I S Schache and K Schache as t'ees for the Schache Superannuation Fund and as representative for investors in the Arafura Pearl Project for the financial year 2005/2006 v GP No 1 Pty Ltd
[2012] QSC 175
•21 June 2012
SUPREME COURT OF QUEENSLAND
CITATION:
I S Schache and K Schache as t’ees for the Schache Superannuation Fund and as representative for investors in the Arafura Pearl Project for the financial year 2005/2006 & Ors v GP No 1 Pty Ltd & Ors [2012] QSC 175
PARTIES:
IAN STANLEY SCHACHE AND KAMBAI SCHACHE AS TRUSTEES FOR THE SCHACHE SUPERANNUATION FUND AND AS REPRESENTATIVE FOR INVESTORS IN THE ARAFURA PEARL PROJECT FOR THE FINANCIAL YEAR 2005/2006
(first applicant)
ANTHONY JOHN CERQUI IN HIS OWN CAPACITY AND AS REPRESENTATIVE FOR INVESTORS IN THE ARAFURA PEARL PROJECT FOR THE FINANCIAL YEAR 2006/2007
(second applicant)
CAMERON DYAL IN HIS OWN CAPACITY AND AS
REPRESENTATIVE FOR INVESTORS IN THE ARAFURA PEARL PROJECT FOR THE FINANCIAL YEAR 2007/2008
(third applicant)
JOHN IRVlNE HERRIOTT AND JUDITH ANN HERRIOTT AS TRUSTEES FOR THE HERRIOTT FAMILY SUPERANNUATION FUND AND AS REPRESENTATIVE FOR INVESTORS IN THE ARAFURA PEARL PROJECT FOR THE FINANCIAL YEAR 2008/2009
(fourth applicant)
v
GP NO 1 PTY LTD ACN 151 382 688
(first respondent)
ARAFURA PEARLS HOLDINGS LIMITED
(ADMINISTRATORS APPOINTED) ACN 092 266 067
(second respondent)PEARLAUTORE INTERNATIONAL PTY LTD
ACN 050 938 166
(third respondent)FILE NO:
BS8876 of 2011
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
21 June 2012
DELIVERED AT:
Brisbane
HEARING DATE:
9 May 2012
JUDGE:
Martin J
ORDER:
Leave granted to the applicants to appeal against the costs order made on 23 December 2011, conditionally upon the grant by the Court of Appeal of any necessary extension of time with respect to such an appeal under r 748 of the UCPR.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – COSTS ORDERS – where indemnity costs order made against applicants – where applicants assert failure to exercise discretion – where applicants assert denial of natural justice – where applicants assert costs order plainly unreasonable and unjust – whether to grant leave to appeal against indemnity costs order
Supreme Court Act 1995 (Qld), s 253
AGL Sales (Qld) Pty Ltd v Dawson Sales Pty Ltd [2009] QCA 262, considered
Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219, considered
Emanuel Management Pty Ltd (in liquidation) & Ors v Foster’s Brewing Group Ltd & Ors [2003] QSC 484, considered
EPAS Ltd v James & Ors [2007] QSC 49, applied
I S Schache and K Schache as t’ees for the Schache Superannuation Fund and as representative for investors in the Arafura Pearl Project for the financial year 2005/2006 & Ors v GP No 1 Pty Ltd & Ors [2011] QSC 413, considered
McKinless v Hackney [1983] 1 Qd R 199, referred to
Morrison v Hudson [2006] 2 Qd R 465, consideredCOUNSEL:
D R Cooper SC for the applicants
L Copley for the first respondent
A J H Morris QC with V G Brennan for the second respondent
J Robb (solicitor) for the third respondentSOLICITORS:
MacGillivrays for the applicants
McMahon Clarke Legal for the first respondent
Kelly & Co for the second respondent
Banki Haddock Fiora for the third respondent
On 23 December 2011, I dismissed an application made by the first to fourth applicants for interlocutory orders.[1] On the same day I made an order that the applicants pay the respondents’ costs on the indemnity basis (“the costs order”).
[1][2011] QSC 413.
On 20 January 2012, the applicants filed a notice of appeal. In it they seek orders allowing the appeal and the costs of both the appeal and the proceedings at first instance. Alternatively, they seek an order “that the costs order pronounced by his Honour on 23 December 2011 be vacated”.
