Haines House Removals Ltd v Jamieson
[2013] NZHC 1597
•28 June 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-003969 [2013] NZHC 1597
BETWEEN HAINES HOUSE REMOVALS LTD Plaintiff
ANDKATHLEEN MARY JAMIESON First Defendant
ANDTHE REGISTRAR GENERAL OF LAND Second Defendant
CIV-2012-404-003287
BETWEEN HAINES HOUSE REMOVALS LTD Appellant
ANDTHE OFFICIAL ASSIGNEE Respondent
CIV-2011-404-003878
BETWEEN THE OFFICIAL ASSIGNEE Plaintiff
ANDKATHLEEN MARY JAMIESON AS TRUSTEE OF THE SPEARHEAD TRUST
First Defendant
ANDKATHLEEN MARY JAMIESON AS TRUSTEE OF THE CASTELLO TRUST Second Defendant
Hearing: 18 and 22 April; and 17 and 22 May 2013 [On the Papers]
Counsel: R C Mark for Haines House Removals Ltd
D W Grove for K M Jamieson
G A D Neil for the Official Assignee
Judgment: 28 June 2013
HAINES HOUSE REMOVALS LTD v KATHLEEN MARY JAMIESON [2013] NZHC 1597 [28 June 2013]
JUDGMENT OF DUFFY J [Re Costs]
This judgment was delivered by Justice Duffy on 28 June 2013 at 2.00 p.m., pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Counsel: R C Mark, Kerikeri
D W Grove, Auckland
Solicitors: Meredith Connell, Auckland
[1] Haines House Removals Limited (Haines) is a creditor in the bankruptcy of Kathleen Mary Jamieson. Haines considered that there were two potential creditors of Ms Jamieson (the Spearhead Trust and the Costello Trust) from which money could be recovered for the benefit of the bankrupt estate, which in turn may have made funds available to repay Haines. Haines persuaded the Official Assignee to take proceedings against these Trusts. Some time later, the Official Assignee discontinued the proceedings against the Costello Trust. Then, at a time close to the hearing date of the proceeding, the Official Assignee discontinued the proceedings against the Spearhead Trust. Haines brought an application to this Court under s 86 of the Insolvency Act 1967 to appeal the decision to discontinue the proceedings against the Spearhead Trust.
[2] The application under s 86 was unsuccessful for Haines in that this Court found that the decision to discontinue against the Spearhead Trust was well founded. The Official Assignee now seeks an award of costs against Haines. The Spearhead Trust, which was permitted to intervene and be heard in the proceeding (it supported the decision to discontinue the proceedings against it), also seeks costs against Haines.
[3] One of the conditions on which the Official Assignee brought the proceedings against the Spearhead Trust was that Haines execute a deed of indemnity (the indemnity). Under the indemnity, Haines indemnified the Official Assignee for any costs incurred in bringing proceedings against the Costello Trust and the Spearhead Trust. The terms of the indemnity entitled the Official Assignee to recover indemnity costs against Haines. The Official Assignee claims that under the terms of the indemnity, he is entitled to an award of indemnity costs against Haines in relation to the s 86 application.
[4] The Spearhead Trust seeks costs against Haines on a category 2B basis.
[5] Haines acknowledges that the Official Assignee was successful in the s 86 application and concedes that he is entitled to costs. However, Haines contends that the Official Assignee is entitled to no more than category 2B costs, as the costs
sought do not come within the terms of the indemnity. Haines opposes any award of costs to the Spearhead Trust.
[6] I shall deal with the question of costs for the Official Assignee first.
The Official Assignee’s costs
[7] The Castello Trust and The Spearhead Trust were believed to have received voidable preferential payments from Ms Jamieson prior to her being made bankrupt.
[8] The bankrupt estate had no funds to bring proceedings to recover these payments: see clause E of the indemnity. Haines agreed to fund such proceedings (hereafter the Spearhead claim) and to indemnify the Official Assignee against all costs incurred by him in relation to the proceedings.
[9] The word “proceedings” is defined in clause D of the indemnity as proceedings “commenced against the trustees for the time being of The Castello Trust and The Spearhead Trust in respect of the debts owed to the Bankrupt”.
