Maronis Holdings Ltd v Nippon Credit Australia Ltd

[2001] NSWSC 854

CITATION:	MARONIS HOLDINGS LTD v. NIPPON CREDIT AUSTRALIA LTD [2001] NSWSC 854
CURRENT JURISDICTION:	EQUITY
FILE NUMBER(S):	SC 1946/94
HEARING DATE(S):	14/06/2001
JUDGMENT DATE:	28 September 2001
PARTIES :	Maronis Holdings Limited - First Plaintiff Girvan Corporation (New Zealand) Ltd (in Liq) - Second Plaintiff Nippon Credit Australia Limited - First Defendant Paul Francis Petersen - Second Defendant Warren Alexander Duncan - Third Defendant Alan Raymond Ambler - Fourth Defendant Christopher McCulloch - Fifth Defendant Robert Vincent Ramsay - Sixth Defendant Brian Wilson & Ors (Clayton Utz) - Seventh Defendant Peter Bowen & Ors (Gadens Ridgeway) - Cross-defendants to First Cross-claim
JUDGMENT OF:	Bryson J at 1

COUNSEL :	B.W. Rayment QC, J.E. Marshall & G.R. Kennett for First and Second Plaintiffs F.M. Douglas QC & T.G. R. Parker for First Defendant R. K. Rasmussen for Second Defendant G.E. Underwood & T. Thawley for Third Defendant A. McGrath for Fourth Defendant C. McCulloch in Person Fifth Defendant R. Darke for Sixth Defendant R. Macfarlan QC & J.P.A. Durack for Seventh Defendant J.B. Simpkins SC for Cross-defendants to First Cross-claim
SOLICITORS:	Henry Davis York (Ms S. Lever) for First and Second Plaintiffs Allen Allen & Hemsley (P. Kerr) for First Defendant English Kearns (M. F. English) for Second Defendant Peter W. Hopkins for Third Defendant Thompson Eslick (P. Thompson) for Fourth Defendant C. McCulloch in Person Fifth Defendant Greaves Wannan & Williams (S. Burns) for Sixth Defendant Minter Ellison (Ms S. Hooke) for Seventh Defendant Phillips Fox (Mrs K. Rigney) for Cross-defendants to First Cross-claim.
CATCHWORDS:	COSTS - complex litigation - rulings on costs.
LEGISLATION CITED:	Supreme Court Act 1970
CASES CITED:	Oshlack v. Richmond River Council (1998) 193 CLR 72 Cachia v. Hanes & Anor (1994) 179 CLR 403
DECISION:	See para [32]

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

1946/94

BRYSON J.

FRIDAY 28 SEPTEMBER 2001

MARONIS HOLDINGS LTD & ANOR v. NIPPON CREDIT AUSTRALIA PTY LTD & ORS
Judgment

In the reasons which I published on 7 June 2001 I did not deal with Cross-claims other than Nippon Credit’s Cross-claim against Maronis - see para [546]. On 7 June 2001 I made orders with the consent of the parties affected which dismissed the First, Second, Sixth and Eighth Cross-claims and dismissed the claims in the Third Cross-claim against Nippon Credit. There was no Seventh Cross-claim as the proposed application for leave to file a Seventh Cross-claim was not proceeded with. It remains to dispose of the Third, Fourth and Fifth Cross-claims, in which Clayton Utz, Mr Ambler and Mr Duncan sought contribution and indemnity.

2 The Third Cross-claim, now Amended Third Cross-claim filed on 25 July 2000, was brought by Mr Wilson and other partners of Clayton Utz against Mr Duncan, Mr Ambler and Mr Petersen, as well as against Nippon Credit. As Clayton Utz incurred no liability its cross-claims for contribution amounting to a complete indemnity cannot succeed against Mr Duncan and Mr Ambler, notwithstanding their liability to Maronis, and cannot succeed against Mr Petersen who has been found not to be liable to Maronis. The Fourth Cross-claim, now the Amended Fourth Cross-claim filed on 16 May 2000, was brought by Mr Ambler against Clayton Utz and cannot succeed. The Fifth Cross-claim, now the Amended Fifth Cross-claim filed on 13 July 2000, was brought by Mr Duncan against Clayton Utz and cannot succeed. There will be judgment for the Cross-defendants in each of these Cross-claims.

