Rowe v Bishop (No 3) - [2023] SADC 28

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
ROWE AND ANOR v BISHOP AND ANOR (No 3)
[2023] SADC 28
Judgment of his Honour Judge Slattery
31 March 2023
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS
In judgment No.2 in this action, dated 10 May 2022 ([2022] SADC 60), the court dismissed the damages claims of the applicants against the respondents arising out of building work done on the respondent’s property at Kapunda save and except for: (a) a damages award to be assessed for minor rectification work; and (b) the requirement to obtain certification of some of the work done by the respondents that did not comply with the building rules consent obtained for such work.
The counterclaim of the respondents was allowed in full in the amount of $8,576 plus interest.
The respondents were unable to obtain access to the applicant’s property to undertake the rectification work connected with the damages claim or for the certification of the completed works. The respondents obtained a report from a quantity surveyor which estimated the costs of the rectification work at $2,222. The respondents also obtained a report from a building drafter and an engineer to satisfy the local council that the work done by them was sufficient to satisfy the requirements for certification of that work.
Whether the respondents have completed all of their obligations under their building contract with the applicants.
Held:
1.       The obligations of the respondents under their building contract with the applicants are complete and it is appropriate to adjust the claim and the counterclaim of the parties to reflect the applicant’s entitlement to be paid the sum of $2,222.
This action commenced as a minor claim in the Magistrates Court and the respondents made three informal offers to resolve the action: the first, that each party bear their own costs and that the respondent would forbear from pressing their counterclaim for $8,576 for unpaid building works (the 16 December 2019 offer); the second, that the respondents pay the applicants $40,000 inclusive of GST and costs and interest (the 2 June 2020 offer); the third, that the respondents pay to the applicants $45,000 inclusive of GST, costs and interest (the 30 September 2020 offer).
On 1 November 2021, the respondents filed a rules offer at court that they pay to the applicants the sum of $45,000 plus $15,000 in costs (the filed offer).
The applicants rejected each of the settlement offers made by the applicants and in December 2019 obtained an order that the action be remitted to this court after they had increased their damages claim to $1,0008,791.64.
Whether and if so on what basis the respondents are entitled to an order for indemnity costs.
Held:
2.      The respondents are entitled to an order for indemnity costs from 14 days after 16 December 2019. The failure of the applicants to accept this offer occurred in circumstances where, if properly advised, the applicants should have accepted the reasonable offer of the respondents. Instead, the applicants pursued an ill-advised damages claim on which they had no prospects of success and which put the respondents to great cost and expense. Each of the successive offers made by the respondents after the first offer were progressively more reasonable but were rejected.
On the last day of trial, the respondents discovered that the applicants brought the action in their capacity as trustees of a trust. In their pleading, the applicants failed to comply with the requirements of UCR 21.2 and identify their status as trustees.
Whether any particular formal order is required to preserve the rights of the respondents to attach the trust property in the event that the applicants become bankrupt.
Held:
3.      No particular formal order is required. In the event that the applicants become bankrupt, the respondents may claim a right of subrogation to the applicants’ rights as trustees to be indemnified from the trust estate.
The applicants have refused to participate in the proceeding after the court handed down judgment No.2. Whether for UCR 194.3(3), it is appropriate in the exercise of the court’s discretion to make a lump sum order as to the costs of the proceedings.
Held:
4.      In the specific and particular circumstances of this case, it is an appropriate exercise of the court’s discretion to fix a lump sum for costs and disbursements payable by the applicants to the respondents. Order for the payment of costs accordingly.
Uniform Civil Rules 2020 (SA); Planning, Development and Infrastructure (General) Regulations 2017 (SA), referred to.
Octavo Investments Pty Ltd v Knight [1979] HCA 61; (1979) 144 CLR 360 ; Proude v Visic (No2) [2012] SASC 233; France v Siekaup (No.3) [2021] NSWSC 497 [2021] NSWSC 497; Westpac Banking Corporation v Garrett and others [2004] SASC 265 ; SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323; Fountain Select Meats Sales Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA202; Colgate Palmolive Company and Colgate Palmolive Pty Ltd v Cussons Pty Ltd [1993] FCA 536; Cussons Pty Ltd v Colgate Palmolive Company and Colgate Palmolive Company Pty Ltd (1993) 46 FCR 225; Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No.2) (2005) 13VR 435; Black v Tomislav Lipova BHNF Maria Lipovac (1998) 217 ALR 386; Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358; Leichardt Municipal Council v Green [2004] NSWCA 341; BHP Billiton Ltd v Parker (2012) 113 SASR 206, considered.

ROWE AND ANOR v BISHOP AND ANOR (No 3)
[2023] SADC 28

In this action I have delivered two judgments; judgment number 1 on 3 March 2022 and judgment number 2 on 10 May 2022. In my second judgment, I dismissed the claims of the applicants and found that the respondents were entitled to an order on their counterclaim in the sum of $8,576. Any judgment to be entered on this counterclaim amount was subject to the resolution of a number of building matters that required completion under the terms of the building contract between the applicants and the respondents. There were also a number of aspects of the completed building work about which certification by the relevant building rules authority was required in order to regularise the building rules approvals by that authority. Some of the work done by the respondents did not comply with the approvals and it was necessary for that work to be certified. This has now occurred and I will deal with this matter below. In my second judgment of 10 May 2022, I said that I would hear the parties further, including on the question of costs and interest.
On the last day of the trial, 3 March 2022, an application was made by the applicants to remove a number of documents from the tender books. This was in accordance with the orders that I had made requiring adjustment of the content of the tender book to reflect only those matters that were relevant and which were addressed in the evidence. One of the documents which the applicant sought to remove was a copy of the certificate of title of the subject land upon which their house was built and upon which the respondents carried out the building work.
Although the respondents, through their counsel agreed to the request of the applicants, I drew to the attention of all parties that the content of the certificate of title disclosed that the property was held in the name of the applicants and with an entry on the original Certificate of Title ‘with no survivorship’. I indicated that, in the ordinary course, the endorsement on the certificate of title of ‘…with no survivorship…’ indicated that the registered proprietors (in this case the applicants) held the property on trust and therefore, they were only the legal owners of the property, beneficially for a trust. That was a matter which had not been pleaded in the proceedings in contravention of UCR 21.2.
After some enquiries, it was ascertained that a trust had been settled called the Eureka Family Trust, the applicants were two of the trustees of that trust and two further parties, namely Mr Ro Timms also known as ro.i.am.ro and Ms Janette Palladino had been appointed as co-trustees in January of 2022. Those appointments had also not been disclosed to the court by the applicants.
