Patelis v Sander (No 4)

[2022] SADC 40

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Interlocutory Application)

PATELIS v SANDER  (No 4)

[2022] SADC 40

Judgment of his Honour Judge Burnett  

31 March 2022

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL RULE: COSTS FOLLOW EVENT - GENERAL PRINCIPLES AND EXERCISE OF DISCRETION

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - INTERLOCUTORY PROCEEDINGS

EVIDENCE - ADMISSIBILITY - EXCLUSIONS: PRIVILEGES - CLIENT LEGAL PRIVILEGE - LOSS OF PRIVILEGE

The respondent brought interlocutory applications:

(1)  for the production of privileged material of the applicant on the basis that privilege had been waived;

(2)  for leave to file an amended defence; and

(3)  for leave to file cross claims against the two interested parties, Tolis & Co and Mr Christian Munt.

The application for the production of privileged material was dismissed on 21 May 2021. The application to file an amended defence was granted after the respondent had produced a fourth draft of his proposed defence. On receipt of that draft the applicant withdrew her opposition to the application.  The application for leave to issue a cross claim against Tolis & Co was granted. The application for leave to issue a cross claim against Mr Munt was refused.

The parties all sought costs in relation to the applications.

Held:

1.      The respondent should pay the applicant’s costs on the standard costs basis in relation to the application for production of privileged material.  The applicant was successful in opposing that application.

2.      That application should be considered separately from the applications to amend the defence and issue cross claims.  The applications were distinct applications and heard at different times and in the case of the applications to issue a cross claim, different parties participated in the hearing of that application.

3. There had been no pleading into relevance by the applicant of any privileged material such that privilege had been waived: Hongkong Bank v Murphy [1993] 2 VR 419 and Southern Equities Corporation Ltd (in liq) v Arthur Andersen & Co (1997) 70 SASR 166 applied.

4.      Costs should be determined by reference to the circumstances existing at the time of the application and not by reference to future possibilities.

5.      There was no conflict between the applicant and Tolis & Co such that the applicant should be denied her costs for any period of time. It was in both of those parties’ interests to oppose the application for production of privileged material.

6. The applicant is entitled to her costs associated with the amendment of the defence up until the delivery of the fourth draft of the proposed defence (at which time the applicant withdrew her opposition to the amendment): Coastal Ecology Protection Group Inc v City of Charles Sturt [2020] SASC 215 applied.

7.      The respondent could not be considered the successful party in an application to amend the defence when that amendment was granted. The respondent had sought and was granted an indulgence.

8.      Mr Munt was wholly successful in opposing the application for leave to issue a cross claim against him. There was no reason why he should be denied his costs.

9. Tolis & Co were entitled to oppose the application for leave to issue a cross claim against it up until the delivery of the fourth draft of the defence (which was incorporated into the cross claim): Coastal Ecology Protection Group Inc v City of Charles Sturt [2020] SASC 215 applied. It was only when that fourth draft was provided that the cross claim was in an acceptable form.

10. Tolis & Co ought to pay the costs of the respondent subsequent to the delivery of the fourth draft of the defence: Raedel & Raedel v Shahin (No 2) [2018] SASC 119 and Hanssen v Commonwealth of Australia & Ors (No 2) [2019] SASC 90 distinguished.

Hongkong Bank v Murphy [1993] 2 VR 419; Southern Equities Corporation Ltd (in liq) v Arthur Andersen & Co (1997) 70 SASR 166; Coastal Ecology Protection Group Inc v City of Charles Sturt [2020] SASC 215, applied.
Raedel & Raedel v Shahin (No 2) [2018] SASC 119; Hanssen v Commonwealth of Australia & Ors (No 2) [2019] SASC 90, distinguished.

Patelis v Sander [2021] SADC 54; Patelis v Sander [2020] SADC 2; Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475; Mann v Carnell [1999] HCA 66; 201 CLR 1; Beasley v Marshall (No 3) (1986) 41 SASR 321, considered.

PATELIS v SANDER  (No 4)
[2022] SADC 40

Civil

Introduction

1. The applicant, the respondent, the first interested party, Tolis & Co (Tolis & Co) and the second interested party, Mr Christian Munt (Mr Munt) all seek costs in relation to applications by the respondent (1) for the production of certain privileged material of the applicant on the basis that privilege had been waived; (2) for leave to file an amended defence; and (3) for leave to file cross claims against Tolis & Co and Mr Munt.