3 Mr Petersen the Second Defendant has succeeded against the plaintiffs. His success raises consideration of reasons whether he should receive a general order for his costs against the plaintiffs, and whether there should be some modification. It has been contended that his costs should be paid by the plaintiffs on the indemnity basis. It has also been contended that the plaintiffs should be ordered to pay Mr Petersen’s costs of the Third Cross-claim under a Sanderson order. It was submitted that the plaintiffs’ claims against him were made without reasonable prospects of success or that they were commenced or continued for some ulterior motive. Counsel made an extensive citation of instances where indemnity costs have been ordered. In my understanding the circumstances in which indemnity costs are to be ordered are not established or controlled by authority but remain in the discretion of the Court, and it is not usual to order indemnity costs unless there is some relevant delinquency on the part of the unsuccessful party. “Relevant delinquency” is the expression used in Oshlack v. Richmond River Council (1998) 193 CLR 72 at 89. Plainly it leaves much for the consideration and appraisal of the Court which is to exercise the discretion.

4 It was contended that the claim of Girvan NZ against Mr Petersen had no real prospects of success. It was part of Girvan NZ’s case that the Joint Guarantee was not enforceable against Girvan NZ, and if that case succeeded (and it did) there could be no remedy against Mr Petersen. It was contended that the Joint Guarantee had no relevance or utility as a basis on which to allege liability against Mr Petersen. In retrospect after the issues have been decided it can be seen that nothing was achieved by involving Mr Petersen in issues relating to the effectiveness of the Joint Guarantee, but its effectiveness was strongly maintained by Nippon Credit, and I see no basis for treating Girvan NZ as having acted irresponsibly or delinquently in raising issues under it in a way which involved Mr Petersen, nor any basis for inferring that Girvan NZ did so for some unrevealed ulterior motive.

5 It was also contended that Maronis’ claim against Mr Petersen had no genuine or realistic prospect of success. In my view the evidence and the case against Mr Petersen which I reviewed at paras [314] to [325] of my judgment dispose of this contention: there were substantial matters for determination in the claim against Mr Petersen, most significantly as to the effect which Mr Petersen’s conduct, on 29 May 1989 and earlier, had on Girvan NZ’s and Maronis’ participation in the transaction, and as to the implications for the behaviour of others of the conduct, shareholding and officeholdings of Mr Petersen. In a voluminous body of evidence the references to Mr Petersen were relatively few. He has succeeded completely and must have an order for costs, but there is no special element in the plaintiffs’ conduct of the litigation or elsewhere which warrants departure from the ordinary standard of assessment.

6 The plaintiffs contended that the order for costs payable by the plaintiffs to Mr Petersen the Second Defendant should be qualified in several ways. One qualification was that those costs were to exclude any costs incurred by the Second Defendant in relation to the claim of the plaintiffs against the First Defendant. I see no grounds for any such exclusion; the joinder of claims against the First Defendant with claims against the Second Defendant must have contributed to the costs incurred by the Second Defendant and to the number and complexity of the attendances of his legal representatives. The joinder of the claims against the Second Defendant with claims against the Third and later defendants must have produced similar effects. I do not propose to make this qualification. The plaintiffs also sought qualification of the costs order in favour of the Second Defendant so as to exclude costs in relation to certain cross-claims but in my view that subject should be dealt with by making separate cost orders in relation to the costs of the plaintiffs’ claim and the costs of each cross-claim.

