Tapoohi v Lewenberg
[2003] VSC 379
•10 October 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL LIST
No. 2052 of 2002
| REGINA TAPOOHI | Plaintiff |
| v | |
| HALINA LEWENBERG (WHO IS SUED PERSONALLY AND IN HER REPRESENTATIVE CAPACITY AS EXECUTRIX OF THE WILL AND TRUSTEE OF THE ESTATE OF THE LATE GILLIAN LOSSAK DECEASED) AND OTHERS | Defendants |
| AND | |
| DAVID H. DENTON AND ANOTHER | Third Parties |
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JUDGE: | HABERSBERGER J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 AUGUST, 5 SEPTEMBER 2003 | |
DATE OF JUDGMENT: | 10 OCTOBER 2003 | |
CASE MAY BE CITED AS: | TAPOOHI v LEWENBERG | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 379 | |
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Practice and Procedure – Application for consent orders by some of the parties to a proceeding – Plaintiff consenting to dismissal of her claim against some defendants – Whether orders sought would have effect of preventing remaining parties from bringing claims for contribution against successful defendants – Orders made on basis of plaintiff being given leave to discontinue claim and undertakings given by successful defendants not to rely on orders made if contribution claims made.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P.G. Nash QC and Mr R.W. McGarvie | McNab, McNab & Starke |
| For the First, Eighth and Ninth Defendants | Mr C.C. Macauley | Deacons |
| For the Second to Seventh and Tenth Defendants | Mr D.J. Williams | Valos Black & Associates |
| For the Eleventh Defendants | Mr J.D. Elliott | Lander & Rogers |
| For the First Third Party | Mr J.A. Dixon | Connery & Partners |
| For the Second Third Party | Mr M.L. Sifris SC and Mr A. McClelland | Herbert Geer & Rundle |
HIS HONOUR:
This is the publication of my reasons for certain orders which I made in this proceeding on 5 September 2003.
Background
On 25 July 2001, the plaintiff in this proceeding, Mrs Regina Tapoohi, commenced proceeding No. 6895 of 2001 in this Court ("the earlier proceeding") against her sister and the first defendant in this proceeding, Mrs Halina Lewenberg, and a family company, EOS Holdings Pty Ltd ("EOS Holdings"). The earlier proceeding involved disputes between the sisters about their entitlements to the estate of their late mother and about the affairs of EOS Holdings, of which company the sisters were directors and equal shareholders.
On 20 September 2001, the parties to the earlier proceeding attended a mediation with a view to resolving their disputes. The mediator selected by the parties was Mr George Golvan, one of her Majesty’s Counsel ("the mediator"). At the mediation, Mrs Tapoohi was represented by Mr David Denton of counsel, instructed by her solicitor, Mr Geoffrey Shiff, a principal of Shiff & Co and by an associate partner of the firm, Ms Julia Adams. Mrs Tapoohi was not present at the mediation; she was in attendance by telephone from Israel. Mrs Lewenberg was present; she was represented by Mr James Merralls, one of Her Majesty’s counsel, and by Mr Joseph Tsalanidis of counsel, instructed by her solicitors, her husband, Mr Alex Lewenberg, and her daughter Ms Vivien Lewenberg, who were both principals of Lewenberg & Lewenberg.
At the conclusion of the mediation, a handwritten document entitled Terms of Settlement, was executed by or on behalf of the parties to the earlier proceeding and by a number of other Lewenberg companies and individuals, which or who were affected by the allegations made by Mrs Tapoohi. The execution of the Terms by Mrs Tapoohi was achieved by faxing the document to her in Israel and she faxed back a copy bearing her signature and a notary’s seal. Pursuant to these Terms, Mrs Tapoohi agreed to pay to Lewenberg & Lewenberg on behalf of Mrs Lewenberg the sum of $1.4 million on or before 20 January 2002 in exchange for which two properties at 7 Charnwood Road and 17 Charnwood Grove ("the Properties") would be transferred to her or her nominee. Also, Mrs Tapoohi was, upon settlement, to transfer to Mrs Lewenberg her shares in EOS Holdings and to resign her office as a director of that company. The Terms provided for mutual releases and for the parties to consent to orders disposing of the earlier proceeding.
