Joye v Rehuxo
[1999] NSWSC 1064
•20 October 1999
CITATION: Joye v Rehuxo [1999] NSWSC 1064 CURRENT JURISDICTION: Equity FILE NUMBER(S): 4118/97 HEARING DATE(S): 13 August 1999, 2 September 1999, 19 October 1999 JUDGMENT DATE:
20 October 1999PARTIES :
Judith Olga Joye and Christopher Ronald Edward Joye (P)
Rehuxo Pty Limited (D1)
David Bradley (D2)
Susan Bradley (D3)
Bowyang Nominees Pty Ltd (D4)
ANZ Executors & Trustee Company Limited (D5)
Peter Millar Bray, Martin Francis Fenaughty, John Wildred Cary t/as Bray & Associates (D6)
Susan Bradley and David Bradley (CC)
Judith Olga Joye and Christopher ronald Edward Joye (CD1)
Ian Edward Joye (CD2)
Robert Eric Horsell (CD3)JUDGMENT OF: Austin J
COUNSEL : I Jackman with J Stoljar (P & CD2)
N Hutley SC (D2 & D3)SOLICITORS: Speed & Stracey (P, CD2 & CD3)
Coudert Brothers (D2 & D3))CATCHWORDS: PRACTICE AND PROCEDURE - costs - security for costs - plaintiffs assert that defendants/cross-claimants have made claims which are without substance and their conduct of the litigation has been vexatious - whether the Court has jurisdiction to make an order for security for costs on plaintiffs' application - relevant considerations as to costs when application is withdrawn ACTS CITED: Supreme Court Act 1970 (NSW) s 23 CASES CITED: Buckley v Canal Design & Constructions Pty Limited (1974) 1 ACLR 301
Equity Access Limited v Westpac Banking Corporation [1989] ATPR 40-972
Fieldrank Ltd v E Stein [1961] 1 WLR 1287
Fountain Selected Meats (Sales) Pty Limited v The International Produce Merchants Pty Limited (1988) 81 ALR 379
Ionian Bank v Couvreur [1969] 1 WLR 781
Joye v Rehuxo Pty Limited [1999] NSWSC 785
Lloyd's Banking Company v Ogle (1876) 1 Ex D 262
Miller v Suffield 249 F 2d 17 (1957)
Rajski v Computer Manufacture and Design Pty Limited [1982] 2 NSWLR 443
Re Travel Lodge Australia Ltd (1978) 21 ACTR 17
Shackles v BHP Ltd [1996] 2 VR 427
Southern Cross Exploration v Fire and All Risks Insurance Co (1985) 1 NSWLR 114
Telstra Corporation Ltd v First Netcom Pty Limited, Federal Court, unreported, 7 May 1998, Einfield J
Van Lynn Developments Ltd v Pelias Construction Co [1969] 1 QB 607
Weger v Boola Boola Petroleum and Natural Gas Co NL [1923] VLR 570
Willey v Synan (1935) 54 CLR 175DECISION: Application denied with costs
THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISIONAUSTIN J
WEDNESDAY 20 OCTOBER 1999
4118/97 - JUDITH OLGA JOYE & 1 OR v REHUXO PTY LIMITED & 7 ORS
JUDGMENT (EX TEMPORE)
1 HIS HONOUR: This judgment is directed to the costs of an application filed on 24 December 1998 seeking an order for security for costs, and subsequently withdrawn. The application was in proceedings brought by Judith and Chistopher Joye as plaintiffs against, inter alios, David and Susan Bradley as defendants. By a cross-claim filed on 26 November 1997, the Bradleys sought relief against the plaintiffs and also Ian Edward Joye and Robert Eric Horsell. I shall refer to the plaintiffs and Ian Edward Joye as ‘the Joyes’. The applicants on the Notice of Motion for security for costs were the Joyes and Mr Horsell, and the respondents were the Bradleys.
Facts
2 The plaintiffs are wife and son respectively of Ian Joye. At all relevant times Ian Joye was an accountant and company promoter. Mr Horsell was employed as an accountant and company secretary of various companies controlled by Ian Joye. Susan Bradley is Ian Joye's sister and David Bradley is her husband.
3 The dispute in the proceedings relates to a trust called ‘the Susan Trust’. The plaintiffs allege that the trust was established by Mr Horsell on the instructions of Ian Joye in 1983 for the benefit of the plaintiffs. The Bradleys allege in their cross-claim that it was established in 1977 for the benefit of Susan Bradley and her children. It appears that there is no document such as a trust deed evidencing its terms.
