This is the Court's fourth judgment in these proceedings. The Court's first judgment dealt with a Motion by the plaintiff, the City of Sydney Council ("the Council"), for payment of its costs out of certain funds it had paid into Court and another Motion brought by other claimants to the funds in Court ("the Chadhope parties"): An Application by the Council of the City of Sydney [2021] NSWSC 979 ("the first judgment").
The Court's second judgment dealt with an application by the Chadhope parties for me to disqualify myself from continuing to hear the proceedings, based upon the apprehension of bias principle. The application was made orally during a directions hearing on 18 October 2021 and was refused. The Chadhope parties requested reasons for the refusal and they were published the following day, 19 October: An Application by the Council of the City of Sydney (No. 2) [2021] NSWSC 1330 ("the second judgment").
The third judgment dealt with another application by the Chadhope parties made on 4 November 2021, again based upon the apprehension of bias principle, and again seeking that I disqualify myself from continuing to hear these proceedings. That application was rejected: An Application by the Council of the City of Sydney (No. 3) [2021] NSWSC 1423.
This judgment should be read with the Court's first three judgments. Events, matters and persons are referred to in both judgments in the same way.
The present judgment returns to the principal application in these proceedings, the Council's application under Uniform Civil Procedure Rules ("UCPR"), r 55.9(6) for its legal costs to be paid out of Court to indemnify it for the execution of its role as a trustee of the funds paid into Court. The Council claims to be entitled to indemnity costs in the sum of $51,323.21. This exceeds the funds in court by $151.55; the sum of $51,171.66 having been paid into Court. When the Council originally filed its motion on 18 May 2021 seeking payment of its costs, its total costs claimed at that stage were $14,334.21. But various contests have taken place between these parties since that time, as this judgment and the Court's previous judgments show.
In this judgment the Court accepts the Council's case that its costs have significantly increased, that they have been legitimately incurred pursuant to valid retainers of legal representatives and that they are recoverable out of the funds in Court. The Court is not persuaded by any of the Chadhope parties' submissions to the contrary.
The Court therefore orders at the conclusion of this judgment that the Council will have an order for costs in its favour in the sum of $51,323.21 and that it is entitled to satisfy that order by the payment out-of-court of all the funds in Court up to that total sum.
The final part of these proceedings was heard on 9 and 11 November 2021. At those hearings the Council was represented by Ms L. Hulmes of counsel instructed by Maddocks Lawyers. The Chadhope parties, Mr C.R. de Robillard and Ms C. McAndrew continued to appear for themselves.
At the hearing the credibility of only one witness was an issue, Mr Norman Lucas of Maddocks Lawyers who was cross-examined. Mr Lucas is the solicitor on the record at Maddocks and is a partner of that firm. He answered questions clearly, directly, and honestly. At all times in his evidence he attempted to give full, accurate and truthful testimony. Various criticisms of his evidence were voiced by the Chadhope parties, but his credibility was not damaged in cross-examination and none of their criticisms is persuasive. The Court accepts all his evidence.
Although the hearing was conducted over two days, the issues deployed may be concisely stated and resolved.
[2]
The Chadhope Parties Contest Maddocks Lawyers Entitlement to Costs
The Chadhope parties challenge the Council's claim to its costs in four main places. First, they required the Council to establish that it had paid the funds into Court as a trustee. Second, they challenged the identity of the law firm undertaking work for the Council and whether it was indeed the same law firm as the one which was rendering the memorandum of fees claimed. Third, they put the Council to proof as to the hourly rates and charges agreed upon the Council's retainer of the law firm. Fourth, they challenged the overall quantum of the charges incurred by Maddocks in these proceedings.
The Court has not found the Chadhope parties' contentions on these issues to be persuasive. Some of their contentions are difficult to follow. Each of the four issues is dealt with below in turn.
(1) Council as a Trustee. The Chadhope parties challenged the Council's claim that it was a trustee of the proceeds of sale of the car space that were paid into Court. In the first judgment (at [37] to [43]) the Court discussed the relevant statutory background under the Local Government Act 1993, Chapter 17 Enforcement, Part 2 Division 5, conferring upon the Council power to sell the car space to recoup itself in respect of unpaid rates. The Court determined in the first judgment (at [44]) that the statutory scheme meant that whatever procedural irregularities existed in the Council's sale of the car space they would not vitiate the sale, principally because of the terms of Local Government Act, s 725, and that the Council held the proceeds of sale as a trustee under Local Government Act, s 720.
