Body Corporate Number DPS 91535 v 3A Composites GmbH
[2022] NZHC 2355
•14 September 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-2509
[2022] NZHC 2355
BETWEEN BODY CORPORATE NUMBER DPS 91535
First plaintiffARGOSY PROPERTY NO 1 LIMITED
Second plaintiffAND
3A COMPOSITES GmbH
First defendant
TERMINUS 2 LIMITED
Second defendantSKELLERUP INDUSTRIES LIMITED
Third defendant
Hearing: 29-30 August 2022 Appearances:
J A Farmer QC, S P Pope, MJF Taylor and A L Robertson for plaintiffs
A R Galbraith QC, J Q Wilson and A M Boberg for first defendant M C Harris and Z A Brentnall for second defendant
M D O’Brien QC, JWJ Graham and R M Irvine-Shanks for third defendant
Date of judgment:
14 September 2022
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 14 September 2022 at 12.00pm. Pursuant to Rule 11.5 of the High Court
Rules.
…………………………
Registrar/Deputy Registrar
Counsel/Solicitors:
J A Farmer KC, Auckland
A R Galbraith KC, Auckland M D O’Brien KC, Auckland Russell McVeagh, Auckland Bell Gully, Auckland
Gilbert Walker, Auckland Chapman Tripp, Auckland
BODY CORPORATE NUMBER DPS 91535 v 3A COMPOSITES GmbH [2022] NZHC 2355 [14 September 2022]
[1] On the present application, under High Court Rules 2016 r 4.24, the plaintiffs seek orders as ‘representative plaintiffs’ to “sue … on behalf of, or for the benefit of, all persons with the same interest in the subject matter” of this proceeding.1
Background
[2] The first defendant (3A Composites) manufactures aluminium composite panels (specifically, Alucobond polyethylene core cladding), which the second and third defendants (respectively, Terminus and Skellerup) supplied in New Zealand for building work.
[3] The objectives of clauses C2 to C6 of the building code (with which s 17 of the Building Act 2004 requires “[a]ll building work must comply … to the extent required by this Act”) are to:2
(a) safeguard people from an unacceptable risk of injury or illness caused by fire,
(b) protect other property from damage caused by fire, and
(c) facilitate firefighting and rescue operations.
Clause C3, addressing the spread of fire, requires buildings generally be designed and constructed so there is a low probability of each “injury or illness to persons not in close proximity to a fire source”, “external vertical fire spread to upper floors” of particular buildings and “fire spread to other property vertically or horizontally across a relevant boundary”. Performance standards are stipulated, as are means of demonstrating compliance.
[4] In this proceeding, in very general terms, the plaintiffs allege the defendants’ provision of such cladding for attachment to buildings’ external walls engaged duties of care the panels were “fit for purpose”, breached by the panels’ “combustibility” in particular emanations as Alucobond PE and Alucobond Plus. The plaintiffs further allege, in attaching the panels to their buildings’ external walls, they relied on the defendants’ misrepresentations of the panels’ fitness for that purpose. Last, they allege the defendants knew, or ought to have known, of the panels’ combustibility such that
1 High Court Rules 2016, r 4.24.
2 Building Regulations 1992, Sch 1, cl C1.
the defendants owed the plaintiffs a duty to warn of the panels’ lack of fitness for such purpose.3 Consequent expenses, including of the panels’ removal and replacement or other rectification, are claimed as losses.
[5] Although not presently for determination, fire engineer expert witnesses divergently opine as to aluminium composite panels’ (and, specifically, Alucobond polyethylene core cladding’s) fitness for use as external building cladding:
(a)for the plaintiffs, Simon Weaver contends for “growing recognition” combustible aluminium composite panels “are not fit for use in external cladding in many buildings due to the risk they fuel the rapid spread of fire”. With reference to the November 2014 Lacrosse Tower fire in Melbourne, Australia, and the June 2017 Grenfell Tower fire in London, England, he concludes Alucobond polyethylene core cladding
— as combustible — is inconsistent with building code requirements to resist the spread of fire, and (in particular formulations as Alucobond PE, containing a polyethylene core, and Alucobond Plus, containing a combined mineral fibre and polyethylene core) has not been demonstrated to meet the code’s “combustibility requirements”; and
(b)for the defendants, Gillian Stopford explains ‘combustibility’ “does not necessarily signal a problem or defect with cladding”. Rather, there are “internationally recognised methods of demonstrating compliance” with regulatory requirements for external wall cladding systems, “including all types of [aluminium composite panels], high pressure laminates and other ‘combustible’ cladding systems”. She reinforces Alucobond PE “is permitted for use on buildings where there are no fire safety requirements” or otherwise by the applicable ‘Acceptable Solution’ as may be “informed by a range of factors including the height of a building, the distance of the building from the relevant boundary, whether the building is sprinklered, and the use of the building”. She notes “Alucobond Plus does not pose a material risk in terms of
3 The German first defendant’s protest to this Court’s jurisdiction was upheld in relation to other statutory causes of action: Body Corporate Number DPS 91535 v 3A Composites GmbH [2022] NZHC 985. The judgment is subject to appeal.
