Mickelberg v Aerodata Holdings Limited - [2004] WADC 28

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MICKELBERG & ANOR -v- AERODATA HOLDINGS LIMITED & ANOR [2004] WADC 28
LINK TO: [2000] WADC 324; [2002] WASCA 80

CORAM: O'BRIEN DCJ

HEARD: 3 OCTOBER 2003

DELIVERED : 26 FEBRUARY 2004

FILE NO/S: CIV 931 of 1987

BETWEEN: FAYE SUSANNE KIMM MICKELBERG
PAULA LORRAINE MICKELBERG by her next friend and mother FAYE SUSANNE KIMM MICKELBERG
Plaintiffs
AND
AERODATA HOLDINGS LIMITED
First Defendant
AGRICULTURAL & GENERAL AVIATION PTY LTD
Second Defendant

Catchwords:

Application for special costs orders pursuant to Supreme Court Rules O 66 r 12(1) - Whether good or sufficient reason to order increased allowance - Whether a Bullock order appropriate

Legislation:

Supreme Court Rules 1971

Schedule of the Supreme Court (Contentious Business) Determination 2002
Schedule of the Supreme Court (Contentious Business) Determination 1999
Supreme Court (Contentious Business) Determination 1996
Supreme Court Costs Scale 1991 Determination

Supreme Court Costs Scale 1989

Result:

Special costs orders made
(1) The limit in Item 13 of relevant cost scales be removed
(2) Bullock order made

Representation:

Counsel:

Plaintiffs:     Ms J Pinnington
First Defendant             :     No appearance
Second Defendant         :     Mr P Sheavyn

Solicitors:

Plaintiffs:     Lawton Gillon
First Defendant             :     Not applicable
Second Defendant         :     Talbot & Olivier

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

Bullock v The London General Omnibus Company & Ors [1907] 1 KB 264
Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400
Fennell v Supervision and Engineering Services Holdings Pty Ltd & Santos Ltd (1988) 47 SASR 6
Goldrange Pty Ltd v Stewart & Ors [2002] WADC 230
Gould & Anor v Vaggelas & Ors (1983-1985) 157 CLR 215
Lewandowski & Ors v Lovell, unreported; FCt SCt of WA; Library No 960310; 14 June 1996
McConnell v Nationwide News Pty Ltd & Anor, unreported; SCt of WA; Library No. 920670; 10 December 1992
Reid v Campbell Wallis Moule & Co Pty Ltd [1990] VR 859
Schmidt v Gilmour (1988) WAR 219
Snowtop Mushrooms Pty Ltd v Powley & Anor FCt SCt of WA; Library No 4501; 14 May 1982
Verdell Pty Ltd v F & G Nominees Pty Ltd & Anor; [2002] WASC 58

Case(s) also cited:

CAI Fences Pty Ltd v A Ravi Builders Pty Ltd & Anor, unreported; SCt of WA; Library No 8740; 26 February 1991
Cole v Western Australian Coastal Shipping Commission, unreported; DCt of WA; Library No 3248; 7 June 1991
Collins v Westralian Sands Limited, unreported; FCt SCt of WA; Library No 930171; 31 March 1993
Crisp v Mossensons, unreported; SCt of WA; Library No 970302; 18 June 1997
Featherstone (by his next friend Angela Featherstone) v Westar Engineering Pty Ltd & Ors [1999] WADC 139
Halligan v Lawson (1993) SR (WA) 166
Morris v Zanke (1997) 18 WAR 260
Retawil Pty Ltd v Olivetti Pty Ltd, unreported; SCt of WA; Library No 8836; 26 April 1991
Sosa v Carter [1978] WAR 123
Steeden v Walden [1910] 2 Ch 393
Tenbohmer v Eden (1992) 6 WAR 366

