Payton Securities Pty Ltd v Bertacco Ferrier Pty Ltd (No 2)
[2023] VSC 456
•4 August 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST
S ECI 2020 02308
| PAYTON SECURITIES PTY LTD (ACN 004 597 166) | Plaintiff |
| v | |
| MASON WHITE MCDOUGALL (HURSTBRIDGE) PTY LTD (ACN 097 326 317) (and others according to the schedule) | Defendants |
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JUDGE: | M Osborne J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 July 2023 |
DATE OF JUDGMENT: | 4 August 2023 |
CASE MAY BE CITED AS: | Payton Securities Pty Ltd v Bertacco Ferrier Pty Ltd (No 2) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 456 |
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COSTS – Whether Court should exercise discretion to make non-party costs order – Relevant factors – Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 63.02 – Habrok (Dalgaranga) Pty Ltd v Gascoyn Resources Pty Ltd (No 2) [2021] FCA 72 – Bakers Investment Group (Australia) Pty Ltd v Caason Investments Pty Ltd (No 3) [2015] VSC 644.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | J Tsalanidis | Harding Stenning & Co |
| For the Defendants | J Twigg KC A Mobrici | Woodina Law |
HIS HONOUR:
Introduction
By writ filed 25 May 2020, the plaintiff, (‘Payton Securities’), commenced proceedings against, among others, the fourth defendant, (‘Bertacco Ferrier’), seeking damages for loss sustained as a result of an allegedly negligent valuation of property carried out by Bertacco Ferrier. The trial of the proceeding was heard in February 2022, and on 15 July 2022 judgment was handed down.[1] Payton Securities’ claim was unsuccessful.
[1]Payton Securities Pty Ltd v Bertacco Ferrier Pty Ltd [2022] VSC 394 (‘Payton’).
Accordingly, on 22 July 2022, orders were made dismissing the proceeding and providing that Payton Securities pay Bertacco Ferrier’s costs of the proceeding (including reserved costs) on the standard basis to be taxed in default of agreement.
On 16 November 2022, the solicitors then acting for Bertacco Ferrier (the ‘Former Solicitors’) wrote to Payton Securities’ solicitors advising that costs had been quantified at $1,168,360.23, enclosing a table which set out the basis of quantification.
Dissatisfied with the response,[2] Bertacco Ferrier made an application by summons dated 23 December 2022, for a non-party costs order against Payton Capital Limited (‘Payton Capital’). The order sought is that Payton Capital ‘is jointly and severally liable to pay the Fourth Defendant’s costs of the proceeding (including reserved costs) on the standard basis to be taxed in default of agreement as ordered … on 22 July 2022’.
[2]See [31] to [37] below.
Legal principles
The Court’s jurisdiction to award costs is conferred by s 24 of the Supreme Court Act 1986 (Vic) (the ‘Act’). This power and discretion is exercised subject to and in accordance with Order 63 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Supreme Court Rules’).
Pursuant to r 63.03(1) of the Supreme Court Rules, the Court may, in any proceeding, exercise its power and discretion as to costs:
(a) at any stage of the proceeding; or
(b) after the conclusion of the proceeding.
The Court’s powers and discretion under s 24 of the Act (exercised in accordance with Order 63 of the Supreme Court Rules) permit it to make a costs order against a non-party to the proceeding:[3]
Obviously, the prima facie general principle is that an order for costs is only made against a party to the litigation. As our discussion of the earlier authorities indicates, there are, however, a variety of circumstances in which considerations of justice may, in accordance with general principles relating to awards of costs, support an order for costs against a non-party. Thus, for example, there are several long-established categories of case in which equity recognized that it may be appropriate for such an order to be made.
For our part, we consider it appropriate to recognize a general category of case in which an order for costs should be made against a non-party and which would encompass the case of a receiver of a company who is not a party to the litigation. That category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. Where the circumstances of a case fall within that category, an order for costs should be made against the non-party if the interests of justice require that it be made.
[3]Knight v FP Special Assets Ltd (1992) 174 CLR 178, 192193 (Mason CJ and Deane J) (emphasis added) (citations omitted) (‘Knight’).
