Sheehan v Dockerty

[2016] VCC 500

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for publication

AT MELBOURNE

COMMERCIAL DIVISION
GENERAL CASES LIST

Case No. CI-15-00686

MARSHALL SHEEHAN	Plaintiff
v.
RICHARD DOCKERTY & ORS	Defendants

---

JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2016
DATE OF JUDGMENT:	6 May 2016
CASE MAY BE CITED AS:	Sheehan v. Dockerty & Ors
MEDIUM NEUTRAL CITATION:	[2016] VCC 500

REASONS FOR JUDGMENT

---

Catchwords:              Practice and procedure – Claim for solicitor’s costs – Statute of limitations – Whether cause of action accrued six years after the date of the last work performed as claimed in the bill of costs – Revised bill issued at a later date within the period of six years before the writ was issued – Whether reliance upon the revised bill of costs permitted – Cause of action vesting in trustee upon solicitor’s bankruptcy – Whether causes of action relating to the claim for legal costs and a second claim had been assigned to the solicitor by his trustee in bankruptcy.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Sheehan (in person)
For the Defendants	Mr M. J. Hoyne of Counsel	Best Hooper

HIS HONOUR:

1The defendants seek to have the proceeding summarily dismissed. The plaintiff, Marshall Sheehan makes two claims against the four defendants:

a.$124,984, for legal costs incurred in 2008 pursuant to a revised bill of costs dated 11 March 2011. Mr Sheehan had served an earlier bill for $55,093.94 on 16 November 2008. This was also for the legal work performed in 2008, although the later revised bill contained a number of additional items;

b.$38,000, representing the purchase price of a Jaguar motor vehicle which Mr Sheehan says was sold to him by one defendant on the basis that Mr Sheehan would pay the purchase price by deducting sums from the amounts he charged for the legal work performed for the other defendants in 2008. In January 2011, the motor vehicle was seized from Mr Sheehan by one of the defendants.

2Mr Sheehan had been a solicitor in Victoria and New South Wales for many years. There appears to have been confusion as to whether he was entitled to practice as a solicitor in Victoria after June 2008. Mr Sheehan alleged that he did legal work for Mr Anthony Dockerty, who died in December 2013, and for associated companies and trusts.

3The administrator of Mr Anthony Dockerty’s estate is the first defendant. The former car sales business of Mr Anthony Dockerty is the second defendant, now deregistered and no longer participating in the proceeding. The third and fourth defendants are corporate trustees of family trusts established by Mr Anthony Dockerty.

4Mr Sheehan commenced the present action in the County Court on 6 February 2015. He had attempted to file the writ on 18 December 2014, but was unable to do so because the writ he presented to the Registry was not in a state to be issued.

5Early in 2014, Mr Sheehan had commenced a proceeding in the Supreme Court of New South Wales. There were 12 defendants. The “Estate of the late Anthony Richard Dockerty” was the fourth defendant and a claim was made against him for “malicious falsehood”. In October 2014, the proceeding was transferred to the Supreme Court of Victoria. An amended statement of claim filed in June 2015 alleged that Mr Anthony Dockerty had published false statements concerning Mr Sheehan.

6Mr Sheehan alleged in a later draft statement of claim he sought to file in the Supreme Court of Victoria, that Mr Anthony Dockerty had “refused and failed to pay legal fees due by him, his companies and trusts to [Mr Sheehan] for legal professional services provided to [Mr Anthony Dockerty] and his companies and trusts and unlawfully recovered possession of [the Jaguar motor vehicle] purchased by [Mr Sheehan] from [Mr Anthony Dockerty’s] company…. whereby [Mr Sheehan] lost the value of the consideration he had provided to acquire the vehicle and … has suffered pecuniary loss in the sum of $231,332.14… which sum [Mr Sheehan] claims from [Mr Anthony Dockerty’s estate]”.

7On 15 October 2015, Dixon J dismissed Mr Sheehan’s claim against Mr Anthony Dockerty’s estate. Justice Dixon noted that the estate (and other defendants) “have repeatedly drawn the serious defects in the pleading of claims against them to [Mr Sheehan’s] attention. Yet [Mr Sheehan] has experienced considerable difficulty in formulating with clarity and particularly his cause of action against those defendants” (paragraph 71). Justice Dixon stated that if the proceeding were “left on foot, there will be no progress” (paragraph 73), and accordingly must be dismissed.