In this proceeding commenced on 26 June 2002, Mrs Tapoohi sought to set aside or avoid this settlement on a number of bases. All of the ten Lewenberg companies and individuals who were parties to the Terms of Settlement were named as defendants ("the Lewenberg defendants"). The plaintiff contended that the settlement was subject to an express oral term that the parties would seek taxation advice concerning the settlement and that following receipt of such taxation advice the parties would negotiate in good faith the form of any settlement reached. Alternatively, it was pleaded that the parties had not reached a concluded agreement on the matters the subject of the settlement. Alternatively, the term about taxation advice was pleaded as a condition precedent which had to be fulfilled before there could be a concluded agreement on the matters the subject of the settlement, alternatively it was pleaded as a collateral contract, alternatively as giving rise to an estoppel, alternatively as giving rise to an entitlement to rectification of the agreement for mutual mistake. It was also alleged that the failure of four of the Lewenberg defendants to disclose that the Properties had substantial plumbing and electrical problems constituted misleading and deceptive conduct and that this rendered the settlement void or should cause the Court to declare it to be unenforceable. Mrs Tapoohi also pleaded against one or more of the Lewenberg defendants the causes of action the subject of the earlier proceeding and other claims the subject of the Terms of Settlement. Orders were sought for the winding up of EOS Holdings and for the removal of Mrs Lewenberg as the executrix of her late mother's will and trustee of her estate.
In September 2002, the plaintiff amended the writ and her statement of claim by adding a claim against an eleventh defendant, her former solicitors, Shiff & Co ("the solicitors"). She alleged that the solicitors had been retained to act for her in the conduct of the earlier proceeding and that pursuant to the retainer the solicitors were instructed to obtain advice as to the taxation implications of any proposed settlement before it was entered into. Mrs Tapoohi alleged that on 20 September 2001 the solicitors advised her to sign the Terms on the basis that "they did not constitute a concluded agreement binding upon her but were subject to a term that" the parties would seek taxation advice concerning settlement of the matters in dispute and thereafter would negotiate in good faith a form of any settlement reached. If the settlement was binding upon her, Mrs Tapoohi alleged that the solicitors were in breach of an implied term of their retainer, or in breach of their common law duty of care to exercise due skill and care, to advise her on all relevant matters, to protect her interests and to comply with her instructions. She further alleged that by reason of the solicitor’s breach of the retainer or their negligent advice she had suffered loss and damage.
By a third party notice filed on 18 October 2002 the solicitors sought contribution from both Mr Denton, the first third party, and Mr Golvan QC, the second third party, pursuant to s. 23B of the Wrongs Act 1958. It was alleged that if the Terms of Settlement did constitute a concluded agreement binding on her, then Mrs Tapoohi had suffered damage as a consequence of a breach by her counsel and by the mediator of a contractual duty and a tortious duty owed by each of them to her and that, by implication, this damage was the same damage that she suffered as a consequence of the solicitors’ breach of duty. Accordingly, it was alleged that the solicitors were entitled to contribution from each of the third parties.
On 22 October 2002, Mr and Mrs Lewenberg and their daughter, Ms Vivien Lewenberg, the first, eighth and ninth defendants in this proceeding, filed their defence and counterclaim. The counterclaim sought a declaration that the agreement constituted by the Terms of Settlement was legally enforceable and binding upon the parties including the plaintiff in accordance with its terms, an order for specific performance by the plaintiff of her obligations under the agreement and a declaration that by reason of the provisions of clause 13 of the agreement the plaintiff had released the Lewenberg defendants from all of the prior claims.