On 16 March 2012, the applicants filed their outline of argument with respect to the appeal. In [32] of that outline, the applicants contend:
“The learned primary Judge ordered indemnity costs against the Appellants without giving reasons which, it is submitted, amounts to a denial of procedural fairness.”
In [34] of their outline the following appears:
“It is submitted, therefore, that leave should be granted to appeal against the costs order, and the Court should make such order as to costs which is fair and just in the circumstances. An appropriate order would be that the Respondents pay the Appellants’ costs of the application and this appeal.”
On 4 May 2012, 131 days after the costs order was made, the applicants filed an application seeking leave to appeal the costs order.
Leave to appeal on costs is required by s 253 of the Supreme Court Act 1995. It provides:
“No order made by any judge of the said court by the consent of parties or as to costs only which by law are left to the discretion of the judge shall be subject to any appeal except by leave of the judge making such order.”
The grounds advanced by the applicants to support the grant of leave were:
(a) The circumstances in which the costs order were made (as outlined in an affidavit of J I McGaw) constituted a failure to exercise the discretion given by the rules;
(b) What occurred on 23 December 2011 amounted to a denial of natural justice; and
(c) The costs order is plainly unreasonable and unjust.
Denial of procedural fairness
In the affidavit of Mr McGaw (filed by leave on 9 May), he said that Mr Edgecombe (the partner in the firm who attended to receive judgment) was not able to swear an affidavit. Mr McGaw deposes that in early January 2012 he was advised by Mr Edgecombe that:
“(a)On 23 December 2011… he requested the issue of costs argument be adjourned given the unavailability of Mr D Cooper SC who was unwell and unable to attend court on that day;
(b)Accordingly, he made no formal submissions in relation to costs; and
(c)His Honour at the request of the Respondents’ Counsels ordered indemnity costs against the applicants as his Honour had found that the Applicants’ Application had failed.”
In his oral submissions on this point Mr Cooper said:
“I’m instructed that one of the counsel said, ‘We want indemnity costs.’ Your Honour said, ‘Yes, you can have indemnity costs.’ And that was the full extent of the debate.”
At the time of making those submissions, the transcript of what occurred on 23 December was not available. It only became available on 15 June this year. Mr Cooper said that he had to rely on what he had been told had happened on the day, and if what he had been told was right, then he submitted that there had not been an exercise of discretion because I had not turned my mind to the merits of the application.
In brief, the transcript of 23 December records that Mr Edgecombe sought time to provide written submissions on the question of costs.
In his submissions, Mr Morris QC referred to the written outline he had provided with respect to the substantive application. In that document, it had been argued that costs on the indemnity basis should be granted should I form the view that there was no serious question to be tried.
Mr Clothier also sought costs on the indemnity basis and referred to the circumstances of his client being joined to the proceedings.
Similarly, Mr Copley sought indemnity costs and also referred to the circumstances in which his clients were brought into the application.
The transcript shows that I then asked Mr Edgecombe whether he was familiar with the case. He did not say that he was unaware of the circumstances of the case. He said:[2]
“Not at the level that I would like to have been. Mr Cooper would have been here to hear your Honour’s judgment, but is unwell. So, I’m a little bit at a disadvantage insofar as resisting the – in truth, I can’t resist an order for costs, but in terms of indemnity costs, I’m a little bit taken at a disadvantage, so I would ask that perhaps my client be offered an opportunity to provide written submissions in respect of that.”
[2]Transcript of 23 December 2011, T 1-3, line 54.
Mr Edgecombe did not say why someone who was more familiar with the matter did not appear to take judgment.
I then said:[3]
“I can see no reason why costs should not be awarded against your client. I also find it difficult, having reviewed the matter, to see why the application was brought at all. It appeared to me to be based on a misunderstanding of the management grievance and a misunderstanding of the roles played by certainly the first and third respondents.”
[3]Transcript of 23 December 2011, T 1-4, line 3.
With respect to the application to provide written submissions on costs, I said:[4]
“I understand your position, Mr Edgecombe, but these are circumstances in which the matters relating to costs should be able to be argued at this point and not reserved. It’s – the practice, which seems to be developing, of allowing people another month to talk about costs just has to stop, and it certainly will as far as I am concerned.”