The trust was settled and was the beneficial owner of the property through the legal owner, the trustees. And it later became apparent that the applicants in their own personal position (and so not as trustees) had registered a caveat on the property claiming a proprietary interest in the property arising from these contributions to the improvements on the property. Implicitly at least, the improvements were the building works completed by the respondents on the land. So much I consider certainty. As there were a number of matters still to be resolved within the proceedings, I gave liberty to the parties to file such further affidavit material and to address me further on the question of the form of the final orders to be made. I heard further submissions on 17 November 2022. Present at those submissions was Mr Ro Timms. I enquired of Mr Timms about the whereabouts of the applicants Tony Rowe and Skippy Rowe as well as the second interested party Ms Janette Palladino.[1] Mr Timms informed me that he did not know their whereabouts. An all courts call was made for them and there was no response. At that hearing, the applicants sought to read into evidence the affidavit of Sean Anthony Ryan sworn 5 April 2022 (FDN 90); the affidavit of Sean Anthony Ryan sworn 20 May 2022 (FDN 101); the affidavit of Sean Anthony Ryan sworn 18 August 2022 (FDN 123); the affidavit of Matthew Stuart Alexander Bishop sworn 1 September 2022 (FDN 126); and the affidavit of Matthew Stuart Alexander Bishop sworn 15 November 2022 (FDN 128). I deal with that application below.
[1] T319.14.
There are some preliminary observations that should be made. The applicants pleaded their case and conducted the trial on the basis that they were the owners of the property. They made claims against the respondents in their own names about alleged defects and incomplete work. There was no discovery made about documents concerning the existence of the trust, the trust deed and any co- trustees. The Uniform Civil Rules require that any person who sues as a trustee must disclose that capacity as the party named in the proceedings.[2] The requirements of this rule were not observed by the applicants.
[2] UCR 21.2.
Following my second judgment, the applicants have largely withdrawn from the proceedings. Subject to a number of matters that I deal with later, once this judgment which was adverse to them was delivered, they have largely discontinued their participation in the proceedings.
The applicants are the trustees of the Eureka Family Trust.[3] When the property was purchased by the applicants they did so in their capacity as trustees for that trust.[4] The applicants remained listed as the registered proprietors of the property with no survivorship.[5]
[3]    Exhibit SAR 15 to the affidavit of Sean Anthony Ryan sworn 18 August 2022.
[4]    Ibid at exhibit SAR 16.
[5]    Ibid at SAR 17.
The applicants were willing to use the processes of the court to pursue their claim against the respondents until such time as the court ruled adversely against them. They commenced their proceedings in the Magistrates Court. Later they wished to increase their damages claim to slightly in excess of $1,000,000 and they made an application to transfer the action to this court. As well, the applicants applied for an order that I disqualify myself on the basis of actual or apprehended bias; that application was refused.
In this judgment, I will deal with ancillary issues arising out of my judgment concerning variations and remediation. I will then deal with the question of the orders to be made and the question of costs.
The applications of the respondents came on for a final hearing before me on 22 December 2022. At the time, there was no appearance for any of the respondents or the interested party Mr Ro Timms or Ms Janette Palladino. Attempts were then made from the court to make contact via phone with each of them. Those attempts failed. An all courts call was made for them and there was no response or appearance.
I informed the respondents that on 22 November 2022, my staff sent to all of the parties a copy of the transcript and record of outcome from the hearing of 17 November 2022 it was also mailed to Mr Ro Timms and Ms Palladino. It was sent to the post office box number of Mr Ro Timms who now calls himself ro.i.am.ro, who used post office box 389 at Kapunda. That is also the address of the Eureka Family Trust.[6] I also observed that during the course of these proceedings and until the date upon which I heard this application all of the parties have managed to lodge documents through the CourtsSA portal. As a result, they have had access to the portal and received notifications on this portal of the filing of other documents and or the making of the orders of the court. I made the following orders on 17 November 2022:-
[6]    T368.10-.27.
1.Trial adjourned to Thursday 22 December 2022 at 9.30 am.
2.Respondents to give Notice in writing to the Applicants and to the interested Parties of the adjourned date and time.
3.Respondents shall file and deliver any further written submissions, affidavits, proposed Minutes of Order and List of Authorities in support of their applications including for costs by 4.30 pm on Monday 12 December 2022.
4.The Applicant and the Interested Parties shall file and deliver any further or other written submissions, Affidavits in response, proposed Minutes of Order and List of Authorities by 4.30 pm on Tuesday 20 December 2022.
5.Respondents shall file and deliver upon the Applicants and to the Interested Parties by Monday 12 December 2022.
5.1   List of Affidavits in evidence before the Court on which they intend to read in evidence in support of their application;
5.2   A copy of any document admitted into evidence before the Court, at the trial of this action and upon which they intend to apply.
6.The Interested Party 1, be sent a copy of today’s transcript with no cost to him.
7.Liberty to apply.
8.Costs of today reserved
Adjourned
Trial scheduled for 22/12/2022 9.30 AM at location: Sir Samuel Way Building.
There were also earlier hearings of this action at the court that Ms Palladino attended by telephone. She has not attended personally at this court for these later hearings. On one occasion, after the delivery of my second judgment, the applicants Tony Rowe and Skippy Rowe attended court but refused to sit at the bar table. At the time they asserted they were no longer parties in the proceedings. Nothing has been seen of them since.
For the purposes of the proceedings, Mr Bullock made an application to read into evidence FDN 90, the affidavit of Sean Anthony Ryan sworn 5 April 2022; FDN 94, the affidavit of Sean Anthony Ryan sworn 18 May 2022; FDN 97 and 101, two affidavits sworn by Sean Anthony Ryan on 20 May 2022; FDN 106, the affidavit of Sean Anthony Ryan sworn 23 May 2022; FDN 114, the affidavit of Sean Anthony Ryan dated 30 May 2022; FDN 123, the affidavit of Sean Anthony Ryan sworn 18 August 2022; FDN 126, an affidavit of Mr Matthew Bishop, a respondent sworn 1 September 2022; FDN 128, an affidavit of Mr Matthew Bishop sworn 15 November 2022; FDN 138, an affidavit of Mr Bishop sworn 15 December 2022.
