Staples Waste Removals Pty Ltd v Arev Computer Centre Pty Ltd and Ors (No.3)
[2012] FMCA 418
•8 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| STAPLES WASTE REMOVALS PTY LTD v AREV COMPUTER CENTRE PTY LTD & ORS (No.3) | [2012] FMCA 418 |
| COMMERCIAL LAW – Misappropriation of generic internet domain name – liability of agent and his solicitor to equitable compensation – contraventions of Trade Practices Act – form of declarations and orders – costs ordered in favour of applicant – Calderbank letters – indemnity costs refused – party/party costs calculated as lump sum under Sch.1 to Federal Magistrates Court Rules. |
| Federal Magistrates Act 1999 (Cth), s.14 Federal Magistrates Court Rules 2001 (Cth), rr.21.02, 21.10 Trade Practices Act 1974 (Cth), s.52 |
| Barnes v Addy (1874) LR 9 Ch App 244 Dubow v Fitness First Australia Pty Ltd (No.3) [2010] FMCA 287 Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No.2) (2005) 13 VR 435 Perry v Comcare (2006) 150 FCR 319 Staples Waste Removals Pty Ltd v Arev Computer Centre Pty Ltd & Ors (No.2) [2012] FMCA 214 University of Western Australia v Gray (No.21) (2008) 249 ALR 360 |
| Applicant: | STAPLES WASTE REMOVALS PTY LTD ACN 003 106 858 |
| First Respondent: | AREV COMPUTER CENTRE PTY LTD ACN 003 770 849 |
| Second Respondent: | SVEN EDWIN BJORNSSON |
| Third Respondent: | CORPORATE EXPRESS AUSTRALIA PTY LTD ACN 000 728 398 |
| Fourth Respondent: | JOHN ALICK SHEATHER |
| File Number: | SYG 2446 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 8 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Beaumont |
| Solicitors for the Applicant: | Hartnett Lawyers |
| Counsel for the First and Second Respondents: | Mr S Latham |
| Solicitors for the First and Second Respondents: | Stuart Latham Solicitors |
| Counsel for the Third Respondent: | No Appearance |
| Solicitors for the Third Respondent: | Blake Dawson |
| Counsel for the Fourth Respondent: | Mr A Scotting |
| Solicitors for the Fourth Respondent: | Yeldham Price O’Brien Lusk |
THE COURT DECLARES THAT:
The second respondent was in breach of his fiduciary duties owed to the applicant in his capacity as its agent, and engaged in misleading and deceptive conduct in contravention of s.52 of the Trade Practices Act 1974 (Cth) (TPA), when causing the domain name staples.com.au to be transferred from the applicant’s name into his own name and selling it to Corporate Express Australia Pty Ltd without the applicant’s knowledge or authority.
The fourth respondent participated in the second respondent’s breach of his fiduciary duties with knowledge of the second respondent’s dishonest and fraudulent design, and was knowingly concerned in or a party to the contravention of s.52 of the TPA by the second respondent within the meaning of s.75B(1)(c) of the TPA.
THE COURT ORDERS THAT:
The second and fourth respondents pay the applicant the sum of $55,000.
The second and fourth respondents pay the applicant interest up to judgment in the sum of $9,434.14.
The second respondent indemnify the fourth respondent for any amounts paid by the fourth respondent to the applicant under orders 3 and 4.
Application otherwise dismissed as against the first, second and fourth respondents.
Cross‑claim of the second respondent dismissed.
The second and fourth respondents pay the applicant’s costs in the proceedings set in the amount of $74,878.69, including the costs ordered on 5 April 2011.
No other orders as to costs as between all parties.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2446 of 2010
| STAPLES WASTE REMOVALS PTY LTD ACN 003 106 858 |
Applicant
And
| AREV COMPUTER CENTRE PTY LTD ACN 003 770 849 |
First Respondent
| SVEN EDWIN BJORNSSON |
Second Respondent
| CORPORATE EXPRESS AUSTRALIA PTY LTD ACN 000 728 398 |
Third Respondent
| JOHN ALICK SHEATHER |
Fourth Respondent
REASONS FOR JUDGMENT
(revised from transcript)
On 30 March 2012, I delivered lengthy reasons in this matter (see Staples Waste Removals Pty Ltd v Arev Computer Centre Pty Ltd & Ors (No.2) [2012] FMCA 214). The matter was then listed today for further submissions as to the form of orders and issues of costs. The legal representatives of the parties have filed helpful submissions before today’s hearing, and I have discussed the proposed orders with them. The orders which I have made are set out at the beginning of this judgment. In these reasons, I shall briefly explain why they were made, and how I have resolved some controversies between the parties.