[10] Clause 1 of the indemnity states:
In consideration for the OA issuing the Proceedings, Haines agrees to indemnify the OA against:
a)All fees (including but not limited to solicitors fees on a solicitor- client basis), expenses, costs, disbursements and charges relating to, incidental to or consequent upon the Proceedings whether arising directly or indirectly out of the Proceedings; and
b)All costs, including but not limited to any order for security for costs, which may be awarded against the OA in respect of the Proceedings. (emphasis added)
The Official Assignee’s submissions
[11] According to the Official Assignee’s submissions, he incurred legal costs in
the process of:
a. Responding to the interlocutory application of Ms Jamieson, a trustee of the Spearhead Trust. She made an application on 26
July 2012 to search the Court file in the appeal proceeding and to be heard at the substantive hearing. Her application was opposed by the Official Assignee and Haines. Ms Jamieson succeeded in part. No order as to costs were made.
b. Responding to the s 86 appeal.
[12] The Official Assignee submits that the legal costs he incurred in resisting the s 86 application and the interlocutory matters that formed part of this application are “relating to, incidental to or consequent upon” the Spearhead claim, and therefore they fall squarely within clause 1 of the indemnity. The Official Assignee submits that Haines was informed of the purpose and breadth of the indemnity prior to its execution, and refers to an email chain between the Official Assignee and Haines (Exhibit R of the affidavit of Mohammed Azam Khan).
[13] The Official Assignee submits that there is no contractual principle precluding an award of indemnity costs. These costs should be awarded, otherwise his contractual rights will be eroded.
Haines’ submissions
[14] Haines submits that clause 1 of the indemnity properly construed does not include costs associated with the challenge to the decision by the Official Assignee to discontinue the Spearhead claim. Haines contends that the definition of “Proceedings” in clause 1 of the indemnity does not expressly extend to decisions of the Official Assignee which are subject to appeal rights under the Insolvency Act
1967. Furthermore, clause 1 should be construed contra proferentem.
[15] Haines argues that that it cannot have been the intention of the parties that the indemnity would extend to separate proceedings issued by Haines to invoke a statutory right to review a decision of the Official Assignee, which he made without consultation, to discontinue the proceedings.
[16] Furthermore, Haines submits, the indemnity envisages that Haines would not be a party to the Spearhead claim. For that reason, the indemnity expressly provides
for how costs may be claimed back from Haines (clause 2 provides that the Official Assignee shall make a written demand containing sufficient details). Thus, this is a strong indication that the terms of the indemnity were never intended to apply to a separate proceeding that involved Haines and the Official Assignee as opposing parties.
The law on indemnity costs
[17] Under r 14.6(1)(b), the Court may make an order that “that the costs payable are the actual costs, disbursements, and witness expenses reasonably incurred by a party (indemnity costs)”.
[18] Rule 14.6(4)(e) states that the Court may order a party to pay indemnity costs
if “the party claiming costs is entitled to indemnity costs under a contract or deed”.
[19] In Black v ASB Bank Ltd [2012] NZCA 384, the Court of Appeal summarised the principles around indemnity costs under a contract (at [77] – [80]):
(a) Where there is a contractual right to indemnity costs the question for the Court asked to make an order is: for the necessary steps, are the costs claimed reasonable in amount? Indemnity costs may be less than the actual costs if the Court considers the actual costs were not reasonably incurred.
(b)The word reasonable in r 14.6(1)(b) does not import a discretion in the usual sense: Frater Williams & Co Ltd v Australian Guarantee Corp (NZ) Ltd (1994) 2 NZ ConvC
191,873 (CA). The principle that one party may contractually bind itself to pay the others full solicitor/client costs is established: ANZ Banking Group (NZ) Ltd v Gibson [1986] 1
NZLR 556 (CA). The Court of Appeal in Beecher v Mills
[1993] MCLR 19 (CA) stated:
“ … In the case of a contract [giving an indemnity for costs] it must in the end be a matter of determining what recovery is expressly or impliedly intended. In principle, anything less than a full indemnity for costs properly incurred must leave the indemnitee with part of the liability for which the indemnifier is prima facie responsible (Simpson and Miller v British Industries Trust Ltd (1923) 39 TLR 286, 289). In the absence of a contrary indication it is not to be assumed that the parties intended such a result. Nor can there ordinarily be any room for the exercise of a judicial discretion to order less costs and thereby erode the contractual protection the
indemnity was intended to provide. A contractual obligation of that kind is enforceable unless contrary to public policy and, as in ANZ Banking Group (NZ) Ltd … , we are unable to see how requiring the Beechers in this case to meet all costs (calculated on a solicitor/client basis) properly incurred by Mr Mills in relation to the performance of the indemnity under cl 20 could be said to impede the administration of justice or otherwise be contrary to any discernible public policy considerations. ”
Thus, where the entitlement to indemnity costs is contractual and the Court is exercising its power under r 14.6(4)(e), the position is distinctly different from orders under either of r
14.6(4)(a) or (b).
