AL Powell Holdings Pty Ltd & Anor v Dick & Anor [2012] QCA 254

Judgment (125 paragraphs)

[1]

The applicant succeeded in proving oppression and obtained an

[2]

order for relief in the form of a winding up of the first

[3]

In the circumstances, I am not persuaded that there should be

[4]

an order requiring costs to be paid by the applicant. I

[5]

consider that the appropriate order is one that requires the

[6]

second and third respondents to pay the applicant's costs on a

[7]

MR BELL: Your Honour, it's essential for me to seek your

[8]

leave should we wish to appeal the order in relation to costs,

[9]

under section 2÷5÷3 of the Supreme Court Act, and I seek your

[10]

leave to appeal the costs, your Honour, the costs order just

[11]

HER HONOUR: In my view, this matter has been characterised by

[12]

prolonged litigation, and it is in the interests of finality

[13]

that the costs order remain. And I refuse leave."[59]

[14]

[56] As Mr D O'Sullivan for the appellants acknowledged, the grounds of appeal are extensive but may be considered under four headings:

[15]

▪ Failure by the primary judge to give effect to r 361 of the UCPR.

[16]

▪ Failure by the primary judge to analyse the offer to settle and the amount paid on the ultimate winding up.

[17]

▪ Failure by the primary judge to have regard to relevant considerations, namely that the appellants intended to wind up the Company prior to the commencement of proceedings; that Mr Dick failed to obtain the orders sought in the application that the appellants purchase his shares and failed to obtain an order more favourable than the offer to settle; that the majority of the costs of the proceedings had been incurred in relation to matters in which Mr Dick failed; and his inappropriate conduct of the proceedings at first instance.

[18]

▪ Failure by the primary judge to give any reasons or adequate reasons for the decision for the orders made.

[19]

(i) Mr Dick pay the appellants' costs of the proceedings at first instance; alternatively

[20]

(ii) the appellants pay Mr Dick's costs of the proceedings up until 13 December 2007, when the offer to settle expired and thereafter Mr Dick pay the first and second appellants' costs of the proceedings; and

[21]

(iii) Mr Dick pay the appellants' costs of the appeal.

[22]

[58] It is immediately apparent that the appellants have abandoned any claim for indemnity costs. It is not clear if (i) is sought under r 681 "unless the court orders otherwise" or r 361(2) "another order for costs is appropriate in the circumstances", but it may reasonably be assumed that it is a reference to r 361(2).

[23]

[59] The appellants accept that the primary judge's order refusing leave pursuant to s 253 of the Supreme Court Act 1995 is a discretionary judgment to which the principles in House v The King[60] apply. The primary judge refused leave to appeal her order because the matter had "been characterised by prolonged litigation" and it was in the "interests of finality" that the costs order not be appealed. In Emanuel Management Pty Ltd (in liquidation) v Foster's Brewing Group Ltd[61] Chesterman J (as his Honour then was) said:[62]

[24]

"The evident purpose of s 253 is to limit appeals 'as to costs only.' This is because decisions on costs afford a prime example of a discretionary judgment which parliament has recognised should be left to the trial judge."

[25]

[60] Keane JA (as his Honour then was) in Morrison v Hudson[63] similarly drew attention to affirmations of the restrictive policy in relation to appeals on questions of costs only.[64] His Honour mentioned factors which should be considered by a trial judge when entertaining an application for leave to appeal a costs order:

[26]

"Whether leave to appeal should be granted will usually depend on the primary judge's view as to the balance of competing arguments, whether those arguments relate to matters of legal principle or disputed questions of fact, the importance and difficulty of such arguments, and, on occasion, the amount of money involved."[65]

[27]

Recently, in Yara Nipro Pty Ltd v Interfert Australia Pty Ltd,[66] the court affirmed this approach, Fraser JA observing:

[28]

"It has been said that the powers of a Court of Appeal to entertain an appeal against the refusal of leave are 'extremely limited'. Certainly Nipro assumed a heavy burden in seeking to establish that the discretion under s 253 of the Supreme Court Act 1995 (Qld) miscarried."[67]

[29]

[61] The primary judge gave decisive weight to the prolongation of the litigation and achieving finality of the litigation. The appellants contend that neither should have been regarded in that light and thus her Honour effectively took into account factors that were irrelevant or, at best, should have been accorded minimal weight and failed to have any regard to the relevant considerations identified by Keane JA in Morrison v Hudson.