The making of orders against non-parties under s 24(1) is exceptional. But exceptional in this context means only that such an order is one outside the ordinary case. As the Privy Council stated in Dymocks Franchise Systems (NSW) Pty Ltd v Todd:[4]
Although costs orders against non-parties are to be regarded as ‘exceptional’, exceptional in this context means no more than outside the ordinary course of cases where parties pursue or defend claims for their own benefit and at their own expense. The ultimate question in any such ‘exceptional’ case is whether in all the circumstances it is just to make the order.
[4][2004] 1 WLR 2807, 2815D.
No restriction is placed on the Court’s discretion other than it is to be exercised judicially.[5] There is no onus of proof.[6]
[5]Knight (n 3) 205.
[6]Ipex ITG Pty Ltd (in liq) v Victoria [2014] VSCA 315, [45] (Neave, Santamaria and Kyrou JJA).
In determining whether or not a costs order ought be made against a non-party, the moving party need not establish that the non-party is, in effect, the opposing party. It may be sufficient if the non-party, by its involvement, may properly and fairly be described as a real party to the litigation.[7] Each case must depend on its own facts.
[7]Kebaro Pty Ltd v Saunders [2003] FCAFC 5, [103], [111] (Beaumont, Sundberg & Hely JJ).
Reflecting the unfettered nature of the discretion and its exercise being one affected by the facts and circumstances of the particular case, the factors considered are not uniform but reveal common themes. In Bakers Investment Group (Australia) Pty Ltd v Caason Investments Pty Ltd (No 3) (‘Bakers’), Elliott J identified the following factors as relevant to the exercise of the discretion:[8]
[8][2015] VSC 644, [16] (Elliot J) (‘Bakers’).
(a) the extent to which the non-party has funded the litigation;
(b) the extent to which the non-party has a real interest in the fruits of the litigation if the assisted party were successful;
(c) the level of control the non-party exercised or was entitled to exercise over the conduct of the litigation including its resolution;
(d) whether or not the non-party attended any mediation of the dispute;
(e) the financial position of the assisted party;
(f) whether the conduct of the litigation by the assisted party, or if applicable the funding non-party in either prosecuting or defending a claim was unreasonable, improper or an abuse of process;
(g) whether security for costs was previously sought;
(h) whether a timely warning was given by the successful party to the non-party that costs would be sought against it;
(i) the extent of the impact on the Court of the involvement of the non-party; and
(j) whether the non-party agreed to provide an indemnity to the assisted party for any adverse costs order.
In Habrok (Dalgaranga) Pty Ltd v Gascoyn Resources Pty Ltd (No 2) (‘Habrok’),[9] Beach J identified the following as relevant:
[9][2021] FCA 72, [18] (Beach J) (‘Habrok’).
(a) the unsuccessful party to the proceeding was the moving party and not the defendant;
(b) the source of funds for the litigation was the non-party or its principal;
(c) the conduct of the litigation was unreasonable or improper;
(d) the non-party, or its principal, had an interest (not necessarily financial) which was equal to or greater than that of the party or, if financial, was a substantial interest; and
(e) the unsuccessful party was insolvent or could otherwise be described as a person of straw.
Bertacco Ferrier’s submission
Bertacco Ferrier submitted that it was in the interests of justice for the Court to make the order sought by reference to three principal factors:
(a) Payton Capital provided the funds which facilitated the prosecution of the proceeding by Payton Securities;
(b) Payton Capital played a key role in the conduct of the proceeding and can be regarded as being either the real party to the proceeding or alternatively having a substantial interest in the proceeding; and
(c) there is real doubt as to whether Payton Securities will be able to satisfy the costs order when the quantum of the costs is agreed or taxed.
Payton Securities and Payton Capital’s submission
Payton Securities and Payton Capital (collectively the ‘Payton Parties’) had common representation at the hearing of the application and filed a joint submission. The Payton Parties opposed the making of a non-party costs order on the following principal bases:
(a) Whilst Payton Capital as the ultimate holding company of Payton Securities had an involvement and interest in the proceeding by reason of that status, this was not sufficient to justify an order that Payton Capital pay Bertacco Ferrier’s costs of the proceeding. Relatedly, Payton Securities was the proper plaintiff in the proceeding and was not an entity incorporated solely for the purposes of prosecuting the claim.[10]
[10]Cf Habrok (n 9) [41].
(b) Payton Securities is solvent and has not refused to pay the costs ordered. Those costs are not payable because their quantum has not been agreed and nor have the costs been taxed.