Subsequent to the hearing on 22 December 2022, the court has received and has accepted the affidavit of Matthew Bishop sworn 9 March 2023, FDN 140. Mr Bullock has also sought to read this affidavit into evidence. At the time I was of the view that the respondents needed to prove the service of this material upon the applicants and the other trustees of the Eureka Family Trust. I did not proceed to hear the substance of the respondent’s application until such proof had been given to the court in the form of admissible evidence.
The respondents tendered into evidence a copy of Certificate of Title Registerable Volume 5310 Folio 1419 as exhibit R6. Mr Sean Ryan solicitor then gave viva voce evidence that by email of 15 November 2022, he served upon the applicants and the trustees the affidavit of Mr Bishop of 15 November 2022 (exhibit R15). This document was sent to two email addresses each of which has been previously used to serve documents upon the applicants. The first was an address which he had been using to communicate with Mr and Mrs Rowe since they became self-represented. No responses have been received to those emails. The other email address was for the trustee of the trust [email protected]. I am satisfied from the court records that this was the usual email address at which court documents had been served upon the applicants. This email address was provided by Mr Ro Timms during a hearing before me. The email from Mr Ryan to those two email addresses was admitted to evidence and marked exhibit R17. There was ‘no bounce’ back from either of those email addresses. It is commonly accepted that an email will ‘bounce back’ to a sender if, for example, that email address is no longer in use or has been changed. A lack of ‘bounce back’ therefore also indicates that the email has been received by the addressee. A copy of this document was also sent to a post office box address given by Mrs Palladino in her notice of acting. The document was returned to sender. I will deal with that issue later in these reasons. The letter from FBR Law addressed to Ms Palladino is exhibit R18 and was dated 15 November 2022.
Mr Ryan was in court at a time when an assertion was made by Mr Ro Timms from the bar table that there had not been service upon him of the relevant documents.[7] Whilst in court, Mr Ryan ensured that those documents were served electronically. At that time I was satisfied of such service. In evidence, Mr Ryan confirmed those documents had been sent and received. Exhibit R19 is an email from the office of Mr Ryan forwarded by an employee of Mr Ryan dated 17 November 2022, the date of the last hearing before the court. The email is addressed to the trustee for [email protected] and it enclosed copies FDN’s 128, 126, 123, 97, and 90. I was thus satisfied that these documents had been served on the trustees including Mr Timms.
[7] FDN 128, 126, 123, 97 and 90.
A second email was also sent to the applicants Mr Tony Rowe and Mrs Skippy Rowe identifying the evidentiary material upon which reliance would be placed at the hearing on 22 December 2022. Exhibit R20 is an email from the office of Mr Ryan dated 18 November 2022 addressed to [email protected] enclosing a letter to Tony and Skippy Rowe and was also sent to a post office box address for them. This letter identified all of the evidence upon which reliance would be made at the hearing on 22 December 2022.
Subsequently, written submissions were sent to Mr and Mrs Rowe by email. That email is exhibit R21 and is accompanied by a letter of 18 November 2022. An identical letter of 18^th November 2022 was sent to Ms Palladino. It is exhibit R22. The list of affidavits to be relied upon was also sent to Mr Ro Timm (sometimes called ro.i.am.ro); it is exhibit R23, and it was sent to the email address of trustee [email protected]. It enclosed a letter from Mr Ryan’s law firm of 18 November 2022. A further letter was sent to Ms Palladino identifying the documents upon which reliance would be placed by the respondents. It is exhibit R24 and is dated 18 November 2022. It was sent by post.

Mr Ryan gave evidence that he received the application of 22 November 2022, exhibit R25. This is the application in which I am asked again to recuse myself because I am ‘…sitting in Treason…’ I deal with that application in my fourth judgment. Mr Ryan said that he also received the subsequent letter from ro.i.am.ro trustee dated 23 November 2022. It is exhibit R26. The letter required that all documents be mailed to the address listed on the notice of address for service. I am satisfied on the evidence that each of the documents sent to the email address have been properly and sufficiently served and have been received. Mr Ryan responded to the letter of 23 November 2022 sent by ro.i.am.ro by email on 24 November 2022. That email is exhibit R27. In it Mr Ryan informs ro.i.am.ro that there has been no service of any documents of 14 September 2022 or 28 October 2022 referred to in his letter and that those documents have not been loaded onto the portal and therefore have not been served.
By letter of 12 December 2022, a letter was forwarded to Jannette Palladino dated 12 December 2022 enclosing:-
9.A record of outcome of 17 November 2022, service of written submissions, list of authorities and list of affidavits as well, particular tender book documents were also enclosed.
That letter is exhibit R28. An identical letter was sent to Tony and Skippy Rowe also dated 12 December 2022. That is exhibit R30. The contents are the same and the letter is exhibit R29. An identical letter was sent to Mr Ro.i.am.ro dated 12 December 2022. The contents are the same as exhibits R28 and R29. By email letter of 15 December 2022, Mr Ryan served upon Tony and Skippy Rowe at their email address an application of 15 December 2022 returnable 22 December 2022 and the affidavits of Mr Ryan of 15 December 2022 and of 18 May 2022. That letter is exhibit R31. The same letter was sent to Ms Jannette Palladino by surface mail. It is exhibit R33. Proof of sending is attached to the letter. The same material was sent to the trustee at [email protected]. on 15 December 2022. The email letter is exhibit R34. It was also sent by surface mail to post office box 389 Kapunda SA 5373. A copy of the letter is exhibit R35. There is a stamp upon the letter of proof of postage. In December 2022 Mr Ryan’s firm received a return envelope of the letter sent to Janette Palladino on 18 November 2022. There is an endorsement on the envelope. It reads as follows:-
‘Return to sender
Addressee not recognised
We do not recognise the acronyms
We do not recognise the /or understand the intent
Return address is non-contracting venue
Suspected mail fraud
No assured value
No liability’
That envelope is exhibit R36. The letter of 18 November 2022 is exhibit R24.
Exhibit R37 is a letter addressed to the Court Registrar, Courts Administration Authority from the trustee from the Eureka Trust Po Box 389, Kapunda dated 19 December 2022. That document is admitted.
I am satisfied from this evidence that the respondents have complied with each of the orders that I made on 17 November 2022. I am satisfied that a record of outcome was received by all of the named parties following the hearing on 17 November 2022. I am also satisfied that all parties have received the respondents’ written submissions, the list of authorities and the further affidavit material which supports any further application as well as a list of other received affidavit material upon which reliance would be made for the purposes of the hearing.
