Australian Broadcasting Corporation v O'Neill

Judgment 1By Originating Process filed on 24 June 2013, the Plaintiffs, Mr Robert Gillespie and a proprietary company associated with Mr Gillespie, RM Gillespie Investments Pty Limited ("RMGI"), seek orders in respect of allegedly oppressive conduct of the affairs of Courtesy Real Estate (NSW) Pty Limited ("Company") which operates a real estate agency at Neutral Bay, New South Wales. The Defendants to the proceedings are the Company and its other shareholders and directors. 2In particular, the Plaintiffs seek a declaration that the Company's affairs have been conducted in a manner that is contrary to the interests of the members of the Company as a whole or oppressive to, unfairly prejudicial to or unfairly discriminatory against RMGI for the purposes of s 233 of the Corporations Act 2001 (Cth). The Plaintiffs also seek a declaration that a resolution passed by a general meeting of the Company on 22 February 2013, removing Mr Gillespie as a director of the Company, was invalid or, in the alternative, oppressive, unfairly prejudicial or unfairly discriminatory against RMGI and a mandatory order that specified Defendants take all steps and do all such things as are necessary to reappoint Mr Gillespie as a director of the Company. The Plaintiffs also seek declarations that other identified conduct in respect of the Company's affairs since February 2013 was invalid or oppressive, unfairly prejudicial or unfairly discriminatory against RMGI and orders that several Defendants purchase RMGI shares in the Company for no less than their value defined in a Shareholders Agreement, or alternatively an order under s 233(1)(d) of the Corporations Act that the Defendants purchase all of RMGI's shares in the Company at a specified value, or orders appointing a receiver and manager of the Company's property and authorising it to sell the Company's business or property or an order that the Company be wound up. 3By Amended Interlocutory Process filed on 10 July 2013, Mr Gillespie and RMGI seek interlocutory relief, including orders authorising inspection of the Company's books under ss 198F and 247A of the Corporations Act, restraining the Defendants from certain actions, and an order that, until further order, the Defendants take all such steps and do all such acts as are necessary to reappoint Mr Gillespie as a director of the Company. The matters in issue narrowed substantially at the hearing of that interlocutory process, since the Defendants consented to certain orders being made on an interlocutory basis, and subject to the Plaintiffs' undertaking as to damages. The matters which remained in issue, and which were argued before me, were whether the Court should order, on an interlocutory basis, that the Second - Fifth Defendants reappoint Mr Gillespie as a director of the Company and include his name with the title "director" with equal prominence to all other directors of the Company on its website and in any publications and promotional material. 4By way of background, Mr Gillespie, the Company and several Defendants are parties to a Shareholders Agreement which provides, inter alia, that Mr Gillespie is to be a director of the Company and is a "principal" entitled to a fixed salary and certain other benefits in respect of the Company. By resolution passed on 22 February 2013, certain of the Defendants purportedly passed a resolution removing Mr Gillespie as a director of the Company. I use the term "purportedly" because a dispute as to the validity of that resolution was identified in the course of submissions, with the Plaintiffs contending that the proxies given by two of the Defendants to the Chairman of the meeting did not comply with clause 25 of the Company's constitution or s 250A of the Corporations Act as they did not adequately name the member and did not include the member's address. Neither the Plaintiffs nor the Defendants addressed substantive submissions to that question. In further written submissions after the hearing, Mr Insall contended that the Plaintiffs have not "conceded" that the removal was in accordance with the Company's constitution; nonetheless, they did not develop any substantive argument to the contrary at the hearing before me. Any non-compliance with clause 25 of the Company's constitution or s 250A of the Corporations Act might well fall within the scope of an irregularity that did not invalidate the resolution under s 1322 of the Corporations Act but no submissions were directed to that matter. I do not consider it necessary or appropriate to determine the question of the validity of the resolution, even at a preliminary level, in this application in the absence of substantive submissions from the parties as to that question. 