ARTISTIC BUILDERS PTY LIMITED & ANOR v NASH & ORS

Judgment 1HALL J: This judgment relates to competing applications in relation to costs of the proceedings, the subject of the judgment delivered on 17 December 2010: Artistic Builders Pty Limited & Anor v Nash & Ors [2010] NSWSC 1442. It also deals with an application for a stay on the orders to be made giving effect to and as a consequence of the judgment. 2I directed the parties to lodge with my associate:- (1) A document setting out the calculation of damages in accordance with and to give effect to the conclusions set out in the judgment. (2) Short minutes of order to give effect to the conclusions set out in the reasons for judgment. 3At [873], I also directed the parties to lodge written submissions in support of any application for costs in accordance with a timetable to be agreed. 4At [874], I noted that the proceedings were to be re-listed for the purpose of hearing submissions on the form of orders to give effect to the judgment.

Written submissions 5In relation to orders and costs, the following submissions were lodged with my associate:- (1) The plaintiffs' submissions on Orders and Costs dated 25 February 2011. (2) Nash, O'Neill, Tomco, Lawyers (NOT Lawyers) submissions on orders and costs dated 14 March 2011. (3) Submissions on orders and costs by the 11 th to 17 th defendants (Harris & Co) dated 16 March 2011. (4) NOT Lawyers further submissions on costs dated 30 March 2011. 6The application for costs by the first to fourth defendants (NOT Lawyers), was supported by the affidavit of Louise Anne Cantrill sworn 15 March 2011. That affidavit, inter alia, dealt with offers of settlement made on behalf of NOT Lawyers. 7The proceedings in relation to orders consequent upon the reasons for judgment, costs and the application for a stay of the judgment and orders were heard on 18 March 2011. On that occasion, Mr Newlinds SC, with Ms Hovarth of counsel appeared on behalf of the plaintiffs, Mr D C Fagan SC appeared on behalf of the 11 th to 17 th defendants and Mr Kabilafkas of counsel appeared on behalf of the first to fourth defendants.

The stay application 8On 22 February 2011, a notice of motion dated 16 February 2011 was filed on behalf of the 11 th to 17 th defendants seeking an order, inter alia, that any judgment and orders entered against those defendants be stayed until further order of the Court. The notice of motion was supported by the affidavit of Simon Lusk sworn 16 February 2011. 9I have determined that I should order a stay pending disposition of any appeal proceedings. I will provide reasons below.

Plaintiffs' submissions on the form of orders 10The plaintiffs submitted that the following orders should be made:- (1) Verdict and judgment for the first to fourth defendants (NOT Lawyers). (2) Verdict and judgment for the second plaintiff (ABC) against 11 th to 17 th defendants (Harris & Co) in the sum of $3,500,000. 11In relation to costs, the plaintiff (ABC) submitted that the following orders should be made:- (1) The 11 th to 17 th defendants (Harris & Co) to pay the second plaintiff's (ABC) costs on the ordinary basis, as agreed or assessed. (2) The 11 th to 17 th defendants (Harris & Co) to pay the first to fourth defendants' (NOT Lawyers) costs on the ordinary basis, as agreed or assessed for the following periods:- (a) 11 July 2001 to 8 June 2007; and (b) 16 March 2009 to date. (3) The plaintiffs to pay the first to fourth defendants' (NOT Lawyers) costs on the ordinary basis, as agreed or assessed, for the period 9 June 2007 to 15 March 2009. 12In the plaintiffs' submissions it was stated that the plaintiffs understood that the figure of $3.5 million is agreed, but that the form of order was in dispute. In this respect, Harris & Co sought to include the words "inclusive of costs and interest" after the figure $3.5 million in the order. 13That position was confirmed in the written submissions for Harris & Co, that is to say, that the judgment to be entered against the 11 th to 17 th defendants was to be the amount of $3.5 million "inclusive of costs and interest" . 14Mr Fagan on behalf of Harris & Co contended that the words "inclusive of costs and interest" were appropriate because of the limit upon damages provided for by s.29 of the Professional Standards Act 1994. 15Section 29 of that Act, Limitation of amount of damages , provides, so far as is relevant, as follows:- "29(1) Limitation imposed on single claims A limitation imposed by a scheme in force under this Act of an amount of damages is a limitation of the amount of damages that may be awarded for a single claim and is not a limitation of the amount of damages that may be awarded for all claims arising out of a single event." 16In this provision, the word "damages" is a key word in the application of the section. 17Section 4(1) of the Professional Standards Act provides:- " Damages means:- (a) damages awarded in respect of a claim or counter-claim or claim by way of set-off; and (b) costs in or in relation to the proceedings ordered to be paid in connection with such an award (other than costs incurred in enforcing a judgment or incurred by an appeal made by a defendant); and (c) any interest payable on the amount of those damages or costs." 18In the proceedings, ABC claimed a loss in the amount of $4,130,000. In the submissions for Harris & Co at [5] it was contended that, although it would be expected that the Court would order that costs follow the event as between the plaintiffs and Harris & Co, the unsuccessful defendants, and that the Court would also award interest up to judgment "... no separate or additional amount can be ordered to be paid on account of costs or interest in this case because of the existence of the statutory cap. The primary damages exhaust the cap" . 19It has been agreed between the legal representatives for the plaintiff, ABC, and the 11 th to 17 th defendants, Harris & Co, that on the findings and conclusions expressed in the judgment of 17 December 2010, the appropriate judgment sum is the amount of $3,500,000. Accordingly, I propose to enter judgment in favour of the plaintiff against the 11 th to 17 th defendants in that amount. 20Mr Newlinds SC, on behalf of ABC, accepted that, by reason of the statutory "cap" imposed by s. 4 and s.29(1) of the Professional Standards Act , no order for costs in favour of ABC against Harris & Co can be made: Plaintiffs' Submissions on Orders and Costs at [31] and [34] and transcript 18 March 2001 at p.9. The same limitation applies to pre-judgment interest.

