Supreme Court New South Wales

• Medium Neutral Citation: Simmons v Rockdale City Council (No 2) [2014] NSWSC 1275
• Hearing dates: 22 November 2013 and on written submissions
• Decision date: 18 September 2014
• Jurisdiction: Common Law
• Before: Hall J

Decision

(1) The first defendant (the Council) is to pay the plaintiff's costs of the proceedings on the ordinary basis.

(2) The plaintiff is to pay the second defendant's (the Club's) costs of the proceedings on the ordinary basis.

(3) As between the first and second defendants, each party pay their own costs of the cross-claims.

• Catchwords: COSTS - plaintiff commenced proceedings against two defendants - plaintiff successful against only one defendant - successful defendant had previously made an offer of compromise - whether the plaintiff is entitled to a Bullock or Sanderson order in respect of its costs liability to the successful defendant - whether the second defendant is entitled to an order for indemnity costs from the date of its offer of compromise
• Legislation Cited: Civil Liability Act 2005; Civil Procedure Act 2005; Legal Profession Act 2004
• Cases Cited: Almeida v Universal Dye Works Pty Ltd (No 2) [2001] NSWCA 156; Barakat v Bazdarova [2012] NSWCA 140; Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304; Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109; Collins v Clarence Valley Council (No 4) [2013] NSWSC 1735; Council of the City of Liverpool v Turano (No 2) [2009] NSWCA 176; Gould v Vaggelas (1985) 157 CLR 215; Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375; Lackersteen v Jones (No 2) (1988) 93 FLR 442; Leichhardt Municipal Council v Green [2004] NSWCA 341; Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344; Nominal Defendant v Hawkins [2011] NSWCA 93; Nominal Defendant v Swift [2007] NSWCA 56; Noon v Bondi Beach Astra Retirement Village Pty Ltd (No 2) [2010] NSWCA 285; Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368; Roads and Traffic Authority of NSW v Palmer (No 2) [2005] NSWCA 140; Simmons v Rockdale City Council [2013] NSWSC 1431; Singh v Singh (No 2) [2004] NSWSC 225; Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179; Sved v Council of the Municipality of Woollahra (1998) NSW Conv R 55-842; Sydney Attractions Group Pty Ltd v Frederick Schulman (No 3) [2013] NSWSC 1544
• Category: Costs
• Parties: Alex Simmons (Plaintiff); Rockdale City Council (First Defendant); St George Sailing Club (Second Defendant)
• Representation: Counsel: D Campbell SC; J Sheller (Plaintiff); G Watson SC; N Chen (First Defendant); R Perla (Second Defendant); Solicitors: G Walsh & Co (Plaintiff); TressCox Lawyers (First Defendant); Moray & Agnew (Second Defendant)
• File Number(s): 2008/289194

Judgment

1 The plaintiff, Alex Simmons, commenced proceedings by way of Statement of Claim against Rockdale City Council ("the Council") filed on 6 February 2008. An Amended Statement of Claim was filed on 23 March 2011 whereby St George Sailing Club Ltd ("the Club") was joined as second defendant to the proceedings. The proceedings related to an accident that occurred on 11 April 2007 whilst the plaintiff was riding his bicycle through a carpark adjacent to the Club and struck a boom gate that had been closed across a motor vehicle entrance to the carpark. The plaintiff's accident resulted in a below knee amputation of his left leg.

2 The matter was heard over seven days. On 27 September 2013 I delivered the principal judgment in these proceedings: Simmons v Rockdale City Council [2013] NSWSC 1431. An order was made that verdict and judgment be entered in favour of the plaintiff against the Council in the amount of $928,000 and that judgment be entered in favour of the Club. I granted leave to the parties to make an application in respect of costs of the proceedings and other ancillary orders.

3 The proceedings were re-listed on 22 November 2013 for the purposes of hearing the parties on the issues of ancillary orders and costs.

4 Written submissions by Mr Campbell SC and Mr Sheller who appeared on behalf of the plaintiff are dated 22 November 2013 and 11 December 2013. I have also had the benefit of written submissions from Mr Watson SC who appeared on behalf of the Council dated 6 December 2013 together with the affidavit of Nina Alexandra Morgan affirmed on 4 December 2013 and the affidavit of John Scott MacLennan affirmed on 1 November 2010. Written submissions were also received from Mr Perla of counsel who appeared on behalf of the Club dated 22 November 2013 and 29 November 2013.

5 The issues that remain in dispute between the parties are whether the plaintiff is liable to pay the Club's costs and, if so, whether costs should be awarded on an indemnity basis from the date of the Club's offer of compromise and whether the plaintiff is entitled to a Bullock or Sanderson order in respect of his costs liability to the Club.

Procedural History

6 The following procedural matters are noted:

• The plaintiff filed the original Statement of Claim on 6 February 2008.
• An Amended Statement of Claim joining the Club as the second defendant was filed on 23 March 2011.
• The first and second defendants both filed cross-claims against each other on 11 August 2011 claiming contribution and/or indemnity in respect of any damages recovered by the plaintiff.
• The second defendant made an offer of compromise to the plaintiff on 7 February 2012. The second defendant offered that judgment be entered in its favour with each party to pay their own costs. No response was received to the offer.
• The hearing of the proceedings took place on 24 September 2012 to 28 September 2012, 12 October 2012 and 22 November 2012.
• On 26 September 2012 the Club's Further Amended Defence was filed. The Club did not admit that the Council purported to delegate to the Club the opening and closing of the boom gate.
• The Council filed a Third Amended Defence on 19 October 2012 in which it denied it was the legal entity responsible for the opening and closing of the boom gate. The Council further denied it purported to delegate to the Club the opening and closing of the boom gate.

Submissions

Plaintiff's Submissions

(a) Liability to pay the Club's costs on an indemnity basis

7 The plaintiff submitted that as the Club's offer of compromise was made several months prior to the hearing and not repeated, it should be seen as merely a procedural tactic to trigger costs and not a real or genuine offer. The plaintiff contended that the evidence indicated the Club had incurred a minimal amount of costs at the time the offer was made.