building code compliance when installed as part of a compliant tested system”, and a further Alucobond product, Alucobond A2, “is not the subject of the claim”.
The experts’ dispute is continued in subsequent affidavits. The present application heavily relies on Mr Weaver’s ‘fundamental’ opinion “the presence of combustible [aluminium composite panel polyethylene core] cladding is inconsistent with resistance to the spread of fire”.
[6] The present application seeks to have the plaintiffs represent “all persons with the same interest in the subject matter” of this proceeding.4 Those are contended to be any person with an ownership or leasehold interest in a New Zealand building fitted with Alucobond polyethylene core cladding (as, to different extents, is the first plaintiff’s (the body corporate) building in Mount Manganui and the second plaintiff’s (Argosy) buildings in Auckland’s Albany and Mangere), who have incurred or would incur expenses comparable to those sought to be recovered in this proceeding.5 No such other person, building or expense is identified, but the plaintiffs intend nonetheless those others should be bound by determination of the defendants’ liability (unless any of those others ‘opts out’ of its application).
[7] The body corporate entered into an agreement with a West Australian company, by which the company would fund the representative proceeding through a Cayman Islands’ fund. Argosy entered a similar agreement.
[8] The body corporate apprehends “there are many buildings in New Zealand that were or are fitted with Alucobond PE Core Cladding”, pointing to lists published by Auckland, Wellington and Christchurch local authorities of buildings in their territories clad with aluminium composite panels. The body corporate acknowledges the proceeding otherwise would need to be funded by levies raised from unit owners, being “a significant burden on each of the owners”, and adds it:
4 High Court Rules, r 4.24.
5 3A Composites seemingly faces a similar class action in the Federal Court of Australia, brought by the body corporate owner of a residential building in New South Wales, although that Court’s Rules do not require consent or leave for bringing representative proceedings: Federal Court Rules 2011, r 9.21(1). See also Credit Suisse Private Equity LLC v Houghton [2014] NZSC 37, [2014] 1 NZLR 541 at [72]–[74].
… see[s] combustible cladding as an issue that affects many buildings in New Zealand and one that we consider is worth standing up for. I am informed by our solicitors and believe that several other [building owners] have signed already signed the funding agreement ….
It later advised:
[T]here are 14 claimants who collectively own 30 buildings who have signed litigation funding agreements … . Those claimants own buildings across New Zealand including in Auckland, Christchurch, Wellington, Mount Manganui and Whangarei and include buildings supplied with Alucobond as recently as 2016.
[9] In 2008, at a cost of some $9 million, the body corporate reclad the exterior of its Mount Manganui resort and apartment building — comprising three stories and a basement, containing 39 units used to provide sleeping accommodation for owner- occupiers or short-term renters — with Alucobond PE, as marketed and distributed by Skellerup (but supplied by another). Alucobond PE or Alucobond Plus panels supplied by Terminus (then named Kaneba Limited (Kaneba)) were affixed to Argosy’s Albany and Mangere commercial buildings in 2011.
[10] Skellerup sold its Alucobond business — by which it imported and marketed, and in some instances installed, Alucobond panels — to Kaneba in 2009. Kaneba continued to operate the business — supplied with Alucobond by 3A Composites (then known as Alcan Composites or Alusuisse Composites) on a non-exclusive basis, for fabrication by Kaneba — until its further sale in 2014. Kaneba acknowledges supplying, or supplying and installing, Alucobond panels to 22 of the Auckland and Wellington buildings identified by the body corporate, some in minor quantities to replace or supplement existing cladding. Those minor quantities include for: a 10m2 pedestrian link bridge between Argosy’s 3700m2 Mangere buildings, long used as the main Auckland distribution centre and head office for Woolworths New Zealand, already clad in Alucobond panels not supplied or installed by Kaneba; and a decorative strip affixed over pre-existing Alucobond cladding of a different colour (not supplied or installed by Kaneba) on Argosy’s Albany building, housing a Burger King restaurant. Kaneba was not involved in specifying Alucobond for either property or in preparation of the fire safety reports submitted for their respective building consents. Those consents appear to have been sought on behalf of, and presumably obtained by, the buildings’ tenants.