[4]Transcript of 23 December 2011, T 1-4, line 9.
I then went on to order that the applicants’ pay the costs of the first, second and third respondents on the indemnity basis.
The extent to which reasons must be given was considered by the Court of Appeal in Drew v Makita (Australia) Pty Ltd[5] where the following appears in the reasons of Muir JA:[6]
[5][2009] 2 Qd R 219.
[6]Ibid 237.
“[58] The rationale for the requirement that courts give reasons for their decisions provides some guidance as to the extent of the reasons required. The requirement has been explained, variously, as necessary: to avoid leaving the losing party with ‘a justifiable sense of grievance’ through not knowing or understanding why that party lost; to facilitate or not frustrate a right of appeal; as an attribute or incident of the judicial process; to afford natural justice or procedural fairness; to provide ‘the foundation for the acceptability of the decision by the parties and the public’ and to further ‘judicial accountability’.
[59] The extent to which a trial judge must expose his or her reasoning for the conclusions reached will depend on the nature of the issues for determination and “the function to be served by the giving of reasons”. For that reason, what is required has been expressed in a variety of ways. For example, in Soulemezis v Dudley (Holdings) Pty Ltd, Mahoney JA said:
‘… And, in my opinion, it will ordinarily be sufficient if – to adapt the formula used in a different part of the law … by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.’
[60] McHugh JA's view was that reasons sufficient to meet the above requirements do not need to be lengthy or elaborate but ‘… it is necessary that the essential ground or grounds upon which the decision rests should be articulated’.
[61] In Strbak v Newton, Samuels JA said:
‘…What is necessary, it seems to me, is a basic explanation of the fundamental reasons which led the judge to his conclusion. There is no requirement, however, that reasons must incorporate an extended intellectual dissertation upon the chain of reasoning which authorises the judgment which is given.’” (emphasis added, footnotes omitted)
The reasons given for ordering indemnity costs were brief but, in light of the decision which had been just delivered and the submissions made for the respondents, they sufficiently outlined the basis for the order.
This ground, therefore, is not made out.
Unreasonable and unjust
The applicants argued that the circumstances did not justify the making of an indemnity costs order and that such an order will ordinarily be confined to “cases of serious misconduct”.
The principles to be applied in an application such as this were considered by Margaret Wilson J in EPAS Ltd v James & Ors,[7] where her Honour said:
[7][2007] QSC 49.
“[2] The making of an order as to costs involves the exercise of judicial discretion on a procedural question. By s 253 an appeal against such an order may be brought only with the leave of the judge who made the order. In Morrison v Hudson Keane JA (with whom the other members of the Court of Appeal agreed) approved the observation of Chesterman J in Emanuel Management Pty Ltd (in liq) v Foster’s Brewing Group Ltd –
‘The evident purpose of s 253 is to limit appeals ‘as to costs only’. This is because decisions on costs afford a prime example of a discretionary judgment which parliament has recognised should be left to the trial judge.’
[3] Leave to appeal is not had for the asking. As Dowsett J observed in Grundmann v Georgeson –
‘Leave to appeal against an order as to costs is not given as a matter of course. A trial Judge, when asked to grant such leave, should not be expected to accede to such a request simply because his or her own order is to be attacked. Leave should not be given unless the applicant demonstrates that there is a cogent argument against the order. It will not usually be enough to assert dissatisfaction or the Judge may not have correctly applied a well-established principle.’
In Emanuel Chesterman J said –
‘A trial judge who is asked for leave to appeal should not be defensive about the orders made or overly reluctant to give leave. Nevertheless the cases make it clear that leave should not be given unless there is an arguable case that, applying the principles of House v The King the discretion will be overturned on appeal. That means there must be an arguable case that the judge committed an error of law, or misapprehended the facts or that the result is inexplicably inconsistent with the facts.’
