James v Surf Road Nominees Pty Ltd (No 2)

[2005] NSWCA 296

CITATION:	JAMES & ORS. v. SURF ROAD NOMINEES PTY. LIMITED & ORS. [NO. 2] [2005] NSWCA 296
HEARING DATE(S):	On papers
JUDGMENT DATE:	2 September 2005
JUDGMENT OF:	Beazley JA; Tobias JA; McColl JA
DECISION:	1. Order that the appeal be allowed in part.; 2. Set aside Orders 1, 2, 5 and 6 made by the trial judge on 5 August 2004.; 3. Set aside the Declarations in paras. 7, 8 and 9 of the Orders made on 5 April 2004.; 4. Order that there be a verdict and judgment in favour of the third appellant against the fourth and eighth respondents in the sum of $189,326.00 together with interest calculated from 22 October 2002 to the date of judgment at first instance. Thereafter, interest is payable in accordance with the Court Rules.; 5. Set aside Orders 11 and 12 made by the trial judge on 5 April 2004 ; 6. Set aside Order 3 made by the Court on 21 December 2004.; 7. Order that the first, second, third, fourth and eighth respondents pay 90% of the second appellant's costs of the appeal.; 8. Order that the second appellant pay the fifth, sixth and seventh respondents costs of the appeal limited to 10% of the costs incurred on a party/party basis incurred by the respondents on the appeal.; 9. Order that the first, fourth and eighth respondents pay the third appellant's costs of the appeal to the extent that it incurred any costs additional to the costs incurred by the second appellant.; 10. Order that the appellants pay 10% of the first, second, third, fourth and eighth respondents costs of the appeal.; 11. Order that the first, second, third, fourth and eighth respondents pay 80% of the second and third appellants costs of the summons.; 12. The first, fourth and eighth respondents pay the third appellant's costs incurred additionally in relation to the issue of the wrongful exercise of the power of sale.; 13. The second appellant is to pay 10% of the fifth, sixth and seventh respondents costs of the cross-claim

CATCHWORDS:	Final orders - costs
PARTIES:	Tass Alexander James (First Appellant) Janet Margaret James (Second Appellant) New South Head Nominees Pty. Limited (ACN 088 322 472) (Third Appellant) Surf Road Nominees Pty. Limited (ACN 087 719 060) (First Respondent) Chris Burke & Co. Pty. Limited (ACN 062 554 849) (Second Respondent) I.G. Martyn Real Estate Pty. Limited (ACN 001 210 304) (Third Respondent) WIT Investments Pty. Limited (ACN 087 762 856) (Fourth Respondent) Vincent Palmieri (Fifth Respondent) Terry Ian Wilson (Sixth Respondent) Andrew Peter Mortimer (Seventh Respondent)
FILE NUMBER(S):	CA 40330/04
COUNSEL:	C.R.C. Newlinds SC/A.P. Coleman (Appellants) T. Alexsis SC/K. Sainsbury (Respondents)
SOLICITORS:	The Argyle Partnership (Appellants) Fitzpatrick Solicitors (Respondents)

LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	ED 50108/2001
LOWER COURT JUDICIAL OFFICER:	Einstein J

CA 40330/04
ED 50108/01

BEAZLEY JA
TOBIAS JA
McCOLL JA

2 September 2005

JAMES & ORS. v. SURF ROAD NOMINEES PTY. LIMITED

(ACN 087 719 060) & ORS. [NO. 2]

Judgment

1 THE COURT: The Court delivered judgment in this matter on 21 December 2004. At the time that it delivered judgment, it ordered that the parties bring in Short Minutes of Order reflecting the Court’s reasons by 4 February 2005. In the absence of agreement the parties were to apply to the Court prior to that date. The parties were unable to agree and subsequently filed written submissions in support of the orders that they proposed.