8Justice Dixon considered that Mr Sheehan’s “allegations for debt”, which he sought to introduce by further amendment to the claim were “statute barred” and, because of Mr Anthony Dockerty’s death in 2013, “his estate would suffer very significant prejudice if the [debt claim and other claims] were now permitted to be brought” (paragraph 36).

9Mr Sheehan informed me that on 26 April 2016 he had filed an application with the Court of Appeal Registry seeking leave out of time to make an application for leave to appeal against the orders made by Dixon J on 15 October 2015, including the order dismissing the claim against the estate of Mr Anthony Dockerty.

Mr Sheehan’s adjournment application

10Mr Sheehan applied to have the defendants' summons seeking summary dismissal of the claims adjourned until after the conclusion of the appeal process in relation to the orders made by Dixon J on 15 October 2015.

11I allowed defendants’ counsel, Mr Hoyne, to proceed with his application without, at that time, determining the adjournment application. I considered that this was necessary in order to fully understand the consequences, if I were to accede to Mr Sheehan’s request and adjourn the defendants' application.

12There appeared to be some inconsistency in Mr Sheehan’s application as Mr Sheehan conceded that, if successful in the appeal process from Dixon J’s order, he would be seeking to have the debt claim for the legal costs from 2008 reinstated as part of the disputes to be determined in the Supreme Court proceeding.

The basis for the defendants’ application

13Mr Hoyne limited his argument in support of the summary dismissal of Mr Sheehan’s claims against the defendants to the following matters:

a.in relation to the debt claim for the costs incurred for legal work performed in 2008:

i.the debt was statute barred when the writ was issued in February 2014 as Mr Sheehan had served an earlier bill on 16 November 2008. The attempt to serve a revised bill on 11 March 2011 was ineffective, as service of a revised bill should not be permitted. Further, the limitation period commenced on the last date work which was charged for in the bill of costs, was performed. In the case of the bill dated 16 November 2008, the last item of work claimed was on that same day. The revised bill included work up to 5 December 2008;

ii.Mr Sheehan became bankrupt on 30 June 2008. His ability to recover the legal costs, i.e. the causes of action, vested in his trustee on behalf of his bankrupt estate. The debt had not been assigned, as had other matters, by the trustee to Mr Sheehan pursuant to a deed of release dated 26 May 2015;

b.in relation to the wrongful taking of possession of the Jaguar motor vehicle, this claim had also vested in the Trustee in Bankruptcy and had not been assigned to Mr Sheehan by the deed dated 26 May 2015.

Can a solicitor serve a revised bill of costs?

14The initial bill of costs served by Mr Sheehan was dated 16 November 2008 and was addressed to “Mr A. R. Dockerty”. The bill was headed, “Memorandum of interim fees due to Marshall Sheehan Solicitor: Dockerty ats Flood Supreme Court of Victoria No. 6176/2006”. The bill included 31 items, the first for work performed on 13 June 2008, the last for work performed on 16 November 2008. The costs totalled $50,085.40 plus GST of $5,008.54; “total due and payable $55,093.94”.

15The revised bill of costs is headed “Amended Bill of Costs Dockerty v Flood; Supreme Court of Victoria. Pursuant to Costs Disclosure Agreement dated 22 April 2008”. According to Mr Sheehan, the bill was served on Mr Anthony Dockerty on 11 March 2011. The bill has 71 items, the first for work performed on 23 April 2008, the last for work performed on 5 December 2008. The solicitors fees totalled $107,134 and with counsel’s fees of $17,850, the “total costs and disbursements” claimed was $124,984.

16Mr Hoyne relied upon a number of authorities for the proposition that a solicitor was not permitted to serve a revised bill of costs:

a.In re Hopkins, a solicitor (1891) 17 VLR 85 (“Hopkins”) was a decision of A’Beckett J. In that case, a solicitor sought to substitute “another bill of costs for an amount nearly the same as the first bill, but having certain items, considerably varied, some being for more than the corresponding items in the first bill and some less”.

