Spaulding v Eirth (No 2)
[2017] TASFC 2
•14 March 2017
[2017] TASFC 2
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Spaulding v Eirth (No 2) [2017] TASFC 2
PARTIES: SPAULDING, Geoffrey Arthur
v
EIRTH, Troy Leslie
FILE NO: FCA 276/2015
DELIVERED ON: 14 March 2017
DELIVERED AT: Hobart
HEARING DATE: 27 February 2017
JUDGMENT OF: Blow CJ, Wood and Pearce JJ
CATCHWORDS:
Procedure – Civil proceedings in State and Territory courts – Costs – Offers of compromise, payments into court and settlements – Offer of compromise or offer to settle or consent to judgment pursuant to rules – Matters relevant for court to order otherwise.
Supreme Court Rules 2000 (Tas), rr 280(3)(a) and 289(2).
Clark v State of Tasmania [1999] TASSC 111, 9 Tas R 54; Marlow v Walsh (No 2) [2009] TASSC 40; Partridge v Hobart City Council (No 2) [2011] TASSC 35; Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391, 18 ANZ Insurance Cases 62-049, referred to.
Aust Dig Procedure [556]
REPRESENTATION:
Counsel:
Appellant: K E Read SC
Respondent: C H Hobbs
Solicitors:
Appellant: Page Seager Lawyers
Respondent: Baker Wilson Lawyers
Judgment Number: [2017] TASFC 2
Number of paragraphs: 35
Serial No 2/2017
File No FCA 276/2015
GEOFFREY ARTHUR SPAULDING v TROY LESLIE EIRTH (NO 2)
REASONS FOR JUDGMENT FULL COURT
BLOW CJ
WOOD J
PEARCE J
14 March 2017
Orders of the Court
That the order made on 2 April 2015 that the appellant pay the respondent's costs of the action is set aside.
That the appellant pay the respondent's costs of the action up to and including 13 November 2013 to be taxed as between party and party.
That the respondent pay the appellant's costs of the action from 14 November 2013 to be taxed as between party and party.
That the respondent pay the appellant's costs of the appeal and the cross-appeal to be taxed as between party and party.
Serial No 2/2017
File No FCA 276/2015
GEOFFREY ARTHUR SPAULDING v TROY LESLIE EIRTH (NO 2)
REASONS FOR JUDGMENT FULL COURT
BLOW CJ
14 March 2017
I agree with the orders proposed by Pearce J, and with his Honour's reasons.
I would like to add a little in relation to the costs of the cross-appeal. Strictly speaking, the cross-appeal was successful, but only to the extent that two grounds of appeal were upheld. One of those grounds, relating to motor vehicle expenses, resulted in the final judgment sum being only $1,000 higher than it otherwise would have been. The other successful ground resulted in an adjustment of $15,000 in the respondent's favour. However most of the grounds of the cross-appeal were unsuccessful. In addition, the respondent was unsuccessful in an application that was made during the hearing of the appeal when he sought to add another ground. In the circumstances, I think it is appropriate to treat the cross-appeal as having been substantially unsuccessful.
File No FCA 276/2015
GEOFFREY ARTHUR SPAULDING v TROY LESLIE EIRTH (NO 2)
REASONS FOR JUDGMENT FULL COURT
WOOD J
14 March 2017
I agree with the reasons of Pearce J, and with the orders proposed by his Honour.
File No FCA 276/2015
GEOFFREY ARTHUR SPAULDING v TROY LESLIE EIRTH (NO 2)
REASONS FOR JUDGMENT FULL COURT
PEARCE J
14 March 2017
This is a decision about costs following this Court's decision in Spaulding v Eirth [2016] TASFC 5. On 16 October 2007 the respondent, Troy Eirth, was injured as a result of the negligent driving of the appellant, Geoffrey Spaulding. The respondent brought an action for damages for personal injury. Interlocutory judgment for damages to be assessed was entered on 18 August 2008. On 2 April 2015 Estcourt J assessed the damages and ordered judgment for the respondent in the sum of $361,913. The appellant appealed and the respondent cross-appealed.