(1) The plaintiffs' claim for costs against Harris & Co 21The plaintiffs' application was for an order that Harris & Co pay the plaintiffs' costs on the ordinary basis, but that, as already indicated, by reason of the "cap" under the Professional Standards Act , the order would, in effect, be "nugatory" . 22In written submissions, Mr Fagan stated that Harris & Co had no submission as to why costs should not follow the event but that an order that the 11 th to 17 th defendants pay ABC's costs on an ordinary basis should not be made because it was clear that the primary damages exceeded the s.29 cap. The submission was that judgment for the amount of the cap, inclusive of costs, is the only appropriate relief: Written Submissions on behalf of Harris & Co at [10]. 23I am of the opinion that the appropriate form of order is that there be verdict and judgment in favour of the plaintiffs against the 11 th to 17 th defendants in the amount of $3,500,000 million, inclusive of costs and pre-judgment interest.

(2) NOT Lawyers' claim for costs against Artistic and ABC 24In respect of the application by NOT Lawyers against Artistic and ABC for an order for costs of the proceedings, it was argued:- (1) That a Sanderson order should be made, whereby Harris & Co is made liable for the costs of NOT Lawyers on the ordinary basis, as agreed or assessed. In that respect, the plaintiffs' submissions distinguished the following periods:- (a) 11 July 2001 to 8 June 2007 in which period Artistic was the sole plaintiff; and (b) 16 March 2009 to date, in relation to proceedings by ABC against NOT Lawyers. Order sought by Artistic :- (2) Artistic sought an order that, in respect of the first of the above two periods, an order should be made in respect of NOT Lawyers' costs against Harris & Co by way of a Sanderson Order. Order sought by ABC in respect of costs claimed by NOT Lawyers :- (3) In respect of any entitlement to costs of NOT Lawyers in respect of the period 16 March 2009 to the date of judgment against ABC, the submission for ABC was:- (a) That there should be an apportionment of costs as NOT Lawyers given that they succeeded on the limitation defence only and failed on the following primary issues:- (i) Breach of duty (in particular, the multiple breaches of duty specified in the final judgment). (ii) Causation of damages. (iii) Damages. (b) That the apportionment of NOT Lawyers' costs should be on the basis that they recover 20% of their costs calculated on the ordinary basis, 80% being referrable to the issues referred to in paragraph (3)(a)(i), (ii) and (iii) upon which they failed. (c) ABC's contention was that it was fair that Harris & Co be made subject to an order to pay such costs as may be awarded in favour of NOT Lawyers by reason of the fact that Harris & Co expressly pleaded a denial that the limitation period (for ABC to bring a claim against NOT Lawyers) had expired prior to ABC being joined as a plaintiff in the proceedings. The plaintiffs argued that Harris & Co's conduct in raising that as a ground of defence was such that it would have been unreasonable to expect ABC to abandon its case against NOT Lawyers. 25Before further considering the submissions made in relation to the applications for costs, I refer below to relevant statutory provisions and costs principles.

(3) Statutory provisions: power to order costs 26Section 98 of the Civil Procedure Act 2005 provides that, subject to rules of Court and that or any other Act, costs are in the discretion of the Court: s.98(1)(a). 27The Court has full power to determine by whom, to whom and to what extent costs are to be paid: s.98(1)(b). 28Section 98 creates a wide discretionary power. The general principle is that such a judicial power should be liberally construed and its exercise restricted only by limitations and conditions that are clearly expressed: Oshlack v Richmond River Council (1998) 193 CLR 72. 29Accordingly, the only express limit on the discretion to award costs conferred by the rules or by any other relevant statutory provision is the principle that the discretion vested in the Court must be exercised judicially. On this basis, the general or ordinary principle is that costs follow the event: UCPR 42.1. 30Rule 42.1 provides that, subject to Part 42, if the Court makes any order as to costs, it is to order that the costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs. 31Consequentially, a successful party should not be deprived of costs unless there is material to justify a contrary order being made: Milne v Attorney General (Tas) (1956) 95 CLR 460 at 477.

(4) Costs principles 32In Scherer v Counting Instruments Limited (Note) (1986) 1 WLR 615, Buckley LJ, who gave the judgment of the Court of Appeal in that case, derived a number of principles from the relevant authorities including the following:- (1) The normal rule is that costs follow the event. That party who turns out to have unjustifiably either brought another party before the Court, or given another party cause to have recourse to the Court to obtain his rights is required to recompense that other party in costs. (2) However, the judge has an unlimited discretion to make what order as to costs he or she considers that the justice of the case requires. (3) Consequently, a successful party has a reasonable expectation of obtaining an order for his or her costs to be paid by the opposing party but has not a right to such an order, for it depends upon the exercise of the Court's discretion. (4) This discretion is not one to be exercised arbitrarily; it must be exercised judicially, that is to say, in accordance with established principles and in relation to the facts of the case. (5) The discretion cannot be well exercised unless there are relevant grounds for its exercise, for its exercise without grounds cannot be a proper exercise of the judge's function. (6) The grounds must be connected with the case. This may extend to any matter relating to the litigation and the parties' conduct in it and also to the circumstances leading to the litigation, but no further. (7) If no such ground exists for departing from the normal rule, or if although such grounds exist, the judge is known to have acted not on any such ground but on some extraneous ground, there has effectively been no exercise of the power. 33The principles stated by Buckley LJ were reproduced and discussed in Bankamerica Finance Limited v Nock [1988] 1 AC 1002 at 1009 to 1010.

(a) Proceedings initially brought by Artistic 34The proceedings were commenced by way of Statement of Claim filed on 11 July 2001. Initially, the parties to the proceedings were:-

• Artistic Builders Pty Limited: Plaintiff
• NOT Lawyers: First to fourth defendants
• Elliott and Tuthill (Mortgages) Pty Limited: Fifth defendant
• Four other named corporations: Sixth to ninth defendants 35On 8 May 2003, the Further Amended Statement of Claim was filed. By that amended pleading, the action was confined to the first to fourth defendants, the other defendants having been removed from the proceedings.

