Smith & Fields (Third Party Costs)
[2013] FamCA 505
FAMILY COURT OF AUSTRALIA
| SMITH & FIELDS (THIRD PARTY COSTS) | [2013] FamCA 505 |
| FAMILY LAW – COSTS – Where final property orders made between the applicant and respondent – where the applicant husband seeks as against the respondent wife an order for his costs of the proceedings, on an indemnity basis – where the wife subsequently sought orders pursuant to the Family Law Rules 2004 that her former legal practitioner/s should be personally responsible for her costs – where the wife pleaded a claim not based upon the Rules, but in causes of action at common law (and in equity) in respect of which a finding was necessary that the Court had accrued jurisdiction to determine the claim – where the wife filed a Notice of Discontinuance less than one week prior to the hearing of, inter alia, the wife’s claim against the third parties – where the third parties each seek an order that the wife pay their costs on an indemnity basis – where wife concedes an order for costs is warranted but contends it ought be made on a party/party basis – whether costs should be ordered on an indemnity basis – where certain conduct of the wife, including issuing of subpoenae which were plainly too wide and were tantamount to an abuse of process, warrants an order that costs be paid on an indemnity basis for a portion of the proceedings – orders made that the wife pay the third parties’ costs of the proceedings up to a specified date on a party/party basis and thereafter on an indemnity basis. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation (2001) 179 ALR 406 |
| APPLICANT: | Mr Smith |
| RESPONDENT: | Ms Fields |
| 1ST OTHER PARTY: | Ms D |
| 2ND OTHER PARTY: | Mr E |
| FILE NUMBER: | BRC | 4610 | of | 2009 |
| DATE DELIVERED: | 2 July 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 25 June 2013 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Ms Harrison of McCowans Specialist Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Page QC |
| SOLICITOR FOR THE RESPONDENT: | Lynn & Rowland Lawyers |
| COUNSEL FOR THE 1ST OTHER PARTY: | Mr Hodge |
| SOLICITOR FOR THE 1ST OTHER PARTY: | Carter Newell |
| COUNSEL FOR THE 2ND OTHER PARTY: | Mr Williams |
| SOLICITOR FOR THE 2ND OTHER PARTY: | Barry Nilsson Lawyers |
Orders
The wife pay the costs of each of the First and Second Other Party of and incidental to these proceedings in such amount as might be agreed between the parties in writing by not later than 21 days after the date of this order, or, failing agreement, as might be assessed:
a.On a party and party basis as and from the date of the service of the wife’s Response filed 10 December 2012 seeking relief against each of the First and Second Other Party up to and including 25 March 2013; and,
b.On an indemnity basis as and from 26 March 2013.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Smith & Fields (third party costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 4160 of 2009
| Mr Smith |
Applicant
And
| Ms Fields |
Respondent
And
| Ms D |
1st Other Party
And
| Mr E |
2nd Other Party
REASONS FOR JUDGMENT
Proceedings for settlement of property as between the husband and wife were determined by orders made by me on 17 September 2012. The husband applies for an order that the wife pay his costs of those proceedings on an indemnity basis. Procedural orders were made with the intention that this application would be heard on 25 June 2013. However, at that hearing, an oral application was made on behalf of the wife to adjourn the hearing of that application until after the determination of the appeal brought by her against my orders for settlement of property. The appeal is due to be heard on 26 November 2013.
The adjournment was, reluctantly, granted. Reasons for granting that adjournment were given ex tempore and, as indicated to the parties during the course of the hearing, will be consolidated with these Reasons for ease of reference.
On an earlier return date of the husband’s application for costs, the wife sought to join a former solicitor and barrister of hers to the costs proceedings. She asserted that their liability to her included an indemnity for any costs ordered to be paid by her to the husband in respect of the proceedings for settlement of property.
On 19 June, that is about a week prior to the hearing of these applications, the wife filed a Notice of Discontinuance in respect of the proceedings against each of the solicitor and barrister. Each of the barrister and solicitor seek their costs of and incidental to the discontinued proceedings, each on an indemnity basis.