The law on representative proceedings
[11] New Zealand lacking any express provision for the bringing of class actions, under r 4.24, “the law on representative actions has been incrementally developed to include many of the features of a class actions regime”,6 as “a flexible tool of convenience in the administration of justice”.7 Such regimes have perceived advantages and disadvantages: the former including access to otherwise unaffordable justice, economy of scale and other efficiencies and promotion of change; the latter if providing a mechanism for meritless claims, artificially incentivising settlements and involving third-party funders in litigation decision-making.8
[12] Under r 4.24, a liberal approach to accommodating expeditious and economic dispatch of like proceedings, without compromising justice also for defendants,9 has “the objectives of improving access to justice, facilitating efficient use of judicial resources and strengthening incentives for compliance with the law”.10 Notably, “the rule derives from an equitable procedure designed to facilitate the disposition of cases where the parties were so numerous the proceedings would be unmanageable if all were named”.11
[13] I am to facilitate rather than impede the attainment of such objectives. To the extent that involves some examination of the substantive merits, it is only as a “broad brush impressionistic approach” analogously with the approach to strike out
6 Law Commission Ko ngā Hunga Take Whaipānga me ngā Pūtea Tautiringa: Class Actions and Litigation Funding (NZLC R147, 2022) at [2.11].
7 Credit Suisse Private Equity LLC v Houghton, above n 5, at [2], citing John v Rees [1970] Ch 345 (Ch) at 370.
8 Saunders v Houghton [2009] NZCA 610, [2010] 3 NZLR 331 at [16], citing Cashman, Class action law and practice (2007) at [5.1]–[5.2]; Hodges The multi-party action (Oxford University Press, UK, 2000) at [16.22]; Hensler and others Class action dilemmas (Rand, Santa Monica, 2000); and Mulherron The class action in common law legal systems: a comparative perspective (Oxford, Portland, 2004).
9 Credit Suisse Private Equity LLC v Houghton, above n 5, at [152]; and Cridge v Studorp Ltd
[2017] NZCA 376 at [11].
10 Southern Response Earthquake Services Ltd v Ross [2020] NZSC 126, [2021] 1 NZLR 117 at [37] and [40], adopting Ross v Southern Response Earthquake Services Ltd [2019] NZCA 431, (2019) 25 PRNZ 33 at [52]. Compare Credit Suisse Private Equity LLC v Houghton, above n 5, at [158]: [T]he principal purpose of representative actions [is] the promotion of efficiency and
economy of litigation. … The whole point of having a representative proceeding is to avoid clogging the courts with individual actions covering the same subject matter.
11 Cridge v Studorp Ltd, above n 9, at [11], citing R J Flowers Ltd v Burns [1987] 1 NZLR 260 (HC) at 264–265 (citing Duke of Bedford v Ellis [1901] AC 1 (HL)).
applications.12 But I also am to keep “[t]he traditional concern to ensure that representative actions are not allowed to work injustice … constantly in mind”,13 “met at least in part by the requirement that applicants under r 4.24 have to satisfy the court as to the requisite common interest”.14
[14] The threshold is “there must be an interest shared in common by all members of the group”, and permission to sue in a representative capacity “must be for the benefit of other members of the class”.15 So long as such grant neither:16
… confer[s] a right of action on the member of the class represented who could not have asserted such a right in separate proceedings, nor … bar[s] a defence which might have been available to the defendant in such separate proceeding[,] …
… it is proper to claim a declaration of liability, thus establishing res judicata on the common issue, and permitting individual claims to establish individual damage to follow. The issues that are the subject of the proposed declaration would be identified either by explicit pleading or by application for determination of a specific issue. The more likely that their determination would be both practicable and resolve most or much of the proceeding, the more likely it is that the court would be minded to grant the declaration sought.
