Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd (No 2)

[2010] NSWSC 1317

CITATION:	Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd (No.2) [2010] NSWSC 1317
HEARING DATE(S):	11 November 2010
JUDGMENT DATE :	24 November 2010
JUDGMENT OF:	Slattery J at 1
DECISION:	See paragraphs 37 and 38 of judgment.
CATCHWORDS:	PROCEDURE - apportionment between concurrent wrongdoers - misleading conduct before the commencement of Civil Liability Act 2003 proportionate liabilty provisions - Reinhold v NSW Lotteries Corporation (No. 2) [2008] NSWSC 187 applied - proportionate liability assessed - defendants' liability limited to 80% of the loss and damage claimed - DAMAGES - general principles - assessment - whether issue estoppel arises out of earlier judgment - COSTS - plaintiff successful in claim but unsuccessful on some issues - issues on which plaintiff was unsuccessful are separable - proceedings lengthened by issues on which plainitff was unsuccessful - defendants ordered to pay 75% of plaintiffs' total costs of the proceedings to date.
LEGISLATION CITED:	Civil Liability Act, Part 4, s 35 (1)(b) , s 98(1)(c) Fair Trading Act, s 41 Law Reform (Miscellaneous) Provisions Act 1946, s 5(1) Trade Practices Act, Part IVA , Part VIA, s 51A Uniform Civil Procedure Rules 2005, r 42.1
CATEGORY:	Separate question
CASES CITED:	Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No. 3) (1998) 30 ACSR 20 Oshlack v Richmond River Council (1998) 193 CLR 72 Ottway v Jones (1955) 1 WLR 706 Reinhold v NSW Lotteries Corporation (No. 2) [2008] NSWSC 187, at [17] – [25] Trade Practices Commission v Nicholas Enterprises Pty Ltd (No. 3) (1979) 28 ALR 201 Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd [2010] NSWSC 963 paragraphs [7], [88], [95], [96], [97] , [102]- [106] , [119] , [120], [126] , [135] Waters v P C Henderson (Aust) Pty Ltd (1994) 254 ALR 328 Yates v Mobile Marine Repairs Pty Ltd [2007] NSWSC 1463 at [93]- [94]
PARTIES:	Ventouris Enterprises Pty Ltd Dib Group Pty Ltd
FILE NUMBER(S):	SC 06/257602
COUNSEL:	Plaintiff- S.A.Benson Defendant- D.L.Cook
SOLICITORS:	Plaintiff-Steven Valtas, Butlers Law Group Defendant-Basil John Macree, B J Macree & Co

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SLATTERY J

WEDNESDAY 24 NOVEMBER 2010

2006/257602 VENTOURIS ENTERPRISES PTY LTD v DIB GROUP PTY LTD & ANOR (NO. 2)

JUDGMENT

1 HIS HONOUR: This is my second judgment in this action. My first judgment found that the defendants, the Dib Group Pty Ltd (“the Dib Group”) and Mr George Dib had engaged in misleading and deceptive conduct causing Ventouris Enterprises Pty Ltd (“Enterprises”) to lend money to E-Style Marketing Pty Ltd (“E-Style”) in October 2003: Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd [2010] NSWSC 963. The first judgment found that the Dib Group through Mr George Dib represented that it would ensure a $100,000 loan that Enterprises proposed to make to E-Style would be repaid with interest: Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd [2010] NSWSC 963 at [88]. Representations by the defendants were found to be misleading and deceptive through the operation of Trade Practices Act, s 51A and Fair Trading Act, s 41, because they were made about future matters but the defendants did not advance reasonable grounds for making them: Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd [2010] NSWSC 963 at [95], [96] and [97]. Further the principal of Enterprises, Ms Betty Ventouris relied upon the defendants’ representations in her decision to cause Enterprises to make the loan to E-Style: Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd [2010] NSWSC 963 at [102]- [106]. The first judgment also made general findings about Enterprises’ loss and damage; that if the loan advance had not been made the default would not have occurred, recovery action would not have been necessary, that Enterprises would not have suffered loss and damage. The judgment found that the assessment of that loss and damage, if it could not be agreed, would be dealt with in a short further hearing: Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd [2010] NSWSC 963 at [119] and [120]. This second judgment results from that supplementary hearing, which took place on 11 November 2010 and was principally concerned with issues arising from the assessment of loss and damage.