(c) At no stage did either Payton Securities or Payton Capital mislead Bertacco Ferrier as to the relationship between Payton Capital and Payton Securities, such that there is no proper basis to contend that Payton Securities acted unreasonably or improperly, or that there was any abuse of process in its conduct of the proceeding.
(d) Bertacco Ferrier ought to have applied for security for costs, which it failed to do.
(e) Relatedly, Bertacco Ferrier did not warn Payton Capital of any intention to seek an order directly against Payton Securities, with the first time any such application being foreshadowed occurring on 20 December 2022, some six months after the making of the costs order against Payton Securities.
In order to assess the respective merits of the parties’ contentions, it is necessary to set out in a little more detail some relevant matters that pertain to the relationship between Payton Capital and Payton Securities, certain steps taken in the proceeding and the conduct of Bertacco Ferrier after the making of the orders.
Relevant background and procedural history
Payton Capital is part of a group of companies known as the Payton Group of Companies (the ‘Payton Group’). The Payton Group acts as a boutique investment manager focusing on Australian private real estate debt. Payton Capital is the holding company and its subsidiaries comprise Payton Capital Partners Pty Ltd, Payton Management Services Pty Ltd, Payton Private Wealth Pty Ltd, Payton Property Pty Ltd and Payton Funds Management Pty Ltd. Payton Securities is a wholly owned subsidiary of Payton Capital Partners Pty Ltd.
In broad terms, the Payton Group’s business includes the raising of moneys from private investors. The funds from investors are obtained following the provision of information memoranda to prospective investors issued in the name of Payton Capital. The funds are then pooled and lent by Payton Securities to various borrowers. The suitability of the loan is assessed by Payton Capital’s investment committee. Generally, the loans are short term, high interest loans with the interest capitalised. Upon repayment of the loan by the borrower, the investors receive back their proportionate share of the principal and the interest paid by the borrower. The interest rate payable by the borrower is in the order of 2% higher than that earned by the investor. Payton Group receives the 2% differential as a management fee.
Among the loans made by Payton Securities was a loan to Z&L Property Management Pty Ltd (‘Z&L’) secured by a second mortgage over a property at 35 Herberts Lane, Diamond Creek (the ‘Property’). Z&L defaulted and Payton Securities sustained a substantial loss on the loan secured by the second mortgage. In the proceeding, it unsuccessfully sought to recover damages against Bertacco Ferrier alleging that but for Bertacco Ferrier’s negligent valuation of the Property it would not have made the loan to Z&L.
One of the issues at trial was whether Bertacco Ferrier had been retained by Payton Securities (the plaintiff) or Payton Capital and relatedly whether Bertacco Ferrier owed a duty of care to Payton Securities, as opposed to Payton Capital.
Each witness who gave evidence at trial (apart from the expert witness) on behalf of Payton Securities was an employee of Payton Capital not Payton Securities. The witnesses included the Payton Group chief executive officer, David Payton. Mr Payton described the involvement of Payton Securities as ‘[being] the Payton entity used for this deal’. He explained that Payton Securities ‘facilitated direct investments between investors and borrowers generally acting as dealer/arranger and sometimes acting as security trustee’. He otherwise gave evidence that ‘Payton Capital, as Payton Securities’ ultimate parent, provided the infrastructure to support the business (ie, employees, office premises and other overheads)’.
The claim by Payton Securities failed on various grounds which included that any negligence on the part of Bertacco Ferrier was not causative of any loss, and that the relevant retainer was not entered into by Payton Securities but by Payton Capital. During the course of the trial, Payton Securities resolved claims against a real estate agent and a solicitor, both of whom had also been sued.
The reasons for judgment[11] describe the arrangement between Payton Securities and the investors as opaque but equivalent to pooled mortgage investments, with Payton Securities pooling funds advanced by investors to Payton Capital or Payton Securities and then lent by Payton Securities to the borrower.
[11]Payton (n 1) [491].
On 20 August 2020, during the early interlocutory stages of the proceeding, the Former Solicitors wrote to Payton Securities’ solicitors, expressing concern that Payton Securities would not be able to pay the costs of the proceeding if Bertacco Ferrier was successful in its defence. The letter foreshadowed an application for security for costs under s 1335(1) of the Corporations Act 2001 (Cth) and invited the solicitors to provide an explanation and supporting documents which would indicate that Payton Securities was capable of meeting any adverse costs order.