5Each of the Plaintiffs and the Defendants read several affidavits in this application. The Plaintiffs relied on Mr Gillespie's affidavit dated 20 June 2013; an affidavit of Mr Adrian Barwick dated 23 July 2013 that largely annexed correspondence between the respective solicitors; and Mr Gillespie's further affidavit dated 14 October 2013 that responded to evidence led by the Defendants. Mr Gillespie's primary affidavit dated 20 June 2013 deals with his background and his dealings with the Company since he was appointed as a director of the Company and commenced employment with it as a real estate sales agent in September 2004. He refers to the circumstances of the departure of a previous principal of the Company and to issues in respect of the Company's dividend strategy. Mr Gillespie gives evidence of certain health difficulties, which I will not set out at length, but which are relevant to the decision in this matter for reasons that I will note below, including his belief, based on information from his medical practitioners, that "the stress levels at work were adversely affecting [his] health" and that he had been informed that, if he did not relieve his work stress, serious adverse consequences could follow. He refers to his decision to leave the Company in early or mid August 2012 on the basis that it would be in the best interests of his health and his family, and refers to his wish to sell his shares in the Company in accordance with the Shareholders Agreement. He sets out, at some length, subsequent discussions with the Defendants in respect of the terms on which such a sale could take place. He gives evidence of changes to his work arrangements since October 2012, the meeting on 22 February 2013 at which he was removed as a director of the Company, and of his having taken stress leave for the period 23 February 2013 to 13 March 2013. 6The Defendants relied on the affidavit of Mr Peter Matthews dated 30 September 2013, Mr Kingsley Yates dated 30 September 2013, Mr Nathan Avery-Williams dated 20 September 2013, Mr Daniel Grant dated 30 September 2013 and Mr Shane Slater dated 30 September 2013. Mr Matthews' affidavit dated 30 September 2013 addresses the events dealt with in Mr Gillespie's affidavit including the circumstances of Mr Gillespie's removal as a director on 22 February 2013. There are significant factual disputes between Mr Gillespie and Mr Matthews as to those events, which is not appropriate to seek to resolve in an application of this kind. Mr Matthews also identifies several reasons, largely in the nature of submissions, why he contends that Mr Gillespie should not be reappointed as a director. Mr Slater takes issue with several aspects of Mr Gillespie's first affidavit in his affidavit dated 30 September 2013 and Mr Grant also addresses some of the disputed events in his affidavit dated 30 September 2013. Messrs Slater, Gillespie and Yates also indicate concern, albeit in a somewhat general way, that Mr Gillespie's reappointment as a director would have a negative impact upon the business. 7By his further affidavit dated 14 October 2013, Mr Gillespie in turn replies to the Defendants' affidavit evidence to which I have referred above and takes issue with the accuracy of substantial parts of that evidence. The Defendants also relied on a further affidavit of Mr Matthews dated 29 October 2013, which indicated that the Company did not oppose certain of the relief sought by Mr Gillespie, conditional upon certain matters. Mr Matthews' further affidavit also noted, and it appears to be common ground, that Mr Gillespie had been absent from work since about mid May 2013, and pointed to the absence of any medical certificates to explain that absence since 30 June 2013. The orders that will now be made by consent contemplate that Mr Gillespie will return to work. The parties' submissions 8The Plaintiffs' written submissions placed primary weight upon the fact that Mr Gillespie's removal as a director was, they contend, in breach of the Shareholders Agreement. The Plaintiffs also pointed to the fact that Mr Gillespie had been deprived of certain facilities previously provided to him as a principal and director under the Shareholders Agreement; however, those issues, other than for Mr Gillespie's reinstatement as a director, are to be addressed by the orders now to be made by consent in the proceedings. The Plaintiffs contend that the interlocutory order sought requiring that Mr Gillespie be reinstated as a director of the Company is directed to restoring the status quo. They point out that, under clause 4.1 of the Shareholders Agreement, and notwithstanding anything contained in the Company's constitution, the directors of the Company until otherwise agreed were to be named persons including Mr Gillespie and several of the named Defendants and clause 3.1 of that Agreement required the "principals" (as defined) to exercise their rights as directors in accordance with the provisions of the Shareholders Agreement. The Plaintiffs point out that the removal of Mr Gillespie as a director was contrary to those clauses of the Shareholders Agreement and contend that the "status quo" should therefore be restored by an interlocutory order restoring Mr Gillespie as a director. 9Mr Insall submitted that Mr Gillespie's reappointment as a director is required in order to ensure that the Company does not take steps which might erode its value, prior to any orders being made at the final hearing. Mr Insall submitted that, so long as Mr Gillespie was not a director of the Company and notwithstanding that he (or RMGI) had interests in the Company and in dividends under a Dividend Agreement, he was not entitled to notice of directors' meetings or of resolutions to be considered at them or to a say in the way the Company's affairs were being managed; there was at least a risk that the Defendants might take actions prior to a final hearing without consulting him; and he should be reinstated as a director so that he would be aware of any significant decisions that were being made in relation to the Company pending the final hearing. 