[15] By ‘same interest’, r 4.24 does not require the same cause of action for the same relief, but commonality of issue(s) as driven by assessments of “substantiality and proportionality”, meaning “the more the parties have in common, the more the strength of that facet of the application”.17 Thus “identification of the likely issues is a vital enquiry”.18 Underpinning all is the objective “to secure the just, speedy, and inexpensive determination of any proceeding or interlocutory application”.19
12 Southern Response Earthquake Services Ltd v Southern Response Unresolved Claims Group
[2017] NZCA 489, [2018] 2 NZLR 312 at [17].
13 Southern Response Earthquake Services Ltd v Ross, above n 10, at [35], citing Credit Suisse Private Equity LLC v Houghton, above n 5, at [130] (citing R J Flowers Ltd v Burns, above n 11, at 271).
14 At [41].
15 Saunders v Houghton, above n 8, at [13], citing R J Flowers Ltd v Burns, above n 11, Taspac Oysters v James Hardie Ltd [1990] 1 NZLR 442 (HC) and Prudential Assurance Co Ltd v Newman Industries Ltd [1981] Ch 229 (Ch D) at 254–255.
16 At [13]–[14].
17 At [18]–[19], citing Fostif Pty Ltd v Campbells Cash & Carry Pty Ltd (2005) 63 NSWLR 203 (CA) at [187] (citing Carnie v Esanda Finance Corporation Ltd (1995) 182 CLR 398 at 408).
18 At [20].
19 High Court Rules, r 1.2.
The likely issues
[16] For the plaintiffs, James Farmer QC identified as ‘common’ issues essentially the denied allegations in the proceeding.20 Beyond the disputed factual issues — of polyethylene’s flammability and aluminium composite panels’ combustibility as latent defects, materially risking spread and severity of fire and consequent loss of life and property damage — the contended common legal issues are founded on the defendants’ alleged duty of care to ensure its manufactured or supplied Alucobond cladding:
(a) complied with the Building Act 2004 and with the Building Code;
(b) was not subject to the Material Fire Risk Properties21 (or any of them);
(c) was not subject to the Building Code Non-compliance Properties22 (or any of them);
(d) was not subject to the Building Code Non-compliance Risk Properties23 (or any of them); and
(e) was fit for all the purposes for which good of its type are commonly supplied and/or the Purposes24 … .
The other causes of action, alleging negligent misstatement and negligent failure to warn, are essentially derivative of the foundation alleged duty of care.
[17] In closing, Mr Farmer accepted from me subpara (d) above’s “and” should be be read ‘or’. His point was ‘fitness for purpose’ (and “Material Fire Risk Properties”) was not to be understood as constrained by the state of the building code at any time. That in turn is to accept any particular failure to comply with the building code is more for building-by-building assessment — as Ms Stopford explains, by reference at least to the building’s height, distance from a relevant boundary, fire suppression means and use — less susceptible to ‘common issue’ analysis.
20 Mr Farmer points out “the plaintiffs already have established one significant common issue”, being 3A Composites is subject to this Court’s jurisdiction on the negligence causes of action, on which the plaintiffs have “a good arguable case”: Body Corporate Number DPS 91535 v 3A Composites GmbH, above n 3, at [104] and [130(b)].
21 Defined as, in the event of fire, increasing the risk of loss of life or property damage and/or other adverse impacts.
22 Defined by reference to requirements for Building Code compliance.
23 Defined by reference to requirements for Building Code compliance.
24 Defined as use as part of an external wall or as an attachment to it or another building element.
Discussion
[18] The ‘common issue’ analysis is to identify qualification for r 4.24’s application as “persons with the same interest in the subject matter of a proceeding”: “there is sufficient community of interest for a representative claim if there is common interest in ‘the determination of some substantial issue of law or fact’”.25
[19] Whether ‘substantial’ (or ‘proportional’)26 is to the degree determination of common issues would advance the proceeding’s representative objectives: for example, if in whole or part in the plaintiffs’ favour, would dispense with proof of all or some material elements of liability for represented claimants’ relief or, if against the plaintiffs, “would bring the proceedings to an end for all claimants”.27 Such would meet at least both access to justice and efficiency goals.