(b) ABC added as a co-plaintiff (second plaintiff) 36On 26 March 2007, the Second Further Amended Statement of Claim was filed whereby ABC was added as a co-plaintiff, namely, as second plaintiff. ABC alleged that NOT Lawyers breached its duty of care and relied upon the particulars that were pleaded in paragraphs in paragraphs 50 to 55, as had been pleaded by Artistic.

(c) Proceedings instituted against Harris & Co 37By the Third Further Amended Statement of Claim filed on 26 July 2007, proceedings were brought against Harris & Co, the partners of which were named as 5 th to 11 th defendants. 38In paragraph 27 of the Third Further Amended Statement of Claim, it was asserted that, by reason of breaches as pleaded, ABC suffered loss and damage. The particulars relied upon were in the following terms:- " Particulars a. If not for the breaches, ABC would not have entered into the Transaction. b. Therefore, ABC would have remained the registered proprietor of the Bankstown property, subject to the mortgage to Endeavour Credit Unit. c. At the time of the breaches, the value of the Bankstown property significantly exceeded the amount owed to Endeavour Credit Unit. d. ..." 39A review of the history of the proceedings, accordingly, reveals firstly a significant change in the parties to the proceedings, in particular, with ABC being added as a plaintiff, the original 6 th to 9 th defendants being deleted and the partners of Harris & Co being subsequently joined in the proceedings in relation to a separate cause of action. Secondly, with the filing of the Third Further Amended Statement of Claim, the "no transaction" case was made. 40The change in the basis for the action against NOT Lawyers is significant in determining the application by NOT Lawyers for costs in their favour. 41The proceedings pursued by ABC on the Third and later the Fourth Further Amended Statements of Claim in respect of the "no transaction" case would have been determined, as discussed above, against NOT Lawyers but for the expiry of the limitation period. 42A considerable portion of the work associated with the proceedings on the Third and Fourth Further Amended Statements of Claim and, in particular, the hearing of the proceedings, was largely concerned with or directed towards a number of discrete issues as to alleged breaches of duty by NOT Lawyers to ABC. Such breaches had been alleged before the "no transaction" case was instituted.

(6) The application of NOT Lawyers for a costs order in relation to the period 11 July 2001 to 8 June 2007

(a) The relevant period 43In the period 11 July 2001 to 26 March 2007, Artistic was the sole plaintiff in the proceedings against NOT Lawyers. The claim made had two aspects. Firstly, a claim for damages in respect of the Bankstown transaction. Secondly, a claim for damages for costs said to have been incurred by Artistic in the pursuit of legal proceedings in relation to securities obtained in relation to the sale transaction. Artistic failed in relation to both claims. In those circumstances, the ordinary rule would be that costs follow the event and an order made against Artistic that it pay NOT Lawyers' costs in respect of the above period.

(b) The issue of a Sanderson order against Harris & Co 44The issue raised in the submissions is whether or not such a costs order should be made in favour of NOT Lawyers against Artistic or whether a Sanderson order may be made against Harris & Co in respect of NOT Lawyers' costs for that period.

(c) The submission of Harris & Co 45In his submissions, Mr Fagan contended, firstly, that there was no basis for seeking to separate out the costs by Artistic (as distinct from those incurred by ABC) for the purposes of justifying a separate costs order. 46Secondly, that Artistic had not, at any time, pleaded any claim against Harris & Co in the proceedings and therefore Artistic did not succeed against Harris & Co in the outcome of the proceedings. Accordingly, so the argument ran, there was no basis for ordering, on the application of Artistic, that Harris & Co should pay NOT Lawyers' costs of defending themselves against Artistic in respect of the above period.

(d) Harris & Co's advice and role in Artistic's proceedings against NOT Lawyers 47It is necessary to consider certain factual matters concerning the role of Harris & Co in advising and acting on behalf of Artistic. Harris & Co were responsible for instituting proceedings by Artistic against NOT Lawyers in respect of a "transaction case" upon which Artistic ultimately failed. NOT Lawyers, accordingly, now seek costs from Artistic in respect of the period 11 July 2001 to 8 June 2007. 48It is clear that the above case pursued by Artistic from at least 17 October 2002 was misconceived, being the date by which Mr Chahine had given instructions which identified the basis for a "no transaction" case available to ABC (not Artistic).

(e) The bases for an order that Harris & Co pay the costs of NOT Lawyers 49Accordingly, in respect of the period from 17 October 2002 to 26 March 2007, Artistic was exposed to the risk that it would fail against NOT Lawyers and be ultimately made liable for the latter's costs. It was placed in that position by reason of Harris & Co's failure to restructure the claim as a "no transaction" case to be pursued by ABC, not Artistic. Those circumstances, prima facie, provide, in my opinion, a basis for concluding that fairness would require that Harris & Co be made liable to pay the costs that NOT Lawyers now claim against Artistic between 17 October 2002 and 26 March 2007, subject to three matters. First, some work undertaken in the last-mentioned period would need to have been carried out in any event and, accordingly, some discount on any liability that Harris & Co might have for NOT Lawyers' costs would need to be made and any order against Harris & Co, accordingly, only be made for the amount of the discounted costs. Secondly, an additional allowance would be made for the fact that Artistic would have remained as a co-plaintiff in the proceedings in respect of that part of the proceedings that was directed to recovering costs that Artistic claimed it had incurred in brining proceedings concerning the securities and for which it sought a damages award separate and apart from the damages claimed on the basis of its "transaction case" . Thirdly, there remains the question whether an order can be made against Harris & Co in respect of Artistic, by reason of the limitation on damages provision in s.29 of the Professional Standards Act . 50As to the first and second of the above three matters, I consider the discounts to which I have referred concerning the same, although not amenable to precise calculation should together be quantified at 50%. Accordingly, subject to the operation of s.29, the maximum amount of NOT Lawyers' costs in respect of the period 17 October 2002 to 26 March 2007 that should be the subject of any order against Harris & Co is 50% of such costs.