But the Chadhope parties now take issue with this characterisation. Lest it be said that the Court might have denied the Chadhope parties procedural fairness the Court decided to open up this issue for further contest, to allow the Chadhope parties to put fuller submissions on the question and to examine the evidence called by the Council. As will be seen below, the result of that exercise was to reinforce the conclusion that the Council sold the car space and paid the proceeds into Court as a trustee.
In paragraph [45] of the first judgment, the Council having established to a prima facie level a sale of the car space and dealing with the proceeds, the Court said that the Council was a trustee of the proceeds of sale and entitled to deal with them in the manner that it has:
"45. A trustee of funds in the position of the Council is entitled to pay those funds into court under Trustee Act 1925, Part 4 and UCPR, r 55.8 - r 55.11. UCPR r 55.9(6) provides that a person paying money into Court may by motion in the proceedings seek an order that that person's costs be payable from the money. That is what the Council has done in these proceedings. Funds may only be paid out of Court pursuant to directions of the Court by motion in the proceedings in which they were paid in: r 55.11. That is what the Chadhope parties have now attempted to do in these proceedings."
The Chadhope parties now seek to challenge that conclusion by reference to more detailed facts which were not drawn to the Court's attention before it made that finding. But the Chadhope parties' reference to these additional facts does not displace the clear inference that the Council was acting as a trustee.
Before examining the question of the Council's claimed status as a trustee, another source of power for what the Council did can be identified. The Council sought to avail itself of UCPR, r 55.9 to pay the net surplus sale proceeds from the car space into Court in order to remove itself from any contest about entitlements to the net proceeds of sale. UCPR, Pt 55, Div. 3 applies to the payment of funds into Court by trustees under Trustee Act 1925, Pt 4, and to proceedings arising out of payment into Court under that Part: UCPR, r 55.8. But UCPR, Pt 55, Div. 3 is not the only basis on which the Council could pay these funds into Court. Whilst it was the expressed basis for doing so here, the fact that other sources of power exist means that it is not essential for the Council to establish that it was a trustee at the time that the funds were paid into Court in order for it to claim its costs of and ancillary to doing so. Therefore the determination of this question is strictly unnecessary.
Two other sources of similar power can readily be identified: interpleader proceedings under UCPR, Pt 43, and the Court's inherent jurisdiction.
UCPR, Part 43 - Interpleader Proceedings, is a codification of the equitable remedy of interpleader relief, which Campbell J (as his Honour then was) succinctly explained in Australian Consumer Target Information Co Pty Ltd v Cabool Holdings Pty Ltd [2003] NSWSC 753 at [9] and [10]:
"9. The origins of the law of interpleader were in equity's concern for preventing multiplicity of proceedings; where there was a situation where a person who made no claim to be entitled to a particular item of property was likely to be sued by two different people concerning that property, the Equity Court would sometimes permit the property in dispute to be placed in the custody of the Court, and would allow the person who claimed no interest in that property to be freed of the litigation.
10. As the name suggests, part of the relief which was granted by the Court was requiring those parties who made claims to the property in dispute to plead amongst each other. Requiring them to "inter-plead" in that fashion was itself part of the remedy, and was the means whereby the person who made no claim to the property could be freed from all the claims against him or her."
The Court has longstanding equitable jurisdiction to permit the payment of money into Court in order to exercise jurisdiction to preserve property in dispute pending litigation. Indeed an Accountant General for the Chancery Court was established for this purpose by statute as early as 1726: 12 George I chapter 32. The nature of this jurisdiction is fully discussed in Edmund R Daniell, Daniell's Practice of the High Court of Chancery (5th ed, 1871) vol 2, chap XL, 1619-45 ("Daniell's Chancery Practice").
The applicant in interpleader proceedings must remain neutral. Here the Council was unsure who had the best claim to the monies paid in Court: whether it was Chadhope Pty Ltd itself, or the Chadhope parties, or indeed some other person. The Council was in a position of neutrality in relation to all these parties and, had it sought to justify the payment into Court under UCPR, Pt 43, it could readily have done so.
Both as an incident of its general equitable interpleader jurisdiction and more widely the Court has inherent jurisdiction to order the payment of money into Court in circumstances that may protect the payer of the money as to costs: Daniell's Chancery Practice, vol 2, pp 1619 to 1645.
The Council's claim for indemnity costs does not depend upon it establishing a position as a trustee. Such an outcome may be justified under UCPR, r 43.4 or in the Court's general interpleader jurisdiction wherever it holds moneys to which others may have a claim and it does not and may be ordered for example under UCPR, r 43.7.