In Morrison v Hudson Keane JA described the task facing a primary judge in determining such as application for leave this way –
‘Whether leave to appeal should be granted will usually depend on the primary judge’s view as to the balance of competing arguments, whether those arguments relate to matters of legal principle or disputed questions of fact, the importance and difficulty of such arguments, and, on occasion, the amount of money involved.’” (footnotes omitted)
It was argued by the applicants that: “In a case such as the present when there is also an appeal against the substantial part of the judgment, there is no reason why leave should not be given to appeal a less substantial part of the judgment.” Reliance was placed upon the decision in Martin v Rowling[8]where that reasoning was employed. That approach has been disapproved in AGL Sales (Qld) Pty Ltd v Dawson Sales Pty Ltd[9] where Fraser JA (with whom Muir and Chesterman JJA agreed) said:
[8][2004] QSC 330.
[9][2009] QCA 262.
“[48] … the grounds specified in the notice of appeal are simply that the trial judge erred in reaching the two conclusions I have mentioned, that the plaintiff was not unreasonable in presenting a case wider than was necessary to interpret the Gas Sales Agreement and that the plaintiff was not unreasonable in failing to apply for summary judgment. The notice of appeal goes on to assert that the trial judge erred in concluding that there was no demonstrated basis for departing from the ordinary rule as to costs, but that adds nothing to the two earlier grounds, which are themselves pitched at such a high level of generality as to be of no real assistance in identifying the particular error for which the defendants contend.
[49] Ordinarily, the questions to be agitated in an appeal brought by leave against a discretionary costs order would be identified in the primary judge’s reasons for the grant of leave. The Court does not have the benefit of a transcript of the trial judge’s reasons for granting leave, but it was asserted both in the amended notice of appeal and in oral submissions that the trial judge accepted the defendants’ argument that it was appropriate for leave to be given because of the defendants' appeal against the substantive judgement.
[50] It appears then that this was not an appropriate case for the grant of leave to appeal. After reviewing the relevant authorities, Chesterman J observed in Emanuel Management Pty Ltd (in liq) v Foster's Brewing Group Ltd and Coopers & Lybrand that:
‘ . . the cases make it clear that leave should not be given unless there is an arguable case that, applying the principles of House v R the discretion will be overturned on appeal. That means there must be an arguable case that the judge committed an error of law, or misapprehended the facts or that the result is inexplicably inconsistent with the facts.’
[51] The mere fact of an appeal against a substantive order is not a ground for the grant of leave to appeal against a discretionary costs order which was made consequentially upon the substantive order. Where an appeal against a substantive order succeeds leave is not required for this Court to exercise its own discretion as to any appropriate, consequential revision of the costs order, but such leave is required where the substantive appeal fails. The rationale for the usual requirements for the grant of leave to appeal is as applicable in the latter case as it is where there is no appeal against the substantive order. Mackenzie J pointed this out in Di Carlo v Dubois:
‘[4] Although there will be occasional cases where leave to appeal becomes otiose because the appeal against the substantive judgment succeeds, with consequent setting aside or varying of the order for costs, the requirement that leave be obtained in case the substantive appeal fails is logically based. The appeal in a case where consequential setting aside or varying of the costs order occurs is conceptually different from an appeal against an exercise of discretion. Once the appellant must establish grounds for setting aside a discretionary judgment, there is no reason to distinguish between a case where the issue becomes of that kind because a substantive appeal is dismissed and one where no issue is taken with the substantive judgment but it is alleged that the costs order is erroneous in principle.
[5] The requirement that leave be obtained implies, firstly, that leave is not given merely for the asking. By analogy with other instances where leave to appeal is necessary, a plausible basis for arguing that there are some prospects of success must be demonstrated. Secondly, because the judgment as to costs is a discretionary judgment it would be necessary to identify some prospect of success on an argument that there was a demonstrable error in principle, or on an argument that the order was so unreasonable that it could not have been properly made.’
[52] The grant of leave to appeal against the costs order did not relieve the defendants of the burden of establishing, not merely that the judges of the Court of Appeal might have formed a different view from that of the trial judge, but that the trial judge made an error in the exercise of the discretion of the kind described in House v The King. The defendants have failed even to identify, much less to establish, an error of that character. The defendants’ written outline of argument, which was not elaborated upon orally, merely asserted that the trial judge erred in the manner described in the broad grounds of appeal. The argument did not identify any asserted error of principle or which, if any, aspect of the trial judge’s reasons for the challenged conclusions were said to be wrong or why. Nor did the defendants argue that the result was so unreasonable as to justify the conclusion that the discretion must have miscarried. In short, the defendants have not demonstrated any arguable error in the trial judge’s reasons for concluding that the costs order was a proper application of the principles stated by his Honour and the validity of which the defendants accept. There is thus no reasonable basis for a conclusion that the discretion miscarried.” (emphasis added, footnotes omitted)
The grounds advanced by the applicants are slim (perhaps skeletal) but, if approached with a certain generosity of mind, might be regarded as complying with the requirements set out above. They seem to have been drawn in the mistaken belief that the Court of Appeal could grant leave to appeal. That error having now been acknowledged it is appropriate to read the balance of the submissions as demonstrating the grounds upon which the applicants seek leave. I am satisfied that the applicants have demonstrated grounds for granting leave.