(f) Does s.29 of the Professional Standards Act apply to the claim of Artistic? 51Does s.29, however, prevent an order being made against Harris & Co that the latter pay 50% of the costs sought by NOT Lawyers against Artistic? 52The definition of "damages" in s.4 of the Professional Standards Act refers in paragraph (a) to "damages awarded in respect of a claim ..." and paragraph (b) refers to "costs in or in relation to the proceedings ordered to be paid in connection with such an award ..." . (emphasis added). 53The "proceedings" that are referred to in paragraph (b), in context, must refer to proceedings in respect of the "claim" referred to in paragraph (a) of the definition of "damages" . 54The proceedings as amended on 26 July 2007 can be said to have involved two "claims" , one by Artistic and one by ABC. The "claim" by Artistic was an identifiably different claim to that for which ABC is to be awarded damages under the judgment of 17 December 2010. In that respect:- (1) The claim by Artistic under the initial Statement of Claim filed on 11 July 2001, the Amended Statement of Claim and the Further Amended Statement of Claim was brought upon the basis that Artistic was the holder of 10 A class units and one B class unit in the trust deed entered into on 10 November 1999 establishing the South Terrace Unit Trust (paragraph 12 of the Amended Statement of Claim). (2) Attached to the B class units was the right of the holder (Artistic) to receive staged payments totalling $3.7 million and the alternative right to call for home unit apartments and commercial areas in the proposed building to be developed, to a value of approximately $4.9 million. Artistic's right under the B class unit was to have been secured by various securities - mortgages, company charges and guarantees. (3) A significant part of Artistic's claim was loss it claimed that it had sustained by reason of its rights to payments and/or transfer of property in the proposed development proving to be not fully enforceable. The measure of its loss, accordingly, was the shortfall in Artistic's ability to enforce its rights under the B class units against the trustee, Nordoc, and/or against securities, company charges and the guarantees which it held. The entitlement it claimed of $3.7 million proved to be wholly unenforceable. 55The claim by ABC was brought upon a different basis (the "no transaction case" ). ABC sought damages on the basis of its loss as owner of the Bankstown property. The basis for the calculation of loss did not depend upon any rights held by Artistic. 56Immediately prior to the transaction, ABC was the owner of the property worth approximately $7.5 million. Immediately after the transaction, ABC received $3.5 million (less the amount of ECU's debt). ABC's claim was for the balance of the estimated value of the property at the date of the transaction. 57In other words, both the basis for (its right or entitlement) and the nature of the damages sought by ABC were not the same as the claim made by Artistic. 58In determining the application of s.29 of the Professional Standards Act , "the damages awarded in respect of (the) claim " in paragraph (a) of the definition of "damages" is to be construed and understood as referring to the successfully claim of ABC as discussed above and not the claim earlier formulated and subsequently unsuccessfully pursued by Artistic. So understood, the reference to "damages" includes costs referred to in paragraph (b) of the definition, namely, costs of the proceedings in connection with the award of damages to ABC. 59On the other hand, Artistic's claim in the proceedings did not result in any award of damages in its favour, the claim by it for the alleged loss from the transaction, on the bases discussed above, not having been a viable one. For the above reasons, the costs claimed by NOT Lawyers against Artistic are not costs falling within or referred to in paragraph (b) of the definition of "damages" in s.4 of the Act. Accordingly, the limitation under s.29 does not prevent an order being made against Harris & Co in respect of the costs claimed by NOT Lawyers against Artistic being made directly against Harris & Co assuming, of course, that there is otherwise a proper basis for the making of such an order. 60As to the latter point, s.98(1) of the Civil Procedure Act provides, as earlier noted (paragraph [25]), inter alia, a broad power, subject to the rules of Court or any other Act. Section 98(1)(b) provides that the Court has full power to determine by whom, to whom and to what extent costs are to be paid. 61The principles set out earlier in this judgment clearly establish that the Court is to have regard to the issue of fairness or what is just in exercising costs powers and, in that regard, by taking into account the relevant facts and circumstances. The discretion, in other words, is to be exercised according to what the justice of the case requires. 62The claim by Artistic was formulated and pursued by Harris & Co in relation to Artistic's "transaction case" in circumstances in which, by 17 October 2002, Harris & Co instructions ought to have led to advice to ABC (and Artistic) that the basis for any claim was the "no transaction" case belatedly pursued against NOT Lawyers. In those circumstances, in light of Harris & Co's failure to advise, I consider that it would be unfair for Artistic to be required to bear the whole of the costs of NOT Lawyers claim against Artistic in circumstances in which Harris & Co were responsible for Artistic's pursuit of NOT Lawyers in the period 17 October 2002 to 26 March 2007, rather than advising ABC to pursue NOT Lawyers on the "no transaction" case. Those costs, as earlier stated, in my opinion, do not, constitute costs that are in or in relation to the proceedings in connection with the award of damages to ABC . 63Accordingly, I propose to make orders:- (1) That the 11 th to 17 th defendants (Harris & Co) directly pay 50% of the costs claimed by NOT Lawyers against Artistic on the ordinary basis as agreed or assessed in respect of the period 17 October 2002 to 26 March 2007. (2) Accordingly, Artistic is to pay:- (a) the costs claimed by NOT Lawyers on the ordinary basis as agreed or assessed for the period 11 July 2001 to 16 October 2002; (b) 50% of the costs claimed by NOT Lawyers on the ordinary basis as agreed or assessed in the period 17 October 2002 to 26 March 2007. (3) Harris & Co is to be liable for the balance, 50% of NOT Lawyers' costs, in respect of the period referred to in (2)(b) above.

(7) The application by NOT Lawyers for costs against ABC and Artistic in the period 16 March 2009 to date 64ABC/Artistic, firstly, contended that NOT Lawyers' claim for costs should be apportioned. Secondly, in respect of any apportioned costs in favour of NOT Lawyers, it was submitted that a Sanderson order should be made with respect to the same whereby Harris & Co would be made liable for the apportioned costs of NOT Lawyers in respect of the last-mentioned period.

