Wool International v Sedgwick Ltd (No 4)
[1997] FCA 1172
•2 October 1997
FEDERAL COURT OF AUSTRALIA
Private International law - exclusive jurisdiction clause - discretion to refuse a stay - “strong cause” for not granting a stay - construction of jurisdiction clause - fragmentation of proceedings - whether matters raised by cross-claim merely collateral to claims in the principal proceedings.
Akai v The People's Insurance Co. Ltd (1996) 141 ALR 374 - appl.
The Eleftheria [1970] P 94 - cited
Marlborough Harbour Board v Charter Travel Co Ltd (1989) 18 NSWLR 223 - dist.
Co-Operative Bulk Handling Ltd v Jennings Industries Ltd, 1 September 1995, Supreme Court of Western Australia, unreported - cited
Gem Plastics Pty Ltd v Satrex Maritime Pty Ltd (1995) 8 ANZ Ins Cas 61-283 - cons.
WOOL INTERNATIONAL v SEDGWICK LIMITED (No. 4)
NG 721 of 1993
JUDGE: BEAUMONT J PLACE: SYDNEY DATED: 2 OCTOBER 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 721 of 1993 ) GENERAL DIVISION )
BETWEEN: WOOL INTERNATIONAL
ApplicantAND: SEDGWICK LIMITED
RespondentAND: SEDGWICK LIMITED
Cross-applicantAND: DAVID EAN COLERIDGE AND IAN DAVID MCAUSLIN (SUING ON THEIR OWN BEHALF AND ON BEHALF OF ALL THE MEMBERS OF CERTAIN LLOYD’S SYNDICATES FOR 1990-1991, 1991-1992 AND 1992-1993 LISTED IN THE SCHEDULE ANNEXED TO THE NOTICE OF MOTION DATED 14 AUGUST 1997 AND MARKED “A”
CERTAIN COMPANIES LISTED IN THE SCHEDULE ANNEXED TO THE NOTICE OF MOTION DATED 14 AUGUST 1997 AND MARKED “B”
Cross-respondents
JUDGE: BEAUMONT J PLACE: SYDNEY DATED: 2 OCTOBER 1997
MINUTES OF ORDER
ORDERS:
Upon the cross-respondents filing in the Registry of the Federal Court an undertaking to the Court, signed by their solicitors on their behalf, that in any proceedings brought by the cross-applicant against them in the High Court of England and Wales, the cross-respondents will accept the findings and conclusions of this Court in the principal proceedings in this matter, further proceedings upon the cross-claim permanently stayed.
Upon the filing in the Registry of the undertaking mentioned, the cross-applicant pay the costs of the cross-respondents of the notice of motion.
Leave granted to the respondent to tax forthwith the order for costs in its favour made on 26 June 1997.
Leave granted to the applicant to tax forthwith the order for costs made today.
The parties to be at liberty to set-off these orders for costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 721 of 1993 ) GENERAL DIVISION )
BETWEEN: WOOL INTERNATIONAL
ApplicantAND: SEDGWICK LIMITED
RespondentAND: SEDGWICK LIMITED
Cross-applicantAND: DAVID EAN COLERIDGE AND IAN DAVID MCAUSLIN (SUING ON THEIR OWN BEHALF AND ON BEHALF OF ALL THE MEMBERS OF CERTAIN LLOYD’S SYNDICATES FOR 1990-1991, 1991-1992 AND 1992-1993 LISTED IN THE SCHEDULE ANNEXED TO THE NOTICE OF MOTION DATED 14 AUGUST 1997 AND MARKED “A”
CERTAIN COMPANIES LISTED IN THE SCHEDULE ANNEXED TO THE NOTICE OF MOTION DATED 14 AUGUST 1997 AND MARKED “B”
Cross-respondents
JUDGE: BEAUMONT J PLACE: SYDNEY DATED: 2 OCTOBER 1997
REASONS FOR JUDGMENT (No. 4)
(On motion for stay of cross-claim)
BEAUMONT J.
INTRODUCTION
Before the Court is a notice of motion, raised collaterally to the principal proceedings, seeking, in essence, an order that the prosecution of a cross-claim be stayed permanently. Alternative relief is sought but in the circumstances need not be mentioned. The notice of motion can only be understood by reference to the history of the litigation which I have outlined in my earlier reasons for judgment in these proceedings.