O'BRIEN DCJ: In February 1987, Faye Susanne Kimm Mickelberg ("the plaintiff") took action for negligence and breach of statutory duty against Aerodata Holdings Limited ("Aerodata") and Agricultural & General Aviation Pty Ltd ("AGA").
The plaintiff's husband was killed in an aircraft accident on 27 February 1986. The deceased was employed by Aerodata as its chief pilot. AGA was a company engaged to service the aircraft, which was leased by Aerodata.
On 12 December 2000, after trial in October and November 2000, I dismissed the plaintiff's claim against Aerodata and AGA. I ordered that the plaintiff pay the costs of Aerodata and AGA to be taxed.
The plaintiff appealed to the Full Court against my decision. At the hearing of the appeal the plaintiff withdrew her appeal against Aerodata and it was dismissed.
On 10 April 2002 the Full Court gave judgment in the plaintiff's favour against AGA and ordered that the plaintiff be entitled to an amount equal to 45 per cent of the damages suffered by the plaintiff due to the deceased's contributory negligence. The Full Court also ordered that the matter be remitted to me for an assessment of damages, for the making of appropriate orders for costs and generally.
I assessed damages in the sum of $293,560 being 45 per cent of the total damages which would have been awarded but for the deceased's contributory negligence. I also made certain orders as to costs including that AGA pay the plaintiff's costs to be taxed, including all costs reserved and that there be liberty to apply as to costs. This decision was delivered on 25 March 2003.
By Chambers Summons of unknown date in July 2003, the plaintiff sought certain orders in regard to costs.
The orders sought are as follows:
1.The taxation of the [plaintiff's] costs to be paid by [AGA], be done on the basis that:
1.1the limit at item 13 of the Schedule of the Supreme Court (Contentious Business) Determination 2002 be removed;
1.2the limit at item 13 of the Schedule of the Supreme Court (Contentious Business) Determination 1999 be removed and item 14(a) be allowed in full;
1.3the limit at item 13 and at item 10(a) of the Schedule of the Supreme Court (Contentious Business) Determination 1996 be removed;
1.4the limit at item 13 of the Supreme Court Costs Scale 1991 Determination that applied from the period from 1 April 1991 to 31 January 1997 be removed;
1.5the limit at item 13 of the Supreme Court Costs Scale 1989 that applied from the period from 6 October 1989 to 31 March 1991 be removed ;
1.6the value of the subject matter of the application be set at $733,899.00.
2.A certificate be granted for delivery of interrogatories.
3.A direction allowing for instructing solicitor attending trial.
4.A direction allowing for the costs of three expert witnesses to give evidence, attend trial and assist counsel.
5.[AGA] do pay to the [plaintiff] [Aerodata's] taxed costs of the action.
6.The cost of this application be paid by [AGA].

SPECIAL COSTS ORDER

The plaintiff seeks special costs orders pursuant to o 66 r 12(1).
Order 66 r 12(1) states as follows:
"Where the court is of the opinion that a special Order as to costs should be made by reason of the unusual complexity or importance of the case or for any other good or sufficient reason the Court may make an order that any particular allowances in any relevant scale be raised or a limit be removed, and in giving such direction the Court may fix a limit within which the taxing officer may allow such costs."
Four costs scales apply to an assessment of costs from 13 December 1985 until 2002. They are set out in the orders sought as outlined above.