(a) NOT Lawyers' further submissions 65In NOT's Further Submissions on Costs , NOT Lawyers responded to the oral submissions made on behalf of the plaintiffs on the application for an apportionment of NOT Lawyer's costs. NOT Lawyers disputed that the case was an appropriate one for a departure from the usual rule, being a departure based on an apportionment of costs made on an "issue" basis. The alternative submissions put on behalf of NOT Lawyers, in the event that there was an apportionment, were:- (1) The apportionment should be for substantially less than 80%. (2) The apportionment should relate only to a specific time period. (3) The costs denied to NOT Lawyers by reason of the apportionment ought to be borne by Harris & Co: Further Submissions at [2]. 66In support of the submission that there should be no apportionment, it was argued that the limitation issue had been a difficult one and it depended upon the prior findings of the Court on many matters. It was said that the case was not, in any real sense, one that involved more than one "event" as between the plaintiffs and NOT Lawyers. The claim was one for damages by each plaintiff and that each claim wholly failed (the claim by ABC failing by reason only of the limitation defence). 67Alternatively, if contrary to NOT Lawyers' primary submission, an apportionment was found to be appropriate, it was acknowledged that it might be accepted that the issues of breach and causation occupied most of the hearing time, perhaps even 80%. However, an order that NOT Lawyers be deprived of 80% of its costs as agreed or assessed, it was contended, would not reflect the degree of their success in the proceedings, which was said to have been "total" . 68Furthermore, it was submitted that the plaintiffs were not wholly successful on the question of breach, insofar as there had been 63 allegations of breach, the Court upheld 13. It was also noted that Artistic had failed to prove its claim for its own special damages. In these circumstances, the submission was that the deduction ought to be one-third and limited to certain time periods. 69It was noted in the submissions for NOT Lawyers at [18] that, up until 23 March 2007, the plaintiffs' case was put upon the basis that it was a "transaction" case. However, that was different to the case that NOT Lawyers faced at the hearing and which was upheld in the final judgment. 70It was submitted that there was no basis for apportioning the costs up to 23 March 2007, even if apportionment was otherwise held to be appropriate. I have accepted that submission, as the earlier discussion of the matter indicates. 71NOT Lawyers' further submission was that there ought to be no apportionment from 11 March 2010, the date of the plaintiffs' rejection of its offer of settlement made on 11 March 2010. It was said that the offer focused the plaintiffs' attention upon the limitation issue which, it was said, had been brought to the forefront of the dispute from the time of the mediation and subsequent joinder of ABC. 72The submission was that the plaintiffs' rejection of that offer, in circumstances where neither NOT Lawyers or Harris & Co had admitted breach or causation, was a significant matter because the plaintiff knew the length and nature of the hearing that lay ahead and determined to proceed regardless. 73NOT Lawyers, as earlier stated, also submitted that any amount which was denied on an apportionment by issue basis, ought ultimately be paid for by Harris & Co pursuant to a Sanderson or Bullock order. In this respect, it was noted that:- (1) The allegations of breach of duty by Mr Nash and the consequent issue of causation were not just matters critical to the plaintiffs' case against NOT Lawyers. They were also involved in the case against Harris & Co. (2) Leaving to one side the limitation issue, it was observed that, if the plaintiffs had failed on the issues or breach or causation, then they would have failed against both NOT Lawyers and Harris & Co. 74It was also noted that Harris & Co's defence to the Fourth Further Amended Statement of Claim had also put in issue the allegations of breach of duty and causation and, in particular, it expressly denied the "no transaction" case. It was noted that, in the closing written submissions, Harris & Co devoted more than half the length of their submissions - 21 out of 38 pages - to the issues of breach and causation.

(b) The issue of apportionment of costs - costs principles 75It has been held that a successful party who has failed on certain issues may not only be deprived of the costs of those issues, but may be ordered as well to pay the party's costs of them. The reference to "issues" does not involve a precise issue in the technical pleading sense but to any disputed question of fact or of law: Hughes v Western Australian Cricket Association (1986) ATPR 40-748. 76In Elite Protective Personnel Pty Limited & Anor v Salmon (No 2) [2007] NSWCA 373, the Court of Appeal observed:- "6. Where there are multiple issues in a case, the Court generally does not attempt to differentiate between the issues on which the appellant was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable, it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v PC Henderson (Aust) Pty Limited (Court of Appeal, 6 July 1994, unreported)." 77However, the Court of Appeal in that case also observed:- "8. Whether an order contrary to the general rule that costs follow the event should be made, depends on the circumstances of the case viewed against the wide discretionary powers of the Court, which powers should be liberally construed: State of NSW v Stanley [2007] NSWCA 330 at [18] (per Hislop J with whom Beazley JA and Tobias JJA agreed)." 78In Waters v PC Henderson (Aust) Pty Limited (NSW Court of Appeal (Kirby P, Mahoney and Priestley JJA, unreported 6 July 1994), it was stated:- "Where the proceedings involve multiple issues, the application of the rule that costs follow the event may involve hardship where a party succeeds on some issues and yet fails on others. Particularly is this so where, for example, a defendant succeeds on issues that occupied the bulk of the time taken by the proceedings. Nevertheless, unless a particular issue or group of issues is clearly dominant or separable, it will ordinarily be appropriate to award the cost of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which if failed." 79In Hughes v Western Australian Cricket Association (supra), Toohey J observed that, where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed. 80In Turkmani v Visvalingam (No 2) [2009] NSWCA 279, Hodgson JA, with whom Beazley and McColl JJA agreed, observed:- "12. The principles stated in the cases have an alternative basis for departure from the usual order as to costs, namely, where the successful party failed on a 'clearly dominant issue'. That seems to suggest that if an issue can be identified that was clearly dominant, on which the successful party failed, the usual order may be departed from even though that issue was not clearly severable ..." 81On the question as to whether a departure from the ordinary rule might be justified on this basis, Hodgson JA at [13] stated that it should be approached with regard to the idea of fairness underlying the making of costs orders as his Honour had expressed in Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121]. In the latter case, it was observed that the idea that costs should be paid in a way that is fair has regard to what the Court considers to be the responsibility of each party for the incurring of the costs. 82In Turkmani (supra) at [15], Hodgson JA observed:- "It seems to me that the only basis on which it would be appropriate to depart from the general rule that costs follow the event, by reason of the circumstance that the appellant lost on what might be regarded as the dominant issue, is if a judgment is made that, had that issue been excluded, then, although the dominant issue was not clearly severable, the costs incurred on the appeal would be likely to have been substantially less, perhaps because there was less at stake." 83In Bostik Australia Pty Limited v Liddiard (No 2) [2009] NSWCA 304, the Court (Beazley, Ipp and Basten JJA) set out at [38] the principles governing the making of a costs order which reflects the time taken in dealing with the particular issue in which the successful party in the proceedings or on an appeal did not succeed. The principles there stated were based on those enunciated in Elite Protective Personnel (supra). The principles included the following statement:- "In relation to trials, it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24]." 84In State of NSW v Stanley [2007] NSWCA 330 at [18], Hislop AJA (with whom Beazley and Tobias JJA agreed) stated that whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the Court, of which its powers should be liberally construed. 85In James v Surf Road Nominees (No 2) [2005] NSWCA 296, it was stated that a separable issue can relate to "any disputed question of fact or law" before a Court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter. 86Finally, as a matter of principle, where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James (supra), citing Dobbs Family Investments Pty Limited v Lane Industries Pty Limited (1993) 26 IPR 261 at 272.

