Pritchard v Trius Constructions Pty Ltd (No 2)

[2011] NSWSC 1114

Supreme Court

New South Wales

Medium Neutral Citation:

PRITCHARD v TRIUS CONSTRUCTIONS PTY LIMITED & Ors [No 2] [2011] NSWSC 1114

Hearing dates:

11 August 2011

Decision date:

19 September 2011

Jurisdiction:

Civil

Before:

HOEBEN J

Decision:

1. Prejudgment interest to be calculated in accordance with s18 CLA.

2. Document of 10 May 2011 was an Offer of Compromise in accordance with Part 20 rule 20.26 UCPR.

Catchwords:

PRACTICE AND PROCEDURE - personal injury damages paid by defendant to plaintiff - claim for contribution pursuant to s5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 by defendant against employer - claim for contribution successful - whether pre-judgment interest payable on contribution should be calculated under s18 Civil Liability Act 2002 or s101 Civil Procedure Act 2005.
COSTS - whether offer operated as an offer of compromise under Pt 20 r 20.26 Uniform Civil Procedure Rules 2005 - whether offer was "exclusive of costs" - meaning of words "exclusive of costs" in Pt 20 r 20.26(2) UCPR.

Legislation Cited:

Civil Liability Act 2002
Civil Procedure Act 2005
Law Reform (Miscellaneous Provisions) Act 1946
Motor Accidents Act 1988

Cases Cited:

Calderbank v Calderbank (1975) 3 WLR 586
Dean v Stockland Property Management Pty Ltd & Anor (No 2) [2010] NSWCA 141
Firth v Sutton [2010] NSWCA 90
Frisbo Holdings Pty Ltd v Austin Australia Pty Ltd (No 2) [2010] NSWSC 298
Howard Rotavator Pty Limtied v Wilson (1987) 8 NSWLR 498
Kwanchi Pty Ltd v Kocsis (1996) 40 NSWLR 270
Penrith Rugby League Club Ltd t/as Cardiff Panthers v Elliot (No 2) [2009] NSWCA 356
Pritchard v Trius Constructions Pty Limited & Ors [2011] NSWSC 749
Tarabay v Fifty Property Investments Pty Ltd [2009] NSWSC 951
Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker & Anor (No 2) [2007] NSWCA 194
Westpac Corporation v Tomassian (1992) 32 NSWLR 207

Category:

Costs

Parties:

Terrence Stephen Pritchard - Plaintiff
Trius Constructions Pty Limited - First Defendant
Oceanic Coal Australia Pty Ltd - Second Defendant
Oceanic Coal Australia Pty Ltd - Cross-Claimant
Trius Constructions Pty Limited - Cross-Defendant

Representation:

Mr J Sleight - Cross-Claimant
Mr D Lloyd - Cross-Defendant
MRM Lawyers - Cross-Claimant
Wotton & Kearney - Cross Defendant

File Number(s):

2010/00064178

Judgment

1. HIS HONOUR:

Nature of application

Judgment was handed down in the principal proceedings on 20 July 2011 ( Pritchard v Trius Constructions Pty Limited & Ors [2011] NSWSC 749). The background to the judgment was that the plaintiff, an employee of Trius, which was a subcontractor of Oceanic, suffered serious injuries while he was working at a coal preparation plant conducted by Oceanic. The plaintiff brought proceedings in negligence against Trius and Oceanic. In due course the plaintiff settled his claim against Oceanic and discontinued against Trius.

1. The judgment related to the cross-claim by Oceanic against Trius for contribution to that settlement pursuant to s5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 and for a full indemnity for breach of contract.

1. The effect of the judgment was to reject Oceanic's claim for breach of contract and to apportion liability for the plaintiff's injuries as to 60 percent against Trius and 40 percent against Oceanic. Oceanic and Trius were directed to prepare Short Minutes of Order in accordance with the judgment.

1. When Oceanic and Trius again came before the Court, they were unable to agree as to the form of the orders to be made because two matters remained outstanding. These were the rate of interest which was to be paid by Trius in respect of its contribution and whether Trius was entitled to any special costs order.

