Smith and Ors v French and Ors
[2000] VSC 545
•21 December 2000
| SUPREME COURT OF VICTORIA AT MELBOURNE | |
| COMMERCIAL AND EQUITY DIVISION | Not Restricted |
No. 2237 of 1996
| MICHAEL ROSS SMITH AND ORS (According to the schedule attached) | Plaintiffs |
| v | |
| WALTER MURDOCH FRENCH AND ORS (According to the schedule attached) | Defendants |
---
JUDGE: | McDonald J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Written Submissions: 16 October 2000, 10 and 24 November 2000 | |
DATE OF JUDGMENT: | 21 December 2000 | |
CASE MAY BE CITED AS: | Smith and Ors v French and Ors | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 545 | |
---
Costs
---
APPEARANCES: | Counsel | Solicitors |
For the Plaintiffs | Mr C. Gunst QC | Middletons Moore & Bevin |
| For the Defendants | Mr P. Bick QC | Norton Gledhill |
HIS HONOUR:
In these proceedings it was ordered on 25 September 2000 as follows:
(a)that there be judgment for the plaintiff, Quarry Quip Engineering Pty Ltd (“Quarry Quip”), against Walter French and that Walter French pay to Quarry Quip the sum of $604,213.54;
(b)that there be judgment for Quarry Quip against Ballarto Pastoral Pty Ltd (“Ballarto”) and that Ballarto pay Quarry Quip the sum of $533,464.54;
(c)that there be judgment for Skye Quarries Pty Ltd (“Skye Quarries”) against Walter French and that Walter French pay to Skye Quarries the sum of $1,749,149.38;
(d)that there be judgment for Skye Quarries against Ballarto and that Ballarto pay Skye Quarries the sum of $1,696,542.82;
(e)that there be judgment for Skye Quarries against Skye Poultry Pty Ltd (“Skye Poultry”) and that Skye Poultry pay Skye Quarries the sum of $45,029,14.
(f)that on the claim of the plaintiffs, Quarry Quip and Skye Quarries, against the defendants, Nancy French, Ian Hosking, Skye Quarries Sales Pty Ltd (“Skye Quarries Sales”) and Skye View Pty Ltd (“Skye View”), there be judgment for each of those defendants and it was further ordered that the proceedings by Quarry Quip and Skye Quarries against the defendants, Nancy French, Ian Hosking, Skye Quarries Sales and Quarry View, be dismissed;
(g)that the counterclaim of Walter French, Ballarto Pastoral and Quarry View against Smith, McCallum and Skye Quarries is dismissed;
(h)that the questions of interest on the sums recovered in the proceedings by the plaintiffs, Quarry Quip and Skye Quarries, is reserved;
(i)that the question of costs of the parties in the proceedings is reserved.
It was further ordered that written submissions on behalf of any plaintiff relating to the question of costs and interest be filed and served on the solicitors for the defendants by 16 October 2000, that any written submissions made on behalf of the defendants or any of them as to the question of costs and interest be filed and served by 6 November 2000 and that any submissions in reply made on behalf of the plaintiffs to those made on behalf of the defendants or any of them be filed and served on the solicitors for the defendants by 20 November 2000. The court has now received written submissions made on behalf of the plaintiffs both initially and in reply together with written submissions made on behalf of the defendants.
Pursuant to the written submissions filed on behalf of the plaintiffs it was submitted that the relevant rate fixed under s. 2 of the Penalty Interest Rate Act 1983 from 30 October 1991 to 23 February 1998 was 13.2% per annum and from 23 February 1998 and thereafter the rate was 12.3% per annum. Such rates have not been disputed on behalf of the defendants. On behalf of Quarry Quip and Skye Quarries it was submitted that damages in the nature of interest should be awarded pursuant to s. 60(1) of the Supreme Court Act as follows:
1. Quarry Quip v Walter French $288,360.90 2. Quarry Quip v Ballarto Pastoral $264,140.45 3. Skye Quarries v Walter French $921,364.40 4. Skye Quarries v Ballarto Pastoral $893,653.49 5. Skye Quarries v Skye Poultry $6,230.90 The details of the calculations by which such sums are arrived at are set out in the written submissions on behalf of the plaintiffs dated 16 October 2000.