(c) Application of the principles of apportionment to the present case 87NOT Lawyers sought to argue that the issue of alleged breaches of duty and causation were not clearly severable from the limitation issue upon which it ultimately succeeded. The argument cited Wardley Australia Limited v Western Australia (1992) 175 CLR 514 at 533 in which reference was made to the undesirability of determining limitation questions in interlocutory proceedings in advance of a final hearing. Otherwise, difficulties can often arise in determining what damage has been sustained by a plaintiff and of the circumstances in which it was sustained. 88The difficulty of determining a limitation question at an early stage of proceedings and difficulties that may exist at that stage in determining when and how damage was suffered is not, in my opinion, instructive in the determination of an apportionment of costs question. The latter involves a retrospective assessment of issues in the full context, including the fact of the issues as played out at the hearing, the evidence at trial and the final judgment delivered. It does not follow that the issues as they emerged in the contest in the present proceedings may not be considered as separable issues. The nature of the damage suffered by ABC on its "no transaction" case did not mean that the issues upon which NOT Lawyers were unsuccessful were not separate from an apportionment of costs perspective. Accordingly, the fact that neither ABC or NOT Lawyers made an attempt to have the limitation question determined as a separate question, in my opinion, is not at all a relevant matter on the question of apportionment. 89As earlier noted, a number of adverse factual and legal findings were made against NOT Lawyers. These related to a number of matters involved in the determination as to several breaches of duty by NOT Lawyers to ABC and issues concerning causation of ABC's loss. Those findings constituted the substratum for issues associated with the liability of NOT Lawyers being ultimately determined in favour of ABC. Such liability, however, could not be enforced against NOT Lawyers, given that ABC's cause of action had become statute-barred through the negligence of Harris & Co. 90The issues of breach and causation were strongly contested (unsuccessfully) by both NOT Lawyers and by Harris & Co. Mr Nash, in contesting ABC's case on breach, disputed Mr Chahine's evidence in a number of respects and gave evidence on specific matters to support the defence of NOT Lawyers. The affidavit evidence relied upon in the proceedings by both Mr Chahine and Mr Nash was substantial. The contest on liability involved prolonged cross-examination of both deponents on a number of matters relevant to the determination of both breach of duty by Mr Nash and the issue of causation of loss or damage by ABC said to have arisen from the various breaches of duty referred to in the final judgment. 91In the judgment of 17 December 2010, findings of fact were made on such matters, a number of which turned upon Mr Nash's unsupported recollections of conversations that he claimed that he had had with Mr Chahine: at [409] to [459]. The findings made as to Mr Nash's reliability as a witness were adverse to him (at [409] to [430]) and ultimately to the position of NOT Lawyers on the liability issues. 92As earlier noted, the parties were in agreement that approximately 20% of the hearing time could be said to relate to the limitation issue and 80% to the issues concerning liability. 93The evidence and submissions concerning the primary liability of NOT Lawyers occupied the major part of hearing time. The expiration of the limitation period as a defence by NOT Lawyers, on the other hand, was a discrete issue that required only limited hearing time. It was separable from the factual matters subjacent to the issues of breach of duty and causation. The time devoted to that issue at the hearing principally occurred following the close of evidence and in the course of submissions. 94It is clear, as earlier noted, that, but for the limitation issue, ABC would have succeeded against NOT Lawyers. The liability issues and related evidentiary matters contested by both NOT Lawyers and Harris & Co were both dominant and, in the relevant sense, separable, from the limitation defence. This is a case, in my opinion, in which there can and should be an apportionment of costs. 95In considering the nature or extent of any apportionment, it has been necessary to take into account the substance of the issues litigated. That, in turn, has required a consideration of the significance of the amendments to the pleadings, including the addition of ABC as a co-plaintiff, the consequent change in the nature of the causes of action relied upon, the extent to which the issues of breach of duty and causation were significant issues both in preparation of the proceedings and at the final hearing and the affidavit evidence filed on behalf of both ABC and NOT Lawyers relevant to evidentiary matters and liability issues. 96In determining an apportionment of costs, mathematical precision, of course, is neither possible nor expected. The proportion of time, in what was a lengthy hearing, taken up with questions of the primary liability of NOT Lawyers, in my assessment, broadly reflects the extent of work, including the preparation of affidavit evidence and written submissions involved in the preparation of the case on the issues of breach of duty and causation contested at the hearing. Doing the best one can in evaluating the question of apportionment, and taking into account all relevant matters, including contested evidentiary issues at hearing, I am of the opinion that an apportionment of 80% to 20% is an appropriate one to apply to the preparation and presentation of the proceedings from the date upon which ABC was joined (26 March 2007) as a co-plaintiff in the pursuit of the "no transaction" case. 97Accordingly, the claim for NOT Lawyers' costs in respect of the period 26 March 2007 to date should, in my opinion, be apportioned on the basis of 80% to 20% the latter (20%) being the basis for a costs order in favour of NOT Lawyers, they having succeeded on the limitation defence but having failed on all liability issues. 98In reaching the conclusion on apportionment, I have not overlooked two particular matters raised by NOT Lawyers in NOT's Further Submissions on Costs . The first is the contention that, until 23 March 2007, the plaintiffs' case was put on an entirely different basis, namely, that it was a "transaction" case, entirely different to that which NOT Lawyers was faced with at hearing. The submission by NOT Lawyers was that there can be no basis for apportioning the costs of that time period, even if the Court were to hold that some apportionment was appropriate. It was said that this was because the case that was, in fact, successful on the issues in respect of which apportionment is sought was only introduced to the claim with the joinder of ABC as the second plaintiff. 99However, this submission overlooks the fact that, prior to 23 March 2007, the case for Artistic had raised a number of allegations of breach of duty of care by NOT Lawyers, many of which were incorporated in and became part of the case presented by ABC and upon which ABC was ultimately successful. This position is reflected by the Further Amended Statement of Claim which was filed pursuant to orders made on 7 May 2003. In particular, paragraph 50 of the Further Amended Statement of Claim particularised a number of matters in support of the contention that NOT Lawyers had failed to exercise due care and diligence. Several of these involved the failure by NOT Lawyers to advise the plaintiff, Artistic, in respect of a number of matters concerning the Queensland property and the adequacy or otherwise of securities and such like matters. 100NOT Lawyers had put all of these allegations of breach of duty in issue. Accordingly, it is not, with respect, accurate to say that issues of breach of duty and causation and damage emerged only after the "no transaction" case arose on the filing of the Third Amended Statement of Claim on 23 March 2007. 101Secondly, I do not consider that the plaintiffs' rejection of the offer of settlement made on 11 March 2010 is a factor which tells against an apportionment of costs, otherwise determined to be appropriate. 102A plaintiff's failure to accept (or the rejection) of an offer of settlement in an amount that is not bettered may well result in the plaintiff not recovering costs from the defendant/offeror from the date the offer expired or was rejected. But the principle underlying such a situation (to deny the awarding of costs in favour to a successful plaintiff) is not one that case law has applied in the determination of a question as to whether or not an apportionment of costs of a defendant is warranted. Whilst an apportionment of costs, of course, may have the practical result of a successful defendant being deprived of some costs, it is not confined to an issue concerning the entitlement of a plaintiff to costs. Further, an apportionment of the costs of a successful defendant focuses attention on the successful defendant's decision to put certain issues strongly in contest but where it ultimately lost on those issues. It is not, in other words, wholly directed to the plaintiff's conduct. 103In the exercise of the broad discretion on apportioning costs, some recognition is to be given to the fact that, whilst NOT Lawyers were ultimately successful parties by reason of the limitation defence, they failed on all the substantive issues strenuously contested at trial. 104In those circumstances, I do not consider that the decision by the plaintiffs to reject the offer would, in itself, create a proper or valid foundation for refusing to apportion costs from the date the offer was made in circumstances that establish that apportionment is otherwise appropriate. 105In relation to the application on behalf of NOT Lawyers, that if costs were to be apportioned, Harris & Co should be made liable for that portion of the costs for which the plaintiffs are not liable. I do not consider that any basis has been established whereby a Sanderson order can or should be made in favour of NOT Lawyers against Harris & Co in respect of that portion of the costs to which I have referred. 106I will deal with the question of the making of a Sanderson order in greater detail in what follows.