2 Before proceeding further it is useful to identify the relevant parties. The appellants were the defendants in the proceedings and the cross-claimants. They will be referred to either by their names or collectively as the appellants as may be relevant. The first to fourth and the eighth respondents were the first to fifth plaintiffs in the proceedings and will be referred to as the corporate respondents. The fifth, sixth and seventh respondents were the sixth, seventh and eighth plaintiffs and will be referred to as the individual respondents. Where necessary the respondents will be referred to by name. It is also convenient to recall at this stage that although the first appellant, Mr James, was originally a party to the appeal he had subsequently been made bankrupt and his estate did not participate in the appeal. Further, the third respondent, New South Head Nominees, although a party to the appeal and whose position is affected by the Court’s decision, did not actively participate in the appeal. To the extent that its interests were represented on the appeal, they were represented by the second appellant, Mrs James, on its behalf.

Substantive orders on the appeal

3 The respondents submitted short minutes of order in which they proposed the following Orders:

“1. That the appeal be allowed in part.
2. That Orders 1,2,5 and 6 and Declarations 7,8 and 9 made by Einstein J on 5 April 2004 be set aside.
3. In lieu of Order 5, order that judgment be entered in favour of the Third Appellant against the Eighth Respondent in the sum of $189,326.
4. That the appeal otherwise be dismissed.”

4 They appellants also proposed costs orders that will be separately dealt with.

5 The appellants agree that proposed Order 1 and 2 should be made. The Court agrees that orders in those terms properly reflect the Court’s reasons for judgment or are consequences that flow from our reasons.

6 The appellants disagreed with the respondents’ proposed Order 3 which is intended to replace Order 5 made by the trial judge. The point of disagreement relates to whether there should be judgment in favour of the third appellant, New South Head Nominees, against the eighth respondent only (DJZ Constructions), or whether judgment should also be against the fourth respondent (Wit Investments, referred to hereafter as Wit). The appellants further proposed that interest should be awarded on the judgment sum from 22 October 2002, being the date when the Power of Sale was wrongfully exercised over the third appellant’s units in the Surf Road Unit Trust.

7 Order 5 made by the trial judge related to New South Head Nominees’ claim for the value of its units in the Surf Road Unit Trust which were transferred in the purported exercise of a Power of Sale on 22 October 2002. The Court considered this issue in our reasons for judgment at [114]-[125].

8 In his Judgment, the trial judge had ordered that Surf Road Nominees was liable to New South Head Nominees for the value of the units over which the Power of Sale had been wrongfully exercised. This Court held at [116] that Surf Road Nominees did not have a right to exercise the Power of Sale nor did it purport to do so. Accordingly, the Court held that there was no basis for the order made by his Honour. It had been argued that the basis of his Honour’s order was to render a fair accounting between the parties overall in respect of their various claims. However, the Court found there was no legal or factual basis to support that approach.

9 The Court further held that although the Power of Sale had purported to be exercised by Wit and DJZ Constructions, Wit at that time had no rights in relation to the units in the Surf Road Unit Trust. The purported exercise of the Power of Sale was 22 October 2002. Wit had transferred its interest to Chris Burke & Co in September 2001. To the extent that it purported to be a party to the exercise of the Power of Sale it had no power or right at that time to do so. The respondents contend therefore that the judgment intended to be reflected in the trial judge’s Order 5 should be made against the eighth respondent, DJZ Constructions only. The appellants contend that judgment should be against both DJZ Constructions and Wit because it had in fact participated with DJZ Constructions in the purported exercise of the Power of Sale. The matter is probably best tested in this way. If it was only Wit that purported to exercise the power of sale and in doing so transferred New South Head Nominees, it would have been liable to New South Head Nominees for its loss. It seems therefore that having been a party to the wrongful exercise of the power of sale, it too should be liable. That raises, however, a question of the basis of that liability. Neither party, on the appeal, raised any particular issue about that matter. The question in issue was whether there was a right in anyone to exercise the power of sale. The respondents asserted that power of sale had been properly exercised by the fourth and eighth respondents. In those circumstances, given that Wit’s action in purporting to do so was wrongful we consider it should be found liable together with DJZ Constructions. Accordingly, the order proposed by the appellants should be made. There should be included an order for interest as claimed by the appellants.

