Kopilovic v Gatley

[2005] WASC 62 (S)

KOPILOVIC & ORS -v- GATLEY & ORS [2005] WASC 62 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 62 (S)
Case No:	CIV:1593/2003	Heard:	15-17 MARCH 2004
Coram:	EM HEENAN J	Delivered:	22/04/05
Supplementary Delivered:	8/02/06
No of pages:	16	Judgment Part:	1 of 1
Result:	Plaintiffs jointly and severally to pay 80 per cent of the defendants' costs to be taxed Liberty to apply reserved to certain plaintiffs to seek directions as to whether, and if so in what manner, they may seek an indemnity or contribution towards their liability for costs
Category:	B
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Parties:	PATRICIA LILANA KOPILOVIC JOHN GIARDINA DAMIEN CIRANNA JOHN ANTONACCI MARCIA FRAGIADAKIS VIVIAN SIMPSON AARON-LEE WILDE DEE JAMES DEBRA OFFER ANNE FARRAWELL NATHAN MAJOR HELEN MAJOR RAYMOND BUCKLEY SNEDDON CARMELO FRANCESCO RACCUIA DEREK FRANCIS GATLEY MARGARET ANN LONSDALE VINCENT RAYMOND BAIN JEFFREY ROBERT ELWORTHY CAROL KAY KIMMINS KATHRYN FRANCES WIGGINS TONY JOSEPH TILENNI ROBERT HENRY COURTS ROBERT JOHN STEELE MALCOLM LENNARD BATTY VINCENT SILVIO IOPPOLO EAMON MICHAEL McGRATH PETER SPENCER SMITH ORYST TKACZ DALLAS LESLIE WILLIAMS LEE GARTH WILTON DANCESPORT AUSTRALIA LTD (ACN 085 929 835)
Catchwords:	Costs Multiple plaintiffs and multiple defendants Costs of particular issues Defendants generally successful Plaintiffs successful to minor extent on limited issues Overall apportionment of costs Claim by some plaintiffs to be absolved from liability for costs Claim by some plaintiffs for indemnity or contribution from other plaintiffs for liability for costs Claims for indemnity or contribution generally
Legislation:	Nil
Case References:	Albion Insurance Co Ltd v GIO (NSW) (1969) 121 CLR 342 Burke v LFOT Pty Ltd (2002) 209 CLR 282 Kopilovic & Ors v Gatley & Ors [2005] WASC 62 Re Mathews [1905] 2 Ch 460 Re Wright [1895] 2 Ch 747 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : KOPILOVIC & ORS -v- GATLEY & ORS [2005] WASC 62 (S) CORAM : EM HEENAN J HEARD : 15-17 MARCH 2004 DELIVERED : 22 APRIL 2005 SUPPLEMENTARY
DECISION : 8 FEBRUARY 2006 FILE NO/S : CIV 1593 of 2003 MATTER : DANCESPORT AUSTRALIA LTD
(ACN 085 929 835) BETWEEN : PATRICIA LILANA KOPILOVIC

First Plaintiff

JOHN GIARDINA
Second Plaintiff

DAMIEN CIRANNA
Third Plaintiff

JOHN ANTONACCI
Fourth Plaintiff

MARCIA FRAGIADAKIS
Fifth Plaintiff

VIVIAN SIMPSON
Sixth Plaintiff

AARON-LEE WILDE
Seventh Plaintiff

(Page 2)

DEE JAMES
Eighth Plaintiff

DEBRA OFFER
Ninth Plaintiff

ANNE FARRAWELL
Tenth Plaintiff

NATHAN MAJOR
Eleventh Plaintiff

HELEN MAJOR
Twelfth Plaintiff

RAYMOND BUCKLEY SNEDDON
Thirteenth Plaintiff

CARMELO FRANCESCO RACCUIA
Fourteenth Plaintiff

AND

DEREK FRANCIS GATLEY
First Defendant

MARGARET ANN LONSDALE
Second Defendant

VINCENT RAYMOND BAIN
Third Defendant

JEFFREY ROBERT ELWORTHY
Fourth Defendant

CAROL KAY KIMMINS
Fifth Defendant

KATHRYN FRANCES WIGGINS
Sixth Defendant

(Page 3)