Interest

1. The parties did not dispute the following:

(i) Oceanic paid the consent judgment to the plaintiff on 1 March 2010.

(ii) Oceanic was entitled to prejudgment interest pursuant to s100 of the Civil Procedure Act 2005 (CPA) on that part of the judgment which it was entitled to recover from Trius from that date.

(iii) The amount which attracted that prejudgment interest was $78,000.

1. The matter at issue between Trius and Oceanic was the applicable rate of interest. Trius submitted that the rate of interest was determined by s18 of the Civil Liability Act 2002 (CLA). Oceanic submitted that s101 of the Civil Procedure Act 2005 (CPA) applied and that interest should be calculated in accordance with Supreme Court rates.

1. Trius relied upon the following provisions in Part 2 of the CLA .

"11. In this Part:

"Personal injury damages" means damages that relate to the death of or injury to a person.

11A(1) This Part applies to and in respect of an award of personal injury damages, except an award that is excluded from the operation of this Part by s3B.

(2) This Part applies regardless of whether the claim for damages is brought in tort, in contract, under statute or otherwise.

(3) A court cannot award damages, or interest on damages, contrary to this Part ..."

"18(2) If a court is satisfied that interest is payable on damages (other than damages in respect of which a court cannot order the payment of interest under subsection (1)), the amount of interest is to be calculated:

(a) For the period from when the loss to which the damages relate was first incurred until the date on which the court determines the damages, and

(b) In accordance with the principles ordinarily applied by the court for that purposes, subject to subsection (3).

(3) The rate of interest to be used in any such calculation is:

(a) Such interest rate as may be determined by the regulations, or

(b) If no such rate is determined by the regulations - the relevant interest rate as at the date of determination of the damages.

(4) For the purposes of subsection (3) the "relevant interest rate" is the rate representing the Commonwealth Government 10 year benchmark bond rate as published by the Reserve Bank of Australia in the Reserve Bank of Australia Bulletin ...

(5) Nothing in this section affects the payment of interest on a debt under a judgment or order of a court."

1. Trius correctly identified the issue as whether Oceanic's judgment against Trius, pursuant to s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 was "in respect of an award of personal injury damages".

1. Trius developed its argument as follows. Oceanic's liability to the plaintiff was for personal injury damages as defined in s11. Oceanic's claim for damages against Trius for contribution was a claim for contribution to the amount of personal injury damages which it had paid to the plaintiff. As such, it was a claim "in respect of" an award of personal injury damages.

1. Trius submitted that while there was no authority directly on the question, assistance was provided by Firth v Sutton [2010] NSWCA 90. That was a claim in negligence by a plaintiff against her solicitors for failing to commence proceedings on her behalf for personal injury damages. The plaintiff's entitlement to damages against the solicitors was successful at first instance and was upheld on appeal. When assessing the damages to which she was entitled, Allsop P (with whom Macfarlan JA and Young JA) agreed said:

"187 However, interest needs to be dealt with. The value of the lost cause of action was based on recovery of $330,596.42. With a one third deduction for the contingencies of that lost chance the sum of $220,397.61 was reached less the costs of $25,000 producing $195,397.61.

188 This was the value of the chose in action on 1 September 1999 valued at the date of the notional trial. A component of interest should be added to that sum to reflect the deprivation that Ms Sutton suffered in not receiving it in 2000. That interest calculation should, however, take into account the timing of payments of workers compensation entitlements received to the date of the professional negligence trial. These totalled $87,193.70. They were received during the period 1998 to 2009. For present purposes, I will simply deduct that sum from the net value of the chose in action at 1 July 2000 ($195,397.61) giving a rounded down sum of $108,000. This backdating of the amounts received in WC Act benefits to 1 July 2000 is probably to the disadvantage of Ms Sutton. One of the benefits of the lump sum payment was its ability to earn interest. The lump sum could have earned interest, although it would have been drawn down upon for various expenses from time to time.

189 The primary judge dealt with interest in a separate judgment from which there was no appeal. His Honour, correctly in my view, characterised this as a loss of opportunity action and saw interest controlled by the Civil Liability Act 2002 (NSW), s18. His Honour awarded interest therefore on the basis of the long term bond rate. However, his Honour awarded interest only after taking into account the benefit of future entitlements under the WC Act."