8 An offer of compromise, it was noted, must be a real and genuine offer: Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368.

9 It was submitted that the Club's offer was "an invitation to surrender" in circumstances where:

• There was no suggestion that the plaintiff's claim was frivolous or vexatious;
• The surrender involved giving up a very valuable right, as evidenced by the agreement as to quantum;
• The form of the offer meant the plaintiff would have also had to forego the recoverability of the costs incurred in respect of the action against the Club;
• There was a significant body of evidence to support the claim against the Club;
• The cross-claims filed by both defendants of itself justifies the plaintiff believing his claim had reasonable prospects;
• There was no parallel offer open for acceptance from the Council.

10 This position was again restated at the hearing on 22 November 2013:

"CAMPBELL: The position we contend for is the offer that was made was in effect an invitation to a complete capitulation, that is to surrender as the word appears in the Court of Appeal decision. As a consequence it is difficult to categorise the offer as one of compromise." (T 9:22-25)

11 It was noted that there was no suggestion that the plaintiff's "claim was frivolous or vexatious", and that the offer of compromise necessarily meant the plaintiff "would also have to forego costs incurred in relation to his actions against the Club before the making of the offer": T 10:4-7.

12 The plaintiff further contended that the cross-claims issued by the Club and the Council against one another on 11 August 2011 justified the plaintiff building his claim against the Club. The cross-claims were required to be certified as having reasonable prospects of success under the Legal Profession Act 2004: T 10:41-49.

(b) Bullock or Sanderson Order

13 The plaintiff accepted that he is potentially liable to pay the costs of the Club. However, he submitted that if he is found so liable, he should be entitled to a Bullock or Sanderson order from the Council.

14 Mr Campbell SC submitted on behalf of the plaintiff:

"The Council actively informed us that they had, whether it was formal or informal, delegated the authority to operate the gate to the club." (T 17:45-46)

15 Mr Campbell acknowledged that in order to obtain a Bullock or Sanderson order he must demonstrate the following:

(1) It was reasonable to join the Club to the proceedings; and

(2) There was something in the conduct of the Council that makes it fair or reasonable that it should bear the liability for the costs of the Club.

16 In respect of (1) above, the plaintiff submitted it was reasonable for him to sue the Club in circumstances where:

• The Council never accepted any duty in relation to the opening or closing of the boom gate, which was a fundamental issue in the proceedings;
• The Council served statements asserting that it was the Club that was responsible for the opening and closing of the gate;
• The Council did not accept liability in respect of the opening and closing of the gate, before and during the trial;
• The failure to have a system for the opening or closing of the gate lay at the heart of the ultimate findings of liability in the proceedings.

17 The plaintiff noted that the issue of the boom gate opening system was pivotal to the trial. Accordingly, given what was said to have been a finding that the Council had operated on the basis that the control of the boom gate lay with the Club, it was reasonable to sue the Club.

18 With regard to (2) above, the plaintiff submitted that by denying the evidence relating to the opening and closing of the gate, the Council "forced the hand" of the plaintiff to join the Club on the basis that the Club was the party responsible for the opening and closing of the gate. Further, evidence served on behalf of the Council did not suggest a belief by the Council that the Club was not responsible for the opening and closing of the gate.

19 In respect of the affidavit of John Scott MacLennan (solicitor for the Council) affirmed on 1 November 2010, which included observations and contentions as to the viability of the cause of action against the Club, the plaintiff submitted that the Council's reliance on Mr MacLennan's opinion was misplaced.

The Council's Submissions

20 The Council accepted that it is liable for the costs of both the plaintiff and the Club occasioned by costs thrown away as a result of its amendment to its defence at trial, which resulted in an adjournment of the hearing.

21 It, however, opposed the making of a Bullock or Sanderson order on the following bases:

• Prior to the Club being joined to the action the Council made it plain to the plaintiff that it considered a claim against the Club to be weak;
• The Council opposed the amendment to the Statement of Claim to join the Club;
• It was not reasonable for the plaintiff to join the Club;
• There was nothing in the conduct of the Council that makes it fair or reasonable that it should bear any liability for the costs of the Club.

22 It was further submitted that even if a Bullock or Sanderson order is made, there is no basis for the Council to be ordered to pay the Club's costs on an indemnity basis: no offers were ever served on the Council and it is not suggested that there is anything that would justify such an order independently of one.

23 The Council noted the plaintiff's application was based on the assertion that it actively informed the plaintiff that the Council had either formally or informally delegated the authority to operate the gate to the Club. The Council observed that there was no evidence of correspondence to support that assertion.

24 The Council submitted that it was not reasonable for the plaintiff to have joined the Club for the following reasons:

• The evidence of the Council established that there was an "arrangement" between it and the Club in connection with the gate. This was a factual matter that was not disputed by the parties.
• The Council decided against joining the Club on the basis the claim was manifestly weak and it was "extremely unlikely that the Club could be found liable for the plaintiff's accident".
• The Council made known to the plaintiff its position on the absence of liability in the Club prior to the Club being joined.
• Aside from the issuing of a subpoena in 2008, there was no evidence the plaintiff did anything to investigate the factual position in relation to the opening and closing of the gate.
• The plaintiff's claim against the Club failed "emphatically" at all levels.

25 It was further argued that there was nothing in the conduct of the Council that would justify the making of a Bullock or Sanderson order. To the contrary, it was submitted that the Council was actively telling the plaintiff that there was no liability in the Club and, to the extent anything was said, that there was no other party potentially liable. Accordingly, it was submitted that this was not a case where the Council was "telling the plaintiff in one way or another that it should look to the successful defendant for its remedy": citing Sved v Council of the Municipality of Woollahra (1998) NSW Conv R 55-842 at 55,605 - 55,606.

26 In support of this argument, the Council relied upon the affidavit of Nina Alexandra Morgan, solicitor, affirmed on 4 December 2013 and the affidavit of John Scott MacLennan affirmed on 1 November 2010.