7 It was also contended that costs recoverable by Mr Petersen against Clayton Utz in the Third Cross-claim should be assessed on the Indemnity basis. By joining Mr Petersen as a cross-defendant Clayton Utz did not add significantly to the difficulty of the proceedings or the time taken by the hearing. It was not in my view unreasonable or in any way delinquent or indeed unusual for Clayton Utz to make a claim for contribution against another alleged tortfeasor which could only fall for decision if a plaintiff succeeded in tort against both: in a formal way Clayton Utz adopted and associated themselves with the plaintiffs’ claims against Mr Petersen, but in the conduct of the hearing this was little more than form. It was prudent to bring forward the contribution claim rather than to leave open the possibility of further litigation over contribution. I am not prepared to make the award of costs to Mr Petersen against Clayton Utz an indemnity order.

8 Interest on Costs. As his counsel contended, Mr Petersen should recover interest on costs from the times when particular sums of costs were paid by him. I will reserve further consideration of interest so that the question of interest can be dealt with in detail on evidence of his payments.

9 I was asked to order that the plaintiffs pay to Mr Petersen his costs of the Third Cross-claim. I see no reason why the plaintiffs should pay these costs.

10 Mr Duncan the Third Defendant asked for the following orders for costs against the plaintiffs:

1. The Second Plaintiff (Girvan NZ) pay the costs of the Third Defendant.
2. The First Plaintiff (Maronis) pay the costs of the Third Defendant other than those costs related to the claims pleaded in paras 20(e) and 20(f) of the Fourth Further Amended Statement of Claim.
3 The Third Defendant pay the costs of the First Plaintiff in relation to the claims pleaded by the First Plaintiff against the Third Defendant in paragraphs 20(e) and 20(f) of the Fourth Further Amended Statement of Claim.
4. To the extent that the amount of costs payable by the Plaintiffs to the Third Defendant exceed the amount of costs payable by the Third Defendant to the Plaintiffs under these orders, the excess amount be released to be paid to the Third Defendant from the monies held in the joint Cash Management Account held as security for costs, being Westpac Banking Corporation Account No. 032-000 15-0056.
5. Subject to Order 4, no moneys be paid out of the said Cash Management Account until further order.

11 Although consideration should start with a disposition towards awarding a general order for costs to Mr Duncan against Girvan NZ and a general order for costs to Maronis against Mr Duncan that would in my view be a pointless surrender to routine and practice in the face of good reasons why they should not be followed. Girvan NZ and Maronis made common cause, had common representation and were both involved in the many respects in which their cases failed; the hearing was protracted and the complexities of the litigation were greatly magnified by failed contentions. If the plaintiffs’ case had been confined to the claims against Mr Duncan and Mr Ambler which succeeded far less costs would have been incurred by the plaintiffs and also by Mr Duncan than in fact were incurred. Mr Duncan was involved in a hearing of fifty-seven days during much of which issues in the resolution of which he was only peripherally involved were fought out exhaustively. A hearing at which Nippon Credit, Mr Petersen, Mr McCulloch, Mr Ramsay and Clayton Utz were not parties would have been far shorter than the hearing which took place. I see no reasoning by which it should be said that Mr Duncan caused the plaintiffs to join as a defendant any person who was ultimately found not to be liable. The burden imposed on him of participating in and being professionally represented throughout so lengthy a hearing, at the expense of his own time as well as of the costs of his legal representation, was extremely severe and in my view it was unjustly so. While precision in such an estimate is impossible, my estimate is that a hearing in which only the plaintiffs Mr Duncan and Mr Ambler were involved and only claims which succeeded against them were raised would have taken only a small part of the time that was actually taken, in the order of one-sixth of the time or about 10 days. Many weeks in aggregate were wasted in examining claims against Nippon Credit and Clayton Utz which were failures, and claims against Mr McCulloch and Mr Ramsay on little more than shadows of grounds, and Mr Duncan had to endure and pay for his participation in this greatly extended trial while counsel for other parties, and Mr McCulloch who although unrepresented was not inept, attended to their own positions. These circumstances provide support for Mr Duncan’s claim for an order for part of his costs, and also grounds on which the costs awarded against him should be rated down to a small part of Maronis’ general costs of the proceedings.