(d) Are ABC and/or NOT Lawyers entitled to a Sanderson Order against Harris & Co? 107I turn to the question that has been raised in submissions as to whether an apportionment of costs having been made there is a basis for the making of Sanderson orders in these proceedings. 108In Sanderson v Blyth Theatre Company [1903] 2 KB 563, Romer LJ stated that under the Judicature Act 1890, the Court had full power over the costs of all parties which power included the making of what came to be known as Bullock orders and, additionally, power to order the unsuccessful defendant to pay directly to the successful defendant his costs (at 538 to 539). 109Romer LJ stated that an order of the latter kind, since known as a Sanderson order, had become "... The modern practice, in order to avoid security ..." . Additionally, it was observed (at 539):- "... Of course, in exercising the jurisdiction, a judge should have regard to the circumstances of the case, and be satisfied that it is just that the unsuccessful defendant should, either directly or indirectly, have to pay the costs of the successful defendant ..." 110A court may, where it considers it just to do so, oust the general rule that a plaintiff who succeeds against one defendant but fails against the other must pay the costs of the successful defendant. It may do so either by ordering the unsuccessful defendant to reimburse the plaintiff for the costs of the successful defendant (a Bullock order) or that the unsuccessful defendant pay direct to the successful defendant the plaintiff's costs of proceedings against the latter (a Sanderson order): Law of Costs by G E Dal Pont [2003] at [11.9]. 111In Gould v Vaggelas (1983-1985) 157 CLR 215 at 229, Gibbs CJ observed that a Bullock order may be made where it was reasonable in all the circumstances for the plaintiff to bring the action against two or more defendants. However, it was also there observed 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 (at 229):- "... 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 to 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 over-caution." 112Gibbs CJ in Gould (supra) referred to the reasons stated in Johnsons Tyne Foundry Pty Limited v Maffra Corporation (1948) 77 CLR 544 at 560, 566, namely, that a Bullock order was justified by the attitude adopted by the successful defendant having induced the plaintiff to join the other defendant. 113Accordingly, in the making of a Bullock or a Sanderson order, it is necessary to consider the conduct of the unsuccessful defendants, Harris & Co, and whether such conduct has been such as to make it fair to impose some liability on them for the costs of the successful defendants (NOT Lawyers). 114In the Defence to the Third Further Amended Statement of Claim filed by NOT Lawyers, a ground of defence was raised (paragraph 28) to the effect that, in the event that ABC had suffered damage as alleged, then ABC was statute barred from maintaining its cause of action for breach of duty by virtue of s.14 of the Limitation Act 1969. 115Harris & Co did not raise, by way of defence, any limitation question until the Further Amended Defence was filed on 9 June 2009. By that amended pleading, Harris & Co set out in paragraph 52 the basis upon which it contended that ABC had brought its claim against NOT Lawyers within the limitation period (namely, by the filing of the Second Further Amended Statement of Claim against NOT Lawyers on 26 March 2007). 116ABC, therefore, had been pursuing a claim against NOT Lawyers for a period of in excess of two years before Harris & Co raised the contention in its Further Amended Defence filed on 9 June 2009 asserting that the claim against NOT Lawyers had been brought within the limitation period. 117It is clear that ABC's decision to claim against NOT Lawyers was one made by it, on advice, and it is difficult for ABC now to claim in relation to the question of costs that the conduct of Harris & Co was responsible or contributed in a significant way to the maintenance of its action against NOT Lawyers. I have concluded that there was no conduct which would make it just for Harris & Co to bear the costs of the successful defendant, NOT Lawyers. 118Accordingly, on this basis, the liability for NOT Lawyers' costs as apportioned at 20% should rest with ABC based on the principle that costs follow the event.