27 Ms Morgan's affidavit outlines the history of the proceedings, including the plaintiff's application to join the Club, evidence regarding the Club's involvement with the operation of the gate, the cross-claims, settlement negotiations between the plaintiff and the Club, as well as amended pleadings. Annexed to Ms Morgan's affidavit are copies of correspondence between the parties, correspondence with her client, and documents provided under a subpoena and notices to produce issued by the plaintiff.

28 Ms Morgan stated in her affidavit that "at no stage did Council inform the plaintiff that the Club had any responsibility for the plaintiff's accident or that the plaintiff should join the Club as a defendant to the proceedings": at [3].

29 In Mr MacLennan's affidavit it was stated that the Council had opposed the joinder of the Club on the basis that "the plaintiff's claim against the Club is so weak as not to warrant the joinder": at [11]. This opposition was based upon two matters:

"(a) First, as solicitor for Rockdale, I investigated the potential involvement of other parties, so that cross claims seeking contribution could be considered. I investigated the role of St George Sailing Club, and formed the opinion (apparently similar to the opinion of the plaintiff's original senior counsel) that it is extremely unlikely that the Club could be found liable for the plaintiff's accident;

(b) Second, I draw the Court's attention to the way in which the plaintiff proposes to plead his case against St George Sailing Club. The only basis for a claim against the Club is that it had 'the care, control and management' and 'responsibility for the opening and closing' of the gate. I do not believe that these allegations can provide the basis for a successful claim. The 'negligence' particularised seems to bear out the difficulty in pleading a realistic claim against the Club." (at [53])

30 The Council additionally submitted that the factual position concerning the opening and closing of the gate was clear from various documents produced under subpoena to the Court on 11 September 2008. The fact that the Council defended the matter and denied liability does not alter the position. In this respect, Roads and Traffic Authority of NSW v Palmer (No 2) [2005] NSWCA 140 was cited:

"It may have been reasonable for the plaintiff in her own interests to join the RTA as a defendant, but I do not think that there was conduct which made it just that the Council, and still less Pioneer, pay the costs payable by the plaintiff to the RTA. Neither the Council nor Pioneer created any circumstances of uncertainty as to who was the proper defendant. They were not obliged to concede liability or make admissions in order to remove the RTA from contention, there being a respectable argument that the RTA was liable, and there is no reason to think that short of effective capitulation by the Council and Pioneer the plaintiff would not have maintained her claim against the RTA. In my opinion, conduct has not been shown such as to make it fair to impose on the Council and Pioneer liability for the costs of the RTA." (at [35])

31 The Council further submitted that the issuing of a cross-claim is itself insufficient to justify the making of a Bullock or Sanderson order, and noted the following matters:

• The issuing of cross-claims was initiated by the Club;
• The issuing of the cross-claims occurred well after the plaintiff's stated intent of joining the Club; and
• Neither defendant made submissions on the cross-claims at the trial.

32 It was further argued that "this is a stronger case than Bostik" (that is, Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304) on the basis that the Council made plain its position concerning the absence of liability in the Club and it therefore cannot be concluded that there was an inducement of any kind.

The Club's Submissions

(a) Entitlement to costs on an indemnity basis

33 As a consequence of the plaintiff not accepting the offer of compromise dated 7 February 2012, the Club seeks an order that the plaintiff pay its costs of the proceedings on the ordinary basis up to and including 7 February 2012 and on an indemnity basis from 8 February 2012.

34 The affidavit of Geoffrey Thomas Connellan affirmed 12 November 2013 was read on the application.

35 In its written submissions dated 22 November 2013, the Club submitted that the filing of cross-claims was not a circumstance relevant to the reasonableness of the rejection of the offer, as they were a distinct issue that did not involve the plaintiff.

36 The Club further submitted that Mr Walsh's affidavit sworn on 26 October 2010, does not provide a basis upon which the court would determine the plaintiff's rejection of the offer was reasonable and that the ordinary consequence of an offer of compromise should not be applied.

37 It was contended that the plaintiff was on notice that the plaintiff was at risk of not succeeding against the Club if further evidence failed to establish a more formal delegation of responsibility in respect of the gate.

38 The submission was that the plaintiff cannot establish on any view of the evidence that it was reasonable that he reject the offer, particularly given that by the time the offer was made the plaintiff was well appraised of all the evidence and factual material that was to be put before the Court.

39 The Club further noted that the caselaw authorities indicate that despite this, "something more" than acting reasonably must be established in order to displace the usual rules in relation to offers of compromise. The Club submitted this had not been made out on the evidence before the Court.

40 In the Club's supplementary submissions on the question of indemnity costs dated 29 November 2013, the Club again argued that the onus was on the plaintiff to justify any departure from the ordinary rules in relation to offers of compromise and that the onus had not been satisfied on the plaintiff's evidence on the present application.

41 The Club also replied to the plaintiff's submissions that its offer was not a genuine one. It was submitted that the analysis of Beech-Jones J in Collins v Clarence Valley Council (No 4) [2013] NSWSC 1735 was analogous to the present proceedings:

"[5]...In Dean v Stockland Property Management Pty Ltd (No 2) [2010] NSWCA 141 at [14] the Court of Appeal summarised the authorities concerning this proposition so far as they apply to offers of compromise:

"An offer of compromise will only justify costs on an indemnity basis if it has a real element of compromise (Leichhardt Municipal Council v Green [2004] NSWCA 341; Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375). An offer which does not involve a real and genuine element of compromise will not be taken into account in relation to costs under the Rules (The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120; (2006) 67 NSWLR 706). It has been said that indemnity costs will not be granted where the offer of compromise is designed simply to trigger the entitlement: for example, Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353 at 355 per Rogers CJ Comm D. An offer of compromise will always be intended to trigger the entitlement. The force of 'simply' is the need for a real element of compromise."

[6] However simply because a defendant proposes a resolution involving the entry of judgment in their favour with no order as to costs does not necessarily mean that the offer has no real element of compromise (Leichhardt Municipal Council v Green [2004] NSWCA 341 at [30] and [36] per Santow JA, with whom Bryson and Stein JJA agreed). Such a conclusion would be inconsistent with UCPR r 20.26(2). Instead the offer must be considered having regard to the circumstances in which it was made (Leichhardt Municipal Council at [27]).