There was no appearance for the applicants or the interested parties at the application on 22 December 2022 notwithstanding that notification had been given to the applicant parties and the interested parties (who I will hereafter ultimately refer to as the applicant parties) consistently since 17 November 2022.
I am satisfied that the applicant parties are now deliberately not participating in the court process, they are aware of the orders sought by the respondents and they are aware of the detail and gravamen of the application brought by the respondents. I am satisfied that I may proceed to hear and determine the respondent’s applications in the absence of the applicant parties. I am satisfied that those other parties have deliberately chosen not to make any submissions or file any responding or other evidentiary material about any of the matters upon which I am required to deliver judgment. I am also satisfied that there have earlier been a number of appearances by the interested parties. A co-trustee, Mr Ro Timms (ro.i.am.ro) attended court and on one occasion by telephone. In so finding, I am satisfied that they were and are aware of this proceeding and their application Ms Palladino attended on one occasion by telephone. They described themselves as trustees of the Eureka Trust and implicitly, they understand the process in which they were engaged as trustee and their right to participate in the proceedings. They deliberately did not engage in the proceedings.
As a result, I am satisfied that no unfairness would be occasioned to the applicant parties if I proceeded to hear and determine the respondents’ application. They were applicants in the proceedings and they brought the proceedings seeking a remedy of the court. They have only disengaged from the proceedings when it suited them following my second judgment. And they have continued to file documents at the court since my second judgment. I have earlier mentioned the application by them for me to recuse myself; this is the second such application. The first was the subject of my first judgment. I am also satisfied that Ms Palladino and Mr Timms have filed affidavits informing the court about their interests in the proceedings and announcing their status as the third and fourth trustees. They were therefore aware of and were actively taking an interest in the proceedings. Mr Ro Timms attended part of the trial including on occasions after the announcement to the court by Tony and Skippy Rowe that they would refuse to have anything further to do with the proceedings. That of course has not prevented the applicants from bringing yet another application that I should recuse myself.
I turn first to what is described as variation issues. The variation issues are those matters addressed by Mr Effingham in his reports. Portions of the building work done by the respondents did not comply with the building rules consent obtained from the council. It would be necessary for building rules consent to be obtained for the ‘as built’ work done by the respondent builders.
I have had regard to FDN 126, the affidavit of Mr Bishop of 1 September and FDN 128, the affidavit of Mr Bishop of 15 November 2022. Mr Bishop engaged Mr Schmidt an engineer and Mr Wilson the building drafter to prepare and submit an application for variations of the existing development approval seeking internal assessment of the building rules consent. He undertook to certify that the building work had been performed in accordance with the approval once that was received. I have now received a further affidavit from Mr Bishop of 9 March 2023, FDN 140. In that affidavit, Mr Bishop informs me that the application for a variation to the development approval has now been approved by the council. He exhibits as MSAB3 a true copy of the decision notification form from the Light Regional Council dated 28 February 2023 along with the certified structural calculations from Schmidt Bentley Engineering Consulting and certified as built drawings. This affidavit is admitted to evidence and is marked R38.
Mr Bishop informs me that he has lodged with the Light Regional Council (the local council) the statement of compliance under regulation 104(3) of the Planning, Development and Infrastructure (General) Regulations 2017 in respect of the works performed. A statement of compliance is exhibited and marked MSAB4 to the affidavit.
I refer to paragraph [72] of my second judgment. I then indicated that five matters required attention arising out of the expert report of Mr Effingham. They were as follows:-
1.     Item 5 of the report of Mr Effingham; this item concerns the roof framing timbers used in the reconnection between the main roof cover and the new garage roof. Mr Effingham advises that the builder should have this building solution implemented and approved by the approving authority engineer and provide evidence of suitability. In my opinion, that is a task that is usually required to be done by the builder.
2.     Item 6 in the report of Mr Effingham: roof frame connection. Mr Effingham opines that there are no visible rafter framing anchors. His comment and recommendation is that as he was unable to confirm if the concealed fixings have been used, therefore the builder should be asked to provide evidence of what anchoring details were adopted or insulation of the framing anchors as specified. This is a matter that should be carried out by the builder.
3.     Item 7 in the report of Mr Effingham: the extension of the ridge boards. He describes the problem as being differing connection details throughout the roof frame between the existing ridge boards and the new ridge boards. Mr Effingham recommends that the builder should have the building solution approved by the approving authority engineer.
4.     Item 9 in the report of Mr Effingham: the issue is the brick infill above the windows. The plans suggested that the external cladding above verandah no. 2 and verandah no. 4 and the porch be lightweight timber frame lined with Hardie cement sheet and not brickwork. His recommendation is that the change, which he does not specifically criticise, should be approved in the same manner as for the garage approvals in the original design. Alternatively, an engineer could inspect the work and provide a certification for the works.
5.     Item 17 in the report of Mr Effingham: the roof frame. Mr Effingham opines that the roof frame design has been changed from the approved plans. He recommends that the timber frame be inspected by an approved timber engineer and have the works approved.
I am satisfied from the content of Exhibit R36 that all of the deficiencies described by me in relation to the work and which were described by me at paragraph [72] of my second judgment have now been addressed. I am also satisfied that this work is the subject of an appropriate development approval and a statement of compliance. I am therefore satisfied that these items identified within the Effingham report have been properly addressed and there can be no further claim in relation to them by the property owner.
There was a second aspect to the report of Mr Effingham. He identified a small number of building works that required remediation. The submission of the respondents, which I accept, is that it was and remains practically impossible for any work to be done by Mr Bishop in the process of remediation.[8] The relationship between the parties has completely broken down for the reasons I have set out above. The quantity surveyor appointed by the respondents has assessed the costs of the works and has produced a supplementary report. It is exhibit MSAB2 to the affidavit of Mr Bishop of 1 September 2022, Exhibit R14.
[8] R38 Affidavit of Matthew Bishop sworn 1 September 2022, paragraphs [2] – [5], paragraphs [6], [7] and [8] and Exhibit MSAB – 2.
In Exhibit R14 Mr Bishop informs the court that the quantity surveyor, Mr Chris Sale has undertaken an assessment of the market value of the work identified by me in the second judgment.[9] Mr Sale produced a supplementary report of 12 August 2022 which is exhibit MSAB – 2 to the affidavit. The costings included in that supplementary report address the market rate for the performance of the work identified by me and if Mr Bishop was able to perform that work, he would not charge a margin. Guided by Mr Sale’s report Mr Bishop has now undertaken an analysis of the costs that his business would incur if it was to perform the work; and that analysis is as follows:-
[9] Second judgment paragraph [74].