1. Trius submitted that this was a stronger case for the application of the CLA than Firth v Sutton . In this case the claim was "in respect of" personal injury damages paid to the plaintiff whereas Firth v Sutton was a professional negligence claim against the solicitor for a lost opportunity to bring a personal injury claim.

1. Oceanic sought to distinguish a claim for personal injury damages by a plaintiff against a tortfeasor from a claim for contribution or indemnity between two tortfeasors. Oceanic submitted that once the plaintiff had obtained a consent judgment against Oceanic, the character of that which Oceanic was claiming from Trius changed. What Oceanic was seeking was contribution towards a judgment which had been entered against it. It did not matter that the judgment had been entered in respect of a claim for personal injury damages.

1. Oceanic also sought to rely upon the provisions of s18(5) CLA that "nothing in this section affects the payment of interest on a debt under a judgment or order of a court". That submission can be quickly dealt with. It is correct to say there was a judgment but it was a judgment between the plaintiff and Oceanic. As of 1 March 2010, there was no judgment in favour of Oceanic against Trius only a right to obtain judgment if ultimately it was successful. Accordingly, s18(5) CLA provides no assistance to Oceanic on this issue.

1. Oceanic also relied upon such cases as Westpac Corporation v Tomassian (1992) 32 NSWLR 207 which held that the statutory claim for repayment of compensation to which an employer was entitled pursuant to s151Z(1)(d) could not be characterised as a "claim for damages under the Motor Accidents Act 1988" and therefore did not have to comply with the procedural provisions of that Act. Oceanic submitted that by analogy this was the same kind of claim and should be characterised in the same way.

1. Oceanic sought to characterise its claim for contribution against Trius in another way. It submitted that from the time when it settled with the plaintiff and paid that judgment, it had taken over the liability of Trius to the plaintiff. It was from that time that Trius as a matter of law owed a debt to Oceanic in respect of its liability to the plaintiff but the amount of that debt did not crystalise until liability was apportioned between it and Trius in the principal judgment. That being so, the claim for contribution was not a claim for personal injury damages.

1. Oceanic submitted that the observations of Allsop P in Firth v Sutton relied upon by Trius were made in passing and did not constitute a considered opinion by his Honour.

Consideration

1. In deciding how to characterise a claim pursuant to s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 it is useful to set out that the terms of that section:

"5(1) Where damage is suffered by any person as a result of a tort ...

(c) Any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution of this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought.

(2) In proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage;

..."

1. Were I coming to this matter unassisted by authority, I would favour the position of Oceanic. Claims against solicitors for professional negligence where that negligence involves a claim for personal injuries, have always been treated as different in character to that which formed their basis. It is for that reason that such claims have a statute of limitations of 6 years whereas a claim for personal injuries has a statute of limitations of 3 years. As Tomassian indicates, the statutory claim for the recovery of workers compensation paid, although it was based on negligence in the driving of a motor vehicle, did not have to comply with the provisions of the Motor Accidents Act 1988 because it was a claim of a different character. The entitlement to bring the action did not arise because compensation was paid as a result of the negligence of the tortfeasor in using a motor vehicle, but from a specific and separate statutory right under the WCA to make such a claim.

1. An employer seeking the recovery of compensation paid from a tortfeasor has an entitlement to interest at either the Supreme or District Court rates. That entitlement does not arise from the statutory power to bring the claim but from the fact of the claim being brought in a court. Cases such as Howard Rotavator Pty Limtied v Wilson (1987) 8 NSWLR 498 and Kwanchi Pty Ltd v Kocsis (1996) 40 NSWLR 270 make that clear.

1. By analogy with those cases, I would have thought that because the right to make a claim for contribution is given by statute and the claim is brought in the Supreme Court, this would give an entitlement to interest at the Supreme Court rate from the date when Oceanic's right to make the claim came into existence, i.e. 1 March 2010.

1. However the approach to interest of Allsop P in Firth v Sutton at [189] is inconsistent with that analysis. I have no reason to regard the observations of his Honour in that paragraph as anything other than considered and I am obliged to follow them. His Honour's observations have particular force because they are made in the context of a claim for professional negligence which has traditionally been regarded as something different to a claim for personal injuries even where the basis for the action arises from a failure to pursue a personal injury claim.