Justice A’Beckett accepted that a solicitor “cannot substitute a fresh bill when he discovers that the client intends to have the original bill taxed”. Justice A’Beckett restated “the general rule that a solicitor delivering a bill of costs is not allowed to substitute another unless its delivery has been clearly and legitimately conditional or accompanied by a distinct intimation that it is not that of which payment is sought, and is incomplete and subject to amendment”.

b.In re A. D. Michie, a solicitor (1898) 24 VLR 440 (“Michie”) was a deicision of Hood J. Justice Hood stated that “A solicitor, unlike an ordinary creditor, is not at liberty to send in a corrected account. He sends in his bill of costs, and is bound by it. But he may impose fair conditions…But a solicitor is not entitled to say ‘There is my bill of costs! If you do not pay it I shall send in a larger bill for taxation’”.

c.Redfern v Mineral Engineers Pty Ltd [1987] VR 518 (“Redfern”) was a decision of Tadgell J. Justice Tadgell noted that the “general rule” that “a solicitor who has delivered his bill is not entitled as of course to reduce his demand or to deliver another bill containing other items” had been “applied in Victoria when a solicitor sends his client a bill of which he unconditionally demands payment”, citing Hopkins and Michie.

Justice Tadgell noted that, “The courts’ surveillance over costs as between solicitor and client is assumed with a view to preventing any unfair advantage by solicitors in their charges to their clients…were a strict view not taken it might be open to a solicitor to overreach his client or otherwise act oppressively towards him on the matter of costs”.

17Mr Sheehan made the following submissions:

a.the authorities were restricted to cases where a bill of costs had been “filed for taxation”, which was not the case with Mr Sheehan’s bills which had only been served on the client;

b.the Legal Profession Act 2004 (Vic) is a code which contains the only restrictions on a solicitor serving a bill of costs;

c.a revised bill should be permitted to be served where the solicitor has overlooked certain items in the earlier bill through an “honest mistake”.

18It is correct that the authorities I have referred to, and upon which Mr Hoyne relied, are all cases arising in the context of the taxation of a bill of costs. In the present case, as Mr Sheehan conceded in argument, Mr Dockerty had sought to tax the bill dated 16 November 2008. Mr Sheehan referred to a police statement by Mr Dockerty’s former solicitor, Mr Howard Obst, dated 21 August 2009.

19Mr Obst said in the statement that, “In January 2009, my office prepared a summons for taxation in relation to Sheehan’s bill of costs dated 16 November 2008”. The taxation apparently did not proceed as information arose about Mr Sheehans capacity to engage in legal practice. Mr Sheehan said that the summons for taxation was “adjourned sine die”.

20In my view, the principles enunciated in the cases to which I have referred are applicable to Mr Sheehan’s revised bill of costs. Mr Sheehan seeks to recover, by action, the amount of the revised bill rather than the lesser quantum of the earlier bill.

21In these circumstances, the courts will intervene as equity must take account of “considerations of public policy and undue influence…by which the general rules in relation to taxation of costs were formulated” (see Redfern per Tadgell J at page 523 and the Full Court, in Woolf v. Trebilco [1933] VLR 180 (“Woolf”) particularly Lowe J at pages 191-2).

22Ordinarily, costs dispute matters are resolved upon a taxation as the relevant legislation imposes pre-conditions to recovery actions by solicitors for their legal costs and gives litigants the right to challenge a bill by having it taxed. Ultimately, however, if a bill of costs is not paid, a solicitor would need to proceed by way of action to recover the costs.

23As Lowe J set out in Woolf, legislation dealing with the taxation of solicitor’s costs has a long history going back many centuries. The present position is regulated by the Legal Profession Act 2004 and by the establishment of the Costs Court pursuant to section 17C of the Supreme Court Act 1986 (Vic). The Costs Judge now has more extensive power than the former Taxing Master to regulate the form and content of bills of costs.

24In the context of costs recovery litigation, a trial judge must intervene as appropriate, including, in this court, by the exercise of the general powers granted by section 49 of the County Court Act 1958 (Vic). These powers would include, in my view, the power not to permit a solicitor, who has “delivered his bill,” from serving “another bill containing other items”, or, in an appropriate case, allowing “what is in effect an amendment of a bill in deserving cases” (see Redfern per Tadgell J at page 524).

25In the present case, Mr Sheehan said that in the Supreme Court action in which he represented Mr Dockerty, Mr Dockerty’s wife made an allegation that Mr Dockerty had engaged in tax fraud – apparently selling cars, partly for cash, which was concealed by false invoices. To counter this allegation, Mr Sheehan said that he had requested Mr Sheehan to deliver to him bundles of invoices from his business. Mr Sheehan would study the documents and then discuss any unusual transactions with Mr Dockerty the following week.

