Biscayne Partners Pty Ltd v Valance Corp Pty Ltd & Ors - [2003] NSWSC 1016 - NSWSC 2003 case summary — Zoe

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Biscayne Partners Pty Ltd v Valance Corp Pty Ltd & Ors

[2003] NSWSC 1016

Supreme Court of NSW|2003-11-06|Before: Einstein J, Mr JJ

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Source facts

Court

Supreme Court of NSW

Decision date

2003-11-06

Before

Einstein J, Mr JJ

Source

Original judgment source is linked above.

Judgment (90 paragraphs)

[1]

CITATION : Biscayne Partners Pty Ltd v Valance Corp Pty Ltd & Ors [2003] NSWSC 1016 HEARING DATE(S) : 3/11/03 JUDGMENT DATE : 6 November 2003

[2]

JURISDICTION: Equity Division Commercial List JUDGMENT OF : Einstein J DECISION : Questions of quantum determined. Short minutes of order to be brought in.

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CATCHWORDS : Damages - Quantum - Damages for loss of opportunity - Presumption against wrongdoer - Compensation to be assessed in a robust manner, relying on the presumption against wrongdoers, the onus of proof, and resolving doubtful questions against the party whose actions have made an accurate determination problematic - Contract - Questions of construction LEGISLATION CITED : Copyright Act 1968 (Cth) ADC v White [1999] NSWSC 43 Alghussein Establishment v Eton College [1988] 1 WLR 587 Allen v Bega Valley Council (1994) 85 LGERA 364 C B S Records Australia Ltd v Telmak Teleproducts (Aust) Pty Ltd (1987) 17 FCR 48 Universal Music Australia v EMI Music Publishing Australia Pty Ltd [2000] ACopyT 5 Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 Cheall v APEX [1983] 1 All ER 1130 Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64 Davies v Taylor [1974] AC 207 Global Network Services Pty Ltd v Legion Telecall Pty Ltd [2001] NSWCA 279 Grozier v Tate (1946) 16 LGR (NSW) 57 CASES CITED : Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 Lakatoi Universal Pty Ltd & LA Walker [2000] NSWSC 113 McIntosh v Williams [1979] 2 NSWLR 543 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Mallett v McMonagle [1970] AC 166 New Zealand Shipping Co Ltd v Societe et des Ateliers et Chantiers de France [1919] AC 1 Oshlack v Richmond River Council (1998) 193 CLR 72 Perry v Fitzhowe 8 QB 757 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 Sinanian v EKS Carpentry Pty Ltd (Unreported, New South Wales Court of Appeal, 5 September 1997) T.C. Industrial Plant Pty Limited v Robert's Queensland Pty Limited (1963) 180 CLR 130 Twycross v Grant (1877) 2 CPD 469 Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410 Biscayne Partners Pty Ltd (Plaintiff) PARTIES : Valance Corp Pty Ltd (First Defendant) Holly Rachel Vukadinovic (also known as Holly Valance) (Second Defendant) Rachel Jane Stevens (Third Defendant) FILE NUMBER(S) : SC 50199/02 COUNSEL : Mr JJ Garnsey QC, Mr R Lancaster (Plaintiff) Mr R Cobden, Ms R Rana (Defendants) SOLICITORS : Tress Cocks & Maddox (Plaintiff) Henry Davis York (Defendants)