1. I have concluded that I am bound by the authority of Firth v Sutton to find in favour of Trius on this issue. Accordingly, I conclude that the rate of interest payable by Trius to Oceanic on $78,000 is to be in accordance with s18 of the CLA.

Costs order

1. Trius sought a special costs order against Oceanic. The basis for this claim was a document which purported to be an offer of compromise, dated 10 May 2011, which was sent by Trius to Oceanic. In order to understand the argument, it is necessary to set out the contents of that document:

"AGREEMENT

The first defendant and defendant to the second amended cross-claim (the cross-defendant) offers to compromise the second amended cross-claim on the following terms:

1. Judgment for the cross-claimant against the cross-defendant in the sum of $85,000.00.

2. The cross-defendant pay the cross-claimant's costs of the second amended cross-claim as agreed or assessed but only to the extent that those costs were incurred in prosecuting the cross-claimant's claim in tort.

3. This offer is to remain open for acceptance until 5pm on 8 June 2011.

4. This offer is made pursuant to Part 20 Rule 26 of the Uniform Civil Procedure Rules 2005 (NSW)."

1. It was common ground that the second amended cross-claim made claims for breach of contract and contribution pursuant to s5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 against Trius.

1. Trius submitted that the document complied with Part 20 Rule 20. 26 UCPR. It submitted that the amount recovered by Oceanic in the second amended cross-claim ($78,000 plus interest) was less than the offer in the document and consequently, Trius should have its costs in respect of that cross-claim on an indemnity basis from 10 May 2011.

1. Trius submitted that in the alternative, if the document did not comply with Part 20 Rule 20.26 UCPR, it operated as a Calderbank offer and in the circumstances its rejection by Oceanic was unreasonable. One of the circumstances relied upon by Trius was a letter dated 25 February 2010 from its lawyers to those acting for Oceanic in which the deficiencies in Oceanic's claim for breach of contract were pointed out. That letter also advised that Trius was uninsured in respect of the breach of contract claim and did not have assets sufficient to meet it if it were successful. Oceanic was invited to withdraw the claim and advised that if it did not and Trius was successful in defeating it, Trius would claim its costs against Oceanic.

1. Oceanic submitted that the document did not comply with Part 20 Rule 20.26 UCPR in that it was not an offer "exclusive of costs". Oceanic also submitted that in its form the document was obscure and did not make clear exactly what offer was being made.

1. In respect of the alternative claim by Trius, Oceanic submitted that in the circumstances the document could not operate as a Calderbank offer since no reference to such an offer had been set out in it. Oceanic also renewed its submission as to the obscurity of the offer.

Consideration

1. The relevant provisions of Part 20 Rule 20. 26 UCPR are:

"20.26(1) In any proceedings, any party may, by notice in writing, make an offer to any other party to compromise any claim in the proceedings, either in whole or in part, on specified terms.

(2) An offer must be exclusive of costs, except where it states that it is a verdict for the defendant and that the parties are to bear their own costs.

..."

1. I have concluded that the offer is not so obscure as to be ineffective. As I read the document, the offer was to settle all of the claims by Oceanic for $85,000. In relation to costs, Trius proposed that it pay the costs incurred by Oceanic in pursuing its contribution claim but would pay nothing towards the costs of Oceanic's claim for breach of contract.

1. The rationale behind Part 20 Rule 20.26(2) was set out in Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker & Anor (No 2) [2007] NSWCA 194 at [22] (Ipp JA with whom Mason P and McColl JA agreed):

" 22 Part 20 r 20.26(2) reflects the law as stated by Giles J (as his Honour then was) in Associated Confectionery (Aust) Ltd v Mineral and Chemical Traders Pty Ltd (1991) 25 NSWLR 349. In that case, the plaintiff offered to compromise the proceedings by paying the defendant $135,000 "inclusive of costs". Giles J, in adopting the approach of Rogers CJ Comm D in Thiess Contractors Pty Ltd v SCI Operations Pty Ltd (unreported, Supreme Court of New South Wales, 21 September 1990), said (at 350 to 351):