In my judgment I doubted the utility of making declarations in relation to contraventions of the Trade Practices Act 1974 (Cth). However, on further reflection, I am persuaded that it would be appropriate to recognise those contraventions by the second and fourth respondent, because they provide, on one view, the anchor to which this Court’s jurisdiction to award general equitable relief attaches. They also recognise that my judgment arrived at firm conclusions in relation to the contraventions.
I also consider that it is appropriate to recognise in the declarations the basis for my orders for the payment of equitable compensation and interest for breach of fiduciary duties by Mr Bjornsson, and under the second wing of the rule in Barnes v Addy (1874) LR 9 Ch App 244 in relation to Mr Sheather.
My assessment of equitable compensation was explained in my judgment, and no party has submitted that I should depart from how I arrived at the figure of $55,000. I do not think it necessary in the terms of the orders to refer to the reason for the monetary orders. Nor do I consider it necessary to add words to those orders to confirm my intent that they will give rise to joint and severable liabilities to the applicant on the part of Mr Bjornsson and Mr Sheather.
In my judgment at paragraph 197, I raised an issue whether I should make an additional order “by which Mr Sheather would be entitled to a total indemnity against Mr Bjornsson in the event that Staples Waste Removals makes recoveries from Mr Sheather, with the intent that ultimately Mr Bjornsson should, if he can, carry the whole burden of his dishonesty”. It appears to me that this issue was one which was appropriately raised by me pursuant to my obligations under s.14 of the Federal Magistrates Act 1999 (Cth) to give all remedies to which the parties appear to be entitled in respect of legal or equitable claims, so that as far as possible “all matters in controversy between the parties may be completely and finally determined” and “all multiplicity of proceedings concerning any of these matters may be avoided”.
The parties today recognised the appropriateness of addressing the liabilities inter se between the second and fourth respondents, and suggested the terms of the order which appears as Order 5 above. In this respect, I note that the applicant was neutral as to the making of the order, that the second respondent did not oppose the making of the order, and that it was sought by the fourth respondent.
As I noted in my judgment, in the course of the trial it became apparent that the applicant did not press for relief against the first respondent, which had been joined, in my opinion reasonably, due to obscurity in the manner in which Mr Bjornsson had conducted his affairs as a computer consultant. There was evidence of this, in particular, in relation to his practices concerning domain names registrations, including the registrations which were the subject matter of my judgment. The applicant effectively conceded by the end of the trial that the claims as against Arev should be dismissed in view of how the case against Mr Bjornsson had developed.
I propose to dismiss the application as against Arev, and also otherwise to dismiss the application insofar as it sought relief under other causes of action and other heads of damages which I declined to award. I therefore make the general order of dismissal of other claims under Order 6 above.
I note that the claims against the third respondent, Corporate Express, and its cross‑claim, were all resolved by orders made in the course of the proceedings. No further orders are needed in relation to the involvement of Corporate Express Australia Pty Ltd in the proceedings.
The consequence of my declining to find that Mr Bjornsson had the full beneficial ownership of the domain name and its proceeds requires me to dismiss his cross‑claim, and I do so in Order 7 above.
The substantial issue between the parties today was as to the making of costs orders, and the basis on which costs should be assessed and awarded.
The solicitor who had acted for Mr Bjornsson and Arev submitted that Arev was, in effect, a successful separate party, and was entitled to costs against Staples consequent upon the dismissal of the application against that respondent. However, I do not accept this submission.
The solicitor tendered as part of his submissions his costs agreement, which appears to me to show that one set of costs were probably incurred, for which both of his clients would be liable. Moreover, the proceedings were, in fact, conducted, in my opinion, as if the first and second respondents were jointly meeting the one set of factual allegations made by the applicant. Those allegations, as I have indicated, involved reasonable uncertainty on the applicant’s part as to the responsibility and liability of Mr Bjornsson, or his company, or both of them, in relation to the fraud effected on the applicant. There was evidence produced on discovery by the first and second respondents which seemed to keep alive that uncertainty, in particular, an invoice by which NetRegistry invoiced Arev for the fees of the registration of the domain name in the name of Staples Photography. There were other obscurities as to the involvement of Arev in Mr Bjornsson’s activities which faced the applicant. In my opinion, the circumstances made it reasonable for the applicant not to have accepted Arev’s pleading of denials of involvement, and not to have conceded this until the end of the trial. Moreover, Arev’s separate involvement in the matter appears to me not to have resulted in any significant increase in the overall costs and complexity of the matter.
