order because at the time of the Deed, there was no joint and several liability. Clause 3.3 has no operation in respect of the future costs order.
Therefore, when construing the Deed of Settlement, the release should be construed as subject to clause 3.3 in respect of existing liabilities (where there is a joint and several liability), but not otherwise. Therefore, the Deed when read as a whole, will be construed as a covenant not to sue in respect of existing orders, but a release in respect of any future costs orders. That is, the clear and unambiguous language of the release must be qualified, because of clause [3.3] in respect of existing liabilities, but there is otherwise no need to qualify the future releases.
The right of equitable contribution could also arise as a result of the January 2006 agreement where, I have found, the parties agreed to share any liability for work undertaken by City Apartments or City of Burnside in the period between 5 November 2005 and 28 June 2007. The parties are jointly liable under the contract for the payment of that liability. The Deed of Settlement does not operate to extinguish that liability. It follows, in my opinion, that there is co-ordinate liability under the January 2006 agreement for the liability to City Apartments and City of Burnside in respect of work undertaken by City Apartments and City of Burnside in the period between 5 November 2005 and 28 June 2007. The fulfilment of that liability by Mr and Mrs Hall would extinguish the liability of Dr Halcrow.
The applicants therefore have a right of equitable contribution for the above sum (once ascertained). The right of equitable contribution mirrors the claim in contract.
I have already found that the agreement did not extend to costs incurred by Mr and Mrs Hall in relation to the assessment of costs by City Apartments relating to the period in which Dr Halcrow was a party to the judicial review proceedings. As the January 2006 agreement did not extend to these costs, there was no liability on the part of Dr Halcrow for those costs. It follows, as the agreement is the only source of the claim for equitable contribution, the claim in respect of those costs must fail.
Conclusion
As to the claim for equitable contribution, I make the following findings:
(1)Dr Halcrow is liable to make equitable contribution in relation to the sum of $80,000 paid by Mr and Mrs Hall to City of Burnside. The amount of that equitable contribution is to be fixed by reference to the liability of Mr and Mrs Hall for costs incurred by City of Burnside for work undertaken in the period between 5 November 2005 and 28 June 2007 in defending the judicial review proceedings. Dr Halcrow is to pay one half of that amount;
(2)Dr Halcrow is liable to make equitable contribution in respect of the liability of Mr and Mrs Hall to City Apartments for costs incurred by City Apartments for work undertaken in the period between 5 November 2005 and 28 June 2007 in defending the judicial review proceedings. Dr Halcrow is to pay one half of that amount;
(3)Dr Halcrow is not liable to make contribution in relation to the liability incurred by Mr and Mrs Hall to City Apartments in respect of costs incurred by City Apartments in the period after 27 June 2007 in defending the judicial review proceedings or in respect of any liability in respect of any other proceedings;
(4)Dr Halcrow is not liable to make contribution for the liability incurred by Mr and Mrs Hall to City of Burnside in respect of costs incurred by City of Burnside in the period after 27 June 2007 in defending the judicial review proceedings or in respect of any liability in respect of any other proceedings;
(5)Dr Halcrow is not otherwise liable to make contribution for the costs incurred by Mr and Mrs Hall after 28 June 2007 in prosecuting the judicial review proceedings or defending the claims of costs made by City Apartments or City of Burnside.
Any amount payable in contract or by way of equitable contribution shall be reduced by the amounts paid by Dr Halcrow under the Deed of Settlement.
These orders mirror the findings that I have made in relation to the contractual claim. These are:
(1)Dr Halcrow is equally responsible with Mr and Mrs Hall for the costs of the barristers and solicitors, experts and incidental costs that were incurred during the period that Dr Halcrow was a party to the action. I find, on the evidence, that there are no costs outstanding in this category. No claim has been pressed in relation to these costs;
(2)Dr Halcrow is equally responsible with Mr and Mrs Hall for the costs of City Apartments in respect of which Mr and Mrs Hall have a liability to City Apartments that is referrable to work undertaken by City Apartments’ barristers and solicitors (and including experts) during the period from 5 November 2005 to 28 June 2007 (being the period when Dr Halcrow was a party to the judicial review proceedings);
(3)Dr Halcrow is equally responsible with Mr and Mrs Hall for the costs of City of Burnside in respect of which Mr and Mrs Hall have a liability to City of Burnside that is referrable to work undertaken by City of Burnside’s barristers and solicitors (and including experts) during the period from 5 November 2005 to 28 June 2007 (being the period when Dr Halcrow was a party to the judicial review proceedings);
(4)Dr Halcrow has no liability for costs incurred by Mr and Mrs Hall after he ceased to be a party to the judicial review proceedings, whether those costs relate to costs of solicitors, barristers or experts engaged by Mr and Mrs Hall or other costs incurred by them in pursuing the judicial review proceedings and other proceedings and in contesting the taxation of costs, including any liability to City Apartments or City of Burnside for costs that is referrable to work undertaken by those entities after Dr Halcrow ceased to be a party to the judicial review proceedings.
As the parties have agreed, I will not attempt to quantify the amount payable by Dr Halcrow. I will hear the parties further as to how I should approach that task and what formal orders should be made.