"Part 52, r 17(1), provides that on the acceptance of an offer of compromise, the plaintiff may unless the court otherwise orders tax his costs in respect of the claim against the defendant up to and including the day the offer was accepted. It goes on to provide that if the costs are not paid within four days after the signing of a certificate of taxation the plaintiff may enter judgment against the defendant for the taxed costs. Those words are apt to bring about the result that if the plaintiff had accepted the defendant's offer by the offer of compromise of 29 November 1990 then unless the court otherwise ordered the plaintiff would be entitled to tax its costs. There is immediately a conflict with the fact that the offer was made for a sum inclusive of costs.

Part 52, r 17(2) provides:

'(2) If a notice of offer contains a term which purports to negative or limit the operation of subrule (1), that term shall be of no effect for any purpose under Part 22 or this rule.'

If this subrule be given the effect which its words seem to require the difficulty would be resolved by treating the making of the offer as an offer inclusive of costs as of no effect, and it should be noted of no effect not only for the purpose of Pt 52, r 17(1), but for any purpose under Pt 52, r 17."

Giles J did not go on to consider whether the offer so made took effect as a Calderbank offer."

...

24 Applying the reasoning in Associated Confectionery (Aust) Ltd v Mineral and Chemical Traders Pty Ltd by analogy to Pt 20 r 20.26(2), no effect, in accordance with the Uniform Civil Procedure Rules , can be given to an offer of compromise expressed to be inclusive of the costs of the proceedings. The fact that an offer does not comply with Pt 20 r 20.26(2) does not render it invalid; it merely has no effect under the Uniform Civil Procedure Rules ."

1. The reasoning in Becker is equally applicable to an offer which was not inclusive of costs, but specified an amount of costs. This was the effect of the decisions in Penrith Rugby League Club Ltd t/as Cardiff Panthers v Elliot (No 2) [2009] NSWCA 356 and Tarabay v Fifty Property Investments Pty Ltd [2009] NSWSC 951.

1. In Dean v Stockland Property Management Pty Ltd & Anor (No 2) [2010] NSWCA 141 the Court (Giles JA; Handley AJA and Whealy J) set out at [21] - [29] the alternative approaches to the interpretation of the words "exclusive of costs" as used in Part 20 Rule 20.26(2). The competing approaches were summarised in the following parts of that judgment:

"24 On that argument, the requirement that the offer of compromise be exclusive of costs suggests that the costs are ancillary to a substantive offer from the rationale perceived in Associated Confectionery (Aust) Ltd v Mineral and Chemical Traders Pty Ltd , the substantive offer must be one involving the payment of a money sum. The exception might support the argument. And a party in the position of the appellant, and others in a similar position such as a plaintiff claiming relief not involving payment of a money sum, should not be excluded from ability to make an offer of compromise under the UCPR in which the element of compromise is costs.

25 However, there are also arguments for the meaning that an offer of compromise cannot involve costs at all.

26 The governing reasoning is inconsistency between an offer of compromise and the provisions of the rules with respect to costs. An offer of compromise involving costs will not necessarily be of no effect by force of r 20.26(12), because the costs will not necessarily be inconsistent with a plaintiff's (or defendant's) entitlement to an order for costs. But even in cases not involving payment of a money sum, such as the present case, there will be the inconsistency. And the language of the rule does not confine exclusivity to only some kinds of offers of compromise. The phrase "exclusive of" means "excluding, not comprising of"; "that excludes"; or "so as to exclude" ( Colonial Mutual Life Assurance Society Ltd v Australian and Overseas Telecommunications Corporation Ltd (1993) ANZ Conv R 347). On a natural reading, the requirement that an offer of compromise be exclusive of costs means that it may not involve costs at all."

1. If the interpretation in [26] of Dean is correct, then clearly the offer did not comply with Pt 20 r 20.26(2) UCPR. In that regard, it should be noted that in Frisbo Holdings Pty Ltd v Austin Australia Pty Ltd (No 2) [2010] NSWSC 298 Hislop J held that a defendant's offer of a verdict and judgment for the defendant with the plaintiff to pay 50 percent of its costs offended the rule.