On behalf of the defendants it was submitted that if damages in the nature of interest were to be ordered, the amount that Quarry Quip could recover against Walter French was not the sum of $288,360.90 but $286,699.58 and the amount that Quarry Quip could recover against Ballarto was $262,618.43 not $264,140.45. In the reply of the plaintiffs to the defendants’ submissions the plaintiffs accepted that damages in the nature of interest able to be recovered by Quarry Quip against Walter French was $286,699.58 and Quarry Quip against Ballarto Pastoral was $262,618.43.
By the defendants’ written submission no issue was raised as to how the sums claimed by Skye Quarries against Walter French, Ballarto and Skye Poultry was calculated.
On behalf of the defendants it was submitted that as Skye Quarries may hereafter be required to account to French and/or Ballarto and/or Quarry View for the provision of sand as mined, processed and sold by it and for the use of land, equipment and facilities provided by one or other or all of such defendants it would be unjust for Skye Quarries to receive and retain interest as claimed. It was further submitted that if damages in the nature of interest were awarded then the amount ordered to be paid should be limited to 25% or 50% of the interest sought to be recovered by Skye Quarries against Walter French, Ballarto and/or Skye Poultry. Damages in the nature of interest is claimed by the plaintiffs, Quarry Quip and Skye Quarries, and is sought by them under 160(1) of the Supreme Court Act 1986. That section provides:
“(1)The Court, on application in any proceeding for the recovery of debt or damages, must, unless good cause is shown to the contrary, give damages in the nature of interest at a rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 as it thinks fit from the commencement of the proceedings to the date of the judgment over and above the debt or damages awarded.”
In my view the arguments put forward on behalf of Walter French, Ballarto and Skye Poultry as to why damages in the nature of interest should not be awarded on the sums ordered to be paid by them to Quarry Quip and Skye Quarries, do not constitute “good cause” as to why Quarry Quip and Skye Quarries should not recover damages in the nature of interest as claimed by them against Walter French, Ballarto and Skye Poultry. By my judgment in the proceedings, Quarry Quip and Skye Quarries are entitled to recover from Walter French, Ballarto and Skye Poultry the amounts previously referred. The fact that Walter French, Ballarto or Quarry View may in the future be able to recover some sums against Skye Quarries does not limit the amounts that Quarry Quip and Skye Quarries are able to recover as damages in the nature of interest in these proceedings. I accept the calculations as made and accepted by Quarry Quip and Skye Quarries in respect of the amounts now claimed against Walter French, Ballarto Pastoral and Skye Poultry for damages in the nature of interest.
Accordingly, I propose to order that the defendant, Walter French, pay to Quarry Quip damages in the nature of interest in the sum of $286,699.58; that the defendant, Ballarto, pay to Quarry Quip damages in the nature of interest in the sum of $262,618.43; that the defendant, Walter French, pay to Skye Quarries damages in the nature of interest in the sum of $921,364.40; that the defendant, Ballarto, pay to Skye Quarries damages in the nature of interest in the sum of $893,653.49; and that the defendant, Skye Poultry, pay to Skye Quarries damages in the nature of interest in the sum of $6,230.90.
Before dealing with the question of costs it is necessary to deal with a matter raised on behalf of the plaintiffs in counsels’ submissions dated 16 October 2000 and again in submissions made on behalf of the plaintiffs on 24 November 2000. In the initial submissions made on behalf of the plaintiffs it is stated:
“The counterclaim of French, Ballarto Pastoral Pty Ltd and Quarry View Pty Ltd has been dismissed. The counterclaim was also brought by Skye Quarries Sales Pty Ltd and Skye Poultry Pty Ltd (see paragraph H of the prayer for relief in the defendants’ third further amended defence and counterclaim dated 8 December 1999 and also paragraph 39 thereof) which seems to have been overlooked, and their counterclaim should also be dismissed – their names might conveniently be inserted in paragraph 7 of the orders made on 25 September 2000 under Order 36.07.”