2 The first judgment left open another issue. At the principal hearing both sides had elaborated detailed written and oral submissions about the issue of proportionate liability. The proportionate liability issues concerned whether any damages awarded to Ventouris Enterprises should be reduced on account of the conduct of Ms Betty Ventouris or Mr Zibara (a principal of E-Style) and if so what that reduction should be. The pleading amendments, raising the issues of proportionate liability, were made towards the conclusion of the hearing but were nevertheless dealt with by submissions on all sides at the main hearing. The defendants relied upon Trade Practices Act, Part VIA and Civil Liability Act, Part 4. The purpose of these statutory provisions is to visit on each concurrent wrongdoer only that amount of liability which the Court considers “just” having regard to the comparative responsibilities of all wrongdoers for a plaintiff’s loss: Yates v Mobile Marine Repairs Pty Ltd [2007] NSWSC 1463 at [93]- [94]. Enterprises did not contend that the Trade Practices Act, Part IVA or Civil Liability Act, Part 4 did not apply to its claim.

3 But in the course of my preparation of reasons for decision for the first judgment it became clear that the parties had not dealt in their submissions with the effect if any of the date of the commencement of the Trade Practices Act, IVA and the Civil Liability Act, Part 4 in relation to the time of the misleading and deceptive conduct alleged in this case.

4 The misleading and deceptive conduct that I found against Ventouris Enterprises occurred in September 2003. As it is now clear this was before the commencement of Civil Liability Act, Part 4 and the commencement of Trade Practices Act, Part VIA. As the possible effect of this had not been explored by either party I decided in the circumstances that the best course was to give the parties the opportunity to make short further submissions on that issue before the Court finally determined whether or not there would be an apportionment: Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd [2010] NSWSC 963 at [126]. The first judgment indicated, at [135], what the result of an apportionment would be if the apportionment provisions of Civil Liability Act, Part 4 and Trade Practices Act, Part VIA applied. The Court found that Ms Ventouris was 20% responsible for Enterprises’ loss. The parties were given leave to put on submissions after my principal judgment about the application of this apportionment legislation and did so. The supplementary hearing also dealt with the results of that grant of leave.

5 A further issue for debate emerged after the principal judgment. The defendants argued at the supplementary hearing that Enterprises should not recover all its costs and that Enterprises’ costs for recovery should be diminished because of its failure on some issues in the proceedings which issues had occupied a substantial amount of the hearing.

6 Thus, the issues for present determination are (1) whether the Trade Practices Act and Civil Liability Act apportionment legislation applies, (2) what is the result of the assessment of the plaintiff’s loss and damage, and (3) should any award of costs to Enterprises be reduced? This judgment deals with each of these issues in turn.

Apportionment

7 The Civil Liability Amendment (Personal Responsibility) Act 2002 introduced Part 4 to the Civil Liability Act. However the date of commencement of Part 4 (unlike the bulk of the act) was 1 December 2004. Despite this, the Act extends to cover actions that fall into the category of those outlined in part 4 relating to events before the commencement of the Act provided that they are not in respect of or apply to proceedings commenced in a court before the commencement of the amendments. Part VIA of the Trade Practices Act (1974) was introduced by amending legislation that commenced on 26 July 2004. Both these commencement times post date the defendants’ misleading and deceptive conduct and Enterprises’ lending to E-Style.

8 Enterprises made a concession that simplified the contentions on the issue of the application of the apportionment legislation. After preliminary argument, an exchange of written submissions and a foreshadowed application by the defendants to file a cross-claim seeking apportionment under the Law Reform (Miscellaneous) Provisions Act 1946, s 5(1)(c), the plaintiff conceded that the principles identified in Barrett J’s decision in Reinhold v NSW Lotteries Corporation (No. 2) [2008] NSWSC 187 especially at [17] to [35], should be applied here and that an apportionment could occur. The defendants in any event argued that Civil Liability Act Part VIA applies to “claims” not causes of action and that the Act has application when a claim is made (here by statement of claim on 26 July 2006) after the commencement of the Civil Liability Act Part 4 and Trade Practices Act Part VIA.

9 Civil Liability Act, Part 4 and Trade Practices Act, Part VIA applies to Enterprises’ claim. Jurisdiction is attracted because the Court has in the first judgment made findings as to the defendants’ and Ms Ventouris’ conduct that base the conclusion that they were “concurrent wrongdoers” and those findings occur after the commencement of both these enactments. The logic to this conclusion in relation to Civil Liability Act Part 4 is explained by Barrett J in Reinhold v NSW Lotteries Corporation (No. 2) [2008] NSWSC 187 [17] – [25]:

10 In my view Mr Benson’s concession on behalf of the plaintiff was rightly made in light of Barrett J’s reasoning in Reinhold v NSW Lotteries Corporation (No. 2) [2008] NSWSC 187. Here the fact that Ms Ventouris and Mr Zibara are concurrent wrongdoers with the defendants was determined at the time of the first judgment on 13 September 2010 well after these enactments commenced.

