O'Reilly v Ts & B Retail Systems Pty Ltd
[2010] VSCA 47
•18 March 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 3882 of 2008
| CHRISTOPHER PAUL O'REILLY | |
| Appellant | |
| v | |
| TS & B RETAIL SYSTEMS PTY LTD | Respondent |
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JUDGES: | MANDIE and BONGIORNO JJA, HANSEN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 March 2010 | |
DATE OF JUDGMENT: | 18 March 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 47 | |
JUDGMENT APPEALED FROM: | O’Reilly v TS & B Retail Systems (Ruling) (Unreported, County Court of Victoria, Judge Kennedy, 23 October 2008) | |
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COSTS – Indemnity costs sought on basis of party’s default on discovery – No allegation of misconduct – Principles applicable – Indemnity costs refused – Calderbank letter – Reasonableness of offeree’s conduct in refusing offer – Conduct unreasonable – Order for party/party costs from date of expiry of Calderbank offer – Indemnity costs refused – No error in judge’s exercise of discretion – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J H Shaw | Mason Sier Turnbull |
| For the Respondent | Mr D G Collins SC | Madgwicks |
MANDIE JA:
I agree with Bongiorno JA.
BONGIORNO JA:
This appeal concerns a ruling as to costs following a trial before her Honour Judge Kennedy, sitting alone, in the County Court. The trial was of a claim for damages by a former employee against his employer for breach of his employment contract – specifically for its failure to honour that contract in respect of his entitlement to equity participation in its business (including loss of dividend consequent upon that failure) and its failure to pay him a ‘performance bonus’. As at the date of trial, 26 May 2008, the plaintiff’s claim was quantified at about $284,000.
The plaintiff succeeded on his claim concerning shares in his employer and in respect of lost dividend on those shares, but only to the extent of $83,372.00 plus interest of $16,748.00. He abandoned his claim for the performance bonus before the end of the trial.
There were complications on the issue of costs. The plaintiff sought his costs from 3 August 2007 on an indemnity basis, his contention being that the defendant had been guilty of non‑compliance with a number of interlocutory orders relating to discovery. As against this claim the defendant sought to rely upon two Calderbank letters written on 16 and 20 May respectively. The first letter offered to settle the plaintiff’s claim for $250,000 inclusive of costs; the second for $320,000 on the same basis. The defendant also (perhaps in the alternative) sought an order that it be paid 30% of its costs by the plaintiff because the plaintiff abandoned some of his claims before the trial concluded.
Although the trial commenced on 26 May 2008 and ran for some days, due to the illness of counsel it had to be adjourned part-heard and was not completed until 3 September. Judge Kennedy delivered her judgment on 3 October. The argument on the costs issues was heard on 17 October and occupied almost a full day. It
generated 105 pages of transcript. Her Honour delivered her costs ruling, the subject of this appeal on 23 October 2008.
The Trial Judge’s Ruling on Costs
By that ruling her Honour ordered the defendant to pay the plaintiff’s costs, including reserved costs, up to 19 May 2008 on a party/party basis to be taxed on County Court Scale D. Those costs included the costs of and incidental to a summons filed on 2 May 2008 by the plaintiff. Her Honour further ordered the plaintiff to pay the defendant’s costs after 19 May 2008, also on a party/party basis, on Scale D, but excluding costs thrown away by reason of an adjournment on 3 June 2008 and costs reserved on 15 August 2008. Her Honour added various ancillary orders to those costs orders as to certification for counsel which are not the subject of any challenge in this Court.
The parties filed extensive submissions in the County Court in support of their respective cases on costs. The plaintiff’s argument, which was not signed by counsel, occupied 27 pages. It sought the whole of the plaintiff’s costs against the defendant on an indemnity basis, although on the hearing of the application, senior counsel for the plaintiff confined his claim for indemnity costs to those incurred after 3 August 2007, a date chosen as appropriate because it was said to be the beginning of the defendant’s allegedly obstructive behaviour with respect to discovery.
The plaintiff’s submission referred to some 13 affidavits, their exhibits and other documents filed in respect of the trial itself and another affidavit and a chronology prepared solely for the costs application. The written submission was almost exclusively concerned with the plaintiff’s application for indemnity costs and why they should be awarded in his favour. It analysed the interlocutory history of the case in considerable detail in over 100 paragraphs and concluded that because the defendant’s conduct in relation to discovery and other interlocutory matters had ‘prejudiced the plaintiff’s case and the plaintiff’s right to a fair hearing’ it was appropriate that the defendant pay the plaintiff’s costs on an indemnity basis.