10Mr Harris, who appears for the Defendants, contends that Mr Gillespie's sales performance was significantly less in 2012 than it had been in 2011. I would not treat this matter as having any significant weight in depriving Mr Gillespie of the relief sought if I were otherwise satisfied that it should be granted, both because Mr Gillespie's evidence was that 2011 had been a particularly strong year and that provides some explanation for his lesser performance in 2012, and because, more fundamentally, Mr Gillespie's entitlement to continue as a director under the Shareholders Agreement was not conditional upon his sales performance in any particular year. Mr Harris also raised the possibility that Mr Gillespie's not attending work for an extended period may have been a breach by Mr Gillespie of the Shareholders Agreement of such significance that it was effectively a repudiation of his obligations under that Agreement. Mr Insall rightly points out that such a breach does not seem to have previously been suggested, and it does not seem to me that the evidence presently available raises that possibility to a level that would deprive Mr Gillespie of the relief sought if he were otherwise entitled to it. 11Mr Harris points out that, even if Mr Gillespie is not reappointed as a director, his income is protected under the terms of the Shareholders Agreement by which the principals are entitled to a fixed salary and dividends are paid to the shareholders, albeit they depend on the level of commissions received by the Company attributable to the efforts of the respective principal of each shareholder, less the salary paid to that principal. The orders to which the Company consents will secure the payment of such salary. Mr Harris also points out that the orders to which the Company has consented will also secure Mr Gillespie's access to the Company's documents and that he is therefore not prejudiced by reason of any lack of access to documents to which a director would have access. Mr Harris submits that an interlocutory order requiring Mr Gillespie's reappointment as a director, which will require close contact with other directors with which he is in conflict, involves risks which are not involved in his recommencing work in the manner contemplated by the other orders to which the Company consents. Mr Harris also pointed out that, if Mr Gillespie is not reappointed as a director and can establish a breach of contract or that there has been oppression, then he will be able to obtain appropriate relief at a final hearing. Analysis 12On an application for an interlocutory injunction, the question is whether the Plaintiffs have established a sufficiently seriously arguable case for a final injunction to justify the grant of interlocutory relief, having regard to the balance of convenience. The Plaintiffs bears the onus of making out a case for interlocutory relief; a serious question to be tried must be established, before one reaches the question of the balance of convenience; and the two limbs of the question are interrelated, in that the strength of the Plaintiffs' case on the claim for final relief may be relevant to what is required to establish that the balance of convenience supports interlocutory relief, and the preponderance of the balance of convenience may be relevant to the strength of the case required to make out a sufficiently serious question to be tried: Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [65]-[72]. The strength of the Plaintiffs' case for final relief is of particular significance where the outcome of an interlocutory application will effectively determine the claim for final relief: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535-565; Australian Broadcasting Corporation v O'Neill above at [72]. 13In dealing with the balance of convenience, the question is whether the grant or withholding of interlocutory relief carries the lowest risk of doing injustice to one party or to the other or to a third party: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1 at [41]-[42]; (1998) 27 ACSR 535. In Goyal v Chandra [2006] NSWSC 239; (2006) 68 NSWLR 313, Brereton J also pointed to the relevance of the question whether damages are an adequate remedy, observing (at [42]) that: "It is sometimes said in applications for interlocutory injunctions that one consideration is whether damages would be a sufficient remedy. Properly understood, the real question is whether final injunctive relief would be declined because damages would be a sufficient remedy; if it can be seen at the interlocutory stage that that would be so, then an interlocutory injunction would be declined." 14The authorities indicate that, where interlocutory relief of a mandatory nature is sought, the Court weighs the potential consequences of granting mandatory relief which may later have to be undone in the same manner as it does the grant of prohibitory relief, and this is a matter that may be telling in the Court's consideration of the balance of convenience. In Business World Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 503-504, Gummow J noted, but did not follow, earlier decisions indicating that a "high degree of assurance", being a higher standard than required for prohibitory injunctions, could be required for the grant of a mandatory interlocutory injunction. His Honour there granted mandatory interlocutory relief, where he was satisfied that to do so would not, in any practical sense, decide the case on a final basis "because the consequences can be undone if final relief is refused" and where that was not a case where there was a significant element of personal trust or confidence between the parties on which the effective continuance of their relationship depended. The view that the test to be applied to grant interlocutory relief is the same as that applicable to the grant of prohibitory interlocutory relief was followed in Tumminello v TAB Ltd [2011] NSWSC 1639 per Slattery J at [43]. 