PMB Australia Ltd v MMI General Insurance Ltd (No 2)
[2001] QSC 339
•18 September 2001
SUPREME COURT OF QUEENSLAND
CITATION: PMB Australia Ltd v MMI General Insurance Ltd & Ors (No 2) [2001] QSC 339 PARTIES: PMB AUSTRALIA LIMITED ACN 057 251 091
(plaintiff)
v
MMI GENERAL INSURANCE LIMITED
ACN 000 122 850
(first defendant)
and
SUN ALLIANCE & ROYAL INSURANCE AUSTRALIA LIMITED ACN 005 297 807
(second defendant)
and
CIC INSURANCE LIMITED ACN 004 078 880
(in provisional liquidation)
(third defendant)
and
ZURICH AUSTRALIAN INSURANCE LIMITED
ACN 000 296 640
(fourth defendant)
and
SUNCORP GENERAL INSURANCE LIMITED
ACN 075 695 966
(fifth defendant)
and
GIO GENERAL LIMITED ACN 002 861 583
(sixth defendant)
and
QBE INSURANCE LIMITED ACN 000 157 899
(seventh defendant)
and
FAI GENERAL INSURANCE COMPANY LIMITED
ACN 000 327 855 (in provisional liquidation)
(eighth defendant)FILE NO: 5235 of 1998 DIVISION: Trial Division DELIVERED ON: 18 September 2001 DELIVERED AT: Brisbane HEARING DATE: Written submissions JUDGE: Mullins J ORDERS: 1. Leave be given to the plaintiff to file the application dated 24 August 2001 seeking leave to amend the statement of claim and the affidavit of Mark Damien Darwin sworn on 24 August 2001.
2. The application seeking leave to amend the statement of claim be dismissed.
3. The plaintiff pay the first, second, fourth, fifth, sixth and seventh defendants’ costs of that application to be assessed.
4. The plaintiff have judgment as follows:
(a) as against the first defendant for the sum of $321,277.50;
(b) as against the second defendant for the sum of $89,243.75;
(c) as against the fourth defendant for the sum of $71,395.00;
(d) as against the fifth defendant for the sum of $49,976.50;
(e) as against the sixth defendant for the sum of $42,837.00;
(f) as against the seventh defendant for the sum of $35,697.50.
5. The daily interest that accrues under s 57(2) of the Insurance Contracts Act 1984 (Cth) on each judgment sum until payment is respectively:
First defendant $58.11
Second defendant $16.14
Fourth defendant $12.91
Fifth defendant $9.04
Sixth defendant $7.75
Seventh defendant $6.46
6. The first, second, fourth, fifth, sixth and seventh defendants pay 80% of the plaintiff’s costs of the proceeding including reserved costs to be assessed on the standard basis.CATCHWORDS: INSURANCE – GENERAL – assessment of interest carrying costs – assessment of interest payable under s 57 Insurance Contracts Act 1984 (Cth)
PROCEDURE – SUPREME COURT PROCEDURE – leave sought to amend statement of claim after publication of reasons for judgment but before final judgment – prospects of success of proposed claims considered – relevance of timing of application
COSTS – appropriate costs order where plaintiff is successful in its claim but unsuccessful in respect of significant issues of quantum – departure from usual order that costs follow the event
Insurance Contracts Act 1984 (Cth)
Insurance Contracts Regulations 1985 (Cth)UCPR r 375(1), r 689 (1), r 690(5)
Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145
Re Mining Technologies Australia Pty Ltd [1999] 1QdR 60
Moss v Sun Alliance Australia Ltd (1990) 55 SASR 145
Motor Accident Mutual Insurance Pty Ltd v Kelly (1999) 10 ANZ Insurance Cases 61-420
Settlement Wine Company Pty Ltd v National & General Insurance Co Ltd (1994) 62 SASR 40COUNSEL: CG Gee QC and MK Stunden for the plaintiff
SC Williams QC and JP Kimmins for the defendantsSOLICITORS: McCullough Robertson Lawyers for the plaintiff
Gadens Lawyers for the defendants
MULLINS J: I published reasons for judgment on 10 August 2001 (“the quantum reasons”) dealing with a number of outstanding issues identified in my reasons for judgment published on 26 September 2000 (“the reasons”). In order to finalise the matter I made orders on 10 August 2001 seeking written submissions from the parties on the issues of interest carrying costs, interest under s 57 of the Insurance Contracts Act 1984 (Cth), costs of the proceeding, the form of orders and any other outstanding matters.