Possibly because both written submissions appear to have been prepared simultaneously, the defendant’s submission did not address the plaintiff’s application for indemnity costs in terms. Rather it made its own case for indemnity costs against the plaintiff after the date of the two Calderbank letters upon which it relied and put a further case for the costs of issues raised, but not eventually pursued, by the plaintiff. It also referred to eight occasions on which costs were reserved on interlocutory applications and contended that those costs should be dealt with by reference to whether they concerned matters which ultimately had a bearing on the outcome of the case.
Of particular significance in the defendant’s written submission was a reference to the amount at which the plaintiff’s party/party costs would have been assessed at the date of the first Calderbank letter, 16 May 2008. The submission said:
Whilst this can be difficult to estimate it would appear that the party/party costs incurred by the plaintiff ten days prior to trial would be in the vicinity of $50,000-$60,000.
The defendant contended that, accordingly, the amount recovered by the plaintiff by judgment (say, $160,000) was significantly less than either of the two Calderbank offers made some days prior to trial.
The factual situation with respect to the Calderbank letters was that on Friday 16 May the defendant’s solicitors wrote to the plaintiff’s solicitors in the conventional form of a Calderbank letter offering the plaintiff $250,000 inclusive of costs, disbursements and GST in full settlement of his claim. The letter was received by the plaintiff’s solicitor, Mr Cody, at 2.58 pm that day. It said that the offer remained open for acceptance until 5.00 pm on the following Monday, 19 May. It also asserted that the amount offered equated to the total of the plaintiff’s shareholding claim and dividend claim including interest, together with an amount of $117,471 for costs. This assessment valued the plaintiff’s claim at approximately $132,500 – about $32,500 more than he actually achieved by judgment.
By letter faxed on Monday, 19 May at 11.43 am the plaintiff’s solicitors rejected the defendant’s offer. They made a counter-offer of $320,000 inclusive of costs which was said to represent the same amount for the plaintiff’s claim as the defendant’s solicitor had allowed in her offer, together with 75.45 per cent of the plaintiff’s costs assessed on an indemnity basis. No reference was made to what the plaintiff’s solicitor thought his party/party costs might have been. This offer was said to be open until 5.00 pm the next day, 20 May.
But that was not all the plaintiff’s solicitor’s letter said. It was of some six pages, tendentious in tenor and canvassed, in detail, many matters, some of which were relevant to the plaintiff’s case and some of which related only to alleged misconduct of the defendant. It asserted that:
As (the defendant) chose to deliberately mislead the Court and the plaintiff, the real expectation is that the defence of the defendant will be struck out on 26 May 2008, and indemnity costs awarded. This would entitle our client to $247,905.64 damages, on the current valuation, plus $248,474.36 costs to date (total $496,380.00 plus preparation and trial costs).
There was no suggestion in this letter that the plaintiff or his solicitors were embarrassed by a lack of time to consider the defendant’s offer or were unable realistically to estimate the plaintiff’s party/party costs to date had they chosen to do so. The letter appeared to assume that the plaintiff’s entitlement to indemnity costs was beyond question. The rapidity with which the plaintiff’s solicitors replied to the defendant’s solicitor’s letter and put a counter-offer in the terms it did leads to an inescapable inference that the plaintiff was satisfied that he could properly assess the offer and formulate a counter-offer on an ‘all in’ basis, six hours before the defendant’s offer was due to expire!
The next development in this chain of events was a letter from the plaintiff’s solicitor to the defendant’s solicitor sent at 3.16 pm on the same day, 19 May, informing the defendant’s solicitor:
… that I am instructed by my client to withdraw the offer of settlement. I have now discovered that the offer was made having been induced by fraud and no further offers of settlement will be made.
No details of the fraud referred to were included in the letter.
Notwithstanding the withdrawal of the plaintiff’s offer the defendant’s solicitor, by a subsequent fax, purported to accept it. However, having presumably realised the futility of this step, at 5.13 pm the same day she emailed a further Calderbank letter to the solicitors for the plaintiff offering $320,000 inclusive of costs in settlement.