15The parties did not refer, in submissions, to any case where a Court had ordered reinstatement of a director on an interlocutory basis, although Mr Insall submitted, and I accept, that there is no doubt as to the Court's power to make such order and the question is whether the circumstances in a particular case justify such an order. The question whether an order of that kind should be made was considered in Catley v Waipa Corporation Ltd (2004) 2 NZCCLR 50, where the New Zealand High Court (Rodney Hansen J) held that a serious question had not been established as to the invalidity of the removal of a director under the company's articles of association, but left open the possibility that relief could be established at a final hearing on the basis that the conduct was oppressive, unfairly discriminatory or unfairly prejudicial to the plaintiff. His Honour observed that, had the plaintiff made out a seriously arguable case that his removal as a director was invalid, he would have been minded to put in place some measure of restraint on the defendants to ensure that any rights which the plaintiff had as a director of the companies were not overridden, pending the substantive hearing, but declined to grant wider relief which was sought by the plaintiff in that case. His Honour referred at [27]) to the risk that interlocutory relief would, if the director were ultimately unsuccessful at trial, impose the damage of having the governance of the company changed against their will on those who voted in favour of a director's removal. 16I allowed the parties an opportunity to make further submissions as to that case. Mr Harris contended that the decision in Catley emphasised that, if the Court was to make any order consequent upon the removal of Mr Gillespie as a director, it should be an order, for example, requiring that he be given notice of any resolution proposed to be made by the directors that might potentially affect the value of his shareholding, so as to allow him an opportunity to approach the Court for appropriate relief. 17On the other hand, Mr Insall submitted, and I accept, that the Plaintiffs' contractual position in this case is significantly stronger to the position considered in Catley, since the terms of the relevant Shareholders Agreement plainly contemplate that Mr Gillespie would be a director of the Company. Mr Insall also submitted that, unlike the position in Catley, Mr Gillespie is here seeking to maintain the status quo which is in accordance with the Shareholders Agreement. That submission is correct so far as the Shareholders Agreement contemplated Mr Gillespie's continuing appointment as a director and the provisions of that Agreement had effect notwithstanding anything to the contrary in the Company's constitution, but does not address the length of the period for which Mr Gillespie has not been a director and, indeed, has not been actively involved in the Company's business for health reasons. 18Mr Insall also contends that, in the present case, unlike the position in Catley, the balance of convenience favours an injunction since: "Substantial disadvantage has been shown to Mr Gillespie (in the sense of continuing exclusion from all involvement as a director in the management of the Company, no entitlement to receive notice of any directors' meetings or to attend, be heard and vote at such meetings, no entitlement to be consulted in relation to any major investment or other business decision of the Company, no consultation in relation to, or involvement in declaration of dividends, possible exclusion from declarations of dividends and possible exclusion from additional privileges provided to other directors (as has occurred over his removal as director)." I note, however, that several of these matters have been addressed by the relief to which the Company consents and the balance could be addressed by lesser relief than sought by Mr Gillespie, to which I will refer below. Mr Insall also contends that the evidence shows a course of conduct by other directors and shareholders preferring their own interests and acting to the prejudice of Mr Gillespie; however, I do not consider that I can properly proceed on that basis in this interlocutory application, where the substantive merits of the parties' positions will only be determined on contested evidence at a final hearing. 19In this case, in my view, there is at least a seriously arguable case that the removal of Mr Gillespie as a director contravened clauses 3.1 and 4.1 of the Shareholders Agreement. The fact of a breach of the Shareholders Agreement in respect of Mr Gillespie's removal as a director may, but will not necessarily, establish an oppression case for the purposes of ss 232-233 of the Corporations Act, as to which a significantly wider range of considerations would be relevant which were not addressed by the parties in submissions. Accepting that a seriously arguable case for breach of the Shareholders Agreement is established and a seriously arguable case for oppression may be established, I do not consider, for several reasons, that the balance of convenience favours the grant of an interlocutory mandatory order requiring that Mr Gillespie be reappointed as a director. 