12 In relation to each of the Third and Fourth Defendants the plaintiffs’ submissions sought this qualification of the costs orders in favour of the plaintiffs; “such costs to exclude any costs incurred by the plaintiffs in relation of the claim of the plaintiffs against the First Defendant …”. In my view that qualification would be altogether inadequate to deal with what in justice is required for the protection of the Third and Fourth Defendants against the burden of costs arising from the plaintiffs’ having failed on many issues and from the complexities of the issues and the hearing introduced by joining defendants against which the plaintiffs failed. The Third and Fourth Defendants should not pay parts of the plaintiffs’ costs which arose out of the plaintiffs having joined other defendants, and should be protected in respect of the burdens which fell on them because of needless complexities. In the case of no other defendant should it be said, in my view, that the conduct of the Third Defendant or of the Fourth Defendant caused the plaintiffs to join that other defendant, or that the Third or Fourth Defendant created a state of affairs in which it was reasonable for the plaintiffs to join other defendants, or in which the plaintiffs had to join other defendants for the purpose of ascertaining or establishing what the plaintiffs’ rights were. The complexities were greatly enhanced by the interplay of forensic interests of many parties, and it was unjust that this was imposed on the Third and Fourth Defendants. While they should pay appropriate costs to the First Plaintiff which succeeded, they should be protected against the Second Plaintiff, which recovered nothing from them, and against both plaintiffs in respect of the unjustly excessive burden.

13 In my opinion no part of the moneys held in a joint Cash Management Account as security for Mr Duncan’s costs should be released to him. If he had any entitlement to resort to that sum, that entitlement would be an asset against which his liability for damages could be enforced. Unless he has satisfied that liability the Court should retain control over the security for costs.

14 In my view the appropriate order is as follows:

(1) Order that the Third Defendant Mr Duncan pay the costs of the First
Plaintiff Maronis which are to be assessed on the following basis:

(a) costs of attendance of solicitors and counsel at the hearing are to be assessed on the basis that the hearing took 10 days.
(b) costs relating to affidavits reports and attendance of witnesses are to be allowed only in respect of witnesses whose evidence directly related to the case against Mr Duncan

(2) Order that the plaintiffs pay the costs of the Third Defendant Mr Duncan of the hearing on the basis that the hearing took 47 days.

(3) Direct that costs payable under these orders be set off and that the orders be executed only in respect of any balance.

15 The same considerations lead me to make similar orders in relation to the Fourth Defendant Mr Ambler. The Court should retain its control over security for Mr Ambler’s costs and should not release the funds.

16 The plaintiffs sought similar qualifications in respect of the costs orders as between the plaintiffs and the Fifth Defendant, and as between the plaintiffs and the Seventh Defendant. I see the qualifications similarly and will not make them.

17 The Fifth Defendant Mr McCulloch is entitled to a general order for costs against the plaintiffs. He was unrepresented at the hearing and for some time earlier. He is a person of considerable ability and acumen and did not suffer the disadvantages incurred by most unrepresented litigants. The Fifth Defendant made an offer of compromise by a letter written by his then solicitors to the plaintiffs’ solicitors on 24 April 1996. That offer was expressed to be without prejudice except as to costs and contained a statement of intention to produce the letter on any argument as to costs. Mr McCulloch was then prepared to settle on the basis that the plaintiffs were to withdraw and Mr McCulloch was to pay his own costs. The letter contained a careful and detailed statement of reasons for its suggestion that the plaintiff would have considerable difficulties in establishing a case against Mr McCulloch. The reasons given outlined the strength of Mr McCulloch’s position in a way to which the presentation of his case at the hearing generally conformed. Although the grounds for my decision were not in all respects exactly predicted by the letter, it is remarkable to how high a degree of accuracy the outcome of the litigation against Mr McCulloch and the grounds on which the claim was disposed of were predicted five years before disposition.