1. As the Court recognized in Dean , such an interpretation of Pt 20 r 20.26(2) "may have a broader operation than either inconsistency between an offer of compromise and the provisions of the rules with respect to costs, or the rationale to which we have referred, would justify". In the absence of full argument on the point, the Court in Dean declined to decide the issue. That appears to be the present state of the law. The facts of this case, of course, squarely raise the issue.

1. In the absence of further guidance from the Court of Appeal, I am reluctant to impose such a significant restriction on the interpretation of Pt 20 r 20.26(2). It would, in my opinion, significantly reduce the effectiveness of the rule which is designed to facilitate settlements.

1. In this case there was no inconsistency between the costs assessment rules and the offer to pay part of Oceanic's costs. There was nothing to stop Oceanic in due course having its costs of the cross-claim assessed. The only restriction was that the costs so assessed would be restricted to those associated with the contribution claim. Such an approach is consistent with the rationale behind the rule as explained in Becker .

1. Accordingly I have concluded that the document does operate as an offer of compromise in accordance with Pt 20 r 20.26 UCPR. It follows that the offer not having been accepted by Oceanic and Oceanic not having achieved a result which was better than the offer, Oceanic should pay the costs of Trius on an indemnity basis from 10 May 2011.

1. Although it is not necessary to deal with the alternative argument of Trius, in deference to the submissions which were made, I should say something about it.

1. In Becker the unsuccessful offer of compromise was held to operate as a Calderbank offer. This was because the offer had in terms indicated that as an alternative, the principles in Calderbank v Calderbank (1975) 3 WLR 586 were being relied upon. That was not the case here. The offer was silent as to any alternative basis other than a reliance upon Part 20 Rule 26 UCPR.

1. Dean is directly relevant. In that case a document purporting to be an offer of compromise concluded with the words "this offer is made in accordance with Part 20 Rule 26 of the Uniform Civil Procedure Rules". It made no reference to any other basis on which the offer was being made.

1. The Court held that whether a document operates as a Calderbank offer depends upon the intention of the offeror as revealed by the terms of the offer. It said:

"33 ... The offer was explicitly an offer of compromise under R20.26. Unlike the offer considered in Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker (No 2) , it was not said that it was intended to operate as a Calderbank offer if it was ineffective under the rules. The statement in the letter that the offer would be relied on in support of an application for indemnity costs did not go beyond affirming that costs would be claimed under the offer of compromise regime in the rules.

34 The intention must be made clear. It would be unfair for a party to be subject to the consequences of a Calderbank offer if it was not made clear that the offer should be treated as such. A party receiving an offer of compromise apparently made under the rules should be entitled to decide whether or not to accept according to the offer of compromise regime in the rules, including deciding whether or not it is an effective offer of compromise."

1. It follows from the reasoning in Dean that if the offer did not comply with Pt 20 r20.26 UCPR, it could not in the alternative operate as a Calderbank offer .

Conclusion

1. It follows from the above reasons that:

(1) The pre-judgment interest payable by Trius to Oceanic is to be in accordance with s18 of the CLA.

(2) Oceanic should have its costs of the proceedings in relation to the claim under s5(1)(c) as agreed or assessed to 10 May 2011.

(3) Oceanic should pay the costs of Trius of the proceedings in relation to the claim under s5(1)(c) after 10 May 2011 on an indemnity basis.

(4) Oceanic should pay the costs of Trius of the proceedings in relation to the contract claim as agreed or assessed up to 10 May 2011.

(5) Oceanic should pay the costs of Trius of the proceedings in relation to the contract claim on an indemnity basis after 10 May 2011.

1. Trius has succeeded in relation to this application. Accordingly, Oceanic should pay the costs of Trius of this application.

1. Since the above matters were the only outstanding matters flowing from the judgment in the principal proceedings, there should be no reason why the parties cannot place before the Court Short Minutes of Order which give effect to the judgment in the principal proceedings and this judgment.

1. Accordingly, I direct the parties to place before the Court at 9.30am on 26 September 2011 Short Minutes of Order so that final orders can be made.

**********

Decision last updated: 29 September 2011