Australian Olympic Committee Inc v The Big Fights Inc

At para [121] of my earlier Reasons, I gave the following summary: "To summarise, OCOG did not sell the copyright in the edited films to Peter Whitchurch. Rather, it granted him a non-exclusive right to reprint them and sell the copies, and this was not inconsistent with the agreements already entered into by OCOG with CSA, Coca Cola and Olympic Tyre & Rubber. Instead of a régime of periodic royalty payments to OCOG on the occasions of sales, for the once only payment of Ł100 that he made to OCOG, Peter Whitchurch was entitled to retain the proceeds of all his future sales. He was, however, obliged to provide a copy of the edited films to OCOG or the AOF if so requested, upon payment of only the cost of production and delivery. Title to the physical edited films also remained with OCOG, although it was a term of the contract that Peter Whitchurch should have possession of them for the purpose of exercising his contractual right to reprint and to sell. Peter Whitchurch had possession of the physical edited films (and, for that matter, of the other physical films) as bailee." 12 In favour of the construction which it supports, TBF refers to the background to the writing of OCOG's letter of 23 November 1960 and submits that this background indicates that the parties intended that the right to authorise television broadcasting and similar activity would be included in the Rights. TBF refers to the fact that Mr Nette of OCOG, in his letter of 15 February 1960 to Peter Whitchurch, spoke of the right of exploitation of the full set of OCOG's record films as including "the sole sales rights for radio, television and any other sale possibilities"; the use of the word "exploitation" in the minutes of the Winding-up Committee dated 23 November 1960; the request in Peter Whitchurch's letter to OCOG of 12 September 1960 that he be able to "deal with whatever crops up"; and the fact that copyright law had been extensively amended, broadly as it was to become under the Act, in the United Kingdom in 1956. In relation to this last matter, TBF draws attention to the fact that in 1959, it was recommended that similar changes be introduced in Australia and submits that I should infer that OCOG's senior officers and Peter Whitchurch would have known of this. On the basis that they did know of it, TBF submits that it is inconceivable that: "they would have required purchasers of footage from Peter Whitchurch (who would thereby have the right to broadcast the films on television) to seek permission, from a body which planned shortly to become defunct, to exercise rights that might soon be introduced" and that it was "much more likely that they intended that Peter Whitchurch be in a position to grant those rights". 13 TBF also relies on Redwood Music Ltd v B Feldman & Co Ltd & Others [1979] RPC 385. In that case the words used in an assignment of copyright in songs were construed to include an assignment of future property or rights in them. But the words used in that case were: "the whole of the property, copyright and interest, present or future, vested or contingent." (emphasis supplied) The English Court of Appeal said of those words (at 394): "Those words were wide enough to include any future property or rights in the songs, and we see no reason to limit the intention of those who used them in the years 1900 to 1911, when (as Mr Stable put it) reform of copyright law was 'in the air' and the parties concerned with songs might have 'got wind of' the sort of changes which were to be enacted in 1911, to 'old copyright' in existing or future works." 14 For its part, the AOC submits that the issue raised by TBF was determined against it in my earlier Reasons and that I there held that, upon the proper construction of OCOG's letter, Peter Whitchurch was given the non-exclusive right to reprint the edited films and to sell copies of them and that it was "not necessary to impute or infer an intention to grant … the right to authorise their subsequent exhibition in public or their broadcast". If I should be against the AOC in this respect, it submits that the plain terms of OCOG's letter dated 23 November 1960 did not encompass a grant of rights beyond the right to reprint and sell. It submits that none of the matters on which TBF relies can substitute for, or expand, the words of the letter. In relation specifically to the possibility that the parties knew of changes to United Kingdom copyright law and of the recommendations for amendment of Australian copyright law, the AOC submits that TBF's submission is based on "pure speculation". 15 In reply, TBF submits that I did not previously determine the issue raised by it which is whether after 1 May 1969, the "residual rights of reprint and sale" included the right to "include the work in television broadcast". 