18 In my judgment there never was any serious prospect of success against Mr McCulloch. At later stages, particularly in the Fourth Further Amended Statement of Claim a number of grounds of suit against Mr McCulloch were alleged including participation in fraud, a breach of fiduciary duties and breach of duty of care which in my view had no arguable basis, but were quite groundless as appeared clearly from information in the plaintiffs’ hands. From beginning to end the evidence showed that Mr McCulloch was in the position that he did not control events and decisions and energetically identified what he regarded as prudential measures and pointed them out, without effect, to the persons who were in control. In my judgment the plaintiffs were seriously delinquent in involving Mr McCulloch in the litigation as a defendant, and the deliquency is all the more evident from their not having accepted his offer of 24 April 1996, and from their having persisted with their claims against him. For these reasons costs payable to Mr McCulloch should in my view be assessed on the indemnity basis. This can extend only to legal costs which he incurred while he was represented in the proceedings.

19 For much of the course of the proceedings including the hearing Mr McCulloch was unrepresented and the costs which may be awarded to him are limited, on the authority of Cachia v. Hanes & Anor (1994) 179 CLR 403 to ordinary witness fees; see p.417. He is not entitled to costs of other time spent in Court and time of his own spent in preparation. I propose to keep the assessment of witness fees to be ordered for Mr McCulloch under my own consideration and I will assess an amount to be paid to him; the costs of his legal representation payable under this order will be sent to assessment.

20 Unrepresented persons who conduct their own litigation are recurringly a source of anxious consideration for courts and a source of practical difficulties for represented litigants who are opposed to them; it is a recurring experience that unrepresented litigants do not use the time of themselves or of the Court or of their opponents well and have difficulty in perceiving what is under debate and what is relevant. None of this applies to Mr McCulloch. He is a professional person with qualifications in management, and displayed considerable ability in the presentation of his own case, always remembering that he is not trained in the law. The limit on the costs power established in Cachia v. Hanes has a very unfortunate effect in its impact on him, having regard to the time and intensity of his involvement in these proceedings and the impact which they must have had on his ability to earn his living. The irresponsible behaviour of the plaintiffs in joining him as a defendant and keeping him in the litigation has caused a very heavy burden to fall on him and he has encountered what I regard as an unfortunate weakness in the state of the law.

21 The plaintiffs conceded that the moneys provided for security for Mr McCulloch’s costs ought to be paid to him on account of the moneys to be paid on taxation. I will act on this concession.

22 The costs of the Sixth Defendant Mr Ramsay have already been dealt with.

23 An agreement was reached between the plaintiffs and the Seventh Defendants Clayton Utz as to the orders which should be made disposing of the proceedings between them. The agreement did not cover all matters, and some were left for argument. The orders which should be made under their agreement are as follows:

(1) Upon the plaintiffs’ claim, give judgment for the Seventh Defendants Brian Wilson and others practising as Clayton Utz against the First Plaintiff Maronis Holdings Limited.
(2) By consent the claims in the Fourth Further Amended Statement of Claim by the Second Plaintiff Girvan Corporation (New Zealand) Limited (in Liquidation) against the Seventh Defendants are dismissed; and it is ordered that as between the Second Plaintiff and the Seventh Defendants each party pay its or their own costs.

24 The first of these orders carries costs with it. It will be seen that an effect of the consent orders is that Clayton Utz will not be entitled to recover any costs against Girvan NZ.

25 Clayton Utz asked for the costs payable by Maronis to Clayton Utz to be assessed on the indemnity basis. Clayton Utz asked to this effect:

(a) that all the costs of Clayton Utz be deemed to relate to the claim against Clayton Utz by Maronis;
(b) that costs otherwise payable to Clayton Utz by Maronis be reduced by 10 percent representing the share of Clayton Utz’ costs which have been agreed to relate to the Nippon Credit aspect of the case.