THE CASE PLEADED IN THE STATEMENT OF CLAIM AND THE RELIEF SOUGHT IN THE APPLICATION IN THE PRINCIPAL PROCEEDINGS
The principal proceedings in this matter were commenced by a statement of claim filed on 17 September 1993, accompanied by an application filed on the same date. In the application, the first applicants were described as David Ean Coleridge and Ian David McCauslin, suing on their own behalf and on behalf of all the members of certain Lloyd’s syndicates for particular years, which were named in the schedule marked “A” annexed to the statement of claim and described as certain Lloyd's underwriters. The second applicants were described as certain companies listed in the schedule marked B annexed to the statement of claim The schedule described them as certain London underwriting companies. The third applicant was described as the Australian Wool Realisation Commission, now known as Wool International (“Wool”). The respondent was Sedgwick Limited.
In the statement of claim it was alleged that the first applicants were the representatives of Lloyd’s underwriters listed in the schedule marked “A” and that the second applicants comprised those London underwriting companies listed in the schedule marked B; that in March 1990, the first applicants issued a policy of insurance in respect of the storage of goods by the third applicant at premises in Queensland; that in September 1990, a division of the respondent issued a “property underwriting and risk assessment report” for the purpose of assisting the applicants, and any prospective insurer, in the evaluation of the risk in respect of the storage of the goods. It was said that, in the report, the respondent represented to the applicants, and to any prospective insurer, that the internal exposures of the warehouse building in question were minimal.
It was further pleaded that at the time of the making of this representation, the first and second applicants believed that the representation was true and that they were thereby induced to issue a policy of insurance in April 1991 and to issue a further policy of insurance in April 1992. It was then said that at the time of the making of the representation, the third applicant believed that the representation was true and took no steps to move the goods from the warehouse premises. It was further alleged that the representation was made in trade or commerce but was untrue and thus misleading or deceptive or likely to mislead or deceive, in breach of s 52 of the Trade Practices Act 1974 and cognate legislation. It was further said that the first and second applicants continued to rely upon the silence of the respondent and were thereby induced to continue to stay on risk with respect to the insurance policy issued in March 1990 and not to discontinue that policy. Further, the first and second applicants say that they were thereby induced to issue the 1991 and 1992 policies. The statement of claim went on to make other allegations said to constitute causes of action in negligence arising out of the same subject matter.
In their application, the applicants claimed damages and interest.
THE PROGRESS OF THE PRINCIPAL PROCEEDINGS
The principal proceedings came before Sheppard J for directions on 6 June 1996, in the circumstances described in my reasons for judgment (No.2), dated 25 June 1997. It is sufficient for present purposes to note that on this occasion, counsel for the then applicants indicated that the first and second applicants sought leave to discontinue the proceedings. His Honour granted such leave and the matter came back again before his Honour for further directions on 22 August 1996 in the circumstances described in my earlier reasons.
In the directions hearing held in June 1996 his Honour was informed that the reason for the discontinuance was that the first and second applicants had recently paid an amount (approximately $850,000) to the third applicant in discharge of their liability to the third applicant under the insurance cover.
The principal proceedings remain on foot. They are between Wool International, as applicant, and Sedgwick Limited, as respondent. The present claim is as pleaded in the second further amended statement of claim filed on behalf of the applicant on 4 July 1996. I am informed that an amount of about $2 million is claimed. It is not necessary that I describe the current pleading. It does differ from the earlier claim pleaded by Wool but not in any respect that is material for present purposes.
THE CROSS-CLAIM
On 27 March 1997, Sedgwick filed a cross-claim against David Ean Colleridge [sic] and Ian David McCauslin who were said to be sued in their own behalf and on behalf of all the members of certain Lloyd’s syndicates for particular years there specified, being the syndicates listed in the schedule annexed to the cross-claim.
In the cross-claim, it is alleged that Wool entered into the March 1990 policy of insurance with certain Lloyd’s underwriting syndicates in respect of, inter alia, the storage of goods by Wool at various locations in Australia, including the premises in Queensland. It is further claimed that in April 1991, Wool entered into a policy of insurance with, inter alia, certain Lloyd’s underwriting syndicates in respect of the storage of these goods and that a further policy was entered into in March 1992. It is then said that the applicant made a claim under each of these policies in respect of the loss and damage the subject of the present proceedings and that in early 1996, the applicant received payments from certain Lloyd’s underwriters in respect of these claims.