2. On 21 February 2020, the respondent filed an interlocutory application seeking leave to file an amended defence (FDN 33).  In further interlocutory applications dated 1 September 2020 (FDN 46) and 23 December 2020 (FDN 56), the respondent, in substance, sought orders:

   (1)that the applicant produce to the respondent all communications between the applicant and her former solicitors and counsel, Messrs Tolis & Co (Tolis & Co) and Mr Christian Munt (Mr Munt), in the period between 4 December 2012 and 8 August 2018 that relate to the demand made upon the applicant by Nationwide Capital Pty Ltd;

   (2)that leave be granted to file cross claims against Tolis & Co and Mr Munt.

3. The privilege argument dictated the form of the amendment of the defence and the form of the cross claims. The privilege argument therefore preceded the defence and cross claims arguments.

4. In relation to the wavier application, the respondent submitted that by filing an affidavit of Joseph Behar sworn 19 May 2020 (the Behar affidavit) and written submissions in opposition to the application to amend the defence, the applicant had waived privilege.  I heard argument on the waiver application on 17 February 2021.  I delivered judgment on that part of the application on 21 May 2021.[1] I ruled that there had been no waiver of privilege by the filing of the Behar affidavit or the written submissions.

   [1]    Patelis v Sander [2021] SADC 54.

5. I heard argument on the application to file an amended defence and leave to file cross claims against Tolis & Co and Mr Munt on 26 August 2021. On 15 December 2021, I ordered that (1) leave be granted to the respondent to file the amended defence [in the form of its fourth iteration]; (2) leave be granted to the respondent to file a cross claim against Tolis & Co; and (3) the respondent is refused leave to file a cross claim against Mr Munt.

6. I further ordered that costs of both the waiver of privilege application and the application for leave to file an amended defence and leave to file a cross claim be adjourned for argument on 18 February 2021.

7. The applicant has sought costs on a standard costs basis of (1) the application to amend the defence (FDN 33) and (2) the waiver of privilege application (paragraph 3 of FDN 46 and paragraph 1 of FDN 56) and that the hearing held on 17 February 2021 be certified for senior counsel.

8. The respondent in his written submissions sought an order that the applicant and Tolis & Co jointly pay the costs of all applications up to 26 August 2021 and that Tolis & Co pay the costs thereafter on the standard costs basis, fit for counsel. The respondent amended that application in his oral submissions in that he no longer sought costs against Tolis & Co in relation to the privilege argument as Tolis & Co did not participate in that application.

9. Mr Munt sought costs on a standard costs basis in relation to the application by the respondent for leave to file a cross claim against him. Tolis & Co sought the same order.

   Procedural history

10. In my earlier judgments, I set out the substantive claims of the parties in these proceedings. I adopt those reasons for the purposes of this judgment, insofar as they provide background to the costs claim.

11. I set out below the relevant procedural background.

12. The applicant filed her claim and statement of claim on 8 August 2018.

13. The respondent filed his defence to that statement of claim on 4 October 2018. That was the time when any cross claim was required to be filed under the then District Court Rules 2006 (SA).

14. From 30 November 2018, the respondent issued a series of third party claims against the first to fourth third parties in relation to the refusal by those parties to indemnify the respondent against the claim of the applicant.

15. Also on 30 November 2018, the respondent filed a second defence. In that defence, the respondent pleaded at paragraph [27] that any liability was apportionable on the basis that the negligence of Tolis & Co contributed to the alleged loss. The applicant objected to various paragraphs of the second defence, including, relevantly for the purposes of this application, paragraph [27].

16. Ultimately, on 16 January 2020, Judge Bochner (on appeal from a decision of Master Norman) held that the allegations in paragraph [27] were matters of pure speculation and therefore paragraph [27] ought to be struck out.[2]

    [2]    Patelis v Sander [2020] SADC 2 at [37].

17. That ruling was the genesis of the applications for leave to file an amended defence and leave to file cross claims.

18. The interlocutory application (FDN 33) sought leave to file an amended defence in the form of the proposed defence that was exhibited to the affidavit of Mr Sebastian Clarke Hill sworn 21 February 2020 (Draft 1 of the amended defence).  Draft 1 again pleaded at paragraph [27] that any liability was apportionable with the liability of Tolis & Co.  Again, paragraph [27] of Draft 1 was speculative and there were no particulars provided of the alleged advice given by Tolis & Co.  Tolis & Co were then representing the applicant.