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"the exploitation of any sound recording recorded, or musical composition written, during the Term where such exploitation is fully organised by the Manager prior to the expiration of the Term." 6 The plaintiff's proposition is that properly construed, this is a reference to exploitation during the term, which exploitation is fully organised by the Manager prior to the expiration of the term. ["the exploitation during the term submission"] The proposition is that the manner in which one for example, may exploit a sound recording, is by entering into a contract for that very purpose. In this case the proposition is that Biscayne has fully organised the exploitation of any sound recordings which may ever be made pursuant to the contracts signed up during the term with Engine Room and later with London Records. 7 The submission if accepted would have the result that commission would be payable on albums not written or recorded during the term of the Agreement. 8 The factors upon which the plaintiff relies as supporting its suggested construction include: · schedule 1 to the Agreement dealing with the post-termination percentage; · the wide definitions of the terms "gross receipts", "entertainment industry" and "Artist's Activities"; · the general use definition of the word "exploitation" which shows that this word is of very wide significance. Hence the Macquarie Dictionary, 3rd ed, definition of "exploit" as "to turn to practical account, utilise for profit…" and definition of "exploitation", as "utilisation for profit". 9 I reject the 'contract subset of activity submission'. During the address in reply the plaintiff's counsel sought to slightly reformulate the proposition by putting the question as: "Is the entry into the London Records agreement and the performing …during the term, an activity of the artist in a branch of the entertainment industry?". This way of putting it simply runs together the two disparate topics. The performance is certainly an activity of the artist falling within the definition of "Artist's Activities". In my view the entry into of the London Records agreement is not an activity falling within that definition. The prescribing of declining post termination percentages over a four year period is a significant pointer in that regard. Likewise the very existence of clause 8.1(b) suggests that the construction contended for is misconceived. The plaintiff's later attempt to, consistently with its construction, find work for clause 8.1(b), by suggesting that the subclause "is for irregular post-termination activities" is rejected. 10 I further reject the 'exploitation during the term submission' for the following reasons: · the submission flies in the face of the positioning of the two commas in clause 8.1 (b) (ii), which positioning, it seems to me, simply adopts the classic mode of having two phrases which are then governed by a further phrase; and · if the submission were correct then the words "during the Term" now appearing in the second line could simply be deleted as otiose. This reason is possibly better exposed when one takes into account that the 'exploitation during the term submission' would require the sub-clause to be read as follows: "the exploitation of any sound recording whenever recorded, or musical composition whenever written, during the Term where such exploitation is fully organised by the Manager prior to the expiration of the Term." Quantum Findings 11 Save as strictly necessary it is inappropriate to repeat the record. However the following may be noted: · the judgment includes findings as to the proper construction of the express terms of the Agreement [127] and findings that each of the pleaded implied terms was made out: [130]-[137]; · a critical finding was that the repudiation of the Agreement established went the full distance of giving to Biscayne its entitlement to damages for breach of contract [132]; · the judgment included the following:

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225 One question which arises concerns whether or not, and if so in what way, Biscayne puts forward the proposition that in relation to the assessment of damages, it does not lie in the mouth of the Valance parties to rely upon their own wrongdoing. [cf written submissions on damages para 44]. This is one of a number of areas requiring clarification and specificity in respect of which the parties will be given leave to further address on damages including loss of opportunity. In terms of the precision of the breaches of contract terms litigated and made out, the Court labours under some difficulty because of the uncertainty as to what particulars have been furnished, there being a number of references to particulars " to be provided in due course" to be found in the breach of contract paragraphs in the Summons. Further in the manner in which the matter was litigated there appear to have been a number of specific matters in respect of which evidence has been adduced and with which both parties have treated in final address. For those reasons the precise findings in respect of the breaches of contract terms which have been litigated and made out will be handed down following the parties having had an opportunity to read this judgment and to address in relation to that matter. Suffice it to say that as the judgment makes plain, in general terms at the least the following breaches have been made out: · Valance Corp and Valance have since from a period in 2001, excluded the plaintiff from the management of or involvement in the activities of Valance in the entertainment industry throughout the world; · Valance Corp and Valance have from a period in 2001, failed to refer all enquiries regarding the activities of Valance within the entertainment industry to the plaintiff; · Valance Corp has not paid commissions due to the plaintiff; · from a period during 2001 Valance Corp continued negotiations for, and subsequently agreed to and executed sundry agreements relating to the activities of Valance in the entertainment industry, without the notification or prior approval of the plaintiff; and · Valance Corp failed to properly observe and perform its obligations or conditions under the Management Agreement and Valance did not immediately ensure the performance of such obligations or conditions…" 202 "Prior to the filing of the Summons Valance Corp had failed to properly observe and perform its relevant obligations under the Agreement. It had breached a contractual obligation by wrongly purporting to terminate the Agreement. It had breached a contractual obligation by wrongly participating in the engagement of a United Kingdom manager as the exclusive worldwide manager of Ms Valance and Valance Corp in place of Biscayne." 'Nullus commodum capere potest de injuria sua propria' 12 I accept that insofar as elements of uncertainty are likely to remain in relation to the quantification process, Biscayne, for the purpose of quantifying damages, is able to rely upon the "presumption against the wrongdoer". In a recent affirmation of that principle in which the actions of the defendant had made it "difficult to assess the compensation due to the plaintiff", Handley J put the matter as follows: "In my judgment the Court should assess the compensation in a robust manner, relying on the presumption against wrongdoers, the onus of proof, and resolving doubtful questions against the party 'whose actions have made an accurate determination so problematic'": Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46, per Handley JA at 59. 13 This principle relies upon the maxim 'nullus commodum capere potest de injuria sua propria' - 'no man can take advantage of his own wrong': cf ADC v White [1999] NSWSC 43 at [89] et seq. There is a long line of authority to this effect [Cf. Broom's Legal Maxims, 10th edition, Pakistan Law House, 1989 at 191 et seq., noting that this maxim, being 'based on elementary principles, is fully recognised in Courts of law and equity, and indeed, admits of illustration from every branch of legal procedure'.] 14 The principle and its application to several areas of law has recently been discussed in the House of Lords by Lord Jauncey of Tullichettle in Alghussein Establishment v Eton College [1988] 1 WLR 587, with whose reasons Lord Bridge, Lord Elwyn-Jones, Lord Ackner and Lord Goff agreed. There the principle was expressed as providing "that a contracting party will not in normal circumstances be entitled to take advantage of his own breach as against the other party". (at page 591). 15 The principle is applicable to 'various and dissimilar circumstances' [per Broom at page 195]. In particular, the maxim may apply:

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"When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v McMonagle [1970] AC 166, at p174; Davies v Taylor [1974] AC 207, at p212, p219; McIntosh v Williams [1979] 2 NSWLR 543, at pp550-551. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place." [See also Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 355, 364; Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 118-121, 124, 125; Global Network Services Pty Ltd v Legion Telecall Pty Ltd [2001] NSWCA 279.] 19 A short summary of the principles was set out in the judgment [page 143] as part of the excerpt from Lakatoi Universal Pty Ltd & LA Walker [2000] NSWSC 113. The following is consistent with that summary:

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23 Plainly enough in undertaking the Court's undoubted responsibility of attempting to assess damages and loss of opportunity as best it can, the task ultimately involves "evaluation [which] is a matter of informed estimation", to use the words of Brennan J in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 368. Hypothetical example 24 Before proceeding further it seems to me of utility to examine the matter in terms of a hypothetical example. Let us assume that Ms Valance/ Valance Corp entered into a contract during the term making provision for the recording of masters of sound recordings to be included on CD's to be released pursuant to the contract. 25 The example may be dealt with firstly on the basis that there had not been a repudiation of the Agreement. The matter may secondly then be compared with an approach to the example posited on the basis of a repudiation. Had there been no repudiation 26 With respect to payments made under the contract during the term the questions which arise would be: · was the entry into the contract "an activity during the term" within the meaning of the definition of "Gross Receipts" in the Agreement?; · is the only material "activity during the term" within the meaning of the "Gross Receipts" definition, the recording of such masters as were actually recorded during the term? I would answer this question in the affirmative. 27 With respect to payments made under the contract after the term the questions which arise would be: · was no sound recording actually recorded during the term? If so no commission would seem to be payable [cf clause 8.1 (b) of the Agreement]; · was a sound recording recorded during the term? If so commission would seem to be only payable where exploitation had been fully organised by Biscayne prior to the expiration of the Term [cf Judgment at paragraph 222 penultimate indented bullet point]. Had there been a repudiation 28 Here the example requires attention in bifurcated mode. 29 First, there is still a requirement to look at payments which were actually made under the contract during the term as, notwithstanding the repudiation, if the contract was actually entered into, such payments may still be covered by the Agreement in terms of an entitlement to commission. 30 But one is also concerned to ascertain at another level, what are the probabilities that exploitation would have been fully organised by Biscayne prior to the expiration of the term - a matter which becomes relevant when examining the lost opportunity for Biscayne to acquire clause 8.1 (b) commission following the end of the term. And apropos that form of lost opportunity, one is looking at a best estimation of what would have occurred absent the close out/ repudiation. One is looking at what is likely to have been achieved. 31 Indeed as to the proper approach, one is looking at the multi-tiered loss to Biscayne of the chances, if a contract for the recording of masters had been entered into during the term: · of having had the sound recordings recorded during the term. [I interpolate to note that the defendants (submissions [34] [55]) arguably deny this proposition. Any such denial cannot be accepted as correct. However if all that the defendants are submitting is that on the evidence the probability that Biscayne would prior to 18 May 2003 have arranged [or would have been in a position, prior to 18 May 2003, to arrange] for the writing of a musical composition or the recording of a sound recording that would in due course be exploited, there is nothing exceptional in the submission, leaving the matter of assessment of probabilities to the Court.]; · that Biscayne would have fully organised the exploitation of that recording during the term. 32 Of course in relation to contracts which may not have been entered into during the term, one may have to consider whether any particular form of contract for the recording of masters or for performances or for the exploitation of musical compositions would have been entered into during the term? What are the probabilities in that regard? And assuming that such contracts would have been entered into during the term, would the conditions precedent in clause 8.1 (b) [satisfaction of which would have given an entitlement to post-term commission] have been satisfied? What are the probabilities in that regard?

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33 I propose to now endeavour to deal with the matter against the above background. The convenient course is to first examine the relief sought qua pre-repudiation breaches. Approach 2 - Damages for breaches before repudiation 34 As the plaintiff has submitted, the findings are that Biscayne has established other breaches of contract by Valance and Valance Corp before 30 January 2002: see, in particular, at [225], 1st, 2nd and 4th bullet points. Claims in respect of these breaches were included in the Summons at [44] 'particular (b)'. During final address Mr Cobden took no issue with the statement by Mr Lancaster to this effect. The matter of such breaches over this period was clearly litigated. 35 Those breaches could give rise to loss of opportunity damages to the plaintiff. In particular, the plaintiff's case is that had Valance and Valance Corp not excluded the plaintiff from its management role and had they referred all enquiries to the plaintiff, the plaintiff would have had the opportunity to procure additional promotional and other activities for Valance Corp that would have created income to Valance upon which additional commission would have been paid. 36 If the claim was upheld there could not, by definition, be any double counting of damages in this regard (cf [227]) because ex hypothesi the finding would have to be that the opportunity was to do more than was actually done by Valance and Valance Corp in the relevant period to earn income (and thereby commission). 37 Hence the first area of inquiry concerns the claim made by Biscayne to loss of opportunity damages suggested as arising in terms of opportunities said to have likely been available during the second half of 2001 but which are said not to have been taken advantage of by reason of the close out/repudiation. 38 The approach taken in the plaintiff's written submissions was to endeavour to use as a useful gauge, detail of a flurry of significant promotional contracts actually entered into by the Valance parties during the period between February and May 2003. Those activities were summarised as follows in Biscayne's submissions:

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42 The Court's finding is that no loss of opportunity damages by reason of exclusion in the second half of 2001 should be awarded. Notwithstanding the close out, one has to recall that Ms Valance was reasonably fully occupied in her work on Neighbours. There would not seem to have been much opportunity at all for her to do much else. She went off to England for a week in September, she went off again for a weekend in November to record "Kiss Kiss", took some holiday and then spent half her holiday back in London in January, and came back, onto the Neighbours set the same day. Approach 1 - Commission received on account of Valance's activities in the entertainment industry (or otherwise payable to Biscayne in accordance with the terms of the Agreement) 43 Valance Corp would during the period following 30 January 2002, have been required to pay the commission payable to the plaintiff in accordance with the terms of the Management Agreement and Ms Valance would have been required to ensure Valance Corp's performance of those obligations immediately (cf [225], 3rd and 5th dot points). 44 Ultimately, subject to one or two particular matters, the parties have been able to agree on the primary amounts for the calculation of commission to which the plaintiff is entitled, both in relation to commission on amounts received during the term but never paid and in relation to commission on amounts to be received after the expiration of the term, on the assumption that, as has now been held, the 'exploitation during the term' and the 'contract subset of activity' submissions are rejected. 45 The primary amount for the calculation of such commission is $302,785.00: [cf defendants' written submissions [57(a)]; Transcript 40 - 45]. It is unnecessary to set out the schedules giving rise to these figures. [It may be noted that the source schedules comprise the Gross Receipts Chart which was taken to be before the Court, having been proposed to be annexed to a further affidavit made by Ms Stevens on 30 October 2003 (ultimately not read), which schedule was apparently corrected in relation to exchange rates (produced in the form of what was described in argument as "Mr Cobden's Chart" entitled "Gross Receipts for Holly Valance and Valance Corp including simple interest calculations")]. 46 To the extent that the parties remain at issue on exchange rates, that matter can be dealt with when short minutes of order are brought in. Commission under clause 8.1 (b) Musical Compositions 47 One additional issue concerns what is appropriate as clause 8.1(b) commission. The defendant puts forward a further figure of $3,000 in respect of musical compositions. 48 The matter is one of real complexity. Generally the defendants' submissions were that real difficulties stand in the way of the Court being in a position, even taking the wrongdoer principal into account, to find that a very substantial sum should be awarded by way of an entitlement to commission under clause 8.1 (b). 49 The defendants' initial submissions included the following:

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There is evidence before the Court that Valance Corp paid for the services of Mr Oaten in negotiating the deal: T 236.35-37 and Ex D1. Damages should accordingly be reduced by the amount of fees paid to Mr Oaten by Valance Corp, which were approximately $11,000.00." 60 In principle the defendants are clearly correct in that the present exercise concerns the Court evaluating the effective loss to the plaintiff. The difficulty which Mr Cobden appears to concede [Transcript 105 .13] is that there is very little evidence for the Court to go on. That being the case, the Court may endeavour to come close to speculating as to what amount would have been expended in terms of Biscayne's relocation, accommodation, setting up of an office and expenses in London. Alternatively the Court having been left with so very little material, [virtually amounting to the evidence of Ms Valance as to what her rental in London had been], may be in a position which the matter has been left so inchoate, as to make an estimation really impossible. Of course some items would likely require an offsetting amount: as in a saving in Sydney accommodation costs etc. 61 I have come to the view that albeit that estimation is necessarily speculative, this is an area where taking into account the entitlement of the Court to rely upon the presumption against wrongdoers and to resolve doubtful questions against the party whose actions have made any accurate determinations so problematic, means that the amount of the deduction should be fixed at no more than $30,000.00. 62 No deduction is however appropriate for amounts paid by Valance Corp to Mr Oaten. The Agreement in clause 9.2 specifically provided that Valance Corp was to be responsible for all expenses incurred by it or by Ms Valance which are not overhead expenses. Legal expenses do not fall within the definition of overhead expenses. Further they were paid by Valance Corp without complaint. Approaches 3 and 4 - Repudiatory damages/loss of opportunity - The period following 30 January 2002 63 So far as the period of approximately 15½ months after 30 January 2002 is concerned, the calculation of damages is in principle straightforward. That is, the plaintiff is entitled to be compensated for the wrongful repudiation of the Agreement by Valance and Valance Corp by being placed in the position that would have obtained if each had performed their rights under the Agreement.