[30]

[62] The second error identified by the appellants was the failure of the primary judge to give the appellants an opportunity to advance their case for leave. The recording of the proceeding has a short pause after Mr Bell made his application and before her Honour made her ruling. Mr Perry, for Mr Dick, submitted that Mr Bell could have asked for an opportunity to make submissions when it was apparent that her Honour was not going to invite him to do so. This is a delicate area. Advocacy must be firm and fearless but also courteous. It may not have been immediately apparent that her Honour was about to make her ruling rather than merely making an (not unjustified) observation.

[31]

[63] It can fairly be said that an attempt to have her Honour receive submissions after she had decided not to give leave would, in effect, have been an application to re-open. Mr O'Sullivan, for the appellants, referred to New Cap Reinsurance Corporation Ltd v AE Grant[68] where Barrett J said:

[32]

"It seems to me that these principles [relating to the discretion to

[33]

re-open or vary a judgment], as they apply in a case such as the present, can be summarised in one basic proposition, namely, that a single judge whose decision is susceptible to appeal through readily available channels (with or without any preliminary need for leave to appeal) should allow re-opening after judgment where it is obvious to that judge that the decision has miscarried and that the miscarriage may be rectified and the situation retrieved by attention to the matter by that judge rather than by an appeal court. What is highly undesirable is that the first instance judge be cast in the role of hearing what amounts to an appeal against his or her own decision."[69]

[34]

[64] The preferable course might have been for her Honour to seek brief submissions as to why leave ought to be given which may have directed consideration of matters relevant to the exercise of her discretion. Still, extensive written submissions had been made, supplemented by oral submissions in an application which had occupied the whole day so that the matters to which Keane JA made reference should have been apparent and need not have been re-agitated again. It will often be the case that the complexity of the competing arguments about costs is obvious and a primary judge will be alive to those matters and give leave without needing further persuasion. The failure to give counsel the opportunity to make submissions about leave was not here an error, although had an invitation been extended, it might be supposed that her Honour would have been directed to the factors mentioned by Keane JA as enlivening the discretion.

[35]

[65] The error was to refuse leave, because the relevant considerations had not been weighed. This is not a case where the discretion is sought to be set aside because, having had regard to the various relevant factors, the decision was not to a party's liking. Her Honour's discretion was not informed by the correct considerations. In all disputes finality is a desirable goal but not where there is a fairly arguable case for a different outcome on appeal. Leave ought to have been given. It is, however, necessary to consider, in this court, if there are reasonable prospects of success on appeal if leave now is given. If there are not, then there would be no utility in it. Because that question is subsumed in the substantive appeal it suffices to answer that there are such prospects so that the appeal against the order refusing leave should be allowed.

[36]

[66] Rule 361 appears in Ch 9 Pt 5 of the UCPR dealing with offers to settle. It provides, relevantly:

[37]

(a) the defendant makes an offer to settle that is not accepted by the plaintiff and the plaintiff obtains a judgment that is not more favourable to the plaintiff than the offer to settle; and

[38]

(b) the court is satisfied that the defendant was at all material times willing and able to carry out what was proposed in the offer.

[39]

(2) Unless a party shows another order for costs is appropriate in the circumstances, the court must -

[40]

(a) order the defendant to pay the plaintiff's costs, calculated on the standard basis, up to and including the day of service of the offer to settle; and

[41]

(b) order the plaintiff to pay the defendant's costs, calculated on the standard basis, after the day of service of the offer to settle."

