Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd

1. Each party bear its own costs of the proceeding (including the cross-claim).
2. The security for costs deposited with the Court by the applicants be released to the applicants. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MOSHINSKY J: 1 On 29 June 2016, I published my principal reasons in this matter: Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd [2016] FCA 764 (the June Reasons). Following a further hearing of half a day on certain outstanding matters and in relation to the form of relief, on 5 August 2016 I published further reasons and made final orders (save as to costs): Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd (No 2) [2016] FCA 883 (the August Reasons). The parties subsequently filed written submissions (including reply submissions) on costs. The parties have indicated that they are content for the issue of costs to be determined on the papers. These reasons deal with that issue. They should be read together with the June Reasons and the August Reasons. I adopt in these reasons the abbreviations used in the earlier reasons. 2 In very brief terms, the outcome of the proceeding was as follows. In the context of a claim by the first applicant, CRP, for $1,431,364, CRP recovered $75,300 plus interest. The second applicant, Grovan, recovered $119,886 plus interest. The cross-claim brought by Twentieth Green against CRP, claiming approximately $215,000, was dismissed. 3 In the applicants' submissions, they state that the effect of these orders is that, together with interest, the amount payable to CRP is $108,535 and the amount payable to Grovan is $172,798. The total of these is $281,333. These calculations are not contradicted by the first to seventh respondents. 4 I note at this point that the applicants were required to provide, and did provide, security for costs. 5 The applicants' position in relation to costs is as follows. They rely on an offer of compromise dated 22 June 2015 (June 2015 Offer) in which the applicants offered to compromise the proceeding for $180,000 (inclusive of interest) plus costs taxed on a party-party basis in default of agreement. That offer was not accepted by the first to seventh respondents. In the alternative, the applicants rely on an offer of compromise dated 6 July 2015 (July 2015 Offer) in which the applicants offered to compromise the proceeding for $175,000 (inclusive of interest) plus costs taxed on a party-party basis in default of agreement. That offer was not accepted either. The applicants contend that, on the basis of r 25.14(3) of the Federal Court Rules 2011, they are entitled to indemnity costs of the proceeding from 11 am on the second business day after the offer was served. In relation to the costs before that time, the applicants contend that they should have their costs on a party-party basis on the basis that costs should follow the event. 6 The first to seventh respondents' position is as follows. The first to seventh respondents rely on a Calderbank offer made by them on 1 and 2 December 2015 (December 2015 Calderbank offer) in which they offered to settle the proceeding on the basis that Twentieth Green would pay $15,000 to CRP to settle the CRP claims; Twentieth Green would pay $135,000 to Grovan to settle the Grovan claims; the cross-claim would be dismissed; and each party would bear its own costs. The applicants did not accept. The first to seventh respondents rely on this letter to claim indemnity costs in relation to the CRP claim from 19 December 2015, being the day after the date for acceptance of the Calderbank offer. In relation to the period before that, the applicants claim all their costs in relation to the CRP claims on a party-party basis. The first to seventh respondents submit that, rather than leaving it to a Registrar to determine which of the respondents' costs related to the CRP claims, the Court should fix this as 75% of their total costs of the proceeding. In relation to Grovan's claims, the first to seventh respondents submit that both parties had wins and losses; that Grovan lost most of the claims it brought; and that it ultimately recovered about 50% of the amount it sought. Therefore, it is submitted, each party should bear its own costs. In relation to the cross-claim, the first to seventh respondents accept that Twentieth Green should be ordered to pay CRP's costs of the cross-claim. It is submitted that the Court should fix a percentage of CRP's costs relating to the cross-claim, which should be 10% of CRP's costs. The orders sought by the first to seventh respondents are: (a) CRP pay 75% of the first to seventh respondents' costs of the proceeding: (i) on a party-party basis up to 18 December 2015; (ii) on an indemnity basis from 19 December 2015. (b) The costs payable under the above order be: (i) set-off against the sum of $75,300 together with interest ordered to be paid by Twentieth Green to CRP; (ii) paid and satisfied in the first instance from the sum held in Court as security. (c) Twentieth Green pay 10% of CRP's costs of the proceeding. (d) There otherwise be no order as to costs. 