The cross-claim proceeds to make the following allegations:
“7.By reason and to the extent of such payments, each of the Underwriters became subrogated in equity to the rights of the Applicant in respect of the loss and damage the subject of these proceedings in consequence whereof these proceedings are brought for the benefit of the Underwriters to the extent of the payments.
8.Each of the Underwriters is an Accepting Name within the meaning of the Settlement Agreement made between themselves, Lloyds and others in or about late 1996 (‘the Settlement Agreement’).
9.The Respondent is a Broker Person within the meaning of the Settlement Agreement.
10.It was an express term of the Settlement Agreement that each of the Underwriters as Accepting Names accepted the benefit of the amount, if any, set out in the Underwriters’ Finality Statement (as therein defined) in full and final settlement of, inter alia, any claim against the Respondent as a Broker Person arising out of or in any way connected with, whether directly or indirectly, the Underwriters’ membership of any syndicate on whose account an active Underwriter accepted insurance at Lloyds for liabilities under contracts of insurance originally allocated to the 1992 year of account or any earlier year of account excluding certain claims not presently material (‘the Acceptance’).
11.It was a further express term of the Settlement Agreement that each of the Underwriters as Accepting [Names] waived and released the Respondent as a Broker Person from any claim of the kind referred to in 10 above and would not make, pursue or assert any such claim (‘the Release’).
12.It was an implied term of the Settlement Agreement that if the Cross-Respondent as Accepting Names received any amount by reason of any claim of the kind referred to in 10 above by reason of any right of subrogation, the Cross-Respondents would pay such amount to the Cross-Applicant.
13.Alternatively, if any such amount is received, it is impressed with a constructive trust for payment in favour of the Cross-Applicant by reason of the facts, matters and circumstances hereinbefore mentioned.”
The cross-applicant then claims the following relief:
“1.A declaration that upon the proper construction of the Settlement Agreement and in the events which have occurred, the Cross-Respondents are obliged to pay to the Cross-Applicant any amount received in consequence of any right of subrogation in respect of the claims herein made.
2.Alternatively, a declaration that such proceeds are held by the Cross-Respondents on trust for the Cross-Applicant.
3.Judgment against the Cross-Respondents for that amount to which it is entitled by reason of any right of subrogation referred to above.
4. Interest.
5. Costs.
6.Such further or other order or relief as the circumstances of the case may require.”
THE EXCLUSIVE JURISDICTION CLAUSE IN THE SETTLEMENT AGREEMENT AND ITS CONTEXT
The cross-respondents now move, as has been noted, for a permanent stay of the proceedings on the cross-claim. The basis for the application is an “exclusive jurisdiction” clause in a settlement agreement made between a number of parties and described as a settlement agreement between “The Society Incorporated by Lloyd’s Act 1871 by the name of Lloyd’s”, Equitas and other parties (“the settlement agreement”).
The context in which the settlement agreement was made was described in its recital as follows:
“WHEREAS:
(A) Lloyd’s published ‘Lloyd’s: reconstruction and renewal’ in May 1995 setting out proposals for the reconstruction of the Lloyd’s market with the aim of resolving the problems of the past and building a strong market for the future. The purpose of this Settlement Agreement is to help achieve the objectives set out in that document and subsequent documents addressing the Reconstruction and Renewal Proposals.
(B) Pursuant to the Reconstruction and Renewal Byelaw, the Reinsurance Contract will be entered into by Equitas, Lloyd’s, Equitas Limited, the Substitute Agent (for itself and on behalf of the Names) and Equitas Policyholders Trustee Limited under which all Names’ 1992 and Prior Business will be conditionally reinsured into Equitas.
(C) Pursuant to the Settlement Offer Document, Lloyd’s has made an offer to Names to settle certain Claims in respect of their 1992 and Prior Business, which excludes life business but includes any 1992 and prior year liabilities reinsured to close into the 1993 or any later year of account.
(D) A Settlement Fund of approximately £3.2 billion is to be distributed through the Combined Litigation Settlement Funds and Debt Credits in accordance with the terms set out in the Settlement Offer Document and hereof. Part of the Litigation Settlement Fund is to be paid as Expenses Refunds.
(E) A Finality Statement has been sent to each Name setting out, inter alia, each Name’s allocation from the Combined Litigation Settlement Funds (excluding Expenses Refunds) and Debt Credits.