Counsel for the wife concedes that orders for costs should be made despite s 117(1) of the Family Law Act 1975 (Cth) (“the Act”). The concession is, with respect, properly made and can be seen to have its justification in them each being “wholly successful” in the wife’s action against them (s 117(2A)(e)) and by reason of her “conduct” within those proceedings (s 117(2A)(c)). The wife contends, however, that costs ought be assessed (or agreed) on a “party/party basis” (r 19.18, Family Law Rules 2004 (“the Rules”)).
These reasons, then, set out both the ex tempore reasons given for the granting of the adjournment and the determination of the issue as to whether the wife should pay the costs of the first and second third parties on an indemnity basis.
Ex Tempore Reasons for Granting an Adjournment
The reasons given ex tempore for the granting of the adjournment upon the oral application of the wife are as follows:
1.There are, as it seems to me, powerful reasons for rejecting the application by the wife to adjourn the hearing of the costs application by the husband against her in respect of s 79 proceedings between those two parties. I have, during the course of argument, outlined the procedural history of the costs application, including the fact that the matter was, in all respects, intended to be ready to proceed as early as 10 December 2012.
2.On that occasion, an application by the wife as against third parties, namely her previous solicitors and barrister, was foreshadowed. A discussion ensued about the nature of that application. It was indicated to the court that the application was to be made pursuant to the Family Law Act 1975 (Cth) (“the Act”) and this court’s rules, i.e. that the legal practitioner/s should be personally responsible for the wife’s costs.
3.I made procedural orders in relation to the filing of pleadings. Those orders were partially complied with. To the extent that they were partially complied with, and complied with out of time, they outlined a cause of action in professional negligence, breach of retainer, breach of fiduciary duty and the like. The possibility of that cause of action was discussed in court on 10 December, and specifically eschewed by counsel who then represented the wife.
4.Notwithstanding specifically eschewing that cause of action, and indicating to the court that an application would be made pursuant to the Act and rules for the legal practitioner to pay the costs personally, the pleading was in the form to which I have indicated.
5.It was, then, necessary on that date to make further procedural orders with respect to an amended statement of claim. I say no more about what happened subsequent to that date, because those issues are matters yet to be discussed in an application for costs by each of the third parties just referred to, consequent upon the wife filing a notice of discontinuance against those parties late last week.
6.The procedural history of this matter should perhaps be outlined so as to indicate my strong view, as earlier indicated to Mr Page, who now represents the wife on the application before me today, that an application for adjournment made orally by him should be refused. Final orders were made by me, and reasons for judgment delivered in respect of a property settlement on 6 July 2012. By notice of appeal filed on 1 August 2012, the wife appeals those orders. By a notice of cross-appeal filed 22 August 2012, the husband also appeals those orders. The date of filing the appeal and cross-appeal ought be noted. Each appeal has now been outstanding for a period of approximately 10 months.
7.On the last occasion when this matter was before me in April, there was discussion about when such an appeal might be heard, and an indication, but no more than an indication, was given by me to the legal representatives that it was unlikely to be heard prior to the November sittings of the Full Court in this city. It is common ground at the bar table before me today that the appeal and cross-appeal will be heard in sittings commencing, I think, on 26 November this year.
8.The husband filed an Application in a Case on 7 August 2012, seeking that the matter be listed for hearing in respect of his application for costs. The husband sought an order that the wife pay his costs of and incidental to the “whole of the proceedings” on an indemnity basis.
9.On 17 September, the matter was mentioned before me. The matter came before me because, consistent with the applications by each of the parties at the trial, they were afforded the opportunity to consult with their respective legal and financial advisors with a view to formalising orders that best gave reflection to the determination made by me at the trial, whilst, at the same time, ensuring protection of various corporate and trust entities, both in respect of taxation and otherwise. I gave the parties the opportunity to reach orders by agreement, giving effect to my reasons, and they did so.
10.The finalisation of those orders occurred on 17 September 2012. On that date, consent orders were also made regarding the husband’s application of 7 August for the parties to file documents in relation to any application for costs.
11.The husband, in compliance with my orders made that day, filed submissions in respect of costs some 10 days later on 27 September. On 4 November 2012, an affidavit was filed by the solicitor for the wife. It was unusual in its form in the sense that it did not purport to depose to facts, but rather, the affidavit apparently set out all of the submissions sought to be relied upon in opposition to the orders for costs sought by the husband.