On 7 September 2016 this Court, by majority, allowed the appeal and the cross-appeal. Allowances totalling $162,000 were made in favour of the appellant. Allowances totalling $16,000 were made in favour of the respondent. The result was that the amount of the judgment in favour of the respondent was reduced by $146,000 to $215,913. Most of that reduction resulted from the determination that the respondent should receive no allowance for lost earning capacity, instead of the $140,000 allowed by the primary judge under that head of damage.
What now falls for determination is the question of who should pay the costs of the action and the appeal.
The costs of the action
The jurisdiction of this Court, and the primary judge, to award costs is expressly provided for by the Supreme Court Civil Procedure Act 1932, s 12(1). Subject to any statutory provision to the contrary, costs are in the discretion of the Court or judge: s 12(2). The discretion is, however, to be exercised judicially and not in an arbitrary or capricious way: Cretazzo v Lombardi (1975) 13 SASR 4, per Bray CJ at 11. Of the principles developed by courts to guide the exercise of the discretion, the factor which carries the greatest weight is result of the litigation: Oshlack v Richmond River Council (1998) 193 CLR 72. It is a factor of such importance that an order that costs follow the event, that is that the unsuccessful party will be ordered to pay the successful party's costs, is the "usual order". In the case of an action for damages for personal injury, the indicator of success is the making of an award of damages in favour of the plaintiff. In this case there was little doubt that some award was to be made to the respondent because liability to pay damages to him was admitted.
The result of the appeal brings into consideration the provisions of the Supreme Court Rules 2000 for offers of compromise. One of the ways a defendant can be protected from an award of costs is by making an offer of compromise. In this case the appellant made, over time, four offers of compromise:
· By notice dated 9 October 2010 the appellant offered to settle the respondent's action for $55,000 plus costs.
· By notice dated 9 June 2012 the appellant offered to settle the respondent's action for $155,000 plus costs.
· By notice dated 12 November 2013, filed and served 13 November 2013, the appellant offered to settle the respondent's action for $225,000 plus costs.
· By notice dated 15 May 2014 the appellant offered to settle the respondent's action for $325,000 plus costs.
The respondent also made an offer of compromise on 22 April 2014 to settle for $450,000 plus costs.
It is not suggested that the offers of compromise were not validly made in accordance with rr 280 and 281, or that the appellant was not able to carry out his part of the offers. Self-evidently, none were accepted. Following the judgment at first instance, an order was made that the appellant pay the respondent's costs of the action. As can be seen, all of the offers made by the appellant were below the damages award made by the primary judge. There was no reason to depart from the usual order that costs follow the event. However the appellant's offers of 12 November 2013 and 15 May 2014 are both above the amount of the judgment ordered by this Court on appeal. As a result, the appellant asks this Court to set aside the original costs order and substitute an order that the appellant pay the respondent's costs of the action up to and including 13 November 2013, the date of service of the 12 November 2013 offer of compromise, and that the respondent pay the appellant's costs of the action from 14 November 2013.
The respondent makes a different submission. He does not contend that his own offer of compromise has any effect. The assessments of both the primary judge and this Court were much less favourable to him. However, he contends that, notwithstanding the appellant's offers of compromise, this Court should not interfere with the order that the appellant pay his costs of the action. That contention prompts consideration of the nature and purpose of offers of compromise and what the effect of the offers should be in this case.
Offers of compromise
The Rules provide for offers of compromise in Pt 9. An offer may be made by a plaintiff, r 280(4), and by a defendant r 280(3). One way a defendant may make an offer of compromise is by offering a nominated sum of money, clear of costs, to the plaintiff: r 280(3)(a). The costs consequences of offers are provided for by r 289. As to offers made by defendants, the operative provision is r 289(2), but it is worth setting out r 289 in full:
"289 Costs in relation to failure to accept offer
(1) Unless the Court or a judge otherwise orders, a plaintiff is entitled to an order for costs against the defendant taxed on a solicitor-client basis if —
(a) the plaintiff has made an offer of compromise in accordance with this Part; and
(b) the defendant has not accepted the offer at the time of the judgment; and
(c) the judgment is no less favourable to the plaintiff than the terms of the offer.
