Rasch Nominees Pty Ltd v Bartholomaeus (No 3)

[2013] SASC 14

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

RASCH NOMINEES PTY LTD & ANOR v BARTHOLOMAEUS & ORS (No 3)

[2013] SASC 14

Judgment of The Honourable Chief Justice Kourakis

7 February 2013

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - THIRD PARTIES

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF ISSUES

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - CO-DEFENDANTS

Judgment on the substantive issues delivered on 30 April 2012. Thereafter, submissions on the form of the final orders and the question of costs heard. On 21 September 2012 orders were made and reasons published.

Following those orders the third, fourth and fifth defendants pursued an application for a lump sum assessment of the costs payable by the second plaintiff and applied for an interim allocator with respect to costs payable by the first plaintiff. In the course of hearing those applications a question arose as to the meaning and effect of the costs orders made on 21 September 2012. The first, second, third, fourth and fifth defendants contended that Order 3 of 21 September 2012 applies further, beyond damages, to the costs attributable to work done on liability. The defendants also contend that the second plaintiff’s liability to pay indemnity costs operates until the filing of its notice of discontinuance.

Held: the application for a lump sum assessment of costs is adjourned, on conditions, for the first plaintiff to obtain reports and put forward any further material – Order 3 of 21 September 2012 varied to apply only to the costs of the defendants attributable to work done relating to the second plaintiff’s damages claim – that is, the second plaintiff is to pay the first, second, third, fourth and fifth defendants their costs on the issue of damages in, and on any other issue peculiar to the second plaintiff’s claim, in the action on an indemnity basis from the date of the joinder of the second plaintiff – the second plaintiff be jointly and severally liable to the pay the costs ordered against the first plaintiff in Order 4.2 and Order 5 of 21 September 2012 – there be an interim allocatur against the first plaintiff on Order 5 of 21 September 2012 in the sum of $150,000.

Supreme Court Civil Rules 2006 (SA) r 107(4), r 271, referred to.
Rasch Nominees Pty Ltd & Anor v Bartholomaeus & Ors [2012] SASC 70; Rasch Nominees Pty Ltd & Anor v Bartholomaeus & Ors (No 2) [2012] SASC 168; Currabubula & Paola Holdings Pty Ltd v State Bank of New South Wales [2000] NSWSC 232; D A Starke Pty Ltd v Yard & Anor [2012] SASC 19; Howards Storage World Pty Ltd & Ors v Haviv Holdings Pty Ltd (2010) 182 FCR 84 ; Keen v Towler (1924) 41 TLR 86; Baronglow Pty Ltd v Thomas (No 7) [2008] SASC 33; Russo v Buck & Ors (No 5) [2010] SASC 27, considered.

RASCH NOMINEES PTY LTD & ANOR v BARTHOLOMAEUS & ORS (No 3)
[2013] SASC 14

Civil

1. KOURAKIS CJ:   This judgment is yet another chapter in the protracted litigation between the parties.  I delivered my reasons for judgment on the substantive issues on 30 April 2012.[1]  I then heard submissions on the form of the final orders and on the question of costs.  I published my reasons on those issues on 21 September 2012.[2]  On 21 September 2012 I made the following orders:

   [1]    Rasch Nominees Pty Ltd & Anor v Bartholomaeus & Ors [2012] SASC 70.

   [2]    Rasch Nominees Pty Ltd & Anor v Bartholomaeus & Ors (No 2) [2012] SASC 168.

   Orders in terms of the orders proposed by the plaintiffs as amended and initialled by me:

   1.      The first plaintiff recovers its award of nominal damages against the first and second defendants assessed in the amount of $1.00.

   2.      Orders numbered 1, 2 and 3 made on 13 June 2012 are recalled and orders in the same terms are made with effect from 21 September 2012 for the purposes of time within which to appeal.

   3.      The second plaintiff pay to the first, second, third, fourth and fifth defendants their costs, on an indemnity basis of the second plaintiff’s claims in the action from the date of the joinder of the second plaintiff on 15 July 2008, to be agreed or adjudicated.

   4.      In relation to the first plaintiff’s claim (FDN 195) against the first and second defendants:

   4.1The first plaintiff is to pay the first and second defendants’ costs, on an indemnity basis, on the issue of quantum of its damages including all reserved costs, up to and including 11 March 2012, to be agreed or adjudicated.