The application of Order 66 Rule 51

Counsel for Aerodata submitted that the plaintiff is in breach of the so‑called 30 day rule (o 66 r 51). Although he did not object to an application for leave to extend the period pursuant to o 3 r 5 being made from the bar table, he submitted that leave ought not be granted to extend the period of time within to make an application for the orders sought in the chambers summons, as the time had come to put an end to the litigation.
After the Full Court's decision, Aerodata applied to the High Court for special leave to appeal against its decision. I am not certain of the chronology of those proceedings. However, I note that there is a draft notice of appeal to the High Court dated 5 June 2002 on the court file. Damages against Aerodata were assessed and subsequently awarded on 25 March 2003. It was in July 2003 that the chamber summons for the orders under present consideration was filed.
In my view, it is appropriate for the trial Judge to make the determination as to the issues relevant to the present application. Not all material relevant to that determination would have been before the Full Court. The most appropriate time to make the present application would have been within 30 days of the Full Court delivering its reasons. The issues could then have been argued when I delivered my reasons as to the quantum of damages. There was the intervening application by Aerodata to the High Court for special leave to appeal, which complicated the issue. I cannot see that Aerodata would suffer prejudice in so far as the application for the orders sought for the removal of item 13 is concerned.
AGA's counsel referred to the "perfected" order that the plaintiff pay Aerodata's costs which was made on 12 December 2000. Counsel referred to the decisions of Lewandowski & Ors v Lovell, unreported; FCt SCt of WA; Library No 960310; 14 June 1996; and Snowtop Mushrooms Pty Ltd v Powley & Anor FCt SCt of WA; Library No 4501; 14 May 1982. Whilst I accept the principles outlined in those cases, in this case, the issue of a Bullock order did not and could not arise unless and until the Full Court upheld the plaintiff's appeal against one of the defendants.
In my view, as the Full Court was considering an appeal against my decision dismissing the plaintiff's claim against Aerodata, the issue of a Bullock order did not naturally arise for consideration. The plaintiff's counsel submitted from the bar table that a Bullock Order was under active consideration by the plaintiff's solicitors and discussed either with the Court and/or AGA's solicitors but she was unable to shed any light on why an application for that order was not made earlier other than it was not an oversight. Aerodata's counsel was not able to assist as his firm had been instructed to act in the meantime. He said that he was unfamiliar with the progress of the case. Indeed, he had not prepared submissions in relation to the merits or otherwise of making a Bullock order and conceded that he was not in a position to argue the matter.
As to the application for a Bullock order, although it would have been preferable to make that application as soon as practicable after the Full Court's decision and certainly within the 30 day time limit, I am prepared to grant leave for an extension of time within which to make application for that order. The case was commenced in 1987 and has had a protracted history. I am not in a position to make a judgment as to where the fault, if any, for that lies. The parties agreed that I should proceed to assess damages but stay execution pending the outcome of the special leave application. The court file reveals there to be an (amended) Notice of Motion to this effect filed on 11 November 2002. In all the circumstances, I am of the view that the plaintiff should be given some latitude. In my view, the granting of an extension of time does not prejudice AGA. Accordingly, I extend the time to make application for the orders presently sought.

The removal of the limit in item 13

Item 13 of the relevant scales relates to the limit on the costs of getting up for trial.
During the course of submissions, counsel agreed that the following special costs orders were not required:
(a)item 14(a) in the Schedule of the Supreme Court (Contentious Business) Determination 1999 be allowed in full;
(b)item 10(a) in the Schedule of the Supreme Court (Contentious Business) Determination 1999 be allowed;
(c)there be a direction to allow costs for an instructing solicitor to attend trial (covered by item 14(e));
(d)there be a direction allowing for the costs of expert witnesses to give evidence.
I therefore make no special order as to those matters.
Counsel for AGA does not object that there be a direction that AGA pay the costs of the three expert witnesses attending trial and assisting counsel. Accordingly, I am prepared to make that order.
The plaintiff is not relying on the complexity or importance of the case in support of the application to remove item 13 of the relevant cost scales. In essence, the plaintiff submits that the volume of work involved in getting the case up for trial constitutes a "good or sufficient reason" for the relevant limit to be removed. The plaintiff's solicitors have represented her since the commencement of proceedings in February 1987. The solicitor with the present conduct of the matter ("the solicitor") swore an affidavit on 12 August 2003 in support of the orders sought. Annexed to the solicitor's affidavit were the relevant billing worksheets, invoices, a schedule of the breakdown of hours spent getting up in each cost determination scale from 1985 to date and a draft bill of costs showing the plaintiff's true costs and the costs that would be allowed under each cost determination scale.
The plaintiff submits that factors which justify the time spent in getting up the case include the necessity to examine and consider the impact on the plaintiff's claim of certain Acts and Regulations as set out in par 8 of the solicitor's affidavit. These include the Fatal Accidents Act 1959, The Air Navigation Act 1920, The Air Navigation Regulations 1986, The Air Navigation Orders, The Law Reform (Contributory Negligence and Tort Fees as Contribution) Act 1947, The Coroners Act 1996, The Evidence Act 1906, The Occupational Health and The Safety & Welfare Act 1984. Further, it was necessary to ascertain whether the District Court of Western Australia had jurisdiction to hear a matter involving a breach of Commonwealth law (the cross vesting jurisdiction) and to consider Aerodata's company operations manual and the flight manual to ascertain the respective duties and responsibilities of Aerodata, AGA and the deceased.
The plaintiff's solicitor submits that areas of law as outlined in par 8(2) of her affidavit needed to be considered and researched. Further, a familiarity with standard flying practices and procedures was required including methods of calculating fuel on board a plane, the use of maintenance releases, the quantity of fuel required for a specified flight and the amount required to be held in reserve.
The plaintiff also submits that a lack of evidence as outlined in par 9.1 of the solicitor's affidavit; issues relating to the onus of proof as outlined in par 9.2; and the preparation of a detailed chronology impacted on the volume of work getting the case up for trial. These issues seem to me to be an intrinsic part of getting the plaintiff's case up for trial and were not of undue complexity.
The accident was the subject of a three‑day coronial inquest in July 1986. In par 10 of the solicitor's affidavit, she deposes that it was essential to spend time perusing the transcript of the inquest in detail together with the relevant witness statements. I agree with this submission.
In par 11 of her affidavit, the solicitor outlines the factors impacting on the assessment of damages. In the heading "The Proceedings" in par 12, the solicitor outlines the progress of the proceedings. Suffice to say that despite the chronology of proceedings outlined in par 12, it is my view that this matter could have been listed for trial well within 13 years.
The plaintiff submits that the combination of factors outlined in the solicitor's affidavit constitutes good or sufficient reason why the limit in item 13 of the relevant cost scales should be removed.