There is, though, the issue of the lateness of the application.
Out of time?
It was put in the applicants’ written submissions that: “Given that the judgment was given on 23 December, 2011 and the appeal had to be filed in January 2012, it was not possible to apply to your Honour for leave within the appeal period.”
I reject that submission.
The appeal period expired on 20 January 2012. I was sitting in the week which commenced on 16 January. The applicants knew on 23 December that I would be sitting in that week because I told them so.[10] There was nothing, except perhaps their misunderstanding of the relevant law, to prevent them applying for leave.
[10]Transcript of 23 December 2011, T 1-6, line 42.
On the hearing of this application, reliance was placed on the reasons of Chesterman J (as he then was) in Emanuel Management Pty Ltd (in liquidation) & Ors v Foster’s Brewing Group Ltd & Ors.[11] In that case his Honour considered the requirements of s 253 of the Supreme Court Act and the provisions of the Uniform Civil Procedure Rules with respect to the filing of notices of appeal. After referring to a number of authorities, his Honour expressed his doubts as to whether the power conferred by s 253 can be exercised after the time for appealing has run out.
[11][2003] QSC 484.
After the application concluded, I was provided with an authority by Mr Cooper SC upon which he relied – McKinless v Hackney.[12] That was said to be authority for the proposition that obtaining leave was a condition precedent to the hearing of the appeal but not to the competency of the appeal. Whether or not that is so I need not decide, because Mr Morris QC (in performance of the duty imposed upon counsel) provided me with a later decision of the Court of Appeal which was contrary to the arguments he had presented. The decision of Morrison v Hudson[13] contains a consideration by Keane JA (as his Honour then was) of the issue raised in Emanuel:
[12][1983] 1 Qd R 199.
[13][2006] 2 Qd R 465.
“[9] The applicant criticises the approach taken by his Honour below, in that the applicant contends that the primary judge should have come to a preliminary view as to the merits of the application for leave to appeal against the order for costs. If his Honour came to the preliminary view that it was reasonably arguable that his decision was wrong, that the case was sufficiently important and that there were no overriding countervailing considerations, his Honour should have, so it is submitted, given leave to appeal conditional on the grant by this Court of an extension of time to appeal under r 748 of the UCPR. Such a course has some, albeit guarded, support in the observations of Chesterman J in Emanuel Management Pty Ltd (In Liquidation) & Ors v Foster's Brewing Group Ltd & Ors and Coopers & Lybrand & Ors. It was regarded, tentatively at least, as open by Mackenzie J in Di Carlo v Dubois & Ors.
[10] In Emanuel, Chesterman J, when considering whether there is power in a primary judge to grant leave under s 253 of the Act on this conditional basis, stated: "I am not … convinced that the power does not exist. I doubt that it does." No doubt the same concern as to the existence of such a power informed the course taken by the primary judge in this case.
[11] It may be said that, if there is such a power, the course indicated by Chesterman J in Emanuel is a convenient course as a matter of practice and procedure. This course ensures that, in cases with no sufficient grounds to warrant the grant of leave, leave will be refused without further ado. In cases where the balance of relevant considerations favours the grant of leave, only one appearance before the primary judge will be necessary; and this Court will usually be able to approach the question whether an extension of time should be granted on the assumption that the grant of an extension of time will not serve merely to prolong an expensive futility without having to come to a preliminary view of the merits of the proposed appeal by its own close assessment of the factual and legal issues which are said to arise.