[20] Thus, in a proceeding claiming not to be liable to pay credit charges on loan contracts made in alleged non-compliance with statutory disclosure requirements, the substantial issue for representative orders was:28
… whether [a provision in the statute] permits the inclusion of unpaid credit charges under an original loan or credit sale contract in the calculation of “the outstanding balance of the amount financed” for the purposes of that provision;
Similarly, in a proceeding to recover losses said to have been suffered as a result of particular statements in and omissions from the prospectus issued for the public offering of shares, “whether the prospectus in issue complied with the law”;29 or on claims for breach of contract “on a broadly similar if not virtually identical terms and conditions”, the represented group members’ “shared vulnerability”.30 More relevantly for the present proceeding, in proceedings alleging breach of a duty of care in manufacture and supply of building cladding:31
25 Credit Suisse Private Equity LLC v Houghton, above n 5, at [2] and [51], citing Carnie v Esanda Finance Corporation Ltd, above n 17, at 408 and 430.
26 See [15] above.
27 Southern Response Earthquake Services Ltd v Ross, above n 13, at [9].
28 Carnie v Esanda Finance Corporation Ltd, above n 17, at 408.
29 Credit Suisse Private Equity LLC v Houghton, above n 5, at [4], referring to Saunders v Houghton, above n 15, at [14].
30 Claims Resolution Service Ltd v Smith [2020] NZCA 664 at [34].
31 Studorp Ltd v Cridge [2017] NZSC 178 at [6] (citations omitted).
[O]n the issue of duty of care, the considerations will be “materially the same or similar” for all claims. … [I]n relation to breach there were various sub-issues but they were nonetheless common and will involve consideration of a common factual matrix.
In such cases, determination of the ‘common issue’, whether in favour of the plaintiffs or not, had substantial or proportionate impact in efficient disposition of other claimants’ interests.
[21] The negligence causes of action in the present proceeding plainly cannot be read without reference to the building code. Mr Weaver’s stated opinion is not, irrespective of the building code, aluminium composite panels’ polyethylene core makes them inappropriate for use as external cladding, but they inherently are incapable of meeting the building code’s requirements. His ‘fundamental’ opinion as to their inconsistency with resistance to the spread of fire implicitly is referable to the building code’s functional requirements for a low probability of fire spread. He offers no other reference point.
[22] It is not obvious why the body corporate and Argosy or, more particularly, any individual member of the intended represented group would seek to argue in their own interests for such inherent incapability. Left to their own devices, each more likely would argue for their particular cladding’s failure to meet applicable building code requirements, as each may (and the body corporate and Argosy will) do if the ‘inherent’ allegation is unsuccessful. However, a legitimate reason for alleging the cladding’s inherent incapability may be, in pursuing economies of scope and scale, to incorporate all possible building code requirements as may apply across the intended represented group. By that means a representative plaintiff arguably may escape the prohibition against advancing claims “other than those which its own claim ‘represents’”.32
[23] Thus I have to be satisfied the intended represented group’s claims would engage at least a broader range, if not the whole, of building code fire spread
32 Southern Response Earthquake Services Ltd v Southern Response Unresolved Claims Group, above n 12, at [32]. See also Credit Suisse Private Equity LLC v Houghton, above n 5, at [51], citing Prudential Assurance Co Ltd v Newman Industries Ltd, above n 15; Western Canadian Shopping Centres Inc v Dutton [2001] 2 SCR 534 (cited in Saxmere Co Ltd v The Wool Board Disestablishment Co Ltd HC Wellington CIV-2003-485-2724, 6 December 2005 at [182]); and Payne v Young (1980) 145 CLR 609 at 618.
requirements than may apply in the body corporate’s and Argosy’s own cases. Otherwise I could not be satisfied representative action was for the benefit of the intended represented group. This Court’s grant of representative orders is not intended to recruit the group’s members.33 Representative proceedings are not ‘fields of dreams’.34 Assessment of the actual, rather than hypothetical, “commonality of interest” is desirable.35
[24] Other than the body corporate’s contention as to the 14 “claimants” having signed litigation funding agreements, I have nothing to assess the intended represented group members’ positions. If the agreements are in similar terms to those entered by the body corporate and Argosy, I only might infer such claimants contend to have a claim against a respondent, whether or not 3A Composites or Kaneba,36 “in relation to or arising out of PE Core Cladding on the building(s) in which the Claimant has a proprietary interest”, such cladding being defined as “aluminium composite panel cladding comprised of a core containing polyethylene (with or without any other combustible material)”.