(2) Unless the Court or a judge otherwise orders, a plaintiff is entitled to an order for costs against the defendant, up to and including the day on which an offer of compromise was served, on a party and party basis and the defendant is entitled to an order for costs against the plaintiff in respect of the claim after service of the offer on a party and party basis if –
(a) the defendant has made the offer in accordance with this Part; and
(b) the plaintiff has not accepted the offer at the time of the judgment; and
(c) the judgment is no more favourable to the plaintiff than the terms of the offer.
(3) Subrules (1) and (2) do not apply unless the Court or judge is satisfied that the party making the offer was at all material times willing and able to carry out his or her part of the offer."
The rule was explained by Porter J in Partridge v Hobart City Council (No 2) [2011] TASSC 35. At [37] his Honour said:
"It seems to be accepted that provisions such as r289(1) and (2), in prescribing costs consequences for unaccepted offers of compromise contain a 'presumptive entitlement' to costs where the conditions for their operation are met, which presumption remains 'unless the Court otherwise orders'. See MGICA (1992) Ltd vKenny & Good Pty Ltd (No 4) (1996) 70 FCR 236 at 240, Clark v State of Tasmania [1999] TASSC 111, 9 Tas R 54 at 59 [16], New South Wales Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100, per Gleeson CJ at 102."
Relevantly to this case, the rule prescribes the costs consequences of unaccepted offers made by defendants when the ultimate judgment is no more favourable to the plaintiff than the offer. It apportions the responsibility for the costs of the action to the defendant until the date the offer was served, and thereafter to the plaintiff unless the court "otherwise orders". Were the presumptive rule to be applied to this action, taking into account the result of the appeal, the orders sought by the appellant would be made. By the notice served 13 November 2013 the appellant offered to settle the respondent's action for $225,000 plus costs. The offer was not accepted. The respondent was ultimately awarded judgment for $215,913, a sum less favourable than the amount of the offer. According to the terms of r 289(2), unless the Court otherwise orders, the respondent, who was plaintiff, is entitled to an order for costs against the defendant, up to and including 13 November 2013 on a party and party basis, but from that date, the appellant, as defendant, is entitled to an order for his costs against the respondent on a party and party basis.
As r 289 contemplates, the presumptive rule may be departed from, but the onus lies on the party seeking to displace it: Curtis v Harden Shire Council (No 2) [2015] NSWCA 45 at [27]; Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391, 18 ANZ Insurance Cases 62-049at [45]. In Partridge at [40]-[41] Porter J reached the view, after consideration of authority, that it is not necessary for the party asking the court to "otherwise order" to demonstrate exceptional circumstances. Decisions of the Court of Appeal in New South Wales refer to a continuing controversy in that State about the need to show exceptional circumstances. The appellant did not assert that the respondent must demonstrate exceptional circumstances, and the question seems to be settled, at least in New South Wales, by Leach v Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2). In that case McColl JA, with whom Gleeson JA and Sackville AJA agreed, said at [47] that the approach to be adopted was sufficiently encapsulated by the proposition that "the prima facie position should only be departed from for proper reasons, which in general would only arise in an exceptional case". That proposition emanated from the decision of Hely J in Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) [2004] FCA 1437, 212 ALR 281 at 284 [17], and was also cited with approval in Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 40 at [8]-[9]. I think that it is the correct approach. Porter J also, correctly in my respectful view, adopted the principle stated by Hidden J in Wainright v Fuller [1999] NSWSC 1019 at [6] that "the ordinary provision is expected to apply in the ordinary case", and the decision of the New South Wales Court of Appeal (Spigelman CJ, Beazley and McColl JJA) in Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 at [15]:
"The relevant provisions of these rules do not specify that exceptional circumstances or the avoidance of substantial injustice must be established before the court will make a different order to the prima facie order for which the rules provide and, in our opinion, the rule should not be so construed. Rather, the discretion is one that has to be exercised having regard to all the circumstances of the case."
Substantially the same approach has been adopted by other intermediate courts of appeal concerning equivalent State and Federal legislation provisions. In Eicas v Dawson [2016] SASCFC 124 the Full Court of the Supreme Court of South Australia referred to the rule as a "strong one and not easily displaced".