   4.2The first plaintiff is to pay 25 per cent of all of the first and second defendants’ other costs on a party and party basis, to be agreed or adjudicated.

   5.      In relation to the first plaintiff’s claims (by FDN 195) against the third, fourth and fifth defendants, the first plaintiff is to pay their party and party costs and the first plaintiff and the third, fourth and fifth defendants may apply to the Court for further directions.

   Orders made in terms of the orders proposed by the first and second defendants as amended and initialled by me:

   6.      The first and second defendants have liberty to apply for a lump sum costs assessment in respect of any of the costs orders set out in order 4.

   7.      The first and second defendants have liberty to apply for a lump sum costs assessment in respect of the costs order set out in order 3.

   8.      In respect of the first and second defendants’ cross action against the sixth defendant (by FDN 108 and 171):

   8.1There be judgment in favour of the first and second defendants against the sixth defendant on the question of liability.

   8.2The first and second defendants recover from the sixth defendant damages to be assessed and the question of assessment of damages be reserved until further order.

   8.3The question of costs be reserved until further order.

   8.4The first, second and sixth defendants have liberty to apply

   9.    The sixth defendant’s cross action against the first defendant (by FDN 21) and the second defendant (by FDN 22) be dismissed.

   10.    The sixth defendant pay:

   10.1The first defendant’s costs of the sixth defendant’s cross action against the first defendant, on a party/party basis, to be agreed or adjudicated.

   10.2The second defendant’s costs of the sixth defendant’s cross action against the second defendant, on a party/party basis, to be agreed or adjudicated.

   11.    The cross action by the sixth defendant against the third, fourth and fifth defendants be dismissed and that the third, fourth and fifth defendants have their costs of that cross action on a party/party basis.

   12.    The first and second defendants’ third party claim against the third defendant in District Court Action No 1446 of 2006 (by FDN 15 and FDN 25 in that action) be dismissed.

   13.    The first and second defendants pay the third defendant’s costs of the third party claim against the third defendant in the District Court Action No 1446 of 2006 on a party/party basis, to be agreed or adjudicated.

   14.    The first and second defendants’ cross action against the third defendant (by FDN 90 and FDN 91) be dismissed with no order as to costs.

   15.    The first and second defendants’ cross action against the fourth defendant (by FDN 16) be dismissed with no order as to costs.

   16.    The first and second defendants’ cross action against the fifth defendant (by FDN 14) be dismissed with no order as to costs.

   17.    The third defendant’s cross action against the first and second defendants (by FDN 59) be adjourned for further consideration pending the outcome of the appeal.

   18.    There be no order as to the costs of the application for the production of the settlement deed as between the third, fourth and fifth defendants and the first plaintiff.

   Further orders:

   19.    The first and second plaintiffs pay 50 per cent of the costs of the third to fifth defendants on the costs argument.

   20.    The first and second plaintiffs pay all of the costs of the non-parties on the costs argument.

   21.    Otherwise, each party bear their own costs of the costs argument.

   22.    Adjourned to 15 October 2012 at 9.15am for further orders.

   After those orders were made, the third, fourth and fifth defendants pursued an application for a lump sum assessment of the costs payable by the second plaintiff and applied for an interim allocatur with respect to the costs payable by the first plaintiff.  In the course of the hearing of those applications a question arose as to the meaning and effect of the costs orders made on 21 September 2012.  On 21 December 2012 I resolved these disputes by making the following orders:

   1.Order 3 of the orders of 21 September 2012 is recalled and the following orders will be made instead:

   3A.    The second plaintiff pay the first, second, third, fourth and fifth defendants their costs on the issue of damages in, and on any other issue peculiar to the second plaintiff’s claim, in the action on an indemnity basis from the date of the joinder of the second plaintiff on 15 July 2008, to be agreed or adjudicated.

   3B.    The second plaintiff be jointly and severally liable to pay the costs ordered against the first plaintiff in Order 4.2.

   3C.    The second plaintiff be jointly and severally liable to pay the costs ordered against the first plaintiff in Order 5.

   2.Orders 3B and 3C are stayed until further order.

   3.There be an interim allocatur against the first plaintiff on Order 5 of the orders of 21 September 2012 in the sum of $150,000.00.