16 In my earlier Reasons, I determined that "the residual rights of reprint and sale" in respect of the edited films signified a non-exclusive right to reprint the edited films and to sell the copies resulting from the reprinting. My earlier Reasons did not refer to the question whether, according to the construction just mentioned, the Rights came to have, after 1 May 1969, the particular significance of encompassing a right to include the photographs in a television broadcast and the right to cause a television program that includes the photographs to be transmitted to subscribers to a diffusion service. It is not inconsistent with the declarations that I made that the AOC is the owner of the copyright in the photographs of which the films consist, for the Rights to have come to include non-exclusive rights of the kind described in para (iii) or (iv) of para 31(1)(b) of the Act. 17 It is arguable that it was inherent in my earlier Reasons that the Rights did not come to include those rights. It is not profitable to discuss further whether it was or was not. In my opinion the Rights did not come to include, as from 1 May 1969, those rights. 18 In my view, it stretches the language "residual rights of reprint and sale" unacceptably far to make them do the work suggested by TBF. I do not find any ambiguity or uncertainty in the meaning of the word "reprint" or the word "sale". Nor do I think that any of the background material relied on by TBF suggests that those words should not be given their plain meaning. I would not infer that officers of OCOG and Peter Whitchurch knew of the then recent amendments made to copyright legislation in the United Kingdom by the Copyright Act 1956 (UK) or the recommendations made in 1959 for the making of similar amendments to the Australian legislation. If I did think it proper to infer that those persons were aware of those matters, it would not necessarily follow that OCOG's letter would be construed so as to overcome the plain meaning of the words "reprint" and "sale". 19 Finally, the Redwood Music case is distinguishable because of the amplitude of the language used and, in particular, the inclusion of a reference to "future" and "contingent". 20 My construction of the words "residual rights of reprint and sale" sits comfortably with the meaning of copyright in the photographs as at 23 November 1960. Second outstanding issue - Trust matters 21 In my earlier Reasons I held that the Rights had devolved through the respective estates of Peter Whitchurch and his widow Elsie Whitchurch so that they came to be held by John Whitchurch and Benson in trust, following the assignment by deed dated 11 December 1996 by John Whitchurch to the AOC of his own undivided one third interest, for Benson, Talbot and the AOC in three equal undivided shares. 22 Since the conclusion of the principal hearing, Benson and Talbot, on 15 April 1999, executed an assignment in favour of ESPN. The assignment was in respect of "Rights", an expression which was defined in the document to mean: "(a) any rights granted to Peter Whitchurch by the letters dated 15 February 1960 and 23 November 1960 from the Organising Committee for the XVIth Olympiad; (b) any right, title and interest of Peter Whitchurch in the 1956 Melbourne Olympic Films, including property rights in the films as chattels; and (c) any right, title or interest in the 1956 Melbourne Olympic Films held by Benson and/or Talbot as a result of the final determination of the Proceedings." Each of Benson and Talbot assigned to ESPN any Rights, as so defined, "to the extent permissible by law." 23 On 18 August 1999, following delivery of my earlier Reasons on 3 August 1999, the solicitors for ESPN, Benson and Talbot wrote to John Whitchurch informing him of the assignment and, on behalf of ESPN, as successor in title to Benson and Talbot, calling on him as one of the trustees of the estate of Elsie Whitchurch, "to formally transfer (by executing [an] enclosed agreement) to ESPN the rights already assigned by [Benson and Talbot] to ESPN". 24 The solicitors' letter enclosed a form of agreement reciting that the "Rights" (defined in the form of agreement as described below) were held in trust by John Whitchurch and Benson as trustees for Benson, Talbot and the AOC in three equal undivided shares, the assignment by Benson and Talbot to ESPN effected by the agreement dated 15 April 1999 and ESPN's request to the trustees, John Whitchurch and Benson, to transfer the Rights to it. The form of agreement defined the expression "Rights" to mean: "the non-exclusive rights of re-print and sale granted on or about 23 November 1960 by the Organising Committee for the XVIth Olympiad to Peter Whitchurch in respect of the Edited Films as confirmed by Justice Lindgren in his judgment dated 3 August 1999 … ". 25 John Whitchurch did not sign and return the document. Indeed, on 29 November 1999, the solicitors for the AOC wrote to Benson and Talbot asserting that the assignments by them to ESPN were "in breach and repudiation of the licence of the Rights granted to Peter Whitchurch on 23 November 1960". 26 On 17 March 2000, I granted the cross-claimants leave to file a further amended cross-claim as a result of which they seek: "(c) an order that the First Cross-Claimant [Benson] and the Second Cross-Respondent [John Whitchurch] assign to the First Cross-Respondent [the AOC] one third and to the Third Cross-Claimant [ESPN] two thirds of the legal title in the rights held on trust by them for the Third Cross-Claimant [ESPN] and the First Cross-Respondent [the AOC], being the non-exclusive right to reprint and sell the Edited Films of the 1956 Melbourne Olympic Games to the intent that each of the Third Cross-Claimant [ESPN] and the First Cross-Respondent [the AOC] may thereafter exercise independently the full non-exclusive right of reprint and sale." 27 In the alternative, by the further amended cross-claim the cross-claimants seek an order that John Whitchurch be removed as co-trustee of the estate of the late Elsie Whitchurch. 