26 Clayton Utz also asked for a special order dealing with interest on costs and for an order directing payment out of money held by way of security for costs. A ground on which indemnity costs were claimed was that it was alleged that Maronis has maintained proceedings which had no real prospects of success. I do not uphold this ground because, although the claim was completely unsuccessful, it was not unarguable. There was an arguable basis for alleging that Clayton Utz had acted or presumed to act as the solicitors for Maronis, borne out by written assertions made by Clayton Utz in correspondence. The claims were also supported by expert evidence which, although I did not accept it, required careful consideration and came from an expert whose views were entitled to respect. The weaknesses of the case were many, and it was presented in an extremely complex way which served to obscure such strength as it had. However I do not think that it can be said that there was no real prospect of success; or that the claim was an act of irresponsibility or delinquent. A further ground under which indemnity costs were claimed was that there were allegations of fraud which were made with no proper basis for them. There was, indeed, no substantial basis for repeated allegations and for extended endeavours at the hearing to maintain a case of dishonest or unconscionable conduct. I do not think however that an indemnity costs order should be founded on aspects of the conduct of the case which were excessive or unjustified when there were other aspects which required careful consideration.

27 A further ground was that the length and costs of the case have been greatly increased by the number of parties joined by the plaintiffs, including some in respect of whom there was no reasonable prospect of success. This submission related to claims against Nippon Credit, Mr Petersen, Mr McCulloch and Mr Ramsay. In my view it was correct in respect of Mr McCulloch and Mr Ramsay to maintain that there was no reasonable prospect of the plaintiffs succeeding, but I would not make the same observation of the claims against Nippon Credit and Mr Petersen in respect of whom there was something to adjudicate. I have given some thought to seeking to identify some proportion of the hearing in respect of which an award of indemnity costs might reflect the element of extension of the hearing of the case against Clayton Utz arising from inappropriate joinders, but I have been unable to see any sustainable basis for apportioning the hearing to reflect this. A general order for costs in favour of the Seventh Defendant will itself furnish them with considerable protection and I regard it as the appropriate measure.

28 The costs recoverable by Clayton Utz against Maronis should be the general costs of the proceedings, including costs specifically relating to Girvan NZ’s claim. The plaintiffs made common cause against Clayton Utz. I uphold claim (a) referred to in para [25]. I will adopt the 10 per cent reduction which the parties have agreed to.

29 Clayton Utz asks for release now of money held as security for its costs. This is appropriate on the assumption that the costs are likely to exceed the security. If this assumption is wrong Maronis can obtain my reconsideration on a prompt application.

30 The Second Defendant and the Seventh Defendants have each sought an award of interest on costs. I regard it as appropriate to award interest in exercise of the power in subs.95(4) of the Supreme Court Act 1970 so that interest is to be paid on amounts of costs paid from the dates when amounts in respect of costs were paid. I regard this as appropriate because the interlocutory stages of the litigation and the hearing were very protracted, largely because of the conduct of the plaintiffs and complexities arising out of the plaintiffs’ having made many amendments to their pleadings. It would in my view be unjust that the defendants should not recover any interest in respect of the period between the dates, which could now be over six years ago, when they were called on to pay costs to their own representatives and the date when an order for costs is made.

31 Clayton Utz has asked that I reserve liberty to make an application by Motion for an order against a non-party in respect of costs if it should later be advised to do so. I will accede to this request, although in doing so I have given no consideration to whether there is any ground upon which any non-party could or should be ordered to make any payment.

32

DRAFT ORDERS:

(1) On the Third Cross-claim, give judgment for the First, Second and Third Cross-defendants with costs.

(2) On the Fourth Cross-claim, give judgment for the Second Cross-defendants with costs.

(3) On the Fifth Cross-claim, give judgment for the Cross-defendants with costs.

(4) Upon the plaintiffs’ claim against the Second Defendant Mr Petersen, order that the plaintiffs pay the Second Defendant’s costs of the proceedings.

