Netbush Pty Ltd v Fascine Developments Pty Ltd
[2005] WASC 73 (S)
NETBUSH PTY LTD -v- FASCINE DEVELOPMENTS PTY LTD & ORS [2005] WASC 73 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 73 (S) | |
| Case No: | COR:408/2004 | 24 JANUARY 2005 | |
| Coram: | SIMMONDS J | 3/05/05 | |
| 26/05/05 | |||
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Third, fourth and fifth defendants pay 60 per cent of the plaintiff's costs No order as to costs of argument as to costs | ||
| B | |||
| PDF Version |
| Parties: | NETBUSH PTY LTD (ACN 079 680 809) FASCINE DEVELOPMENTS PTY LTD (ACN 009 114 461) WALTER DEVELOPMENTS PTY LTD (ACN 008 703 044) WENDY JOAN BENZIE RUSSELL WALTER ROBERTS RUSMON PTY LTD (ACN 111 976 857) |
Catchwords: | Practice and procedure Costs Application for relief from oppression Plaintiff's application for declaration that issues and allotments of shares invalid and related relief successful Plaintiff's application for winding up of companies unsuccessful Discretion to award relief enlivened on bases of misconduct by company directors who were joined as defendants Costs only sought from specific defendants party to the misconduct Whether defendants who did not participate in proceedings should pay costs Whether proportion of costs should be no greater than the proportion of the defendants against whom they are sought Whether costs should be reduced because of failure to secure winding up orders Liability of director for costs |
Legislation: | Corporations Act 2001 (Cth) Rules of the Supreme Court 1971 (WA) |
Case References: | Commissioner of Australian Federal Police v Razzi (No 2) (1991) 30 FCR 64 Council of the City of Sydney v Woodward (No 2) [2000] NSWCA 348 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 Idacorp Pty Ltd v Freshglen Pty Ltd [2000] QSC 136 National Trustees Executors and Agency Company of Australasia Limited v Federal Commissioner of Taxation (No 2) (1954) 89 CLR 196 Netbush Pty Ltd as Trustee of the Russell Roberts Family Trust v R W Roberts Pty Ltd & Ors [2004] WASC 247 Netbush Pty Ltd v Fascine Developments Pty Ltd & Ors [2005] WASC 73 Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569 South Sydney Council v Royal Botanic Gardens and Domain Trust (No 2) [2000] NSWCA 242 Stone v Glendyc Pty Ltd [2003] WASC 80(S) Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285 Hughes v Western Australian Cricket Association Inc [1986] ATPR 40-748 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 26 MAY 2005 FILE NO/S : COR 408 of 2004 MATTER : Sections 175, 232, 461 and 1324 of the Corporations Act 2001
Fascine Developments Pty Ltd (ACN 009 114 461)
Walter Developments Pty Ltd (ACN 008 703 044)
- Plaintiff
AND
FASCINE DEVELOPMENTS PTY LTD (ACN 009 114 461)
First Defendant
WALTER DEVELOPMENTS PTY LTD (ACN 008 703 044)
Second Defendant
WENDY JOAN BENZIE
Third Defendant
(Page 2)
- RUSSELL WALTER ROBERTS
Fourth Defendant
RUSMON PTY LTD (ACN 111 976 857)
Fifth Defendant
Catchwords:
Practice and procedure - Costs - Application for relief from oppression - Plaintiff's application for declaration that issues and allotments of shares invalid and related relief successful - Plaintiff's application for winding up of companies unsuccessful - Discretion to award relief enlivened on bases of misconduct by company directors who were joined as defendants - Costs only sought from specific defendants party to the misconduct - Whether defendants who did not participate in proceedings should pay costs - Whether proportion of costs should be no greater than the proportion of the defendants against whom they are sought - Whether costs should be reduced because of failure to secure winding up orders - Liability of director for costs
Legislation:
Corporations Act 2001 (Cth)
Rules of the Supreme Court 1971 (WA)
Result:
Third, fourth and fifth defendants pay 60 per cent of the plaintiff's costs
No order as to costs of argument as to costs
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Category: B
Representation:
Counsel:
Plaintiff : Mr K J Mony de Kerloy & Mr S F Meagher
First Defendant : Mr P I Jooste QC & Mr T J Kavenagh
Second Defendant : Mr P I Jooste QC & Mr T J Kavenagh
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Solicitors:
Plaintiff : Mony de Kerloy
First Defendant : Corser & Corser
Second Defendant : Corser & Corser
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Case(s) referred to in judgment(s):
Commissioner of Australian Federal Police v Razzi (No 2) (1991) 30 FCR 64
Council of the City of Sydney v Woodward (No 2) [2000] NSWCA 348
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20
Idacorp Pty Ltd v Freshglen Pty Ltd [2000] QSC 136
National Trustees Executors and Agency Company of Australasia Limited v Federal Commissioner of Taxation (No 2) (1954) 89 CLR 196
Netbush Pty Ltd as Trustee of the Russell Roberts Family Trust v R W Roberts Pty Ltd & Ors [2004] WASC 247
Netbush Pty Ltd v Fascine Developments Pty Ltd & Ors [2005] WASC 73
Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569
South Sydney Council v Royal Botanic Gardens and Domain Trust (No 2) [2000] NSWCA 242
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Stone v Glendyc Pty Ltd [2003] WASC 80(S)
Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285
Case(s) also cited:
Hughes v Western Australian Cricket Association Inc [1986] ATPR 40-748
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- SIMMONDS J:
Introduction
1 This is a supplementary judgment as to the costs of the action, which was brought against a number of defendants. I gave judgment in the action on 3 May 2005: Netbush Pty Ltd v Fascine Developments Pty Ltd & Ors [2005] WASC 73. By that judgment, the plaintiff was successful in securing some but not all of the relief it sought, on some but not all of the bases on which it had sought relief. The relief was primarily in the form of a declaration that certain corporate action, in the form of issues and allotments of shares by the first and second defendants, was of no effect. The plaintiff sought costs only against the third, fourth and fifth defendants. As against those defendants, the plaintiff sought all of its costs.
2 At the delivery of judgment in the action, the defendants against whom costs were sought did not appear, as they had not appeared in the earlier phases of the proceedings. The defendants who did appear, being companies of which the other defendants were either directors or a corporate shareholder the allotment of shares to which had been declared of no effect (and the sole director and shareholder of which was one of those defendant directors), indicated they were opposed to all of the costs being awarded to the plaintiff, or apportioned to those other defendants. To allow all parties to make written submissions as to the costs order that should be made in this case, I gave them leave to lodge such submissions. Submissions were lodged for all of them.
3 In the event, I have concluded, in the exercise of my discretion as to costs under O 66 of the Rules of the Supreme Court 1971 (WA), that the plaintiff should receive only a portion of its costs, and that it is appropriate that the particular defendants against whom it had sought its costs should be ordered to pay that portion.
4 The nature of the discretion in this area has been described in language I would adopt for this purpose from Idacorp Pty Ltd v Freshglen Pty Ltd [2000] QSC 136, at [4], per Muir J as follows:
"That discretion, though unfettered, must be exercised judicially so as to achieve what is fair and just between the parties according to the circumstances of the particular case."
5 Some of the parties have made reference to a number of authorities. As will become apparent, I have found some of those authorities in
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- particular to be useful pointers to matters I should consider in the exercise of my discretion. However, in view of the nature of the discretion I have to exercise here, close analysis and reconciliation of these authorities are not called for: see Council of the City of Sydney v Woodward (No 2) [2000] NSWCA 348, at [8], per Heydon JA, Priestley JA and Meagher JA agreeing.
6 I organise this supplementary judgment as follows. I begin by describing the background to and conclusions in my judgment in this case. Then I deal with each of the issues raised in the submissions as to costs. I conclude with my order as to costs.