TONY JOSEPH TILENNI
Seventh Defendant

ROBERT HENRY COURTS
Eighth Defendant

ROBERT JOHN STEELE
Ninth Defendant

MALCOLM LENNARD BATTY
Tenth Defendant

VINCENT SILVIO IOPPOLO
Eleventh Defendant

EAMON MICHAEL McGRATH
Twelfth Defendant

PETER SPENCER SMITH
Thirteenth Defendant

ORYST TKACZ
Fourteenth Defendant

DALLAS LESLIE WILLIAMS
Fifteenth Defendant

LEE GARTH WILTON
Sixteenth Defendant

DANCESPORT AUSTRALIA LTD (ACN 085 929 835)
Seventeenth Defendant

(Page 4)

Catchwords:

Costs - Multiple plaintiffs and multiple defendants - Costs of particular issues - Defendants generally successful - Plaintiffs successful to minor extent on limited issues - Overall apportionment of costs - Claim by some plaintiffs to be absolved from liability for costs - Claim by some plaintiffs for indemnity or contribution from other plaintiffs for liability for costs - Claims for indemnity or contribution generally

Legislation:

Nil

Result:

Plaintiffs jointly and severally to pay 80 per cent of the defendants' costs to be taxed

Liberty to apply reserved to certain plaintiffs to seek directions as to whether, and if so in what manner, they may seek an indemnity or contribution towards their liability for costs

Category: B

Representation:

Counsel:

First Plaintiff : No appearance
Second Plaintiff : No appearance
Third Plaintiff : No appearance
Fourth Plaintiff : No appearance
Fifth Plaintiff : No appearance
Sixth Plaintiff : No appearance
Seventh Plaintiff : Mr M J Hardy
Eighth Plaintiff : No appearance
Ninth Plaintiff : No appearance
Tenth Plaintiff : No appearance
Eleventh Plaintiff : Mr M J Hardy
Twelfth Plaintiff : Mr M J Hardy
Thirteenth Plaintiff : Mr M J Hardy
Fourteenth Plaintiff : No appearance

(Page 5)

First Defendant : Mr J McGrath
Second Defendant : Mr J McGrath
Third Defendant : Mr J McGrath
Fourth Defendant : Mr J McGrath
Fifth Defendant : Mr J McGrath
Sixth Defendant : Mr J McGrath
Seventh Defendant : Mr J McGrath
Eighth Defendant : Mr J McGrath
Ninth Defendant : Mr J McGrath
Tenth Defendant : Mr J McGrath
Eleventh Defendant : Mr J McGrath
Twelfth Defendant : Mr J McGrath
Thirteenth Defendant : Mr J McGrath
Fourteenth Defendant : Mr J McGrath
Fifteenth Defendant : Mr J McGrath
Sixteenth Defendant : Mr J McGrath
Seventeenth Defendant : Mr J McGrath

Solicitors:

First Plaintiff : In person
Second Plaintiff : In person
Third Plaintiff : In person
Fourth Plaintiff : In person
Fifth Plaintiff : In person
Sixth Plaintiff : In person
Seventh Plaintiff : Hardy Bowen
Eighth Plaintiff : In person
Ninth Plaintiff : In person
Tenth Plaintiff : In person
Eleventh Plaintiff : Hardy Bowen
Twelfth Plaintiff : Hardy Bowen
Thirteenth Plaintiff : Hardy Bowen
Fourteenth Plaintiff : In person
First Defendant : Gibson & Gibson
Second Defendant : Gibson & Gibson
Third Defendant : Gibson & Gibson
Fourth Defendant : Gibson & Gibson
Fifth Defendant : Gibson & Gibson
Sixth Defendant : Gibson & Gibson
Seventh Defendant : Gibson & Gibson
Eighth Defendant : Gibson & Gibson
Ninth Defendant : Gibson & Gibson

(Page 6)

Tenth Defendant : Gibson & Gibson
Eleventh Defendant : Gibson & Gibson
Twelfth Defendant : Gibson & Gibson
Thirteenth Defendant : Gibson & Gibson
Fourteenth Defendant : Gibson & Gibson
Fifteenth Defendant : Gibson & Gibson
Sixteenth Defendant : Gibson & Gibson
Seventeenth Defendant : Gibson & Gibson

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

Albion Insurance Co Ltd v GIO (NSW) (1969) 121 CLR 342
Burke v LFOT Pty Ltd (2002) 209 CLR 282
Kopilovic & Ors v Gatley & Ors [2005] WASC 62
Re Mathews [1905] 2 Ch 460
Re Wright [1895] 2 Ch 747

Case(s) also cited:

Nil

(Page 7)

1 EM HEENAN J: After the reasons for decision in this case were delivered on 22 April 2005 further directions were given on 15 June last for the parties to file written submissions in relation to the issues of costs on the basis that all questions of costs would be dealt with on written submissions, unless the court or any of the parties desired a further hearing for oral submissions to supplement the written materials. Written submissions have been filed and served on behalf of the seventh, eleventh, twelfth and thirteenth plaintiffs, each now represented by a different firm of solicitors than at the times of the hearing and of judgment. No written submissions have been received from any of the other plaintiffs.