Gzell J pointed out in Kennett v Charlton [2007] NSWSC 190 ("Kennett") fully compensating the applicant paying the money into Court on an indemnity basis is usual in interpleader proceedings under UCPR, Pt 43. In Kennett, Gzell J approved the following statement of Lowe J in McPherson Thom & Co v Coombie Pastoral Co Pty Ltd (1929) 35 ALR 240; [1929] VLR 295 at 301:
"In my judgment, the rule to be deduced from the cases in regard to costs is that where the applicant on an interpleader summons has come promptly to the Court when faced with conflicting claims, and has been guilty of no conduct which has increased costs, prima facie he should have complete indemnity, so far as the fund will permit, for his costs; that is to say, he is prima facie entitled in such circumstances to his costs as between solicitor and client. In most cases of interpleader, however, the proceedings on the part of the applicant are of the simpler nature, and his costs should not require to be taxed in order that he should have a full indemnity. In such cases - and these I think will be the general rule - the Judge on the hearing will fix the costs of the applicant at an amount which will give that indemnity. The rule which I have now declared records with what, in my experience, has been the practice in the past."
The same principle as to costs has been applied more recently in this Court: Vertical Australia Pty Ltd v Air Company Vertical - T LLC [2012] NSWSC 719, [71] - [78] and Raibkoff v Abernathy Properties Pty Ltd [2012] NSWSC 724, [66] to [72].
Returning to the Chadhope parties' argument, in response the Council has established it was at all times relevantly a trustee of the funds paid into Court. This follows from the relevant facts that are proven on the evidence. In October 2017, Council resolved to sell the car space by public auction to recover unpaid rates, pursuant to Local Government Act, s 713. On 23 May 2018 the Council sold the car space for a consideration of $80,000. On 3 August 2018 the Council issued a tax invoice to the purchasers of the car space for payment of the purchase price in the sum of $80,107.26 requiring payment to the Council's Westpac bank account. The money was deposited on 7 August 2018 to the nominated Westpac account. The Court infers that the extra $107.26 was to cover transaction fees.
The Council's internal accounting documents, the City of Sydney Costs & Expenses Reconciliation Schedule dated September 18 ("the Reconciliation Schedule"), show how the $80,000 proceeds of sale thus received were applied. Sale costs of $6,920.93 were deducted leaving a balance of $73,079.07. From this working balance the Council deducted its unpaid rates and charges on the car parking space leaving a net balance of $50,617.73. This implies that the unpaid rates and charges amounted to $22,461.34.
The Council paid a slightly larger figure of $51,171.66 into the Maddocks Trust Account on 12 March 2021 on account of this car park sale. The difference of $553.93 is not material for present purposes but may have involved a minor reimbursement by the Council of some of its deductions in the Reconciliation Schedule. The differential is not material and does not warrant further inquiry.
These facts established to a comfortable level of satisfaction that Council sold the car space to recover unpaid rates, deducted those rates from the purchase price, that by operation of Local Government Act, s 720 the Council held a balance of the purchase monies as a trustee and that the monies were paid into Court.
The Chadhope parties sought to challenge that conclusion. But before considering their challenge it should be observed that the Chadhope parties had changed their position on this issue between the hearing on 5 July 2021 and the final hearing on 9 and 11 November 2021. On 5 July 2021 the Chadhope parties were making a case that the Council was liable to account to them as a trustee and to explain to them what it had done with the money. The Court deferred any contest about the adequacy of Council's account of its dealing with the funds to later proceedings. The Court's conclusions in the first judgment about the Council being a trustee of funds were consistent with the contentions that the Chadhope parties were then putting to the Court. The Chadhope parties have not explained to the Court why they decided to change their mind on this issue. But maintaining opposite positions four months apart did not seem to trouble them.
The Chadhope parties contend that there is no evidence the Council paid the balance of purchase money into a trust fund as defined in Local Government Act, ss 408 and 411. Local Government Act, s 408 divides a Council's funds into a consolidated fund and trust fund. Local Government Act, s 409 deals with the consolidated fund and s 411 requires all money and property received by Council in trust to be held in the Council's trust fund, which must be applied in accordance with the trust relating to it.
The Chadhope parties' contention that there is no evidence that the balance of the sale proceeds were paid into the Council's trust fund in accordance with s 411 is shortly answered. As the Court explained to Mr de Robillard during submissions, whether or not the Council paid the balance of purchase money into its s 411 trust fund or not does not remove or alter the statutory trust impressed upon the funds.