Costs of the appeal

10 The next issue relates to the costs of the appeal. On 21 December 2004, the Court ordered the respondents to pay 90% of the second appellant’s costs of the appeal. The respondents submit, correctly, that the purport of that order was to reflect the Court’s view that 90% of the appeal was concerned with the issue relating to the discharge of the guarantee on which Mrs James had been successful and 10% was concerned with the Station Constructions issue on which she had been unsuccessful. The respondents contend, however, that the two issues were discrete issues with discrete respondents.

11 At first instance, the parties seeking relief pursuant to the Deed of Guarantee were the corporate respondents. They succeeded on that claim at first instance but Mrs. James was successful in her appeal on that issue. Mr. James and Mrs. James were unsuccessful on the Stations Constructions claim at first instance and Mrs. James failed on that issue on the appeal.

12 The respondents submitted that given the discrete nature of the claims and the different parties to those claims, the corporate respondents should bear the liability for the costs of the appeal to the extent the appeal was concerned with the issues on the Deed of Guarantee. In accordance with the Court’s initial approach that that issue occupied about 90% of the appeal, they submitted that the appropriate order was that those respondents pay 90% of Mrs James’ costs of the appeal.

13 The respondents then contend that Mrs James, having failed on the Station Constructions issue should be liable for the costs of the individual respondents on that aspect of the appeal. Put shortly, it was submitted that there was no basis upon which the individual respondents should bear Mrs James’ costs of the appeal and they should be entitled to recover their costs of the appeal.

14 The orders proposed to by the respondents to give effect to these submissions were:

“That Order 3 made by this Court on 21 December 2004 be varied so that:
a. the First, Second, Third, Fourth and Eighth Respondents pay 90% of the Second Appellant’s costs of the Appeal; and
b. the Second Appellant pay the Fifth, Sixth and Seventh Respondents’ costs of the Appeal.”

15 The respondents made no submission as to the costs of the third respondent, New South Head Nominees, which was the beneficiary of the only substantive order in the matter.

16 The appellants submitted that New South Head Nominees should receive its costs of the appeal and of the proceedings against it brought by Surf Road Nominees, Wit and DJZ, that claim being wholly unsuccessful. As to the balance of the costs, and again accepting that the Court’s order intended to reflect that the Station Constructions issue occupied no more than 10% of the appeal, the respondents proposed, in addition to the order in favour of New South Head Nominees, the following orders:

(i) the corporate respondents pay 90% of the second appellant’s costs of the appeal; and

(ii) the second appellant pay 10% of the individual respondents’ costs of the appeal.

17 The first of these orders correspond with the order proposed by the respondent set out as (a) in [14] above.

18 The Court agrees that an order in those terms properly reflects the Court’s intention as to the costs order to which the second appellant ought to be entitled on the appeal.

19 The orders proposed by the appellants and the respondents require further consideration. Prima facie, as we discuss more fully below, costs follow the event unless the Court considers some other order should be made (Supreme Court Rules Pt 52A r.11). As the individual respondents were successful on this issue, they have a prima facie entitlement to their costs of the appeal. The question is whether some other order should be made. As has been indicated, the Court considered that the Station Constructions issue took up about 10% of the time on the appeal. Neither party appears to contest that. The individual respondents had the same legal representation as the corporate respondents. Accordingly, they did not bear the burden of costs they otherwise would have incurred had they been separately represented. Even though they had the same representation there would have been some independent consideration of the claim brought against them. In the context of the appeal as a whole, the Court does not consider that would have been great.