20First, it does not seem to me that restoring Mr Gillespie to the position of a director can fairly be described as restoring the status quo, where he was removed as a director in February 2013 and did not commence proceedings until several month later in late June 2013 and did not file the interlocutory process seeking, inter alia, to reverse that position until that time. The result of the lapse of time seems to me that the status quo - albeit it appears to involve at least a breach of the Shareholders Agreement - is now that Mr Gillespie has for a considerable time not been a director of the Company. 21A second reason why the balance of convenience does not favour such an order is that it is not apparent that the Plaintiffs will suffers any significant detriment from the fact that Mr Gillespie is not presently a director of the Company that would not be addressed by the orders to which the Company consents and other orders which the Plaintiffs do not seek, although I raised the possibility of such orders being made in the course of oral submissions. Mr Gillespie does not suffer financial detriment from the present position, so far as the Company has accepted that orders should be made for the recommencement of payment of Mr Gillespie's "salary" which is in the ordinary course debited against his loan account as a principal of the Company. Mr Gillespie's position could have been protected from the risk of adverse transactions authorised by the other directors by, for example, orders requiring notification of directors' meetings and the matters to be discussed in them to be given to him in advance; orders requiring that he be provided with minutes of directors meetings recording any decisions which had been made within a specified time after they had occurred and an opportunity to challenge those decisions before they were implemented; or orders restraining the Company from the entry into significant transactions without giving him advance notice of such transactions. However, he does not seek orders of that kind. 22Conversely, there seems to me to be a significant risk that the Company's and its other shareholders' position could be detrimentally affected by an order requiring Mr Gillespie's reinstatement, in circumstances that the existing differences of opinion between directors have reached the level that has given rise to the commencement of these proceedings. Moreover, if the Court finds at the final hearing that any breach of the Shareholders Agreement arising from the removal of Mr Gillespie as a director is properly addressed by an order for damages, rather than other relief, and that oppression is not established - for example, because the relevant breach is found to be justifiable in the then circumstances - then an order requiring Mr Gillespie's reinstatement as a director would have overridden the view of the majority of shareholders in circumstances where neither the Shareholders Agreement nor the Plaintiffs' oppression claims may be found to justify that result at a final hearing. The undertaking as to damages offered by the Plaintiffs would not readily compensate the majority shareholders for that position. 23Mr Insall also points out that, if Mr Gillespie is not reinstated as a director, then dividends could be paid without his involvement, where he would otherwise have a right of veto since Recital B of the Dividend Agreement provides that dividends are to be paid as determined by unanimous resolution of the directors. However, the implication of that submission is that, if such an order were now made on an interlocutory basis, it would then be open to Mr Gillespie to exercise a right of veto to prevent any further dividend payments by the Company. An inability to pay dividends pending a final hearing may in turn impose damage on the Company and its shareholders that extends beyond the monetary cost of delay, to the extent that it places the Company's other shareholders under financial pressure, which may be difficult or impossible to quantify for the purposes of the Plaintiffs' undertaking as to damages. 24A final reason why the balance of convenience does not favour a mandatory order requiring the relevant Defendants to reappoint Mr Gillespie as a director is that, when Mr Gillespie initially sought to invoke the provisions for a sale of his shares in the Company under the Shareholders Agreement, he did so at least in part for health reasons and, in particular, because of medical advice that he had received that he should reduce the level of stress upon him. There is evidence that Mr Gillespie has not attended the Company's office for a considerable period, since 15 May 2013, and he relied on a medical certificate in respect of stress leave for part but not all of that period of absence. While Mr Gillespie's evidence is that he has now taken steps, including acupuncture and meditation, to address his health issues, there is real reason for concern that requiring that Mr Gillespie be returned to the position of a director of the Company in the midst of oppression proceedings and over the opposition of the Defendants would not be appropriate given that history, notwithstanding that he now seeks that course. 