c. Assessing whether the indemnity costs claimed under a contract are reasonable involves the Court making an objective assessment of:
(a) what tasks attract a costs indemnity on a proper construction of the contract;
(b)whether the tasks undertaken were those contemplated in the contract;
(c) whether the steps undertaken were reasonably necessary in pursuance of those tasks;
(d)whether the rate at which the steps were charged was reasonable having regard to the principles normally applicable to solicitor/client costs; and
(e) whether any other principles drawn from the general law of contract would in whole or in part deny the claimant its prima facie right to judgment.
[20] Contracts providing for awards of indemnity costs are to be interpreted in the same way as other contracts are interpreted. In Watson & Son Limited v Active Manuka Honey Association [2009] NZCA 595 the Court of Appeal stated at [21] and [35]:
A number of cases were cited to us in relation to indemnity clauses of this type but the result inevitably depends upon the true interpretation of the provision at issue and its application to the circumstances of the case. We agree with Panckhurst J that a provision of this type is to be interpreted upon ordinary principles of construction which require consideration of the language used in the context of the agreement as a whole in its factual matrix.
...
It is clear in principle and on authority that once it is established that the indemnity is applicable in the circumstances and that properly construed it includes solicitor-client costs, no discretion remains available other than on public policy grounds or as part of an assessment by the Court as to whether the amount of the solicitor-client costs is objectively reasonable. (emphasis added)
Analysis
[21] In this case, of the two interpretations advanced, neither interpretation is clearly more correct than the other.
[22] On the one hand, clause 1 is very broadly drafted (“All…costs…relating to, incidental to or consequent upon the Proceedings whether arising directly or indirectly out of the Proceedings”), which supports the Official Assignee’s argument that the indemnity covers costs incurred in opposing the s 86 appeal.
[23] Furthermore, as the Official Assignee points out, Haines was aware of the fact that the Official Assignee was insisting on exclusive control over the Spearhead claim, and that Haines would be liable to pay for the full costs nonetheless. In the email from Nick Carter (of Haines) to Mohammed Khan (of the Official Assignee) of 23 February 2011 (Exhibit R of the affidavit of Mohammed Khan), Mr Carter asks:
How is it reasonable for you to insist on [Haines] paying in full for the proceedings but demanding that it has no control over them?
Gareth Neil, for the Official Assignee, replied stating that:
I see that it was noted in prior email correspondence that as the deed is worded the Official Assignee would be able to continue the litigation against Ms Jamieson’s related trusts against [Haines’] wishes and continue to seek payment from it... we could perhaps address that with a clause to the effect that if litigation reaches a point where [Haines] no longer wishes to see it continued that [Haines] will notify the Official Assignee of the same, the Official Assignee will endeavour to extricate himself from the litigation for whatever monetary sum can be attained...and if such a settlement cannot be obtained he will simply discontinue the proceedings and [Haines] will be required to make payment pursuant to the indemnity of any costs award that follows.
No such clause was ultimately inserted into the indemnity. Nonetheless, this correspondence can be understood to suggest that Haines was aware that its liability
to pay extended to any costs resulting from any decision made by the
Official Assignee.
[24] On the other hand, Mr Carter’s email could also be used to demonstrate a lack of intention on the part of Haines for the indemnity to have such an all- encompassing scope.
[25] Therefore, I consider that these communications fall under the category of statements of subjective intention that are not helpful in determining the objective meaning of contracts. As Tipping J stated in Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444 at [19]:
Evidence is not relevant if it does no more than tend to prove what individual parties subjectively intended or understood their words to mean, or what their negotiating stance was at any particular time.