26Mr Sheehan said that this was “the majority of work I overlooked” in preparing the first bill of costs dated 16 November 2008, although Mr Sheehan said there were “other matters I had also overlooked”. Mr Sheehan said that he had not included these matters in the earlier bill because the relevant documents were “not in my possession when I prepared the first bill”. In November 2008, the documents were “in storage” as he “had moved residence and had nowhere to keep them”.

27Mr Sheehan said that after November 2008, he did not send out a revised bill until 7 March 2011 because of the allegations made against him that he was not entitled to practice as a lawyer which led the Law Institute of Victoria to say he “could not render fees”, and because he did “not have access to documents”.

28I consider, on the authorities, (particularly Redfern) that this explanation, even if wholly accepted would not be a sufficient basis for relieving Mr Sheehan from the consequences of not having included the additional items in the earlier bill. Further, when the further 40 items in the revised bill are studied, there is little reason to accept the credibility of Mr Sheehan’s explanation.

Cause of action accrues when last work charged was performed.

29Mr Hoyne relied upon the following cases to support the proposition that, where a solicitor sues upon a bill of costs, the cause of action accrues on the date when the last item of work charged for in the bill was performed:

a.in Coburn v Colledge [1897] 1 QB 702 (“Coburn”) the English Court of Appeal considered the question of when the cause of action arose in a proceeding for the recovery of legal costs;

The Court of Appeal noted that, “a solicitor stood in the same position as any other person who has done work for another at his request and could sue as soon as the work which he was retained to do was finished, without having delivered any signed bill of costs or waiting for any time after the delivery of such a bill” (per the Master of the Rolls, Lord Esher, at page 706).

The Court of Appeal held that section 37 of the Solicitors Act 1843, which provided that a solicitor could not bring an action until the expiration of one month from the delivery of a bill, ”deals, not with the right of the solicitor, but with the procedure to enforce that right. It does not provide that no solicitor shall have any cause of action in respect of his costs or any right to be paid till the expiration of a month from his delivering a signed bill of costs, but merely that he shall not commence or maintain any action for the recovery of fees, charges or disbursements until then” (per Lord Esher MR at page 706).

b.The Full Court in Harris v Gas & Fuel Corporation [1975] VR 619 at 623-4 cited Coburn as authority for the proposition that a “solicitor’s cause of action [for legal costs] accrued when he did the work [and that] it may therefore be accepted that a cause of action accrues when there have occurred all the facts which are material to be proved to entitle the plaintiff to succeed”;

c.Justice Button, in the Supreme Court of New South Wales in Cockburn v Shehadie [2013] NSWSC 758 (“Cockburn”) noted that, “since Coburn v Colledge…it has been established that a cause of action founded on legal fees accrues from when the last work was done”;

d.Justice Robson, in the Supreme Court of Victoria in Batrouney v Forster [2015] VSC 230 (“Forster”) considered a submission that, “when a practitioner performs work for a client at the client’s request, the client becomes liable to the practitioner (and the cause of action accrues), even though the practitioner has not yet rendered a bill of costs”. Both Coburn and Cockburn were cited as authority for the submission. Justice Robson stated, “I accept the principles established in Coburn v Colledge. As it is, I have not needed to rely on them”.

30The Court of Appeal overturned the decision of Robson J in Forster: [2016] VSCA 80. The obiter of Robson J in relation to “the principles established in Coburn” was not a matter discussed in the judgment of the Court of Appeal.

31Mr Sheehan submitted that section 3.4.33(1) of the Legal Profession Act 2004 either excluded the operation of the Limitation of Actions Act 1958 (Vic) or extended the limitation period for the recovery of legal costs by the 65 days referred to in section 3.4.33(1).

32Section 3.4.33(1) provides that, “A law practice must not commence legal proceedings to recover legal costs from a person until at least 65 days after the law practice has given a bill to the person…”.

33In my view, this was the argument rejected by the English Court of Appeal in Coburn and which has been accepted as good law by the superior courts in Victoria and other jurisdictions in Australia.