19. In opposition to the application to amend the defence, the applicant filed the Behar affidavit and also filed written submissions.

20. On 1 September 2020, the respondent filed a further interlocutory application (FDN 46) in which he sought production of the privileged material and leave to file a cross claim against Tolis & Co and Mr Munt. The cross claim did not independently plead a claim in negligence against Tolis & Co and Mr Munt, but repeated paragraph [27] of the proposed amended defence.

21. On 28 September 2020, the respondent filed an affidavit of Mr Hill in which he annexed a further draft of the proposed amended defence and cross claim (Draft 2). Draft 2 expanded on the plea in paragraph [27] relating to the liability of Tolis & Co (and included Mr Munt for the first time).  This draft contained further detail but was still lacking in particularity about the alleged negligence of Tolis & Co and now Mr Munt. The cross claim again repeated paragraph [27] of the proposed defence.

22. On 23 December 2020, the respondent amended his interlocutory application of 1 September 2020, by filing a further interlocutory application (FDN 56). The application sought the provision of a Kadlunga list but did not alter the substance of what he had earlier sought. The reference to a Kadlunga list was in the circumstances misplaced, but the parties proceeded on the basis that the application was for the production of privileged documents because of the alleged waiver of the applicant.

23. On 8 June 2021 (following the hearing on the waiver of privilege issue), the respondent filed an affidavit of Spiros Andrew Piliouras in which he annexed a third draft of the proposed defence (Draft 3). Draft 3 was not substantially different from the previous draft.

24. The final form of the proposed amended defence was annexed to the affidavit of Mr Piliouras sworn 11 August 2021 and entitled “Third Defence-Revision 2” (Draft 4). The proposed cross claims repeated paragraph [27] of the proposed amended defence which set out the alleged negligence of the solicitors, Tolis & Co and the barrister, Mr Munt.  Draft 4 contained further particulars about the alleged negligence of Tolis & Co and Mr Munt.

25. The applicant did not oppose the application to amend the defence in the form of Draft 4. The first and second interested parties, Tolis & Co and Mr Munt, both opposed the application for leave to file a cross claim against them on two grounds: first, the pleading against them was speculative in that there was not a proper basis for the allegations made against them; and secondly, the application should be refused in the exercise of the Court’s discretion.

    Costs provisions

26. Section 42(1) of the District Court Act 1991 (SA) provides that costs in any proceedings shall be in the discretion of the Court. Uniform Civil Rules 2020 (SA) (UCR) 194 sets out a number of rules and principles relevant to the exercise of that discretion. Relevantly for these applications, UCR 194 provides:

    (1)costs may be awarded in favour of or against a non-party (UCR 194.1(1);

    (2)costs may be awarded on the standard costs basis, solicitor/client basis, indemnity basis or any other basis specified by the Court; (UCR 194.3(1)(a);

    (3)presumptive costs order include that the costs of an amendment are to be paid by the party making the application (UCR 194.4(2) and that subject to sub-rules (2) and (3), the costs of an interlocutory application are costs in the cause (UCR 194.4(5);

    (4)general costs principles which are subject to the presumptive costs rules and the overriding discretion of the Court as to costs (UCR 194.5(1) include as a principle that costs follow the event (UCR 194.5(2));

    (5)in exercising its discretion as to costs, the Court may have regard to any factor it considers relevant (UCR 194.6(1) and may have regard to any unreasonable conduct of a party (UCR 194.6(2)(a) or any breach of a party of the overarching obligations (UCR 194.6(2)(b).

    Applicant’s application for costs

27. The applicant was successful in opposing the application of the respondent (paragraph 3 of the application dated 1 September 2020 and paragraph 1 of the application dated 23 December 2020 - FDN  46 and 56 respectively) to produce privileged material.

28. In the present application, the applicant submits that as she was successful in opposing the application of the respondent for the production of privileged documents, she should be entitled to costs. The applicant therefore submits that costs should follow the event.

29. The respondent opposed the application for costs on a number of bases including that (1) the waiver of privileged material and the amendment application should be considered as part of the same process; (2) the applicant’s opposition was perverse or unreasonable in that the privileged documents could have been produced with no discernible damage to her own claim and in fact could be said to be in her own interests; (3) it was likely that the privilege over the relevant communications will be lost in the future given that the privileged communications (or some of them) have been pleaded into relevance; (4) the filing of the Behar affidavit gave rise to the application for the waiver of privilege and it was reasonable and proper to make that application; and (5) the applicant should not be entitled to costs during the period in which Tolis & Co were acting in conflict of interest.