Written submissions were received from the parties in accordance with the orders made on 10 August 2001. The submissions on behalf of the defendants were made specifically on behalf of those defendants other than the third and eighth defendants to which provisional liquidators have been appointed. My reference in these reasons to submissions of the defendants should be understood in that context. I therefore deal with each of the matters which was the subject of submissions.
Interest carrying costs
It is not in issue that this item is recoverable under the policy, but the determination of the quantum had to be deferred until the other recoverable amounts under the policy had been determined.
The plaintiff’s written submissions delivered on 24 August 2001 calculate and claim interest carrying costs at $44,445.94. The defendants submit that the sum of $36,000 is a reasonable allowance for interest carrying costs and make a number of submissions which controvert the calculations and the assumptions underlying the calculations of the plaintiff.
Although the plaintiff’s calculations have produced an exact figure, the calculations by necessity are based on a number of assumptions and approximations which mean that the figure produced by the calculations is truly an estimate.
I accept the defendants’ submissions that the calculations of the plaintiff have been carried out at the rate of 9.75% per annum until 31 January 1997 and at 9.25% per annum from 31 January until 31 March 1997, when those interest rates were applicable to the plaintiff’s overdraft facility which had a limit of $150,000 and the other source of additional funds for the plaintiff during this period was a bill facility which had an average interest rate of 8% per annum. Factoring that 8% interest rate into account, when the overdraft facility was fully used, results in some reduction of the amount of the interest. When allowance is also made for the imprecision of the assumptions applied by the plaintiff in calculating interest carrying costs, I consider that the sum of $40,000 is an appropriate amount to allow for interest carrying costs.
Section 57 Insurance Contracts Act 1984
The parties are agreed that the relevant interest rate to be applied under the Insurance Contracts Regulations 1985 (Cth) is 8.75% per annum. I found in para [90] of the quantum reasons that the interest payable under s 57 of the Insurance Contracts Act 1984 was payable from and including 1 January 1998.
Both parties undertook a similar calculation of daily interest from 1 January 1998. I will replicate that calculation, incorporating the figure which I have determined for interest carrying costs. As at 1 January 1998, the amount outstanding is therefore calculated as follows:
Balance claim outstanding as at end of indemnity period (including interest carrying costs) $816,005 Add claims preparation costs paid subsequent to the end of the indemnity period 122,702 Total claim with interest
Less progress payments received after the end of the indemnity period
Total balance claim outstanding after progress payment
938,707
400,000
$538,707
The daily interest calculated at 8.75% per annum in respect of the balance outstanding of $538,707 is $129.14 per day. The period from 1 January 1998 until 18 September 2001 is 1357 days. The interest calculated pursuant to s 57 of the Insurance Contracts Act until the date of judgment is therefore $175,243. Interest is payable under s 57(2) of the Insurance Contacts Act until the earlier of the day on which payment is made or the day on which payment is sent by post to the person to whom it is payable. Interest will therefore be calculated to accrue on the sum of $538,707 at $129.14 per day until such time as the earlier of the day on which the payment is made to the plaintiff or the day on which the payment is sent by post to the plaintiff.
The plaintiff seeks an order that the defendants (other than the third and eighth defendants) be jointly and severally liable for the interest to the date of judgment under s 57 of the Insurance Contracts Act. The defendants seek orders that limit the recovery of interest to the date of judgment against each of the defendants (other than the third and eighth defendants) to the proportion of the liability borne by that defendant under the policy. When determining the liability of each such defendant under the policy, the limitation of liability in the policy applies. It follows that each such defendant should be liable only for the same proportion of the interest under s 57 of the Insurance Contracts Act to the date of judgment and the daily interest which accrues thereafter until payment in accordance with s 57(2) of that Act.