Background to and results in my judgment in this case
7 The action was one for winding up and for setting aside issues and allotments of certain classes of shares and rectification of share registers accordingly, and, as an alternative to such setting aside, a permanent injunction preventing the fifth defendant exercising any rights in relation to the allotments of shares of those classes to it. The plaintiff laid the basis for relief in the management of two companies in a family group in which the plaintiff is a shareholder. Those two companies are the first and second defendants. The plaintiff holds its shares as trustee for the four children of the fourth defendant, who appears to be the principal member of the family for the purposes of the businesses in the group. The third and fourth defendants are members of the boards of the first and second defendants while the fifth defendant was the allottee and sole holder of a certain class of shares of each of the first and second defendants. The fourth defendant is also the sole director and shareholder of the fifth defendant.
8 The matters of management of which the plaintiff complained were three.
9 One matter, which, in one form or another, occupied more of the hearing before me than any other matter, was the issue of a new class of shares by each of the first and second defendant companies and their allotment to the fifth defendant, which was seen to be acting for the benefit of the two minor children for whom the plaintiff was trustee. Those issues and allotments I found were targeted at, and would have had a significant effect upon, the relative shareholding positions, and in particular the voting powers, of the plaintiff. I determined that the conduct enlivened the provisions of the Corporations Act 2001 (Cth) for relief for oppression and that the appropriate forms of relief were a declaration that the issues and allotments were invalid, as well as certain
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- consequential relief. The consequential relief was that the share registers of the issuing and allotting companies be rectified accordingly, and that the fifth defendant be restrained by injunction from exercising or purporting to exercise any rights under the shares allotted to it.
10 I also determined that the discretion to award relief under the winding up provisions of the Act had been enlivened by the issues and allotments. However, this was not an appropriate case to order a winding up of the issuing and allotting companies, either under the winding up provisions in the Act, or under its oppression provisions. Nor was it appropriate to grant any other relief (such as an order for the purchase of any of the plaintiff's shares) under the oppression provisions. This was because, in both cases, the other relief I ordered was more appropriate, and the other two matters of management of concern had not been shown to enliven the remedial discretions, and so could not be combined with the issues and allotments.
11 One of the other two matters of management of concern lay in the events that led to the issues and allotments declared invalid, being the refusal of the two companies to register the transfer to the plaintiff of its shareholdings. Those refusals were (in effect) overturned in other proceedings: Netbush Pty Ltd as Trustee of the Russell Roberts Family Trust v R W Roberts Pty Ltd & Ors [2004] WASC 247, per Master Sanderson. Those refusals I found, in the circumstances, were not conduct that engaged either the provisions for relief for oppression or the winding up provisions.
12 The other of the two matters of management of concern that did not engage either of the Act's provisions for relief referred to lay in the approvals by the companies of certain loans to the person whom I have called the principal member of the family for the purposes of the businesses in the group, the fourth defendant.
13 I turn now to the parties' submissions as to costs.
Whether the proportion of costs should be no greater than the proportion of the defendants against whom they are sought
14 As I have indicated, there were five defendants in this action, and the plaintiff sought costs only against three of them. In those circumstances, it was submitted for the first and second defendants, no more than 60 per cent of the plaintiff's costs were allowable.
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15 For the third defendant, a director of the first and second defendants, it was submitted that it was not apparent from the originating process that relief was sought against her or the fourth defendant, a fellow director. However, I note that the relief sought was for management action of which she was a part, as a member of the board who had voted in favour of the action. I also note that the orders sought included orders for costs, while other relief (such as the consequential relief eventually ordered) might have direct implications for the board.
16 The first and second defendants cited a number of authorities to me in relation to their submission. However, those authorities are all to do with matters where a party was successful only on some of the issues it had raised, or only against some of the defendants joined, with others being defendants who could not be fixed with any liability for the conduct complained of. I will return to those authorities. For present purposes, at most they indicate I should consider whether or not the defendants against whom the plaintiff seeks its costs have any responsibility for the conduct that grounded the orders that ultimately resulted from these proceedings.
17 I note in particular Stone v Glendyc Pty Ltd [2003] WASC 80(S), Templeman J, where the plaintiff's oppression action resulted in an injunction against the defendant company restraining it from dealing in property the subject of the dispute, but did not succeed (among other things) in establishing any case that the other parties to the negotiation of the company's dealing in the property had intermeddled in the management of the company to procure the dealing. His Honour made no orders against them where they did not have "any liability for the oppressive conduct" (at [44]). As will become apparent, I do not consider the third to the fifth defendants are in the position of those defendants in that case.