28 The AOC submits that I should not entertain "the trust issues" raised by the further amended cross-claim. It submits as follows: "13. The grant of licence was to Peter Whitchurch and his estate. It was not a mere licence. It required Peter Whitchurch and his estate to maintain a copy of the films, to be responsive to requests for copies and to provide a copy to certain Olympic bodies free of charge. 14. It was not within the contemplation of the parties that the rights leave the 'Whitchurch' family. See statement of the argument in paragraph 120 of the reasons for judgment. 15. It is the AOC's contention that any transfer by the trustees of the Rights out of the 'Whitchurch' family without the consent of the AOC, for example, to ESPN or to another third party, would be in breach and repudiation of the licence. 16. In the present case, two beneficiaries (Benson and Talbot) have purported to transfer their interests in the Rights to ESPN. The purported assignment occurred post evidence and before judgment. This is an agreement only enforceable in Equity. 17. Equity will not permit to be done indirectly that which could not be done directly. Thus, Equity would not give effect to the transfer to ESPN. 18. Hence, there is a preliminary bar to ESPN seeking to agitate 'the trust issues'. The Court should not entertain ESPN's call for the Rights or any of them, nor the respondents' application for removal of trustee. 19. Further, the AOC contends that the purported transfer by the two beneficiaries of their interest is in breach of the licence and a repudiation of it. The purported transfer was an attempt to change the capacity in which the trustees held the interest from trustees for Whitchurch or AOC authorised interests to ESPN interests. That was a breach and repudiation of the obligation not to transfer the interest outside the Whitchurch family without the AOC's consent. Alternatively, it breached and repudiated the implied obligations to give the AOC the full benefit of that obligation. The AOC can accept that repudiation (judgment para 437) and has done so. 20. Hence, any interest of ESPN, Benson and Talbot is at an end." 29 In paras [119] and [120] of my earlier Reasons, I noted the AOC's submission that it should be implied as a term of the agreement between OCOG and Peter Whitchurch that Peter Whitchurch would not assign the benefit of the contract, that is, the Rights. The submission was founded upon statements made by Peter Whitchurch in his letter dated 12 September 1960 to OCOG. I noted, with reference to authorities, that if the agreement contained the implied term suggested by the AOC, any purported assignment by Peter Whitchurch or his legal personal representatives would be ineffective to vest the Rights in the assignee. I did not need to decide the issue raised by the AOC. 30 For the following reasons, in my opinion, the suggested term was not part of the contract. First, OCOG's letter of 23 November 1960 was a counter offer (see para [116] of my earlier Reasons) and did not refer to the present matter which was apparently of no interest to it. Secondly, in his letter of 12 September 1960 Peter Whitchurch stated that he "would like to stay associated with" the edited films, not the language of contractual promise, and that he "would point out" that OCOG would always have a representative who knew "exactly what happened", a statement that could relate only to himself, not his family and which, in any event, is also not the language of contractual promise. It is true that he stated finally that "posterity" would have access to all the films of the 1956 Games by, inter alia, ordering a copy of an edited film "from Peter Whitchurch or his estate" but again, I do not think that this was intended to be a contractual promise binding on Peter Whitchurch and his legal personal representatives. I do not accept that Peter Whitchurch intended to bind his successors until the copyright in the photographs expired. Thirdly, the Rights have long since ceased to form part of Peter Whitchurch's estate so that there is no longer any question of the condition being satisfied according to its terms. 31 I turn now to the cross-claimants' first submission. This is that John Whitchurch's undivided one-third share in the Rights has merged with the legal interest held by the AOC, and so was extinguished. In their written submissions, the cross-claimants put the matter in this way: "The AOC is, as a result of the Court's judgment, the owner of the whole of the copyright in the Edited Films. Immediately upon conveyance of the legal title to the copyright from the ASC to the AOC by the deed of 20 October 1997, which came into effect on 3 August 1999, John Whitchurch's one third beneficial interest in a licence of that copyright merged in the legal estate held by the AOC, and so was extinguished. Talbot and Benson were then the holders of the whole beneficial interest in the trust property." 