[7] As at 2012 the proceedings had been on foot for two years. Pleadings had been filed and there had been a number of directions hearings. I expect that by that time substantial costs had been incurred by the Council. Further it had pleaded reliance on various provisions of the Civil Liability Act 2002 which represented a formidable hurdle for Dr Collins. Its case would have appeared strong, notwithstanding the poor state of the bridge at the time of Dr Collins' accident. Its offer represented some potential benefit to Dr Collins in terms of avoiding an exposure to a potential liability. In these circumstances, I do not consider its position to be relevantly different to the offer found by Santow JA to be genuine in Leichhardt Municipal Council at [40]."

42 The Club also cited the judgment of Basten JA in Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 at [9]:

"There is authority for the proposition that both an offer of compromise under the rules and an informal offer must involve "a real and genuine element of compromise": The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120; 67 NSWLR 706 at [8]. While this terminology is not entirely apposite, it has been described as "serviceable": Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 at [25] (Spigelman CJ, Beazley and McColl JJA). To characterise an offer by reference to epithets such as "real" or "genuine" adds little to the requirement of compromise, and may imply (wrongly) that the appropriate inquiry is as to the subjective intentions of the offeror: Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19 at [23] (Ipp, McColl and Basten JJA); Evans of Robb Evans & Associates v European Bank Ltd (No 2) [2009] NSWCA 170 at [17]-[18]. As explained by Giles J in Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358 at 368:

'Compromise connotes that a party gives something away. A plaintiff with a strong case, or a plaintiff with a firm belief in the strength of its case, is perfectly entitled to discount its claim by only a dollar, but it does not in any real sense give anything away, and I do not think that it can claim to have placed itself in a more favourable position in relation to costs unless it does so.'"

43 It was contended that the Club's offer was distinguishable from cases of "walk-away offers" such as Singh v Singh (No 2) [2004] NSWSC 225 in which the plaintiff was also asked to also bear the defendant's costs to date.

44 The Club refuted the plaintiff's suggestion that it had incurred a minimal level of costs at the date of the offer of compromise, resulting from being involved in the proceedings for 11 months as at the date of the offer, which led to reviewing voluminous lay and expert evidence that had been served by the plaintiff and the Council, and drafting and filing various pleadings.

45 In respect of whether the plaintiff's rejection of the offer was reasonable, the Club cited the factors enunciated in Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298 as factors relevant to determining whether the rejection of an offer is reasonable:

"(a) the stage of the proceeding at which the offer was received;

(b) the time allowed to the offeree to consider the offer;

(c) the extent of the compromise offered;

(d) the offeree's prospects of success, assessed as at the date of the offer;

(e) the clarity with which the terms of the offer were expressed;

(f) whether the offer foreshadowed an application for an indemnity costs in the event of the offeree's rejecting it." (at [25])

46 The Club addressed each of these elements in turn in its written submissions. I summarise the submissions on each factor as follows:

(a) The offer was made seven months prior to the hearing but 11 months after being joined to the proceedings. This was "significantly" after the time the plaintiff had available to him all of the substantive evidence.

(b) The offer was open for 28 days in accordance with the Uniform Civil Procedure Rules 2005 ("UCPR").

(c) The compromise was significant as it provided for each party to pay its own costs. This type of compromise is specifically contemplated by UCPR r 20.26(3)(a)(i).

(d) As at October 2010 the plaintiff knew that if further evidence to establish there had been a formal delegation of the opening of the gate to the Club was not forthcoming, his claim against the Club may not be maintainable. By the time the offer was made, the plaintiff ought to have been aware that his claim against the Club was liable to fail. This was deposed to in Mr MacLennan's affidavit affirmed 1 November 2010.

(e) The plaintiff does not raise any suggestion regarding the clarity of the offer.

(f) Although there was no specific foreshadowing of an application for indemnity costs in the offer, it is expressly provided for in the UCPR. The plaintiff ought to be taken as knowing the provisions of the UCPR.

47 Accordingly, the Club submitted that its offer was genuine and that the plaintiff acted unreasonably in refusing to accept the offer. The authorities, specifically, Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2), favour a determination that the usual costs consequences should be applied.

Consideration

48 Section 98 of the Civil Procedure Act 2005 confers a discretionary power in determining costs. That power, of course, is one to be exercised on a principled basis having regard to all the circumstances of the case.

(1) Whether the Club's costs should be payable on the ordinary or an indemnity basis

49 The second defendant sent an Offer of Compromise to the plaintiff on 7 February 2012 which conformed with UCPR r 20.26.

50 Accordingly, it was argued that the second defendant was entitled to an award of costs in accordance with UCPR r 42.15A. As at the date the offer was made, r 42.15A was in the following terms:

"(1) This rule applies if the offer concerned is made by the defendant, but not accepted by the plaintiff, and the defendant obtains an order or judgment on the claim concerned as favourable to the defendant, or more favourable to the defendant, than the terms of the offer.

(2) Unless the court orders otherwise:

(a) the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, to be assessed on the ordinary basis, up to the time from which the defendant becomes entitled to costs under paragraph (b), and

(b) the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, assessed on an indemnity basis:

(i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and

(ii) if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made."

(a) Principles

51 In accordance with the Uniform Civil Procedure Rules, an offer of compromise creates a prima facie entitlement to indemnity costs, as to which the offeree must establish a basis for some other order: Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109 at [33]. It has been stated that exceptional circumstances are required and it is insufficient merely to show that the offeree acted reasonably in refusing the offer: Nominal Defendant v Hawkins [2011] NSWCA 93 at [56].