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Accordingly - and this is entirely in accordance with the way in which Biscayne opened its case (see T 16. 34-49; T 35.11-14) - the 20% of income earned and received up to 18 May 2003, and not otherwise accounted to the plaintiff, which derives from Artist's Activities as defined, is the limit of the damages for that period." 68 I have come to the clear conclusion that when one considers the precise way in which Ms Valance's activities from the date of the first termination letter onwards involved a continuance of her Neighbours involvement until April/May 2002 and once Mr Fowler became her manager, was generally conducted under that management and of course subjected to the constraints of the London Records Agreement, and when one also takes into account Mr Michaelson's own evidence of a need to relevantly limit Ms Valance's exposure, there is really, save in one respect, no respectable probability that Biscayne could have earned significant commission by otherwise activities of Ms Valance had the Agreement not been repudiated. The fact is that Mr Fowler by his contract had procured a similar entitlement to commission to that which Biscayne had been entitled to. There was every incentive for Mr Fowler to pursue such prospects of Ms Valance's relevant activities as, consistent with her career, would give him an entitlement to commission. In short the actual activities would not have been materially different in any event. 69 The proviso is that there would have been some prospect of commission to Biscayne in one area and this again concerns personal appearances. My assessment in that regard is that there was a 20 percent probability that under the aegis of Biscayne, an amount of $100,000 may have been received for personal appearances during the term. Hence Biscayne is accordingly entitled to the relevant fraction [$4,000] by way of loss of opportunity commission. 70 The remaining questions for decision concern: · the plaintiff's application to vary the Summons by seeking declaratory relief; and · Costs. Declarations 71 During the final argument the plaintiff sought leave to amend to seek the following relief:

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"The expression the "usual order as to costs" embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation." 77 The plaintiff has succeeded against Valance Corp and Ms Valance. The plaintiff is entitled to an order for the whole of its cost of the proceedings to be paid by Valance Corp and Ms Valance. The issues on which the plaintiff failed are not in the circumstances such as to warrant any other order. 78 I am satisfied that the conduct of Valance Corp and of Ms Valance was such as to show that the joinder of Ms Stevens was reasonable and proper in relation to the proceedings. 79 The position in relation to Ms Stevens is as follows: · Ms Stevens was of course closely aligned with Valance Corp and with Ms Valance in relation to every material issue; · an extremely serious allegation which Ms Stevens, albeit acting in her capacity as a director of Valance Corp, was content to permit to go forward, was made in the first termination letter when it asserted that the terms of the agreement were not properly or fully explained to Ms Valance or to her parents; · all of the defendants had pleaded that the first termination letter was valid although during the hearing no reliance was placed upon the proposition that the Agreement was void ab initio; · the judgment included a finding that the Valance parties were shown, on the evidence, to have been involved in a calculated disregard of the rights of Biscayne and in a cynical pursuit of benefit; and · Ms Stevens further was party to keeping Mr Michaelson in the dark as to the fact that he would not be around as Ms Valance's manager much longer. 80 All of these are grounds for the Court, giving the closest consideration to whether any of the costs of Ms Stevens should be ordered to be paid by any other, and if so which, party. Ms Stevens, Valance Corp and Ms Valance were of course represented by the same legal representatives. 81 In my view and taking the above considerations into account, it is inappropriate to make any order for payment by the plaintiff of any part of Ms Stevens' costs. 82 In the result the short minutes of order should provide for payment of the costs of the plaintiff by Valance Corp and Ms Valance. No other costs orders are appropriate. 83 It is appropriate to note that had it been appropriate to make an order for the payment of Ms Stevens' costs, then to my mind the only order which might have been made would have been a Sanderson order requiring the payment of those costs by Valance Corp and Ms Valance. Interest 84 As I understood the position during the final hearing, the parties were not at issue in terms of the proper approach to interest. In some instances awarding compound interest if appropriate would not make a material difference to the simple interest calculations. On the occasion when short minutes of order are brought in any remaining issues which may separate the parties in relation to interest may be the subject of submission and will then be determined immediately. Hence the short minutes of order should cope with all possibilities in relation to interest. Short minutes of order 85 The parties are to bring in short minutes of order. On that occasion the release of security for costs motion will be heard and determined. I certify that paragraphs 1 - 85 are a true copy of the reasons for judgment herein of the Hon. Justice Einstein given on 6 November 2003