On 26 August 2020, Payton Securities’ solicitors responded advising that Payton Capital prepared consolidated financial statements which incorporated the financial affairs of Payton Securities and that the consolidated accounts were with PWC for audit and were expected to be available around 30 September 2020. The letter suggested that the concerns expressed might be appropriately addressed by Payton Capital undertaking in some suitable manner to satisfy any costs order made in favour of Bertacco Ferrier. The letter sought an estimate of the costs up to and including mediation and advised that it was anticipated that consolidated financial statements would be provided around 30 September 2020.
On 24 September 2020, the Former Solicitors responded advising that such a course may be acceptable subject to review of the proposed undertaking, provision of the consolidated financial statements and instructions from Bertacco Ferrier. A costs estimate was also provided as previously requested.
For unexplained reasons, that was where things were left. The consolidated financial statements were not provided. Nor was the proposed undertaking The Former Solicitors never followed up or revisited the question. No application for security was issued.
Following the making of the costs order on 22 July 2022, on 15 November 2022 as noted above, the Former Solicitors wrote to Payton Securities’ solicitors, advising that the costs had been quantified at $1,168,360.23. Although the costs order required the payment of standard costs, the total comprised the actual costs incurred as was revealed by the table. It seems likely, albeit not conclusive, that the amounts included in the table and the total included costs incurred in relation to the claims against the estate agent and the solicitor.
Following receipt of the 15 November 2022 letter, Payton Securities’ solicitors engaged a costs consultant to review the matter and assist in negotiating an agreeable sum in respect of the claim. A response to that effect was sent to the Former Solicitors.
On 12 December 2022, the Former Solicitors followed up seeking a response, expressing a desire to progress the matter before the end of year break.
On 13 December 2022, Payton Securities’ solicitor responded by explaining the absence of any response as being due to a ‘threshold issue’, namely ‘whether Payton Capital has any obligation to your client relating to the judgment’. The solicitor sought confirmation from the Former Solicitors that there was no agreement or undertaking provided by Payton Capital.
This communication prompted an incendiary response. On 16 December 2022, the Former Solicitors sought urgent confirmation by no later than 19 December 2022, that Payton Securities was financially able to meet the costs order, confirmation that it would not dissipate any settlement moneys received from the agent and the solicitor and requested undertakings from Payton Securities and Payton Capital to pay the costs supported by a guarantee from a director of each of those entities. The letter continued by advising that unless such confirmation was provided, Bertacco Ferrier intended to bring an urgent application for injunctive relief against both Payton Capital and Payton Securities and/or to freeze the assets of both companies; would assume that Payton Securities was insolvent and take necessary steps regarding potential liquidation; write to all of the investors involved in the transaction advising them not to disperse any funds which had been paid to them as a result of the settlements with the agent and the solicitor; and ask any liquidator to investigate the payments and seek that they be returned on the basis that they constitute preferential payments. The letter also foreshadowed an investigation as to whether the receipt by the solicitors of payment for their fees had the effect of defeating an order of the Court and constituted a basis for a complaint to the Victorian Legal Services Board. The letter also contained an express reservation of rights against ‘the directors and employees of Payton Securities and Payton Capital and the directors and employees of the solicitors in relation to the representations made concerning the financial strength of Payton Capital, its standing behind Payton Securities and its ability to fund an adverse costs order against Payton Securities’.
Notwithstanding the tenor of the letter, on 19 December 2022 Payton Securities’ solicitors responded in a measured tone, requesting an itemised bill of costs drafted pursuant to scale or if not available a copy of the tax invoices rendered to Bertacco Ferrier. The letter expressed confidence that a proper response with a view to settlement, could be achieved once the costs consultant had provided a recommendation as to an appropriate figure.
On 20 December 2022 at 5:48pm, my chambers received an email from the Former Solicitors requesting an urgent hearing in relation to an application for a non-party costs order against Payton Capital, and directions in relation to production of books and records and other documents relating to the solvency of the plaintiff. The covering email requested that the matter be listed the next day at the Court’s convenience but subject to counsel’s prior commitment before a Judicial Registrar at 2:15pm. Chambers advised the solicitors that a summons should be issued and made returnable on 10 February 2023.