4 Since 1983 the trustee of the Susan Trust has been the first defendant, Rehuxo Pty Limited. From 1983 to 1987 the Bradleys were the only directors and shareholders of the Rehuxo, and Horsell was the company secretary from 1983 until March 1993. It is asserted by the Joyes that the Bradleys were not intended to have any role in relation to Rehuxo other than to act in accordance with the directors of Ian Joye.
5 The Joyes assert that Ian Joye obtained from the Bradleys signed transfers in blank of their shares in Rehuxo and also signed letters of resignation of their directorships, and that these documents were kept by Mr Horsell on Ian Joye's behalf to ensure that the Bradleys complied with his directions.
6 The Bradleys deny that the documents were furnished for this specific purpose, and they assert in their cross-claim that the documents were provided solely to enable Joye to undertake on their behalf, from time to time, dealings in company shares other than Rehuxo. They claim that Ian Joye acted as their financial adviser and occupied a fiduciary position and that his attempted use of the documents to remove them from the control of Rehuxo was a breach of his fiduciary duty.
7 In 1997, by which time it was clear that the parties were in dispute, Ian Joye arranged for the transfers to be completed by the insertion of the names of the plaintiffs as transferees, and forwarded the transfers to Rehuxo for registration. Registration was refused. Accordingly, the plaintiff instituted proceedings for orders that the documents be registered, and for declarations that resolutions passed for the appointment of new directors were valid and assets held by Rehuxo were held on trust for the plaintiffs.
8 The plaintiffs also allege that during their period of directorship the Bradleys breached their fiduciary duty by using funds held by Rehuxo for their own benefit.
9 The Bradleys deny the alleged breaches and in their cross-claim they assert that the Susan Trust was established for the benefit of Susan Bradley and her children and they are entitled to remain as directors and shareholders of Rehuxo. They allege that Ian Joye and Mr Horsell have dealt improperly with the assets of the trust since 1983, without their knowledge and consent. In particular they claim that shares in other companies held in trust by Rehuxo have been transferred by using transfer documents irregularly executed by Mr Horsell at the direction of Ian Joye without the authority of Rehuxo. They say that Ian Joye sought to use a portion of the trust assets for the purpose of a settlement with his wife, Judith, when their marriage broke up in May 1994.
10 There are also contentions, which are unnecessary for me to explore for the purposes of the present judgment, that a nominee company of County Natwest Securities Australia Ltd held assets on behalf of Mr Joye in trust for Rehuxo and the Susan Trust and that those assets where improperly dealt with.
11 This brief account of the facts, sufficient for present purposes, shows that the case involves some complex contested matters of fact and potentially some difficult questions of law. My account of the factual allegations is taken from the pleadings and from a judgment delivered by Foster AJ on 3 August 1999 ( Joye v Rehuxo Pty Limited [1999] NSWSC 785). I mention that because as it happened, no evidence was adduced on the application for security for costs so I have no evidentiary basis for making any finding of fact at all for the purposes of this judgment.
12 Since the filing of the cross-claim by the Bradleys on 26 November 1997 there have been numerous interlocutory steps which have been usefully summarised for me in submissions. Suffice it to say that there have been hotly contested interlocutory proceedings with respect to such matters as Notices to Produce and subpoenas.
The application for security for costs
13 The application for security for costs was filed, as I have mentioned, on 24 December 1998 and it came before me for hearing on 13 August 1999. At the hearing counsel for the Joyes as applicants contended that an order for security for costs would be appropriate in order to assist his clients to deal with some of the risks and burdens of litigation. He said that litigation involves loss of time, stress, irrecoverable costs even if the litigant is thoroughly successful, and a credit risk for recovery of the proceeds of litigation in the event of success. Some of the risks and burdens of litigation are unavoidable and arise even in cases where there is a real dispute between the parties, and the Court can do very little to avoid them otherwise than to conduct its business efficiently. But here, he said, the Court can assist with the credit risk for recovery. He submitted that experience teaches us that litigants who run cases in which they do not believe are typically driven by financial need. Therefore, when the facts before the Court in an interlocutory application indicate that a litigant is proceeding with a case which is shadowy and lacks substance, and is acting vexatiously in a way in which could constitute an abuse of process, the Court should infer from that conduct that the other party to the litigation has a credit risk for recovery and should make appropriate application for orders.