The Chadhope parties next submit there is no evidence the amount paid into Court represented the balance of purchase monies. The answer to that is that the amounts are close enough and the differences are probably accounted for by handling charges. But the affidavit and documentary evidence is strongly consistent with the inference that the moneys are the same and the Chadhope parties have not advanced any other plausible competing explanation for these transfers.
The Chadhope parties say there is no evidence that the proceeds of sale were continuously held in the trust fund maintained by the Council under Local Government Act, s 411. Even if that were right it would not extinguish the trust impressed upon the funds.
The Chadhope parties also complain about the method of transfer from the Council to Maddocks and say there may have been an unnecessary loss of interest between 12 March 2021 and 6 May 2021 when the money was finally paid into Court. The costs of pursuing that issue would substantially exceed the allegedly lost interest in question by many multiples and the Court is justified in passing over the argument.
The Chadhope parties also point to certain notes to the Council's financial statements for the 30 June 2019 and 30 June 2020 financial years as a basis to infer the proceeds of sale were not paid into the Council's s 411 trust account. But such general notes to those financial statements do not change the character of the funds as trust funds and do not contradict the Council's specific evidence justifying the application of Local Government Act, s 720 to the proceeds of sale of this car space.
The Chadhope parties put a number of other arguments about this issue but they are either too difficult to understand or are already covered by the Court's reasoning.
(2) The Law Firm Acting for the Council. The Chadhope parties appear to contend that the law firm which has performed the work for Council in these proceedings, issued invoices and has been paid by the Council, "Maddocks", is not the same as the law firm that is named in the Court documents, "Maddocks Lawyers". The Chadhope parties appear to contend further that the Council has not established that it has any liability for legal costs to the firm that undertook the legal work in these proceedings.
This point has no substance. "Maddocks" and "Maddocks Lawyers" are relevantly indistinguishable. Mr Lewis has clearly explained the ownership and usage of these two names and that they belong to the same law firm. The Court accepts his explanation.
Mr Lewis says that Maddocks is an unincorporated partnership and is the sole trading entity of the law firm Maddocks and it provides legal services and earns income. It is also the entity that has entered into Standing Offer Deed of Legal Services Panel ("the Deed") with the Council, and it is the entity that issued invoices to Council in relation to these proceedings and whose ABN appears in the top right-hand corner of those invoices.
"Maddocks Lawyers" is a business name that was registered by Maddocks at the time the firm's Sydney office opened approximately 20 years ago. It is not a separate entity or law firm. It is merely a business name which as Mr Lucas stated, "is a way of describing what we do" and in his mind the terms are interchangeable. A partnership is entitled to use a business name it owns as much as its own partnership name. The Court concludes that the mere fact that the description "Maddocks Lawyers" rather than simply "Maddocks" is used on the cover sheet of Court documents is a distinction without any legal significance. It certainly did not detract from the natural inference arising from the accounting documents in this case that the Council has incurred the legal fees to Maddocks that are claimed in these proceedings.
(3) The Terms of Maddocks Engagement. The Chadhope parties challenged the charge out rates and fees for the legal work undertaken by Maddocks on the basis that Maddocks' retainer with the Council has not been established.
Their challenge failed. The evidence of Mr Lucas established the relevant charge out rates and other contractual terms underpinning the amounts. The Council made a request for tender for legal work. Maddocks was one of the successful firms in that tender. As a result, Maddocks and the Council entered the Deed. This Deed placed Maddocks on a panel of legal practitioners providing services at agreed rates to the Council.
The Deed provides for the rates that Maddocks would charge the Council for legal work executed during the term of the deed. Applicable hourly rates are set out in the Deed, Schedule 4. Moreover, on 22 December 2020 Mr Lucas emailed Ms Lowe at the Council and provided a fee estimate and scope of work in conformity with the Legal Profession Uniform Law 2014. Both that email and the Deed constitute the retainer. The arrangements that Mr Lucas outlined are entirely conventional and establish the relevant charge out rates, which appear to the Court to be both competitive and reasonable.
(4) The Quantum of the Claim. The Chadhope parties were invited and then ordered on several occasions to provide a schedule that identified the various costs and charges of Maddocks that they disputed. The Court made these orders and extended time for the Chadhope parties to comply with them so that the Court could have crystallised for its determination the exact complaints about Maddocks' charges that were to be considered. For example, it was unclear whether the Chadhope parties' contention was one of excessive time being spent or excessive resources devoted to the execution of the retainer or whether the case being made was that the charge out rates were excessive. Importantly a schedule would have given the Court an opportunity to see exactly what the Chadhope parties both were challenging and what the Council's answer (in the schedule) would be to each such challenge.