12.The husband asserted that this somewhat unusual form of purported compliance with the orders I made on 17 September was, in fact, non-compliant. As a result, the husband sought to bring the matter back on before me by means of an application filed by him. The hearing of that application occurred on 10 December 2012.
13.On that date, the husband filed submissions in response to the affidavit of the wife’s solicitor, in effect seeking to comply with earlier directions made by me as to the filing of reply submissions in respect of costs.
14.On that date, counsel then representing the wife handed up written submissions. Those submissions dealt with the husband’s application for costs, as well as a claim by the wife as against her formal legal representatives. As I said, during the course of argument, the submissions in respect of costs can, with all due respect, be regarded as perfunctory. One might think the reason for that is, at least in part, a primary focus by the wife on the proceedings against her former representatives.
15.I have earlier made reference to the differences between the case as outlined by the then-barrister for the wife as to the case against the third parties on that date, and what appeared in a pleading which on 10 December I ordered to be filed. Importantly, on 10 December, I made an order that the husband and/or his legal representatives be excused from attending at any hearing in relation to the issue or issues joined as between the wife and her former legal representatives. The reason for that is plain: it was designed to save costs being incurred by the husband in respect of issues in which, at least on the face of the material before me, he had no direct interest.
16.The wife filed the statement of claim on 21 December 2012. A reply was filed on behalf of the wife’s former solicitor and barrister on 18 January 2013. As a consequence of those pleadings being filed, the matter was listed before me for hearing on 8 April 2013.
17.On that date, a number of things occurred. First, and significantly, the husband did not appear (nor was he represented), as a result of the order made by me on 10 December 2012, excusing him, and them, from attendance. An application for adjournment of the hearing of the application for costs was foreshadowed by the wife on that date. I indicated to the wife that I would not countenance an oral application being made on that date because the husband was neither present in court that day, nor represented. In addition, no proper notice been given of any such application.
18.On that date, I made orders, the plain effect of which, as it seems to me, is that there would today be a final hearing of all applications filed and responded to up until that point of time. In particular, the order provides that “the various applications by the parties” be adjourned until today, and that they be adjourned “for a full day of hearing”.
19.Subsequently, it transpired that the wife had filed a Notice of Discontinuance in respect of the action against her former legal representatives. That Notice of Discontinuance was filed on 19 June 2013. The following day, the solicitors for the first and third party sent to my associate an email advising of the Notice of Discontinuance and enquiring, in effect, as to whether an attendance was required on that date, indicating that the issue of costs was still live.
20.My associate sent an email to the solicitors, back-copied, as was intended, to the representatives of all other parties, indicating that at the hearing today, that is to say, some five days subsequent to the sending of the email, that it was intended to hear and determine all issues outstanding between the parties.
21.It is against that background that Mr Page, who now appears as counsel for the wife, makes the oral application for adjournment.
22.In my view, the procedural history outlined indicates self-evidently that the application for adjournment should, subject to any submissions made by Mr Page pointing to significant injustice to the wife, have failed. I do not consider that Mr Page’s submissions in support of the application for adjournment are persuasive of injustice, which is the core of the determination of every application for adjournment.
23.However, upon calling upon the husband’s solicitor I was told that the husband neither consented to nor opposed the application for adjournment, a position I regarded as odd. But, unfortunately, it transpires that due to some technological issues the fault of the court, the solicitors did not receive the responsive email sent by my associate, to which I have earlier referred. This is obviously very much regretted. The effect, though, is that, notwithstanding what might have occurred, been said or been the subject of orders made on 8 April 2013, the solicitor advises the court that she is not prepared, today, to supplement any such written submissions by oral argument (nor, it might be inferred, to meet any arguments advanced by Mr Page on behalf of the wife).
24.In that respect, it should be observed that each of the parties have been represented by solicitors and counsel throughout the currency of the proceedings, including at all earlier procedural hearings to which I have just referred. In the case of the husband, he has been represented by the same Senior Counsel during the course of subsequent procedural hearings who has prepared the husband’s written submissions in respect of costs.