The amount of the interest to the date of judgment which each of the defendants (other than the third and eighth defendants) is liable for respectively is:
First defendant $78,859.35 Second defendant $21,905.38 Fourth defendant $17,524.30 Fifth defendant $12,267.01 Sixth defendant $10,514.58 Seventh defendant $8,762.15
The amount of the daily interest from the date of judgment until the date of payment by each defendant of that defendant’s share of the balance of the claim outstanding under the policy respectively is:
First defendant $58.11 Second defendant $16.14 Fourth defendant $12.91 Fifth defendant $9.04 Sixth defendant $7.75 Seventh defendant $6.46
Amendments to statement of claim
The plaintiff’s written submissions delivered on 24 August 2001 were accompanied by an application for leave to amend the statement of claim in terms of annexures B and C to the submissions.
Annexure B proposes inclusion of paras 35A, 35B, 35C, 35D, 35E and 35F in the statement of claim to allow the plaintiff to claim indemnity from the defendants (other than the third and eighth defendants) for the amount representing the liability of the third and eighth defendants under the policy (in total 14.5%). This has arisen because the third and eighth defendants were placed into provisional liquidation on or about 25 March 2001. Although the plaintiff has obtained the leave of the court to continue the proceedings against the third and eighth defendants, it is on the basis that the plaintiff will not seek to enforce any judgment against the third and eighth defendants.
The amendments proposed in annexure C are the insertion of additional paras 33A, 33B and 33C in the statement of claim, to provide a pleading basis for the submission that was made by the plaintiff in reliance on the decision in Re Mining Technologies Australia Pty Ltd [1999] 1QdR 60.
The plaintiff is content for the application to amend the statement of claim to be dealt with on the basis of the written submissions, without an oral hearing. Although the defendants have objected to that application, they did not object to it being dealt with on the papers. The plaintiff submits that, if leave to make the amendments were granted, the defendants should have the opportunity to make submissions as to why the relief sought based on proposed paras 35A to 35F ought not be granted.
Under r 375(1) of the UCPR, the court may permit a pleading to be amended at any stage of a proceeding in the way and on the conditions the court considers appropriate. This application is being made between the delivery of the reasons for judgment and the pronouncement of the final judgment. That does not preclude leave being given to make the amendment, but the lateness of the application (and the consequences that has for the parties) is a relevant consideration to whether the amendments should be permitted. It is also relevant to determine whether the amendments would result in an arguable claim on behalf of the plaintiff. There is no point at this stage in the proceeding in permitting amendments to be made to the statement of claim, if the claims which are the subject of those amendments could not be successfully pursued.
The plaintiff’s case was presented at trial on the basis that the plaintiff was seeking to recover a specified sum as money due under the contract of insurance. The amendments which are sought to be made to the statement of claim, as a result of the provisional liquidation of the third and eighth defendants, arise because liability of each of the defendants under the policy is limited to the proportion of the loss specified beside the name of that defendant in the policy. The third defendant’s proportion of the liability is specified as 11%. The eighth defendant’s proportion of the liability is specified at 3.5%.
The relevant amendments are based on the finding in the quantum reasons that it was unreasonable for the defendants to have withheld payment of the balance due to the plaintiff under the policy from and including 1 January 1998. That finding was made for the purpose of s 57 of the Insurance Contracts Act 1984, but it is equally applicable to a claim for damages for breach of contract for delay in paying the plaintiff what has been found to be due under the policy.
The plaintiff now seeks to plead that, had the defendants paid the amount due to the plaintiff by 1 January 1998, the plaintiff would have received 100% of the amount due from all defendants and that, as a result of that payment not being made, the plaintiff will suffer loss of the indemnity of 14.5% which it would otherwise have recovered from the third and eighth defendants. The plaintiff therefore claims indemnity from the defendants (other than the third and eighth defendants) in the amount representing 14.5% of the total amount found due to the plaintiff under the policy. The plaintiff claims this indemnity as damages for breach of the policy, breach of the duty of utmost good faith or exemplary damages. The rationale of the plaintiff’s proposed claim is that if the defendants had paid what has been found to be outstanding under the policy in respect of the claim at or around 1 January 1998, or an appropriate time in advance of the appointment of the provisional liquidators the amount for which each of the third and eighth defendants would have been liable under the policy would have been actually paid at that time.
The defendants’ response is that any such claim has no prospects of success. The defendants argue that if the defendants had individually paid their respective contributions in accordance with the proportions set out in the policy, the plaintiff would be in the same position in relation to the claim of receiving only 85.5% of the claim. The defendants (other than the third and eighth defendants) submit that they cannot be held liable in damages for any failure of the third and eighth defendants to pay their respective share of the loss. The defendants submit that there is no ground for claiming exemplary damages.