30. I consider that the waiver of privilege and the amendment applications were two separate applications and should be treated as such for costs purposes. There were separate hearings for the two applications. The result of the waiver application did not necessarily dictate the result of the amendment/leave to issue application. Ultimately, when the applications came on for hearing, the parties were different: the applicant opposed the waiver of privilege application and Tolis & Co and Mr Munt opposed the leave to issue. Even if the applications were treated as the one application, for the reasons that I have expressed below, the applicant would have been entitled to her costs, whichever part of the application they related to, up until 11 August 2021.

31. Secondly, the respondent submitted that the privileged documents could have been produced without any disadvantage or loss to the applicant.  That is a matter for speculation and not a matter on which there is any evidence. I do not consider that it is for this Court to make an assessment as to what is or is not in the best interests of the applicant and how she may wish to proceed with her case. The right to claim privilege over the relevant documents is a substantive legal right and the applicant is, in my view, entitled to take steps to protect that right.

32. Thirdly, the respondent submitted that it was likely that privilege will be lost in the future given that the privileged material has been pleaded into relevance. I do not accept that submission for two reasons: first, the question of waiver must be determined at the time of the application and at that time the applicant has not pleaded into relevance any material and secondly, the pleading into relevance must be by the party who seeks to maintain the privilege. There is imputed waiver of the privilege because the maintaining of the privilege is inconsistent with the pleading of an issue. That was the finding of Smith J in Hongkong Bank v Murphy[3] in which it was held that privilege may be lost by a party’s pleading. Smith J considered whether it would be fair to impute waiver in the circumstances (which was then the test for implied waiver).[4] The Full Court in Southern Equities Corporation Ltd (in liq) v Arthur Andersen & Co[5] followed Hongkong Bank v Murphy and held that:

    What is involved here is implied or imputed waiver of the privilege, the waiver being implied or imputed as a matter of fairness. The principle of implied or imputed waiver has been recognised by the High Court, as having its foundation upon a consideration of whether it could be unfair or misleading to allow the party claiming privilege to pursue a certain course of action while maintaining the claim of privilege.

    [3] [1993] 2 VR 419 at 435-439.

    [4]    See Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 at 481. The High Court in Mann v Carnell [1999] HCA 66; 201 CLR 1 replaced the fairness test for waver with the test whether the relevant conduct was inconsistent with the maintenance of the privilege.

    [5] (1997) 70 SASR 166 at 175.

33. Fourthly, I accept the submission from the respondent that the Behar affidavit gave rise to the issue of waiver and that there were complex issues of law to determine. However, ultimately, I found that there had been no waiver and therefore the respondent was unsuccessful in his application. The fact that the application was clearly arguable does not prevent an order for costs being made when that application fails. It clearly goes to the bona fides of the application and would be an answer to any submission that the application was an abuse of power, but it is not an answer to a costs application.

34. Lastly, the respondent submitted that the applicant should not get costs in the period in which Tolis & Co were acting in conflict of interest in that they were seeking to defend their own interests at that time. Given that the applicant continued to oppose the application that it produce the privileged material after it had obtained independent representation, I do not consider that there was an actual conflict between the interests of the applicant and the interests of Tolis & Co. The interests of both were that they oppose the production of the privileged documents. There was certainly the potential for a conflict and that is why it was appropriate for Tolis & Co to cease acting.

1. I therefore order that the respondent pay the costs of the applicant on the standard costs basis of and incidental to the application for the production of the privileged documentation (paragraph 3 of FDN 46 and paragraph 1 of FDN 56).

2. I do not propose to order that the application be certified fit for senior counsel. The relevant test is whether a reasonable litigant would have considered it necessary or prudent to brief senior counsel for the presentation of their case.[6] I do not consider it necessary or prudent to brief senior counsel in an interlocutory application in this Court in respect of a claim for a relatively modest amount.

   [6]    Beasley v Marshall (No 3) (1986) 41 SASR 321.

3. The applicant has also sought her costs associated with the amendment of the defence. UCR 194.4(2) provides for a presumptive rule that the costs of an amendment are to be paid by the party seeking the amendment.  I do not accept the submission of the respondent that as it was ultimately successful in obtaining leave to file an amended defence, it should be viewed as the successful party and that costs should follow the event. The respondent was seeking an indulgence from the Court and until Draft 4 of the proposed defence was provided, would not have obtained that indulgence. A party seeking an indulgence (such as an extension of time) cannot be considered as the successful party.