25.I consider that there would potentially be significant disadvantage to the husband if I were, as it were, to force on the application in circumstances where the email was not received by his instructing solicitors, and where the husband’s solicitor indicates to me today she is not prepared to adduce oral argument in support of the application.
26.Thus, although it is said by the solicitor that she neither consents to nor opposes the application for an adjournment, the effect of her position is that she in fact supports it.
27.I repeat that, but for the circumstance last mentioned, I would have rejected the application for adjournment, and required each of the parties to make all such submissions as they intended in relation to the costs of the s 79 proceedings. However, in light of the fact that both parties effectively tell the court that they are not in a position to proceed to adduce oral argument in support of the substantive application for costs today I consider that the interests of justice require that the application for adjournment be granted, and I so order.
28.A separate issue arises in respect of the application; having determined that the application for adjournment should succeed, Mr Page posits as part of the application, and the arguments advanced in support of it, that the hearing of any such application should be adjourned until after the hearing and determination of the appeal. The appeal is listed to be heard, I am told, on 26 November 2013.
29.As is well known the protocol of the full court is, as expressed, that judgments be delivered within three months of the date of hearing. I note that three month period will stand the usual Christmas/New Year period, and it is likely that compliance with the protocol would see a judgment being handed down by the Full Court in about March or April of 2014. Mr Page argues that, in fact, experience would indicate that the judgment is likely to take longer than that timeframe. I make no comment on that, save to observe that, if he is correct, the judgment of the Full Court would not be delivered until about June or July 2014.
30.Having indicated that I would grant an adjournment I sought submissions in respect of whether a further hearing of the issue of costs ought be heard prior to the hearing and determination of the appeal.
31.Again, nothing which Mr Page has outlined today persuades me that it is in the interest of justice that the hearing and determination of the application for costs should be postponed until after the hearing of the appeal. Indeed, it is submitted that such an application should be considered on the basis of, “the order that will be made, or might be made, not on the basis of orders that have been made.” I do not consider that submission to be correct as a matter of law. Orders have been made after a trial and no stay has been applied for. The orders should receive full integrity in my view. Part and parcel of those orders receiving full faith and credit is the determination of issues of costs in relation to them.
32.The net result is that I also would have rejected the application by Mr Page to have any adjournment of today’s proceedings occur after the determination of the full court appeal, particularly in light of the timeframes and procedural history to which I have earlier referred.
33.However, again, the solicitor for the husband does not seek to argue to the contrary; indeed, she agrees that any hearing of the application for costs should wait until that appeal is heard and determined.
34.In light of the agreed position of each of the parties it seems to me that there should be compelling reasons why I would set down an application for costs to be heard earlier than the appeal being heard and determined in the face of an agreed position as between the parties. No such compelling reasons are evident on the material before me, or on the base of any submissions made to me.
35.Accordingly, I will adjourn the application for costs to a date to be fixed, such date to be not earlier than 14 days subsequent to reasons for judgment and orders being delivered by the Full Court of this court in respect of the appeal and cross-appeal number NA73 of 2012.
Claim for Costs by Third Parties
Orders for Indemnity Costs
Subject to the provisions of s 117 of the Act, the Rules clearly contemplate costs orders being made on an indemnity basis (rr 19.08(3); 19.18; 19.34(2)). Such an award is within power (Kohan & Kohan (1993) FLC 92-340). The award is compensatory in nature, not a punishment (Latoudis v Casey (1990) 170 CLR 534 at 543).
It has been said that an award of costs on an indemnity basis should occur only in “… an exceedingly rare situation…” (Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation (2001) 179 ALR 406 per Callinan J). Specific to this jurisdiction, it has been held that an indemnity costs order is a “very great departure from the normal standard” (Kohan at 79,605). “Normal standard” in proceedings in this Court includes a usual rule that each party shall bear his or her own costs (s 117(1)) (as opposed to a “normal standard” where costs follow the event).
It has been held that:
The issue whether costs should be ordered on a party and party basis or on an indemnity basis has acquired increasingly greater significance as the gap between the two bases appears to have grown.
The gap has highlighted the conflict between two seemingly irreconcilable objectives. The first is protecting access to justice by only exposing an unsuccessful litigant in the usual course to an order for scale costs on a party and party basis. The second is relieving a successful litigant from the burden of costs which that litigant should not have been required to incur.
Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727, per Cooper and Merkel JJ at 732
The Rules, both in respect of the Objects and general provisions, and specifically in Chapter 19, can, in my view, be seen to evidence an objective of keeping costs to a minimum, including costs payable by one party to the other by an order of the Court overcoming the “general rule” that each party should bear their own costs (s 117(1)).
Rules 1.05(1), 1.07(1)(d) and 1.08(1)(g), (h), (i) and (j) all underscore an intention to keep costs to a minimum. Rule 19.18 contemplates, in terms, costs orders being made on an indemnity basis but r 19.34 provides for restrictions that potentially place limits on any such order being a complete indemnity. Rule 19.34 provides that a Registrar “must not allow costs” which are not “reasonably necessary for the attainment of justice” (r 19.34(1)(a)) and which “are not proportionate to the issues in the case” (r 19.34(1)(b)) and while r 19.34(2) goes on to specify matters which an assessing Registrar “must allow”, the costs so allowed must have been “reasonably incurred” and of a “reasonable amount” with each of those assessments being referred to three non-exclusive specified criteria, one of which is objective (“charges ordinarily payable by a client for the work” – r 19.34(2)(c)).
All of that said, the categories of case in which indemnity costs might be ordered (see, for example, Colgate Palmolive Co and Anor v Cussons Pty Ltd (1993) 118 ALR 248) are “not closed” and “[a]ll that is required is that the Court asked to exercise the discretion be satisfied that some ‘particular facts and circumstances of the case in question warrant the making of an order for the payment of costs other than on a party and party basis’” (Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029 at 87,471, quoting Shepherd J in Colgate Palmolive).
What Factors Are Said to Justify Indemnity Costs?
Counsel for the First Other Party argues that to order other than on an indemnity basis is “… the court … doing little short of condoning a mischief were it to decline to exercise the discretion to award indemnity costs” (Written outline, citing Coleman J in Beidenhope & Cantonor [2012] FamCAFC 82 at [39]).
A number of factors are relied upon by each of the third parties in asserting that this case is “out of the norm”. The factors relied upon can be summarised as follows:
a)Each of the third party respondents are strangers to the matrimonial litigation with no interest in the subject matter of the substantive inter parties litigation and their liability for incurring legal costs should be seen in that context.
b)The claims against each of the third parties as pleaded were wholly different to a representation made to the Court by counsel for the wife at a procedural hearing (on 10 December 2012) when causes of action dependent upon the Court having accrued jurisdiction were specifically eschewed. Further, then counsel for the wife indicated specifically that the third party claim would be based on relief provided for in the Rules (r. 19.10).
c)Contrary to the representation to the Court on her behalf, the wife pleaded a claim not based upon the Rules, but in causes of action at common law (and in equity) in respect of which a finding was necessary that the Court had accrued jurisdiction to determine the claim.
d)The claim was made in that form despite argument and discussion between Bench and counsel for the parties being to the effect that reliance upon accrued jurisdiction might, in the circumstances of this case, face difficulties.
e)The wife persisted in that claim on that basis despite the decision of the Full Court in Noll & Noll [2013] FamCAFC 24 which, it is contended, should reasonably have placed the wife on notice that her claim as pleaded could not succeed or was highly unlikely to succeed.
f)In any event, the claim as pleaded was liable to be struck out (an application foreshadowed to the Court as a possibility at a hearing on 8 April 2013) because, as damage had not yet accrued, no cause of action had crystallised;
g)Shortly after the decision of the Full Court in Noll, not only did the wife persist in continuing the case as pleaded, she issued subpoenae directed to the third parties which, on their face were plainly too wide and were tantamount to an abuse of process. As an example, one of the categories of documents sought to be produced was, “[c]opies of any judgment or reasons for decision in respect of any proceedings determining the property settlement entitlements of a party to a marriage or a de facto relationship in which you have acted as [solicitor/counsel]” within a specified period of more than 11 years from 1 January 2000 to 1 April 2011.
h)The filing of a Notice of Discontinuance is, to adopt the words of the Full Court in Yunghanns at [32] “…tantamount to a concession that the application was ill-conceived, and should never have been made.”
i)The Notice of Discontinuance ought also be seen against a background where the wife was in breach of Orders made by me on 8 April that she was to file and serve an amended Statement of Claim by 4.00pm on 19 April 2013. She remained in breach of that order until the Notice of Discontinuance was filed and neither sought that the order be discharged nor sought an enlargement of time within which to comply with it.
j)The wife’s financial circumstances do not militate against an order being made (and that is so irrespective of the outcome of either the appeal or cross-appeal).