   4.The application for lump sum assessment of costs is adjourned for the first plaintiff to obtain the reports from Mr Genders and to put any other material on the suitability of proceeding by way of lump sum assessment of those costs.

   4.1.   Order 4 above is made on the condition that the first plaintiff pays the third, fourth and fifth defendants’ interest on the sum of $350,000.00 at the rate payable by the third, fourth and fifth defendants for moneys borrowed by them to pay their legal costs.

   4.2.   That interest is to be paid by the first plaintiff seven days after the presentation of proof of payment of the monthly interest being payable from and including the month of December 2012 until the determination of the first plaintiff’s appeal.

   4.3.   The conditions in order 4.1 and 4.2 above are to operate on the third, fourth and fifth defendants undertaking that it will repay the interest to the first plaintiff if the costs order in Order 5 of the orders of 21 September 2012 is set aside.

   5.The first and second defendants are granted an extension of time within which to lodge an application for permission to appeal the costs orders to close of business on 21 January 2013.

   6.The third, fourth and fifth defendants are granted an extension of time within which to lodge an application for permission to appeal the costs orders to close of business on 21 January 2013.

   7.The first and second plaintiffs may amend their notice of appeal by close of business on 9 January 2013.

   8.Order 4.1 of the orders of 21 September 2012 is varied so that 11 March 2012 reads 11 March 2011.

   9.Reasons reserved.

   10.Each party will bear their own costs of the costs argument.

   11.Liberty to apply.

   I now publish my reasons for making the orders of 21 December 2012.  These reasons should be read with my reasons of 21 September 2012.[3]

   [3]    Rasch Nominees Pty Ltd v Bartholomaeus & Ors (No 2) [2012] SASC 168.

2. I first address the meaning of order 3 of the orders made on 21 September 2012 and the reasons for substituting, for that order, orders 3A, 3B and 3C.

3. The second plaintiff, The South Australian Potato Company Pty Ltd (“SAPC”), is a corporation related to the first plaintiff, Rasch Nominees Pty Ltd (“Rasch”).  SAPC was the proposed tenant of the land (the Land) that Rasch had contracted to purchase from Mr and Mrs Bartholomaeus, the first and second defendants.  Mr and Mrs Bartholomaeus sold the land to the third defendant, Mount Barker Properties Pty Ltd (MBP).  The principal of MBP, Mr Hone, is the fifth defendant.  The fourth defendant, Jondam Pty Ltd (“Jondam”) is another company controlled by him.  I refer to the third to fifth defendants as “the Hone Parties”. 

4. SAPC had claimed damages from all defendants for fraud and for misrepresentations made by them in connection with the sale of the land.  Rasch had alleged the same fraud and misrepresentations as the basis for the orders it sought against all of the defendants to effect a conveyance of the Land to it and in its related damages claims.  My reasons for making order 3 appear in [13] to [21] of my reasons for judgment delivered on 21 September 2012.  In summary, I concluded that SAPC never had a reasonable basis for the derivative damages claim it had made as Rasch’s proposed tenant.   

5. On the other hand, in [36] to [40] of my reasons of 21 September 2012, I found that Rasch’s claims founded on fraud and on statutory misrepresentation were reasonably prosecuted even though Rasch was ultimately unsuccessful.

6. Mr and Mrs Bartholomaeus and the Hone Parties contend that the order, on its terms, applies also to the costs attributable to work done on liability, even though the same work was performed in defence of Rasch’s claim.  The defendants contend that order 3 extends to the costs of the work common to both claims.

7. I accept that the natural meaning of order 3 is as the defendants contend but that construction was not my intention.  I intended that order 3 would apply to the costs of the defendants which were attributable to work done which was peculiar to the defence of the action brought by SAPC, and in particular, to work related to SAPC’s damages claim.

