Rolfe v Investec Bank (Australia) Ltd and Ors (Ruling)
[2013] VCC 843
•27 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-09-02073
| JAMES GEOFFREY ROLFE | Plaintiff |
| v | |
| INVESTEC BANK (AUSTRALIA) LTD (ACN 071 292 594) | First Defendant |
| and | |
| GADENS LAWYERS (A FIRM) | Second Defendant |
| and | |
| SUTHERLAND FARRELLY (ACN 004 601 469) | Third Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 and 3 May 2013 | |
DATE OF RULING: | 27 June 2013 | |
CASE MAY BE CITED AS: | Rolfe v Investec Bank (Australia) Ltd & Ors (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 843 | |
RULING AS TO COSTS
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Subject: COSTS
Legislation Cited: County Court Civil Procedure Rules 2008; Wrongs Act 1958; Trade Practices Act 1974
Cases Cited: Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721; Chinese Banking Corporation v Richfield Investments Pty Ltd [2004] VSC 351; GEC Marconi Systems Pty Ltd (t/as Easams Australia) v BHP Information Technology Pty Ltd & Ors [2003] FCA 688; Kheirs Financial Services Pty Ltd and Anor v Aussie Home Loans Pty Ltd and Anor [2010] VSCA 355; Kheirs Financial Services Pty Ltd & Anor v Aussie Home Loans Pty Ltd & Anor (2010) 31 VR 46
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison SC with Mr S Metaxas | Goldsmiths Lawyers |
| For the First Defendant | Dr O Bigos | Arnold Bloch Leibler |
| For the Second Defendant | Mr D Aghion | Colin Biggers & Paisley |
| For the Third Defendant | Mr M Stirling | DLA Piper Australia |
HIS HONOUR
1 This application arises as the result of a proceeding which was commenced by the plaintiff against the first defendant (“Investec”) claiming damages by reason of the loss by the plaintiff of a number of motorcars and other items which were allegedly being stored in containers at a property located at 361-367 Francis Street, Yarraville.
2 By reason of the judgment entered against the plaintiff in the proceeding,[1] Investec now seeks an order for indemnity costs against the plaintiff. In doing so, Investec relies upon a Calderbank letter authored and served by it upon the plaintiff dated 15 December 2011.
[1] Rolfe v Investec Bank (Australia) Ltd & Ors [2012] VCC 2020
3 There is no issue that the Calderbank letter was served upon the plaintiff’s solicitors on or shortly after 15 December 2011. For the sake of brevity I append a copy of the letter to these reasons as the details set out in the letter are not in issue.
Principles to be applied in considering Investec’s application for indemnity costs
4 In Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2),[2] the Court of Appeal:
[2](2005) 13 VR 435; See also the New South Wales Court of Appeal in Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724
(i) re-stated the policy objectives associated with the making of special orders for costs as follows:
· To encourage the saving of private costs and the avoidance of the inherent risks, delays and uncertainties of litigation by promoting early offers of compromise by defendants which amount to a realistic assessment of the plaintiff’s real claim which can be placed before its opponent without risk that its “bottom line” will be revealed to the Court;
· To save the public costs which are necessarily incurred in litigation, which events demonstrate to have been unnecessary, having regard to an earlier (and, as found, reasonable) offer of compromise made by a plaintiff to a defendant; and
· To indemnify the plaintiff who has made the offer of compromise, later found to be reasonable, against the costs thereafter incurred. This is deemed appropriate because, from the time of the rejection or deemed rejection of the offer of compromise, notionally the real cause and occasion of the litigation is the attitude adopted by the defendant which has rejected the compromise. In such circumstances that party should ordinarily bear the costs of litigation.
(ii) Made the following statement as to the approach which should be adopted when considering whether effect should be given to a Calderbank offer, namely:
“The discretion with respect to costs must, like every other discretion, be exercised taking into account all relevant considerations and ignoring all irrelevant considerations. It is neither possible nor desirable to give an exhaustive list of relevant circumstances. At the same time, a court considering a submission that the rejection of a Calderbank offer was unreasonable should ordinarily have regard at least to the following matters:
(a) the stage of the proceeding at which the offer was received;
(b) the time allowed to the offeree to consider the offer;
(c) the extent of the compromise offered;
(d) the offeree’s prospects of success, assessed as at the date of the offer;
(e) the clarity with which the terms of the offer were expressed;
(f) whether the offer foreshadowed an application for an indemnity costs in the event of the offeree’s rejecting it.”