Order 66 Rule 12(1): the law

Whether or not the court should order that item 13 be removed is a question for judgment in every case: Schmidt v Gilmour (1988) WAR 219 at 220. The discretion as to whether good or sufficient reason has been shown is not to be exercised on a finding that there is a degree of inadequacy in the scale. That would be inconsistent with the policy of the scale: Schmidt (supra) at 220; Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 at 404.
The issue is whether the costs have been reasonably and properly incurred and whether the difference between the costs incurred and the scale is one of such consequence that the injustice of the situation requires a special order: McConnell v Nationwide News Pty Ltd & Anor, unreported; SCt of WA; Library No. 920670; 10 December 1992.
It is a matter for the trial judge's discretion to determine as a matter of judgement whether, on the face of it, the amount of work done appears to have been reasonably done so as to constitute good and sufficient reason for making that order. The judge is entitled to draw on her own experience, the impression gained during the course of litigation and her appreciation of the issues which have been involved, in making that judgement: Esther Investments (supra) at 404.
The simple consideration of the amount of work reasonably required in carrying out the litigation to its conclusion may, of itself, constitute a good and sufficient reason to depart from the scale. The Court must make at least a preliminary or provisional judgement as to the amount of work done, whether it has been reasonably undertaken and whether it has been reasonably performed, bearing in mind the basic proposition that the successful party to litigation is ordinarily entitled to an order for costs in such a form as to enable the recovery of those costs which have been reasonably and properly incurred in conducting the litigation: Lewindowski & Ors v Lovell, (supra) per Murray J.
The relevant principles are exhaustively set out in Wheeler J's decision in Verdell Pty Ltd v F & G Nominees Pty Ltd & Anor; [2002] WASC 58 (s 2). I have outlined some of those principles above.
After perusing the annexures to the solicitor's affidavit, it is clear that the plaintiff's solicitors have kept a meticulous record of all costs incurred. It is not necessary for the trial judge to assess the reasonableness of each item charged nor the reasonableness of any particular areas of getting the case up for trial, for example, what is reasonable in researching the relevant law.
Actions in negligence and for breach of statutory duty relating to aircraft accidents are relatively rare and involve factual and legal issues not commonly traversed in litigation. In this case, it was essential for all parties to be familiar with the relevant legislation and regulations relating to the duties and responsibilities of chief pilots; requirements as to flight and maintenance records; flight and maintenance procedures including assessment of fuel requirements. AGA does not allege that the plaintiff has been unduly tardy in bringing the matter to trial. I have already made the observation that in my view the matter could have been listed for trial much earlier than it was but I am unable to attribute fault to any party.
To some extent, the time between the commencement of the action and trial must have impacted on the amount of time required in getting up. This is a relevant matter to consider.
I note in annexure JP4 to the solicitor's affidavit that the actual costs incurred amount to $140,041.77 whereas the amount allowable under the relevant scales is $110,899.27.
In all of the circumstances, applying the relevant principles and after considering the solicitor's affidavit and its annexures, I am of the view that the limit in item 13 should be removed from the relevant cost scales as they apply to the plaintiff's costs in this action. The parties were not able to agree whether a specific order is required to cover each relevant costs scale or whether a blanket order removing the item 13 limit from the relevant scales would suffice. In the end result, I make a blanket order but it is my intention that the item 13 limit be removed from all of the cost scales which apply to this action.