8. That intention clearly appears from the reasons I gave for making the orders.  Moreover, the defendants’ construction would create much tension between order 3 on the one hand, and orders 4.2 (that Rasch pay Mr and Mrs Bartholomaeus only 25 per cent of their party-party costs) and order 5 (that Rasch pay the Hone Parties all of their costs but only on a party-party basis) on the other.  If order 3 included the costs common to both plaintiffs’ claims and if SAPC were insolvent, orders 4.2 and 5 would at least ensure payment by Rasch in the lesser amounts therein ordered and for that reason have some work to do.  However, if SAPC were to pay costs in accordance with the defendants’ construction of order 3, orders 4.2 and 5 are otiose and the defendants will have been compensated for their costs of defending Rasch’s reasonable claim on an indemnity basis.  That is not what I intended.  I made order 4.2 so that Mr and Mrs Bartholomaeus would be compensated by Rasch for only 25 per cent of their costs on the liability aspects of the claim brought against them by SAPC and Rasch.  Similarly, I expected the Hone Parties to recover, pursuant to order 5, the costs of defending the liability aspects of the action brought against them by Rasch and SAPC on a party-party basis only.

9. In my view, there is no reason why Mr and Mrs Bartholomaeus and the Hone Parties should enjoy a greater indemnity than that which I held they should have for the costs of defending Rasch’s claim on liability by reason of the circumstance that SAPC had joined in the action as an, ultimately, unsuccessful plaintiff.

10. The question here is related to, but not the same as, the apportionment of costs between multiple plaintiffs and defendants when one of the parties, on one side of the record, is successful but another is unsuccessful.  Both questions raise for consideration how the cost efficiencies of joint actions should be reflected in costs orders.

11. When defendants who are jointly represented variously fail and succeed, the rule is that the plaintiff is liable to the successful defendant for those costs which are attributable to the work done for that defendant alone and for a proportionate share of the costs of the work performed in common for all defendants.  The origin of the rule is in the Chancery practice as to costs when bills were filed against multiple defendants in order to properly constitute proceedings even though some defendants were only peripherally concerned in the substantial controversy.  A solicitor acting for all of the defendants was, in the absence of an express agreement which provided otherwise, limited to recovering from each defendant the costs only for that work performed exclusively for him or her and for a proportionate share of the costs of the work done in common.[4]  That contractual presumption was, in turn, reflected in the costs orders made against a plaintiff in favour of a successful defendant.  The contractual presumption did not apply to joint plaintiffs who, in the absence of a special retainer, were jointly and severally liable for all of the costs of the jointly retained solicitor.

    [4]    D A Starke Pty Ltd v Yard & Anor [2012] SASC 19.

12. Einstein J reviewed the history of the costs rule in Currabubula & Paola Holdings Pty Ltd v State Bank of New South Wales:[5]

    There is authority for the proposition that the rule of thumb is not to be extended: Korner v H Korner & Co Ltd (supra). The premise upon which the rule of thumb operates is, as has been shown, one which applies only in the case of defendants. To apply it to plaintiffs, as was done in Keen v Towler (supra), is, to my mind, to extend the rule beyond its principled and authoritative basis and to achieve a result which is not self‑evidently just. There is no logical reason why a defendant who is sued by several plaintiffs who are variously successful and unsuccessful should be in a more advantageous position qua joint costs (ie., those costs not referable to any one plaintiff but necessary for the cases of all the plaintiffs), than would be an unsuccessful defendant sued by one successful plaintiff alone. Intuitively, justice would seem to require that a defendant, found to be in the wrong, should bear all the costs which the successful plaintiff would have to incur in bringing the action and should be spared only those costs occasioned by the joining of the unsuccessful plaintiffs. To my mind, this is the correct legal position, as is stated by Mr Mark Orkin QC in Law of Costs (2 ed, Canada Law Book Inc, 1987, para 208.1) as follows:

    Where several plaintiffs sue by the same solicitor, and one succeeds while the others fail, the successful plaintiff will be entitled to recover the whole of his costs from the defendant and not merely a proportion. The unsuccessful plaintiffs will be obliged to pay the defendant’s costs as occasioned by their having been joined unless the Court otherwise orders.

    I respectfully agree with his Honour’s conclusions and with his criticism of the decision in Keen v Towler.[6]  Einstein J’s observations were approved in Howards Storage World Pty Ltd & Ors v Haviv Holdings Pty Ltd & Anor.[7]

    [5] [2000] NSWSC 232 at [104].

    [6] (1924) 41 TLR 86.

    [7] (2010) 182 FCR 84.