Following that communication but also on 20 December 2022, the Former Solicitors wrote to Payton Securities’ solicitors, confirming that a summons would be issued seeking a non-party costs order against Payton Capital returnable on 10 February 2023, and requesting provision of various forms of financial documentation relating to Payton Securities by 10:00 am the next day, failing which an application would be made to wind up Payton Securities.
On 22 December 2022, a draft winding up application was forwarded to Payton Securities’ solicitors seeking a winding up of Payton Securities in insolvency alternatively on the just and equitable ground. The draft application was not accompanied by any supporting affidavit.
No affidavit material had been served by the time of the first return of the summons on 10 February 2023. Directions were made for the filing of material and the summons was listed for hearing on 19 May 2023. Subsequently orders were made adjourning the hearing and for mediation. When the summons came on for hearing before me on 25 July 2023, I was informed by counsel that mediation had been unsuccessful but discussions were continuing.
A summons for taxation has yet to be filed. Accordingly, the costs have not been taxed. Absent agreement as to their amount, the costs ordered to be paid on 22 July 2022 are not yet payable.
Analysis
At the outset, it is appropriate to observe that the response by the Former Solicitors variously to threaten winding up proceedings against Payton Securities, to write directly to the investor clients of Payton Capital, investigate the lodgement of a complaint to the Victorian Legal Services Board and commence fresh legal proceedings against representatives of Payton Securities and Payton Capital and the solicitors retained by Payton Securities was, to put it mildly, ill-advised.
It is tolerably clear that the motivation for this intemperate reaction was the realisation that Bertacco Ferrier was exposed to the risk that Payton Securities might not be able to pay the taxed costs. Bertacco Ferrier had identified this very risk in August 2020. Payton Capital had responsibly proposed an in principle undertaking to meet those costs, but the finalisation of the matter had it seems, been overlooked.
Understandably in those circumstances, the Payton Parties submit that no order should now be made in the nature of a non-party costs order against Payton Capital. Further, the Payton Parties clearly remain aggrieved by the events which occurred in December 2022. This too, is entirely understandable.
Notwithstanding the regrettable conduct on the part of the Former Solicitors, I do not consider that it is appropriate to deny Bertacco Ferrier the relief sought in the summons by reason of those events.
First, it cannot be reasonably doubted, that in the ordinary course of events, Payton Capital would have provided an undertaking of the kind foreshadowed. The only reason why it was not provided was that its provision was never followed up by Bertacco Ferrier, or more specifically the Former Solicitors. Whilst it is an arguable interpretation of the correspondence that passed in August and September 2020 that Payton Securities’ solicitors were to provide the consolidated financial statements around 30 September 2020, and a proposed form of undertaking, the subsequent non-provision only assumed importance because it was never followed up by the Former Solicitors. It was their former client, Bertacco Ferrier, that was the affected party and the proposed moving party on any application for security for costs. In that respect, an order of the kind now sought would simply achieve the same practical outcome as would otherwise have resulted in the ordinary course.
Secondly, there is no evidence that Payton Capital suffered any prejudice as a result of the failure on the part of the Former Solicitors to follow up the question of security for costs. There is no evidence that Payton Capital formed the view that it would not have to stand behind Payton Securities in the event an adverse costs order was made against Payton Securities and that, as a consequence, either it or Payton Securities acted in some way contrary to what it would have otherwise done. On the contrary, in the consolidated group financial statements for the year ending 30 June 2022, which were the subject of a director’s report and declaration given 14 November 2022, the directors record a contingent liability of the parent entity (that is, Payton Capital) arising from the unsuccessful litigation which is described in the following terms:
During the FY21 financial year, the parent company commenced a litigation against a number of parties on behalf of a group of its clients. The litigation sought damages caused by losses incurred by its clients on an investment facilitated by the parent company. On 15 July 2022, the Court’s decision was handed down and an apportionment of the defendants’ costs were awarded against the company. At the time of this financial report, the determination of costs has not been decided. The company is considering appealing the decision. No provision has been recorded for these costs as the obligation cannot be measured with sufficient reliability.
Thus, the financial statements of the consolidated entity recognise the obligation as one which attaches to Payton Capital. In effect, the financial statements are prepared on a basis consistent with the undertaking that had been foreshadowed.