In light of the evidence before me and following the findings made by me in the second judgment and the conclusions reached at [74] thereof, I am satisfied that an appropriate allowance of $2,222 inclusive of GST should be made in favour of the applicants. In relation to interest on unpaid invoices, I am satisfied that a rate of 5% per annum should be used. This is an appropriate interest rate for pre-judgment interest. The final invoice was rendered on 9 April 2014. The total amount of the claim is $8,576 by the respondents.[10] My calculation of interest to 31 March 2023 is $3,850.98 and the total amount of the counter-claim including interest is allowed at $12,426.98. I will deduct $2,222 to give a final result of $10,204.98.
[10] Second judgment para [65].
I turn then to the question of the position of the costs of the proceeding and consequently of the positions of Tony Rowe and Skippy Rowe. There are two questions to be addressed:-
1. Whether Tony Rowe and Skippy Rowe litigated in their personal capacities or in their capacities as trustees of the Eureka Family Trust and, on either variation, what implications arise for the terms of the final orders; and
2. If the conclusion is that the Rowes litigated as trustees, whether or not it is necessary to make any orders in relation to the recently added trustees, Mr Ro Timms also known as Ro.i.am.ro and Janette Palladino.
I am satisfied that Tony and Skippy Rowe litigated in their capacity as trustees. The court has received the deed of trust which was the subject of a subpoena served upon the solicitors for Tony and Skippy Rowe. This solicitor was identified because Tony and Skippy Rowe (the Rowes) have now lodged a caveat over the property claiming a proprietary interest in the property on the basis that they (allegedly) have paid or contributed to the improvement of the property.
In an email to Matthew Bishop of 9 December 2013, the Rowe’s informed Mr Bishop that the Kapunda property upon which he was working was their business address and that their business is paying for the renovations.[11] Invoices were directed to the Rowes but at their request, the addressee was later changed to Eureka Contracting. The payers of those accounts varied between Eureka Contracting and the Rowes themselves. It is known that the Rowes have at all material times been the trustees of the Eureka Family Trust and have been listed on the Kapunda property as registered proprietors with no survivorship. As I identified at the end of the trial, this indicates that the property is trust property. Mr Ro Timms has informed the court that he has an interest, as trustee, in whether or not these proceedings would touch upon the ‘current equitable interest of title of the real property..’ Jannette Palladino has deposed to her understanding of her role as trustee of the Eureka Trust. She misunderstands her position as trustee and has wrongly asserted that the trustees collectively are the registered proprietors of the property. Nothing turns on that misunderstanding.
[11] Exhibit A1, page 258.
In breach of the requirements of UCR 21.2, the Rowes did not any of their pleaded statements identify their status as applicants. They have not provided any information about their position despite a number of opportunities. It was always within their power to bring forward such information. A very strong inference and in my opinion, it is so strong as to attain a level of certainty arises that they acted as trustees of the Eureka Family Trust in these proceedings. They were in a position to explain the position but did not do so and adduced no evidence on the topic.
In those circumstances, I find that in contracting with the respondents and then subsequently in prosecuting the litigation, the Rowes acted as trustees for the Eureka Family Trust. Having regard to that finding, it is not strictly necessary for me to then discuss a suite of authorities on the point and especially the decision of the High Court in Octavo Investments Pty Ltd v Knight.[12] There can be no doubt that any beneficial interest in trust property may under the principles of subrogation, be available to those creditors whose claims arise from the carrying on of a business by trustees of that trust. The interest such trustee has in the assets held in trust by a bankrupt trustee will form part of the property of a bankrupt divisible amongst his creditors. [13] I am satisfied that it is only upon the bankruptcy of such trustee or trustees that a third-party creditor such as the respondents here may be subrogated to the trustee’s right of indemnity out of the trust property. It is therefore not necessary for me to make any specific orders against the Rowes as trustees for the trust.[14]
[12] [1979] HCA 61; (1979) 144 CLR 360 at [13] – [16].
[13] See also s 5 of the Bankruptcy Act 1966 (Cth) in relation to the definition of property and property of the bankrupt.
[14] See France v Siekaup (No.3) [2021] NSWSC 497; Westpac Banking Corporation v Garrett and others [2004] SASC 265 at [27] –[ 31] per White J.
In Proude v Visic (No 2)[15] Blue J held that it was irrelevant that a party who sued in his own name would do so in his capacity as trustee. It was not necessary to make any endorsement about the existence of the trust. I am similarly satisfied that it is unnecessary for any judgment to be entered against the applicants as trustees for the Eureka Family Trust. I am in a position where I may enter judgment against them in their own names. The Rowes were acting as trustees at the time that they entered into the contract for the building work with the respondents and at the time that they prosecuted the proceedings. I make that finding on the whole of the evidence which I have discussed above. Conversely, it is therefore not necessary to make any particular order against the interested parties, the new trustees who were appointed in January 2022. Similarly, it is not necessary to make any non-party costs orders against them.
[15] [2012] SASC 233.
I turn to the question of costs.
Costs
There were two aspects of the judgment with which I have just dealt that required attention by the respondent. The first was the question of certification and I am satisfied that matter has been resolved by the respondent. The second was the small amount of rectification work. I have now allowed the sum of $2,222 in respect of that claim and I have set that amount against the damages claim awarded to the respondents.
The respondents have been almost completely successful in their claim, they have successfully substantiated their counterclaim and they have completely answered an otherwise unsustainable claim of the applicants for damages. In the exercise of my discretion, they are entitled to the costs of the action.[16]
[16] UCR194.5.
As I have earlier recounted, the matter was heard in the District Court following the elevation of the applicants’ damages claim to $1,008,791.64. Except for the amount of $2,222 and the minor certification matters discussed above they have wholly failed. Any award of damages to the applicants is below the minimum amount specified in the rules.[17]
[17] UCR 194.5(11).
The respondents have been successful in their counterclaim in relation to unpaid fees in the amount of $8,576 on unpaid invoices.[18] These findings raise an important preliminary issue. Judgment number 2 in this action discloses that there was never a prospect for the applicants to make any claim in excess of $1,000,000 in damages or anything like that sum. They succeeded to the extent of $2,222. These findings raise the prospect that on no view of the law or facts, could the applicants’ claim have been justified.
[18] Judgement at [65].