13. It is not obvious to me why, if the rule is based on the nature of the retainer, it does not give way when a special retainer, by which defendants are jointly and severally liable, has been agreed.[8]  I also find it difficult to distinguish between one side of the record and the other in terms of the “intuitively” just result.  The “rule of thumb” founded, as it is, in the practice in Chancery is problematic in its application to multiple parties and claims properly joined in one action in accordance with the Judicature Act reforms.  My preference is to approach the costs discretion from the starting point that costs should reflect the way in which the common issues in the joint trial were decided and the reasonableness of the respective claims and defences of the parties.

    [8]    A possible rationale is that a contractual variation of the common law position is a matter of choice which should not affect the application of the rule.

1. It is best to explain my approach by reference to a hypothetical case in which P claims against D1 and D2 in the same action but is successful only on a claim peculiar to D1, having failed against D2, on a common claim made against both defendants.  D1 should not, in those circumstances, be ordered to pay P’s costs of action on the common claim on which P failed against D1 and D2. 

2. The converse is a case in which P1 and P2 bring an action against D based on the same wrongful conduct, but for different injuries, in which P1 succeeds but P2 fails.  In such a case, P2 should not be ordered to pay D’s costs of unsuccessfully defending the wrongfulness of his or her conduct, merely because he or she failed to prove compensable damage resulting therefrom.

3. The general rule I have adumbrated can more readily be applied to cases in which the different verdicts are attributable to discrete and substantial issues.

4. I would apply an analogous rule of thumb when the question is whether the costs on one issue should be paid on a party and party or indemnity basis.

5. The order I made in 4.2 reflected the balancing of the respective successes and failures of Rasch on the one hand and Mr and Mrs Bartholomaeus on the other, on the issue of liability.  The order in paragraph 5 embodies my view of the appropriate costs obligation of Rasch to the Hone Parties on the liability issues.  Those liability issues were common to Rasch and SAPC.  Having dealt separately with the costs obligations of Rasch and SAPC on the issue of damages, there is no reason to impose on SAPC a greater costs burden on the common liability issues than that imposed on Rasch.  For that reason I have, by order 3A, expressly excluded from the indemnity costs order made against SAPC the defendants’ costs of litigating the common liability issues.  On the other hand, there is no reason why SAPC should not be jointly and severally liable for the common costs attributable to the liability issues ordered against Rasch.  SAPC would, in the ordinary course, not be liable for that part of those costs incurred after it discontinued its action.  However, the contractual indemnity given by SAPC with respect to Rasch’s costs relieves me of the need to further complicate these orders.  I therefore fixed SAPC’s joint and several liability for the common costs by reference to the orders made against Rasch.

6. The next issue raised also concerned the operation of order 3, but is now of little consequence because of the variations I have just made.  The defendants contend that SAPC’s liability to pay indemnity costs operates until the filing of its notice of discontinuance.  That is the effect of 6R107(4).[9]  The rule applies generally to a notice of discontinuance filed and served before or after a matter has been ordered to proceed to trial but is subject to an order of the Court to the contrary.  In this case, the order giving the plaintiff permission to discontinue was made in the course of the trial.  It was clear, at least from that time, that SAPC would not pursue its action for damages.  The indemnity costs awarded by order 3A applies only to the damages claim made by SAPC.  There is therefore no need to limit order 3A by reference to a particular time.  The question of the reasonableness of any costs incurred on the SAPC damages claim after SAPC’s announcement in open court that it would not pursue its damages claims can be considered by a taxing master.  From what I have been told, I doubt that there will be any such claim. 

   [9]    Supreme Court Civil Rules 2006 (SA).

7. Insofar as the joint costs are concerned, as I observed, SAPC has given an indemnity for Rasch’s costs liability for work done before and after the discontinuance.  If that indemnity had not been given, the question of the period for which SAPC should be liable for those costs in the event of default by Rasch would have some practical importance.  But for the indemnity, I would have limited SAPC’s liability for the costs awarded against Rasch to the date on which I made an order permitting SAPC to discontinue.  If the issue is of any consequence notwithstanding SAPC’s contractual indemnity, I give SAPC liberty to apply for an order limiting SAPC’s liability to pay the costs awarded against Rasch to the date I made the order in open court.

8. The next issue arises out of the Hone Parties’ application for a lump sum assessment of SAPC’s costs and an interim allocatur with respect to Rasch’s costs. 