In submissions made on behalf of the defendants’ in response to the plaintiffs’ submissions and dated 10 November 2000 this matter was not dealt with in the submissions made by counsel for the defendants. The matter has again been raised by counsel for the plaintiffs in their submissions in reply dated 24 November 2000 in much the same terms as initially raised by counsel. In my opinion it is inappropriate for orders to be made at this time, as suggested on behalf of the plaintiffs. This matter should be brought before the court on proper notice being given to the defendants in order that it may then be dealt with by the court. On this matter at this point of time having been raised I am of the view that the matter as to the costs on the counterclaim should be put to one side until the matter as to the order made with respect to the counterclaim is dealt with.
On behalf of the plaintiffs, Quarry Quip and Skye Quarries, application is made that it be ordered that their costs of the proceedings, including reserved costs should be paid by the defendants, Walter French, Ballarto and Skye Poultry. It has been submitted on behalf of those plaintiffs that as they recovered substantial judgments in these proceedings against Walter French, Ballarto Pastoral and Skye Poultry that the costs should follow the event and that it should be ordered that those three defendants pay the costs of Quarry Quip and Skye Quarries of the proceedings. This has been resisted by such defendants. The primary submission made on behalf of those defendants is that no order should be made as to the plaintiffs’ costs and that each party should bear their own costs of the proceedings. In the alternative it has been submitted that orders to be made as to costs should be as follows:
(1)That the defendant, Walter French, and the defendant, Ballarto, pay to the plaintiff, Quarry Quip, 50% of its costs of the claim including reserved costs.
(2)That the defendant, Walter French, and the defendant, Ballarto, pay to the plaintiff, Skye Quarries, 50% of its costs of the claim including reserved costs.
(3)That the defendant, Skye Poultry, be jointly and severally liable with the defendant, Ballarto, to pay the costs of the plaintiff, Skye Quarries, as referred to in paragraph 2 to an amount equivalent to half the costs of Skye Quarries such costs to be taxed on County Court Scale “A”.
(4)That the plaintiffs, Smith and McCallum, and Skye Quarries, pay to the defendant, Walter French, the defendant, Ballarto, and the defendant, Skye Poultry, 50% of their costs of the counterclaim including reserved costs.
(5)That the plaintiffs pay the costs of the proceedings including reserved costs of the defendants, Nancy French, Ian Hosking, Skye Quarries Sales and Quarry View.
In making these submissions on behalf of the defendants it was submitted that the following matters should be taken into account by the court –
§ That initially the claim made by Quarry Quip to recover moneys as particularised in Schedule 1 was not part of the claim initially made in these proceedings but Quarry Quip became a party to the proceedings not until 16 December 1996 when the claim made pursuant to Schedule 1 was added to the plaintiffs’ claims.
§ That evidence to prosecute the claim of Quarry Quip pursuant to Schedule 1 was short and general and it was left to the defendants to seek to dissect the claim by the cross-examination of Smith and the production by the defendants of documents relevant to that claim.
§ That not until final addresses did counsel for the plaintiffs conceded that in Quarry Quip pursuing its claim against French and Ballarto allowance must be given for income received by Quarry Quip from the sale of quarry products the subject of these proceedings.
§ That the defendants on 26 August 1999 made an offer to the plaintiffs in settlement of the plaintiffs’ claim in these proceeding, which offer was not accepted. That on 17 September 1999 the defendants made a further offer to settle the proceedings, which offer was not accepted.
§ That in the conduct of the trial the plaintiffs had their focus on the plaintiffs’ endeavour to recover for Skye Quarries’ profits of the quarry business for the entire working life of the quarry.