I am satisfied that, on the evidence before me, the respondents made a number of offers to the applicants to resolve the matter. I am satisfied that each of those offers was reasonable. I am also satisfied that those offers were unreasonably rejected by the applicants. I am further satisfied that each of those offers would have produced a more favourable outcome for the applicants than what was the actual outcome of the trial.[19]
[19] Affidavit of Sean Ryan dated 18 May 2022 FDN 94.

On 16 December 2019, the respondents informed the applicant that they were owed about $8,000. This letter set out an offer to settle on the basis that the parties withdraw or forgo their claims and bear their own costs.[20] At the time, the applicants were legally represented and acceptance of this offer would have avoided further legal costs, liability to the respondents for unpaid legal fees and would have avoided an adverse costs order in these proceedings.
[20] Exhibit SAR2 to FDN 94.
In a further letter of 2 June 2020, the respondents analysed the applicants’ claim and drew to the applicant’s attention the difficulty with their claim including that there was no agreement about price and the parties’ arrangement was a cost plus contract. The respondents informed the applicants that if they took into account the likely future costs of the proceeding, the applicants would be placed in a very difficult position and there would be costs penalties if they were unsuccessful in the proceeding. There was a need to have the matter resolved by them one way or another. In the same letter, the respondents made an offer to pay to the applicants the sum of $40,000 inclusive of GST, costs and interest.[21] At the time, the applicants remained legally represented and acceptance of that offer would have obviated the incurring by all parties of further legal costs, their liability to the respondents for unpaid building costs, adverse costs orders as well as receiving a considerable amount in their favour. The applicants rejected this further offer.
[21] Exhibit SAR3 to FDN94.
In my opinion, the failure to accept the offer of 16 December 2019 or 2 June 2020 amounted to an unreasonable failure by the applicants to assess their own legal position and to accept a genuine (and generous) offer.
After the refusal by the applicants to accept the second offer of 2 June 2020, the respondents made a third offer by letter of 30 September 2020. The offer was generally on the same terms but included an increased offer of $45,000 inclusive of GST, costs and interest to be paid to the applicants.[22] The applicants remained legally represented and acceptance of that offer would have obviated the incurring of further legal costs, the liability of the applicants to the respondents for unpaid building costs, adverse costs orders at the conclusion of the proceedings and would have resulted in a payment to them in the sum of $45,000. The offer was rejected. In my opinion, similar to the first two offers, the refusal by the applicants to accept this offer was extraordinarily unreasonable.
[22] Exhibit SAR5 to FDN94.
The respondents filed a formal offer under the Uniform Civil Rules 2020 on 1 November 2021.[23] The respondents offered to enter judgment for settlement of the entire matter on the basis the respondents would pay to the applicants $45,000 by way of damages together with a further amount of $15,000 for costs, in total, the sum of $60,000. As the rules permit, the offer was accompanied by a document setting out detailed reasons which correctly identified why the applicants’ claim for over $1,000,000 was misconceived and set out the position in relation to all contested issues. Acceptance of that offer by the applicants would have obviated their liability to the respondents for unpaid building costs, adverse costs orders and they would have received payment in the amount of $60,000 inclusive of costs.
[23] Exhibit SAR9 to FDN94.
The offer of 1 November 2021 was not accepted and in response, the applicants filed an offer under which they agreed to accept the sum of $283,228.[24] I am satisfied that this offer did not comply with the rules and that their failure to comply with the rules was adequately explained by the respondents.[25]
[24] SAR10 to FDN 94.
[25] Exhibit SAR 11 to FDN94.
In relation to the first three offers, I consider that it was quite unreasonable for the applicants to reject the offers at the time they were made. The rejection of the offer was unreasonable in all of the circumstances.[26] I have taken all of those offers into account in the exercise of my discretion on costs. I have also taken into account that the applicants have, pursued a hopeless case when, properly advised they should have known that there was no chance of success.[27]
[26] SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323.
[27] Fountain Select Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202; (1988) 81 ALR 397; Colgate Palmolive Company and Colgate Palmolive Pty Ltd v Cussons Pty Ltd; Cussons Pty Ltd v Colgate Palmolive Company and Colgate Palmolive Company Pty Ltd [1993] FCA 536; (1993) 46 FCR 225.
An assessment of whether a party has persisted with a hopeless case is one that must be made upon the whole of the evidence available at the time of the commencement of the proceedings, throughout the proceedings and at the time of the assessment by the court of the appropriate level of costs payable by the unsuccessful party. The application by the applicants to increase their claim to in excess of $1,000,000, to transfer the action to a higher court and then to pursue a claim in the manner in which they did was completely misconceived. This is only exacerbated when, at the time when all of these actions were taken by the applicants and about which these issues all needed to be assessed, there were a number of very generous offers made by the respondents which, if properly advised, they should have accepted. They persisted with an obviously hopeless case about which they should have known, that there was no chance of success. Properly analysed, the applicants sought judgment in damages for the sum of in excess of $1,000,000. They obtained a judgment for $2,222 plus some orders for certification which have been completed. Any claim for $1,000,000 in respect of this work was misconceived and ignored all available documentation and information which contradicted the claim brought by them and was also inconsistent with their own evidence at trial.
As I have earlier pointed out, the applicants had the benefit of legal advice during the time that the first three offers were made. They terminated the retainer of their solicitors. They proceeded on a self-represented basis. It was then that they dramatically increased the quantum of their claim. Their conduct was wholly unreasonable.[28] They have failed to comply with the obligations of the Uniform Civil Rules 2020.[29] The effect of their failure to accept the offers of compromise which were so reasonably put by the respondents has been catastrophic. The respondents have been put to extraordinary costs, delay and stress. They are people conducting their own business and they have been delayed and required to incur extraordinary costs as a result of their involvement in a proceeding for a claim for over $1,000,000 which was worth nothing. That claim should never have been pursued by the applicants and particularly not in this court. Each of the offers made by the respondents was reasonable and in accordance with the philosophy of the rules of the Court; they behaved in an exemplary fashion required by the rules of the court.
[28] UCR194.6(2).
[29] Viz Rules UCR 1 and UCR3.
I find that the 1 November 2021 offer was a formal offer within the meaning of UCR 132.4 and was therefore a relevant offer for the purposes of UCR 132.10. Dealing only with the rules offer, I find that under the operation of UCR 132.10(3), in the exercise of my discretion, the respondents are entitled to an award of their costs of the action from 14 days after the service of the offer on an indemnity basis.