14 As to the legal basis for such orders, the Joyes submitted that:15 The English practice should be noted more fully . Lloyd's Banking Company v Ogle (1876) 1 Ex D 262 indicates that the Court may make orders for security for costs against a defendant where there is something suspicious in the defendant's mode of presenting his case, such that the Court is left with a real doubt about the defendant's good faith. In Fieldrank Ltd v E Stein [1961] 1 WLR 1287, 1289 Devlin LJ said:
(a) the Court has an inherent jurisdiction, confirmed by s 23 of the Supreme Court Act 1970 (NSW), to regulate its own practice and procedure, and the judgment of Holland J in Rajski v Computer Manufacture and Design Pty Limited [1982] 2 NSWLR 443 especially at 447-8 demonstrates the breadth of the Court's inherent power;
(b) the Court's discretion to give security is ‘unlimited and unrestricted’: Southern Cross Exploration v Fire and All Risks Insurance Co (1985) 1 NSWLR 114 at 122C;
(c) the Court may take into account that the plaintiff or cross-claimant has conducted the proceedings in a vexatious way or in a manner amounting to an abuse of process ( Weger v Boola Boola Petroleum and Natural Gas Co NL [1923] VLR 570), and that the plaintiffs/cross-claimants have not shown that they are without resources or that the litigation would be stultified by the provision of security ( Shackles v BHP Ltd [1996] 2 VR 427);
(d) there is an analogy between the order sought by the applicants in this case and orders made in United States District Courts pursuant to rules adopted by them, such as in Miller v Suffield 249 F 2d 17 (1957), a case which implies that it is appropriate to give security against a litigant who makes vague charges which lack substance and substantiation;
(e) there is also an analogy with the English Supreme Court Rules Order 14, r 4(3), which permits the Court to grant leave to a defendant, against whom an application for summary judgment has been made, to defend the action on such terms as to giving security as the Court thinks fit.
‘I think that any judge who has sat in chambers to hear summonses under Order 14 has had the experience of a case in which, although he cannot say for certain that there is not a triable issue, he is nevertheless left with a real doubt about the defendant's good faith, and would like to protect the plaintiff, especially if there is no real hardship on the defendant being made to pay money into Court.’
16 In other cases reference is made to defences which are ‘shadowy’ or lacking in substance: Van Lynn Developments Ltd v Pelias Construction Co [1969] 1 QB 607, 614; Ionian Bank v Couvreur [1969] 1 WLR 781, 787.
17 The Joyes said that in the present case these principles should be applied, in the exercise of the Court's inherent jurisdiction and without the authority of any specific rule of Court, having regard to the following matters:
(a) multiple admissions by the Bradleys against interest, never denied by them, and made in letters and diary entries created in 1985 and 1986 and in conversations in 1986 and 1987;
(b) the Bradleys signed resignations as directors and secretary of Rehuxo and then gave evidence to explain those documents in a manner which was contradictory;
(c) the parties had come close to implementing arrangements for the removal of the Bradleys as directors and shareholders of Rehuxo and for putting the assets of the Susan Trust under the control of the plaintiffs, but those arrangements were not completed;
(d) the Susan Trust acquired by far the majority of its assets through or from Ian Joye or entities with which he was associated, and so the Bradleys are volunteers seeking to obtain a windfall gain;
(e) the conduct of the Bradleys during the proceedings, which forced the Joyes to expend time, cost and effort to obtain the documents from the Bradleys, including the original directors’ resignations and share transfers; the Bradleys made serious allegations by their counsel about matters not raised in the pleadings; and the Bradleys have removed substantial money from the Susan Trust since 1995;
(f) a serious issue of credit relating to the Bradleys' evidence that they were unaware that assets had been placed in the Susan Trust by Ian Joye;
(g) the lack of evidence that the Bradleys would suffer disadvantage or that the litigation would be stultified by the provision of security in the amount claimed.
18 The Bradleys submitted that the Joyes have ignored a fundamental principle with respect to orders for security costs. They said that security for costs is justified by the principle that a respondent to a claim who has been forced to expend costs in defence should not face the risk of being unable to recover the costs if the claim is ultimately unsuccessful. The purpose of an order for security for costs is not to stifle or suppress a claim on the basis that it might appear weak (though that was not conceded in the present case).