4. I consider that the applicant was entitled to oppose the amendment up to and including the delivery of  Draft 4 of the proposed amended defence on 11 August 2021. Until that time, the amended defence was not in a suitable form. It did not comply with the rules of pleading. The applicant was entitled to continue to oppose the amendment until such time as it was in the appropriate form. As Livesey J held in Coastal Ecology Protection Group Inc v City of Charles Sturt,[7] the fact that a proposed amendment required revision and particularisation on two occasions is a matter for which the applicant in that case should meet the respondent’s costs.

   [7] [2020] SASC 1 at [12].

5. I accept the submission of the respondent that he had difficulty in formulating the amended defence and that the Behar affidavit provided some of the necessary material to plead the defence, but that is not a reason to deny the applicant her costs.

6. I also accept the submission of the respondent that there was a real question as to waiver of privilege. However, the application of the respondent for the waiver of privilege was ultimately unsuccessful. That matter does not, in my opinion, impact on the right of the applicant to recover her costs in relation to the amendment application.

7. I have also taken into account the submissions on costs made by the respondent in relation to the waiver of privilege application insofar as they are applicable to the amended defence application. I dismiss those arguments for the reasons that I have expressed.

8. I therefore order that the respondent pay the costs of the applicant up to 11 August 2021 of and incidental to the application of the respondent for leave to file an amended defence (paragraph 1 of FDN 33).

   Costs applications of the interested parties, Mr Munt and Tolis & Co

9. Tolis & Co and Mr Munt did not participate in the argument relating to the waiver of privilege and therefore no issue of costs arises in relation to that application.

10. Mr Munt opposed the application of the respondent for leave to file a cross claim against him. Leave was required as the time for the filing of the cross claim had expired.

11. Mr Munt was successful in his opposition to the application as the respondent was not granted leave to file a cross claim against him as the pleas were speculative and should not be permitted.

12. I consider that there is no reason why Mr Munt should not be entitled to his costs in successfully opposing leave to issue a cross claim against him.

13. Costs will normally follow the event (UCR 194.5(2). Mr Munt was successful in his opposition to the application.  There is no reason to depart from that principle. Further, the respondent was seeking an indulgence in that it required leave to issue the cross claim out of time.

14. I do not accept the respondent’s submissions that it was reasonable to include the claim against Mr Munt as it arose from the same factual matrix as the claim against Tolis & Co. The claims were for different advice given at different times. I accept that there will be difficulties involved in assessing the costs of Mr Munt and Tolis & Co, but they are matters to be worked out on any taxation of costs. Again, I do not consider it to be relevant in determining the costs of this application that there might be a possibility that Mr Munt is joined as a party at some later stage by the applicant.

15. I therefore order that the respondent pay the costs of Mr Munt in opposing the application on the standard costs basis.

16. Tolis & Co also opposed the application of the respondent for leave to issue a cross claim. I ultimately granted leave to the respondent to issue a cross claim against Tolis & Co.

17. The substance of the cross claim were the claims made in paragraph [27] of the proposed amended defence, which the respondent repeated for the purposes of the cross claim. As I have set out earlier in these Reasons, in its earlier iterations, paragraph [27] was deficient and lacking particulars. It follows that by the incorporation of paragraph [27] into the cross claim, that cross claim was also deficient.

18. It was not until Draft 4 of the proposed defence that the cross claim was in an acceptable form. Tolis & Co were entitled to oppose the application to be joined as a cross respondent until Draft 4 of the proposed defence was put forward on 11 August 2021.[8]  As I have observed above, the respondent was also seeking an indulgence from the Court to file the cross claim out of time.

    [8]    Coastal Ecology Protection Group Inc v City of Charles Sturt [2020] SASC 215 at [32].

19. For the reasons that I have already expressed, I do not consider that in these circumstances, the respondent can be said to have succeeded in the application such that costs should follow the event.

20. I consider that the position of Tolis & Co was different following the delivery of Draft 4 of the defence and its incorporation into the cross claim. From that time, the proposed cross claim was in an acceptable form.  From that time, the continued opposition of Tolis & Co to the proposed cross claim was, in my opinion, not justified. The respondent should be entitled to its costs from that time.