32 The AOC became the owner of the copyright in the films as well as the general property in the physical films as a result of a deed of assignment from the ASC dated 8 December 1997 as amended by a deed dated 5 June 1998. Previously, on 11 December 1996, John Whitchurch had assigned to the AOC his undivided one third interest in the Rights. Accordingly, from that date he and Benson as trustees had held that undivided one third share in trust for the AOC. 33 The cross-claimants refer to authorities which illustrate applications of the doctrine of merger of greater and lesser estates which was stated in the following terms in Blackstone's Commentaries: "It may be proper to observe that whenever a greater estate and a lesser coincide and meet in one and the same person without any intermediate estate, the less is immediately annihilated; or in the law phrase, is said to be merged, that is sunk or drowned in the greater … ". The cross-claimants' submission continues to the effect that following the assignment by Talbot and Benson to ESPN by the deed dated 15 April 1999, ESPN became beneficially entitled to the whole of the trust property, that is, the Rights. Thus, remarkably, the undivided one third interest of John Whitchurch has disappeared and the two undivided one third interests of Talbot and Benson have been enlarged commensurately. The final step in the submission is that, as the person beneficially entitled to the whole of the trust property, ESPN is entitled to call upon the trustees, Benson and John Whitchurch, to assign the trust property to it: cf Saunders v Vautier (1841) Cr & Ph 240; 49 ER 282. 34 I have no hesitation in rejecting the submission. The doctrine on which the cross-claimants rely requires a coincidence between the greater and lesser estates so that there can be no occasion for the enforcement of rights as between their owners. In the present case, the AOC is the absolute owner of the copyright and John Whitchurch and Benson hold the Rights in trust for the AOC as to the undivided one third interest formerly owned by John Whitchurch and for ESPN as to the two undivided one third shares previously owned by Benson and Talbot. The doctrine of merger has no scope for operation in these circumstances. 35 The cross-claimants submit that if there has not been a merger, nonetheless ESPN, as successor to Talbot and Benson as to their two undivided one third interests, is entitled to an assignment by the trustees, John Whitchurch and Benson, of ESPN's two thirds interest. ESPN relies on Jacobs' Law of Trusts in Australia (6th ed) para 2311, Re Marshall [1914] 1 Ch 192 and Manfred v Maddrell (1950) 51 SR (NSW) 95. In particular, ESPN relies on the following passage from the judgment of Cozens-Hardy MR in Re Marshall (at 199): "Speaking generally, the right of a person, who is entitled indefeasibly in possession to an aliquot share of property, to have that share transferred to him is one which is plainly established by law. There is also another case which is equally plain and established by law, that where real estate is devised in trust for sale and to divide the proceeds between A., B., C. and D. - some of the shares being settled and some of them not - A. has no right to say 'Transfer to me my undivided fourth of the real estate because I would rather have it as real estate than personal estate.' The Court has long ago said that that is not right, because it is a matter of notoriety, of which the Court will take judicial notice, that an undivided share of real estate never fetches quite its proper proportion of the proceeds of sale of the entire estate; therefore, to allow an undivided share to be elected to be taken as real estate by one of the beneficiaries would be detrimental to the other beneficiaries. But that doctrine, it seems to me, has no application, apart from special circumstances, to personal property." But Lord Cozens-Hardy continued: "It [detriment to the other beneficiaries] may apply to a case of a mortgage debt which you cannot conveniently split up into shares; but when you are dealing with the case of a limited company with ordinary and preference shares, you want to know a great deal more than that before you can say that the trustees are entitled to deprive an absolute owner of his right to claim a transfer." 36 In my opinion, ESPN is not entitled to call for an assignment of its two thirds interest in the Rights. The Rights are quite unlike money or shares in a public company or Commonwealth War Bonds (cf Manfred v Maddrell, above.) In Manfred v Maddrell, Sugerman J stated (at 97): " …the question of making a distribution out of a fund or portion of a fund, so that a beneficiary entitled to what is in form or in substance an immediate, absolute and indefeasible interest may have the present enjoyment of his share, is governed by practical considerations and, in particular, by considerations of convenience of division and of the risk of prejudice to other beneficiaries. Thus, where real estate is held on trust for sale and division of the proceeds, one of several beneficiaries has no right to a transfer of his undivided share, because the remaining undivided shares will not fetch their full proportion of the proceeds of sale of the entire estate and so the other beneficiaries are prejudiced. A mortgage debt is not conveniently divisible into shares. Other forms of personal property, which, without attempting an exhaustive or conclusive definition, may be broadly described as fungibles or things which possess all the relevant characteristics of fungibles, do not present the same difficulties, for example, shares in companies or government securities. Even as to these, there may be special circumstances in particular cases such that division would be inconvenient or detrimental to the other beneficiaries." 