[26] The last email in the chain is potentially more helpful to understanding what the parties would have objectively understood the words of the indemnity to mean, because it was a clear statement of fact that does not appear to have been challenged by Haines. This was an email from Pete Seufatu, for the Official Assignee, to Haines (Exhibit R) in which Mr Seufatu stated:
When the Official Assignee seeks funding he prepares an indemnity for the creditor funding the action. The conditions of the indemnity seek to protect the Official Assignee from any future claims that can possibly be brought against him. Unfortunately these conditions cannot be adjusted. (emphasis added)
[27] Returning to the wording of the indemnity, along with the extensive language of clause 1, clause 4 can also be seen to support the Official Assignee’s interpretation. It states that:
The [Official Assignee] will retain full control of the administration of the Estate, the Proceedings and any ancillary matters at all times. As such, the Official Assignee may make any decision he deems appropriate in the circumstances, including but not limited to issuing notices or proceedings, continuing, discontinuing or settling the Proceedings. (emphasis added)
[28] Clause 4 arguably adds further weight to the argument that any costs arising out of a discontinuation of the Spearhead claim, including an appeal against that decision, was intended to be covered by the indemnity.
[29] However, the case for Haines’ interpretation is also persuasive. There is a significant difference between costs arising out of a discontinuation of the Spearhead claim, and those arising out of a separate proceeding brought by Haines appealing against the decision to discontinue. Whilst the former was clearly contemplated to fall under the indemnity, there is no explicit indication that the latter costs were as well. There are also positive reasons to find that they were not included.
[30] First, the Official Assignee’s interpretation would lead to the result that, if Haines had been successful in its appeal against the Official Assignee’s decision to discontinue the Spearhead claim, Haines would nevertheless have been liable under the indemnity to pay for the Official Assignee’s costs on the appeal. Secondly, although at first glance the language of clause 1 appears expansive enough to encompass these costs, I do not think that overall the wording of the indemnity can be said to support the Official Assignee’s interpretation over Haines’. A literal reading of “relating to, incidental to or consequent upon the Proceedings” does not provide a clear answer as to whether appeal costs of a discrete proceeding like a s 86 appeal are included. The words “whether arising directly or indirectly out of the Proceedings” arguably support Haines’ interpretation. The appeal costs did not arise out of the claim against the Spearhead Trust; they arose out of the proceedings brought by the Haines against the Official Assignee, by a separate proceeding. Obviously there would have been no s 86 appeal if it were not for the fact the Spearhead claim was commenced and later discontinued, but otherwise the two sets of proceedings were unconnected.
[31] I accept the purpose of the indemnity was “to protect Official Assignee” from any claims that could possibly be brought against him, as was stated in the Official Assignee’s letter. However, I consider that this must be understood to mean no more than he would be protected from claims that could arise out of the decision to commence the Spearhead claim, as well as the consequences of later discontinuing that claim.
[32] The s 86 appeal is a consequence of the Insolvency Act 1967 allowing persons in Haines’ position to challenge decisions of the Official Assignee that affect them. The connection between the incurring of costs in this context and the bringing
of the Spearhead claim seems to me to be too tenuous to bring a claim for costs in the s 86 proceeding within the scope of clause 1 of the indemnity. Furthermore, the Official Assignee is responsible for drafting the indemnity. He was only prepared to make a claim against the Spearhead if Haines signed an indemnity on terms acceptable to the Official Assignee. The Official Assignee would have known his decisions could be subject to a s 86 appeal. In such circumstances, if he wanted the costs incurred by such an appeal to be covered by the indemnity, he could have made express provision for this in the indemnity. In the end, I am satisfied that the indemnity should be interpreted as not to apply to the s 86 proceedings. It follows that the Official Assignee is not entitled to indemnity costs.
[33] Because I have found that the indemnity does not cover an award of costs in the s 86 proceeding, I have not considered the submissions of either Haines or the Official Assignee on the question of the reasonableness of the quantum of indemnity costs that the Official Assignee sought.
[34] I consider that the appropriate award of costs for this proceeding is at category 2B. The Official Assignee is entitled to claim for the steps involved directly in opposing Haines’ case. The Official Assignee also sought to include in his claim for costs from Haines an allowance for the steps he took to oppose the attempt of Spearhead to intervene in the s 86 proceeding. This opposition was not successful. I propose to put this aspect of his costs’ claim to the side for the moment, as its resolution is dependent on the view I form of the claim for costs by Spearhead.