But that was not the end of the matter. The following day, 20 May, the solicitors for the plaintiff wrote yet another Calderbank letter to the solicitors for the defendant: this time containing an offer to accept $395,000 inclusive of costs which they assessed as representing ‘the current shareholder claim of $200,000 plus approximately 76 per cent of the plaintiff’s current indemnity costs’. The letter again made an allegation that the defendant had deliberately misled the Court and that the writer’s expectation was that the defendant’s defence would be struck out on 26 May and indemnity costs awarded. It proffered revised figures on the plaintiff’s claim, assessing it at $300,000 for damages and $255,000 for costs to date. Again, no reference was made to what the plaintiff’s party/party costs might have been.
When the costs issues were argued before Judge Kennedy the whole of the settlement negotiations conducted between the parties by the exchange of letters as set out above were before her Honour. Each of the relevant letters was exhibited to an affidavit of the plaintiff’s solicitor, Mr Cody, which he swore on 15 October. That affidavit, created specifically for use on the costs application, as well as exhibiting those letters and referring to some other matters, contained a table setting out the costs he said the plaintiff had incurred up to 20 May 2008 totalling some $257,000 – of which $214,000 was the total of his firm’s invoices rendered to the plaintiff to that date. No itemisation of that sum was attempted. Nor did the affidavit proffer any calculation or estimate of what the plaintiff’s party/party costs would have been to the same date.
Before Judge Kennedy, senior counsel for the plaintiff conceded that the total figure in Mr Cody’s affidavit represented the plaintiff’s total costs: the amount he might recover if, but only if, indemnity costs were awarded in his favour. Even then the exiguity of Mr Cody’s table was such that the reasonableness of his figures could not be even approximately considered. An order for indemnity costs does not entitle the party in whose favour it is made to recover whatever sums he incurs. Costs incurred unreasonably are not recoverable, nor are those of an unreasonable amount.[1]
[1]Supreme Court (General Civil Procedure) Rules 2005 r 63.30.1.
As with the plaintiff’s written submission, counsel’s argument before Judge Kennedy concentrated on his claim for indemnity costs. However, in contrast to the polemic contained in the plaintiff’s solicitor’s letters of 19 and 20 May 2008 and, to some extent, in the written submission, counsel limited the ground upon which he sought indemnity costs to the effect the failure by the defendant to comply with its discovery obligations had on the conduct of the proceeding. He said: ‘It’s not put any higher than that.’ He eschewed any allegation of misconduct against the defendant and, it can be inferred, any allegation of fraud. He also confined the application for indemnity costs to the period after 3 August 2007 – the date upon which Judge Anderson made the first order requiring discovery. In the course of his argument, counsel referred to various of the affidavits including those of Mr Cody concerning discovery issues which were before her Honour and also his affidavit of 15 October 2008.
Senior counsel for the plaintiff’s argument was predicated on the basis that if, and only if, his client received an order for indemnity costs his total recovery would exceed the amount of the first Calderbank offer. There was no issue between the parties by that stage that if he did not receive such an order he would recover less than that offer. In a number of exchanges between counsel and the trial judge the situation was made clear that both plaintiff’s counsel and the trial judge accepted that that was the situation.
Further, in the course of his submissions, counsel for the defendant referred to the figure for party/party costs contained in his written submission. He said:
Well, Your Honour, in my written submission, I think I’ve estimated it at its highest, in my written submission I’ve estimated it as its highest given that this is a week out of trial. If costs were to be assessed on a party/party basis, one would have thought they would be in the vicinity of $60,000. My instructor went through the scale and she came up with a lower figure.
…
The plaintiff has recovered – if we round it up, $100,000 including interest, so unless his party/party costs at that point in time exceed $150,000 it has clearly been beaten by a significant margin.
In the course of his reply, senior counsel for the plaintiff did not join issue with the defendant’s counsel’s estimate of the plaintiff’s party/party costs. Indeed he never mentioned the figure estimated or commented upon it in any way. He confined himself to arguing the plaintiff’s contention that he should receive his costs on the higher basis, thus enabling him to better the first Calderbank offer.