But the Chadhope parties did not comply with the orders to produce such a schedule. Instead their final submissions in chief contained some broad contentions that the Council's legal costs should not be allowed.
The resultant lack of precision in the Chadhope parties' quantum contentions and the Council's evidence about the work done allows the Court to conclude from its own experience that the charges were reasonably and properly incurred. Indeed, as will be seen, those charges are something of an underestimate of the true burden of legal fees. But the matters raised by the Chadhope parties will be dealt with as best the Court can in the circumstances.
Mr Lucas has sworn affidavits as to the Council's legal costs (and other matters) on 18 May 2021, 17 June 2021, 7 July 2021, 11 August 2021, 22 October 2021, and 5 November 2021 giving costs up to the date of each affidavit. And the last of these affidavits estimated future costs from 5 November 2021 to 9 November 2021, when it was expected that the proceedings would finally conclude. The proceedings were listed for hearing on 9 November 2021 and in anticipation of that hearing the Court directed Council to provide a cost estimate before the hearing, which would cover all costs up to and including that hearing.
But in the result, after a day of hearing on 9 November 2021 the proceedings were not finished and were adjourned for a short supplementary hearing to 11 November 2021. Notwithstanding this adjournment the Council's estimates of legal costs were not altered. Ms Hulmes of counsel instructed by Maddocks appeared for the Council on 9 and 11 November 2021 and substantive argument was put that day. But Maddocks legal fees are conservative: they do not include any charges for work done after 9 November 2021. And the fee estimates for 9 November 2021 were for a hearing of two hours. In fact, the hearing went for most of the day.
It is not necessary to break those costs down. It is sufficient to summarise the total fees for this period: the professional fees of Maddocks were $40,890; counsel's fees were $6,287.21; and filing fees were $4,146. These fees accumulated over the many stages of these proceedings, as recorded in Mr Lucas's affidavits as follows: 18 May 2021 ($14,334.21), 7 July 2021 ($21,515.21), 11 August 2021 - calculated up to 30 September 2021 ($34,499.21) and 5 November 2021 - calculated up to 9 November 2021 ($51,323.21).
For the legal work done, which the Court has closely observed, none of these charges seems at all excessive. Objectively speaking, the Maddocks total charges on an indemnity basis for the legal services delivered are refreshingly modest. Maddocks charged the Council just over $50,000 for vigorously contested Supreme Court litigation, which has resulted in four judgments in proceedings that have taken over nine months (May 2021 to February 2022) and involved 8 separate court appearances.
In substance the Chadhope parties submit that the Council is not entitled to any costs. But to the extent that specific criticisms of the fees that Maddocks charged to Council can be criticised as to quantum, the criticism is without foundation. The following can be said briefly about the specific criticisms.
First, the Chadhope parties contend that the Council should be limited to allowable costs of a maximum of $3,000 if the Court finds that the filing of the summons was appropriate. But there is no basis for limiting the Council's fees in this way. The Chadhope parties maintained their motion against the Council long after the summons was filed and they sought to involve the Council in wider litigation rather than allow it to exit further involvement in the disposition of the monies paid into Court. It would be quite unjust in the circumstances to place an artificial limit of $3000 on Council's legal fees.
Second, the Chadhope parties contend that "considerable professional time" according to Maddocks cost recitals were spent considering "strategy" and "next steps" before Maddocks commence drafting Ms Lowe's affidavit, the affidavit accompanying the original payment into Court. The fees in question were a small part of the original 18 May 2021 fees of $14,334.21. And the devotion of some time to "strategy" was well justified given the unnecessarily complex course that these proceedings have taken since then.
Third, the Chadhope parties contend that Ms Lowe's affidavit was excessively edited because its meta data indicated that there were 12 separate drafts of her affidavit. This point is without substance. Its separate drafts may have involved the changing of only a few words, not a remarkable turn of events in an affidavit of 50 paragraphs with exhibited correspondence of over 98 pages.
Fourth, the Chadhope parties contend that Maddocks have not explained why it was necessary to spend more than $7,000 in professional time to draft what should have been a relatively simple affidavit that could have been drafted by Ms Lowe a solicitor of some six years standing and much more experience than Ms Kelly from Maddocks.