Spearhead claim for costs
[35] Spearhead incurred its costs as a result of making an interlocutory application to intervene and to be heard in the s 86 proceeding. Haines opposes any award of costs to Spearhead. Haines argues that there was no need for Spearhead to take the steps it did to intervene in the proceeding and that the presence of Spearhead only served to prolong the hearing of the s 86 proceeding.
[36] I do not accept Haines’ argument. The application to intervene was
successful and it was not appealed. It follows that there was good reason for
Spearhead to intervene. The general principle is that costs follow the event. There is nothing about this case in my view to detract from the applicaiton of that principle. Accordingly, Spearhead is entitled to the costs it seeks for the interlocutory application. Spearhead was also successful in the substantive hearing. Again there is no reason why costs should not follow the event. Spearhead is also entitled to the costs it seeks for the substantive hearing.
[37] There is an additional reason why I consider that Spearhead is entitled to its costs. This relates to the form in which Haines commenced the s 86 proceedings. Haines relied on Part 20 of the High Court Rules, which is the part that deals with appeals to this Court. Haines did not include Spearhead as a party to the proceeding.
[38] When Spearhead sought to intervene in the s 86 proceeding, this was strenuously opposed by the Official Assignee; Haines also opposed. The question required an urgent hearing, as it arose shortly before the substantive hearing and had the potential to cause the loss of that fixture. On 20 August 2012 I heard from the parties on this issue. The substantive fixture was set down for hearing on 23 August
2012. Everyone acted under urgency. Consequently, their grasp of the relevant law may not have been as good as it otherwise would have been.
[39] During the hearing of the application to intervene, Spearhead relied in part on Part 24 of the High Court Rules, which applies to matters arising under the Insolvency Act 2006. The Official Assignee relied on the language of s 86 of the Insolvency Act 1967 and argued that Spearhead was not a person affected within the meaning of that section. Haines supported the Official Assignee.
[40] On 21 August 2012 I delivered a result ruling in which I allowed Spearhead to intervene and to be heard in the substantive hearing on 23 August 2012. On
22 August 2012, I delivered a reasons judgment setting out why I considered Spearhead should be granted leave (see Haines House Removals Ltd v Jamieson [2012] NZHC 2114).
[41] Also on 22 August 2012 there was a telephone conference in which the
Official Assignee sought an adjournment of the hearing on 23 August 2012 on the
ground that he wanted to appeal my decision to allow Spearhead to intervene and be heard at the hearing on 23 August 2012. The application for an adjournment was opposed by Spearhead. Haines abided the Court’s decision. I refused the adjournment and the hearing on 23 August 2012 proceeded.
[42] At the hearing on 23 August 2012, the Official Assignee, who by then was represented by different counsel, contended that a s 86 proceeding came under Part 18 of the High Court Rules (see rules 18.1(b)(ix) and (xiv)) and that it was wrong to see it as an appeal. Thus, Part 20 of the High Court Rules was not engaged.
[43] In Haines House Removals Ltd v Jamieson and Ors [2013] NZHC 653, I delivered a decision on the s 86 proceeding. The front sheet of the judgment wrongly refers to the hearing date as being 20 August 2012 when it was in fact 23
August 2012. At [27] and [28] I discussed the nature of a s 86 proceeding, including the acknowledgement at the time of the Official Assignee that a s 86 proceeding is not a true appeal.
[44] It is unfortunate that the High Court Rules do not clearly provide for which of the rules applies to a proceeding under s 86. Part 24 of the Rules applies to matters under the Insolvency Act 2006. The overview to that part of the Rules suggests it might apply to s 86 proceedings. On the other hand, Part 18 makes express reference to include proceedings where the relief claimed is solely under identified legislation that includes the Insolvency Act 2006 and its predecessor. A s 86 proceeding fits this description. Given the reference in s 86’s heading to it being an appeal, I can understand how someone might think a s 86 proceeding comes under Part 20 of the Rules.
[45] Once the substantive issues in a s 86 proceeding are before the Court, it might be thought not to matter too much which procedural rule covers the situation. However, there is one respect in which it does matter. That is in regard to the joinder of other parties. This in turn affects liability for costs, especially if a party that should have been joined has to take steps to intervene in a proceeding.