20 In our opinion the Court should order that the individual respondents have an order for costs of the appeal limited to 10% of the party/party costs incurred by the respondents as a whole on the appeal.

New South Head Nominees’ costs of the appeal

21 That leaves the question of the cost to which New South Head Nominees ought to be entitled on the appeal. The appeal insofar as it related to the exercise of the power of sale and the set off issue involved a substantial portion of the appeal. As already indicated, New South Head Nominees did not take an active part in the appeal. Its success in maintaining the effect of Order 5 made by the trial judge, but as against the eighth respondent, not the first respondent, followed from the arguments on the appeal advanced on behalf of Mrs. James. Accordingly, the same considerations arise in relation to New South Head Nominees’ costs as arose in relation to the individual respondents, to which we have just referred. The Court considers that, New South Head Nominees should have its costs of the appeal. However, rather than nominate an assessment which is far more problematical in its case, the Court considers that the costs to which it is entitled are those that were incurred additionally to the costs properly incurred by Mrs. James on her claims in the appeal. The costs should be payable by the first, fourth and eighth respondents as those parties supported the order made by the trial judge.

Costs of the trial

22 That leaves outstanding the question of costs of the trial. The costs orders made by the trial judge were Orders 11 and 12 in his Honour’s orders made 5 April 2004:

“11. The defendants/cross-claimants [the appellants] pay the plaintiffs and the first-fifth and ninth-eleventh cross-defendants’ costs of the proceedings.
12. The sixth, seventh and eighth cross-defendants pay the first, second and third cross-claimants costs of the cross-claim insofar as it related to the claim for contribution as against them.”

23 At first instance, the corporate respondents made two substantive claims. The first claim related to the Deed of Guarantee and, the second claim related to the defalcation of moneys by Mr. James, the first defendant/first appellant. The claim on the Deed of Guarantee involved both the construction of the Deed and the question whether it had been discharged, although the respondents’ submitted that the appellants eventually accepted the respondents’ construction. On appeal, there was no issue as to the construction of the Deed. The question of whether the liabilities under it had been discharged was the central issue. The effect of the Court’s orders on the appeal is that the corporate respondents have been totally unsuccessful on the question of discharge. The result is that that part of their claim failed prima facie entitling the appellants to an order for costs, at least in respect of that issue.

24 At first instance, the corporate respondents were successful in relation to their claim against Mr. James on the defalcation issue. That issue was not contested on appeal. That was a significant and discrete claim. We discuss below how the corporate respondents’ success on it should be taken into account in their favour when determining the Order for costs on the Summons.

25 In their written submissions, the respondents contended that the “complex documentary evidence, witness statements, expert reports and cross-examination were in large part concerned with [this issue]”. They point out, however, that the question of the valuation of the units in the Surf Road Unit Trust which was in issue on the defalcation claim was also relevant to the unsuccessful claim by the appellants on the cross-claim on oppression. The dismissal of the oppression claim was not challenged on appeal.

26 The respondents further point out that many of the issues between the experts were resolved by agreement following a joint conference and most of the remaining issues, including the date on which the valuation of the units should occur were resolved in favour of the plaintiffs/respondents. This was specifically commented upon by the trial judge in [178] and [179] of his judgment. Indeed, in the latter paragraph, his Honour commented upon the absence of separate evidence having been adduced by, inter alia, Mr. James on the oppression issue so that it became necessary for his Honour to determine, on the evidence that had been adduced by the appellants on the defalcation issue, whether the oppression claim had been made out. This is a matter upon which the appellants particularly rely and to which further reference is made below. However, the point sought to be made by the corporate respondents was that because Mrs. James had been a party to the cross-claim in which the oppression suit had been unsuccessfully advanced, she should be liable for the costs of advancing that claim.

27 The other aspect of the cross-claim said to have been unsuccessfully advanced by the appellants involved an order that the individual respondents purchase the shares held by the appellants held in the first, second and/or third respondents. It seems, however, that claim was involved in the relief claimed in respect of the oppression issue and ought not be separately considered.