But Ms Lowe is an internal lawyer for the Council, who advises it on a variety of commercial and property matters. It was an appropriately efficient use of resources, to free up Ms Lowe's time for the other significant business of Council by delegating the drafting of this affidavit to an external solicitor, Ms Kelly. It is misleading to suggest that the cost of drafting affidavit was $7,000. Those professional fees undoubtedly involved searching for or sourcing the many documents exhibited to the affidavit of Ms Lowe, enquiring as to the Council's processes in this case that ultimately became contentious, interviewing Council staff, including Ms Lowe, as well as reviewing and finalising a number of drafts. Ms Lowe's affidavit remained the central point of explanation for the Council's sale of the car parking space and application of the proceeds all the way through the subsequent contests generated by the Chadhope parties.
The Council's legal fees will be allowed in full and all the remaining funds in Court may be paid out and applied to satisfying those fees.
Other Chadhope Parties' Arguments. The Chadhope parties propounded a number of other arguments in support of their case that were not easy to follow and to the extent that the Court can follow them they do not warrant separate examination. The Court has endeavoured to deal with the Chadhope parties' main contentions as presented to it.
[3]
The Chadhope Parties' Motion
The Court has not finally determined all the issues raised on the Chadhope parties' motion. The Court discussed the motion in its first judgment (at [47] to [65]). The Court allowed the motion to be filed and then dealt with some of the relief on the motion as explained in the first judgment.
But since then the Chadhope parties have done nothing to reinstate Chadhope Pty Ltd to the register of companies through the Corporations Act 2001, s 601AH (2) mechanism that the Court sought to facilitate in the first judgment. For reasons that are not entirely clear to the Court the Chadhope parties have declared that they do not wish to avail themselves of that option. There is now no further reason for the Court to continue to entertain the Chadhope parties' motion and it will be dismissed in the orders made with this judgment.
[4]
Conclusions and Orders
In conclusion the Chadhope parties have been constantly critical of the conduct of Maddocks in these proceedings. Several times they have sought to apply to Maddocks Lawyers the words of Sir James Bacon VC in Re Thakeham Sequestration Moneys (1871) LR 12 Eq 494, a case involving the payment into Court by bankers of a fund contested between a bishop, a suspended clergyman and certain churchwardens representing his parish. Bacon VC said of the bankers in that case that they "have done all the mischief; it is their misconduct which has occasioned this absurd litigation". The Chadhope parties submit that these words apply to Maddocks conduct of these proceedings.
Maddocks has neither engaged in misconduct nor promoted mischief in this case. But yes, this is "absurd litigation". Given its outcome, its absurdity can readily be measured against the warning the Court gave to the Chadhope parties in the first 15 minutes of the first hearing day, 5 July 2021 (transcript at page 3). The Council, through Maddocks, were then claiming a total of $21,515.21 in legal fees, which would after restoring Chadhope to the ASIC register, have left Chadhope just under $30,000:
"HIS HONOUR: But I have had a look through the evidence and on the evidence so far I am not entirely sure that you have filed enough evidence even to establish your and Ms McAndrew's interest in the fund and I think more work is required for that and the longer you involve the council the more likely it is that this, if you don't get costs orders against them, that this fund will diminish to nothing and I am simply giving you a very clear message right at the beginning of this that I will critically scrutinize this claim for costs but it seems to me that there is a significant risk that if you and the council have a fight about this that the money will all disappear anyway. (Emphasis added)
During their submissions on the Motion the Chadhope parties indicated they were likely to seek to appeal from the Court's decision in this matter. To afford them a reasonable opportunity to do so the Court will stay the payment of funds out of Court for 28 days. The orders will not become operative until after Friday, 25 March 2022.
For these reasons, the Court makes the following orders and directions:
1. Order that the respondents to the plaintiff's motion of 18 May 2021 pay the plaintiff's costs of and ancillary to the motion on the indemnity basis ("the plaintiff's indemnity costs");
2. Order that the plaintiff's indemnity costs are fixed pursuant to Civil Procedure Act, s 98(4)(c) in the sum of $51,323.21;
3. Order that the funds of $51,171.66 paid into Court, together with any interest accrued thereon up to a total sum of $51,323.21 be paid out of Court to the plaintiff after 25 March 2022 to satisfy pro tanto the plaintiff's indemnity costs; and
4. Dismiss with costs the motion brought by Ms C. McAndrew and Mr C. R. de Robillard and permitted to be filed by the Court's orders made on 5 August 2021, and such costs shall be included in and not additional to the plaintiff's indemnity costs.
[5]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 25 February 2022