(F) Certain Names have PSL policies covering underwriting losses in relation to their 1992 and prior open years of account. Certain benefits under these policies will be collected by Equitas as agent for Names, or in some cases will be assigned to Equitas.
(G) Under this Settlement Agreement, Accepting Names are waiving and releasing certain claims, including claims of fraud, breach of fiduciary duty, breach of contract and negligence, and giving certain covenants not to sue in respect of various persons, including other parties hereto.
(H) Certain of the other parties hereto are waiving and releasing certain claims, including claims of fraud, breach of fiduciary duty, breach of contract and negligence, and giving certain covenants not to sue in respect of Accepting Names and each other.
(I) Nothing in this Settlement Agreement shall relieve an Accepting Name from any liabilities to policyholders arising from his underwriting at Lloyd’s.
(J) The parties have therefore executed, caused to be executed or agreed to execute this Settlement Agreement as a deed.”
The exclusive jurisdiction clause relied on appears in a part of the settlement agreement under the heading “Law and Jurisdiction”. The clause is in these terms:
“LAW AND JURISDICTION
English law
13.1 All rights and obligations, of whatever sort, of any person, arising out of, or in any way related to or connected with, this Settlement Agreement and all terms and provisions hereof and all questions of construction, validity and performance hereunder and all appointments, authorities and powers of attorney granted pursuant hereto shall be governed by and construed in accordance with the laws of England.
Jurisdiction
13.2 Subject to clauses 9.2(f) and 9.4 above, in relation to any Proceedings to enforce the rights and/or obligations of any person arising out of, or in anyway related to or connected with, this Settlement Agreement, and all appointments, authorities and powers of attorney granted pursuant to, arising out of, or in anyway related to or in connection with, this Settlement Agreement, or such appointments, authorities or powers of attorney, each of the Parties, including for the avoidance of doubt each Accepting Name for his own part, unconditionally and irrevocably agrees that the High Court of England and Wales shall have exclusive jurisdiction to settle any dispute and/or controversy of whatsoever nature which may arise out of or in connection with this Settlement Agreement and all appointments, authorities and powers of attorney granted pursuant hereto and that, accordingly, any suit, action or Proceedings arising out of such matters shall be brought in such Court and, to this end, each Party hereto irrevocably agrees to submit to the jurisdiction of the High Court of England and Wales and irrevocably waives any objection which it may have now or hereafter to any such suit, action or Proceedings being brought in such Court and any claim that any such suit, action or Proceedings has been brought in an inconvenient forum and further irrevocably agrees that a judgment in any suit, action or proceeding brought in the High Court of England and Wales shall be conclusive and binding upon such Party and may be enforced in the courts of any jurisdiction.”
Reference was also made in argument to the provisions of cl 9 of the settlement agreement as follows:
"CROSS-CLAIMS
9.1Where Proceedings (including contribution proceedings) have been or are commenced by a Non Participant against a Participant, notwithstanding any other provision of this Settlement Agreement, that Participant (the First Participant) shall not be prevented by reason of the terms of this Settlement Agreement from pursuing Proceedings for a contribution, indemnity or otherwise from another Participant (the Second Participant) towards any liability the First Participant may have to the Non Participant, notwithstanding that the Proceedings relate to a Contributor’s Claim or any other Claim. The Second Participant (and any other Participants joined in the Proceedings by the Second Participant or any other Participant) shall, on a like basis, not be prevented from pursuing Proceedings for a contribution, indemnity or otherwise against any other Participant."
As appears from the passages of the settlement agreement I have quoted, cl 13.2 is expressed to be subject to cl 9.2(f) and cl 9.4. Clause 9.2(f) is in the following terms:
“9.2 Where Proceedings have been or are commenced by an Accepting Name against a Non Participant in connection with or relating to an Accepting Name’s Claim (other than a Non Participating Agent Claim), the following provisions shall apply:
...
(f)a Participant shall be entitled under sub-clause (e) above to recover a sum paid to a Non Participant by way of settlement of compromise only if either the Accepting Name has given written consent to the settlement or compromise, or if such consent is not given within 14 days of a written request for such consent, an expert appointed by The City Disputes Panel Limited at the request of the Participant has determined that the settlement or compromise is reasonable having regard to all the circumstances and in particular to the merits of the Proceedings commenced by the Non Participant and the costs thereof. In the event of a Participant seeking such a determination, the expert may determine that the costs of, and incidental to, his determination are to be borne by the Participant or by the Accepting Name or to be shared between them...”