34The last item of work in the bill dated 16 November 2008 was that day. The last item of work claimed in the revised bill was 5 December 2008. This proceeding was issued on 6 February 2015, more than 6 years after the cause of action accrued. Whilst Mr Sheehan says that he delivered the writ to the Court Registry on 18 December for issuing, that would not have affected the position, even if the writ had been accepted and issued on that day.

Did the causes of action vest in the trustee in bankruptcy?

35Mr Sheehan became a bankrupt upon a debtor’s petition on 12 September 2006. He was discharged from bankruptcy on 13 September 2009, but again was bankrupted on 21 April 2011. In 2014, Mr Sheehan commenced Federal Court proceedings against his trustee in bankruptcy, Mr Paul Burness.

36On 27 May 2015, Tracey J in the Federal Court made orders by consent that the proceeding be dismissed and with a declaration that, “Insofar as the debts allegedly owed to the applicant by the following persons relate to fees and for professional services rendered while the applicant held a valid practising certificate, the applicant has the capacity to exercise and to take proceedings in respect of those debts on 18 December 2014 when the applicant issued recovery proceedings…the Estate of the Late Anthony Richard Dockerty, ARD Holdings (Vic) Pty Ltd, AJ Ferguson & Co as trustee of the Tony Dockerty Family Trust and R Ferguson Holdings Pty Ltd as trustee of the Dockerty Family Trust”.

37On 26 May 2015, Mr Sheehan and Mr Burness had entered into a “Deed of release”. The deed provided for the orders to be made in the Federal Court proceeding. By clause 4.1, the deed further provided that, “To the extent that it is necessary, [Mr Burness and his] Associates hereby assign to [Mr Sheehan] all of [their] right, title and interest in the Assigned Debts”.

38“Assigned Debts” were defined in clause 1.1 of the deed as meaning “any debts owed to [Mr Sheehan] listed in [his] letter dated 17 February 2015 annexed to this deed, for fees and/or disbursements relating to professional services rendered while [Mr Sheehan] held a valid legal practising certificate”.

39The letter dated 17 February 2015, provides “particulars” ordered by Justice Tracey on 6 February 2015. That order required Mr Sheehan to provide particulars of the “debtors of the bankrupt estate” including:

“(i)       debtor’s name;

(ii)      date debt incurred;

(iii)     date(s) on which work was performed;

(iv)     description of work performed;

(v)      details of invoices rendered with respect to work performed;

(vi)     details of disbursements incurred with respect to work performed;

(vii)     amount outstanding”.

40In the letter dated 27 February 2015, Mr Sheehan provided the following details:

“(i)       The Estate of the late Anthony Richard Dockerty, ARD Holdings (Vic) Pty Ltd, AJ Ferguson & Co Pty Ltd as trustee of the Tony Dockerty Family Trust and R Ferguson Holdings Pty Ltd as trustee of the Dockerty Family Trust;

(ii)24 November 2008;

(iii)30 June 2008 to 5 December 2008;

(iv)defending an application for an alteration of property interest brought by Jacqueline Flood in the Supreme Court of Victoria (Flood v Dockerty & Ors proceedings no. 6176 of 2006);

(v)invoice rendered on 24 November 2008;

(vi)Disbursements due to Mr G McCormick of Counsel $17,850.00 (clerk Gordon & Jackson);

(vii)sum due $148,541.00 and continuing at $27.50 per day. A draft County Court Complaint was supplied to solicitors for the estate and by them to Burness who has not acted on it”.

41Mr Hoyne submitted that:

a.By reason of the operation of sections 58 and 116 of the Bankruptcy Act 1966 (Cth), the right of Mr Sheehan to pursue the claims in the present proceeding vested in his trustee when Mr Sheehan became bankrupt;

b.the claim for legal fees, according to the particulars given in the letter dated 17 February 2015, related to the invoice rendered on “24 November 2008” and not to the revised bill dated 11 March 2011, and was therefore not a matter assigned by the deed of release;

c.the claim relating to the wrongful taking of possession of the Jaguar motor vehicle was not referred to in the letter dated 17 February 2015 and therefore was not a matter assigned by the deed.