37 The Rights, although expressed in plural form ("residual rights of reprint and sale"), do not comprise fungibles, that is, a number of units of property which are identical and exchangeable, such as dollars or shares in a public company. If the trustees held ninety nine dollars or shares, apparently ESPN and the AOC would be entitled to call for a transfer to them of their respective two thirds and one third interests, that is sixty six dollars or shares and thirty three dollars or shares. But one need only try to imagine the AOC seeking to exploit its undivided one third interest in the Rights and ESPN seeking to exploit its undivided two thirds interest in the Rights to appreciate that assignment would result in a quite impracticable situation. Who would wish to deal with the AOC as the owner of a one third interest? Who would wish to deal with ESPN as the owner of a two thirds interest? What rights could either of them give in respect of the edited films? The AOC is better off receiving one third of the benefits flowing from exploitation of the Rights in their entirety by the trustees than in being left to exploit a one third interest in them. So is ESPN. 38 ESPN submits that the facts that John Whitchurch was able to find a buyer (the AOC) for his one third share and that Benson and Talbot were able to find a buyer (ESPN) for their two undivided one third shares, shows that undivided interests in the Rights are marketable. There are several answers to this submission. Firstly, neither assignment involved the Rights ceasing to be held and exploitable by trustees for the benefit of the owners of the undivided interests. Secondly, the circumstances touching the two transactions were extraordinary since each buyer had special commercial interests associated with the present litigation which would be served by the assignments. Thirdly, it is not shown that the consideration provided by the AOC and ESPN reflects the amounts that the respective assignors would have received if the Rights themselves had been sold and the assignors had each received one third of the proceeds of sale. 39 In the alternative, the cross-claimants seek to have John Whitchurch removed as trustee. The ground is that there is a well established pattern of non-cooperation between him and Benson and that as a result ESPN can take no benefit from its two thirds interest in the Rights. 40 ESPN relies on the inherent power of "the Court" to replace a trustee when the welfare of beneficiaries and the proper administration of the trust require it: Letterstedt v Broers (1884) 9 App Cas 371; Miller v Cameron (1936) 54 CLR 572 at 580 per Dixon J. ESPN also relies on subss 70(1) and (2) of the Trustee Act 1925 (NSW) which are as follows: "(1) The Court may make an order for the appointment of a new trustee or new trustees either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee. (2) The appointment may be made whenever it is expedient to appoint a new trustee or new trustees, and it is inexpedient difficult or impracticable so to do without the assistance of the Court." 41 There has been much evidence in the proceeding of a breakdown in cooperation between Benson and John Whitchurch. 42 ESPN submits that the AOC has no need of anything from the trust because it can reprint and sell the edited films as copyright owner. It will be recalled that the Rights are non-exclusive rights of reprint and sale. ESPN submits that it, on the other hand, will derive no benefit from its two thirds interest in the Rights unless either the trustees exploit the Rights and account to ESPN for its two thirds share of the proceeds, or the Rights are transferred to the beneficiaries, including itself. ESPN points out that the copyright in the photographs has only some five and one half years left to run and that this is also true of the Rights. That is, there is not much time remaining in which the Rights can be exploited by the trustees for the benefit of ESPN and the AOC and delay in exploiting them harms ESPN. 43 For its part, the AOC submits that while it may be that the present trustees are unlikely to cooperate, the appropriate course is for new independent trustees in place of both John Whitchurch and Benson to be appointed. The AOC adds, "whether this is a matter for this Court may be doubtful". 44 There was no argument on the question whether it is within the accrued jurisdiction of the Court for it to remove one or both of the trustees and to effect a replacement. The parties were content for me, if I was satisfied that it was, to exercise the power. But I would wish to have the assistance of counsel's submissions on the matter of jurisdiction. Moreover, if I were to consider replacing the existing trustees, I would require a party to seek an order for the appointment of particular persons supported by affidavit evidence. 