9. The plaintiff’s first contention is that I should not consider the application for a lump sum assessment before a short form bill of costs is delivered pursuant to 6R271.[10]  Having regard to the history of the litigation, I am satisfied that the adjudication of costs would not be facilitated by the provision of a short form bill of costs.  I dispense with compliance with that rule. 

   [10]   Supreme Court Civil Rules 2006 (SA).

10. Rasch also opposes the application for a lump sum assessment of its costs because it has not had an adequate opportunity to obtain its own expert assessment as to whether a lump sum assessment is appropriate and, if so, what the lump sum should properly be.  Rasch opposes the application for an interim allocatur with respect to the costs award made against it on the same grounds.

11. The costs expert engaged by the Hone Parties, Mr Arnold, has estimated the costs of the Hone Parties on a party-party basis to be $583,824.43.  Mr Arnold has reported that the Hone Parties’ solicitor has maintained his file, and kept a record of his costs, in a way which readily allows a lump sum assessment to be readily made, with relative certainty.[11]

    [11]   Baronglow Pty Ltd v Thomas (No 7) [2008] SASC 33; Russo v Buck & Ors (No 5) [2010] SASC 27.

12. Order 3 made on 21 September 2012, on its face rendered SAPC liable for all of the costs on liability independently of Rasch’s liability to pay the defendants’ costs on that issue.  Mr Arnold’s report is premised on that construction.  The variation to order 3 now limits the indemnity costs order against SAPC to the defendants’ costs attributable to work performed which was peculiar to the defence of SAPC’s claim.  Those costs are readily identified but I am told that they are insignificant.  On the other hand, orders 3B and 3C make SAPC jointly and severally liable to pay the costs ordered against Rasch.  There is therefore still no difficulty in identifying the costs liability of SAPC on a lump sum basis.  However, the costs awarded against Rasch, for which SAPC is jointly and severally liable, will probably be set aside if Rasch is successful on appeal.  For that reason, the assessment of SAPC’s liability for those costs should be stayed pending the hearing and determination of Rasch’s appeal. 

13. Rasch and SAPC have not yet obtained a comprehensive report from a costs expert because the costs expert engaged by them has not yet perused the Hone Parties’ file.  The parties corresponded or, perhaps more accurately, skirmished, over access to the file and the conditions of that access.  The sticking point appeared to be the protection of privilege in the documents.  That question has now been resolved.  It should have been resolved much more quickly by direct discussion between counsel.  The delay in resolving the conditions on which access would be granted left the expert retained by Rasch with insufficient time to provide a report.  Having regard to Rasch’s failure to more promptly examine the Hone Parties’ file and the absence of any substantial reason to doubt that Mr Arnold’s assessment is not sound, I proceed on the basis that the costs will be assessed to be in the range estimated by him. 

14. Rasch also resists the making of an interim allocatur of the Rasch costs on the grounds that the money might not be recovered from the Hone Parties if Rasch is ultimately successful on appeal.  The material filed by the Hone Parties shows that the cost of the litigation has strained their financial position.  However, on the material put before me I am not persuaded that there is a real likelihood that Rasch would not be able to recover the costs it might be ordered to pay on an interim basis. 

15. The Hone Parties pressed for a resolution of the costs issues despite Rasch’s inability to obtain an expert report because they had borrowed large amounts to pay their solicitors costs.  The Hone Parties claimed that the interest payments on the loan were in the order of $11,000 per month. 

16. Rasch has offered to pay $50,000 to the Hone Parties on account of their costs and has also agreed to pay a sum of $250,000 into Court, on which the Hone Parties could draw down as, and when, allocaturs for costs were made. 

17. After balancing the above considerations, I ordered an interim allocatur against Rasch on Order 5 made on 21 September 2012 in the amount of $150,000.  I also granted Rasch an adjournment for the purposes of obtaining a report from a costs expert and for the purposes of putting any material before me as to why a lump sum cost assessment should not be made.  That was done on the condition that Rasch pays the Hone Parties’ interest on the sum of $350,000 calculated monthly at the rate payable by the Hone Parties for the monies borrowed by them.  The payment is to be paid within seven days of the presentation by the Hone Parties of proof of payment by them of their monthly interest expense from and including the month of December 2012 until the determination of Rasch’s appeal. 

    Costs

18. I ordered that each party bear their own costs of the above determined applications. 

19. Enough is enough.