[42]

[67] Rule 361(2) is couched in mandatory language - unless a party shows that another order for costs is appropriate the court must make orders of the kind described in the rule. The important question on this appeal is whether Mr Dick obtained a judgment that was "not more favourable" than the offer to settle.[70] There is no contest about the other conditions of the rule.[71] If the answer to this question is that the judgment was "not more favourable" then the next question, whether some other order be made instead of the usual order, will be considered subsequently.

[43]

[68] The appellants had made earlier offers to settle under cover of a letter dated 8 October 2007 and had included with it a formal valuation of Mr Dick's shares prepared by the Company's accountants, Ulton Group. The approach which those accountants had taken was to ascertain the net present value of the expected after tax distributions of the Company prior to being wound up. Mr Dick's shares were then valued by the accountants at $107,995. As was intimated in the letter, the Company was to be liquidated and Mr Dick would be paid out in the liquidation.

[44]

[69] Mr Dick, together with the other shareholders, had previously received cash generated by the sale of assets of the Company by way of dividends. Ulton Group exhibited the unaudited financial statements for the Company to 30 June 2007.[72]

[45]

[70] This court in Timms v Clift[73] considered the ambit of r 118(1) of the District Court Rules 1968 which was, in material respects, the same as r 361. It had been contended that r 118 had no application because the offers had included a requirement for a published apology which was not quantifiable in monetary terms. The court[74] concluded that:

[46]

"... the expression 'a judgment no less favourable' in r. 118 does not in our opinion exclude from consideration relief sought other than money claims. For example, if an action was brought relating to the winding up of a partnership, various items of relief might be claimed, including declaratory relief; it would be a matter for the court's judgment as to whether, an offer to settle having been made, the effect of the judgment overall was 'no less favourable' to the plaintiff than the offer."[75]

[47]

The court referred with approval to observations by Bingham MR in Roache v News Group Newspapers Ltd[76], another defamation case:

[48]

"The judge had to look closely at the facts of the particular case before him and ask: Who, as a matter of substance and reality, had won? Had the plaintiff won anything of value or anything he could not have won without fighting the action through to a finish? Had the defendant substantially denied the plaintiff the prize which the plaintiff fought the action to win?"[77]

[49]

[71] The primary judge did not squarely deal with this issue in the context of r 361. Her Honour said that there was much to be said in favour of Mr Dick's argument that:

[50]

"... a direct comparison between the amount of the compromise offer and the amount paid on the ultimate winding up of the first respondent is not apposite."[78]

[51]

In the absence of any other clear decision in the reasons this observation may be taken as a rejection of the submission that the offer and the outcome after trial could be compared. If that were her Honour's conclusion it was an error. It was quite possible to make a comparison and material had been filed and submissions made which facilitated it.

[52]

[72] Following the above observation her Honour immediately proceeded to reject the submission that indemnity costs should be awarded because there was:

[53]

"... a strongly contested issue to do with the amount to be ascribed to the value of the first respondent's assets".[79]

[54]

Her Honour noted that there was a contest between competing valuations. Her Honour suggested that even if there were a comparison between the offer and the amount finally paid to Mr Dick which her Honour identified as a deficit of $45,000, it did not compel the conclusion that Mr Dick had acted imprudently or unreasonably such as to require an order for indemnity costs.

[55]

[73] Mr Dick had received dividends from the Company since 29 November 2007 (the date of the offer) of $203,248.92[80] made up of a dividend declared on 18 December 2008 in the amount of $74,999.00, an interim distribution in the liquidation made on or about 19 December 2011 in the amount of $119,734.91, and a final distribution on 30 January 2012 in the amount of $8,515.01.