(iii) Approved the statement made by Redlich J in Overseas Chinese Banking Corporation v Richfield Investments Pty Ltd;[3] namely, that:
“Potential litigants should not be discouraged from bringing their dispute to the courts. It is such considerations which underly the general rule that an offer for special costs should only be made in special circumstances.”
[3][2004] VSC 351
Analysis as to Investec’s application for indemnity costs
5 In the present case, it is not put by the parties that issues arise for my consideration in deciding whether the defendant’s Calderbank offer should be given effect to other than those identified by the Court of Appeal in Hazeldene, and accordingly, I will approach my analysis adopting the frame of reference set out by the Court in that instance.
The timing of the offer
6 There is no issue that the offer was made at a late stage in the proceeding shortly after a mediation had been conducted and at a time at which the issues relevant to the proceedings were well understood by the parties.
7 Further, whilst considerable legal costs had been incurred by the parties at the time at which the offer was made, the offer was made well before the trial commenced and at a time at which the plaintiff was aware:
(i) That Investec had commenced proceedings against the second defendant (Gadens) and the third defendant (Sutherland Farrelly);
(ii) That the trial was likely to be one which would occupy some ten days or so;
(iii) That the trial costs were likely to be substantial, and that should the plaintiff fail to make out his case against Investec, it was likely that an order in favour of Investec as to costs would be made and equally, that the plaintiff faced the possibility that he may be liable for the legal costs incurred by Gadens and Sutherland Farrelly.
8 In making these statements, I am satisfied that the plaintiff, given his considerable history of being involved in litigation, would have possessed a reasonable understanding of the significant costs associated with a trial of the type he had initiated against Investec, and that joinder by Investec of two additional parties carried a risk that, should he fail to make good his claims against Investec, he may face an exposure to the costs of the three defendants.
The clarity with which the terms of the offer were expressed
9 In my opinion the offer clearly sets out the defence raised by Investec in resisting the claim made against it by the plaintiff.
10 Putting aside any issue which arose as to the plaintiff’s standing to bring the proceeding (which in itself raised not insubstantial risks for the plaintiff), the plaintiff’s case was largely dependent upon the plaintiff’s allegation that he had informed both Gadens and Sutherland Farrelly of the presence of the containers in which he had stored on Investec’s land, assets of considerable value, which allegation was clearly disputed by those parties
11 Whilst it is put on behalf of the plaintiff that the Calderbank letter made no reference to a claim which was eventually pursued by the plaintiff as to the value of the containers themselves, having regard to the fact that the value of the containers (some $14,000 odd dollars) comprised such a small sum in the total quantification of the plaintiff’s claim (some $700,000), I am not satisfied that Investec’s failure in the Calderbank letter to mention the claim made with respect to the containers was a significant omission which in turn should invalidate the effect of the Calderbank offer.
12 In making this statement, I do so on the basis of my satisfaction that, at the time at which the Calderbank letter was made to the plaintiff, the plaintiff should have been aware that even were he to succeed only in recovering the value of the containers, any costs order made in his favour would have been made subject to the operation of Order 63A.24 of the Rules of the Court which exposed the plaintiff to an order for costs at the level fixed by the scale of costs applicable to proceedings commenced in the Magistrates Court.
Investec’s prospect of success assessed at the time of the offer
13 Having regard to:
· The plaintiff’s inability to provide evidence corroborating the alleged conversation between himself and Ms McMaster;
· The position taken by Ms McMaster, namely that she denied the conversation and the reasons set out in the Calderbank letter supporting Ms McMaster’s position;
· The delay by the plaintiff in raising any allegation that Gadens was the recipient of a letter authored by him as to the containers, and the inability of the plaintiff to prove that such a letter was either sent by him to Gadens or received by Gadens;
· The denial by Sutherland Farrelly of the allegations that the plaintiff had made it aware of the containers or their content;
I am satisfied that the plaintiff should have appreciated that his case was attendant with the presence of a significant risk that he may fail against Investec.