7 It can be seen that the parties' positions on costs are very far apart. The applicants contend that the first to seventh respondents should pay their costs of the proceeding on a party-party basis (up to 22 June 2015) and thereafter on an indemnity basis. The first to seventh respondents contend, in relation to the CRP claims, that CRP should pay their costs on a party-party basis (up to 19 December 2015) and thereafter on an indemnity basis. 8 The principles relating to the discretion to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth) are well established: see, eg, Latoudis v Casey (1990) 170 CLR 534 at 567 per McHugh J; Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [11]-[12] per Black CJ and French J; Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 at [3]-[5] per Finkelstein and Gordon JJ; Queensland North Australia Pty Ltd v Takeovers Panel (No 2) (2015) 236 FCR 370 at [11], [16]-[18] per Dowsett, Middleton and Gilmour JJ. Although usually, in the exercise of the discretion, it is ordered that costs follow the event, there may be situations where the event of success is contestable, by reference to how separate issues have been determined: see Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 at [241] per Kiefel and Keane JJ, cited by French CJ, Kiefel, Nettle and Gordon JJ in Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 327 ALR 192 at [6]. See also Les Laboratoires Servier v Apotex Pty Ltd (2016) 117 IPR 415 at [297]-[305] per Bennett, Besanko and Beach JJ; Hockey v Fairfax Media Publications Pty Limited (No 2) (2015) 237 FCR 127 at [84]-[91] per White J. 9 In relation to offers to settle, Pt 25 of the Federal Court Rules sets out the requirements for such an offer. Rule 25.14 deals with costs where an offer is not accepted. Relevantly for present purposes, r 25.14(3) provides: (3) If an offer is made by an applicant and not accepted by a respondent, and the applicant obtains a judgment that is more favourable than the terms of the offer, the applicant is entitled to an order that the respondent pay the applicant's costs: (a) before 11.00 am on the second business day after the offer was served - on a party and party basis; and (b) after the time mentioned in paragraph (a) - on an indemnity basis. 10 The principles applicable to r 25.14 were discussed by Bromberg J in Rakic v Johns Lyng Insurance Building Solutions (Victoria) Pty Ltd (Trustee) (No 2) [2016] FCA 783 at [14]-[18]. If the elements of s 25.14(3) are established, this creates a rebuttable presumption that the applicant is entitled to an indemnity costs order. The Court has the power to depart from this position, arising from its power to dispense with the operation of any rule (r 1.34) and its power to make orders contrary to the rules (r 1.35). Generally, it will not be appropriate to dispense with the operation of r 25.14(3) unless there is a proper reason to do so and this will generally only be the case where exceptional circumstances are present: see Skyy Spirits LLC v Lodestar Anstalt (No 2) [2015] FCA 575 at [5], [7] per Perram J; Robinson v Kenny (No 2) [2015] FCA 2 at [17]-[18] per Farrell J. 11 In relation to Calderbank offers, in Veda Advantage Limited v Malouf Group Enterprises Pty Limited (No 2) [2016] FCA 470, Katzmann J said at [31]: In contrast, however, to an offer of compromise made under r 25.01, refusal to accept an offer not made in compliance with the rules (a Calderbank offer, see Calderbank v Calderbank [1975] 3 All ER 333) does not give rise to any presumption in favour of the offeror. The offeror needs to show that there was a genuine offer of compromise, and that it was unreasonable for the offeree not to accept it: Black v Lipovac [(1998) 217 ALR 386] at [217]-[218]. In deciding whether it is unreasonable for an offer to be rejected, the following matters should ordinarily be considered: • the stage of the proceeding when the offer was made; • the time afforded to the offeree to consider the offer; • the extent of compromise involved; • the offeree's prospects of success, assessed as at the date of the offer; • the clarity with which the terms of the offer were expressed; • whether the offer foreshadowed an application for indemnity costs in the event of refusal. See Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435 at [25]. 12 Before addressing the parties' submissions, I will set out some features of the litigation that provide background and context for the discussion of the costs issues. 13 The applicants were jointly represented throughout the proceeding. The first to seventh respondents were also jointly represented throughout the proceeding. Many of the documents filed in the proceeding (including pleadings, affidavits and submissions) related to both the CRP claim and the Grovan claim. A number of these related to the cross-claim as well. 14 As noted in paragraph [3] of the June Reasons, in brief terms, CRP claimed payment for the building works for the Project on a quantum meruit basis calculated at cost plus a margin of 10 or 15%; it claimed that a written "Australian Building Industry Contract ABIC SW-1 2002 Simple Works Contract", which it entered into with Twentieth Green in November 2006, referred to as the Simple Works Contract, did not govern the relationship between the parties, either on the basis that the parties agreed that it would only be used to obtain finance and would not record the terms under which CRP was to perform the works, or because it was void for uncertainty. CRP also had alternative claims for misleading or deceptive conduct and unconscionable conduct. 