[56]

[74] Mr Dick alleged that the non-payment of a superannuation benefit on sales commissions was an aspect of the oppression conduct and should be included. It was an incident of his employment not of his rights as a shareholder. The sum of $38,378.87, which he received as a result of the winding up, should not be included in any calculation comparing the offer and the outcome from the court-ordered winding up. Had Mr Dick accepted the $300,000 plus costs, because the offer was expressed as an amount for the purchase of his shares, he was still entitled to lodge his claim for unpaid superannuation. But even if it were included, the figure for comparison was under $250,000.

[57]

[75] Mr Humble, the majority shareholders' solicitor, set out interest calculations on $300,000 for the period from 14 December 2007 when the offer expired and the date Mr Dick received the final distribution on 30 January 2012. He applied the rate of five per cent per annum being, as he noted, half the rate awarded often by the court on damages or debt. Over that period Mr Humble calculated an amount of $62,013.70. It need not be regarded as a precise figure but gives an acceptable idea of what had been foregone by refusing the offer.

[58]

[76] The deficit between the offer and the receipt on winding up was identified by the primary judge as "some $45,000".[81] Without including interest on $300,000 the difference was $96,751.08. If interest were included then the difference is almost $160,000 ($158,764.78). On those figures and without reference to factors which would dictate that "another order for costs is appropriate", r 361(2) mandated an order for costs in the form set out in r 361(2)(a) and (b).

[59]

[77] The primary judge seemed to conclude that the payment of legal fees by the Company on behalf of the majority shareholders operated against the orders sought by the majority shareholders about costs. It is far from clear if her Honour was referring to the effect of r 361(2) to preclude any costs order in favour of the majority shareholders or to award costs on the indemnity basis.

[60]

[78] At the time when the offer was made on 29 November 2007 the payment of the majority shareholders' legal fees was not an alleged ground of oppression and does not appear to have been known to Mr Dick so as to have been an operating factor on any decision he made about the offer. Those fees were, in fact, relevantly, neutral because they were repaid to the Company and were, in effect, distributed amongst the shareholders. The issue of the legal fees was an irrelevant consideration, or at best, a minor matter, so far as the operation of r 361(2) was concerned and ought not to have been the decisive factor which it seems to have been.

[61]

[79] Her Honour noted that although the majority shareholders did not contest the facts of the conduct which her Honour found to be oppressive, they had not admitted oppression, and if they had, the trial might have been considerably shortened. The approach of Mr Dick on the costs submissions that all the pleaded conduct was relevant tells against this optimism.[82] That failure to admit oppression was largely irrelevant to a consideration of r 361(2). If anything, the failure on 28 allegations of oppression which occupied the bulk of the trial might have dictated, alone, some costs adjustment in favour of the majority shareholders.

[62]

[80] When Mr Dick received the offer to settle in November 2007 he was aware that the Company was to be wound up and its assets distributed. He had been provided with the Company accounts and the calculations of the Company accountants in respect of the value of the shares. A members' voluntary winding up under Pt 5.5 of the Corporations Act would have been relatively straight forward - and inexpensive - likely within the original $10,000 nominated by the majority shareholders. Mr Dick could have advanced his separate claim for his unpaid superannuation entitlements with that liquidator.

[63]

[81] Mr Dick could have made an informed decision about what he would receive should the court order a compulsory purchase of his shares after trial. He would have needed to weigh the possibility that no such order would have been made and that the court might utilise its other powers under s 233 to restore in monetary terms to the Company what had been lost due to the oppression. The Company was essentially a dormant cash box so there was a real possibility that there would be no order to purchase his shares. In that likelihood Mr Dick needed to reflect upon his distribution in a winding up.

[64]

[82] The first statement of claim dated 30 January 2007 was the operative pleading at the time of the offer and made numerous wide ranging allegations against the majority shareholders including disputed valuations of property. Mr Dick's lawyers could readily have advised him of the likely duration and costs of any trial in the Supreme Court. It would have been prudent to factor in the delay to the trial and judgment against the certainty of $300,000 immediately and the costs for which he would be liable to his lawyers even were he to be successful and be awarded costs presumably on the standard basis. Finally, Mr Dick had to contemplate what costs he might be ordered to pay if he did not better the offer.