The Application
By a summons dated 26 August 2003 the plaintiff sought the following orders:
"1.That the Plaintiff’s Statement of Claim herein dated 9 September, 2002 be dismissed as against the First to Tenth Defendants;
2.A declaration that the Terms of Settlement are legally enforceable and binding upon the parties in accordance with their terms;
3.Specific Performance by the parties of their obligations under the Terms of Settlement;
4.That the Plaintiff pay the costs of the First to Tenth Defendants to be taxed in default of agreement;
…"
When the application was first mentioned on 29 August 2003, Mr Nash QC, who appeared with Mr McGarvie of counsel for the plaintiff, submitted a form of proposed order which dismissed the plaintiff’s claim against the Lewenberg defendants, ordered specific performance by the parties of their obligations under the Terms of Settlement and ordered the plaintiff to pay the costs of the Lewenberg defendants. Mr Nash stated that the plaintiff was no longer seeking a declaration about the Terms of Settlement because, as he said, that might affect other parties in the proceeding "in a way that the order in its present form does not". Mr Nash also indicated that because the plaintiff and the Lewenberg defendants had not reached any agreement about this most unusual change in approach by Mrs Tapoohi, there were two outstanding questions which would have to be decided by the Court. One was the question of interest and the other was the basis of taxation of the Lewenberg defendants’ costs; they having indicated that in the circumstances they would now seek indemnity costs.
Mr Macauley of counsel, who appeared for the first, eighth and ninth defendants, supported by Mr Williams of counsel, who appeared for the second to seventh and tenth defendants, submitted a slightly different form of proposed order. It contained an introductory note to the effect that the application was made "without adjudication of the merits of the issues raised by the proceeding and upon counsel for the Plaintiff admitting on behalf of the Plaintiff in favour of the First to Tenth Defendants that the Terms of Settlement … are legally enforceable and binding upon the Plaintiff and the First to Tenth Defendants in accordance with its terms." The order proposed by the Lewenberg defendants dismissed the plaintiff’s claim against them, gave judgment for the defendants [sic] on their counterclaim, contained a number of orders with respect to procedural steps concerning the execution and delivery of a transfer of shares held by the plaintiff in EOS Holdings and her resignation as a director of that company and the transfer of the Properties to the plaintiff upon payment of a sum of $1.4 million plus interest and the delivery to the plaintiff of certain other conveyancing type documents. Mr Macauley agreed that the questions of interest and indemnity costs would have to be resolved by the Court.
Mr Elliott of counsel, who appeared for the eleventh defendant, indicated that he would have opposed the making of a declaration, if it had still been sought, but that he also opposed the making of an order for specific performance of the Terms of Settlement and any other orders. This was because the plaintiff was continuing with her claim against the eleventh defendant, and his client’s primary defence to that claim was that there was no binding agreement created by the Terms of Settlement. However, given the late notice of the application by the Lewenberg defendants for interest and indemnity costs, which could ultimately affect his client, he sought an adjournment in order to have time to properly consider the matter.
Ms Buckley, the solicitor for the second third party, also sought to have the matter adjourned to enable her client to properly consider the implications of the orders sought. She referred me to the decision of the High Court in James Hardie & Coy Pty Limited v Seltsam Pty Limited ("James Hardie")[1]. She submitted that it seemed that the decision in that case might mean that the entry of judgment in favour of the Lewenberg defendants against the plaintiff could prejudicially affect the right of the eleventh defendant and the first and second third parties to bring contribution proceedings against the Lewenberg defendants, should they be so advised.
[1](1998) 196 CLR 53
After hearing the matters raised by the eleventh defendant and the second third party, the plaintiff and the Lewenberg defendants made further amendments to the form of order which they then proposed should be made. Relevantly, it omitted the reference to there being judgment for the Lewenberg defendants on the counterclaim.
In the circumstances, I adjourned the further hearing of the plaintiff’s application for a week to enable the eleventh defendant and the two third parties to consider their position with respect to whether or not they wanted to make any submissions opposing the form of order that was now being sought by the plaintiff and the Lewenberg defendants.
The Adjourned Hearing
At the hearing on 5 September 2003 the form of order sought by the plaintiff and the Lewenberg defendants was amended yet again by including after the procedural orders, an order that the counterclaim of the first, eighth and ninth defendants be otherwise dismissed. Mr Nash rejected any suggestion that the procedural orders were an order for specific performance in disguise. He stated that the plaintiff did not concede that the Terms of Settlement were binding. However, in order to get out of the morass into which she found herself, the plaintiff had decided to settle on the original Terms, irrespective of whether or not they were binding.