The issue which needs to be resolved in connection with whether the amendments by way of paras 35A to 35F should be permitted is whether there is an arguable claim that the plaintiff can recover the amount representing 14.5% of the amount outstanding under the policy (which would have otherwise been payable by the third and eight defendants but for their entering provisional liquidation) from the other defendants on the basis of damages for breach of the breach of the duty of utmost good faith or exemplary damages.
An insured may seek to recover damages for breach of the contract of insurance, as a result of the delay by the insurer in paying the claim: Settlement Wine Company Pty Ltd v National & General Insurance Co Ltd (1994) 62 SASR 40, 72; Motor Accident Mutual Insurance Pty Ltd v Kelly (1999) 10 ANZ Insurance Cases 61-420, 74,716-74,718; K Sutton Insurance Law in Australia (3rd ed) at para 15.122. It becomes a question of whether the damages which are sought for breach of the contract of insurance fall within either of the two limbs of Hadley v Baxendale (1854) 9 Ex 341, 354; 156 ER 145, 151.
The plaintiff in its submissions delivered on 24 August 2001 expresses the issue this way:
“The issue therefore arises as to whether the 14.5% indemnity which would otherwise have been paid by the HIH Companies should be a loss which falls at the feet of the Plaintiff, or should be shared amongst the other 6 Defendants whose collective conduct in declining to pay the claim after 1 January 1998, unreasonably as has been found by your Honour, has had the result that the Plaintiff is now facing the prospect of losing 14.5% of its judgment.”
The submission does not, however, deal with the nature of the damages in contemplation of the parties at the time of entering into the policy which would arise from breach of contract on the part of the insurer for delay in meeting the claim under the policy.
When the policy strictly limits the proportion of liability to be borne by each of the insurers, it is difficult to see how damages calculated by reference to the share of the liability which would have otherwise been borne by the insurers under the policy who have entered provisional liquidation can be characterised as either damages arising naturally from the breach of contract on the part of the other insurers in paying the claim or as being in the contemplation of all parties to the policy at the time the policy was entered into, as the probable result of the breach of it. The proposed claim for damages therefore does not fall within either of the limbs of Hadley v Baxendale.As the damages which are sought against the defendants (other than the third and eighth defendants) for the delay in meeting the claim under the policy are therefore too remote, the claim for damages for breach of contract will be unsuccessful.
The alternative claim for damages for breach of the duty of utmost good faith is also a contractual claim. It is not materially different from the claim for damages for breach of contract. For the same reason, it cannot be successful.
Whether or not an insured can seek to claim exemplary damages against an insurer for damages for breach of contact in failing to pay the claim under the policy within a reasonable time has not been authoritatively determined: Moss v Sun Alliance Australia Ltd (1990) 55 SASR 145, 159. Even if the amendments were allowed and it were open, as a matter of law, to award exemplary damages for breach of contract in these circumstances, the facts found in the reasons do not provide a basis upon which any such an award could be made. As is apparent from the reasons, there was a dispute between the plaintiff and the defendants, as to the extent to which the interruption of the plaintiff’s business could be shown to be proximately caused by the salmonella outbreak and a dispute as to the losses which resulted from that interruption. The defendants paid $700,000 on account of the plaintiff’s claim, before the plaintiff commenced this proceeding claiming $6,687,000 which was reduced to $4,795,000 by the time the trial commenced and has resulted in a determination in the plaintiff’s favour of $538,707. The conduct of the defendants since 1 January 1998 in no way can be described as being in “contumelious disregard” of the plaintiff’s claims which would be a necessary finding, before exemplary damages could be awarded.
As I have concluded that the amendments proposed by the inclusion of paras 35A to 35F would result in claims that were not arguable, it is not appropriate to grant leave to make these amendments. In any case, if it were considered that the claim for damages for breach of contract were arguable to some degree, the lateness at which the application has been made favours refusing the leave. If those amendments were allowed, further submissions would be required to be made in a proceeding where the trial concluded on 6 June 2000 and the reasons which substantially disposed of the liability issues were delivered on 26 September 2000. The subsequent history of the proceeding is set out in para [1] of the quantum reasons. The litigation must be concluded. If it were a matter of exercising discretion by reference to the timing of the application, I would refuse the application.