52 However, the Court of Appeal in Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 considered that:

"...Rules 42.14, 42.15 and 42.15A are in different terms. They provide that, when the relevant costs rule is engaged, a party is entitled to indemnity costs from a specified time (usually one day after an offer of compromise is made), "unless the court orders otherwise" (emphasis added). The relevant provisions of these rules do not specify that exceptional circumstances or the avoidance of substantial injustice must be established before the court will make a different order to the prima facie order for which the rules provide and, in our opinion, the rule should not be so construed. Rather, the discretion is one that has to be exercised having regard to all the circumstances of the case." (at [15]) (emphasis added)

53 In Sydney Attractions Group Pty Ltd v Frederick Schulman (No 3) [2013] NSWSC 1544, Sackar J at [31] observed:

"Although it is suggested in a number of authorities that there must be "exceptional circumstances" before a court may order otherwise, I think the use of that expression in the earlier authorities is simply to recognise that there does exist a general rule providing for indemnity cost consequences, and therefore "the case needs in some way to be exceptional ... because the general rule is that provided for in the rule itself" (Kirby P in Hillier v Sheather at 422). In my view, the words "exceptional circumstances" used in the earlier cases indicate that there must be some reason or ground for a court to make an order departing from the general indemnity cost consequences, but those words do not suggest that the case must be extraordinary, nor do they suggest a particular degree of difficulty in persuading a court to "order otherwise"."

(b) Reasonableness in Not Accepting the Offer of Compromise

54 Accordingly, the reasonableness of a party (offeree) refusing an offer remains an important feature in determining whether an order for indemnity costs should be made. The reasonableness must be assessed as at the date of the offer and without the benefit of hindsight: Barakat v Bazdarova [2012] NSWCA 140 at [51]. This matter was also considered by the Court of Appeal in Noon v Bondi Beach Astra Retirement Village Pty Ltd (No 2) [2010] NSWCA 285 at [11]:

"The appellants' submissions amounted to little more than that their ultimate success meant that it was unreasonable for the respondents not to have accepted the offer. That is incorrect reasoning. Reasonableness is not to be determined with hindsight; rather, the strength or otherwise of the appellants' claim should be considered prospectively as at the time of the offer (for example, Gretton v Commonwealth of Australia [2007] NSWSC 149 at [24]). A claimant can reasonably seek to have a claim determined in court, although ultimately it fails, rather than accept an offer of much less than that which success would bring."

55 As noted earlier, the Victorian Court of Appeal in Hazeldene's Chicken Farm v Victorian WorkCover Authority (No 2) identified six factors relevant to determining whether an offeree has reasonably rejected an offer. These factors have subsequently been endorsed, in particular, by the New South Wales Court of Appeal: See, for example, Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344.

56 In accordance with dicta in Regency Media Pty Ltd v AAV Australia Pty Ltd, extracted above, it is essential that regard be had to all the circumstances of the case in determining the issue arising on a claim for indemnity costs, including the failure of a plaintiff to accept an Offer of Compromise.

57 As observed above, reference was made in the submissions of the Council and the Club to the fact that the Council had discovered a significant number of documents, including documents relating to the "arrangement" between the Club and the Council concerning the operation of the boom gate. Additionally, by the date of the Offer of Compromise the Council had served evidentiary statements. However, be that as it may, as at the date of the offer the issues concerning the "arrangement", in particular the nature and extent of the Club's responsibility as to the operation of the boom gate, was far from clear.

58 In this respect there were two matters to be noted concerning the "arrangement". The first concerns the question as to whether the terms for such an arrangement between the Council and the Club had been clearly established. The second is the "arrangement" in its operation, or what might be referred to as the custom and practice concerning the operation of the gate.

59 As to the first, the Council and the Club failed to conclude in any final form the scope, purpose and responsibility of the Club under the "arrangement". The evidence at trial established that the Club failed to reply or respond to Mr Lay's letter relating to the terms for the proposed "arrangement" (see paragraphs [129]-[140] of the principal judgment) and no express or formal agreement was ever concluded in that respect. Hence, as discussed in the principal judgment, a somewhat loose and informal arrangement came into being. As also discussed in the principal judgment, a potentially unsafe system for the boom gate's operation resulted from such an arrangement: see [412]-[414] of the principal judgment.

60 The assessment as at the date of the Offer of Compromise as to whether there was a basis upon which the Club could be liable was not, in my opinion, one that fell to be determined, as the submissions for the Council on costs suggest, simply upon the basis that it should have been apparent to the plaintiff's advisers that there had been no formal or actual "delegation" by the Council of its responsibility for the boom gate and its operation. The loose and informal "arrangement" to which I have referred to an extent obscured, rather than made plain, exactly what the Council and the Club had discussed and accepted to be their respective roles and responsibilities, in particular, whether there were separate or shared responsibilities in that respect.

61 As to the second of the two matters to which I have referred at [58] above, if there was a "practice" that had come into operation concerning the boom gate, neither the Council's discovered documents nor its evidentiary statements established with specificity its nature or extent save for the fact that prior to the plaintiff's accident, the Club's cleaner usually opened the gate of a morning and that on certain occasions the cleaner had failed to do so.

62 The discretion as to the making of an indemnity costs order in favour of the Club requires in its proper exercise and as a matter of fairness to bring to account all the circumstances of the case, including those to which I have referred above: Regency Media Pty Ltd v AAV Australia Pty Ltd, supra.

63 Given the lack of clarity on the material available to the plaintiff as to the arrangement between the Council and the Club, I do not consider the plaintiff's failure to accept the Offer of Compromise can be regarded as unreasonable.

(c) No Evidence as to the Amount of the Club's Costs as at the making of the Offer of Compromise

64 I turn to the fact that although the Offer of Compromise was made on the basis that the Club offered to pay its own costs, there was no quantification indicated as to what the value or amount of those costs would be at the time of the offer.

65 Whilst the Club had, of course, incurred costs up to the date of the making of the offer (a period of approximately 11 months), there is no material as to the likely extent or amount of the costs actually incurred by it in that period.

66 Apart from the matters referred to in [11] of the Club's written submissions dated 29 November 2013, and the costs incurred in the plaintiff's application to join the Club as a defendant, there is no evidence of any other interlocutory proceedings between the plaintiff and the Club up to the date of the Offer of Compromise. This is not surprising as the Council had retained and briefed expert witnesses as it was effectively the defendant that took the active or lead role in defence of the proceedings.