The value of the subject matter of the application

The plaintiff submits that for the purpose of assessing getting up for the period up to 31 January 1997 that the value of the subject matter of the application be set at the total amount of damages that would have been awarded but for the deceased's contributory negligence. The total damages were assessed in the sum of $733,899. Taking into account the deduction for the deceased's contributory negligence, the actual amount of damages awarded was $293,560.

Counsel for AGA submits that a certificate is not required but if it is, then the relevant amount should be the amount of damages actually awarded to the plaintiff and entitled to be received by her, that is, $293,560. The relevant scale is the Supreme Court Costs Scale 1991 Determination. Item 13 provides for a specified amount for the first $25,000 of the value of the subject matter of the action, and 2 per cent for the balance thereof.
Despite counsel for AGA's submission that he had never seen a court determine the subject matter of the claim to be the total amount of damages, rather than the amount after deduction for contributory negligence, I have been referred to one example of this occurring: Goldrange Pty Ltd v Stewart & Ors [2002] WADC 230. This was a case where the plaintiff's damages had been reduced by its contributory negligence.
Order 66 r 20(2) requires the Court to fix the value of the subject matter for determining the basis of the calculation of costs (before 1 February 1997). A special costs order pursuant to o 66 r 12(1) is not required.
This action was fought on the basis of the total amount of damages (unliquidated). In my view, the subject matter of the action should be determined at the full amount of assessed damages, that is, $733,899.00.

Bullock order

The plaintiff seeks an order that AGA pay Aerodata's taxed costs of the action to the plaintiff. Solicitors for Aerodata. They had informed the plaintiff’s solicitors by facsimile dated 20 October 2003, that they intended to appear but did not propose to make any submission and would neither consent or oppose the application. However, there was no appearance for Aerodata and no explanation was forthcoming.