Taking into account the whole nature of the proceedings and how they were conducted in this Court, both in their preparation and at trial, in my opinion, a just approach to the award of costs in relation to the involvement of Arev is to make no order as to its costs in the proceedings.
In relation to the applicant’s costs, it was not submitted that a costs order in its favour should not follow the event as against the second and fourth respondents.
It was, however, submitted by the solicitor for Mr Bjornsson that I should discount the award of costs against his client because of the absence of a verdict against Arev. I had difficulty understanding the basis for this contention, and can see no justification for discounting an award of costs against Mr Bjornsson in relation to the applicant’s costs of pursuing Mr Bjornsson. On the approach by which I propose to assess those costs, as I shall explain, they appear to me to cover, in effect, a full set of costs appropriately awarded to a successful applicant on a party/party basis.
The applicant sought an award of indemnity costs against Mr Bjornsson and Mr Sheather. This application was based upon their failure to accept offers made in Calderbank letters separately addressed to each of them. The letters were dated 11 May 2011 and invited each respondent to pay the applicant the sum of $66,974 “in full and final settlement of the proceedings and all matters in dispute ... within twenty-eight (28) days of your client’s written acceptance of this offer”. Each of the letters noted that the sum “is inclusive of costs including the order of Smith FM on 5 April 2011 in this matter”. That order for costs was a partial order for costs in favour of the applicant in relation to an application for summary dismissal, in which I awarded costs against first, second and fourth respondents in the sum of $1974.
It is to be noted that the Calderbank letters were sent at the stage in the proceedings after the matter had been commenced, but its preparation was incomplete. A first court date had been held which had directed pleadings and discovery. There had been interlocutory skirmishes over the failure of the first and second respondents to file pleadings in time, and over applications by the respondents for security for costs to be given by the applicant company. On 9 May 2011, I had noted that the issue about security had been resolved and, for the first time, ordered a full timetable for further amended pleadings and for evidence, appointing a hearing for three days from 11 October 2011.
A mediation had been held on 14 April 2011, and at a directions hearing on 21 April, I noted that the matter appeared to have been settled in principle in relation to Corporate Express, but would proceed against the first, second and fourth respondents. At that stage, therefore, the two recipients of the Calderbank offer had not seen the applicant’s evidence and the strength of its factual case, except to the extent that it was known to them. They also knew that settlement had been arrived at Corporate Express, but the evidence before me does not show the extent to which the first and second respondents were aware that the settlement had included the payment by Corporate Express of a global figure of $33,000 on terms explained in my judgment.
The principles upon which Federal Courts address applications for indemnity costs based on the non‑acceptance of a Calderbank offer were, with respect, concisely summarised by French J, as he then was, in University of Western Australia v Gray (No. 21) (2008) 249 ALR 360 at [29]-[36]. Other authorities to which I was taken today do not appear to me to be inconsistent with what his Honour said:
Whether indemnity costs should be awarded
[29]There have been a considerable number of decisions in the Federal Court and other courts about when indemnity costs will be awarded following the rejection of an open offer. Many of these cases turn on their own facts. The starting point for consideration of the motion is the discretion in relation to costs conferred upon the Court by s 43 of the Federal Court Act.
[30]Ordinarily that discretion will be exercised so that costs follow the event and are awarded on a party and party basis. A departure from normal practice to award indemnity costs requires some special or unusual feature in the case: Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd (No 2) [2002] FCA 224; (2002) 190 ALR 121 at [11] (Weinberg J) citing Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233 (Sheppard J).
[31]Order 23 provides for offers of compromise. In this case it was not suggested that the Sirtex offer complied with the requirements of O 23. In any event that Order is not a code.