11 The Court has already made apportionment findings in the first judgment taking into account the conduct of Mr Zibara as a concurrent wrongdoer and Ms Ventouris as a concurrent wrongdoer. I concluded in the first judgment that the proportion of the damage or loss claimed that is just having regard to the defendants’ responsibility for Enterprises’ loss is 80 percent, Ms Ventouris being responsible as to 20 percent. The operation of the Civil Liability Act, s 35 (1)(b) means that the Court may now only give judgment against the defendants for not more than 80 percent of Enterprises’ total loss or damage: Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd [2010] NSWSC 963 at [135] and Civil Liability Act, s 35(1)(b). As is explained in the next section of these reasons the entry of judgment will be reduced in accordance with this finding.

Loss and Damage

12 The issues between the parties in relation to the assessment of loss were fairly narrow. The assessment issues related to the principal judgment and interest and on the other hand consequential costs.

13 As to the principal judgment and interest the parties agreed that the plaintiff was entitled to recover from the defendants the principal of $80,000 together with interest of $47,033.42 up to 11 November 2010 making a total as at that date of $127,033.42 with daily interest accruing at 9 percent per annum or $31.32 per day. The plaintiff sought entry of judgment accordingly.

14 There was a contest before me about whether or not judgment for 80 percent of Enterprises’ principal and interest should be entered immediately on 11 November 2010. The Court deferred the entry of judgment. I indicated that judgment would be given within approximately the next fortnight, during which period the judgment would have been stayed in any event.

15 The next issue is whether or not an issue of estoppel arose out of paragraphs [119], [120], [161], [162] and [199] of the first judgment. Those paragraphs are all related to the assessment of loss and damage following upon my findings that the defendants engaged in misleading and deceptive conduct. Those paragraphs stated:

“[119] If the loan advance had not been made the default would not have occurred and the recovery action would not have been necessary. All these expenses are recoverable. Enterprises is not entitled to interest at 18% or 26% though. These are the interest rates under the loan which Enterprises says could not have occurred but for the representations. Interest should be assessed at the rates prescribed under Civil Procedures Act , s100.

[120] Enterprises has suffered the loss and damage for which it contends as a result of the defendants’ misleading and deceptive conduct. Assessment of that loss should not be difficult as a result of these reasons for decision. If the parties cannot reach an agreed assessment based upon the material in evidence then I will determine that loss in a short further hearing. My findings as to proportionate liability in the next section of these reasons will require a result of that assessment to be modified before the entry of judgment.
…
[161] As none of the other enforcement avenues had borne fruit, on 24 March 2006 Enterprises appointed Geoffrey David MacDonald and Blair Pleash from the firm Hall Chadwick as receiver and manager of E-Style. During the receivership Mr MacDonald sought to identify and realise E-Style’s alleged assets at the Metro Petroleum sites at Bellbird, Cliftleigh and Heddon Greta. He had difficulty in doing so because of what had occurred between first default in August 2004 and his appointment in March 2006.

[162] The defendants say that this course of conduct involving significant delay in confronting Mr George Dib is not consistent with someone who really believed that she had a virtual guarantee from the Dib Group of the repayment of the $100,000 advance plus interest. But that argument fails to recognise a number of features of her situation. First she gave some time too Mr Zibara in late 2004. Second, she took enforcement action step-by-step as the chronology shows and did not decide to take the matter to Mr George Dib until 2005 when it was quite clear that other avenues had failed. Third, well into the second half of 2005 Ms Ventouris was obliged as an employee of St George Bank to continue to conduct a cordial relationship with Mr George Dib to the advantage of her bank employer. It was her duty to maintain the bank’s relationship with Mr George Dib and the Dib Group. She was hardly in a position to be too confrontational.
…
[199] Subject to questions of apportionment. Enterprises is entitled to recover the capital of $100,000, that it advanced, interest at the rates fixed from time to time under Civil Procedure Act , s 100 together with its costs of recovery. The parties will need to undertake a calculation of interest and either to agree upon or to put submissions about the quantum of the costs of recovery. The parties should agree upon a procedure for determining these questions of loss and damage if it cannot be agreed.”