The plaintiff made an alternative submission to the effect that its statement of claim (without the proposed paras 35A to 35F) always pleaded that the failure of the defendants to indemnify the plaintiff for the balance of its loss resulting from interruption or interference was in breach of the policy and in contumelious disregard of the defendants’ duty of utmost good faith towards the plaintiff and the prayer for relief claimed damages for breach of that duty of utmost good faith including exemplary damages. The existing pleading does not set out sufficient facts to disclose a cause of action for damages for breach of the policy in delaying to meet the claim under the policy which has resulted in the failure of the plaintiff to be able to recover the proportion of the liability under the policy which should be borne by the third and eighth defendants.
Although the plaintiff had not previously pleaded the case that the plaintiff should be reimbursed for the costs of mitigating loss pursuant to an implied term of the contract of insurance, I dealt with the plaintiff’s submissions seeking to support the implication of such term in paras [35]-[37] of the quantum reasons and rejected the argument that such a term could be implied in the policy.
The plaintiff now wishes to amend the statement of claim to plead formally the allegation that it was an implied term of the policy that the costs of minimising loss otherwise claimable under the policy should be payable to the plaintiff and claim indemnity for loss and expenditure not otherwise allowable under Items 1(b) or 4 of the Bases of Settlement on that basis.
As the defendants submit, such an amendment is futile, as the subject matter of the amendment has been disposed of adversely to the plaintiff. On that basis, it is not appropriate to give leave to allow the amendment set out in annexure C to the plaintiff’s written submissions delivered on 24 August 2001 to be made.
It follows that the application for leave to amend the statement of claim should be dismissed. The defendants in their submissions delivered on 31 August 2001 sought an order that the plaintiff pay the costs of that application. As the plaintiff’s submissions in reply delivered on 7 September 2001 do not controvert that proposition, if the application were dismissed, it is appropriate that the plaintiff pay the costs of that application.
Costs
The plaintiff submits that as it has been successful in the proceeding, the costs should follow the event, relying on r 689(1) of the UCPR. In addition, the plaintiff seeks an order pursuant to r 690(5) of the UCPR allowing an increase of 30% of the solicitor’s costs allowed on the assessment of the costs of the proceeding on the basis that the nature and importance, or the difficulty of the proceeding, and the justice of the case justify such an order.
The defendants submit that the appropriate order for costs is that the defendants pay 30% of the plaintiff’s costs of the proceeding up to and until 26 September 2000 to be assessed on the standard basis and thereafter the plaintiff pay the defendants’ costs of the action to be assessed on the standard basis. The defendants submit such an order is appropriate as the defendants succeeded totally on the issues related to yield losses and additional costs of working, the plaintiff’s overall success in the proceeding was limited and the way in which the plaintiff formulated its claims and conducted the proceeding added substantially to the costs of the proceeding. The defendants oppose any order being made under r 690(5) of the UCPR to increase the solicitor’s costs allowed on the assessment of the plaintiff’s costs of the proceeding.
I do not accept the defendants’ submission that the order for costs in favour of the plaintiff should be only to the date of delivery of the reasons. The defendants argue that the plaintiff ran a “high-risk strategy” of asserting that all losses were proximately caused by the salmonella outbreak and that the plaintiff should in its closing submissions at the trial have identified the evidence which would have enabled the court to assess quantum based upon the defendants’ case that most of the losses were not proximately caused by the salmonella outbreak. It is not the case, however, that if the plaintiff in its closing submissions had addressed quantum by reference to the defendants’ case, there would have been no need for the steps subsequent to 26 September 2000.
The conclusion which I reached about the effect of the two operative causes on the interruption to the plaintiff’s business did not accord with either party’s position at the trial: see paras [172], [173] and [185] of the reasons. The further steps in the proceeding after the delivery of the reasons were required to finalise the plaintiff’s claim in accordance with the reasons and should be treated as part of the proceeding required for the plaintiff to prove its claim.
Because of the great disparity between the claim made by the plaintiff for the sum of $4,795,000 in the statement of claim at the commencement of the trial and the sum of $538,707 (before interest under s 57 of the Insurance Contracts Act) for which it has been successful, the justice of the case does not require an order under r 690(5) of the UCPR increasing the solicitor’s costs allowed in the assessment of the plaintiff’s costs of the proceeding.