Conclusion as to Indemnity Costs
It is in my view not necessary to decide whether, as contended, there was no arguable basis for the wife to institute a claim that plainly involved a determination that the Court has accrued jurisdiction to hear it. It is sufficient, I think, to find as I do that, properly advised, the wife ought to have been aware of the unsettled state of the law in that regard and the difficulties confronting any such claim and that is all the more so subsequent to the decision of the Full Court in Noll, which was handed down on 28 February 2013.
In a similar vein, I am not prepared to find that the wife’s claim “was ill-conceived and should never have been made”. I am, though, prepared to find that the filing of a Notice of Discontinuance should be taken as a concession that the claim that had, by turns, been eschewed, then pleaded, then maintained in light of Noll, should be taken as a concession that the claim did not enjoy any real prospects of success in this Court. Indeed, it is, in my view, difficult to interpret the filing of the Notice in any other way.
Nothing of which I have been made aware on the evidence before me suggests any reasons for why the Notice was filed when it was and not earlier – for example, relatively contemporaneously with the decision in Noll. In that regard there is force in the argument which points to the fact that the wife has not, despite my order of 8 April, sought to amend her pleading, including to plead the case which she advised the Court she would make on 10 December.
I also accept the submission that the subpoenae issued by the wife were, on their face, so wide as to be tantamount to an abuse of process. That is all the more so in my view, in light of the matters just referred to; to the extent that the subpoenae were appropriate, they could only have properly sought the disclosure required in respect of the pleaded action as distinct from an action under the Rules that the legal practitioners pay the wife’s costs personally.
I am not persuaded that the wife’s conduct as a litigant in and about the litigation (which is the subject matter of the inquiry – see NMFM Property Pty Ltd v Citibank (No 2) (Court’s “NMFM” Judgment No 11) (2001) 109 FCR 77 at [56] per Lindgren J) is such as to make this a “rare” or “exceptional” case or as constituting “a very great departure from the norm” until about 26 March 2013.
On that date the wife filed an Application in a Case setting out the orders she would be seeking at the hearing scheduled for 8 April 2013. By that date:
a)The wife had pleaded a case different to that represented to the Court and a cause of action relying on the accrued jurisdiction;
b)Maintained that case despite Noll being decided about a month earlier with a consequent reasonable opportunity for advice to be taken in light of that decision;
c)Issued the subpoenae earlier referred to and thereafter maintained them over objection by the solicitor and barrister.
On 8 April, the wife maintained her position in respect of the claim as pleaded despite the matters just referred to and despite a robust discussion about the merits of her pleaded action taking place with her counsel on that date. The wife’s then counsel sought leave to amend the pleading to include a case founded on the basis indicated to the court on 10 December but which was not pleaded. That amended pleading was not forthcoming despite the order of 8 April.
All of those actions (and inactions) concerned parties who had no interest in the substantive proceedings and who had indicated to the Court on 8 April that they intended to bring an action striking out the wife’s claim against them. That mooted action was overtaken by the Notice of Discontinuance filed over 2 months later.
In my view the circumstances just described can be seen to justify a “very great departure from the norm” in respect of the costs incurred by each of the third party respondents as and from 26 March 2013.
I will order that:
a)The wife pay the costs of each of the First and Second Other Party of and incidental to these proceedings in such amount as might be agreed between the parties in writing by not later than 21 days after the date of this order, or, failing agreement, as might be assessed:
i)On a party and party basis as and from the date of the service of the Response filed 10 December 2012 seeking relief against each of the First and Second Other Party up to and including 25 March 2013; and,
ii)On an indemnity basis as and from 26 March 2013.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 2 July 2013.
Associate:
Date: 2 July 2013
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