16 The first judgment has decided that the categories of costs claimed by the plaintiff, the costs of attempting to pursue the principals of E-Style to bankruptcy and the receivers’ costs in relation to attempting to recover monies under the charge are recoverable. These costs (or 80% of them) in my view are all recoverable in addition to the loan principal and interest. That is how the judgment, particularly paragraph [120] should be read.

17 It is still necessary to determine what is the quantum of these expenses. Not all the expenses claimed by the receiver are necessarily expenses related to the recovery. That is one of the matters to be determined at this supplementary costs assessment hearing. Whether or not there is an issue estoppel does not determine the precise quantum of the plaintiffs’ recovery.

18 There was disagreement about aspects of the other recovery costs. Leaving aside legal costs of these proceedings, which are part of the cost orders, dealt with below, Enterprises claims the receivers’ costs and other consequential costs associated with pursuing Mr Zibara and Mr Antonios into bankruptcy in the sum of $16,137.15. The bankruptcy costs are uncontroversial. The issue arose in respect of the receiver’s claimed costs of $46, 487.72 of which $20, 936.54 is said to be paid and $20,440 remains unpaid.

19 The contest in relation to the receiver’s costs related to the receivers invoices. The form in which the invoices from the receivers were presented was confusing. The only figure that is justified when one looks at all the materials is a receivers’ recovery figure in the form of the tax invoice from Hall Chadwick on 16 August 2006 charging fees of $41,135.50 plus GST of $4,113.55 and disbursements of $1,238.67 making a total of $46,487.72. This invoice is authentic and represents the sum, which I will allow in this judgment but it must be offset against receivership receipts.

20 The defendants’ submission was that the receivers’ costs were only of the order of $6,468.27 rather than $46,487.72. The basis for this submission was a financial statement from the receivership covering the period 24 March 2006 to 1 September 2008 (from the receiver, Mr Mc Donald’s affidavit, page 100) that showed the receivers’ professional costs and fees, apparently for that period, of $6,468.27. This document was to be contrasted with what Enterprises relies upon in the sum of $46,487.72. Enterprises contended that the 16 August 2006 invoice was the correct one. There was no affidavit evidence from either side to assist in reconciling these two documents. The Court must do the best that it can on the available materials.

21 The Court finds that the Hall, Chadwick invoice of 16 August 2006 in the total sum of $46,487.72 is an authentic invoice representing Enterprises’ liability to the receivers for receivership expenses. The Court has confidence in the regularity and authenticity of this invoice for several reasons. First, it is referred to and apparently accompanied by a Hall Chadwick letter of report of the receivership dated 1 September 2006. The letter of report itself is plainly authentic, describing in some detail the course of the receivership between March and August 2006. Secondly, although the tax invoice is described in the 1 September 2006 report as a “draft tax invoice for the cost of the receivership up to the date of this report” the invoice itself is not in the form of a draft. There is no fresh invoice in evidence indicating that it was withdrawn or replaced with another invoice at any time after 16 August 2006. Thirdly, the defendants did not seek to cross-examine Mr Macdonald on this issue to displace the inference that these reasons show arises from the form of these documents.

22 What then is to be made of the receiver’s management accounts, indicating receivership fees of $6,468.27? They ultimately remain unexplained. They probably represent some part of the total receivership costs, which were subdivided for a particular purpose of the receivers. It is odd that receivers’ fees for a much longer period of 3 years are said to be lower than the original invoice. The 16 August invoice is to be preferred because of the time it was issued and its obvious regularity and the confirmation of its existence in the text of the 1^st of September letter. The other figure is part of a set of management accounts which are unaudited and do not bring with them a compelling sense of reliability. In my view they can be ignored for the present assessment and I will only have regard to the 16 August 2006 invoice as the record of the professional costs of the receivership. It is necessary to look to the deductions that occur on account of funds received in the receivership and the other recovery expenses.

23 But the management accounts are the only evidence of what the receivers got in from the receivership and they show that other receipts from the receivership offset the receiver’s fees of $6,468.27. In my view the appropriate approach on the state of the evidence is to deduct $6,468.27 from the plaintiff’s claim for recovery of receivers’ expenses, as it seems that this amount was offset by receipts and it is not shown not to be included in the $46,487.72. There should further be deducted the sum of $1,529.69 (being the difference between the management accounts receipts of $30,723.38 and expenses of $29,193.69). Thus from the total sum of claimed receivers’ fees of $46,487.72 the sum of $7,887.96 ($1,529.69 plus $6,468.27) should be deducted, leaving a net recovery figure of $38,489.76. 80% of this figure will be Enterprises entitlement to recovery under this head of damage.