The stay application 119The application for a stay on judgment and orders made in the proceedings was supported by the affidavit of Mr Simon Lusk, solicitor, sworn 16 February 2011. Mr Lusk stated in his affidavit that Harris & Co seek a stay of execution pending determination of an appeal in respect of specified findings made in the judgment delivered on 17 December 2010 (paragraph 2 of Mr Lusk's affidavit). 120In paragraph 8 of the affidavit, Mr Lusk stated that he apprehended that there was a risk that if the damages the subject of the judgment and final orders be made consequent upon the judgment are paid to the second plaintiff, ABC, before the appeal is determined, and if the appeal is successful, then Harris & Co may not be able to recover all or any of the funds from ABC. 121In paragraph 8, Mr Lusk set out the bases for his apprehension in that regard. It is not necessary here to reproduce all the matters set out in paragraph 8.1 to 8.8 of the affidavit. 122Mr Lusk was cross-examined on his affidavit on 18 March 2011. In particular, he was cross-examined upon the investigations that had been conducted in relation to the assets and financial capacity of ABC. 123Whilst there is an onus upon the applicant for a stay to identify the circumstances that would warrant a departure from the general rule which favour enforcement of a judgment, it is not necessary for such a party to establish circumstances that may be described as "special" or "exceptional" : Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685. The proposed grounds for appeal are to be taken into consideration along with circumstances such as the risk that monies paid under a judgment may be irrecoverable if an appeal is successful. 124I have considered the evidence and in all the circumstances, I am of the opinion that it is appropriate for a stay on the judgment and orders be granted. Accordingly, I will make provision for a stay order in the final orders set out at the conclusion of this judgment as sought in the notice of motion.

(1) Judgments (1) Verdict and judgment for the second plaintiff, ABC Plumbing Services Pty Limited, against the 11 th to 17 th defendants (Harris & Co) in the amount of $3,500,000 inclusive of pre-judgment interest and costs. (2) Verdict and judgment for the 1 st to 4 th defendants, Nash O'Neill Tomko Lawyers, against the first and second plaintiffs.

(a) The period 11 July 2001 to 8 June 2007 (3) That the 11 th to 17 th defendants (Harris & Co) directly pay 50% of the costs claimed by NOT Lawyers against Artistic on the ordinary basis as agreed or assessed in respect of the period 17 October 2002 to 26 March 2007. (4) Accordingly, Artistic is to pay:- (a)(a) the costs claimed by NOT Lawyers on the ordinary basis as agreed or assessed for the period 11 July 2001 to 16 October 2002; (b)(b) 50% of the costs claimed by NOT Lawyers on the ordinary basis as agreed or assessed in the period 17 October 2002 to 26 March 2007. (5) Harris & Co is to be liable for the balance, 50% of NOT Lawyers' costs, in respect of the period referred to in (4)(b) above.

(b) The period 9 June 2007 to 15 March 2009 (6) An order that the second plaintiff, ABC Plumbing Services Pty Limited, pay the 1 st to 4 th defendants, Nash O'Neill Tomko Lawyers, costs on the ordinary basis, as agreed or assessed, for the period 9 June 2007 to 15 March 2009.

(c) Order apportioning NOT Lawyers' costs from 16 March 2009 (7) An order apportioning the costs of NOT Lawyers from 16 March 2009, on the basis that NOT Lawyers are entitled to 20% of the costs on the ordinary basis as agreed or assessed in respect of the period from 16 March 2009 to date of judgment.

(d) The period 16 March 2009 to date of judgment (8) An order in respect of NOT Lawyers' claim for costs that the second plaintiff, ABC Plumbing Services Pty Limited, pay 20% of the costs of the 1 st to 4 th defendants, Nash O'Neill Tomko Lawyers, on the ordinary basis as agreed or assessed in respect of the period 16 March 2009 to date of judgment. (9) Noted:- (a)The above orders do not affect any previous costs orders made in the proceedings. (b)In relation to the application for costs by NOT Lawyers, the plaintiffs and Harris & Co have been successful on a number of issues. The parties are to advise my associate whether costs associated with the application for costs by NOT Lawyers are to be resolved by agreement. Leave to apply on that question.

(3) Stay order 126In respect of the notice of motion of the 11 th to 17 th defendants, Harris & Co, filed on 22 February 2011, I make the following orders:- (1) Order that the judgment in favour of the second plaintiff, ABC Plumbing Services Pty Limited, referred to in paragraph [125(1)] be stayed until further order of the Court. (2) Order that the second plaintiff, ABC Plumbing Services Pty Limited, pay the 11 th to 17 th defendants, Harris & Co's, costs of the motion as agreed or assessed.

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: 05 May 2011