15 As noted in paragraph [4] of the June Reasons, Grovan, one of the unit holders, claimed that it had not been paid its share of the profits of the Project; one of the issues that arose in this regard concerned a document signed by Colin Price on 3 September 2008, referred to as the First Payment Authority, and another signed by Mr Price on 24 December 2008, referred to as the Second Payment Authority. The first to seventh respondents relied on these documents as permitting approximately $100,000 of Grovan's entitlements to be withheld from Grovan and paid to other persons. Grovan contended that the Payment Authorities did not authorise Twentieth Green to apply the amount in this way. Grovan made this contention on various grounds, including that the Payment Authorities were not validly executed by or on behalf of Grovan and that it was unconscionable for the respondents to rely on the documents. 16 On 6 December 2013, a judge of this Court made orders for the determination of separate questions. The separate questions are set out in the June Reasons at [16]. 17 The trial of the separate questions commenced on 21 March 2016. It lasted for eight days. At the outset of the trial, counsel for the applicants queried whether all of Grovan's accounting claims could be dealt with as part of the trial of the separate questions. Senior counsel for the respondents submitted that the effect of the separate questions was that they encompassed all issues raised by Grovan. The trial proceeded on that basis. As there had not been any discovery ordered to be made by the first to seventh respondents, the applicants served a number of notices to produce on the respondents which led to the production of accounting documents relating to the Unit Trust and the Project. The applicants cross-examined some of the respondents' witnesses on these documents. The applicants then made a number of particular claims arising from the documents produced in response to the notices to produce (accounting claims) in their final submissions. These claims had not been particularised before trial. 18 A substantial part of the time at trial was concerned with CRP's claims, in particular the claim that the Simple Works Contract did not govern the relationship between the parties. A rough indication of the proportion of time spent on each of CRP's claims, Grovan's claims and the cross-claim is provided by the number of pages devoted to each of these claims in the parties' closing written submissions. For example, in the applicants' closing submissions, the pages and percentages allocated to each were approximately as follows: CRP's claims - 29.5 pages or 72%; Grovan's claims - 10.5 pages or 26%; cross-claim - 1 page or 2%. The first to seventh respondents' closing submissions devoted a greater proportion to CRP's claims (80%) and less to Grovan's claims (19%) and the cross-claim (1%). 19 The aspect of CRP's claims on which it was ultimately successful (namely, that it had not been paid for extra works done on four apartments) had not been particularised before trial. It emerged during cross-examination, apparently from the documents produced in response to one of the notices to produce. It occupied but a few minutes of cross-examination (T540-541). It was one of the claims which, due to the possibly incomplete state of the evidence, I did not consider it appropriate to answer as part of the determination of the separate questions: see the June Reasons at [337]. 20 Also, two of the claims in respect of which Grovan succeeded emerged for the first time during trial - these were the claim for $7,008 in unpaid distributions and the claim for $5,267, being 10% of an amount of $52,670 which was paid by Twentieth Green to Resort Systems: see the August Reasons at [33]. 21 I turn, then, to consider the disposition of the costs issues. It will be convenient to deal first with the issue without reference to the offers of compromise and the December 2015 Calderbank offer, and then to consider whether they lead to an adjustment to the costs order that would otherwise be made. 22 I think the logical starting point is to treat each set of claims (namely, the CRP claims, the Grovan claims and the cross-claim) separately and identify the appropriate costs outcome for each set of claims. As discussed below, I think it is then appropriate to identify the proportion of the proceeding referable to each set of claims, and then to net off the various notional awards. 