The circumstances which may justify departure from the rule cannot be identified or exhaustively listed: Clark v State of Tasmania [1999] TASSC 111, 9 Tas R 54 at 60 [20]; Leach v Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) at [48]. The discretion is to be exercised having regard to all the circumstances of the case. First and foremost, regard must be had to the purpose of the rule. It is to facilitate the proper compromise of litigation. It does so by putting a party at risk of an adverse costs order if that party proceeds with litigation without accepting an offer which would have produced a more favourable result than the result ultimately achieved. As explained by Mason P in Morgan v Johnson (1998) 44 NSWLR 578 at 581-582 the rule is intended to encourage the compromise of litigation, such compromise being in both the private and the public interest, and to oblige parties "to give serious thought to the risk involved in non-acceptance" on the basis that "litigation is inescapably chancy": Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721 at 725. In Morgan v Johnson the New South Wales Court of Appeal referred to and adopted a passage, with which I also respectfully agree, from the judgment of the same Court in Houatchanthara v Bednarczyk [1996] NSWSC 486. In that case Clarke JA stated:
"The rule lays down the general principle that should be applied, and the order provided for in that rule should only be departed from for proper reasons which, in general, only arise in an exceptional case. It is clear that if the rule operates, the plaintiff will be significantly disadvantaged, but that disadvantage flows naturally from the risks of litigation. The idea behind the rule is to encourage settlement or compromise of proceedings, and more specifically, to encourage litigants to give serious consideration to the settlement of proceedings. Where an offer is made by a defendant to a plaintiff, the latter is put on notice that unless he or she accepts that offer, there is a significant risk that the order provided for by the rule may follow. In declining to accept the offer, the plaintiff undertakes the risk and the consequences that flow naturally from that risk."
The rule concerning offers of compromise is an important provision for defendants when liability to pay a sum is admitted and some award in favour of the plaintiff is certain. It is one of the few means by which a defendant may encourage a plaintiff to give serious thought to genuine compromise and obtain protection from the effect of the usual order as to costs.
Should the Court "otherwise order"?
The respondent contends that, in this case, the presumptive rule should not apply and that this Court should "otherwise order". The submission that the presumptive rule should be departed from is made for two related reasons, namely that:
· it was reasonable for the respondent to not accept the offers; and
· the offers, most particularly the offers of 12 November 2013 and 15 May 2014, did not reflect a genuine compromise on the part of the appellant at the time the offers were made.
The reasonableness or otherwise of the failure to accept an offer of compromise is a factor relevant to the exercise of the court's discretion. It is a factor to be assessed according to the position and knowledge of the parties at the time when the offer was made, and not with the benefit of hindsight: Regency Media Pty Ltd v AAV Australia at [33]. If, for example, the party to whom an offer of compromise is made does not, at the time, have available the means to fairly assess the offer, and the extent of the risk the party assumes by not accepting it, then that may indicate the reasonableness of a refusal and tend to justify a departure from the presumptive entitlement. A factor in the exercise of the discretion is the undesirability of a position whereby plaintiffs are discouraged from pursuit of a proper claim by the potential operation of the rule without being fairly apprised of the case against them.
The respondent submits that his non-acceptance of the appellant's offers was, at the time two offers were made, reasonable because it was in his reasonable contemplation that, at trial, a substantial award would be made for:
· loss of earning capacity; and
· the future cost of surgery and related procedures.
I deal firstly with the contention about the claim for lost earning capacity. At issue in the trial, as it is in every such assessment of damages, was not only whether the personal injury suffered by the respondent caused a loss of earning capacity, but also whether the loss was productive of financial loss.
The appellant contends that the primary judge intended to achieve an award of $140,000 damages for loss of earning capacity in the respondent's favour, but did not do so substantially as a result of a failure to appropriately formulate and articulate his reasoning. In the result, according to the submission, the order made allowing the appeal meant that the ultimate result did not reflect his Honour's intention. The submission describes the result of the appeal as having resulted from a "technical failing". It is further contended that the argument is reflected in a concession made at trial by senior counsel for the appellant that an award for lost earning capacity should be made.