19 While admitting that the Court has a relevant inherent power, acknowledged in the Rajski case, the Bradleys submitted that the inherent power must be exercised in accordance with established principles, and that it would be a remarkable step for the Court to order security for costs against a natural person in circumstances where there is no suggestion of impecuniosity. Further, the Bradleys submitted that where it is contended that a party has a weak case, the appropriate procedure is to seek an order for stay or dismissal of the proceeding under Pt 13 r 5, and no such application has been made in the present case.
20 The Bradleys contended that the authorities relied on by the Joyes, upon proper examination, could be seen to be cases where there was some special reason for ordering security for costs beyond a suspicion of abuse of process, vexatious conduct or a shadowy claim. As regards the English practice under Order 14 r 4 the Bradleys pointed out that the order for security is not an order for security for costs under that rule but is an order to secure the plaintiff in respect of the judgment amount.
21 As regards the discretionary factors relied upon by the Joyes in the present case the Bradleys submitted that, to a large degree, those matters relate to the alleged weaknesses of the Bradleys' case and it would not be possible to assess the relative strengths or weaknesses of the parties' cases in an interlocutory application by reference to selected parts of evidence which, in due course, will be extremely voluminous. Further, the Bradleys said there are also inconsistencies and admissions in the Joyes' case and they attached a substantial schedule to their written submission setting out their claims in that regard. Although the Bradleys admitted that the chance of success may be a relevant factor in the context of an application for security against an insolvent corporate plaintiff, even in such a case the chance of success is given little weight as a factor: Equity Access Limited v Westpac Banking Corporation [1989] ATPR 40-972, 50-636. The Bradleys submitted that they are, contrary to the Joyes submission, conducting the litigation properly, and that the Joyes' allegations against them were not a complete account of the matters referred to. The Bradleys’ written submission relied on substantial details to support this point.
22 The Bradleys submitted that there were additional discretionary matters which should weigh against an order for security for costs against them. They submitted that their cross-claim was, in substance, merely a defence to the plaintiffs' action, and that security for costs will not be ordered against a cross-claimant in such circumstances: Willey v Synan (1935) 54 CLR 175; Re Travel Lodge Australia Ltd (1978) 21 ACTR 17.
23 Further, the Bradleys drew attention to the delay of 13 months between the filing of the cross-claim and the filing of the application for security for costs, pointing out that during that period a large number of steps have been taken in the proceedings. In their contention an application for security for costs should be made promptly ( Buckley v Canal Design & Constructions Pty Limited (1974) 1 ACLR 301, 309) and the Court is entitled to have regard to the length of the delay, and the reason for delay, in making its decision ( Southern Cross Exploration ).
Hearing of Application for Security
24 The Joyes' application for security for costs was heard by me on 13 August 1999. After opening, counsel for the Joyes sought to read the affidavit of Malcolm Stewart of 2 August 1999, to which there is a 159 page exhibit. Counsel for the Bradleys objected to the admissibility of substantial portions of the exhibit, largely though not exclusively on the ground that specified documents in the exhibit were amenable to a claim of ‘without prejudice privilege’ under s 131 of the Evidence Act 1995 (NSW).
25 Further, counsel for the Bradleys submitted that if certain copy affidavits contained in the exhibit were to be admitted, their deponents should be available to give oral evidence and to be subjected to cross-examination even though the application was interlocutory.
26 There followed a protracted contest as to the admissibility of the exhibit, in which counsel for the Joyes contended that a condition of the claim to privilege under s 131 is that the parties be in dispute, and in the present case the parties were not in dispute at the time when many of the disputed documents were created. Further, counsel submitted that in respect of many of the disputed documents the Bradleys had waived any claim to privilege.
27 Counsel for the Bradleys responded that if the evidence on which the Joyes wished to rely were to be admitted, the Bradleys would wish to put on evidence in reply relating to such matters as alleged admissions and waiver, and consequently the application for security for costs would become a mini-trial. For that reason alone, counsel submitted, the Court should reject the disputed evidence in the exercise of its discretion under s 135.
28 In light of the complexity of the submissions on admissibility, I decided that the best course would be to direct the parties to make written submissions with respect to that question and to stand the matter over for further consideration after the submissions had been prepared and considered.