[46] Under Part 18, a party who brings a proceeding affected by Part 18 must under rule 18.4 commence the proceeding by way of statement of claim accompanied by an application for directions. Rule 18.7(3) makes it clear that a plaintiff proceeding under Part 18 must file affidavit evidence to inform the Court of what classes of persons are interested in or may be adversely affected by the relief sought by the plaintiff. Rule 18.6 provides that a person who becomes a defendant by being served under a direction of the Court need not be named as a defendant.
[47] Here, the application under s 86 sought to have the Official Assignee’s decision to discontinue proceedings against Spearhead set aside. Spearhead had an interest in the outcome of the proceeding and was potentially adversely affected by its outcome. It was for these reasons that I allowed Spearhead’s application to intervene.
[48] At the time I heard Spearhead’s application to intervene, no one addressed me on whether there was any irregularity in Spearhead not being a party to the s 86 proceeding, which is why the issue was not considered in the context of that application. It seems to me that if the s 86 proceeding was wrongly commenced and it should have brought in accordance with the requirements of Part 18, then Haines is responsible for omitting to take steps to obtain directions as to service. Had it done so, and had it disclosed Spearhead’s interest to the Court, it is most likely that a direction would have been made to serve Spearhead. Then Spearhead would have been entitled to appear in the proceeding. This would have removed the need for Spearhead to take the steps that it did take. When seen in this way, it would appear that Spearhead was put to unnecessary trouble and expense and so it should be entitled to costs for the steps it took to intervene and for its appearance at the hearing.
[49] Regarding Part 24 of the Rules, Rule 24.3 provides that other Parts of the Rules and general practice of the Court apply unless modified by or inconsistent with the Insolvency Act 2006 or Part 24. Nothing in Part 24 expressly addresses s 86 proceedings but if they were to be dealt with under this provision, the other parts of the rules regarding joinder of defendants would apply.
[50] Part 20 is even more interesting; it is clear from the case law on Part 20 that decision-makers whose decisions are subject to an appeal under Part 20 do not take part in the appeal as a party: see Moonen v Broadcasting Standards Authority (1995)
8 PRNZ 335 (HC). In Portage Licensing Agency v Auckland District Licensing Agency (1997) 10 PRNZ 554 (HC), the Court said that the decision-maker should exercise the right to appear in the appeal sparingly and adopt a role of assisting the Court. In Attorney-General v Howard [2010] NZCA 58, [2011] 1 NZLR 58 the Court of Appeal confirmed that the decision-maker is not a full party to an appeal. I identified other difficulties with Part 20 applying at [28] of Haines House Removals Ltd v Jamieson [2013] NZHC 653. So it would seem that Part 20 cannot be relied on when bringing a s 86 proceeding.
[51] However the matter is looked at, it seems to me that Spearhead was always entitled to be a participant in the s 86 proceeding. Had the proceeding been commenced in a proper manner, and had the Official Assignee initially provided the helpful assistance that he later did on the form of the proceeding, Spearhead would not have had to apply to intervene in circumstances where it faced strong opposition. This is a further reason to find that Spearhead is entitled to the category 2B costs that it seeks.
[52] Regarding Spearhead’s claim for costs for its successful interlocutory application to intervene, given that the strongest opposition came from the Official Assignee, he should share equally in payment of those costs (a sum of $1,194) with Haines.
[53] As regards the costs of appearing at the substantive hearing, I consider that the general principle that costs follow the event leads to Haines as the unsuccessful party being solely responsible for payment of those costs to Spearhead. Thus the balance of the costs sought in Spearhead’s costs’ memoranda (in total $3,482.50) is to be paid by Haines.
[54] Leave is reserved to the parties to return to Court should there be any dispute
between them regarding the arithmetical calculation of the costs’ awards.
Result
[55] The Official Assignee’s application for indemnity costs is refused. Haines is to pay the Official Assignee an award of costs at category 2B but omitting the steps he has claimed for opposing the attempt of Spearhead to intervene in the s 86 proceeding.
[56] Haines is to pay Spearhead category 2B costs relating to steps taken in the substantive hearing ($3,482.50).
[57] Haines and the Official Assignee in equal shares are to pay Spearhead category 2B costs in the sum of $1,194 for the interlocutory application to intervene.
[58] Leave is reserved to the parties to return to Court on the question of the arithmetical calculation of these costs awards.
Duffy J
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