(5) Upon the claim of the plaintiffs against the Third Defendant Mr Duncan,

(i) Order that the Third Defendant Mr Duncan pay the costs of the First Plaintiff Maronis Holdings Ltd of the proceedings and further order that the costs payable under this clause are to be assessed on the following basis.
(a) Costs of attendance of solicitors and counsel at the hearing are to be assessed on the basis that the hearing took 10 days.
(b) Costs relating to affidavits reports and attendance of witnesses are to be allowed only in respect of witnesses whose evidence directly related to the case against Mr Duncan.
(ii) Order that the plaintiffs pay the costs of the Third Defendant Mr Duncan of the hearing on the basis that the hearing took 47 days.
(iii) Direct that costs payable under subcll.(i) and (ii) be set off and that the orders be executed only in respect of any balance.

(6) Upon the claim of the plaintiffs against the Fourth Defendant Mr Ambler

(i) Order that the Fourth Defendant Mr Ambler pay the costs of the first plaintiff Maronis Holdings Ltd of the proceedings and further order that the costs payable under this clause are to be assessed on the following basis.
(a) Costs of attendance of solicitors and counsel at the hearing are to be assessed on the basis that the hearing took 10 days.
(b) Costs relating to affidavits reports and attendance of witnesses are to be allowed only in respect of witnesses whose evidence directly related to the case against Mr Ambler.
(ii) Order that the plaintiffs pay the costs of the Fourth Defendant Mr Ambler of the hearing on the basis that the hearing took 47 days.
(iii) Direct that costs payable under subcll.(i) and (ii) be set off and that the orders be executed only in respect of any balance.

(7) Upon the plaintiffs’ claim against the Fifth Defendant Mr McCulloch:

(i) Order that the plaintiffs pay the costs of the Fifth Defendant Mr McCulloch of the proceedings and that those costs be assessed on the indemnity basis from 24 April 1996.
(ii) Further order that the plaintiffs pay the witness’s fees of the Fifth Defendant Mr McCulloch.
(iii) Reserve further consideration of the quantum of fees payable under cl.(ii).

(8) Upon the plaintiffs’ claim against the Seventh Defendants Mr Wilson and others practising as Clayton Utz:

(i) Give judgment for the Seventh Defendants Brian Wilson and others practising as Clayton Utz against the First Plaintiff Maronis Holdings Limited.
(ii) By consent the claims in the Fourth Further Amended Statement of Claim by the Second Plaintiff Girvan Corporation (New Zealand) Limited (in Liquidation) against the Seventh Defendants are dismissed; and it is ordered that as between the Second Plaintiff and the Seventh Defendants each party pay its or their own costs.
(iii) Order that the First Plaintiff Maronis Holdings Ltd pay the costs of the Seventh Defendants of the proceedings and direct:
(a) that all the costs of Clayton Utz be deemed to relate to the claim against Clayton Utz by Maronis;
(b) that costs otherwise payable to Clayton Utz by Maronis be reduced by 10 percent representing the share of Clayton Utz’ costs which have been agreed to relate to the Nippon Credit aspect of the case.


(9) Reserve further consideration of interest on costs payable under any costs order in these proceedings with a view to awarding interest in exercise of the power in subs.95(4) of the Supreme Court Act 1970 at the prescribed rates referred to in Schedule J of the Supreme Court Rules from the dates when payments were made to solicitors in respect of costs by the party having the benefit of the costs order until payment of costs by the plaintiffs.

(10) Order that moneys held by way of security for the costs of the Fifth Defendant be now paid out to the Fifth Defendant on account of his entitlement to costs and witness’s fees under these orders.

(11) Order that moneys held by way of security for the costs of the Seventh Defendants be now paid out to the Seventh Defendants or as they may direct on account of their costs entitlement under these orders; provided that if the amount paid out under this direction should exceed the amount of costs assessed agreed, the Seventh Defendant is to repay the excess to the plaintiffs with interest, reserving liberty to apply with respect to the operation of this proviso.

(12) Reserve to the Seventh Defendants liberty to apply by Motion for such order if any as the Seventh Defendants may be entitled to for payment of costs by a non-party.

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Last Modified: 01/03/2002