[65]

[83] The object of the rules about offers to settle is to encourage the resolution of disputes without the necessity of a trial and, inherent in the essence of an offer, is some element of compromise.[83] Mr Dick, or at least his lawyers, would have understood this.

[66]

[84] It was possible to compare the offer with what Mr Dick achieved after the trial. Had that occurred that comparison would have demonstrated clearly that he received a judgment that was not more favourable than the offer to settle and, accordingly, the majority shareholders were entitled to a costs order in their favour. Mr Dick had advanced no relevant consideration which dictated that any other order ought to be made.

[67]

(ii) Should the appellants obtain a costs order which betters the usual order under r 361(2)?

[68]

[85] The primary order now sought by the appellants is that Mr Dick pay the whole of the costs of the proceedings including reserved costs on the standard basis. Their principal ground for seeking such an order is that although Mr Dick obtained findings of oppression by the majority shareholders, he did not get the relief which he sought - the court-ordered purchase of his shares. Added to that was his failure on 28 out of the 30 particulars of oppression, examination of which occupied many of the pre-trial contests and the trial itself.

[69]

[86] In the absence of an operating offer to settle by the majority shareholders there is much to be said for an approach to the costs in this case on an issues basis,[84] or, more broadly, so as to avoid an expensive assessment procedure, on a percentage basis.[85]

[70]

[87] Generally, a successful moving party is entitled to his costs,[86] and will only be deprived of his costs if the opposite party can point to some misconduct relative to the litigation. Whilst there was much to complain about Mr Dick's approach to the litigation, it did not, overall, give rise to disentitling conduct.[87] The terms of the offer give Mr Dick his costs for approximately 20 months from the commencement of his proceedings. Thereafter the appellants are entitled to costs on the standard basis which will include the costs of the trial. An order in those terms which reflects r 361 sufficiently reflects the various factors to which regard must be had, including that Mr Dick did, no matter how modestly, have success.

[71]

[88] Factors that would make some other order appropriate under r 361(2) as propounded by Mr Dick have been considered above and rejected.

[72]

(iii) Revision of reasons and insufficiency of reasons

[73]

[89] As has been stated on numerous occasions, a court from which an appeal lies must state adequate reasons for its decision.[88] The failure to do so is an error of law.[89]

[74]

[90] Muir JA explained the rationale for such a rule in the following passages in Drew v Makita:[90]

[75]

"[58] The rationale for the requirement that courts give reasons for their decisions provides some guidance as to the extent of the reasons required. The requirement has been explained, variously, as necessary: to avoid leaving the losing party with 'a justifiable sense of grievance'[91] through not knowing or understanding why that party lost;[92] to facilitate or not frustrate a right of appeal;[93] as an attribute or incident of the judicial process;[94] o afford natural justice or procedural fairness;[95] to provide 'the foundation for the acceptability of the decision by the parties and the public' and to further 'judicial accountability'.[96]

[76]

[59] The extent to which a trial judge must expose his or her reasoning for the conclusions reached will depend on the nature of the issues for determination and 'the function to be served by the giving of reasons'.[97] For that reason, what is required has been expressed in a variety of ways. For example, in Soulemezis v Dudley (Holdings) Pty Ltd, Mahoney JA said:[98]

[77]

'... And, in my opinion, it will ordinarily be sufficient if - to adapt the formula used in a different part of the law ... by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.'

[78]

[60] McHugh JA's view was that reasons sufficient to meet the above requirements do not need to be lengthy or elaborate but '... it is necessary that the essential ground or grounds upon which the decision rests should be articulated'.[99]

[79]

[61] In Strbak v Newton,[100] Samuels JA said:

[80]

'...What is necessary, it seems to me, is a basic explanation of the fundamental reasons which led the judge to his conclusion. There is no requirement, however, that reasons must incorporate an extended intellectual dissertation upon the chain of reasoning which authorises the judgment which is given.'