Clause 9.4 is in the following terms:
“9.4 Where there is a dispute or difference between any of the Participants arising out of, or in any way related to or connected with, an Accepting Name’s Claim or Contributor’s Claim, such Participants agree first to try in good faith to settle the dispute by mediation under the Mediation Rules of The City Disputes Panel Limited in force at the date on which the dispute or difference arises. If such Participants fail to agree within 10 weeks of the appointment of a mediator the provisions of clause 13.2 shall apply.”
CONCLUSIONS ON THE MOTION
On behalf of the cross-respondents, reliance is placed upon the well established principle that:
“[T]he law has always been solicitous that when parties do contract to submit their disputes to the exclusive jurisdiction of the courts of another country they should be held to their bargain.”
(per Dawson and McHugh JJ in Akai v The People's Insurance Co. Ltd (1996) 141 ALR 374 at 380). It is true that those observations were made in a course of a dissenting judgment but it is clear that the majority in that case, Toohey, Gaudron and Gummow JJ, accepted the general principle now relied upon by the cross-respondents (see at 393).
It is equally well established that there are exceptions to this general rule, as appears from the authorities cited by Dawson and McHugh JJ (at 380-1). But although the Court has a discretion to refuse a stay where the parties have agreed to refer disputes to a foreign court, that discretion should be exercised only if "strong cause" for not granting the stay is shown. (See The Eleftheria [1970] P 94 per Brandon J at 99). It is also well established that the burden of proving such “strong cause” is on the plaintiff, that is to say, in this case, the cross-applicant.
On behalf of the cross-applicant, it is submitted that the stay should be refused upon several grounds. In the first place, it is contended that upon the true construction of the settlement agreement, when read as a whole, the provisions of cl 9.1 constitute, in effect, an exception to the operation of cl 13.2. Some support for this contention might be thought to lie in the language of the heading to cl 9, that is to say, in its description - "Cross-Claims". However, when regard is had to the terms of cl 9.1 itself, it appears, as a matter of language and as a matter of its evident purpose, that this provision was not intended to be limited to a cross-claim in the strict procedural sense, nor to be the exclusive code in that area for all purposes. In its terms, cl 9.1 permits a “Participant” to pursue any proceedings for contribution, indemnity or otherwise from another Participant, including, accordingly, free-standing proceedings instituted in that behalf. That is to say, contribution or indemnity may be sought from another Participant, whether or not that relief is pursued in the form of a cross-claim. Put differently, cl 9.1 would allow claim for contribution etc. to be made in separate proceedings.
Further, reliance is placed by the cross-applicant upon the words in the third line of cl 9.1 - “notwithstanding any other provision of this Settlement Agreement.” It is suggested that they were intended to pick up cl 13.2. But I cannot accept this interpretation. In my view, the reservation expressed in such general language was directed to other matters that could, arguably, impact upon the substantive rights or liabilities of the Participants, when considered as between themselves. In other words, reading the settlement agreement as a whole, and cl 9.1 in particular, it appears that cl 9.1 does not seek to address the suitability, or otherwise, of a particular forum or jurisdiction for the resolution of a dispute.
Support for this view may be found in the circumstance that, in its drafting, cl 13.2 was specifically expressed to be subject to the operation of cl 9.2(f) and cl 9.4. As has been seen, those provisions do in fact have a context indicating that in certain defined circumstances, another forum - for instance, The City Disputes Panel - would be the appropriate jurisdiction for the litigation of disputes of that certain kind. The fact that no similar reservation was made by reference to cl 9.1 reinforces the view I have expressed that the provisions of cl 13.2 should not be read down in the manner suggested by the cross-applicant.
The cross-applicant further submits that a stay should be refused upon the ground that the cross-respondents, by their initiation of the principal proceedings in the manner previously described, should be taken to have submitted to any cross-claim that might arise. Reliance was placed upon the decision in Marlborough Harbour Board v Charter Travel Co Ltd (1989) 18 NSWLR 223. It was there held that if a different cause of action raised by a cross-claim was nevertheless founded on, or directly arose out of, the same subject-matter as that of the initial action, submission to the jurisdiction for the purpose of the initial action would also extend to the different cause of action raised in the cross-claim.