24 I have now decided all the assessment issues of principle. The parties should complete the calculations including of interest by Friday 26 November, 2010.

Costs

25 There are two costs issues. The first is whether Enterprises should recover all its costs of the proceedings given that it did not succeed on all issues. The second is whether Enterprises should have the benefit of a lump sum costs order under Civil Procedure Act 2005, s 98(1)(c). The Court deferred consideration of the second of these issues because one of the considerations relevant to the making of a lump sum costs order was the extent of any cost orders otherwise made in Enterprises favour.

26 Enterprises submitted that it should recover all its costs of the proceedings. The defendants submitted that Enterprises should (1) only recover costs of the misleading and deceptive conduct claim on which Enterprises was successful and should (2) pay the defendants’ costs of the claim on its charge (“the charge claim”) on which Enterprises was unsuccessful. The first judgment explains Enterprises’ case is based upon conduct in two distinct time periods: Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd [2010] NSWSC 963 at [7]. Enterprises alleges that the Dib Group engaged in misleading and deceptive conduct in causing Enterprises to make the loan to E-Style in September/October 2003. Enterprises also advanced on the charge claim other causes of action arising from the Dib Group’s later dealings with the assets of E-Style after E-Style had defaulted on the loan from Enterprises. This latter conduct occurs mostly from the end of 2004 through to 2006. Enterprises’ case during the later period was that the Dib Group had wrongly appropriated E-Style’s assets and deprived Enterprises of the benefit of those assets when Enterprises was exercising its rights under the charge. Enterprises was successful on the misleading and deceptive conduct claim and failed on the charge claim. This is the foundation of the defendant’s argument that Enterprises costs should be reduced and that Enterprises should pay some of the defendants’ costs.

27 The principles of the assessment of costs that apply in these circumstances are not controversial. Costs will normally follow the event, unless it appears to the Court that some other order should be made as to the whole or any part of the costs: Uniform Civil Procedure Rules 2005, r 42.1 and Oshlack v Richmond River Council (1998) 193 CLR 72 at [97]. The plaintiff would normally be entitled to the whole of its costs even if it is unsuccessful on some issues, so that there would not normally be a differential between particular issues on which the party was successful and those in which it failed, unless the matters on which the party failed were either the clearly dominant issue in contest or were clearly separable from the matters on which the party succeeded, Waters v P C Henderson (Aust) Pty Ltd (1994) 254 ALR 328. If a proportion of Court time is spent on issues which are severable and on which the plaintiff is unsuccessful then a successful plaintiff may be deprived of costs on those issues: Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No. 3) (1998) 30 ACSR 20. An order that a successful party pay the costs of an unsuccessful party is generally regarded as requiring particular justification: Ottway v Jones (1955) 1 WLR 706 at 708 and Trade Practices Commission v Nicholas Enterprises Pty Ltd (No. 3) (1979) 28 ALR 201.

28 The defendants’ counsel Mr Cook undertook a useful exercise of analysing the amount of time spent on the misleading and deceptive conduct issues and the charge issues during various parts of the case. He conceded that his analysis should not be regarded as scientific. It is not a definitive way of analysing the time spent by parties on particular issues. Too close a regard to it would be artificial. Nevertheless it usefully analyses the tender bundle, the statement of claim, the parties’ submissions, the agreed statement of issues, the cross-examination of George Dib and the judgment to show in Mr Cook’s submission what percentage of each was devoted to the issues on which the Dib Group was successful, (the charge issues) and what proportion was devoted to issues on which the Dib Group was unsuccessful (the misleading conduct issues).

29 The result of Mr Cook’s analysis shows that a considerable proportion of the proceedings was devoted to issues on which the Dib Group was successful. At a general level too this conclusion accords with my own assessment of the course of the trial. A brief summary of his analysis follows. I have omitted reference to Mr Cook’s analysis of the tender bundle and the plaintiff’s bundle of documents of 28 March 2008 because the underlying methodology he used is not clear and the results do not accord with my understanding of the evidence. Similarly the analysis below does not deal with the agreed statement of issues, which is not a particularly helpful basis for analysis as to how much time was taken at trial.