[12] As to whether there is power under s 253 to grant leave conditionally upon the grant of any necessary extension of time by this Court, there are, I think, a number of points which tend to allay the doubt expressed by Chesterman J. These points were not debated in argument, and I have come to the view that the application for an extension should be refused in any event. It is, therefore, neither necessary nor appropriate to determine whether these points are correct. I will, therefore, mention them only briefly.
[13] Section 253 of the Act provides: "No order made by any judge of the said court by the consent of parties or as to costs only which by law are left to the discretion of the judge shall be subject to any appeal except by leave of the judge making such order."
[14] Section 253 of the Act was previously s 9 of the Judicature Act 1876 (Qld). The Judicature Act also included the provision that was once s 4(8) of the Judicature Act, but which is now contained in s 244(9) of the Act. This provision is central to the reforms enabling the rules of law and equity to be administered by one Supreme Court. Section 244(9) of the Act, it may be noted, is located in the same part of the Act in which s 253 is located. The terms of s 244(9) are relevantly as follows:
"The said court and every judge thereof in the exercise of the jurisdiction conferred by this part in every cause or matter pending before them respectively shall have power to grant and shall grant either absolutely or on such reasonable terms and conditions as to them shall seem just all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim properly brought forward by them respectively in such cause or matter so that as far as possible all matters so in controversy between the said parties respectively may be completely and finally determined and all multiplicity of legal proceedings concerning any of such matters avoided." (emphasis added)
[15] A condition on a grant of leave to appeal is apt to avoid the "multiplicity of legal proceedings", in that it will avoid the need for two appearances before a primary judge in relation to the question of leave in cases such as the present. It is arguably within the letter of the section, in that an appeal is itself "remedy", at least in the context of a legislative package which, from its inception as the Judicature Act, has always included reference to the "remedy" afforded by the right of appeal.
[16] It is, therefore, arguable that leave to appeal for the purposes of s 253 of the Act may be granted on "reasonable terms and conditions". A condition of the kind in question is arguably reasonable and relevant to the grant of leave. The real question at this point is whether s 253 of the Act contemplates a grant of leave where, at the time of the grant, an appeal would be incompetent because of the effluxion of time.
[17] In Johns v Johns, it was held by Williams J, with whom the other members of the Full Court agreed, that O 70 r 34 of the then Rules of the Supreme Court (which provided that an appellant by leave from the District Court was obliged to institute the appeal within the time limited by the District Court Rules) required that leave be obtained before the appeal was commenced, "otherwise it cannot be said that there is an appeal by leave".
[18] One may acknowledge the force of this consideration, which clearly weighed with Chesterman J in Emanuel. Legislation which provides for the granting of leave to appeal may readily be construed as speaking of leave to bring an appeal which is competent as such at the time when leave is granted. Nevertheless, the language of s 253 does not in terms prohibit the commencement of an appeal without leave: rather, it provides that an order "shall not be subject to any appeal except by leave". That language is arguably sufficiently broad to bear the construction that an order as to costs is not to be susceptible to effective challenge on appeal unless leave has been granted before the appeal is heard and determined.” (emphasis added, footnotes omitted)
In a written submission provided after the hearing, Mr Morris QC said:
“On the authority of that decision (and not, we must emphasise, on the basis of the decision of Campbell CJ in Kinless v. Hackney [sic]), we are also obliged to, and do, make the following concession:
It is at least arguable that his Honour can still grant leave to appeal pursuant to s. 253 of the Supreme Court Act 1995, at any time prior to the hearing of the appeal, even though no appeal has yet been instituted which raises any ground of appeal concerning the costs order.”
The consideration given to this question by Keane JA is obiter. His Honour said that it was neither necessary nor appropriate to seek to resolve those particular arguments on that application. But such considered obiter has high persuasive value and, given that the views expressed by his Honour were agreed with by Williams JA and White J (as her Honour then was), I am content to make an order which recognises that the application has been brought out of time. I should not and will not trespass upon the area to be considered by the Court of Appeal, namely, whether any extension of time is necessary under r 748 of the UCPR, because that would involve a consideration of whether or not the notice of appeal contains within it a valid appeal against the costs order.
Order
I grant leave to the applicants to appeal against the costs order made on 23 December 2011, conditionally upon the grant by the Court of Appeal of any necessary extension of time with respect to such an appeal under r 748 of the UCPR.
I will hear the parties on costs.
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