18 The plaintiff here did not seek costs against the first and second defendants, the two companies the shares in which I concluded had not been properly issued and allotted. Rather it sought costs against the third and fourth defendants, who were the directors who voted in favour of the issues and allotments, and the fifth defendant, which was the allottee. The plaintiff's submissions explained this on the basis the plaintiff was a shareholder in each of the first and second defendant companies, and that the bases for claim lay in their management for which the third and fourth defendants were responsible, which, in the respect that actuated the relief awarded, had been for the benefit of the fifth defendant. I agree with those submissions.
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19 The plaintiff's shareholding in the case of the first defendant company was very substantial, and in the case of the second defendant company, particularly when its indirect interests were also considered, not insignificant. The plaintiff's shareholding was held on trust. The shareholdings represented significant trust assets. The successful claim arose out of a matter of management by the two companies' boards whose majorities were made up of the third and fourth defendant directors. The management actions of concern were found to be improperly directed to matters of administration of the trust, a matter to which I will return. The actions taken, issuing and allotting in each case a special class of shares to the fifth defendant, whose sole director and shareholder was the fourth defendant, was meant to protect those in whose interests the fifth defendant was meant to act, being certain beneficiaries under the trust. In those circumstances, I conclude it is not appropriate to order costs against the first and second defendant companies. Equally, I do not consider it appropriate to treat the costs to be awarded against the remaining defendants as appropriately to be scaled down because of that conclusion.
Whether the costs awarded should be reduced because of the plaintiff's failure to secure winding up orders
20 It was submitted for the first and second defendants that the costs otherwise awarded to the plaintiff should be reduced by one-half, to reflect the fact it had succeeded on only one of the two principal heads for relief, which comprised relief for oppression short of winding up, and relief by way of winding up, on which in substance it had relied. The authorities I have previously referred to go directly to these submissions. Similar submissions are made for the third, fourth and fifth defendants.
21 The leading authority on the approach to cases where it is sought to apportion costs on an issue-by-issue basis is Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569, Anderson J, on O 66 r 2(a). There his Honour said this (at 574 - 575):
"In my opinion the approach required by the rules of this Court is that, once it is seen that separate causes of action are involved, and that the plaintiff has succeeded on only one or some, the defendant is prima facie entitled to his costs on the other or others. However, in my experience, this Court will not make such an order as of course. The Court will always look at the realities of the case and attempt to do substantial justice. Thus it may be that, although it is strictly correct to say that different causes of action are involved, there may have been
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- only one contest in substance. This will often be so when all causes of action arise out of the one course of dealings, the one transaction or the same facts. Where that is the situation there will usually be one order for the general costs of the action, moulded as necessary to ensure that, however rough and ready it may be, substantial justice is done: see Godden v Alford [1960] WAR 235 at 237. However, even in such cases it may be shown the successful party has in some relevant way misconducted himself or that the issues or causes of action on which the successful party has failed were unreasonably raised by that party. This would bring into operation different principles."
22 Permanent Building Society was referred to in the context of a partially successful oppression action in Stone (supra), an aspect of the result in which I have already referred to. Those authorities, as well the oppression case of Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20, indicate to me that in this case the apportionment issue should be approached on the basis that there was here only one contest in substance. I note, however, that is not only in such a case that a single order for costs might be made where one party has been partially successful: see Council of the City of Sydney (supra), South Sydney Council v Royal Botanic Gardens and Domain Trust (No 2) [2000] NSWCA 242, Stone and Idacorp (supra).
23 The contest in substance here was over the course of conduct by the first and second defendant companies as members of a family group of companies in the form of dealings engaged in with the fourth defendant, who was actuated by his concerns arising out of the breakdown of his third marriage and the administration of the trust set up for his children, in respect of two of them, the two children of his third marriage. It was my conclusion that only some aspects of that course of conduct enlivened the discretion to award relief under the oppression and winding up provisions. However, understanding those aspects required an understanding of the course of conduct in its context, as the understanding of the basis for the relief finally ordered in Permanent Building Society required an understanding of the Vickers Hadwa transaction and its background.