§ That as to Skye Quarries’ claim made pursuant to Schedule 2 of the statement of claim that was pursued at all times by the plaintiffs, notwithstanding that the claim of Skye Quarries as identified in Schedule 2 was much limited by the tender of Exhibit “P12”. It was further submitted that once again this claim was left to the defendants to analyse by the cross-examination of Smith.
§ That the court in its judgment recognised that after Skye Quarries recovers the moneys which had been wrongfully taken from it, the company or its liquidator would have to have regard to that which may be owed by the company to others for the provision of sand from the quarry and the provision of plant and equipment in the conduct of the quarry business.
§ That the claim made by the plaintiffs that Smith, McCallum and French entered into a joint venture for the purpose of operating the quarry business and that the case as conducted was not for the benefit of Skye Quarries but for the personal benefit of Smith and McCallum in order that they may recover two-thirds of the profit from the quarry business and to further establish their entitlement to profits of the quarry business until the working life of the quarry expired.
§ That the claim for the removal of slimes at the quarry failed.
§ That until the final address by senior counsel for the plaintiffs there was pursued a claim that there was an agreement with Ballarto and later Quarry View to permit access to the joint venturers and/or Skye Quarries to the quarry for the purpose of mining and selling sand, in return for the payment of a royalty.
§ That the plaintiffs claim that Smith, McCallum and French entered into a joint venture agreement to conduct an engineering business and to conduct the quarry business until raw material at the same had expired, failed and that this claim took considerable time in the conduct of the proceedings.
§ That the plaintiffs persisted to the end with the claim that there was an agreement that 50% of the profit of the quarry business would be paid to Ballarto in lieu of a royalty and 50% of the profit would be paid to Skye Quarries.
§ That the claim of the plaintiffs that French conducted a motor vehicle trading business in the name of Quarry Quip and Skye Quarries and kept the profits was persisted in without success.
§ That the plaintiffs failed in their claims against Skye Quarries Sales and Quarry View, Nancy French and the defendant, Hosking.
Before proceeding further it is appropriate to have regard to and better identify the offers made by the defendants in settlement of the proceedings on 26 August 1999 and 17 September 1999. The plaintiffs in their reply to the submissions as to costs made on behalf of the defendants did not join issue with the claim that such offers in settlement had been made, but rather counsel submitted that the offers should not be had regard to when considering the issue of costs.
By the offer made in settlement on 26 August 1999, the defendants offered, with a denial of liability, to settle “each and every claim made by the plaintiffs in this proceeding” and “each and every claim made by the defendants in this proceeding” on the following terms and conditions:
(i)that the plaintiffs accept the sum of $350,000 to be paid to Quarry Quip within 30 days together with such interest and costs (if any) that may be determined by the court in full and final settlement of each and every claim made by the plaintiffs;
(ii)that upon payment by the defendants to Quarry Quip of the aforesaid amount that Quarry Quip do all things necessary to release and remove the charge in favour of it over the assets and undertakings of Ballarto Pastoral;
(iii)that the plaintiffs, other than Quarry Quip and Skye Quarries, purchase the first defendant’s shares in Quarry Quip at a price to be agreed by the parties and if not fixed by determination of the court;
(iv)that in default of the payment by Smith and McCallum for the shares of French in Quarry Quip the company be wound up by order of the court;
(v)the plaintiffs pay to the defendants their costs of the counterclaim as considered by the court to be appropriate;
(vi)that the plaintiffs, Smith and McCallum, transfer their shares in Skye Quarries to Walter French or his nominee and that they resign as directors of that company;
(vii)that each party to the proceedings execute a formal release embodying the terms of settlement if and when called upon to do so.