2 It appears that most, if not all, of the other plaintiffs have ceased to retain the solicitors who acted for them at the times of hearing and judgment but have not instructed any other firm of solicitors to appear on the record on their behalf. In these circumstances, they have not been heard formally in respect to matters of costs but I have assumed that their position is, generally speaking, that which they, through counsel, adopted at the trial. This is that important issues of general application to all members of Dancesport Australia Ltd were raised by these proceedings and that, by the time of trial, some success had been achieved for the plaintiffs in gaining acknowledgements from the defendants and, in particular, from Dancesport Australia Ltd, that certain actions purportedly taken by the company in an attempt to convene general meetings and pass resolutions in November 2002 were ineffective and that later attempts to ratify those actions in April 2003 have also been acknowledged by the defendants to have been ineffective. Therefore, I shall treat the position of those plaintiffs, who have not filed submissions in relation to costs, on that basis.

3 Written submissions by the defendants have also been filed and served. None of the parties on whose behalf written submissions have been filed has sought any further hearing and I am satisfied that I can, and should, deal with the questions of costs on the papers so far as is presently possible.

4 The defendants were substantially successful in the proceedings in gaining a declaration confirming the authenticity and applicability of the April 2000 constitution of Dancesport Australia Ltd as being the then valid and effective constitution of the company. That determination resulted in the rejection of other claims by the plaintiffs who were also seeking declarations, orders or other relief:

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(a) that the first to the sixteenth defendants (inclusive) and all other individuals holding office in the company since April 2000 had not been properly appointed and had been acting ultra vires since that date;

(b) removing the first to the sixteenth defendants (inclusive) as officers or directors of the company and their replacement by an interim board to be appointed by the court;

(c) that the proposed interim board of directors should convene a general meeting of the members of the company at which time all office bearer positions would be vacated and new elections held to appoint a new board of directors in a manner to be prescribed by the court; and

(d) orders requiring each of the first to the sixteenth defendants to reimburse the company for all legal fees paid by the company since October 2002 on a solicitor and client basis.

5 The primary submission for the defendants is that there was one contest in substance in the litigation, namely, whether the April 2000 constitution was the valid constitution of the company and on that issue the defendants were successful and, consequentially, also succeeded on the other issues just enumerated. Accordingly, they submit that they should be entitled to recover the whole of their costs of the proceedings. As a subsidiary submission the defendants contend that there has been no conduct on their part, either before or after the commencement of the litigation, which has resulted in costs being unreasonably or unnecessarily incurred - RSC O 66 r 1(2).

6 However, there were other issues in the proceedings which, while no longer controversial by the date of the hearing, were issues upon which the plaintiffs were successful in obtaining acknowledgements from the defendants of the justification of their position and which resulted in admissions or concessions being made by the defendants. The more material of these issues, for present purposes, in my view, are the following:

(a) the contentions of the plaintiffs that, in a variety of respects, of which the provisions relating to the absence of the right of shareholders to vote at meetings of the company by proxy; the absence of provisions in the

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constitution dealing with the quorum for a general meeting; and ineffective provisions relating to the holding of postal votes; the April 2000 constitution of the company did not in all respects comply with the provisions of the Corporations Law or the Corporations Act as that legislation applied from time to time; and

(b) that attempts by Dancesport Australia Ltd to change its constitution by resolutions purportedly carried at general meetings in November 2000 and April 2001 were ineffective because of inadequacies in the notice for, and in the manner of, convening those meetings; and

(c) notices lodged with ASIC by the company on or about 12 November 2002 purporting to give notice of changes to the constitution of the company were erroneous (because of the invalidity of the resolutions purportedly passed at those meetings) and were in need of correction; and

(d) an attempt by a postal ballot conducted of certain members of the company in April 2003 to ratify the decisions of directors taken since April 2000 and the attempted amendments of the constitution in November 2000 and April 2001 were also invalid for various procedural reasons; and

(e) the issues of fact, contested at the hearing, that on a substantial scale, and particularly in the Northern Territory, notices of "membership" were despatched by a branch registry of the company to various applicants for membership, who had paid subscription fees and whose payments had been appropriated on behalf of the company notwithstanding that, at the time, those "members", were not recorded as or treated as members of the company despite the procedures which had been followed, mistakenly, by the branch registry or registries concerned. This occurred on a significant scale between February 1999 to April 2000 (see reasons for decision Kopilovic & Ors v Gatley & Ors [2005] WASC 62 at [50] - [52]).