42Mr Sheehan responded that:

a.the right to claim in the proceeding was “after-acquired property” and did not vest in the trustee;

b.each right of action represented “income earned during a bankruptcy [and] came within after-acquired property”, as follows:

i.the legal costs claim represented “deferred income” or “income earned before a bankruptcy but not received until during the bankruptcy” and was therefore “income which the bankrupt is entitled to retain for his own benefit” (per Burchett J in Knight v DCT (1987) 79 ALR 347 (“Knight”) at page 355, cited by Dixon J in his judgment in Sheehan v Brett-Young (no. 3), [2016] VSC 39 at paragraph 35);

ii.the relief sought in the claim for wrongful possession of the Jaguar motor vehicle was damages comprising the legal costs which Mr Sheehan would have forgiven as payment for the motor vehicle, and was also “deferred income”, and therefore “after-acquired property”;

c.both claims had been assigned by the trustee to Mr Sheehan by the deed of release.

43Mr Sheehan was a bankrupt between 12 September 2006 and 13 September 2009 and again from 21 April 2011. The costs claim related to income from Mr Sheehan’s legal practice which he earned in 2008, during his bankruptcy. Mr Sheehan has never received that money.

44In my view, the right to bring an action for the recovery of the legal costs included in the bill dated 16 November 2008, or the revised bill dated 11 March 2011, cannot be regarded as “after-acquired property”. It is not a case such as Knight where income earned before a bankruptcy was received during the bankruptcy. In those circumstances, “Burchett J viewed these payments as ‘deferred income’”. However, these considerations do not apply to the claims, or choses in action, which vested in the trustee upon Mr Sheehan’s bankruptcy.

45If it were necessary to decide the issue, I would be satisfied that the terms of the deed of release and the letter dated 17 February 2015 sufficiently referred to, not only the initial bill of costs dated 16 November 2008, but also the revised bill delivered on 11 March 2011.

46Although the letter dated 17 February 2015 refers to the relevant invoice as having been “rendered” on 24 November 2008, this is obviously a reference to the first bill dated 16 November 2008. However, the other details provided in the letter, including the dates and details of the work performed and the amount claimed made it clear that the assignment included the claim based on the revised bill.

47In relation to the claim based on the wrongful taking of possession of the Jaguar motor vehicle, Mr Sheehan submitted that:

a.the claim was for damages for breach of contract – Mr Sheehan’s entitlement to “exclusive possession and use of the vehicle” had been interfered with by the unlawful taking of possession of the vehicle on 7 January 2010;

b.Mr Sheehan’s damages were alleged to be the sum of $38,000 which pursuant to the agreement he had deducted “from monies due to him by the defendants” as legal costs;

c.Mr Sheehan equated these damages to “deferred income”, and which was therefore “after acquired property”.

48In my view, these submissions cannot be sustained. The pleading of this cause of action in the Statement of Claim is confusing, whether in the version with the amended writ filed on 12 November 2015 or the proposed amended statement of claim delivered pursuant to an order made on 12 April 2016. In the latest proposed pleading, few particulars are provided and it is unclear whether a claim is made against all defendants or only some of them.

49The pleadings refer to the claim being for “breach of the agreement”, although one might have expected the claim to be founded in detinue or conversion. The damages alleged are not related to the loss of value of the vehicle, but rather are linked to amounts Mr Sheehan said he had been “deducting from monies due to be paid to him by all the defendants…until the sum so deducted amounted to $38,000”. This sum is part of the legal costs claim.

50In my view, this cause of action vested in Mr Sheehan’s trustee upon his bankruptcy on 21 April 2011. Although the cause of action arose in January 2010, when the vehicle was seized, there is no proper basis for suggesting that the chose in action was “after-acquired property” or that the right to claim had been assigned by the trustee in the deed of release, by reference the particulars given in the letter dated 17 February 2015.

Conclusion and proposed orders

51In the circumstances, I do not consider that the proceeding has a real prospect of success. As regards to the claim for legal costs, the defence based on the Statute of Limitations is bound to succeed. In relation to the claim concerning the motor vehicle, I am not satisfied that Mr Sheehan has standing to bring the action.

52Accordingly I propose to make the following orders:

1.        The proceeding is dismissed.

2.The plaintiff must pay the defendants’ costs of the proceeding, including any reserved costs and the costs of the defendants’ summons filed 9 February 2016, to be assessed by the Costs Court on a standard basis in default of agreement.

- - -

Certificate

I certify that these 12 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 6 May 2016.

Dated: 6 May 2016   

Carla Cianfaglione

Associate to His Honour Judge Anderson