25The Plaintiffs also sought an order, in addition to the order that Mr Gillespie be reinstated as a director, that his name be included with the title "director" with equal prominence to all other directors of the Company, on its website and in any publications and promotional material. I raised, in the course of oral submissions, whether such an order could be made without a mandatory order for his reappointment as a statutory director, since the term "director" is sometimes used in the commercial community for persons occupying senior positions in commercial organisations, who are not necessarily statutory directors of those organisations. Mr Gillespie ultimately did not take up that suggestion in submissions and the Defendants contended that, if such an order were to be made, it should only be made on the basis that he be referred to as "sales director" in such material. I do not consider that I should make such an order, where Mr Gillespie did not himself contend for it as an alternative to the primary relief that he sought. 26For these reasons, I will make the orders which are able to be made by consent between the parties, subject to addressing certain questions as to the form of those orders which were raised in the course of the hearing of the application and which remain to be addressed, as to which I will hear the parties. I am not satisfied that I should make a further order requiring the Defendants to reinstate Mr Gillespie as director on an interlocutory basis. Costs 27Mr Insall submits that the Defendants should pay the costs of this application because Mr Gillespie has been substantially successful, in the sense that the majority of orders that he had sought were consented to; those orders had been sought for a substantial time; and there had been a substantial capitulation by the Defendants at the last minute. On the other hand, Mr Harris contends that the proper order for costs is that the costs be costs in the cause. 28Mr Insall drew attention to the observations of Austin J in Australian Securities and Investments Commission v Rich [2003] NSWSC 297 at [77]ff, where his Honour noted that agreed orders represented substantial success on the part of defendants in respect of their application and were inconsistent with the attitude maintained by the plaintiff in that case up to the hearing of the application. His Honour noted that, where an application is disposed of by consent, it was not normally be appropriate to make an order for costs except as agreed between the parties, and that the Court would take into account the desirability of encouraging and not penalising a party who responded to an application by negotiating a compromise. His Honour nonetheless noted (at [79]) that there were cases where it would be appropriate for the Court to make a costs order where the parties had reached agreement to dispose of the substance of the application but there was no agreement as to costs, including where the attitude adopted by one party left the other with no realistic option but to make the application, and where the consent orders accepted by one party were inconsistent with the position that it had previously adopted and represented substantial success for the other party on all issues. 29Mr Insall also pointed out that the Defendants' failure to provide a written outline of submissions as required by the Court's directions meant that, until the hearing commenced, Mr Gillespie had no real indication of what matters were to be agitated or that the Defendants' response would essentially limited to the balance of convenience in relation to his reappointment as a director. Mr Harris responded that the Defendants' failure to serve submissions did not increase the costs of the hearing. There is no doubt that the Defendants' notification that several of the orders sought were not opposed, so far as it was given by Mr Matthews' affidavit dated 29 October 2013, was very late. However, it is unlikely that Mr Gillespie was exposed to substantial additional costs by reason of that matter, because the evidence on which he relies in the application appears to be the evidence that was prepared for and on which he will rely for the substantive relief sought in the proceedings, although the failure to serve submissions may have increased Mr Gillespie's costs of Counsel's preparation for the hearing to some extent. 30In the present case, it seems to me that the parties have had a mixed result. On the one hand, a substantial part of the Plaintiffs' claim for interlocutory relief was conceded by the Company in circumstances which, had no other issues been raised, might well have led to an order for costs in their favour, and the Plaintiffs have likely been imposed to some additional costs by reason of the matter noted in paragraph 29 above. On the other hand, the Plaintiffs have not been successful in obtaining a mandatory interlocutory order requiring Mr Gillespie's reinstatement as a director and that question took up substantially all of the hearing time in this application. On balance, it seems to me that that mixed result is properly reflected by an order that costs be costs in the cause. 31Mr Insall also contended that an order should be made that the Defendants pay the Plaintiffs' costs forthwith. Mr Harris responded that this was not an exceptional case in which such an order should be made, but that costs of this application should be paid, in the usual way, once the costs of the final hearing were known. Neither party made submissions as to the applicable case law. This question does not need to be determined given that costs will be costs in the cause.