Mr Macauley did not agree with Mr Nash's latter proposition. He submitted that there had been no settlement of this proceeding – the plaintiff was simply giving up against the Lewenberg defendants. And as Mr Williams pointed out, the plaintiff had not made an offer of settlement. Rather she had offered to consent to an order to do certain things.
The making of the orders sought by the plaintiff and the Lewenberg defendants was opposed by the eleventh defendant, the first third party and the second third party. Mr Elliott for the eleventh defendant and Mr Sifris SC, who on this occasion appeared on behalf of the second third party, and Mr Dixon of counsel who appeared for the first third party and adopted the submissions of the other two opposing parties, all urged me not to make the orders sought. It was submitted that there was no need to make any orders. The parties could reach the same result by simply carrying out the procedural steps set out in the order. Virtually everything else that was sought could be obtained by some form of agreement, although the opposing parties were forced to suggest some form of agreed referral to a referee to deal with the unresolved question of interest. It was also submitted that it had not been shown that there was any prejudice to the plaintiff and the Lewenberg defendants if the orders were not made.
In respect of the fact that the orders sought were consented to by the plaintiff and the Lewenberg defendants, I was referred by Mr Elliott and Mr Sifris to passages in the judgment of Ashley J in Wintle v Stevedoring Industry Finance Committee (No. 3) ("Wintle (No. 3)").[2] In that case, his Honour refused an application at that stage to make the consent orders sought by the plaintiff and Stevedoring Industry Finance Committee ("SIFC"). Pursuant to terms of settlement between them, SIFC had agreed to pay the plaintiff the sum of $400,000 and the parties had agreed that there be orders by consent that the plaintiff’s claim as against SIFC was barred by operation of s.20 of the Wrongs Act and that there be judgment for the defendant SIFC. That application was opposed by counsel for other possible defendants, CSR and James Hardie, which wished to bring or maintain contribution proceedings against SIFC. His Honour held that CSR and James Hardie had a right to be heard on the application because the orders sought "would or might preclude" CSR and James Hardie from pursuing the contribution proceeding.[3] His Honour referred to a number of other pertinent considerations including:
"Second, the ordinary inference to be drawn from the circumstance that a party has a right to be heard in opposition to an application for orders by consent (including the giving of judgment) is that in such a case the court is not bound simply to rubber stamp the consent. That conclusion may be reached by other routes. So, the giving of judgment or the making of orders is a judicial act. It is not the less so because the judgment given or orders made are by consent of all or some of the parties to a proceeding.
Third, the Court should be jealous to protect its processes. No doubt it encourages parties to litigation to settle their differences. But it is not the necessary corollary of such encouragement that the Court should accede to an application for consent orders made in consequence of compromise arrived at by some parties to a proceeding where the effect of the orders will or may be to stifle the hearing and determination of other aspects of the proceeding which involve one of the parties to the proposed consent orders.
Fourth, even in a case where all the parties to a proceeding agree upon consent orders, the Court retains to itself a right not to make the orders sought. The proposition must be the stronger where not all the parties agree to the proposed order."[4]
[2][2002] VSC 369
[3][2002] VSC 369 at [15]
[4][2002] VSC 369 at [16]-[18]
I respectfully agree with and adopt those statements by his Honour as appropriate principles to bear in mind in respect of orders sought by consent by some, but not all, of the parties to litigation.
Mr Macauley and Mr Williams submitted that orders were necessary to ensure that this time the disputes actually did come to an end. They argued that the Court should be prepared to accommodate parties wanting to end a complicated and protracted piece of litigation. In particular, they strongly submitted that not to make the orders sought would deprive Mrs Lewenberg of her right to claim interest on the sum of $1.4 million which had been outstanding for some 19 months.
As I have mentioned, the opposing parties were also concerned with the possible impact of the decision of the High Court in James Hardie. In that case, James Hardie and Seltsam had been sued as joint tortfeasors in a proceeding before the Dust Diseases Tribunal of New South Wales. Orders by consent were made, pursuant to which James Hardie was required to pay $340,000 to the plaintiff in that proceeding, and judgment was entered for Seltsam against the plaintiff. Subsequently, James Hardie sought contribution from Seltsam under s.5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), which provided as follows:
"Where damage is suffered by any person as a result of a tort (whether a crime or not) …
(c)any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought."