The further offer of settlement made by the defendants to the proceedings was made on 17 September 1999. The terms of that offer were as follows:
(i)that in full and final settlement of the claims and disputes comprised in the proceedings Ballarto pay to Quarry Quip by a date and time specified the sum of $1M;
(ii)that in consideration of French transferring his shares in Quarry Quip to Smith and McCallum that they transfer their shares to French or his nominee in Skye Quarries;
(iii)that French indemnify Smith and McCallum against all claims that may be made against them and all liabilities that they have in their capacity as directors of Skye Quarries;
(iv)that in consideration of Smith and McCallum transferring their shares in Skye Quarries to French or his nominee that he transfer his shares in Quarry Quip to Smith and McCallum;
(v)that Smith and McCallum indemnify French against all claims that are or may be made against him and all liabilities that he may have in his capacity as a director and/or shareholder of Quarry Quip and in respect of any guarantee given by him of the obligations of Quarry Quip;
(vi)that French resign as a director of Quarry Quip at the time and date identified;
(vii)that Smith and McCallum resign as directors of Skye Quarries at the time and on the date specified;
(viii)that the security for costs provided by Smith, McCallum and Skye Quarries in the proceedings be released and that the bankers undertaking lodged on 10 December 1996 with the Prothonotary be released and returned to the solicitors for the plaintiffs;
(ix)that Quarry Quip provide to Ballarto a deed of satisfaction and release of the debenture charge held by Quarry Quip over the assets and undertakings of Ballarto;
(x)that the parties agree that the proceedings and settlement shall be and remain confidential to the parties and their legal advisors;
(xi)that the settlement be made on the basis that each party deny the claims of the other opposite party;
(xii)that the terms of settlement be recorded by a deed of settlement;
(xiii)that providing the terms be complied with that the proceedings including the claim and counterclaim be dismissed or struck out without any order as to costs and that each party will pay his, her or its costs of and incidental to the proceedings and no party shall enforce any existing order for costs.
On behalf of the plaintiffs it was submitted that the fact that the plaintiffs did not succeed on each and every claim made by them should, in the circumstances of this case, not affect the orders that should be made for their costs, that the court should not seek to dissect the plaintiffs’ claim, and in determining the question of costs it should not have regard to those parts of the plaintiffs’ claim on which they were successful against those parts on which they were not successful. It was further submitted that the offers of settlement should not be had regard to when determining the question of costs in these proceedings. It was submitted that when regard was had to the offers made, that in respect of each offer, that which was offered by the defendants was less in amount than that which the plaintiffs, Quarry Quip and Skye Quarries, recovered in the aggregate. It was further submitted that Smith and McCallum could not accept the offers made for there to be payments of moneys to Quarry Quip on Smith and McCallum agreeing to a transfer of the shares of French in that company for to do so it would be for their personal benefit only and not of that of the company. It was further submitted that when regard was had to each offer Skye Quarries was to receive no moneys and that the shares in that company would be passed to French or his nominee. It was further submitted on behalf of the plaintiffs, Smith and McCallum, that they had an obligation as directors of Skye Quarries to recover in these proceedings such amounts as were properly payable to that company and that if they had agreed to the offers of settlement they would each act in breach of the duties owed by them to Skye Quarries as directors of that company.
The power of the court to make orders for costs of and incidental to matters in the court is vested in the court pursuant to s. 24 of the Supreme Court Act 1986. In exercising its discretion to determine by whom and to what extent costs are to be paid the court must act judicially.
There is a settled practice of the court that in the absence of special circumstances a successful party should receive his, her or its costs[1].
[1]Donald Campbell & Co Ltd v Pollack [1927] AC 732 at 809
I do not accept the submission made on behalf of the defendants that Smith brought the proceedings on behalf of Quarry Quip and Skye Quarries for his own personal benefit and not for the benefit of those companies. I am satisfied that in bringing and prosecuting the proceedings on behalf of those companies Smith did so not for his own direct benefit but, rather, by the proceedings, Smith sought to recover what was due and owing to those companies by the relevant defendant. I have concluded that he was motivated to bring and maintain the proceedings as he considered he was obliged to do that as a director of the companies.