67 Accordingly, there is no basis upon which any sound assessment can be made as to the likely level of the Club's costs as at the date of the offer. A somewhat similar position arose in Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375 concerning a Calderbank offer wherein the Court observed:

"5. ... Whilst the Second Respondent had no doubt incurred some costs by 11 January 2005, it is difficult to know whether the sum would have been significant in relation to the costs of the litigation as a whole, or in relation to any possible judgment which the Appellant might obtain, if successful. Either the Appellant's case against the Second Respondent was hopeless and should not have been pursued at all, or it was not. The "Calderbank letter" does not, by itself, justify any variation from the usual order."

(d) Absence of Information to Support the Club's Offer Requiring Capitulation by the Plaintiff

68 The evidence established that the Council in opposing the plaintiff's application to join the Club, through its solicitor, had pointed out to the plaintiff's solicitor that, in its assessment, the plaintiff had little prospect of establishing liability in the Club. However, the Offer of Compromise by the Club was not accompanied by any reference to any specific matters relied upon by it which indicated or established that the plaintiff would have difficulty in establishing liability against the Club. In other words, neither the Council nor the Club provided what has been referred to as "a reasoned suggestion of capitulation". In Leichhardt Municipal Council v Green [2004] NSWCA 341, the Council made an offer of settlement in terms of a "verdict in favour of the Council with each party to bear its own costs". Santow JA, at [30], observed:

"... The fact of the matter is that the Council was not really compromising its position at all - it maintained it was not liable and that the law clearly justified the rightness of its cause. Its attitude was not one of compromise in the sense of strict give and take, but it was made in a bona fide attitude designed to reach settlement, which accords with the policy of the law in encouraging early termination of litigation. It is certainly arguable that its letter was not a mere demand for capitulation; it was a reasoned suggestion of capitulation which alerted the plaintiff to what the Council saw as the deficiencies in the plaintiff's case. Given the position in which the Council as defendant found itself (see above), it is difficult in the circumstances to conceive what it otherwise could have done by way of affirmative step towards ending litigation (aside from 'buying off' the plaintiff)." (emphasis added)

69 In all the circumstances of the case, and taking into account the matters in (a) to (d) above whether considered severally or jointly, I do not consider that the plaintiff acted unreasonably in not accepting the Club's Offer of Compromise within the time specified in the offer. I have accordingly concluded that a proper exercise of the discretion in this case is that the Club's costs should be payable on the ordinary basis.

(2) Whether a Bullock or Sanderson order should be made

70 It is well established that a Bullock or Sanderson order should only be made where, in the circumstances, it was reasonable and proper for the plaintiff to join the successful defendant and where there is something in the conduct of the unsuccessful defendant that makes it appropriate to exercise the discretion.

71 The High Court considered the principles regarding the making of Bullock or Sanderson orders in Gould v Vaggelas (1985) 157 CLR 215, with Gibbs CJ finding that:

"...the mere fact that the joinder of two defendants was reasonable does not mean that the unsuccessful defendant should be ordered to pay, directly or indirectly, the costs of the successful defendant. Obviously a judge should make a Bullock Order only if he considers it just that the costs of the successful defendant should be borne by the unsuccessful defendant, and, if nothing that the unsuccessful defendant has said or done has led the plaintiff to sue the other defendant, who ultimately was held not to be liable, it is difficult to see any reason why the unsuccessful defendant should be required to pay for the plaintiff's error or overcaution." (at 229-230)

72 It was further observed by Wilson J (with whom Murphy J agreed on this point) that it is permissible to make such an order "...where the costs in question have been reasonably and properly incurred by the plaintiff and between him and the unsuccessful defendant" (at 247).

73 In this respect it was also noted by Brennan J that a Bullock order can be made:

"...in an action brought against two or more defendants for substantially the same damages only if the conduct of the unsuccessful defendant in relation to the plaintiff's claim against showed that the joinder of the successful defendant was reasonable and proper to ensure recovery of the damages sought." (at 260)

74 These principles were summarised by the Court of Appeal in Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179, citing Lackersteen v Jones (No 2) (1988) 93 FLR 442, as follows:

"1. It must be seen to have been reasonable and proper for the plaintiff to have sued the successful defendant.

2. The causes of action against two or more defendants need not be the same but they must be substantially connected or dependent the one on the other.

3. While it is essential to find that the plaintiff has acted reasonably and properly that alone is not sufficient. The court must find something in the conduct of the unsuccessful defendant which makes it a proper exercise of discretion.

4. Finally, in considering whether to make such an order, the court should, in the exercise of its discretion balance overall two considerations of policy: the first, that an unnecessary multiplicity of actions should not be forced on litigants, so that a plaintiff who acts reasonably in joining two or more defendants should not be penalised or lose the fruits of his victory in costs on the basis that he should have either elected or taken separate actions; secondly, that an unsuccessful defendant should not have to pay more than one set of costs merely because he is unsuccessful." (at [128])

75 This was similarly endorsed by the Court of Appeal in Council of the City of Liverpool v Turano (No 2) [2009] NSWCA 176 at [15]:

"In determining whether it is fair to make such an order, two matters are usually considered to be relevant. First, it must have been reasonable for the plaintiff to have brought the proceedings against the successful defendant: see Gould v Vaggelas [1985] HCA 85; (1985) 157 CLR 215 per Gibbs CJ (at 230); Wilson J (Murphy J agreeing) (at 247); Brennan J (at 260); Lackersteen v Jones (No 2) (1988) 93 FLR 442 (at 449); Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179; (2000) NSWCCR 417 (at [128]) per Mason P (Stein and Heydon JJA agreeing). Secondly, there must be some conduct on the part of the unsuccessful defendant which would make it fair to impose liability on it for the costs of the successful defendant: Gould v Vaggelas (at 230; 247 and 260)."

(a) Was it reasonable for the Plaintiff to sue the successful defendant, the Club?