23 Starting with the Grovan claims, I think it is a fairly straightforward matter to identify the successful party. Although it is true that Grovan did not succeed on a number of the accounting claims, I think it can nevertheless be characterised as the successful party in relation to its claims. It was successful in its claim that the amount of $100,141 was wrongly withheld from it in respect of the 2009 financial year and in its claim that the amount of $15,000 (in respect of defect rectification) was wrongly deducted (see the June Reasons at [335]). It was also successful in relation to two of the accounting claims (see the August Reasons at [33]). This produced a total of $127,416 in Grovan's favour, but this amount was reduced by $7,530 to reflect 10% of the amount of $75,300 (see the August Reasons at [32], [33]). Thus, if I were considering the Grovan claims in isolation, and subject to the matters to be discussed in the balance of this paragraph, I would award costs in favour of Grovan on the basis that costs follow the event. I have considered whether any adjustment should be made on account of the applicants' failure to make an admission, following service of a notice to admit, concerning Mr Price's signature on the Payment Authorities. I do not think any adjustment is required on account of this in light of the way the matter was approached by the applicants at trial. I have also considered whether an adjustment should be made to reflect the fact that the accounting claims were raised very late, during the course of the trial. It was apparent before trial that Grovan's claim that the respondents had "failed to … account to Grovan for the profit and loss derived from the Project" had not been particularised. It was open to the respondents to have sought particulars; they did not do so. It may be said in response that the respondents treated the applicants' affidavit evidence as defining their case. But in circumstances where the applicants did not have the underlying financial documents of the Unit Trust, and had little knowledge of its financial affairs, it was not to be assumed that their case on this issue was contained in their affidavit evidence. In light of these matters, I do not think an adjustment is required by reason of the way Grovan's case was run at trial. For these reasons, if I were considering the Grovan claims in isolation, I would award costs in favour of Grovan. 24 In relation to the cross-claim, it is straightforward that CRP was successful. Thus, if I were awarding costs in relation to the cross-claim in isolation, I would order costs in favour of CRP on the basis that costs follow the event. 25 In relation to CRP's claims, however, the position is more complicated. The order of the Court was that Twentieth Green pay CRP the amount of $75,300 plus interest. However, this amount is but a small portion of the total amount claimed and the successful claim occupied only a small fraction of the time during the primary trial. The focus of the CRP claims at trial was the issue of whether the Simple Works Contract governed the relationship between the parties. The first to seventh respondents were successful in relation to this issue. They were also successful in relation to CRP's alternative claims for misleading or deceptive conduct and unconscionable conduct. In these circumstances, if I were dealing with the costs in relation to the CRP claims in isolation, I think there would need to be a reduction in the costs otherwise payable to reflect CRP's lack of success on many major issues; indeed, on all issues other than the claim for $75,300. In my view, an appropriate reflection of CRP's lack of success on the other issues would be to reduce the costs payable to CRP to zero and instead to order that CRP pay half of the costs of Twentieth Green. This would be a very unusual order to make, in the sense that the party (CRP) that has, on one view, succeeded (in the sense of obtaining a monetary judgment) would not only be deprived of a costs order in its favour but also required to pay a significant portion of the unsuccessful party's costs. However, I think such an order would be justified in the circumstances as described above. Thus, if I were considering the CRP claims in isolation, I would order CRP to pay half of Twentieth Green's costs. I have given consideration to whether CRP on this analysis should be required to pay an even greater portion of Twentieth Green's costs. In my view, the fact that CRP obtained a monetary judgment in its favour of $75,300 plus interest should be given some weight. An order which required CRP to pay an even greater portion of Twentieth Green's costs would, in my view, given insufficient weight to the fact that CRP was successful in this respect. I note, for completeness, that another way of approaching the matter would be to treat Twentieth Green as the successful party, and start with the position that it is entitled to its costs. If that approach were taken, I think the result would be the same. It would be appropriate to discount the costs payable to Twentieth Green by reference to CRP's success in relation to the $75,300. Although it occupied a small portion of time and was raised late, it nevertheless is an award of a not insignificant sum of money in favour of CRP, which needs to be taken into account. 