30 The indicators in Mr Cook’s table that are closer to the real determinants of how Court time was consumed are the amended statement of claim, the plaintiff’s written submissions, the defendant’s written submissions, the cross-examination of George Dib and the judgment. The results are the following:

(a) of the 28 paragraphs of the statement of claim, 15 (or 54 percent) paragraphs relate to the charge claim;
(b) in the plaintiff’s written submissions of 134 paragraphs some 74 paragraphs (or 55 percent) were devoted to the charge claim;
(c) in the defendant’s submissions of some 202 paragraphs some 43 paragraphs (or 15 percent) are devoted to the charge claim in relation to the defendant’s submissions it is put that a further 70 paragraph (or 24 percent) relate to the issue that E-Style was in financial stress, another issue in which the defendants were unsuccessful, bringing the total in which the Dib Group was successful to 39 percent;
(d) of the 203 pages of cross-examination of George Dib, 138 pages it is said, are devoted to cross-examination on whether or not the Dib Group knew that E-Style was under financial stress for the charge issue some 68 percent;
(e) the judgment of 202 paragraphs deals with Dib Group knowledge of financial distress in 9 paragraphs (4 per cent) and the charge issue in 57 paragraphs (28 percent) giving a total of the issues the Dib Group was successful of 32 percent.

31 This analysis shows that a substantial part of the trial was devoted to issues on which the Dib Group was successful. However I do not accept this analysis fully. In some areas it overestimates the time devoted to issues on which the Dib Group was successful. Also it fails to take into account that there was overlapping significance in some evidence to both the misleading and deceptive conduct claim and the charge claim, including as to credit.

32 Enterprises says in response that costs should follow the event and that it should have all of its costs. The flaw in that position is that it cannot be said that the amount of time devoted to charge issues was insignificant. In my view it added significantly to the total hearing time of the proceedings.

33 However the charge issues were not wholly disconnected from the misleading and deceptive conduct issues. The decision to pursue the charge issues arose out of the receivers’ work. Furthermore the impetus to pursue recovery action was increasingly driven by Enterprises’ understandable and in my view reasonable attempts in the circumstances to recover some money from E-Style.

34 Enterprises should not be able to recover all of its costs though. However I do not think that the situation warrants a costs order against it. In my view justice will be served by depriving Enterprises of 25 percent of its costs on account of its failure on the charge issue.

35 The order will be limited to costs incurred up to the date of this judgment. The parties have yet to argue the supplementary costs question of whether a lump sum costs order should be made pursuant to Civil Liability Act, s 98(1)(c). That application is likely to raise separate cost questions. They will be dealt with when that application is argued and decided.

36 Accordingly I will order the defendants to pay 75 percent of Enterprises’ costs of the proceedings up to the date of this judgment.

Conclusion and Orders

37 I have found the following in relation to the three issues determined in this judgment. First, the liability of the defendants who are concurrent wrongdoers is limited to an amount reflecting 80 percent of the damage or loss that Enterprises claimed being a figure that the Court considers just having regard to the extent of the defendants responsibility for the damage or loss, when contrasted with the responsibility of Ms Betty Ventouris the other concurrent wrongdoer. Secondly, the Court has decided the contested issues of principle on the assessment of damages. The parties should now agree on the final calculation including interest so that judgment can be entered in one amount on Friday of this week. Thirdly, the plaintiff should not have all of its costs given that it failed on the charge issues, although it succeeded on the misleading and deceptive conduct issues. On the other hand, I have found that there should not be a costs order made against the plaintiff in favour of the defendants on any of these issues. Enterprises will recover 75 percent of its costs of the proceedings against the defendants up to the date of this judgment. Issues of a possible lump sum costs order under Civil Liability Act, s 98(1)(c) will be listed for further argument.

38 The orders of the Court therefore will be:

1. Direct the parties to complete the calculations of the amount for judgment in accordance with these reasons by 4.00pm on 25 November 2010 and provide them to the Court and if not agreed the parties shall provide separate calculations.
2. I order the defendants to pay 75 percent of the plaintiff’s costs of these proceedings incurred up to date.
3. I direct the parties to file and serve written submissions about the desirability or otherwise of a lump sum costs order by Friday, 3 December 2010.
4. I direct the plaintiff to file and serve any written submissions and documentary evidence about any claim for indemnity costs by 5pm on Monday 29 November 2010.
5. I direct the defendant to file and serve any written submission and documentary evidence in reply on the issue of indemnity costs by 5pm on Friday 3 December 2010.
6. I grant liberty to apply.

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