(Page 10)

7 The written submissions filed by four of the 14 plaintiffs first advanced the proposition that the defendants should not have costs in their favour awarded in these proceedings at all. The basis for this submission is that while the plaintiffs were ultimately unsuccessful in the proceedings, the conduct of the defendants contributed to the uncertainty which gave rise to the decision to initiate and continue these proceedings in order to clarify which constitution of Dancesport Australia Pty Ltd was valid. These plaintiffs relied on the observations which I made in [38] of the reasons for decision published earlier, that the defendants had failed to inform the members of the ADB and ADF/Dancesport Australia, which included, as they believed, the plaintiffs, of the actions which they were taking in respect of the structure of the organisation and its constitution.

8 These plaintiffs also submit that the defendants' unsuccessful attempt to ratify the ineffectual amendments to the constitution when no such procedure to make them was provided for in the constitution added to the uncertainty. They also submit that the defendants failed to give notices of those meetings to enable all the members of Dancesport Australia Ltd, including the plaintiffs, an opportunity to attend at those meetings or to vote on the matters raised.

9 Although not specifically advanced by these plaintiffs in their submissions, I consider that the failure of the defendants to inform those applicants for membership during the period February 1999 to April 2002 that, notwithstanding the issue of "membership" cards, their applications for membership had not been accepted by the company but instead had been "parked" pending the completion of the procedures then current to establish a new constitution for Dancesport Australia Ltd, greatly added to the confusion, misunderstanding by the applicants for membership about their real status, and the control of the seventeenth defendant before April 2000. Had this remained the position until the trial of the proceedings there would, in my view, certainly be much to be said for these plaintiffs' submissions that they should not have to pay the defendants' costs because they had been misled as to the true membership of the corporation and their status as applicants for membership whose applications had been treated as simply pending, notwithstanding that appropriation of their application fees had been made.

10 However, the situation clearly is that the defendants explained the steps which they had followed, including treating applicants for membership during the period February 1999 to April 2000 as simply pending, in the affidavits which they filed in these proceedings and, earlier, in the materials which they had circulated (admittedly

(Page 11)

ineffectively) when seeking endorsement by postal ballot by the members for the actions which had been taken by the directors up until that point in April 2003. The problem is that, by the time these explanations were advanced, significant numbers of the members of the company, including the plaintiffs, no longer reposed trust in the defendants and would not accept the explanations given as justifying the defendants' stance that, despite some appearances to the contrary, it was the April 2000 constitution which was the valid and effective constitution of the corporation. It is, no doubt, most unfortunate that this atmosphere of lack of trust and suspicion of explanations proffered by the defendants had developed.

11 It is not surprising that this degree of reserve developed among the plaintiffs because, as I mentioned in [38] of the earlier reasons for decision, what had happened left a cloud hanging over the conduct of the defendants in not fully disclosing to the plaintiffs, or to other applicants for membership in the company, the facts that their applications had not been processed and accepted before April 2000. However, by the time these proceedings were commenced and, certainly well before the hearing, all that had been disclosed to the plaintiffs in these proceedings and the information was available upon which conclusions about the ultimate validity and applicability of the April 2000 constitution could be reached. It follows from this that I am satisfied that, from this point on, at the latest, an adequate explanation of the true sequence of events had been made by the defendants and that, as a result, there is no reason to depart from the ordinary rule that parties who unsuccessfully contend that certain actions or events have legal consequences which they unsuccessfully assert, should be responsible for the successful parties' costs of the legal proceedings which follow.

12 By the time this originating summons came on for hearing the defendants, through their counsel, quite properly but necessarily, accepted that the purported resolutions to amend the constitution of the company passed at meetings in November 2000 and April 2001 were invalid and ineffective, consequently that notices of those changes lodged with ASIC on 12 November 2002 were also inaccurate and in need of correction and, further, that the purported postal ballot conducted in April 2003 for ratification of the directors' actions and the amendments to the constitution was also ineffective and could not, and would not, be relied upon by the company or its then current board of directors.