[32]The general principles governing the exercise of the discretion to award indemnity costs after rejection by an unsuccessful party of a so called Calderbank letter were set out in the judgment of the Full Court in Black v Lipovac [1998] FCA 699; (1998) 217 ALR 386. In summary those principles are:
1. Mere refusal of a "Calderbank offer" does not itself warrant an order for indemnity costs. In this connection it may be noted that Jessup J in Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2008] FCA 42 said that (at [6]):
if the rejection of such an offer is to ground a claim for indemnity costs, it must be by reason of some circumstance other than that the offer happened to comply with the Calderbank principle.
2. To obtain an order for indemnity costs the offeror must show that the refusal to accept it was unreasonable.
3. The reasonableness of the conduct of the offeree is to be viewed in the light of the circumstances that existed when the offer was rejected.
[33]The preceding general principles inform the exercise of the discretion. That discretion is not to be fettered by transformation of approaches and practices developed through the cases into quasi statutory rules. In John S Hayes & Associates Pty Ltd v Kimberly-Clark Australia Pty Ltd (1994) 52 FCR 201, Hill J said (at 203):
care must be taken not to circumscribe the discretion by reference to closed categories. It is not a necessary condition of the power to award costs that a collateral purpose be shown. The categories warranting the exercise of the discretion are not closed ...
See also Goldberg J in Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [15].
[34]I accept that the making of a rolled up offer inclusive of costs and interest may detract from the weight to be given to its refusal in the exercise of the discretion. Finn J referred to authorities on the point inGEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688; (2003) 201 ALR 55 at [34]. His Honour cited single judge decisions to the effect that such offers ought not to be a relevant consideration on the question of costs and would not be considered in the same way as a Calderbank letter. His Honour was invited to depart from that line of first instance authority. However he was not prepared to say it was clearly wrong. Notwithstanding that, in the circumstances of the case he had to decide, his Honour found that:
The fact that the offer gave no indication at all of the breakdown ... between the claim, interest and costs blunts significantly the weight to be given the offer.
[35]While respecting the general approach to rolled up offers reflected in the cases to which Finn J referred, such approaches cannot be calcified into rules of law which fetter a general discretion. They simply reflect a common sense proposition that generally speaking such an offer is not unreasonably refused. There may, however, be circumstances where a rolled up offer, refused by an applicant who is unsuccessful, may support a claim for indemnity costs.
[36]On the question of the level of unreasonableness necessary to attract the discretion, I respectfully agree with the comment of Sackville J in Seven Network Limited v News Limited (2007) 244 ALR 374 at [62] questioning the utility of substituting a requirement that rejection be "plainly unreasonable" for the requirement that it be "unreasonable". Given the evaluative character of the judgment involved the addition of the word "plainly" which is itself evaluative, has no useful function.
It appears to me that the Federal Court has taken a non-technical and flexible approach to the required content of an offer made in a Calderbank letter. In this respect, I would also note observations by Greenwood J in Perry v Comcare (2006) 150 FCR 319 at [57] where his Honour also referred to the dicta of Finn J:
[57]Two further things should be remembered. First, very often the question of whether a particular offer qualifies for consideration as a Calderbank letter arises on an application by the offeror for indemnity costs of the proceedings consequent upon a result less favourable to the offeree than the offer. Offers that are not clear and do not provide the offeree with an informed choice fail. It seems those principles going to the requirement of certainty and precision equally apply where what is sought is simply deprivation of the applicant’s costs from the date of the offer. Second, the authorities demonstrate that even if a letter of offer qualifies as a Calderbank letter, the mere refusal of such an offer does not of itself result in an order for indemnity costs. The offeror has an onus of showing that the conduct (that is, rejection of the offer and other relevant conduct) was unreasonable. Although this notion of the offeror demonstrating that the conduct of the offeree was unreasonable has a correspondence with an offeror seeking indemnity costs, the general principle that rejection of a qualifying Calderbank letter does not result in automatic orders, that is, a fettered exercise of discretion, seems consistent with a more general principle that the underlying question in the exercise of the costs discretion by Courts is whether the offeree acted reasonably. Reasonableness therefore needs a framework or, as Finn J observed in GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 201 ALR 55 ; [2003] FCA 688 at [34]: “The reasonableness of the rejection of an offer is to be considered in the light of the circumstances which existed at the time of the rejection. And, relevant in that consideration are the terms of the offer and the circumstances of the litigation, ‘including the time at which the offer is made and the understanding of the parties as to the strengths and weaknesses of their respective cases’: Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd [2000] FCA 163”.