26 Although I have approached the matter thus far on the basis of each set of claims separately, I do not think it appropriate to make separate costs orders in respect of each set of claims (eg, Twentieth Green pay CRP's costs of the cross-claim). I think this would be productive of great expense and time in the process of taxation. It would be very difficult, with respect to many pieces of work, to determine whether a given piece was referable to the CRP claims, the Grovan claims or the cross-claim. In many cases, a single piece of work would be referable to more than one set of claims. Hence, there would be a difficult process of working out (for example, for an affidavit or for a conference) how it should be allocated as between the sets of claims. I think the approach suggested by the respondents, of allocating a percentage to each set of claims, representing a proportion of the total costs of the proceeding, has merit for those reasons. However, I would take this a step further, and net off the resultant outcomes so that there is but one costs order. I appreciate that the costs incurred by each side may not be the same and therefore a netting off approach may lack precision. But the whole exercise necessarily involves estimation and judgment, and a netting off approach offers significant savings of time and expense in the process of taxation. 27 Taking the approach that I have outlined, in my view, it would be appropriate to allocate the following percentages to each set of claims: CRP's claims - 66.67%; Grovan's claims and the cross-claim combined - 33.33%. (It is not necessary to allocate separate percentages to Grovan's claims and the cross-claim.) This reflects my impression of the relative time spent on, and weight given to, each set of claims during the trial. It is broadly consistent with the proportions allocated to each set of claims in closing written submissions, as referred to above. Taking into account the views expressed above as to the costs orders I would make with respect to each set of claims if considered individually, the result would be: (a) in respect of the CRP claims, CRP would be obliged to pay 50% of 66.67% of Twentieth Green's total costs (that is, 33.33%); and (b) in respect of the Grovan claims and the cross-claim, Twentieth Green would be obliged to pay 33.33% of the applicants' total costs. Given that the applicants were jointly represented, I propose to deal with them together to simplify matters. Given that the only respondent ordered to pay money was Twentieth Green, I propose to make it the only respondent liable for costs, again to simplify matters. Netting off these two notional orders, the result would be that each party bears its own costs of the proceeding. 28 The above analysis involves a series of steps, with judgments being made at various stages along the way. I have considered whether the end result of each party bearing its own costs, looking at the proceeding globally, accords with my impression of a fair costs result in all the circumstances. In my view, it does. My impression of the overall outcome of the proceeding is that each side enjoyed a significant measure of success. The applicants were successful in obtaining substantial monetary awards in their favour (albeit much less than they claimed). The first to seventh respondents were successful in defeating the (predominant) contention that the Simple Works Contract did not govern the relationship between the parties. A result that each party bear its own costs accords with my impression of the overall result. I have considered whether a small order of costs in favour of one side or the other would offer a better reflection of the overall outcome of the case, and I do not think it would. 29 I turn, now, to consider the impact, if any, of the June 2015 Offer, the July 2015 Offer and the December 2015 Calderbank offer. I note that, in the first to seventh respondents' reply submissions, they refer to two further Calderbank letters: one dated 20 May 2015; the other dated 25 June 2015. These were relied upon in response to the applicants' reliance on the two offers of compromise. 30 The June 2015 Offer by the applicants was made pursuant to Pt 25 of the Federal Court Rules. The first to seventh respondents have not suggested that the offer did not comply with the formal requirements for an offer to settle under Pt 25; the issues are whether the offer satisfies the elements of r 25.14(3) and whether, if it does, proper reason is shown to dispense with the operation of the rule. The applicants offered to settle the proceeding by the first to seventh respondents paying $180,000 (inclusive of interest) to the applicants, plus costs as taxed on a party-party basis in default of agreement. The amount of the taxed costs of the applicants at this date is not known. However, in a letter from the applicants' solicitors dated 22 June 2015 (attached to the applicants' reply