29 The written submissions on admissibility filled out the oral contentions which had been made at the hearing on 13 August 1999. It is noteworthy that the Bradleys reiterated in their submission that if affidavit evidence were to be admitted, it must be on the basis that the deponents be available to give oral evidence and be cross-examined. Their written submission said (paragraph 26):30 On 1 September 1999, the day before the matter was due to return to me for further directions, the solicitors for the Joyes wrote to my Associate saying that their clients wish to withdraw the Notice of Motion and would consent to an order that it be dismissed. The letter said:
‘The Joye parties' contentions are to the effect that in the Bradleys' case there exist such inconsistencies and serious admissions against interest that security for costs ought to be awarded despite the fact that the application is against natural persons and despite the fact that there is no suggestion of any inability to meet an award of costs. The Joyes' contentions are very serious. The Joyes' contention is that the Bradleys have no belief in their case, as evidenced by the `admissions' (as submitted by counsel for the Joyes on 13 August). In these circumstances the Bradleys are entitled to have these allegations proven strictly, including a right to cross-examine.’
31 Thus, the application for security for costs has not proceeded, and as it has transpired no evidence at all has been admitted on the application. But there remains the question of costs of the application. The Joyes contend that there should be no order as to costs, and the Bradleys seek an order for indemnity costs to be assessed and payable forthwith.
‘In light of the objections taken by the respondents on 13 August 1999 on the ground of without prejudice privilege, and in light of the written submissions for the respondents received on 31 August 1999 it appears that to canvass the issues relating to admissibility of evidence on the limited evidence which we would be able to tender on this application may have the effect of prejudicing our clients' position as to admissibility at the trial, when a great deal evidence will be tendered and tested. As our counsel recognised on 13 August 1999, the present motion should not develop into a mini-trial which could last at least several further days of hearing time.’
The Question of Costs
32 The Joyes say that in light of the objection taken as to without prejudice privilege on 13 August 1999, there was little utility in proceeding with the application, on a cost-benefit analysis, because the question of admissibility would have turned the application into a three or four day mini-trial. Further, to have canvassed the issues raised in written submissions with very limited evidence may have prejudiced the Joyes' contentions as to admissibility at the trial. That was the reason for withdrawing the application and in those circumstances, the Joyes submit, there should be no order as to costs.
33 Further, they say that the present stance of the Bradleys as to without prejudice privilege is inconsistent with the stance previously taken by them and, accordingly, their present stance was not reasonably foreseeable when the plaintiffs filed their Notice of Motion for security. In paragraph 3 of their written submission they say the inconsistency arises in two ways. First, senior counsel for the Bradleys submitted on 8 December 1998 that a letter written by Mr Horsell on 10 April 1996 had been written ‘before the dispute had crystallised’; consequently at that stage, counsel for the Bradleys adhered to the view that there was no dispute for the purposes of s 131. Secondly, the Joyes say that no without prejudice objection was taken to the plaintiffs tendering two of the admissions on 20 May 1999, namely, the Susan Bradley diary of 22 January 1996 and a letter by David Bradley of early 1996.
34 I agree with the Joyes' submission that it was sensible and desirable to avoid prolonging the application in such a way that it would have become a mini-trial. It seems to me that the assessment by the legal advisers to the Joyes on 1 September 1999 that it was likely, if the application continued, that a mini-trial would eventuate was correct. Specifically, it is likely that I would have found it necessary to allow cross-examination of the witnesses whose affidavits were contained in the exhibit, in view of the strong submission by the Bradleys which I have set out above. It is also quite possible that I would have permitted further evidence to be filed by the Bradleys, particularly with respect to such matters as admissions and waiver.
35 Given the history of the matter, which demonstrates that every issue is closely contested, the estimate of the Joyes of a three or four day mini-trial was probably an underestimate, even though I would have endeavoured to limit the oral evidence adduced on an interlocutory application.
36 The central problem, however, was not the objection taken as to without prejudice privilege. The central problem was that the application for security for costs relied upon some assertions which were bound to be factually controversial, such as the assertion that the Bradleys were conducting the litigation vexatiously and that the conduct amounted to an abuse of process. In order to make good those assertions, it would have been necessary for the Joyes to enter into the proof of issues which would be closely related to, or identical with, some of the central issues likely to arise at the final hearing of the matter - such is the question whether a dispute had arisen by 1996, the extent of any implied waiver of privilege, and in particular the dispute as to the circumstances in which the forms of resignation and transfer of shares were executed.
37 In my view, the Joyes should have realised when formulating their application for security for costs that a substantial factual contest would arise if the application was heard. They should have realised, once they decided to rely upon the exhibit to Mr Stewart's affidavit, that counsel for the Bradleys would seek to cross-examine the deponents of the affidavits contained in the exhibit. It has not been suggested that the Bradleys were acting inconsistently with some previous stance by demanding to cross-examine some deponents of affidavits.