The submission should be rejected. It does not accurately represent either the nature of the concession by counsel for the appellant at trial or the reason for success of the appeal. The submission made by counsel for the appellant to the primary judge was that "any loss of capacity is to be judged against the mere chance that the uninjured capacity would have been used for profit" and that "at best" a global award of $80,000 for past and future loss could be made. The majority of this Court determined that the learned primary judge found, unambiguously and without any inconsistent finding, that the respondent, if not injured in the motor vehicle accident, would never have exercised, or successfully exercised, his earning capacity. The respondent's loss of earning capacity was therefore not productive of financial loss. That state of affairs compelled the conclusion that the respondent should receive no award for lost earning capacity. There was nothing technical about the majority's determination. The success of the appeal did not result from a failure on the part of the primary judge to "articulate his reasoning" and did not contradict the primary judge's "intention". The appeal succeeded by reason of what the majority determined, by application of legal principle, to have arisen from the facts as found by the primary judge.
Assessment of whether the respondent would ever have exercised, or successfully exercised, his pre-injury earning capacity, and thus whether lost earning capacity arising from injuries suffered by the respondent was productive of financial loss, depended very heavily on the credibility and reliability of the evidence to be given by the respondent. Evidence about his age, work history, health and intentions before the accident was relevant. Those matters were within the knowledge of the respondent. By the time of the November 2013 offer the litigation was well advanced. Two lower offers had already been made and refused. Reports of expert opinion from medical practitioners had been prepared and exchanged.
The respondent also contends that his expectation of a large award for future medical expenses was reasonable. The respondent's claim included a claim for about $120,000 for the costs of surgery and related procedures recommended by his treating medical practitioners to alleviate ongoing cervical and referred symptoms. The evidence in support of the claim at trial was primarily from the respondent's expert witnesses. Following cross-examination of the witnesses the claim was not allowed. The amount of the allowance resulted substantially from the primary judge's assessment of the evidence and opinions of the respondent's experts. The primary judge awarded the sum of $15,000 under this head to allow for the possibility of future surgery. This Court found that the allowance was neither manifestly inadequate nor manifestly excessive. At the time of the November 2013 offer of compromise the respondent was well aware that payment for the claimed expenses was disputed by the appellant.
Although the reasonableness or otherwise of the decision of a plaintiff to refuse a defendant's offer of compromise is a factor in the exercise of the court's discretion to depart from the presumptive entitlement, it is not determinative: Leach v Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) at [48]. In Marlow v Walsh (No 2) [2009] TASSC 40, Blow J (as he then was), with whom Evans and Porter JJ agreed, stated at [10]:
"There is nothing in r289 to suggest that a party wishing to rely on an offer of compromise should have to prove that the recipient acted unreasonably in not accepting it. Situations will often arise in which a recipient of a generous offer will have to make a difficult choice, and rejection or non-acceptance could not be regarded as unreasonable. In that situation, if the offer is not accepted, the case proceeds to judgment, and the judgment is less favourable to the recipient than the offer, it may still be quite appropriate for r289 to be applied, even if the decision not to accept the offer was not unreasonable at the time it was made. One of the purposes of the rule is to provide reasonable litigants with strong incentives to settle their cases. "
I am not persuaded that the extent to which the respondent's refusal of the offer served on 13 November 2013 may be characterised as "reasonable" should displace the presumptive entitlement. With due allowance for the inexact nature of claims like the one made by the respondent, and the many imponderables on which it depended, the rule has been brought into operation because the respondent assumed the risk of the litigation. In my view, that is the predominant factor in this case. It was not contended, either in respect to the claim for lost earning capacity or future medical expenses, that the respondent did not, at the time the November 2013 offer was refused, then have the material available to him to enable him to properly and fairly assess the offer, or that there was any substantial change to the evidence between the time of the offer and the trial. It must also have been clear to the appellant, from a relatively early stage of the litigation, that resolution of the lost earning capacity claim depended to a very substantial degree on the primary judge's assessment of his credibility and reliability. A very large claim was particularised. A range of outcomes was possible. The respondent was represented by competent and experienced counsel. There is no reason to conclude that he was not fully apprised of the risks involved. By not accepting the offer, he assumed the risk that, if he did not ultimately achieve a result more favourable to him, he would bear the costs of the action from the date the offer was made. There is a particular risk when litigation involves judgment of future events. In the circumstances of this case, the respondent was in a better position than the appellant to judge those risks and had the material available to him to enable him to do so. The submissions put by the respondent's counsel that the respondent had a reasonable expectation of a much higher award are simply an attempt to re-argue the factual issues on which the respondent achieved only limited success at trial and less so following the appeal.