This proceeding arose because the defendants would not pay any further amounts to the plaintiff under the policy in respect of the losses claimed by the plaintiff as arising from the interruption to its business caused by the salmonella contamination. The plaintiff litigated its claims and is entitled to recover the sum of $538,707 (before interest under s 57 of the Insurance Contracts Act). The “event” is whether the plaintiff was entitled to further indemnity under the policy, the plaintiff has been successful and prima facie costs should follow the event. The plaintiff sought to recover a much greater quantum than that for which it has been successful. The issue on costs is whether that lack of success of the plaintiff warrants any departure from the usual order as to costs.
The reason for the lack of success of the plaintiff on quantum to the degree reflected by the claims totalling $4,795,000 as set out in the statement of claim at the commencement of the trial was because of my finding that a distinction had to be drawn between the interruption to the plaintiff’s business caused by the salmonella contamination and the interruption to the plaintiff’s business caused by the need to address the newly appreciated risk of salmonella contamination. Drawing this distinction severely curtailed the losses claimable under the policy.
The plaintiff failed to recover at all any amount in respect of the major claims of yield loss and additional increased costs of working (“AICOW”). The claim for yield loss of $1,948,000 was the single largest item claimed by the plaintiff in the proceeding. It required lengthy evidence from Mr Hansen, Mr Rowley and Mr Wheeley and generated many documents and involved much argument between the parties during the course of the trial.
The plaintiff submits that the yield loss and AICOW were accepted in principle, but no quantum was recovered because of the findings that the new awareness of the risk of salmonella contamination was a significant reason for the yield loss and the expenditures included in AICOW. The plaintiff therefore submits that no additional time was spent on litigating the effect of the new awareness of the risk of salmonella contamination with respect to yield loss and AICOW alone, as it was relevant to all issues.
I do not accept this submission. Irrespective of the reason for the failure of the plaintiff to recover any quantum on account of yield loss and AICOW, a not insignificant part of the trial was concerned with the plaintiff’s unsuccessful pursuit of the items of yield loss and AICOW.
The plaintiff has identified 24 components of the claims pursued and submits that it has been successful in recovering further indemnity from the defendants in respect of 19 of these 24 components. Notwithstanding this identification of components and that ultimately the assessment of quantum in respect of each of the components proceeded by reference to some discrete evidence, much of the evidence during the trial related generally to the claim for indemnity under the policy and cannot be apportioned amongst the components of the claim, whether by number or value. This was not a proceeding which favours division of issues for the purpose of costs.
As a matter of impression, however, I have concluded that it would not accord with the reality of the result to allow the plaintiff to recover its costs of the proceeding without deduction. On the basis that the defendants will be bearing their own costs of the proceeding in respect of the yield loss and AICOW, but that those items did not necessarily have the same significance for the pre-trial processes, as they did during the trial, I consider that the appropriate order to reflect in some degree the lack of success of the plaintiff is that the defendants (other than the third and eighth defendants) pay 80% of the plaintiff’s costs of the proceeding including reserved costs to be assessed on the standard basis.
Conclusion
The orders which I will make are:
1.Leave be given to the plaintiff to file the application dated 24 August 2001 seeking leave to amend the statement of claim and the affidavit of Mark Damien Darwin sworn on 24 August 2001.
2.That application seeking leave to amend the statement of claim be dismissed.
3.The plaintiff pay the first, second, fourth, fifth, sixth and seventh defendants’ costs of that application to be assessed.
4.The plaintiff have judgment as follows:
(a) as against the first defendant for the sum of $321,277.50;
(b)as against the second defendant for the sum of $89,243.75;
(c)as against the fourth defendant for the sum of $71,395.00;
(d)as against the fifth defendant for the sum of $49,976.50;
(e)as against the sixth defendant for the sum of $42,837.00;
(f)as against the seventh defendant for the sum of $35,697.50.
5.The daily interest that accrues under s 57(2) of the Insurance Contracts Act 1984 (Cth) on each judgment sum until payment is respectively:
First defendant $58.11
Second defendant $16.14
Fourth defendant $12.91
Fifth defendant $9.04
Sixth defendant $7.75
Seventh defendant $6.466.The first, second, fourth, fifth, sixth and seventh defendants pay 80% of the plaintiff’s costs of the proceeding including reserved costs to be assessed on the standard basis.
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