14 Equally however, it could not be said, in my opinion, that the plaintiff’s case had no prospect of success given that the case effectively turned upon whose evidence was to be preferred as to the alleged conversations between the plaintiff and the representatives of Gadens and Sutherland Farrelly.
The application for costs foreshadowed by the offer
15 The offer made by Investec foreshadowed an application for costs from the date of the letter on an indemnity basis, which application was to be made in respect of the costs of each of the defendants, and in that sense the application now made by Investec was clearly foreshadowed to the plaintiff.
16 I am satisfied that the period during which the offer was available to be accepted was an adequate one, particularly having regard to the fact that the plaintiff had attended a mediation at which the relevant issues in the matter had been discussed, at which time he must have been in a position to consider and make informed decisions as to any offers of settlement made by Investec in the proceeding. .
The extent of the compromise
17 Having regard to the timing of the offer, namely that it was made two days after the mediation at a time at which the parties had failed to resolve the matter, and that the parties were facing an expensive trial, the costs of which would involve four parties litigating a hotly contested dispute; the value of the offer to the plaintiff, being the potential costs he would save in the event that his claim failed, was not insignificant.
18 Nonetheless, given the quantum of the plaintiff’s claim, in my opinion the offer possessed the ring of a demand for capitulation on the plaintiff’s part.
Were the terms of the offer more favourable to the plaintiff than the result which was achieved?
19 The offer was made on the following basis:
(a) The proceeding be dismissed with no order as to costs;
(b) The parties each bear their own costs of the proceeding (including all counterclaims and contribution claims);
(c) The terms of settlement shall be kept confidential;
(d) Each party releases and forever discharges each other party from liability in relation to the subject matter of the proceeding; and
(e) Each party agrees not to disparage each other party.
20 It is clear that paragraphs (a) and (b) of the settlement proposed by the Calderbank letter catered for the complete resolution of the proceeding and the saving of considerable legal costs for the plaintiff when compared with the judgment, which requires the plaintiff to meet both his costs, the costs of Investec and potentially the costs of the third parties.
21 Whilst the Calderbank offer required each of the parties to release and forever discharge each other party from liability in relation to the subject matter of the proceeding, in my opinion the presence of that term has no real significance upon the issue as to the value of the offer, the effect of the imposition of this term being identical to the dismissal of the plaintiff’s claim against Investec.
22 It is put on behalf of Investec that the conditions that:
· The terms of settlement shall be kept confidential;
· That each party agrees not to disparage each other party
are of such insignificance that they do not tell upon the question as to whether the Calderbank letter contained an offer which was more favourable than that achieved by the plaintiff. I do not accept this position.
23 The value to the parties of terms imposing a confidentiality term or an agreement not to disparage is difficult to assess however neither involve results which Investec could achieve by verdict, and the inclusion of these terms by Investec suggests that they were of some value to it.
24 It is put by the plaintiff that having regard to:
· The history of litigation between the plaintiff and Investec; and
· The open ended agreement which the plaintiff was required to enter not to disparage Investec;
the entering of such an undertaking by the plaintiff was a significant matter for him, particularly in circumstances in which:
· The plaintiff had been successful in overturning a bankruptcy declaration entered following the action by Investec, as mortgagee in possession, taking action to sell properties in which the plaintiff held an interest; and
· The company of which the plaintiff was the sole working director had previously been successful in recovering a verdict against Investec for a sum in excess of $2 million in respect of the loss of assets which had had been the catalyst for the making of the bankruptcy order against the plaintiff.
25 I accept that in these circumstances, at the very least, the requirement that the plaintiff enter a non-disparaging agreement may well have involved, for the plaintiff, a perception that he was making of a concession which was of some value to the first defendant and of some detriment to him.
Finding as to whether Investec is entitled to rely upon the Calderbank offer made by it in this instance
26 Taking into account:
(i) the fact that I am satisfied that the requirement that the plaintiff enter into a non-disparaging agreement imposed a position upon the plaintiff which was likely to have some significance both for the plaintiff and the defendant; and
(ii) my findings as to the value of the defendant’s offer when considered in the context of the quantum of the plaintiff’s claim;
I am not satisfied that the defendant has made out its position that it is entitled to rely upon the Calderbank offer made by it in this instance.