The High Court held that James Hardie could not recover contribution. Their Honours (McHugh and Kirby JJ dissenting) held that there were two limbs to s.5(1)(c). The first limb allowed a joint tortfeasor to recover in circumstances where another tortfeasor had been sued and held liable in respect of the same damage. The second limb applied to those who, having not been sued by the plaintiff, would, had they been sued, have been found to have caused or contributed to the same damage. The High Court, by a majority, held that neither of the limbs applied to Seltsam, and therefore James Hardie could not claim contribution.
Gaudron, Gummow and Callinan JJ held that the first limb was not applicable, because Seltsam had not been ajudged liable to the plaintiff. It had succeeded in establishing the opposite. Callinan J held that Seltsam did not fall under the first limb because:
"it is not liable for the damage, that is, the damage to the plaintiff to which the sub-section makes reference. Indeed it is the final judgment in this case that establishes that [Seltsam] is not liable for the damage suffered by the plaintiff. The final judgment, which is a judgment of a court of record, is no less a judgment of that kind because it was a judgment entered by consent."[5]
[5](1998) 196 CLR 53 at 96-97
The second limb was not applicable either, because Seltsam could not, after judgment was entered in its favour, answer the description of one who would, had it been sued, have been found liable to the plaintiff. The plaintiff’s cause of action against Seltsam had merged in the consent judgment, thereby destroying its independent existence.
It was acknowledged by the parties opposing the making of the orders sought that the wording of s.23B(3) of the Wrongs Act 1958 was different to s.5(1)(c) of the New South Wales Act. Section 23B(3) provides as follows:
"A person shall be liable to make contribution by virtue of sub‑section (1) notwithstanding that that person has ceased to be liable in respect of the damage in question since the time when the damage occurred unless that person ceased to be liable by virtue of the expiry of a period of limitation or prescription which extinguished the right on which the claim against that person in respect of the damage was based."
It was nevertheless submitted by Mr Elliott that the Court could not be conclusively satisfied, in the event that the orders sought were made, that this statutory provision protected the position of the eleventh defendant from the consequences of the decision of the High Court in James Hardie. Mr Elliott further submitted that it was not clear what was meant by the words "prescription" in s.23B(3) and therefore that there was uncertainty about the effect of that sub-section. Mr Sifris submitted that in spite of the clear words of s.23B(3), it could not be said with any certainty that it would operate to keep alive his client’s potential claim for contribution against the Lewenberg defendants if the orders sought were made.
Mr Nash, Mr Macauley and Mr Williams all submitted that James Hardie was not relevant because the problem that arose in that case under the New South Wales legislation would not arise under the differently worded s.23B of the Wrongs Act. They also submitted that the opposing parties had not identified a possible basis on which claims for contribution could be made against the Lewenberg defendants. However, given that Mr Nash had indicated that the plaintiff would be seeking leave to amend her statement of claim against the eleventh defendant, I consider that it could not be categorically concluded that there could be no contribution claims against the Lewenberg defendants.
In my opinion, the meaning of s.23B(3) is clear. A contribution claim could still be brought by the eleventh defendant or the first or second third party against the Lewenberg defendants even though the latter had ceased to be liable to the plaintiff in respect of the damage in question since the time when the damage occurred. This is because the cessation of liability on the part of the Lewenberg defendants would have come about not by virtue of the expiry of a period of limitation or prescription which extinguished the plaintiff’s right to claim against the Lewenberg defendants, but as a result of the plaintiff seeking an order that her claim against the Lewenberg defendants be dismissed. Further, despite Mr Elliott’s submission, I consider that the word "prescription" has a similar meaning to the words "period of limitation"[6], which is how I understand Ashley J treated those words in s.23B(3) of the Wrongs Act in Wintle v Stevedoring Industry Finance Committee (No. 4)[7]. James Hardie is therefore not applicable, in my opinion.