Counsel for the applicant in her written submission referred to a judgment of the Victorian Supreme Court which pointed to other relevant considerations. She submitted:
14.The Victoria Court of Appeal in Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No.2) (2005) 13 VR 435 conveniently set out the relevant principles at [25]:
[25] The discretion with respect to costs must, like every other discretion, be exercised taking into account all relevant considerations and ignoring all irrelevant considerations. It is neither possible nor desirable to give an exhaustive list of relevant circumstances. At the same time, a court considering a submission that the rejection of a Calderbank offer was unreasonable should ordinarily have regard at least to the following matters:
(a)the stage of the proceeding at which the offer was received;
(b)the time allowed to the offeree to consider the offer;
(c)the extent of the compromise offered;
(d)the offeree’s prospects of success, assessed as at the date of the offer;
(e)the clarity with which the terms of the offer were expressed;
(f)whether the offer foreshadowed an application for an indemnity costs in the event of the offeree’s rejecting it.
There is, obviously, a need to compare the offer made in the Calderbank letters with the outcome of the case which gives rise to the costs order to the successful party. In the present case, the offer, prima facie, exceeded the amount of the substantive compensation which I have ordered, but is less than that amount plus added interest as at today. Counsel for the applicant submitted that calculating interest up to the date of the letters, would also have made the offer, in its global amount, a reasonable amount to have accepted at the time that it was made.
The letters did, however, contain no apportionment of compensation and interest, nor explain the suggested relationship between the simultaneous offers to the first and second respondents and to the fourth respondent, whose liabilities were alleged under different pathways. They did not present any calculations indicating the substantive outcome upon which they were framed. Moreover, they did not explain what, if any, adjustment was being made for the settlement achieved with Corporate Express.
At that time and, indeed, right up to and after the trial, the issues that were being litigated took a winner-take-all approach to the litigation. It was only in the course of the trial, that serious attention was given by the applicant to Mr Bjornsson’s claims for, at least, just allowances to recognise his entrepreneurial effort and contribution in the acquisition of the domain name.
Taking into account all the relevant matters referred to in the above authorities, I have not been persuaded that their refusal to accept the Calderbank offers was unreasonable on the part of either the second respondent or the fourth respondent. I am not persuaded that the Court should exercise its exceptional discretion to depart from the usual rule that costs following the event should be awarded on a party/party basis.
I therefore do not accept the submissions of the applicant seeking indemnity costs.
This Court’s powers as to the manner in which it awards party/party costs, are referred to in r.21.02(2) of the Federal Magistrates Court Rules 2001 (Cth) which provides:
(2)In making an order for costs in a proceeding, the Court may:
(a)set the amount of the costs; or
(b) set the method by which the costs are to be calculated; or
(c)refer the costs for taxation under Order 62 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or
(d)set a time for payment of the costs, which may be before the proceeding is concluded.
The Rules themselves contain what has been referred to as an events-based schedule of costs, covering both Family Law and General Federal Law proceedings. The object an award made by reference to the Schedule is to avoid protracted and expensive taxation processes, involving scrutiny of solicitor’s files and a close examination of all that occurred in the course of the litigation. This is achieved by focusing only upon the usual events which are reflected in the Court’s file itself. Schedule 1 identifies the usual stages in civil proceedings, and awards lump sums in relation to those stages, in a manner which the authors of the Schedule consider fairly recognises amounts of professional costs and expenses which are appropriately awarded in proceedings brought within this court’s jurisdictions.
Plainly r.21.02 allows departure from Schedule 1 where appropriate, including by ordering taxation under the Federal Court rules and scales. But there is a presumption raised by r.21.10 that Schedule 1 will normally be applied unless the Court is persuaded otherwise:
21.10 Unless the Court otherwise orders, a party entitled to costs in a proceeding (other than a proceeding to which the Bankruptcy Act applies) is entitled to:
(a) costs in accordance with Part 1 of Schedule 1; and
(b) disbursements properly incurred.
I have in several judgments referred to circumstances where departure from Schedule 1 might be appropriate, or where Schedule 1 should be adopted but supplemented by additional global amounts not adequately covered by the Schedule (cf. Dubow v Fitness First Australia Pty Ltd (No.3) [2010] FMCA 287). There is a particular benefit in applying Schedule 1 in small commercial cases where costs will follow the event, since it allows the parties to calculate in advance roughly the amount of costs which they can hope to be awarded if they are successful. However, each case throws up its own discretionary considerations in relation to an appropriate approach to costs.