I consider that there is a further basis upon which the respondents are entitled to an indemnity costs order in their favour. I have had regard to the applicable authorities.[30] I am satisfied that following the receipt of the letters of offer as I have identified namely, 16 December 2019, 2 June 2020 and 30 September 2020, the failure or refusal of the applicants to accept those offers was unreasonable. I have also found that the applicants deliberately persisted with a hopeless case, when properly advised, they should have known that there was no chance of success. I am satisfied on the whole of the evidence before me at trial, that for reasons known only to themselves, the applicants persisted with their hopeless case irrespective of whether or not it had any chance of success. I am therefore satisfied that under the applicable authorities, the respondents should have the costs of the proceedings on an indemnity basis from 14 days after 16 December 2019. I am also satisfied that the conduct of the applicants was intended to vex and harass the defendants. I am not satisfied that the usual process of the assessment of costs by the court is appropriate in these circumstances
[30] Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No.2)(2005) 13VR 435; Black v Tomislav Lipova BHNF Maria Lipovac (1998) 217 ALR 386; Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358; Leichardt Municipal Council v Green [2004] NSWCA 341, [37]; BHP Billiton Ltd v Parker (2012) 113 SASR 206, [263] [265].
I turn to the question of costs. The application of the respondents is that in the exercise of my discretion, I should fix a lump sum for costs. This submission is made on two bases. It is first said that in light of the refusal of the applicants to continue to participate in these proceedings after my second judgment, it behoves the court to accelerate the process of dealing with the issues of costs and not to delay the determination of costs by taxation. There is much to be said for this view where, as here, the applicants are not participating in the proceeding and the court has made indemnity costs orders.
On the second, UCR 194.3 prescribes costs orders that may be made including for an award of costs on a lump sum basis: viz UCR 194.3.[31] On my reading of the rules and upon a comparison with the previous rules, this is a new form of rule which is not specifically to be found in DCCR263 and 264.
[31] 194.3—Costs orders
The power given under UCR 194.3(3) is a plenary power and in general, the relevant factual circumstances of a case must justify its use. There may be unfairness to the unsuccessful party in using a lump sum costs approach because of the potential comparative paucity opportunities available to that party to test a claim for lump sum costs. That issue, if it is a consideration, does not arise here.
The proper approach is well settled: an indemnity costs order is not a complete costs indemnity. A cost claim in such a case must be both reasonable in amount and also reasonably incurred. These are two primary safeguards for the unsuccessful party facing an indemnity costs order. They must be observed.
A court considering an application to fix a lump sum for the costs of a trial will inevitably adopt the more conservative approach of a referral to taxation. Such an order reflects the appropriate balance of interests. As has been said so many times before about costs entitlements generally, this is not an immutable rule.
The existence of the power under the rule must not be circumscribed by inflexible rules that anchor or effectively stultify the exercise of the discretion. And it is not helpful for me to attempt to prescribe those circumstances where such an order will be made. Anything that I discuss can be no more than indicia or a convention where, in the past, a particular costs discretion has or has not been exercised.
In my view, this is a case where it is appropriate to make a lump sum order of the costs of the action. The reasons are:-
10.The applicants failed to identify their true status as trustees of a trust and so as the legal owners of the subject property of the proceeding, beneficially for that trust (the Eureka Family Trust);
11.The applicant’s claim was completely misconceived and they failed to put a case that could justify their claim for damages;
12.The applicants put a case to the court, that in the end, sounded in damages which were assessed at $2,222;
13.The applicants continued to put to the court a case which was internally contradictory. I have discussed some of these internal contradictions in my second judgment;
14.The applicants contended for a case where their claims exceeded $1,000,000 and they achieved the damages sum of $2,222. In the Magistrates Court, they contended for that claim and insisted upon the action being transferred to a court of superior jurisdiction. In so doing, the respondents were required to incur an elevated level of costs.
15.In the absence of a proper pleading of the existence of the Eureka Family Trust, the applicants, not as trustees, but in their own right:-
(a)    Instructed separate solicitors;
(b)    Caused the registration of a caveat upon the subject property of this proceeding;
(c)    In that caveat, claimed a proprietary interest in the land arising from payments made by them for the improvements to the land; and
(d)    The improvements to the land were, in large part, constructed by the respondents and the applicants thereby disclosed they were prepared, as it suited them, to remain in a conflict of interest between their obligations as trustees and their claimed separate rights as individuals.
16.Following delivery of judgment (No.2) on their claim the applicants have refused to participate in the proceedings further and have put the respondents to great costs and expense in order to complete the hearing of the action and for the preparation of final orders;
17.Notwithstanding, the applicants have now agitated yet a further application that I recuse myself, this time on the basis that I am ‘…in treason…’. The applicants have since judgment (No.2) (and before, as set out above) displayed a disregard for the fundamental tenets that operate upon a claim such as this before the court, the least of which requires their continual involvement in order to finalise a claim which they initiated;
18.The court may reasonably form the view that the intention of the applicants is to delay the respondents in pursuing their rightful claims for costs. The applicants have doggedly displayed their intention to obfuscate at every available opportunity since the second judgment. This contradicts any notion that there will be an orderly and appropriate taxation of costs.
On the assessment of the application for lump sum costs, the respondents read and rely upon the eighth affidavit of Sean Anthony Ryan sworn 15 December 2022 (FDN136). I have marked that affidavit as exhibit R39.
Exhibited to that affidavit is an expert report of Graeme P Arnold of Arnold Costs Solicitors Pty Ltd dated 15 December 2022.
In his affidavit, Mr Ryan informs me that he is an experienced solicitor with over thirty years of experience in property building and construction work. He received instructions from the respondents in about August 2017 and has continued to represent the respondents since that time. In August 2017, his firm’s professional fee charging rates were:-
1.   $440 per hour for senior solicitors (inclusive of GST)
2.   $242 per hour for junior solicitors (inclusive of GST)
3.   $165 per hour for administration staff (inclusive of GST)
Since August 2017, Mr Ryan’s firm has charged the respondents the sum of $95,257.53 excluding GST across thirty eight invoices. These charges include disbursements.
Mr Paul Bullock was retained alone as counsel. In the course of these proceedings, he has rendered accounts in the amount of $31,817.50 exclusive of GST across four invoices. There were two experts retained. C & W Building Services Pty Ltd and Chris Sale Consulting were briefed by the respondents and they charged a combined total of $9,457.50 excluding GST. Otherwise, the only other external disbursement was the trial transcript fee of $2,550.41 excluding GST.