The Judge’s Decision
In the event, Judge Kennedy made the costs orders already referred to. In refusing the plaintiff’s application for indemnity costs her Honour referred to authorities on the question of special costs orders – in particular to the decision of Sheppard J of the Federal Court in Colgate Palmolive Company v Cussons Pty Ltd,[2] and the decision of this Court in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd (No 2).[3]
[2](1993) 46 FCR 225, 228.
[3][2008] VSCA 58, [8].
Her Honour noted that the basis upon which counsel for the plaintiff had sought indemnity costs was non‑compliance by the defendant with various orders for discovery but that he was not ‘… relying on any misconduct’.
Her Honour summarised the chronology of events concerning discovery in some detail. She noted the plaintiff’s various applications for discovery, and the defendant’s defaults in providing what the plaintiff regarded as adequate discovery. Her Honour concluded that the ‘flavour’ of the chronology she had set out suggested that the defendant did not properly comply with its obligations for discovery and that its failure to do so in a timely fashion had added to the costs of the proceeding, particularly as the plaintiff was largely reliant on the defendant for the financial information necessary for the preparation of expert reports. However, in assessing the gravity of the situation, her Honour exonerated the defendant from any deliberate failure to make discovery and noted that in none of the interlocutory orders made was it thought appropriate to order costs against the defendant because of non‑compliance – and certainly not indemnity costs. She also commented that, having regard to the date relevant for the valuation of the defendant’s shares, subsequent material after that date, although relevant, was not critical.
Having made those findings and considered the authorities her Honour refused the orders for indemnity costs.
In this Court, counsel for the plaintiff contested her Honour’s findings and analysis of the considerations she took into account in determining the question of indemnity costs. The findings her Honour made as the basis of her refusing an order for such costs were entirely open on the material before her – remembering that, of necessity, a decision on costs is made in a summary manner. It is neither appropriate nor possible in the context of a costs application to descend to a minute analysis of every interlocutory step taken and every interlocutory order made for the purpose of apportioning ‘blame’. That costs were ‘reserved’ by the judge who heard the interlocutory applications means that that judge decided, in the exercise of his or her discretion, not to order either party to pay the other’s costs, but rather to leave the question to the discretion of the trial judge in due course.
In the circumstances here, where senior counsel has quite properly disavowed misconduct on the defendant’s part, there is no reason why the trial judge should have found the situation to have been such as to warrant a special costs order against the defendant. That she reached the conclusion that she did is in no way remarkable or surprising. Her Honour had, by the time she came to make the costs order, an intimate knowledge of the issues in the case – this is one of the reasons why the discretion as to costs is one which, in the absence of any error in principle or manifest misapprehension of fact, will not be interfered with by an appellate court.[4] Like all discretions of this nature, there is a strong presumption in favour of the correctness of the decision appealed from. The decision should therefore be affirmed unless the Court of Appeal is satisfied that it is clearly wrong.[5]
[4]McAuley v McAuley (1910) 10 CLR 434, 455 (Isaacs J).
[5]Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621, 627; Oldaker v Currington (1987) VR 712, 718 (Murray, McGarvie and Marks JJ) (applying that principle to the exercise of the costs discretion). See also Wightman v Johnston (1995) 2 VR 637, 639 (Phillips JA).
The Calderbank offer
Judge Kennedy considered whether the plaintiff had been unreasonable in rejecting the defendant’s offer of 16 May 2008 in the context of all the other circumstances of the case relevant to costs. She held that he had been unreasonable. In reaching this conclusion her Honour considered the fact that the offer was higher than the amount the plaintiff recovered by judgment; that even as late as it was, its acceptance would have saved considerable costs with respect to the forthcoming trial; that the plaintiff rejected the offer without seeking further time to consider it or take advice; the extent of the compromise offered as compared to the amount eventually recovered; the plaintiff’s prospects of success as he should have assessed them at the time of the offer; the clarity of the offer and the threat of an application for indemnity costs which accompanied it. In doing so, her Honour applied the criteria prescribed by this Court in Hazeldene’s Chicken Farm Pty Ltd v VWA (No 2).[6]
[6](2005) 13 VR 435.