28 Mrs James was also unsuccessful on the Station Constructions issue. That claim was a minor part of the proceedings although the respondents submitted that it generated extensive documentary evidence and cross-examination. However, the respondents made no attempt to assist the Court with any assessment of the time that the issue occupied.

29 Against that background, the respondents proposed that the costs orders made by the trial judge not be disturbed.

30 The effect of Order 11 made by the trial judge is that the corporate respondents together with the individual respondents became entitled to the entire costs of the proceedings, that is, both the costs of the summons and of the cross-claim as against the appellants. The effect of the Court’s orders on the appeal is that the corporate respondents were unsuccessful on their claim relating to the Guarantee against Mrs. James, although their version of the construction of the Deed was upheld. All of the respondents successfully resisted, at first instance, the oppression claim made by the appellants. However, the evidence used on the respondents’ claim was the evidence on the claim-claim in relation to the oppression issue. Given these matters the Court is of the opinion that the trial judge’s order as to costs at first instance ought to be set aside. The appellants should be entitled to costs on the claim and the corporate and individual respondents should be entitled to costs of the oppression issue and the Station Construction issues respectively on the cross-claim. The question then becomes whether the various parties should have all of their costs or whether there should be some apportionment.

31 Costs orders in the Supreme Court are governed by the provisions of s.76 of the Supreme Court Act 1997 and the Supreme Court Rules. Section 76 provides, relevantly that subject to the Act and the Rules, costs shall be in the discretion of the Court: s.76(1)(A). Part 52A r.11 acts as a limited proscription of the Court’s discretion conferred by s.76. Part 52A r.11 provides that, subject to Part 52A, the Court shall order that costs follow the event “except where it appears to the Court that some other order should be made as to the whole or any part of the costs”.

32 The effect of Pt 52A r.11 is that an unsuccessful party may be ordered to pay the entirety of the costs of the successful party, even though the successful party did not succeed on all issues. However, as is specified by the rule itself, the Court is entitled to make a different order. That may occur where there are multiple issues involved. This was the subject of comment in Waters v. P C Henderson (Aust) Pty. Limited (unreported CA(NSW) Kirby P, Mahoney and Priestley JJA, 6 July 1994) where Mahoney JA said:

“Where the proceedings involve multiple issues the application of the rule that costs follow the event may involve hardship where a party succeeds on some issues and yet fails on others. Particularly is this so where, for example, a defendant succeeds on issues that occupied the bulk of the time taken by the proceedings. Nevertheless, unless a particular issue or group of issues is clearly dominant or separable, it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed.”

33 Similarly, Toohey J made the following observations in Hughes v Western Australian Cricket Association (1986) ATPR 40-748:

“1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order.
2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed.
3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the party’s costs of them. In this sense, “issue” does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law.” (references omitted)

34 Where a matter involves multiple issues and the question before the court is whether it should make some other order as to costs other than the order that costs follow the event, a distinction is commonly drawn between cases which involve clearly discrete issues for determination, and those in which all issues are inseparable, or at least sufficiently linked, with respect to the overall disposition of a particular matter. In Permanent Trustee Aust Ltd v FAI General Insurance Co Ltd (unreported, NSWSC, 3 June 1998), Hodgson CJ in Eq noted that the obvious examples of a matter involving discrete issues is one where a plaintiff makes separate claims for different relief, or a claim by a plaintiff and a cross-claim by a defendant. Another example is where a respondent is successful in having an appeal against an earlier decision dismissed, but for reasons other than those raised in the respondent’s Notice of Contention. This is not to say that so-called “discrete issues”, for the purposes of apportioning costs, only exist in cases where there are separate claims made within a single matter. As Toohey J stated in the passage quoted at [33] above, it can relate to “any disputed question of fact or law” before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter.