Whilst I fully accept the existence of that principle (see also National Commercial Bank v Wimborne (1979) 11 NSWLR 156), I do not accept that it is capable of application in the present case. I note in this connection that the cross-applicant's contention assumes in its favour that the parties to the cross-claim are the same parties as the first and second applicants in the original proceedings. It appears that there is a contest about this matter but I am prepared to accept, for the purpose of the argument, that there is an identity of parties. The reason why, in my view, the Marlborough principle has no application in the present case, is that it cannot be said that the cause of action raised by the cross-claim was founded on, or directly arose out of, the same subject matter as that of the initial claims made in the original statement of claim on behalf of the first and second applicants. Rather, in my view, the matters sought to be agitated in the cross-claim may be described as truly collateral to the claims made in the original proceeding.
It is not appropriate nor necessary that I embark upon any detailed analysis of the nature of the claims sought to be propounded in the cross-claim. I was informed that in addition to the claim of a constructive trust for payment in favour of the cross-applicant, as asserted in par 13 of the cross-claim, a claim of subrogation, of the kind considered by Scott J in Co-Operative Bulk Handling Ltd v Jennings Industries Ltd, 1 September 1995, Supreme Court of Western Australia, unreported, was relied upon. It is clear, however, as the history of the litigation indicates, that at the time of the institution of the original proceedings, there had been no payment of the sum of approximately $850,000, made in satisfaction of the first and second applicants' liability under the insurance policies. This payment did not occur, as I have said, until nearly three years later.
It is true that when that payment was made, the first applicants were, at that point, still parties to the principal proceedings but that is, I think, an irrelevant consideration for the purposes of the present contention. In my opinion, given the collateral character of the issues raised in the cross-claim, no inference or imputation of submission to the Court's jurisdiction to entertain that claim should be drawn, by virtue of the institution of proceedings on the original claims which went, as I have said, to a different subject matter.
Finally, reliance is placed on behalf of the cross-applicant upon discretionary considerations. In particular, I was referred to Gem Plastics Pty Ltd v Satrex Maritime Pty Ltd (1995) 8 ANZ Ins Cas 61-283 in support of the proposition that fragmentation of proceedings is undesirable (see at 76,132).
I accept that it is generally undesirable to fragment proceedings, but as I understand the issues sought to be raised in the principal proceedings and in the cross-claim, they do, as has been said, address different subject matters. To that extent, were a stay to be granted, no fragmentation should occur. However, I can accept that it is possible that, in the course of the determination of the principal proceedings, a finding could be made, or a conclusion reached, by the trial Judge which could, directly or indirectly, bear upon an issue to be resolved in the cross-claim. It is therefore desirable that, if possible, the parties to the cross-claim should be bound by any such findings or conclusion, lest the undesirable situation arise of an attempt to re-agitate a matter previously determined finally in this Court. I also accept, of course, that it may be possible to cure this problem by the application of the modern doctrine of abuse of process; but, in the exercise of my discretion, I think the preferable course is to pre-empt the possibility of the problem arising by requiring, as a condition of the grant of a permanent stay, that the cross-respondents undertake to be bound by the findings in the principal proceedings in this Court, in the event that the cross-applicant proceeds against the cross-respondents in the High Court of England and Wales.
In all of the circumstances, I am of the opinion that a permanent stay of the cross-claim should be granted, but upon the condition mentioned.
ORDERS
The orders I make are accordingly as follows:
Upon the cross-respondents filing in the Registry of the Federal Court an undertaking to the Court, signed by their solicitors on their behalf, that in any proceedings brought by the cross-applicant against them in the High Court of England and Wales, the cross-respondents will accept the findings and conclusions of this Court in the principal proceedings in this matter, further proceedings upon the cross-claim permanently stayed.
Upon the filing in the Registry of the undertaking mentioned, the cross-applicant pay the costs of the cross-respondents of the notice of motion.
Leave granted to the respondent to tax forthwith the order for costs in its favour made on 26 June 1997.
Leave granted to the applicant to tax forthwith the order for costs made today.
The parties to be at liberty to set-off these orders for costs.
I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont
Associate:
Dated: 2 October 1997
Counsel for the Applicant and the Cross-respondents: C C Hodgekiss Solicitor for the Applicant and the Cross-respondents: Norton Smith & Co Counsel for the Respondent and the Cross-applicant: J B Simpkins Solicitor for the Respondent and the Cross-applicant: Phillips Fox Date of Hearing: 2 October 1997 Date of Judgment: 2 October 1997
28
0
0