[81]

[62] Woodward J, in Ansett Transport Industries (Operations) Pty Ltd v Wraith,[101] said that the decision maker:

[82]

'...should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions.'"

[83]

[91] His Honour set out at some length certain propositions of Meagher JA in Beale v Government Insurance Office of NSW[102] which it is not necessary to repeat here but which his Honour described as "useful guidance for a determination of the sufficiency of reasons in the general run of cases".[103]

[84]

[92] When regard is had to the additions to the reasons it can readily be seen that they add little of substance. Reading the reasons without the alterations does not produce, relevantly, reasons different from the oral pronouncement.

[85]

[93] The real fault here lay in a failure to analyse the offer to settle in terms of r 361 and to give the offer little and insufficient consideration. The other conditions which appeared to carry decisive weight with her Honour, namely, that Mr Dick was successful in his proceedings and the payment of the legal costs related, it would seem, largely to the issue of indemnity costs.

[86]

[94] It was not necessary to give lengthy or elaborate reasons but something more was required to demonstrate that the very detailed submissions of the appellants had been properly considered. However since the appeal is to be upheld there is nothing further that needs be said on this ground.

[87]

Appeal against the order refusing leave to appeal the costs order made in the Trial Division allowed.
Appeal against the costs order allowed.
Set aside the order made about costs below on 14 February 2012.
Order instead in terms of the offer made 29 November 2007 that:

[88]

(a) AL Powell Holdings Pty Ltd and Trekmere Pty Ltd pay Wayne Kenneth Dick's costs calculated on the standard basis up to and including 29 November 2007 being the date of service of the offer,[104] and

[89]

(b) Wayne Kenneth Dick pay AL Powell Holdings Pty Ltd and Trekmere Pty Ltd's costs of the proceedings including reserved costs, if any, thereafter, calculated on the standard basis.

[90]

Order that Wayne Kenneth Dick pay AL Powell Holdings Pty Ltd and Trekmere Pty Ltd's costs of the appeal against the refusal of leave to appeal and the costs of the appeal against the costs order.

[91]

[1] The Company has been wound up and took no part in the appeal.

[92]

[3] There does not appear to be any order of the court expressly winding up the Company. No formal orders issued when judgment was delivered on 23 June 2009, merely an indication that the Company ought to be wound up. The order which issued on 11 November 2009, "appointed [the liquidator] to wind up the [Company]", cf s 472 of the Corporations Act, under which the liquidator was appointed, which provides: "[a]n order being made for the winding up of a company, the Court may appoint an official liquidator to be liquidator of the company." Nothing appears to turn on this as the records of ASIC and all relevant persons have treated the Company as having been ordered to be wound up by order of the court.

[93]

[4] Further Amended Statement of Claim para 12(u) amended and filed 14 March 2008.

[94]

[5] Affidavit of Alan Powell sworn 9 November 2009, paras 2-4.

[95]

[6] Attended by representatives of the Australian Tax Office, Ulton Group (the Company's accountants) and AL Powell. There were surplus moneys available for distribution to contributories, affidavit of John Lethbridge Greig sworn 31 March 2011.

[96]

[8] Now s 64(1) of the Supreme Court of Queensland Act 1991 (Qld).

[97]

[9] This explains references in these reasons to numerous documents not in the bound appeal record.

[98]

[10] [2009] QSC 184.

[99]

[11] Between 1996 and 2007 Mr Dick received a total of $816,126.58 in dividend payments from the Company.

[100]

[14] This increased to $38,039 and was lodged as a Proof of Debt with the liquidator in that sum and eventually became the subject of an Australian Taxation Office Proof of Debt which was satisfied.