35 In Madden v Connell [2001] NSWSC 1051, Hamilton J referred to there being a “rule” that where there are “discrete issues and the time taken on each issue at the hearing can be identified or realistically estimated”, an order for costs may be made against the party which fails on such issues, or alternatively, that party may be deprived of its costs for that portion of the matter. In the Court’s opinion it is preferable not to speak in terms of “rules”. However, the underlying approach to the “rule” stated by his Honour may be an available approach to the exercise of the court’s discretion as to costs in a particular case, depending upon all of the circumstances.

36 Where the court does exercise its discretion to apportion costs, the apportionment itself involves the exercise of discretion. As Gummow, French and Hill JJ recognised in Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261:

“Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion for the trial judge. Mathematical precision is illusory and the exercise of the discretion will often depend upon matters of impression and evaluation.”

This case is a classical example of that sentiment.

37 In the Court’s opinion, it would be unreasonable to separate out “the construction issue” relating to the Deed of Guarantee and order that the corporate respondents be entitled to some proportion of the costs of the proceedings because they succeeded on that issue. The construction of the guarantee meant little of itself. The intent of the proceedings relating to the guarantee was to seek to have the appellants made liable on it. This Court has found against the corporate respondents on that issue. Accordingly, subject to what is said below about the cross-claim on the oppression issue, the corporate respondents should pay the appellants’ costs of the proceedings.

38 The appellants failed at first instance on the oppression claim. Although the same evidence that was adduced by the corporate respondents on their claim against Mr. James formed the basis of the evidence relied upon by the appellants on the oppression claim, the matter clearly occupied the time of the Court and of the parties additional to that occupied merely in looking at the corporate respondents’ claim on the defalcation issue.

39 The trial judge dealt with the oppression claim from [175] to [210] of his first judgment comprising 251 paragraphs. It was not a relevant consideration in his Honour’s second judgment, which comprised 51 paragraphs, save to the extent that it was involved in his Honour’s consideration of costs to which he devoted a total of 6 paragraphs. The reference to the number of paragraphs devoted by his Honour in determination of the issue can only be the roughest of guides as to what was involved in the issue and his Honour observed that it was a complicated issue. However, the fact that the trial judge’s consideration of the matter occupied a relatively small part of his judgment does indicate that the matter did not occupy substantial time at the hearing. This was undoubtedly due, in part, to the fact that consideration had already been given to the facts upon which this claim was said to rest as part of the defalcation claim.

40 In the Court’s opinion, given the issues raised in the claim and cross-claim and given the manner in which it was conducted by the parties, it is appropriate, insofar as Mrs. James is concerned, to consider the claim and the cross-claim together for the purposes of determining the order for costs that should be made. Given the relatively small amount of time that the oppression claim required, both as a matter of evidence and other legal time, we consider that a small percentage deduction in the overall costs ought to be allowed for. Again, as has been frequently commented in the cases, an assessment of this nature is not a matter of mathematical precision. Doing the best we can, the Court is of the opinion that an appropriate order for costs in these circumstances on both the claim and the cross-claim is that the corporate respondents pay 80% of Mrs. James’ costs of the claim and that there be no order for costs on the cross-claim.

41 The Court has not been requested to give any consideration to the costs of Mr. James and accordingly we have not done so. That leaves the costs at trial of New South Head Nominees.

42 The corporate respondents claimed that New South Head Nominees was liable under the Deed of Guarantee to indemnify the first respondent (Surf Road Nominees) and the fourth and eighth respondents (Wit Investments and DJZ Constructions respectively) in relation to the IGM Macquarie Bank debt and was also liable under the Deed of Guarantee to indemnify the first respondent (Surf Road Nominees) in relation to the preferential distributions (see para. 10 of the Third Further Amended Summons). New South Head Nominees denied liability in respect of all claims and also raised the wrongful exercise of the power of sale over its units in the Surf Road Unit trust (see para. 5(iv) and (v) of its Defence). New South Head Nominees was also a party to the cross-claim in which it was alleged the liability of the cross-claimants under the Deed of Guarantee had been discharged.