13 The practical effect of those concessions by the defendants of those parts of the plaintiff's claims, coupled with the declaration made by the

(Page 12)

court at the end of the proceedings, left the constitution of the company as adopted in April 2000 as the then valid and effective constitution of the company, but unaltered by the subsequent attempts at amendment. This meant that, in a number of material respects, it had become necessary for the company and its directors to propose, and if the members agreed to implement, changes to that constitution in order to bring it fully into conformity with the requirements of the Corporations Act. It also meant that if the directors or other officers desired to obtain ratification of decisions made and actions taken by them on behalf of the company since April 2000, it would be necessary to propose for consideration at a general meeting of the company, after proper disclosure of all the material circumstances, resolutions to that effect. This would allow all members of the company, including those of the plaintiffs who were still members of the company at the time any such resolutions were to be considered, an opportunity to participate in the formal determination of any changes to the corporation's constitution and in any decision as to whether or not some or all of the actions of the directors or other officers of the corporation should be ratified.

14 In comparison with the extent of the relief originally sought by the plaintiffs, and its likely impact upon Dancesport Australia Ltd and the defendants had they been completely successful, these conceded issues may appear to be only of minor dimensions. While I accept that to be the case, they are nevertheless some vindications of the plaintiffs' claims and do result in tangible preservation of important rights of members of the company. I do not consider therefore, that it can be said that the plaintiffs have wholly failed in their proceedings. Rather, the extent of their success has only been on a relatively minor scale in comparison with the magnitude and probable impact of the relief which they were seeking overall. Despite this, the significance of this aspect of the plaintiffs' claims should not be entirely ignored.

15 The defendants meet these contentions by submitting that, the defendants' subsequent attempt to validate attempted amendments to the constitution in November 2000 and April 2001 by way of a postal ballot in April 2003 were good faith measures intended to address the plaintiffs' concerns via the membership of the company; and the defendants conceded that the attempt to conduct the postal ballot was invalid and did not oppose the plaintiffs' application for an injunction restraining the defendants from relying upon the postal ballot, nor did the defendants contend for the validity of the amendments purported to have been made on 12 November 2000 and in April 2001.

(Page 13)

16 The defendants further respond to the plaintiffs' submissions by contending that while RSC O 66 r2(a) allows the court to make costs orders in favour of an unsuccessful party in relation to causes of action on which that party was successful, and, by analogy with respect to the costs of certain issues, this is not a case where special circumstances exist which justify allocation of costs based on issues as opposed to the overall outcome of the litigation. The basis for that contention by the defendants is that these particular issues were not the subject of argument at trial and did not discernibly add to the time of the trial or the costs of the litigation.

17 It may well be the case, as the defendants submit, that the costs of these particular issues did not materially add to the costs of the trial in these proceedings. But I am now being asked to deal with the entire costs of the proceedings, not merely those relating to the trial itself. In my view, it remains the case that the plaintiffs have secured some modest success, admittedly by concession from the defendants, after the commencement of the proceedings. Had they been content with those concessions and abandoned all other claims, it is probable that they would have recovered a significant portion of their costs of the proceedings to that point. Such an entitlement has not, in my view, disappeared entirely even though it has, as I accept, been greatly overshadowed by the costs incurred at the trial on issues in respect of which the plaintiffs have failed.

18 It is, of course, extremely difficult, even perhaps impossible, to make a precise calculation about the extent, in money terms, by which the costs of the proceedings can be related to those issues upon which the plaintiffs have had this small success. I consider that this must be a matter of impression, having regard to the relative importance and impact of those issues when measured in comparison with the remaining issues which were contested and resolved in favour of the defendants. Strictly speaking, were precise recognition and quantification of these costs possible, the preferred order would be to require the defendants to pay the plaintiffs' costs relating to those issues, and to prohibit the defendants from recovering any part of their costs relating to those same issues. However, I am satisfied that it would be entirely impracticable and artificial to make any such order in the present proceedings and that, therefore, I should attempt to reflect the impact of such an order had it been possible for it to be practically worked out, in an overall apportionment of the costs of the proceedings. Taking this approach, I consider that this is best achieved by ordering that the defendants may recover 80 per cent of their taxed costs of the proceedings and no more.