The costs of the Second and Third Defendants
27 In this proceeding, Gadens and Sutherland Farrelly were joined to the proceeding by Investec.
28 There is no issue that by reason of the fact that the plaintiff has failed in the proceedings against Investec, Gadens and Sutherland Farrelly, are each entitled to an order for their costs. The issue which arises for my determination is against whom any such order should be made.
29 The principles which guide my determination as to this issue are as follows:
(i) A party which commences a proceeding against another bears the risks of doing so insofar as questions of costs arise;
(ii) Where a plaintiff has failed against a defendant and the defendant has joined other parties seeking indemnity or contribution, and no such orders have been made because the plaintiff has failed, generally the parties joined by the defendant are regarded as having succeeded against the defendant;
(iii) The usual order as to costs, namely that the party who commences a proceeding and loses will be required to pay the costs of the party against whom the proceeding was commenced, applies to proceedings between a defendant and parties joined by the defendant;
(iv) Where a third-party claim is dismissed because the plaintiff’s claim against the defendant fails, the defendant will ordinarily be liable for the third-party’s costs of the third-party proceeding;[4]
(v) The order of costs remains a matter of discretion and there may be circumstances which justify a departure from the usual rule.
[4]In this instance the proceeding commenced by Investec against Gadens and Sutherland Farrelly is akin to a third party proceeding
30 In deciding whether a departure from the usual rule is warranted, the following issues will ordinarily need to be considered:
(i) The reasonableness of the defendant’s decision to join the third party;
(ii) Whether the joinder of the third party was reasonably foreseeable by the plaintiff, such that the plaintiff might be viewed as having some responsibility for the costs of the third-party proceeding;
(iii) The responsibility of the plaintiff, defendant and third party respectively for the time taken up in the hearing of the third-party proceeding.[5]
[5]See Kheirs Financial Services Pty Ltd & Anor v Aussie Home Loans Pty Ltd & Anor (2010) 31 VR 46
31 It was put on behalf of Investec, that in the present case “the real fight was between, on the one hand, Mr Rolfe who claimed the goods and, Gadens Lawyers and Sutherland Farrelly as the parties who allegedly had notice of the existence of those goods on the premises … and in the case of Gadens Lawyers with whom Mr Rolfe allegedly entered into an oral agreement for the care of the goods”.[6]
[6]Paragraph 6C of the written submissions filed on behalf of the first defendant
32 Whilst there may be some substance in the position put on behalf of Investec, I am of the opinion that it is of some significance to the exercise of the discretion which I have in this matter:
(i) Firstly, that Investec chose to commence proceedings against the parties it joined to the proceeding, in circumstances in which:
· Investec was aware that each of those parties disputed the allegations of fact relied upon by the plaintiff in asserting his position that they bore responsibility for the losses claimed by the plaintiff in the proceedings, and further, that Investec had a good understanding of the evidence which would be adduced by Gadens and Sutherland Farrelly in defending the probity of their conduct in this instance;
· Investec chose to turn upon both the solicitors and the selling agent which it had engaged, on the basis of allegations denied by them that they had acted inappropriately, which allegations Investec had no reason to believe it would be made out;
Whilst in my opinion this behaviour by Investec has no more than marginal influence upon the issue as to whether Investec’s decision to join Gadens and Sutherland Farrelly was reasonable in the circumstances, equally I am of the opinion that its influence should not be ignored as to the issue.
(ii) Secondly, that Investec’s primary position with respect of the plaintiff’s proceeding was that the plaintiff had no standing to bring the proceeding, which defence it was able to press fully without the joinder of any other party;
(iii) Thirdly, that Investec had taken the position that the plaintiff’s claim was apportionable by reason of the provisions of the Wrongs Act 1958 and/or the Trade Practices Act 1974 which position, if accepted, meant that it had no entitlement to obtain relief against either Gadens or Sutherland Farrelly,
33 Further, it is clear that a factor relevant to the position taken by Investec that the costs of Gadens and Sutherland Farrelly should not be borne by it, arises by reason of the potential that the plaintiff does not have sufficient assets to satisfy any costs order made against him in this proceeding.