[101]

[18] At subsequent hearings on 6 and 11 November 2009 there was discussion as to whether an undertaking had actually been given and when the repayment was to occur. It is not fruitful to analyse further that question but the primary judge expressed her view firmly that the costs paid by the Company ought to have been repaid once the impropriety of the conduct was identified at the trial - see transcript for 6 November 2009, 1-4.

[102]

[22] Neither party in the negotiating phase seems to have adverted to this provision as found by her Honour. See discussion at [159]; AR 224.

[103]

[24] Reasons [162]; AR 225. As discussed below, there was no evidence to suggest that Mr Dick was aware of the payments of legal fees to McCullough Robertson by the Company for the defence of the oppression proceedings for all respondents at the time the offer was made.

[104]

[26] Earlier offers may be disregarded.

[105]

[27] The appellants no longer seek costs on the indemnity basis; they seek an order that Mr Dick pays their costs of the proceedings, alternatively, as provided for in r 361(2).

[106]

[28] Fourth further re-amended defence para 12(q); AR 146.

[107]

[29] Fourth further re-amended defence para 12(u)(v); AR 149.

[108]

[30] Mopeke v Airport Fine Foods Pty Ltd [2007] NSWSC 153; (2007) 61 ACSR 395.

[109]

[31] A point made by the liquidator in his report to creditors explaining that such a small sum did not justify seeking it.

[110]

[32] Outline of submissions paras 64-65 (a), (b), (c) and (d).

[111]

[33] Affidavit of the liquidator J Greig, sworn 18 October 2011, filed 7 December 2011, referred to in Mr Dick's outline p 13. These costs included outlays.

[112]

[34] Paras 66-70 of Mr Dick's written reply submissions below.

[113]

[35] The majority shareholders' written submissions are detailed and persuasive referring to correspondence with Mr Dick's solicitors in which they were appraised of these matters including, on 23 September 2009, provision of a letter of direction to Ulton Group, the Company's accountants, dated 21 July 2009, the relevant part of which was as follows: "We refer to the judgement of Her Honour Justice Philippides delivered on 23 June 2009, by which it was ordered that Alan Powell Holdings Pty Ltd (APH) be wound up. Please prepare financial statements for APH for the year ended 30 June 2009 as follows:

[114]

(a) on the basis you consider appropriate, given that the company has ceased to trade and will be wound up;

[115]

(b) in which a sum is allowed as a liability for the cost of the liquidator's fees, in an amount we will advise you;

[116]

(c) in which $405,777.83 is added back to the company's assets, being the total legal fees paid by APH in relation to this litigation, but not yet refunded by the other Respondents;

[117]

(d) in which allowance is made for a refund of legal fees properly payable by APH but in fact paid by Mr Alan Powell. The total legal fees invoices as at 30 June 2009 was $1,042,855.81. The percentage of that sum that is to be repaid by APH to Mr Powell is currently uncertain. For the purposes of these accounts, can you please allow as a liability of the company an amount of 5% of $1,042,855.81 and also 30% of $1,042,855.81." (Underlining in submissions.)

[118]

[37] As at 31 October 2005 and on conditions. Mr Hill, the expert, in evidence, assessed the value much lower.

[119]

[38] As already mentioned at [6], this was unknown to Mr Dick at the time of the offer.

[120]

[40] (2001) 53 NSWLR 463; [2001] NSWCA 419.

[121]

[41] (1992) 7 WAR 88.

[122]

[43] [1965] P 111 at 116.

[123]

[44] Exhibit SJH-8 to the affidavit of Sharon Janelle Hauser filed 27 August 2012 where the concluding pages have been reproduced showing the alterations added to the original recorded/transcribed reasons.

[124]

[45] The ordinary rule as to costs is r 681. This is clearly a slip since there was no sense that her Honour was considering a submission under r 361(2) that "another order for costs is appropriate."

[125]

[58] Mr Powell was not cross-examined on his affidavit and there was no contradictory evidence.

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Judgment (125 paragraphs)

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