The trial judge rejected arguments by the plaintiff that he was not in possession of sufficient information to assess the offer when it was made. She noted that it was rejected before any inspection had been made of ‘the Bankwest documents’ – documents produced on subpoena by that bank. She might well have added that the plaintiff was apparently able to formulate a counter-offer acceptable to him well within the time set by the defendant for the acceptance or rejection of its offer. Her Honour also considered it relevant that the plaintiff had access, at the relevant time, to an expert (Mr Fettes’) report which cast doubt on the value of his claim. Finally, the judge took into account the assertion by the plaintiff’s solicitors that the plaintiff would be entitled to indemnity costs and found that that assertion was itself unreasonable. On this basis her Honour concluded that the defendant should have its costs from 19 May, although she rejected its claim that those costs be taxed on an indemnity basis – largely because of the defendant’s contribution to the plaintiff’s costs by its defaults with respect to discovery.
In reaching the conclusion that she did her Honour took into account appropriate authority and applied it correctly. There is no error in what she did.
This Appeal
On 5 December 2008 this Court granted leave to the plaintiff pursuant to s 74(2E) of the County Court Act 1958 to appeal those orders as to costs contained in paragraphs 2 and 3 of the trial judge’s orders made on 23 October 2008. Leave was required because each of the orders in these paragraphs related to costs which were in the discretion of the Court.
Pursuant to that leave the plaintiff served a Notice of Appeal containing some ten grounds. The Notice also contained a series of ‘questions of law’ allegedly required to be answered by this Court. There is no requirement in the Supreme Court or County Court Rules which would authorise this addition to a Notice of Appeal which is required to state ‘… specifically and concisely the grounds of complaint …’.[7] This unusual addition does not require separate consideration. All of the issues raised by the parties can be disposed of by reference to the appellant’s grounds of appeal.
[7]See Supreme Court (General Civil Procedure) Rules 2005 r 64.05(1)(b) and County Court Civil Procedure Rules r 64A.03(1).
Ground 1
This ground concerns the Court’s acceptance of trial counsel for the defendant’s estimate of the plaintiff’s party/party costs as at the date of the first Calderbank letter. It complains that the trial judge accepted that estimate ‘from the Bar table’. He contends that she was not entitled to do so.
As has already been demonstrated, by the time counsel for the defendant repeated his estimate of the plaintiff’s party/party costs in the course of oral argument the issue was no longer a live one. It had already been conceded by senior counsel for the plaintiff that unless his client received an order for indemnity costs the amount he recovered by judgment would not exceed the amount offered in the first Calderbank letter. The judge was entitled to act upon that concession so that there was no need for her to consider further what the quantum of the plaintiff’s party/party costs as at the date of the Calderbank letter might have been. This ground fails.
Ground 2
This ground concerns an alleged failure by the trial judge to take into account the existence of the second Calderbank offer when determining whether the defendant was entitled to its costs after the date of the first Calderbank offer. It complains that her Honour took no account of or gave no or insufficient weight to the existence of the second Calderbank offer.
This ground seems to proceed on an implied assumption that because the defendant made a second Calderbank offer, that fact, in some unstated way, negated the effect of the first Calderbank offer. In its written outline, counsel for the appellant merely repeated the ground without argument. He went no further in the course of his oral argument.
Once the plaintiff rejected the first Calderbank offer the die was cast so far as its effect on costs was concerned. The rejection of a further offer neither adds to nor detracts from the effect of the first, at least in this respect. There is nothing in this ground.
Ground 3
This ground merely repeats Ground 1 in a slightly different form. It fails for the same reasons as Ground 1.
Ground 4
This ground alleges that the Court erred in not accepting an affidavit from the solicitor for the plaintiff as to the disbursements incurred by the plaintiff as at 19 May 2008. It refers to a statement made by senior counsel for the plaintiff before the trial judge concerning ‘a two-line affidavit’. The following exchange took place between senior counsel for the plaintiff and the judge towards the end of his submissions:
PLAINTIFF’S COUNSEL: I’m instructed to inform the Court as to this further fact and it may be something in respect of which we – I won’t put it in an equivocal way. It is something which we’ll put in, with the Court’s leave, a two-line affidavit on. And it’s a contemporaneous document – no, I withdraw that. It’s a document which shows a calculation of the legal costs of the plaintiff as at 20 May 2008, which inform the figures which were justifying the plaintiff’s position that it had very substantial recoverable legal costs as at that date.
HER HONOUR: Well, this is on an indemnity costs basis I take it?
PLAINTIFF’S COUNSEL: Yes.