24 Further, as in Permanent Building Society there was a common core to the legal issues relevant to the contest - in Permanent Building Society the fiduciary duties of directors, in this case the issues of fairness in the conduct of the affairs of the first and second defendant companies which went to the enlivening of the discretions, to award relief for oppression,
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- and to award relief under the winding up provisions, sought to be invoked. In addition, the plaintiff was seeking, through the setting aside of the issue and allotment of shares, or at least an injunction, sufficient relief at least to secure its relative voting power in the first and second defendant companies so that it could endeavour to obtain windings up under the Act, Pt 5.5 or s 461(1)(a) through the exercise of that power, if not winding up relief under s 461(1)(e), (f), (g) and (k) (on grounds going broadly to matters of concern in the conduct of the affairs of the company).
25 Thus, I do not consider this is a case like those of Commissioner of Australian Federal Police v Razzi (No 2) (1991) 30 FCR 64 and National Trustees Executors and Agency Company of Australasia Limited v Federal Commissioner of Taxation (No 2) (1954) 89 CLR 196. In those the Court found it possible to conclude there were clearly separable issues on which to found separate orders that costs follow the event, the more so as to encourage parties to consider carefully what matters they will put in issue (see Razzi, at 69). At the same time, following Permanent Building Society,I do consider it appropriate to recognise in any single costs order that the plaintiff was not successful in making out all of the forms of unfair conduct it relied upon, nor in getting both of the two major forms of relief it sought.
26 Further, I do not consider that it was not a "justifiable course to take" (Stone, at [31]), or matter "unreasonably raised" (Permanent Building Society,at 575), for the plaintiff to raise the course of conduct it did, including not only the issues and allotments, but also the refusals to register the shares of the plaintiff, and the loans. It was not unjustifiable for the plaintiff to seek relief by way of winding up, either under the oppression remedy or under the winding up provisions. Seeking such relief in addition to relief setting aside the special class of shares was justifiable as the class of shares might otherwise have had importance to the administration of the winding up process ordered. Nor it seems to me does O 66 r 1(4) apply in this case, as the third to the fifth defendants were not joined simply in order that all parties interested in the lis be bound by the judgment or order, but in virtue of their roles in the matters of management of concern to the plaintiff, roles which grounded the relief eventually ordered.
27 Nor can I find any "misconduct" (Permanent Building Society at 575) of the plaintiff which should qualify the approach I should take in this matter. There were before me in the action substantial allegations of an improper "stratagem" or project the plaintiff was pursuing for the major children which invalidation of the issues and allotments of the
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- shares would assist, and which a winding up would largely accomplish. Undoubtedly, as I have indicated, the plaintiff was seeking at least to protect its relative shareholding position in the first and second defendant companies with a view to a winding up of them. However, as I indicated in my judgment in this case, I was unable to conclude that those allegations, as to the impropriety of the conduct to that end or the end itself, had been made out.
28 Thus, I am left to mould the appropriate costs order. It seems to me to be appropriate, as I have said, to allow in that order for the fact that the plaintiff did not succeed in showing all three of the matters of management of concern to it, arising out of the dealings between the first and second defendant companies and the fourth defendant as I have indicated, enlivened the bases for relief it invoked. Also as I have said, I should allow for the fact that the plaintiff did not succeed in its claim for winding up relief because it had succeeded in making out its case in respect of only the one matter of management of concern, and because in respect of that matter the other relief I ordered made relief by way of winding up inappropriate. However, the success the plaintiff did enjoy would secure it from what would otherwise have been potentially an insuperable obstacle to pursuing the same end, winding up, through the exercise of its voting power in the two companies. Those windings up I am prepared to consider as its commercial objective. Further, its success was on a ground that also enlivened, even if it was not sufficient for the favourable exercise of, the discretion to award winding up relief: see Fexuto (supra).
29 I also consider it appropriate to take account of the proportion of the argument before me that was directed towards the issues and allotments of shares, considered against their immediate background, of the refusals to register the plaintiff as a member of the first and the second defendants. Those refusals were also put as a separate matter of management of concern, as I have indicated.