76 In Nominal Defendant v Swift [2007] NSWCA 56 a plaintiff injured in a road accident sued both the council and a nominal defendant. Although the plaintiff was successful against both parties, on appeal the judgment against the council was set aside. Notwithstanding, the Court of Appeal made a Bullock order against the nominal defendant on the basis that:

"...the respondent was justified, even prompted, in bringing proceedings against the Council, by reason of the Nominal Defendant denying liability as it did dispute, inter alia, that it was an 'unidentified vehicle'. That action made inevitable the joining of the Council by the respondent." (at [99])

77 The pleaded allegation and the issues at trial involved, as far as the Council and the Club were concerned, two potentially overlapping bases for liability in negligence but which related to the same activities/functions concerning the operation of the boom gate. In other words, whilst there were discrete factual issues peculiar to the position of the Club and that of the Council in relation to the delegation of the boom gate function and its operation, in particular as to the "control" of its operation, knowledge of the daily recreational use of the cycleway, the discretionary basis permitted to the Club as to the opening and closing times for the boom gate, there remained a significant overlap between their respective positions on such matters. In summary, whilst vis-à-vis the Council and the Club there were some relevant factual matters in common, there were also separate aspects concerning each including defences raised by the Council under the Civil Liability Act 2005.

78 When consideration is given to the pleaded case against the Council and the Club and the matters to which I have just referred in the previous paragraph, the issue as to whether there was a factual foundation for a finding of breach of duty by the Club was not, as earlier discussed, entirely clear. The plaintiff, in my assessment, was not faced with a situation whereby discovered documents and evidentiary statements indicated that the Club could not have any potential liability.

79 In the circumstances I am of the opinion that it was reasonable for the plaintiff to have sued the Club.

(b) The conduct of the unsuccessful defendant, the Council

80 In respect of the Council's conduct, the Court of Appeal considered in Bostik Australia Pty Ltd v Liddiard (No 2), supra, at [29]:

"The requirement that a party's conduct is relevant to determining whether a Sanderson order should be made is not a requirement that the party engage in misconduct. Rather, it is whether, given its conduct, it is fair to impose such an order on it."

81 The issue as to the conduct of the unsuccessful defendant (in these proceedings, the Council) is a matter, as discussed above, that is material in determining whether to make a Bullock or Sanderson order was considered by Priestley JA and Santow AJA (as his Honour then was) in Almeida v Universal Dye Works Pty Ltd (No 2) [2001] NSWCA 156. The considerations in that case are instructive.

82 The analyses in that case focused upon observations made in Sved v Council of the Municipality of Woollahra (1998) NSW Conv R 55-842 at 56,605. In that case, Giles J (as his Honour then was) observed that:

"... the conduct of the unsuccessful defendant must have been such as to make it fair to impose some liability on it for the costs of the successful defendant, or that the conduct of the unsuccessful defendant must show that the joinder of the successful defendant was reasonable and proper to ensure recovery of the damages sought." (emphasis added)

83 His Honour also observed:

"...The difference in formulations is probably more apparent than real, as reasonableness as between the plaintiff and the unsuccessful defendant will normally be demonstrated by some conduct of the unsuccessful defendant which made it proper that the successful defendant be joined or that the unsuccessful defendant should bear the costs of the successful defendant. Such conduct was found in Lackersteen v Jones (No 2) in the successful defendant denying the authority of its agent whereby the plaintiff joined the agent who became the successful defendant ..."

84 In Almeida v Universal Dye Works Pty Ltd (No 2), Priestley JA examined the question of "conduct" that is relevant to the making of a Bullock or Sanderson order. His Honour took a broad view and stated:

"... In my view any conduct by the defendant or state of affairs in which the defendant is an integral part which makes it fair and reasonable for other parties to be joined as defendants will be relevant to deciding on fair costs orders ..." (at [8])

85 In that case it was noted that the plaintiff faced the task of proving who had been the occupier of the factory roof in question, either in an undefined sense or in a statutory sense. There was doubt as to the identity of the occupier and hence additional parties were joined. Priestley JA further observed:

"... the questions of occupation and whether Universal was the head contractor were put in issue by Universal. This alone would in my opinion have been sufficient conduct on the part of Universal to warrant the making of the orders against it which Mrs Almeida now seeks." (at [13])

86 In his judgment, Santow AJA observed:

"[32] In order for a Bullock order to be made in favour of a plaintiff against an unsuccessful defendant, the conduct of that defendant must have been such as to make it fair, as between plaintiff and unsuccessful defendant, to impose some liability on it for the costs of the successful defendant; see Gould v Vaggelas (1984) 157 CLR 215 per Gibbs CJ at 565-6. Brennan J (at 579) formulated the test in these terms: 'the conduct of the unsuccessful defendant in relation to the plaintiff's claim against him showed that the joinder of the successful defendant was reasonable and proper to ensure recovery of the damages sought'. This formulation requires not only fairness in the sense of what is proper, but also reasonableness. It focuses on the joinder of the successful defendant.

[33] However, I do not understand that focus on joinder excludes from consideration relevant conduct pre-dating joinder. This is so long as that conduct is relevant to the fairness, or reasonableness, of making a cost order against the unsuccessful defendant.

[34] Thus both judgments make clear that it is not enough for the plaintiff to show in the abstract that such an order be reasonable and proper. There must also be some sufficient element in the conduct of the unsuccessful defendant which makes it reasonable and proper to join the successful defendant (Brennan J) or fair for such a cost order to be made against the unsuccessful defendant (Gibbs CJ).

[35] That conduct of the unsuccessful defendant must be 'in relation to the plaintiff's claim against him' (per Brennan J in Gould v Vaggelas (supra) at 579). From that proposition one would expect the conduct ordinarily to relate to the way the unsuccessful defendant conducted its defence, taking account of any claim between the defendants inter se."

87 Later in his judgment, his Honour stated that he would not agree that "conduct" in the sense used by Giles J in Sved v Council of the Municipality of Woollahra has as narrow an ambit as was contended for in that case by Universal. Santow AJA stated that he would consider it relevant in that regard that the unsuccessful defendant's conduct in denying that it was the head contractor would encourage a rational plaintiff, it was observed, to sue the other respondents: at [38].

88 Finally, his Honour observed at [39], that he would differentiate "conduct" from a purely passive state of affairs where the latter merely provides context for appraising any actual conduct that bears on fairness. His Honour observed"

"...In making that distinction, I would acknowledge that conduct can include deliberate acts of omission, so that the distinction between conduct and context is not always clear-cut."