In the present case, the matter was a relatively small commercial case in terms of the money at stake. Essentially, it concerned an identified windfall profit of about $80,000 and how it should be shared between the litigants. It acquired some of its complexities because of the obscurity, from the applicant’s perspective, as to the events by which it has been defrauded of its title to and enjoyment of the domain name, and by reason of the respondent’s defences which challenged its full legal and the beneficial ownership. Added to these circumstances there were considerable additional complexities brought into play by the applicant’s pursuit to the end of the trial of elaborate alternative causes of action. The applicant also added the extra layer as to the liability of the solicitor who had become involved in the proceedings, and, initially, the purchaser of the domain name. I would not be overly critical of these aspects of its case, but they undoubtedly added to the complexity of my judgment, and explain why the matter acquired the duration and complexity which is manifest from my judgment.
However, taking all of these matters into account, I have not been persuaded that an approach to party/party costs would not be most appropriately approached by using Schedule 1 to the Federal Magistrate’s Court Rules. The applicant deliberately chose this Court as its preferred forum, presumably attracted by its commitment to achieving relatively informal, cheap and efficient finality in its litigation, according to procedures appropriate to an inferior court. I consider that in the present case there is a clear attractiveness in now awarding an amount of quantified costs under Schedule 1, rather than allowing the matter to further proceed through protracted taxation procedures at great expense, I suspect, to everyone involved, including the public purse. Balancing all the issues of justice which should inform my discretions to award costs, I have decided to fix a lump sum today by reference to Schedule 1, notwithstanding that it may result in substantially lower amount of costs becoming recoverable by the applicant than if I had ordered taxation under the Federal Court Rules.
As requested at the end of my judgment, the applicant’s legal representatives prepared a schedule of costs calculated under Schedule 1 for the whole course of the proceedings up to and including today. The respondent’s representatives have largely taken an undemanding response to these calculations. Undoubtedly, they have done so with an appreciation that they are escaping a possibly substantially greater burden as a result of the Court not directing a taxation of costs. I propose to accept the applicant’s calculations, subject to some adjustments.
In particular, it appears to me that Schedule 1 itself indicates the extent to which it is reasonable for party/party costs to include the costs of a legal representative in travelling to court. It allows an increase to a daily hearing fee by $527 in relation to the employment of such practitioners, on a basis that: “two hour travel is the benchmark. There is no entitlement to an increase in lump sum for under two hour travel time.” In the present case, the plaintiff employed a solicitor who was involved in such travel in relation to every hearing day which the solicitor attended to instruct counsel or otherwise. I am not persuaded that it was unreasonable for the applicant to employ a solicitor whose employment involved travel expenses, but I am not prepared to award the full amount of that solicitors travel expenses over and above the $527 daily loadings provided under Schedule 1. I therefore have adjusted the applicant’s calculations to allow those loadings, but to exclude other travel expenses.
The solicitor for the second respondent challenged some other disbursements, in particular, courier fees and agent’s fees involved in inspection and production of documents referable to the list of documents of the first, second, and fourth respondents. The incurring of these disbursements was not challenged, but the reasonableness of including them in a party/party costs award was. However, I propose to allow those disbursements to be included, since I consider that they are reasonably allowed in the circumstances of the present litigation. In particular, I note that the Court was satisfied that this was a case where an exceptional order for discovery should be made.
I also accept submissions of counsel for the applicant that some additional lump sums, consistent with the approach taken in Schedule 1, should be allowed. In particular, I propose to award an additional lump sum of $1000 to address legal costs in relation to discovery involving the first, second and fourth respondents. Schedule 1 makes no provision for this work.
I also accept her submission that Schedule 1 would not provide an adequate provision in relation to the preparation of affidavits, in a case which is was also appropriately preceded by way of pleading. I accept that an additional award in relation to preparation of affidavits for the applicant should be allowed by way of $3000.
With those adjustments to the applicant’s calculations, and on the arithmetic of my associate, the fixed amount of costs which I would award to the applicant comes to the amount of $74,878.69.
For the reasons I have given above, I would not make any other orders as to costs, in particular, for the benefit of Arev, or adjusting costs awards between the parties in any other fashion.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 23 May 2012
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