The respondents have paid all of the invoices for Mr Ryan’s firm, the invoices of counsel, the invoices of experts and all other disbursements. The trial occupied four days of hearing time between 28 February 2022 and 3 March 2022. There has been a number of hearings since my judgment No.2 was published on 10 May 2022.
Mr Ryan retained Graeme P Arnold from Arnold Costs Solicitors Pty Ltd to prepare an estimation of the respondents costs on both a standard and indemnity basis up to and including 15 December 2022. Mr Arnold has produced a report which estimates the respondents’ costs on an indemnity basis at $152,803.79 and on a standard basis at $108,045.45. The cost of engaging Arnold Costs Solicitors was $1,342.07.
In his opinion, Mr Arnold assesses the charge rates by the solicitors and by counsel. In relation to any claim for indemnity costs, Mr Arnold expresses the view that the rates charged by the firm of solicitors namely $400 per hour excluding GST and more recently $450 per hour excluding GST from August 2022 were reasonable rates and were comparable to other firms charging practices in the Adelaide market. He also expressed the opinion that the charges of Mr Bullock of $340 per hour exclusive of GST increasing to $410 per hour excluding GST by 2022 were reasonable rates given the complexity of the matter and the issues raised. The fees charged by the experts in the matter were also reasonable.
Mr Arnold expressed the view that a reasonable approximation of the cost incurred on an indemnity basis would require a 2.5 % reduction of professional fees and counsel fees to take into account duplication. He then makes an estimate of a claim for indemnity costs. It is as follows:-
I have difficulty with the calculation of the indemnity costs amounts. The orders that I have made provide that the respondents are entitled to a claim for indemnity costs from 14 days after the 16^th of December 2019. In this calculation no allowance is made for that difference namely, the costs incurred prior to that time, or the Magistrates Court scale, in this calculation by Mr Arnold.
Mr Arnold then addressed the question of party and party costs. He identified that the fees charged by the firm of solicitors were above the District Court scale and sets out a chart recording the charging rate of the firm, the scale and the percentage above scale. It is as follows:-
On average, the charges were about five per cent above the scale rate. Mr Arnold is also of the opinion that it is necessary to make a further reduction to exclude solicitor-client items which are not directly costs of the proceedings and which would not be allowed on a taxation of costs. He opines that as the matter commenced at the Magistrates Court, it must be accepted that party/party costs that may be recovered there are negligible and so an additional thirty per cent reduction should be allowed making the overall reduction of thirty five per cent.
In relation to the charges of Mr Bullock, Mr Arnold is of the opinion that there would need to be a reduction due to the comparison between the rate charged by Mr Bullock and the scale fees as well as a reduction for solicitor-client items and because some of the early work was in the Magistrates Court. He suggested a thirty per cent reduction would cover all of those concerns. There would be no reduction for the costs charged by the experts.
Mr Arnold then set out a summary of standard costs estimates in a chart at the bottom of page three of his report. It is as follows:-
I accept Mr Arnold’s view that in light of the limited amount of the claim of the applicants which would otherwise have been litigated in the Magistrates Court, any costs recoverable in that court would have been negligible. In my opinion, it is appropriate to make adjustments to the calculation of the indemnity costs amounts for that reason. I do not think that an adjustment should be made to the party and party (standard) costs assessment because it does not take into account the indemnity costs orders that I have made. I otherwise accept the opinion of Mr Arnold.

I also consider that in light of my findings and the opinions expressed by Mr Arnold a further discount of ten per cent should be made to the calculation of professional fees and counsel fees paid by the respondents to take into account the negligible recovery that they would of otherwise have made in the Magistrates Court. This is a deduction from the calculation of indemnity costs.
I consider that an allowance of a further ten per cent (12.5% in total) is appropriate bearing in mind that action was removed to this court in December 2019.
I would not make any similar deduction to the experts and miscellaneous expenses because they are costs that are actually incurred and are payable by the respondents.
The total amount of professional fees and counsel fees is in the sum of $140,795.88. A 10% reduction of that figure amounts to $14,079.59 leaving a balance of $126,716.29. Adding back the experts and miscellaneous fees of $12,007.91, this gives a total of $138,724.20. I would then allow a further sum for attendances since December 2022 in the sum of $6,000 for solicitors fees including disbursements and $2,500 for counsel fees. No deduction should be made from these sums. The further addition of these sums achieves a total calculation of costs of $147,224.20.
Pursuant to UCR 194.3(3) I award a lump sum for costs and disbursement in the amount of $147,224.20 on the claim and the counterclaim in favour of the respondents.
On 20 May 2022, I made a freezing order which was continued on 23 May 2022.[32] That freezing order prohibited the applicants from disposing of, dealing with, or diminishing the value of the property at 9 Fuller Street Kapunda. I am satisfied that the freezing order must continue until all final orders, including any final orders that I make about costs, are fully complied with by the applicants. I make the following orders:-
[32] FDN96; FDN108; FDN109.
Upon noting that:
A. The respondents have now obtained all necessary certifications upon updated engineering drawings and other drawings in respect of work performed by them at the applicant’s property and the relevant planning authority has now granted varied development approval in respect of that work; and the quantum of the respondents’ outstanding remediation work is the sum of $2,222.
The Court orders that:-
Judgment
1.   Save insofar as the applicants are entitled to remediation costs in the sum of $2,222 (which costs are to be set off against the applicant’s entitlement to damages), the applicant’s claim be dismissed.
2.   There be judgment in favour of the respondents (as cross claimants) and against the applicants on the counterclaim in the sum of $8,576.00.
3.   The applicants are to pay to the respondents:_
.1        The sum of $6,354 in damages; and
.2        The sum of $3,850.98 in interest
4.   The applicants are to pay to the respondents the costs of and incidental to the proceeding in the sum of $147,224.20.

(1)The Court may order that costs be awarded—

(a) on the standard costs basis, solicitor/client basis, indemnity basis or another basis specified by the Court;

(b) in accordance with the Higher Courts costs scale, Magistrates Court costs scale, Minor Civil costs scale or Fast Track costs scale; or

(c) on a combination of different bases or scales for different components of costs.

(2)The Court may order that interest be payable on an award of costs in respect of a time before judgment is entered for the costs.

(3)The Court may order that costs (including any interest) be awarded on a lump sum or partial lump sum basis.

(4)The Court may order that costs awarded to a party be set-off against any liability of the party (including a liability for costs).

(5)The Court may refer any question about costs (including whether costs should be ordered, who should pay costs or the basis on which costs should be paid) for inquiry and report or determination by a taxing officer.