Specifically as to the plaintiffs’ claim that French conducted a motor vehicle trading business in the name of Quarry Quip and Skye Quarries and that he kept the profits for himself, this claim, other than explaining entries in the books of account which were produced and examined during the course of the trial, was not separately pursued.
In my view, the fact that on two occasions the defendants made offers in settlement of the proceedings which were not accepted by the plaintiffs, when had regard to separately or when considered together does not give rise to any circumstance which should be had regard to when determining whether an order for costs should be made in favour of a plaintiff against a defendant in the proceedings. The first offer made on behalf of the defendants was an offer to pay $350,000 together with interest and costs to Quarry Quip. That offer was conditional upon the plaintiffs accepting the sum in full and final settlement of each and every claim made by them in the proceedings. That recovered by Quarry Quip in the proceedings against Walter French and Ballarto exceeded the amount offered by the defendants. In addition Skye Quarries was successful in its claim against Walter French, Ballarto and Skye Poultry. With respect to the second offer made by the defendants, in the judgment of the court Quarry Quip recovered against Walter French and Ballarto sums which in total exceeded the amount offered. Further, Skye Quarries was also successful in its claims against Walter French and Ballarto for substantial sums and also Skye Quarries was successful in its claim against Skye Poultry. I am of the view that Smith and McCallum as directors of Skye Quarries in the circumstances of this case could not have accepted this offer in settlement of its claim against Walter French and Ballarto. For Smith and McCallum to have accepted the offer made, they as directors of Skye Quarries, would have been acting in total disregard of the creditors of that company. Had the offer made by French to indemnify Smith and McCallum against claims made against them and liabilities they may have as directors or shareholders of Skye Quarries, in the circumstances of this case, if accepted, they would have again ignored the rights and entitlement of creditors of the company.
The principle submission made on behalf of the defendants as to why no order for costs should be made against them or that the amount of costs which may be ordered against them should be substantially reduced, is that the plaintiffs’ did not succeed in all the claims made against the defendants and that a great deal of time during the trial was spent in relation to claims made which did not succeed. Also on behalf of the defendants it has been submitted that considerable time in the trial was spent in dissecting and analysing the claim by Quarry Quip in relation to Schedule 1 and by Skye Quarries in relation to Schedule 2, which could have been avoided had the plaintiffs addressed such claims in a detailed manner rather than leaving the investigation of claims in relation to these two schedules to the defendants. Practically all issues in this case were pursued and contested with vigour by the plaintiffs and defendants during the course of the trial. I am of the view that it would not be appropriate in this case to seek to analyse time spent on each or any issue in the proceedings in order that there be some reduction made otherwise for costs because the plaintiffs were not successful on a particular claim made by them. In my view, in the circumstances of these proceedings, the fact that the plaintiffs did not succeed on each claim made by them in the proceedings, should not result in the plaintiffs recovering no costs in the proceedings or only a percentage of the cost to which they are otherwise entitled. The plaintiffs, Quarry Quip and Skye Quarries, in general were successful against Walter French, Ballarto and Skye Poultry. As to the claim made against Skye Poultry, that recovered by Skye Quarries against it, was for a sum that had it been recovered in separate proceedings would have entitled Skye Quarries to costs as assessed on a County Court scale. It has been submitted that any order for costs made for the benefit of Skye Quarries against Skye Poultry should be on the appropriate County Court scale. I am of the view that it was reasonable for Skye Quarries to pursue its claim against Skye Poultry in these proceedings. In my view, the order for costs which I propose to make against Skye Poultry should be for costs as applicable to proceedings brought in this Court.
In my view the matters raised on behalf of the defendants as to why no order should be made for costs in favour of Quarry Quip and or Skye Quarries or why any order for costs should be for a reduced amount do not constitute any circumstance which should cause me to make no order for costs in favour of the plaintiffs, Quarry Quip and Skye Quarries, or to make orders for costs in favour of such plaintiff for a reduced amount to which they would otherwise be entitled. In my view, orders for costs in these proceedings should follow the event.