[6]See definition of "prescription" in The Shorter Oxford English Dictionary on Historical Principles Vol. II p.1659
[7][2003] VSC 102 at [14]
The opposing parties also referred me to s.23B(5) of the Wrongs Act. This sub-section provides as follows:
"(5)Subject to section 24(2B), a judgment given in an action brought by or on behalf of the person who suffered the damage in question against any person from whom contribution is sought under this section shall be conclusive in the proceedings for contribution as to any issue determined by that judgment in favour of the person from whom the contribution is sought."
Mr Elliott submitted that the Court could not be conclusively satisfied that the language of this sub-section did not encompass a judgment given by consent in the circumstances of this case. Mr Sifris submitted that as a consequence of s.23B(5), even without taking into account the effect of James Hardie, there was a considerable danger that if the orders sought were made, the Lewenberg defendants would have effectively obtained judgment against the plaintiff, and that it would not be open to his client to later argue that they were liable to the plaintiff. He relied upon a passage from the judgment of Ashley J in Wintle No. 3, where his Honour held that, in the absence of full argument, it could not be said whether or not SIFC could rely on James Hardie and s.23B(5) to defeat the further prosecution by CSR and James Hardie of their claims for contribution. His Honour decided that he did not have to be satisfied that these issues would "certainly erect a barrier to the successful pursuit of contribution claims made by those parties" It was sufficient that if the orders were made "they would or might erect such a barrier."[8]
[8][2002] VSC 369 at [23]
The uncertainty surrounding what is exactly meant by s.23B(5) of the Wrongs Act did cause me to seriously doubt whether it would be appropriate to make the orders sought. Would a judgment (even a consent judgment) in favour of the Lewenberg defendants against the plaintiff have the effect of preventing the remaining parties from bringing contribution proceedings against them? However, the argument on this issue resulted in the plaintiff and the Lewenberg defendants making a further amendment to the orders sought. They deleted the reference to an order that the plaintiff's claim against the first to tenth defendants be dismissed, and replaced it with an order giving the plaintiff leave to discontinue her proceeding against the first to tenth defendants. In my opinion, this meant that s.23B(5) was no longer applicable because there was no "judgment given" or, more correctly, no "issue determined by that judgment" in favour of the Lewenberg defendants.
The other factor which influenced me to make the orders sought was that counsel for the Lewenberg defendants obtained instructions to undertake not to rely on the orders made as in any way defeating any subsequent claim by the eleventh defendant, first third party or second third party for contribution. This was a significant concession, in my mind, as it gave maximum protection to the opposing parties if the orders sought were to be made. In the circumstances, it is difficult to see how the opposing parties would be prejudiced by the making of the orders.
Given these two further changes to the orders sought, I considered it appropriate to grant the final version of the application so as to bring to an end the protracted dispute between the plaintiff and the Lewenberg defendants. In order not to delay matters, I announced my decision and said that I would publish my reasons later. Having then heard and determined the argument on interest, but not the question of indemnity costs, the relevant orders made on 5 September 2003, including orders relating to the costs of this application, were as follows:
"OTHER MATTERS
1.UPON the first, eighth and ninth defendants by their counsel, and the second to seventh and tenth defendants by their counsel, undertaking that, in the event that one or more of the eleventh defendant, first third party or second third party should hereafter seek to recover contribution from any one or more of them in respect of the Plaintiff's claim against the eleventh defendant (as made now or as amended at any time during this proceeding) or the eleventh defendant's claim against the first third party and second third party (as made now or as amended at any time during this proceeding), they shall not plead in defence to such contribution claim or in any way seek to rely on, the orders made this day, as in any way defeating any entitlement of the eleventh defendant, first third party or second third party to contribution pursuant to the provision of s.23B of the Wrongs Act 1958.
2.UPON the first, eighth and ninth defendants by their counsel, and the second to seventh and tenth defendants by their counsel, undertaking that, in the event that one or more of the eleventh defendant, first third party or second third party should hereafter seek to make any claim other than by way of contribution against any one or more of them in respect of the Plaintiff's claim against the eleventh defendant (as made now or as amended at any time during this proceeding) or the eleventh defendant's claim against the first third party and second third party (as made now or as amended at any time during this proceeding), they shall not plead in defence to such claim or in any way seek to rely on, the orders made this day, as in any way defeating any entitlement of the eleventh defendant, first third patty or second third party to make that claim.