38 As to the contention that the present stance of the Bradleys as to without prejudice privilege was inconsistent with the stance previously taken, this is a matter upon which I am unable to make any decision because of the absence of any evidence in the application. But assuming, for the purpose of determining the application for costs, that the contentions by the Joyes in paragraph 3 of their written submissions are true, my view is that the Joyes should nevertheless have predicted that their application would need to be supported by substantial evidence and would lead to a serious factual contest, including a contest as to admissibility on some ground or other and a demand for cross-examination of witnesses.
39 In these circumstances, though I accept that the Joyes were acting reasonably in deciding to withdraw the application on 1 September 1999, my view is that the grounds for their doing so were, by and large, grounds of a kind which they should have anticipated before filing their application in December 1998. It therefore seems to me that their submission that there be no order as to costs of the application should fail. The application having been withdrawn in circumstances where the applicant will consent to an order dismissing it, costs should follow the event.
Indemnity costs
40 As to the Bradleys' claim for indemnity costs, their counsel relied on Fountain Selected Meats (Sales) Pty Limited v The International Produce Merchants Pty Limited (1988) 81 ALR 379 for the proposition that indemnity costs are appropriate where an applicant, properly advised, should have known that he had no chance of success, and that in such a case the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or clearly established law. Relying on that proposition the Bradleys submit that the application was hopeless from the outset, flying in the face of established legal principle, and that the decision to withdraw the application was based on tactics and self-interest.
41 I have set out the submissions of the parties on the application for security in detail because it seems to me that a summary of the submissions demonstrates that there was a serious issue for the Court to determine. It must be the case that the Court has an inherent jurisdiction with respect to its own practice and procedure sufficiently broad to allow it to deal with a recalcitrant litigant beyond cases where summary judgment or summary dismissal is appropriate. Dealing with a recalcitrant litigant may involve the imposition of some terms upon that litigant and those terms may include an order for security for costs.
42 As far as counsel was able to discover, no Australian case has yet made an order for security for costs in circumstances such as in the present case. The authorities relied upon by the Joyes, cited above, can all be explained on other bases than adherence to a broad discretion to make an order for security in circumstances such as the present. But there are dicta in those cases which may have supported the kind of order which the Joyes sought, if the application had been heard and the facts had supported the claims which the Joyes made. I am not convinced that this Court would need a rule of Court such as Order 14 r 4 of the English Supreme Court Rules before exercising its discretion to order security, if the facts had established vexatious conduct tantamount to an abuse of process and an assertion of a claim without substance.
43 It is unnecessary for me finally to resolve this point. For present purposes it is enough for me to say that the Joyes' case was, in my view, an arguable one. That being so, this is not a proper case for indemnity costs.
Immediate payment of costs
44 The Bradleys seek an order under Pt 52A r 9 of the Supreme Court Rules that costs be assessed and paid forthwith. They point out that the issues before the Court in the present application are quite distinct from the issues before the Court in the primary proceedings. While that is so, there are substantially overlapping questions of fact. They also say that unless the Court makes an order that costs be paid forthwith, it is likely that the Bradleys may not recover their costs for a significant period, since the conclusion of the primary proceedings will not occur for some substantial time ( Telstra Corporation Ltd v First Netcom Pty Limited, Federal Court, unreported, 7 May 1998, Einfield J).
45 Anyone who makes more than a cursory perusal of the already massive Court file in this case would realise that if the proceedings continue to be contested as hotly as they have been to date and are fought to the bitter end, the ultimate resolution will not occur for a substantial time. However, I am not able to conclude that the length of the proceedings is a consequence of the conduct of one party rather than the other. So far as I can see from the submissions, the Bradleys are just as prone to contest every point as are the Joyes. If the Joyes are successful at the hearing and an order for costs is made in their favour, the amount of those costs will be vastly in excess of the costs of the present application, and whether there is strictly a set-off, the outcome will be that in that event the Bradleys will be required to pay a substantial amount to the Joyes. In those circumstances, I see no reason for making any order that costs be assessed and paid other than in the normal course.46 My orders are:
Orders
(1) The application by Notice of Motion filed on 24 September 1999 is denied.
(2) The applicants on that Notice of Motion are directed to pay the costs of the respondents including their costs with respect to the argument on the question of costs.
(3) The proceedings be stood over to the Registrar's list on Thursday 28 October 1999 for directions as to the further conduct of the proceedings.
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