Thirdly, it is clear that Payton Capital had at the very least a real interest in the litigation, funding directly or indirectly Payton Securities’ legal costs, by its investment committee approving the loan, by its (not Payton Securities’) retainer of Bertacco Ferrier, arranging the loan ultimately made by Payton Securities to Z&L, by reason of its entitlement to the 2% management fee and, as Mr Payton said, by providing ‘the infrastructure to support Payton Securities’ business (employees, office premises and other overheads)’. Whilst Payton Securities as the lender entity was the appropriate entity to bring the claim, Payton Securities itself had no assets, no staff, and no operational presence aside from being the corporate entity which was used as the vehicle through which the loan would be made. The reference in the consolidated financial statements to the effect that Payton Capital had brought the unsuccessful claim and had itself been the subject of the adverse costs order, whilst inaccurate and discordant with separate legal personality, was reflective of the substance of the arrangements, which was that Payton Securities was akin to a nominee or agent of Payton Capital. Indeed, Payton Securities’ confined status in the Payton Group is reflected by the fact that it is not referred to at all in the group consolidated financial statements.
Fourthly, the absence of any warning being given to Payton Capital of a non-party costs order being sought against it and no security for costs application being commenced in the circumstances is not a bar to the making of any non-party costs order. Those factors are important but not an insuperable bar to any application.[12] Whether they are so significant as to warrant the exercise of a discretion against the granting of a non-party costs order will depend upon the particular circumstances of the case. Here, they are not significant as Payton Capital has apparently accepted that it would meet such costs[13] and it can be inferred proceeded accordingly. If it were to be relieved of such responsibility, this would represent a windfall due to the failure to appropriately follow up the question of security for costs. There is no direct evidence as to why security for costs was not followed up. The most likely inference is that the matter was overlooked by the Former Solicitors. Generally, a party should not suffer a penalty due to the fault of the party’s solicitor.[14]
[12]Bakers (n 8) [16].
[13]See [43] above.
[14]Collins Book Depot Pty Ltd v Bretherton [1938] VLR 40, 44; Kostakanellis v Allen [1974] VR 596, 607.
Fifthly, whilst the Payton Parties are correct to observe that no amount is yet payable by Payton Securities because the quantum of the costs has been neither agreed nor taxed, the consequential submission that as a result Payton Securities is able to pay its debts as and when they fall due, is not to the point because those debts do not include the costs payable pursuant to the 22 July 2022 costs order. Payton Securities did not adduce any evidence as to its current debts nor its current assets. Given the absence of any financial statements, the implied concession of an inability to pay evidenced by the offered undertaking and Mr Payton’s evidence as to its role within the Payton Group, it is obvious that Payton Securities’ capacity to discharge the 22 July 2022 costs order is dependent on support from Payton Capital. Despite the content of the consolidated financial statements of 30 June 2022, Payton Capital has not confirmed, much less offered an undertaking, to stand behind Payton Securities in respect of the costs ordered against it. At the hearing, it argued that the question was premature as the costs had not been taxed. Whilst the unexplained delayed issuance of a summons for taxation is another curious feature which sits incongruously to say the least with the demand for payment made in December 2022 and the threat to wind up Payton Securities on the ground of insolvency, an assurance of this nature by Payton Capital would have circumvented this hearing. One suspects that the reluctance to provide such assurance has been influenced by the animus generated by the events of December 2022 and perhaps by a desire to maximise its negotiating position in the subsisting negotiations as to the quantification of the costs. Regardless, given the circumstances, there is a risk that Payton Securities will be unable to pay the costs ordered. If it does pay the costs, it will be because Payton Capital facilitates such payment, which outcome will in any event result from orders being made in the form sought.
Accordingly, and subject to hearing from the parties, there will be an order that Payton Capital shall be jointly and severally liable with Payton Securities to pay the costs ordered to be paid by Payton Securities by the orders made 22 July 2022.
SCHEDULE OF PARTIES
PAYTON SECURITIES PTY LTD (ACN 004 597 166)
Plaintiff
MASON WHITE MCDOUGALL (HURSTBRIDGE) PTY LTD (ACN 097 326 317)
First Defendant
IAN PAUL CHRISTIAN MASON
Second Defendant
IAN JOHN MCCUBBIN
Third Defendant
BERTACCO FERRIER PTY LTD (ACN 088 268 795)
Fourth Defendant
HUIMING (JACKY) ZHANG
Fifth Defendant
QING (JACK) LIU
Sixth Defendant
MXW FINANCE PTY LTD (ACN 135 158 511)
Seventh Defendant
2
4
0