89 Accordingly, in Almeida v Universal Dye Works Pty Ltd (No 2), the conduct of the first respondent in denying that it was the head contractor was such as to justify the Bullock order sought by the appellant once considered in the factual context that arose in that case.

90 I now turn to the evidence relevant to the application for the Bullock or Sanderson order in the present proceedings.

91 Mr Walsh, solicitor for the plaintiff, swore an affidavit on 21 November 2013 which was, in part, evidence relied upon in support of a Bullock order against the Council. Mr Walsh relied upon matters contained within his earlier affidavit sworn on 26 October 2010 in respect of the Notice of Motion seeking to join the Club to the proceedings.

92 It is unnecessary here to set out all of the matters which Mr Walsh refers in his later affidavit in paragraphs [7]-[23]. I have, of course, closely considered those paragraphs. Mr Walsh referred to evidentiary statements of James Garcia, a cleaner that had been employed as a contractor by the Club as well as an evidentiary statement of the General Manager of the Club, Keith Langelaar. Mr Walsh stated that none of those statements mentioned what he refers to as "any rationale about when and why the gate was to be opened": at [9].

93 Mr Walsh additionally referred to a statement of Mr Pintara Lay dated 22 October 2010 which was served by the Council: at [11].

94 In paragraphs [12] and [13] of Mr Walsh's later affidavit the issue as to whether or not there had been delegation by the Council to the Club was addressed in terms as to whether or not interpretation of Mr Lay's evidentiary statement as to the opening and closing of the gate across a local or public road was to be understood or interpreted as indicating that there had been an inadequate delegation of the Council's function in respect of the care, control and management of the road or whether or not it was open to the "interpretation" that there had been an effective delegation such that any negligence in the operation of the boom gate lay with the Club.

95 Mr Walsh stated at [13] of his later affidavit that he adhered to his state of belief that it was possible that the Club was instructed in the manner that constituted a more formal delegation as to why the gates needed to be opened and closed at certain times and that it embraced that responsibility. Documentation on such matters, it was said, fell within paragraph [5] of the subpoena that had been served on the Council but that, to the best of his knowledge and belief, no documents as sought in that paragraph had been produced as to the issue to which he referred.

96 Mr Walsh then stated at [17] of his later affidavit that he maintained the view he expressed in his affidavit of 26 October 2010 that there was a real issue as to whether the Council had effectively delegated to the Club the opening and closing of the boom gate and that he adhered to his "stated belief".

97 He also referred to evidence concerning the operation of the gate, including, in particular, Mr Lay's evidence which Mr Walsh said confirmed his belief that the Council had maintained that it delegated the operation of the gate: at [20]-[21].

98 Finally, Mr Walsh relied upon what he said was his understanding that, as to the issue of the delegation of the opening and closing of the boom gate, it had been disputed by the Council.

99 I have earlier referred to the affidavit evidence of Mr MacLennan, solicitor for the Council, affirmed on 1 November 2010 and relied upon by the Council in opposing the application to join the Club to the proceedings. At paragraph [11], Mr MacLennan stated:

"Rockdale City Council opposes the joinder of St George Sailing Club for two reasons:

(a) First, the plaintiff's claim against the Club is so weak as to not to warrant the joinder;

(b) Second, such a joinder would jeopardise the hearing date and essentially delay any later one allocated with the St George Sailing Club as a party."

100 In paragraph [53], Mr MacLennan stated in relation to his statement in paragraph [11](a), that he based that statement on two matters:

"(a) First, as solicitor for Rockdale, I investigated the potential involvement of other parties, so that cross-claims seeking contribution could be considered. I investigated the role of St George Sailing Club, and formed the opinion (apparently similar to the opinion of the plaintiff's original Senior Council) that it is extremely unlikely that the Club could be found liable for the plaintiff's accident.

(b) Second, I draw the court's attention to the way in which the plaintiff proposes to plead his case against St George Sailing Club. The only basis for a claim against the Club is that it had "the care, control and management" and "responsibility for the opening and closing" of the gate. I do not believe that these allegations can provide the basis for a successful claim. The "negligence" particularised seems to bear out the difficulty in pleading a realistic claim against the Club."

101 The issue as to whether there had been an effective delegation by the Council was, as earlier noted, addressed in the Council's Submissions on Costs at [7] and [8]. In the latter paragraph it was stated that there was no evidence to support the first assertion, namely, that the Council had actively informed the plaintiff or his representatives that there had been a delegation, whether formal or informal, of the authority to operate the gate to the Club. The Council maintains on the present application that there was no evidence to support that assertion and that Mr Walsh did not refer in his affidavits to such correspondence. In that respect reliance was placed upon Ms Morgan's affidavit at [3].

102 I have endeavoured to identify any "conduct" by the Council that would justify, that is to say, would properly support, an exercise of the discretion to make a Bullock or Sanderson order. I have considered the evidence to determine whether there was any active conduct or relevant failure to inform the plaintiff's solicitors on a matter that could be said to have operated or induced or left the plaintiff with no alternative but to join the Club. Such an inquiry is one to be made against the background and in the context of relevant matters including the question of a possible delegation, formal or otherwise, of functions or responsibilities by the Council to the Club.

103 I have concluded that there is no basis for a finding that there was relevant conduct by the Council such as to make it fair to impose some liability on it for the costs of the successful defendant, the Club. I do not consider that the Council's conduct could be said to have induced or misled the plaintiff or his advisors on the issue of delegation, or no delegation, or upon any other issue material to the joinder of the Club. As the authorities make plain, these questions involve issues of reasonableness as between the plaintiff and the unsuccessful defendant. I am unable to discern any conduct by the Council that would make it reasonable for a Bullock or Sanderson order to be made against it and, accordingly, I decline to make such an order.

Orders

104 Accordingly, I make the following orders:

(1) The first defendant (the Council) is to pay the plaintiff's costs of the proceedings on the ordinary basis.

(2) The plaintiff is to pay the second defendant's (the Club's) costs of the proceedings on the ordinary basis.

(3) As between the first and second defendants, each party pay their own costs of the cross-claims.

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Decision last updated: 18 September 2014