(Page 14)

Position between the plaintiffs themselves

19 The seventh, eleventh, twelfth and thirteenth plaintiffs further submit that their respective submissions should be differentiated from those of the remaining plaintiffs and that, at least, these four plaintiffs should not be required to pay or to contribute towards the payment of any costs ordered in favour of the defendants. This is submitted because these four plaintiffs maintain that, at all times, they played passive roles in these proceedings. They have submitted that they were asked by the first and fourteenth plaintiffs whether, as members of the corporation, they would support the proceedings simply by being named as co-plaintiffs. They maintain that they took no active role in these proceedings and that it was the first and fourteenth plaintiffs who were at all times the persons who gave instructions and controlled the manner and extent of the instructions given on behalf of the plaintiffs. Further, these four plaintiffs submit that the first and fourteenth plaintiffs gave them assurances that those two would meet all costs associated with the proceedings.

20 With respect to the submissions made on behalf of the seventh, eleventh, twelfth and thirteenth plaintiffs that they, as distinct from the other plaintiffs, should not be required to pay any of the defendants' costs because they only played a "passive role" in the proceedings, I consider that that should be rejected. All the plaintiffs joined in the proceedings from the outset, were represented by the same solicitors and counsel and presented a uniform case without any attempt to distinguish, in any material way, between the interests or support of each other. This coincidence of interests and of roles as between co-plaintiffs in litigation has long been insisted upon and has certain consequences. It prompts the observation in the Supreme Court Practice ("The White Book") par 15/4/3 that intending co-plaintiffs should make sure that no conflict of interest, nor any division of opinion between themselves is likely to arise, for co-plaintiffs will not be allowed to sever or to take inconsistent steps and must appear at the trial by the same solicitor and counsel: Re Mathews [1905] 2 Ch 460 and Re Wright [1895] 2 Ch 747.

21 By participating in these proceedings, I am satisfied that each of the plaintiffs, with each other, is jointly and severally responsible to the defendants for all costs ordered to be paid by the plaintiffs to the defendants and that there is no reason to depart from this orthodox position.

22 No issue has, previously, been joined between the plaintiffs themselves about their respective roles in these proceedings or disclosing

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any differentiation in the interests or obligations of any of the plaintiffs. The first and fourteenth plaintiffs have not been formally served with notice of any claim for indemnity or contribution in relation to the costs and no submissions have been received by them or from the other plaintiffs in response to these allegations. Accordingly, I do not consider that it is proper for me to entertain such a claim from four of the plaintiffs in a manner adverse to the remaining plaintiffs without formal notice being given to those affected and an opportunity given for evidence to be adduced on the issue if any of the persons affected so desire, and for further submissions to be made. Although no formal application in this respect has been made the submissions which have been received foreshadow the possibility of such a claim and, therefore, I shall do no more than grant liberty to the seventh, eleventh, twelfth and thirteenth plaintiffs or any one or more of them, to apply, on notice to the other plaintiffs, for directions as to whether, and if so how, any or all of those plaintiffs should be permitted to seek an order for indemnity or contribution from any or all of the remaining plaintiffs in respect of the discharge or partial discharge by any of the seventh, eleventh, twelfth and thirteenth plaintiffs of their liability to the defendants for the defendants' costs of these proceedings.

23 Whether any of the four plaintiffs now making written submissions is entitled to an order for indemnity or contribution for these costs against some or all of the other plaintiffs, whether as a right under any contract entered into between some or all of them at the time these proceedings were commenced or continued, or simply because they appear to be co-obligors under a co-ordinate liability (see Albion Insurance Co Ltd v GIO (NSW) (1969) 121 CLR 342 and Burke v LFOT Pty Ltd (2002) 209 CLR 282) to the defendants arguably giving rise to a claim for contribution in equity or otherwise has not properly been raised by any of the plaintiffs to this point. The possibility of that being pursued will be preserved by the grant of liberty to apply in that respect which I have outlined.

24 For these reasons I consider that the orders which should be made, at this stage of the proceedings, with respect to costs are:

(a) The plaintiffs do, jointly and severally, pay to the defendants 80 per cent of the defendants' costs of the proceedings to be taxed as one set of costs. This order for costs shall include all reserved costs, if any.

(Page 16)

(b) There be liberty to apply by any one or more of the seventh, eleventh, twelfth and thirteenth plaintiffs for directions as to whether, and if so on what basis, those plaintiffs make seek orders for indemnity or contribution from any or all of the remaining plaintiffs towards their liability to the defendants for the costs of these proceedings.

(c) The defendants have liberty to apply within 60 days for any special orders with regard to any variation or dispensation from the applicable item in any scale of costs which may apply.