HER HONOUR: Your solicitor has already got an affidavit about what is on an indemnity costs basis. Is this going to assist me particularly? I mean, if you – do you want to say something about this, Mr O’Grady?
DEFENDANT’S COUNSEL: I haven’t even been told about it, Your Honour.
PLAINTIFF’S COUNSEL: All it does is detail the disbursements which the current material doesn’t do. I made the submission to Your Honour earlier that there is a very substantial sum included in that last paragraph of Mr Cody’s affidavit of the 15th which was disbursements. In fact, I’ve inadvertently misled Your Honour because I think I said in my submissions disbursements in excess of $100,000. Well, that’s not correct. It’s in the region of $80,000. But it would be on that point that the affidavit might assist Your Honour if Your Honour took the view that understanding what part of that was disbursements rather than the general proposition being it’s all indemnity costs.
HER HONOUR: Have you shown Mr O’Grady the document?
PLAINTIFF’S COUNSEL: Yes I will show it to him, Your Honour. While Mr O’Grady is considering that, Your Honour, if I might just make the last couple of points I wouldn’t mind making. In connection with the argument about the adjournment …
It appears that during this exchange senior counsel for the plaintiff handed a document to counsel for the defendant. The matter of the affidavit was not referred to again.
There is nothing in the transcript of the hearing before Judge Kennedy to suggest that her Honour rejected the tender of the affidavit referred to. However, that affidavit (whatever it said) was irrelevant, as her Honour’s comment to counsel made clear. By that time, there was no issue between the parties as to whether an order for other than indemnity costs could enable the plaintiff to exceed by judgment the amount offered in the first Calderbank letter. Senior counsel’s continued acceptance of this situation is the only inference open from his failure to respond to the trial judge’s question as to the assistance she would receive from the affidavit, other than as set out above. This ground fails.
Ground 5
This ground concerns a finding by the trial judge that the defendant’s counsel’s estimate of the plaintiff’s party/party costs as at the date of the first Calderbank letter was ‘… not challenged’. It asserts that in making this finding her Honour erred.
Her Honour’s finding that the estimate of costs was not challenged was undoubtedly correct. It was challenged neither in the plaintiff’s written submissions to the trial judge nor in any part of his counsel’s oral argument. The judge’s reference to its not having been challenged simply reinforces her acceptance of the plaintiff’s counsel’s concession concerning his client’s position. This ground fails.
Ground 6
This ground misconstrues the trial judge’s reasons for the costs orders she made. There is no substance in the criticism of her Honour’s consideration of the decisions to which she referred, namely Hazeldene’s Chicken Farm Pty Ltd v VWA (No 2),[8] MT Associates v Aqua‑Max Pty Ltd (No 3),[9] Clarke v ABC[10] or Rosselli v Rosselli(No 2),[11] nor is there any substance in this ground otherwise.
[8](2005) 13 VR 435.
[9][2000] VSC 163.
[10][2001] VSC 274.
[11][2007] VSC 438.
Ground 7
This ground is merely a restatement of Ground 2. It fails for the same reason.
Ground 8
This ground attempts to link the judge’s finding as to the defendant’s defaults on discovery to the reasonableness of the plaintiff’s rejection of the relevant Calderbank offer. The link is not immediately apparent. Her Honour considered the matters relevant to the determination of the reasonableness of the plaintiff’s conduct in rejecting the offer. She applied her finding as to the defendant’s conduct concerning discovery in refusing to award indemnity costs to it in respect of the period after 19 May 2008. This was an appropriate use of that finding. That which appears to be contended for by the plaintiff would not have been. There is no substance in this ground.
Ground 9
This ground canvasses a number of factual findings made by the trial judge. None of those findings were shown to have been not open to her Honour. The ground fails.
Ground 10
For the reasons set out at length above there is no substance in this ground which asserts an error in the exercise of the trial judge’s discretion as to costs. For the reasons set out, principally in [29] and [30] above, no error capable of vitiating her Honour’s discretion as to costs has been demonstrated. This ground fails.
Conclusion
This appeal should be dismissed with costs. As the respondent’s cross‑appeal was only to be pressed in the event of the appellant’s success it should also be dismissed. The appellant should be ordered to pay the respondent’s costs of the cross‑appeal.
HANSEN AJA:
I agree with Bongiorno JA.
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