45 It seems appropriate for me to indicate that I would not simply remove John Whitchurch as a trustee but that I would remove both him and Benson and replace them with new independent trustees. As beneficial owners both the AOC and ESPN have interests in the Rights to be protected. It is inappropriate to view the AOC's interest in the Rights as undeserving of protection merely because it can reprint the edited films and sell copies of them by virtue of position as copyright owner. It may prefer not to follow that course and to rely on the trustees to do so and to pay it one third of the proceeds. 46 I am not prepared to say that one of John Whitchurch and Benson is to blame for the breakdown in cooperation. In any event, it would be unsatisfactory to have either one of them as sole trustee in view of the antagonism between the beneficiaries (the AOC and ESPN) and the fact that one trustee is aligned with each of them. 47 If I had jurisdiction to do so, I would be disposed to remove both John Whitchurch and Benson as trustees and to appoint new independent trustees in their place. 48 In the circumstances, I will reserve liberty for any party to re-list the proceeding if the issue of the removal and replacement of the trustees is to be pursued. Costs 49 The AOC submits that the appropriate order is that the respondents pay the applicants' costs. The AOC submits that it succeeded on all the major issues, notably, ownership of copyright in the photographs constituting the films and of the general property in the physical films. 50 TBF relies on the following facts: · the AOC derived the copyright from the ASC by deed dated 8 December 1997 and the physical films by deed dated 5 June 1998, yet; · the AOC sought, but has not pressed, a claim for damages for infringement of copyright since the assignment of copyright to the AOC did not take effect until 3 August 1999; · the cross-claimants succeeded on the cross-claim in relation to the contractual rights of reprint and sale; · in the various forms of its pleading, the AOC relied on various chains of title, none of which involved the assignment from the ASC; · the AOC did not have title to the physical films when it commenced the proceeding and, indeed, did not acquire title to them until 5 June 1998 (by letter dated 12 August 1998 from TBF's solicitors to the AOC's solicitors, TBF agreed to proceed on the basis that it was to be assumed that the AOC had commenced a fresh proceeding to include reliance on the assignment of 5 June 1998 and not to press the argument that the AOC had not had title to the physical films when it commenced the proceeding, provided the AOC agreed to bear the costs incurred by TBF if TBF would have been successful on this issue but for the assignment from the ASC to the AOC dated 5 June 1998); · TBF succeeded in establishing that John Whitchurch was not entitled, either as surviving executor of the will of Peter Whitchurch or as one of the two trustees of the estate of Elsie Whitchurch, to assign the Rights to the AOC by the deed dated 20 October 1997. 51 TBF submits that there has been success to some extent on both sides, that apportionment would be impracticable and that the appropriate order is that each party bear its own costs. 52 I agree that there has been some success on both sides and that apportionment would be difficult, time consuming and costly. The AOC succeeded on the most important issue that was litigated, ownership of the copyright, but TBF succeeded on a number of subsidiary issues. The AOC's case changed fundamentally from what it was at the outset. The AOC commenced proceeding NG 49 of 1997 early in 1997. The deed of assignment of intellectual property rights between the ASC and the AOC was not executed until 8 December 1997. The AOC did not commence proceeding NG 481 of 1998 until 20 May 1998. Even then, the deed of assignment of the physical films was yet to come. It came on 5 June 1998, at the end of the hearing. In short, the AOC's case, on which it succeeded, took form over time. No doubt as a result of deficiencies in the administration of its predecessors of an earlier era, the AOC has been put into the position of discovering its true position progressively as a result of research. But it was reasonable for TBF to resist the claim as originally formulated. Moreover, TBF has established the existence of the trust in respect of the Rights. 53 It would be difficult to identify the time and attention devoted to the issues on which the respective parties succeeded. I think that the appropriate costs order is that the first, second, fifth, sixth and eighth respondents/cross-claimants pay one half of the costs of the applicants/cross-respondents. Conclusion 54 For the above reasons the Court orders that: (1) The first, second, fifth, sixth and eighth respondents/cross-claimants pay one half of the costs of the applicants/cross-respondents; (2) Liberty be reserved to any party to apply on three days' notice in relation to the issue of the removal and replacement of trustees; (3) Save as to orders previously made, the application and the cross-claim be dismissed. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Dated: 9 June 2000 Counsel for the Applicants/Cross-Respondents: Mr A J Bannon SC and Ms J R Baird

Solicitor for the Applicants/Cross-Respondents: Clayton Utz

Counsel for the Respondents/Cross-Claimants: Messrs R Cobden and M R Hall

Solicitor for the Respondents/Cross-Claimants: Mallesons Stephen Jaques

Date of Hearing: 17 March 2000

Date of Judgment: 9 June 2000