34 I am satisfied that this is also a matter which I should take into account upon the issue as to whether an order as to the costs of Gadens and Sutherland Farrelly should be made against the plaintiff or Investec in circumstances in which the plaintiff’s bankruptcy of September 2003 (which was a matter of public record) should have alerted Investec to the fact that issues might arise as to the ability to enforce an order made against the plaintiff with respect to costs.
35 Finally, I am not satisfied that Investec has established the existence of any compelling circumstances which should persuade me that I should not apply the usual practice in applications of this type; namely, that Investec should meet the costs associated with its decision to join Gadens and Sutherland Farrelly in this proceeding.
36 For these reasons I consider it to be appropriate to order Investec to pay the costs of both Gadens and Sutherland Farrelly in this proceeding.
The application by Investec that the Plaintiff should be required to indemnify it in respect of cost orders made in favour of Gadens and Sutherland Farrelly
37 In GEC Marconi Systems Pty Ltd (t/as Easams Australia) v BHP Information Technology Pty Ltd & Ors,[7] Finn J commented upon the existence of “a body of somewhat complex principle” dealing with the incidence of costs in unsuccessful third-party proceedings, from which he extracted the following guiding principles:
(i)The ultimate question is whether in the circumstances, the costs of the successful third party ought fairly be borne by the unsuccessful applicant;
(ii)The common consideration relevant to deciding the issue is whether it was reasonable or appropriate for the respondent to make the third-party claim;
(iii)A common instance where third-party costs will not be passed on is where the third-party claim raised “private issues”; and
(iv)One consideration to be taken into account is whether the applicant’s claim was the catalyst for the third-party claim, the high point of this position being a finding that the plaintiff’s claim rendered the third-party proceedings inevitable.
[7][2003] FCA 688
38 Finally, Finn J commented:
“The third, and perhaps the most significant, consideration is the relationship of the nature of the original application to that of the cross-claim being brought. This nexus has been expressed in various ways: for example, does the nature of an applicant's claim, or do allegations in support of it render it reasonable for the respondent to make in turn the cross-claim that it does … or does the third party claim raise issues private to the parties to it.”
39 The statements made by Finn J in Marconi were echoed by the Court of Appeal in Kheirs Financial Services Pty Ltd and Anor v Aussie Home Loans Pty Ltd and Anor[8] where the Court observed:
[8][2010] VSCA 355 (20 December 2010)
(i)That the usual rule was that costs followed the event and that this rule has been held to apply also to third and fourth-party proceedings, these proceedings between a defendant and a third party being viewed as a separate event;
(ii)The prima facie principle is to be applied subject to the overriding power of the Court to do justice between the parties and to make such orders as the justice of the case may require.
(iii) The usual rule as to costs applies to proceedings as between defendant and third party, the ‘event’ being the success or failure of the defendant’s claim against the third party.
(iv)Where the third party claim is dismissed because the plaintiff’s claim against the defendant fails, the defendant will ordinarily be liable for the third party’s costs of the third party proceeding.
(v)The award of costs remains a matter of discretion, however, and there may be circumstances of the case which justify a departure from the usual rule.
(vi)In deciding (in a case of the kind referred to in (2)) whether any departure from the usual rule is warranted, the Court will ordinarily need to consider at least the following matters:
• The reasonableness of the defendant’s decision to join the third party;
• Whether the joinder of the third party was reasonably foreseeable by the plaintiff, such that the plaintiff might be viewed as having some responsibility for the costs of the third party proceeding. (An order for the plaintiff to pay the defendant’s costs may thus include the defendant’s liability to pay the third party’s costs of the third party proceeding.);
• The responsibility of plaintiff, defendant and third party, respectively, for the time taken up in the hearing of the third party proceeding.
40 In considering the issue as to whether an order should be made that the plaintiff indemnify Investec with respect to its primary liability to meet the costs of Gadens and Sutherland Farrelly, it is clear that I should apply the principles to which I have referred above.
41 The starting point for my analysis of this issue should commence with the pleadings, in which the plaintiff made three claims against Investec:
· Two of which were based upon the allegation that Investec was vicariously liable for various failures alleged against Gadens and Sutherland Farrelly;
· The third of which involved an allegation that Investec was primarily liable to the plaintiff in respect of the loss of the two shipping containers in which the various goods particularised by the plaintiff in his Statement of Claim had been stored.