The law relating to Bullock Orders

In Gould & Anor v Vaggelas & Ors (1983-1985) 157 CLR 215 there was a difference of opinion in the High Court as to the grounds upon which a Bullock Order might be justified.
Gibbs CJ (at 229) was of the opinion that:
"The mere fact that the joinder of two defendants was reasonable does not mean the unsuccessful defendant should be ordered to pay the costs of the successful defendant. It is also a precondition that the conduct of the unsuccessful defendant has been such as to make it fair to impose some liability on it for the costs of the successful defendant."
Brennan J (at 260) was of the same view.
The other members of the Court (Murphy and Wilson JJ) held (at 247) that:
"Such an order may be made where the costs in question have been reasonably and properly incurred by the plaintiff as between him and the unsuccessful defendant."
I have reviewed the authorities referred to by counsel: Bullock v The London General Omnibus Company & Ors [1907] 1 KB 264; Fennell v Supervision and Engineering Services Holdings Pty Ltd& Santos Ltd (1988) 47 SASR 6; and Reid v Campbell Wallis Moule & Co Pty Ltd [1990] VR 859.
Whilst there are certain common principles relevant to the discretion whether or not to make a Bullock Order, a preference for either the narrow and the broader tests outlined in Gould v Vaggelas (supra), has not yet emerged from the authorities.
In this case, the plaintiff alleged negligence and breach of statutory duty against Aerodata and AGA. Aerodata was the deceased's employer and AGA was the company which serviced the aircraft. Essentially the plaintiff alleged that Aerodata was negligent in providing an aircraft which had a faulty fuel gauge and by issuing a maintenance release which would not have been issued when the fuel gauge remained faulty.
At trial, the plaintiff's claim was dismissed against both Aerodata and AGA because I was not satisfied that the issuing of the maintenance release by AGA, through its employee Mr Truscott (the chief engineer), was negligent. Further, even if it was negligent, in my view, it did not cause or contribute to the aircraft crashing. The claim against Aerodata was not dismissed on any other ground.
In her affidavit, the solicitor deposes that in order to reduce the risk as to costs, the plaintiff did not proceed with her appeal against Aerodata. No doubt on the basis of the legal advice, the plaintiff took the view that if the appeal succeeded, she would not recover more damages from a joint judgment against both Aerodata and AGA than from a judgment simply against AGA.
The appeal against my decision dismissing the plaintiff's claim against AGA was upheld. Since the appeal against Aerodata was dismissed, my original costs order that the plaintiff pay Aerodata's costs of the action to be taxed remained extant.
The solicitor deposes that:
"the same essential facts relevant to negligence supported the claim against both [Aerodata and AGA] in the action. The claims against them were, in the real sense interdependent. The cause of action against Aerodata was the same as that against AGA."
Further, the solicitor deposes that:
"AGA denied negligence and in particular denied that maintenance release 76866 was relevant. It asserted that Truscott had asked the deceased to verify that all the faults in the plane had been rectified. This claim was rejected by the trial judge. Such conduct made it reasonable for the applicants to join Aerodata."
An issue for determination is whether the joinder of Aerodata as a defendant in the District Court action was reasonable.
The particulars of negligence included claims that Aerodata breached its duty of care as the deceased's employer to ensure that the aircraft was in serviceable condition and that there was sufficient fuel in the aircraft; failed to employ competent contractors to properly maintain and repair the aircraft; failed to have a system in place to ensure proper maintenance releases were issued with certain information; and failed to warn the deceased not to fly if the aircraft was un-airworthy or defective. In the alternative, the plaintiff alleged that the deceased's death was caused by the negligence of AGA. The plaintiff's claim against AGA related essentially to the issue of the maintenance release which, in effect, certified the aircraft was in serviceable condition when it was not.
The breach of statutory duty alleged against Aerodata related to its failure to ensure that the aircraft was safe to operate and that it had sufficient fuel for the intended flight. The breach of statutory duty claimed against AGA related to the breach of its duty not to sign a maintenance release relating to the aircraft if it considered that the aircraft was in a damaged condition or defective and that it considered that the defect was major and not a permissible serviceability.
It is not to the point that for reasons of costs (essentially a tactical decision) that the plaintiff decided to discontinue her appeal against the decision as it concerned Aerodata. The decision was made in the light of my findings of fact which, as I understand the position, were not challenged by AGA at the appeal. The reasonableness or otherwise of the decision to proceed against both defendants must be determined as at the pre-trial stage.
In my view, it was reasonable for the plaintiff to join Aerodata and AGA in the action. This is certainly the case if the "broader" test of Murphy and Wilson JJ in Gould v Vaggelas (supra) is applied. In this case, even if the narrower test of Gibbs CJ and Brennan J is applied, it is my view that it is fair to impose costs liability on AGA as the unsuccessful defendant.
The issue of the maintenance release was relevant in considering the claim against both defendants. I agree that the issues in both claims were inter-dependent. The cause of the accident was the aircraft running out of fuel. The plaintiff was not to know which or whether both of the defendants were responsible. The issue of the maintenance release by AGA's Mr Truscott, impacted, inter alia, on whether Aerodata had engaged competent contractors to maintain and repair the aircraft. It was a critical part of the maintenance procedure and impacted on Aerodata's duty to provide a safe aircraft. A prudent plaintiff had no choice but to join both defendants in the action.
I would order that AGA pay to the plaintiff Aerodata's taxed costs.

Costs of the present application

The plaintiff should have brought her application for a special costs order within 30 days of the decision of the Full Court. Notwithstanding I granted the plaintiff leave to apply out of time, had the application been made at the appropriate time, it could have been argued during submissions as to quantum of damages or when I delivered my reasons for quantum.
Since then AGA has instructed new solicitors who have had to familiarise themselves with voluminous materials. In those circumstances, I order that the plaintiff pay AGA's costs of this application.

Summary of Orders

In summary, for the reasons outlined above, I make the following orders:
1.That the plaintiff do have leave to apply out of time for a special costs order.
2.That the limit in item 13 of the relevant costs scales applicable to this action be removed.
3.That AGA do pay the plaintiff's costs of three expert witnesses attending trial to assist counsel.
4.That the subject matter of the action be $733,899.00.
5.That AGA do pay to the plaintiff Aerodata's taxed costs of this action
6.That the plaintiff do pay AGA's costs of this application.
7.That all costs be taxed.