21. In opposition to that position, Tolis & Co placed reliance on the decision of Hinton J in Raedel & Raedel v Shahin (No 2)[9] and Stanley J in Hanssen v Commonwealth of Australia (No 2).[10] In both those cases, the party who unsuccessfully opposed an application were held to be entitled to their costs.  However, the context in which the applications were made in those cases was very different to the present case. In Raedel, the appellant had brought an application for the reinstatement of a lapsed appeal. Clearly, the appellant had been delinquent in failing to comply with the relevant rules. The opposition to reinstatement was held to be reasonable.  In Hanssen, Stanley J held that the application to amend could have been earlier, in which case the Commonwealth would not have wasted costs in bringing an application for a separate trial of an issue.

    [9] [2018] SASC 119.

    [10] [2019] SASC 90.

22. In the present case, I accept the submission of the respondent that the proposed cross claim arose upon the respondent becoming aware of the facts set out in the Behar affidavit. The respondent had therefore not been guilty of delay or ignoring relevant rules. In those circumstances, I do not consider that there were any discretionary factors that would have reasonably operated to deny the respondent the opportunity to bring the cross claim against Tolis & Co.  This was not a case of a further amendment but a new claim that had not previously been available. In those circumstances, I do not consider the continued opposition, once the pleading complied with the rules, to have been reasonable.

23. I therefore make the following orders in relation to costs of Tolis & Co:

    (1)the respondent pay on a standard costs basis the costs of Tolis & Co of and incidental to the applications to issue a cross claim against Tolis & Co up to 11 August 2021;

    (2)Tolis & Co pay on a standard costs basis the costs of the respondent of and incidental to the applications to issue a cross claim against Tolis & Co from 11 August 2021 to 15 December 2021 (the date when I delivered judgment on this application).

24. Tolis & Co submitted that I should make an order setting off any order I might make that it pay some of the costs of the respondent against any order that I might make in its favour. Normally, that would be an attractive submission as it would avoid the need for two taxations.  However, in the present case, I do not consider that I should make such an order as it would, in my opinion, potentially create an injustice to the respondent given the order I have made in favour of Mr Munt. I therefore decline to make an order for set off.

    Costs applications of the respondent

25. The position of the respondent is clear from the orders that I have already made.

26. The respondent was unsuccessful in his application that the applicant had waived privilege. There is no reason why he should not pay the applicant’s costs in relation to that application. There is also no reason why the respondent would himself be entitled to his costs of that application.

27. I have already found that the applicant was entitled to her costs up until 11 August 2021 in opposing the application of the respondent to file an amended defence. Until the delivery of Draft 4, the proposed defence was not in a proper form.  After Draft 4 was delivered, the applicant did not maintain her opposition to the proposed defence.

28. Accordingly, in my view, no order for costs should be ordered after that time. The respondent was still required to obtain leave from the Court.

29. Neither of the interested parties participated in the waiver of privilege application and therefore no order for costs should be made against them in respect to that application.

30. Mr Munt was entirely successful in his opposition to the application that the respondent be granted leave to issue a cross claim against him. There is no reason to deny him his costs and again there is no reason why the respondent should be entitled to any of his costs in relation to that application.

31. I have set out above the costs order that I consider should be made in relation to the application of the respondent that he be granted leave to issue a cross claim against Tolis & Co.

    Orders

32. I therefore make the following costs orders:

    (1)The respondent pay the costs of the applicant on a standard costs basis of and incidental to the waiver of privilege application (paragraphs 3 of FDN 46 and paragraph 1 of FDN 56);

    (2)I decline to certify the hearing on 17 February 2021 as fit for senior counsel but certify the hearings on 17 February 2021 and 26 August 2021 as fit for counsel;

    (3)The respondent pay the costs of the applicant on a standard costs basis of and incidental to the application of the respondent to amend his defence (paragraphs 1 of FND 33) up to and including 11 August 2021.

    (4)The respondent pay the costs of the second interested party, Mr Munt on a standard costs basis of and incidental to the application to issue a cross claim against him (paragraph 1 of FDN 46 and paragraph 2 of FDN 56);

    (5)The respondent pay the costs of the first interested party, Tolis & Co on a standard costs basis of and incidental to the application to issue a cross claim against it (paragraph 1 of FND 46 and paragraph 2 of FDN 56) up to and including 11 August 2021;

    (6)Tolis & Co pay the costs of the respondent, on a standard costs basis of and incidental to the application to issue a cross claim against Tolis & Co (paragraph 1 of FDN 46 and paragraph 2 of FDN 56) from 11 August 2021 to 15 December 2021.