43 New South Head Nominees was successful in establishing the wrongful exercise of the power of sale, although as discussed, the trial judge made the order against Surf Road Nominees. That required adjustment on the appeal.

44 New South Head Nominees also had the benefit of the result achieved by Mrs. James on the appeal in relation to the discharge of the guarantee. The result therefore is that New South Head Nominees has ultimately been successful in the specific claim brought against it and on the claims relating to the discharge of the guarantee. However, it was also a party to the oppression suit which was unsuccessful.

45 The Court is thus requested to make a costs order in circumstances where, in respect of New South Head Nominees, a number of discrete claims have been made with varying results; not all claims were made against it; the evidence adduced in support of one particular claim (the defalcation claim) was used as the evidence in another claim (the oppression claim); and the parties had the same legal representation. In making this last comment, we do not intend to suggest that it was inappropriate for the parties to have the same representation. To the contrary. It is just that the fact of the same representation in this case makes the determination as to the appropriate order for costs more complex. The complexity relates to the need to ensure that the respondents are not doubly penalised in costs and that the second and third appellants are both appropriately compensated but not overcompensated in costs.

46 Should there be a separate order for costs for New South Head Nominees in these circumstances? Again, returning to first principles, New South Head Nominees would have been entitled to an order for costs as a successful defendant. In common with Mrs. James it successfully resisted being made liable on the Guarantee and it separately established its units in the Surf Road Unit Trust had been wrongfully sold. In common with Mrs. James it failed on the oppression suit and was not involved in the Station Construction issue. In our opinion, the appropriate order that should be made is one that reflects the commonality of the claims made but also takes account of the separate issue relating to the wrongful sale of the units in the Surf Road Unit Trust.

47 The appropriate order in respect of the costs at first instance is therefore: the corporate respondents are to pay 80% of the second and third appellants’ costs of the summons. The first, fourth and eighth respondents are to pay the third appellant’s costs incurred in relation to the issue of the wrongful exercise of the power of sale. The first and second appellants are to pay 10% of the fifth, sixth and seventh respondents’ costs of the cross-claim, so as to take account of its separate costs on the Station Construction issue at trial.

ORDERS

1. Order that the appeal be allowed in part.

2. Set aside Orders 1, 2, 5 and 6 made by the trial judge on 5 April 2004.

3. Set aside the Declarations in paras. 7, 8 and 9 of the Orders made on 5 April 2004.

4. Order that there be a verdict and judgment in favour of the third appellant against the fourth and eighth respondents in the sum of $189,326.00 together with interest calculated from 22 October 2002 to the date of judgment at first instance. Thereafter, interest is payable in accordance with the Court Rules.

5. Set aside Orders 11 and 12 made by the trial judge on 5 April 2004

6. Set aside Order 3 made by the Court on 21 December 2004.

7. Order that the first, second, third, fourth and eighth respondents pay 90% of the second appellant’s costs of the appeal.

8. Order that the second appellant pay the fifth, sixth and seventh respondents costs of the appeal limited to 10% of the costs incurred on a party/party basis incurred by the respondents on the appeal.

9. Order that the first, fourth and eighth respondents pay the third appellant’s costs of the appeal to the extent that it incurred any costs additional to the costs incurred by the second appellant.

10. Order that the appellants pay 10% of the first, second, third, fourth and eighth respondents costs of the appeal.

11. Order that the first, second, third, fourth and eighth respondents pay 80% of the second and third appellants costs of the summons.

12. The first, fourth and eighth respondents pay the third appellant’s costs incurred additionally in relation to the issue of the wrongful exercise of the power of sale.

13. The second appellant is to pay 10% of the fifth, sixth and seventh respondents costs of the cross-claim

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