THE COURT ORDERS THAT
1.The Plaintiff have leave to discontinue her proceeding against the First to Tenth Defendants.
2.Upon the consent of the plaintiff and first to tenth defendants it is further ordered that on a date to be agreed between the Plaintiff and the First to Tenth Defendants, but in any event not later than 4pm 12 September 2003:
(a)The Plaintiff ('Tapoohi') execute and deliver to Halina Lewenberg or her nominee:
(i)Transfer of shares held by Tapoohi in EOS Holdings Pty Ltd;
(ii)Share certificates held by Tapoohi in respect of shares held by her in EOS Holdings Pty Ltd;
(iii) Resignation as director in EOS Holdings Pty Ltd.
(b)Tapoohi pay to Halina Lewenberg $1,400,000 together with the sum of $206,778 by way of interest;
(c)Should Tapoohi fail or refuse to execute or deliver the documents referred to in paragraphs (a)(i) and (iii) above by the date specified, the said documents be executed by the Prothonotary upon presentation of the documents to him by the First to Tenth Defendants; and
(d)Upon payment of the sums in paragraph (b), and the execution and delivery of documents as set out in paragraph (a):
(i)EOS Holdings Pty Ltd shall deliver to Tapoohi or her representative an executed transfer to Tapoohi or her nominee of its right, title and interest in the property known as and situate at 17 Charnwood Grove East St Kilda more particularly described in Certificate of Title Volume 8853 Folio 906 ('17 Charnwood Grove');
(ii)Davsa Forty Seventh Pty Ltd shall deliver to Tapoohi or her representative an executed transfer to Tapoohi or her nominee of its right, title and interest in the property known and situate at 7 Charnwood Road East St Kilda more particularly described in Certificate of Title Volume 8046 Folio 111 ('7 Charnwood Road');
(iii)EOS Holdings Pty Ltd and EOS Properties Pty Ltd shall deliver to Tapoohi or her representative a document executed by them cancelling the Contract of Sale of 17 Charnwood Grove dated 1 June 1995 such document containing an express acknowledgment that there remain no outstanding obligation subsisting between EOS Properties Pty Ltd and EOS Holdings Pty Ltd;
(iv)Davsa Forty Seventh Pty Ltd and EOS Properties Pty Ltd shall deliver to Tapoohi or her representative a document executed by them cancelling the Contract of Sale of 7 Charnwood Road dated 1 June 1995 with an express acknowledgment that there remain no outstanding obligation subsisting between EOS Properties Pty Ltd and Davsa Forty Seventh Pty Ltd;
(v)EOS Properties Pty Ltd and EOS Holdings Pty Ltd shall deliver to Tapoohi or her representative an executed deed of assignment (executed prior to the cancellation referred to in paragraph (iii) above) whereby EOS Properties Pty Ltd assigns to EOS Holdings Pty Ltd its right title and interest in the leases of property at 17 Charnwood Grove;
(vi)EOS Properties Pty Ltd and EOS Holdings Pty Ltd shall deliver to Tapoohi or her representative an executed deed of assignment (executed prior to the cancellation referred to in paragraph (iv) above) whereby EOS Properties Pty Ltd assigns to Davsa Forty Seventh Pty Ltd its right title and interest in the leases of property at 7 Charnwood Road;
(vii)EOS Properties Pty Ltd shall deliver to Tapoohi or her representative Notices of Withdrawal of Caveat in respect of any caveat lodged in respect of 17 Charnwood Grove and 7 Charnwood Road.
3.The counter-claims of the first, eighth and ninth defendants dated 22 October 2002 be otherwise dismissed.
4.The plaintiff pay the first to tenth defendants' costs of and incidental to the proceeding, including reserved costs and the costs of this application.
5.Adjourn the determination of the question of the basis of the taxation of the costs ordered to be paid in paragraph 4 to a date to be fixed.
6.The plaintiff pay the eleventh defendant's, the first third party's and the second third party's costs of and incidental to the plaintiff's summons filed 26 August 2003."
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