I propose to order that the costs of the plaintiffs, Quarry Quip and Skye Quarries, of the proceedings including reserved costs be paid by the defendants, Walter French and Ballarto. I also propose to order that the costs of the plaintiff, Skye Quarries, in its proceedings against Skye Poultry be paid by Skye Poultry.
I propose to further order that the plaintiffs, Quarry Quip and Skye Quarries, pay the costs of the defendants, Nancy French, Ian Hosking, Skye Quarries Sales and Quarry View with respect to the proceedings brought against them, including any reserved costs.
As to the costs of the counterclaim against Smith, McCallum and Skye Quarries, I propose to further reserve that question, reserving to such plaintiffs liberty to apply to the court to correct the order made as to such counterclaim.
In the submissions made in reply on behalf of the plaintiffs, it has been submitted that the order made against Skye Quarries in the proceedings on 7 October 1996 for it to provide security for the defendants’ costs to trial, be discharged and in particular it be ordered that the bankers undertaking lodged on 10 December 1996 be discharged. That application made on behalf of Skye Quarries has not been responded to on behalf of the defendants. I shall reserve to Skye Quarries liberty to apply for an order to discharge the order made for security for costs.
For these reasons I make the following orders with respect to damages in the nature of interest:
(a)that the defendant, Walter French, pay to Quarry Quip Engineering Pty Ltd damages in the nature of interest in the sum of $286,699.58;
(b)that the defendant, Ballarto Pastoral Pty Ltd, pay to the plaintiff, Quarry Quip Engineering Pty Ltd, damages in the nature of interest in the sum of $262,618.43;
(c)that the defendant, Walter French, pay to Skye Quarries Pty Ltd damages in the nature of interest in the sum of $921,364.40;
(d)that the defendant, Ballarto Pastoral Pty Ltd, pay to Skye Quarries Pty Ltd damages in the nature of interest in the sum of $893,653.49;
(e)that the defendant, Skye Poultry Pty Ltd, pay to Skye Quarries Pty Ltd damages in the nature of interest in the sum of $6,230.90.
As to the matter of costs it is ordered:
(a)that the costs of the plaintiffs, Quarry Quip Engineering Pty Ltd and Skye Quarries Pty Ltd, including reserved costs and other than the costs of Skye Quarries Pty Ltd in its claim against Skye Poultry Pty Ltd be paid by the defendants, Walter French, Ballarto Pastoral Pty Ltd;
(b)that the costs of Skye Quarries Pty Ltd in its claim against Skye Poultry Pty Ltd, including reserved costs be paid by Skye Poultry Pty Ltd;
(c)that the plaintiffs, Quarry Quip Engineering Pty Ltd and Skye Quarries Pty Ltd, pay the costs of the defendants, Nancy French, Ian Hosking, Skye Quarries Sales Pty Ltd and Quarry View Pty Ltd, including any reserved costs;
(d)that as to the costs of the counterclaim against Smith, McCallum and Skye Quarries Pty Ltd, it is ordered that the costs of such counterclaim be further reserved, reserving to such plaintiffs liberty to apply to correct the order made as to such counterclaim;
(e)that liberty be reserved to Skye Quarries Pty Ltd to apply for an order that the order made on 7 October 1996 for it to provide security for the defendants’ costs to trial, be discharged and further that the bankers undertaking lodged on 10 December 1996 be discharged.
----
SCHEDULE OF PARTIES
Michael Ross Smith First Plaintiff Mark Anthony McCallum Second Plaintiff Quarry Quip Engineering Pty Ltd Third Plaintiff Skye Quarries Pty Ltd Fourth Plaintiff
Walter Murdoch French First Defendant Nancy French Second Defendant Ian Dalton Hosking Third Defendant Ballarto Pastoral Pty Ltd Fourth Defendant Skye Quarries Sales Pty Ltd Fifth Defendant Skye Poultry Pty Ltd Sixth Defendant Quarry View Pty Ltd Seventh Defendant
0
0
0