For similar reasons I also reject the submission that the appellant's offer of compromise served 13 November 2013 of $225,000 plus costs was not a genuine offer of compromise. There are many authorities for the proposition that a court may depart from the presumptive order where the offer of compromise does not involve "a real and genuine element of compromise". The respondent refers to Leichardt Municipal Council v Green [2004] NSWCA 341. There are others including Gamboni v Bendigo and Adelaide Bank Ltd [No 2] [2013] VSCA 282; Leach v The Nominal Defendant (No 2) at [47] and Fabre v Lui (No 2) [2015] NSWCA 312. The respondent's contention that the offer was not a genuine compromise assumes the correctness of many of the arguments not accepted by the primary judge or this Court. The offer was not derisory or dismissive. It was not an offer which required him to substantially abandon his claim. It involved an element of compromise because it was an offer to pay a significant sum, albeit much less than the respondent was claiming, when there were viable arguments that even less may be awarded.
During the hearing of the costs argument the respondent adduced evidence from his solicitor about the amount of the costs he will be liable to pay by operation of r 289, and the potentially drastic financial effect that operation of the rule will have on him. It is a matter of some regret. However, it results from the operation of the rule and the risk the respondent assumed by not accepting the offer when made. To otherwise order would, in this case, undermine the policy and intent of the rule. The financial consequence of an unfavourable award is a matter a party must take into account when deciding whether to accept an offer: Eicas v Dawson [2016] SASCFC 124 at [216].
The costs of the appeal and cross-appeal
The appellant also seeks an order that the respondent pay the appellant's costs of the appeal and the cross-appeal on a party and party basis. The respondent contends that the appellant should pay his costs of the appeal, or alternatively, that there should be no order as to costs.
A costs order on an appeal may reflect that an appellant has succeeded in relation to some questions, and the respondent has succeeded on others: Marlow v Walsh (No 2) (above) per Blow J at [22]. However, although some allowances were made in favour of the respondent on his cross-appeal, the costs order should reflect a just and fair outcome without isolating and weighing individual issues with minute precision: Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343 at [10], applied in Sze Tu v Lowe (No 2) [2015] NSWCA 91. The appellant was substantially successful on the appeal. Costs should follow that event. In my view, to deprive the appellant of an order for costs of the appeal is not a just outcome. Any attempt to apportion costs of the appeal according to particular issues won or lost is an artificial and strained exercise. To make separate orders on the appeal and the cross-appeal, or to make a percentage reduction in the costs to which the appellant is entitled, does not reflect the overall result of the appeal.
It was submitted on behalf of the respondent that despite the result of the appeal, the appellant should have his costs of the appeal, or alternatively that there should be no order for the costs of the appeal. The argument advanced in support of that submission is the argument, to which I earlier referred, that the appeal succeeded because of the unintended and technical failure of the primary judge to properly articulate his reasons. For the reasons already expressed the submission should be rejected.
The costs of the costs argument
The costs orders which, in my view, should be made in both the action and the appeal, reflect the position contended by the appellant. The costs of the argument about costs will, on a party and party basis, be covered by those orders. However, the appellant seeks the costs of the argument on an indemnity basis. Such an order should only be made when the particular or special circumstances of a case mean that some other order is necessary to achieve a just result: Colgate-Palmolive Companyv Cussons Pty Limited (1993) 46 FCR 225 at 232-233. The discretion to award indemnity costs is a judicial one which must be exercised in accordance with principle. The principle said to apply here is that it was unreasonable for the respondent to have subjected the appellant to the costs involved with the argument. I do not see that the respondent's contentions about costs, although unsuccessful, were unreasonable. I would order that the appellant's entitlement to costs should be as between party and party.
Result and orders
For the foregoing reasons I would order that:
(a)the order made 2 April 2015 that the appellant pay the respondent's costs of the action is set aside;
(b)the appellant pay the respondent's costs of the action up to and including 13 November 2013 to be taxed as between party and party;
(c)the respondent pay the appellant's costs of the action from 14 November 2013 to be taxed as between party and party;
(d)the respondent pay the appellant's costs of the appeal and the cross-appeal to be taxed as between party and party.
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