[25] Even so, pre-commencement publicity of a prospective “product liability” claim here invited property owners’ registration of interest in relation to “combustible [polyethylene] core cladding”, also specified as “Alucobond and Vitrabond [polyethylene] core cladding products”, but encouraged registration “even if they do not know what cladding they have on their building”. Determination of the type and brand of cladding required property owners’ enter first into the litigation funding agreement: “[i]f it turns out to be a cladding product that is not eligible to participate in the class action … there is no cost or penalty for the owners”. I am not given any additional detail of the 14 claimants, except the body corporate’s comprehension they account for some 30 buildings, including some “supplied with Alucobond as recently as 2016”.
33 Ross v Southern Response Earthquake Services Ltd [2021] NZHC 2452 at [26], citing Smith v Canadian Tire Acceptance Ltd (1995) 22 OR (3d) 433 (ON Gen Div) at [38].
34 Field of Dreams (Universal Pictures, 1989): “If you build it, [they] will come”.
35 Southern Response Earthquake Services Ltd v Southern Response Unresolved Claims Group, above n 12, at [34].
36 The funding agreement’s definition of “Respondent” includes a redacted name, and would encompass other prospective respondents.
[26] If any of the 14 claimants’ cladding is Alucobond PE or Alucobond Plus (and not Alucobond A2), or in any event supplied or installed in New Zealand by Skellerup or Kaneba, thus is unknown. The circumstances of only Argosy’s joinder a year into the proceeding, to address the body corporate’s exclusive use of Alucobond PE (and not Alucobond Plus), may suggest not otherwise than Argosy. Given the substantial corporate nature of Argosy’s tenants and their advisors involved in Kaneba’s 2010– 2011 supply and installation, if required now to remove or replace that relatively minor amount of cladding, it commercially is unreal to think either would find it necessary or desirable to embark on the proceeding’s ‘inherent’ allegation. Neither should Argosy. Nor is that an obvious foundation for the body corporate’s claim.
[27] Instead, the proposed representative proceeding appears sought primarily for the benefit of the body corporate and Argosy to enable their engagement of a litigation funder, in return for “a share of the Resolution Sum”, the ‘Sum’ being defined as the amount for which the proceeding is settled or for which judgment is given. The terms on which the funder may cease funding the claim are redacted (as are the progressive percentage shares of the resolution sum). Other than the body corporate’s contention its unit owners would find funding the litigation “a significant burden”, I have nothing on which to assess their or Argosy’s positions either. Given the relatively minor installations of Alucobond on Argosy’s buildings, and the tenants’ substantial corporate nature, it is not obvious Argosy should require access to litigation funding to pursue its claimed relief.
[28] I therefore have regard also for the prejudice to 3A Composites, Skellerup and Kaneba in terms of time and expense if having to defend their manufacture, supply or installation of Alucobond PE and Alucobond Plus against a potentially contrived allegation the products inherently are incapable of meeting building code requirements. While responsive insurance policies (of which I am unaware) may at least offset or divert such impact, determination of any contrivance is not an efficient use of scarce Court and other resources.
[29] Ultimately, while determination Alucobond PE and Alucobond Plus as external cladding inherently are incapable of providing for a low probability of fire spread would predetermine any claim for their compliance with building code requirements,
the plaintiffs have not established such inherence is either a substantial or even proportionate aspect of any claim against the defendants or any of them. Conversely, determination Alucobond PE or Alucobond Plus as external cladding may provide a low probability of fire spread would not predetermine any claim for their compliance with building code requirements in respect of any particular installation. The proceeding would continue, in its present conception, at least for the body corporate and Argosy and any claimants then seeking to ‘opt in’ for individual relief.
[30] None of representative proceedings’ objectives demonstrably is furthered by making the orders sought here. I will not make them.
Result
[31]The plaintiffs’ application for representative orders under r 4.24 is dismissed.
Costs
[32] In my preliminary view, from what I presently know — as the unsuccessful parties in this averagely complex proceeding requiring counsel of average skill and experience, and in which a normal amount of time is considered reasonable for each step on the application — the body corporate and Argosy jointly and severally should pay 2B costs to each 3A Composites, Terminus and Skellerup on each step in their application. I would allow for second (but not subsequent) counsel as part of the application’s ‘average’ characterisation.
[33] If my view is not accepted by the parties, or they cannot otherwise agree, I reserve costs for determination on short memoranda each of no more than five pages
— annexing a single-page table setting out any contended allowable steps, time allocation and daily recovery rate — to be filed and served (desirably jointly) by 3A Composites, Terminus and Skellerup within ten working days of the date of this judgment, with any response (also desirably jointly) or reply to be filed within five working day intervals after service.
—Jagose J
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