42 It is beyond argument:
(i) That the most substantial of claims made by the plaintiff against Investec were based upon the alleged failures by Gadens and Sutherland Farrelly, and involved matters in respect of which Investec had very little if no knowledge; and
(ii) That the defence by Investec of the plaintiff’s claim required Investec to adduce evidence from witnesses whose primary involvement in the dealings alleged by the plaintiff arose by reason of their relationship, not with Investec, but with Gadens and Sutherland Farrelly.
43 A simple analysis of the position in which Investec found itself having regard to the proceedings instituted by the plaintiff against it (in which Investec’s major exposure with respect to the quantum of the claim involved actions about which Investec had no knowledge because they were undertaken by employees or representatives of Gadens and Sutherland Farrelly), would suggest that it was quite reasonable that Investec should join Gadens and Sutherland Farrelly as parties to the proceeding.
44 Whilst it is put by the plaintiff that Gadens and Sutherland Farrelly had been engaged by Investec, were Investec’s admitted representatives and that there was “nothing in the circumstances to make the plaintiff think the bank would seek contribution from its submitted representatives”, I do not accept this position.
45 In my opinion it can be reasonably put that the decision by Investec to join Gadens and Sutherland Farrelly was one which the plaintiff could have foreseen given the way in which the plaintiff’s case was pleaded, in that the plaintiff sought to fix Investec with liability in respect of a major portion of the damages claimed on the basis of representations made to the plaintiff by Gadens and Sutherland Farrelly in respect of which Investec had no direct involvement.
46 I am satisfied that in considering the issue as to the entitlement of Investec to an indemnity from the plaintiff as to the costs of Gadens and Sutherland Farrelly, the following additional factors are relevant, namely:
· That with respect to the claims made by the plaintiff against Investec which were based upon Investec’s vicarious liability for the alleged actions of Gadens and Sutherland Farrelly, Investec was not entitled to contribution from either of Gadens and Sutherland Farrelly if, as asserted by Investec against the plaintiff, the claims were governed by the proportionate liability provisions of the Wrongs Act and or the Trade Practices Act,
· That Investec relied upon a legal defence as to the plaintiff’s standing to bring the proceeding which in no way relied upon the evidence or presence in the proceeding of Gadens and Sutherland Farrelly.
· That the plaintiff’s claim as to the loss of the containers themselves was made against Investec directly.
47 In response to the position taken by the plaintiff that there was no need to join Gadens and Sutherland Farrelly as parties to the proceeding given the proportionate liability defences pleaded by Investec, Investec asserts that:
(i) It was difficult for it to determine whether, in the circumstances of the plaintiff’s pleading the claims by the plaintiff against it would be classified as being apportionable; and
(ii) It was appropriate that it should raise the defence that the claim made by the plaintiff was apportionable but adopt a failsafe position by joining Gadens and Sutherland Farrelly as defendants and thus secure its position in the event of a finding the plaintiff’s claim against it was not apportionable.
48 Whilst there may be some merit in this position, I am not satisfied that the weight which should be accorded to the argument should be such that it is telling on the issue.
49 In asserting its entitlement to a Sanderson order against the plaintiff, Investec asserts that the pleading by the plaintiff fell into the category of cases in which it could not be said that there was a significant chance that the plaintiff would succeed against Investec without Investec being entitled to an indemnity against Gadens and Sutherland Farrelly.
50 This position could not be made out, of course, if:
· The plaintiff’s claim against Investec was apportionable;
· Investec’s defence based upon the plaintiff’s lack of standing was made good.
51 Neither could the position be made out with respect to that aspect of the plaintiff’s claim which was based upon the loss by the plaintiff of the value of the two containers.
52 Absent:
(i) The legal defence pleaded by the Investec; and
(ii) The assertion by Investec that the plaintiff’s claim against it was apportionable;
I would have been satisfied that the interests of justice required an order that the plaintiff indemnify Investec in respect of its exposure to the costs of Gadens and Sutherland Farrelly.
53 In the present circumstances however, taking into account all matters of relevance to which I have referred, I am not satisfied that Investec’s position that it should be indemnified by the plaintiff in respect of its exposure to the costs of Gadens and Sutherland Farrelly has been made out.
54 I will hear the parties as to the precise form of the orders which should be made as to costs given the findings which I have made.
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