30 In those circumstances, I consider the appropriate order to make is to award the plaintiff 60 per cent of its costs. I have considered the submission for the first and second defendants that, as not all defendants participated in these proceedings, the determination of the appropriate proportions might be assigned to the taxing officer: see Seaman [66.2.6]. However, here the defendants who did appear, the first and second defendants, were the companies of which the third and fourth defendants were the majority of the board, and the validity of the allotments and issues of shares in which to the fifth defendant was directly in issue. In
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- those circumstances, I do not consider it would be unjust to treat the defendants who did not participate as content to rely on the efforts of the defendants who did.
31 I must now consider a number of submissions put against ordering any costs, or at least making an order for the payment of costs otherwise than on a deferred basis.
Whether there should be any order against a director who was not concerned in the underlying family dispute
32 It was submitted for the third defendant that her only interest in the family group of companies was as a director and employee of the first and the second defendant companies. She had voted in favour of the resolutions to issue and allot the shares to the fifth defendant because she understood this to be necessary to protect the fourth defendant's minor children from the other children, she had acted on professional advice, she had not fully understood the terms of the shares issued and allotted, and she had no personal interest in the resolution, as the family dispute was not her concern. In those circumstances, she put it that she should not have to bear any part of the plaintiff's costs.
33 I do not agree. As a director she assumed the responsibilities of the office that are well understood in our law. One of these responsibilities is not to join in action, in the form of the issue and allotment of shares, for an improper purpose. The judgment in this case highlights this aspect of the conduct of the boards of the first and second defendants as going to the heart of why that conduct enlivened the oppression and winding up provisions, under the first of which the issues and allotments were declared invalid and consequential relief ordered. If there had been no such orders, that aspect would also have raised for further consideration the basis for the permanent injunction also sought by the plaintiff, which lay in the statutory and the general law duties of directors.
34 A director's good faith (which might rest on professional advice she has received, and include a lack of a complete understanding of the action), and the director's lack of any interest direct or indirect in the subject matter of the action, do not prevent responsibility for such action arising. Action that is "substantially altruistic" is capable of being caught, as Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285, at 293, per Mason J, Deane and Dawson JJ indicate, to which my judgment makes reference.
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Whether there should be any costs that would have an impact on the minor children
35 It was submitted for the fourth and fifth defendants that any costs order against the fifth defendants would penalise the minor children. It was put that the actions of the plaintiff are part of a course of conduct by the major children that is motivated by an intention to unfairly deprive the minor children of their entitlements under the trust. The minor children are already punished by the actions taken so far by the major children, who, as I was reminded, control the board of the plaintiff. In light of those considerations, no costs order should be made against the fifth defendant.
36 I disagree. It is clear that costs orders are made, not to punish an unsuccessful party, but to indemnify a successful party: Idacorp at [8]. I do not see the costs order here, considered as I have explained it, to be other than indemnificatory. Another way of saying this is that I do not see such an order to be a form of unfairness to the minor children. I note that the merits of the claims as to the unfairness of the actions of the major children through the plaintiff, in respect of the project to secure a winding up of each of the first and second defendants, were addressed in my judgment in this case as I have indicated. Whether there are other actions of the major children which created unfairness was not the subject of evidence in these proceedings.
Whether an order as to costs should be made for payment by instalments
37 The first and the second defendants submitted there should be a stay on any costs order for 6 weeks with leave for the defendants to apply to continue that stay within 14 days "after enforceability, such application to be prosecuted with due diligence with a view to payment by reasonable instalments". The basis for this order was not clear to me. No authority was referred to. Nor is it obvious to me why the usual understanding as to costs, that they are meant to indemnify the successful party, who will have already incurred the costs to be indemnified, would not suggest their prompt determination and payment in this case. There is no suggestion of particular hardship here other than that with which I have previously dealt.
Costs order
38 My order as to costs is that the third, fourth and fifth defendants do pay 60 per cent of the plaintiff's costs, to be taxed if not agreed.
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39 In light of the result of the argument as to costs, and as Anderson J did in Permanent Building Society at 581, I will make no order as to the costs of that argument. Each party should pay his, her or its own costs of the argument as to costs.
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