submissions), the applicants' solicitors stated that the applicants estimated that on taxation their party-party costs would be "at least $100,000". Assuming that the applicants' party-party costs were $100,000 at the time of the June 2015 Offer, the effect of the offer was that the applicants were offering to settle for $280,000. If this is compared with the outcome at trial, the outcome at trial is inferior. For this purpose, so as to compare like with like, it is necessary to refer to the judgment sums awarded plus interest up to the date of the June 2015 Offer. Using the interest calculations set out in Schedules A and B to the applicants' costs submissions, and taking interest up to 30 June 2015 (this being the closest date in the calculations to the date of the June 2015 Offer), the total of the judgment sums plus interest to 30 June 2015 is $268,433. (This is calculated by taking $75,300 plus interest of $28,258 for CRP's claims and $119,886 plus interest of $44,989 for Grovan's claims.) When comparing the terms of the June 2015 Offer with the outcome at trial, it is relevant to take into account that, on the basis of the discussion above, the costs outcome at trial (aside from the June 2015 Offer) is that each party bear its own costs. Thus, if the applicants' party-party costs as at the date of the offer were $100,000, the comparison is between an offer to accept $280,000 (inclusive of interest and costs) with an outcome at trial (inclusive of interest to 30 June 2015 and costs) of $268,433. In the circumstances, it is not established that the applicants have obtained a "judgment that is more favourable than the terms of the offer" as required by r 25.14(3). The applicants' submission that they have obtained a more favourable judgment at trial perhaps proceeds on an assumption that (apart from the June 2015 Offer) there will be an award of party-party costs in favour of the applicants. But I have concluded that the appropriate costs order (apart from the June 2015 Offer) is that each party bear its own costs. 31 In these circumstances, it is unnecessary to determine whether proper reason is shown to dispense with the operation of r 25.14(3). As noted above, in the first to seventh respondents' reply submissions on costs, they refer to and attach copies of two Calderbank letters; one dated 20 May 2015, the other dated 25 June 2015. It appears from the reply submissions that the respondents rely on these Calderbank letters, not in their own right, but to provide context in which to consider the June 2015 Offer and the July 2015 Offer. In the 20 May 2015 Calderbank letter, the first to seventh respondents offered to pay $180,000 to CRP (inclusive of costs) to settle the proceeding. The 25 June 2015 letter involved re-making the 20 May 2015 offer, with an additional payment of $5,000 in costs. The 25 June 2015 letter addressed both the CRP claims and the Grovan claims and provided observations on their prospects of success. The first to seventh respondents rely on this letter to show the state of the issues in the proceeding at this time. For example, the letter did not address CRP's claim for the $75,300 because this had not been made at that time. In relation to the Grovan claims, the letter only addressed the Payment Authorities, reflecting the state of the issues as understood at that time. As indicated above, it is unnecessary to decide whether, in these circumstances, proper reason is shown to dispense with the operation of r 25.14(3). 32 The same analysis applies in relation to the July 2015 Offer. Save that the offer sum was $175,000 rather than $180,000, the offer was otherwise the same as the June 2015 Offer. The reasoning set out above applies equally to the July 2015 Offer. 33 I now consider whether the December 2015 Calderbank offer by the first to seventh respondents affects the position otherwise reached in relation to costs. The letter made observations about the applicants' claims, and then offered to settle the proceeding on the basis that Twentieth Green would pay $15,000 to CRP and $135,000 to Grovan, with each party bearing its own costs. The letter acknowledged that this offer was lower than the previous Calderbank offers. When the offer contained in the December 2015 Calderbank offer is compared with the outcome at trial, the applicants did not obtain a less favourable outcome at trial. The offer was for Twentieth Green to pay the applicants a total of $150,000 (inclusive of interest and costs). In comparison, the outcome at trial (with interest calculated to 1 December 2015, so as to compare like with like, and on the basis that each party bears its own costs) is that Twentieth Green is to pay the applicants a total of $273,375 (inclusive of interest to 1 December 2015 and costs). (The sum of $273,375 is based on the calculations set out in the applicants' reply submissions on costs.) Thus, the applicants have received a more favourable outcome at trial. In these circumstances, I do not see how the December 2015 Calderbank offer can affect the costs to be ordered. In any event, I do not think it was unreasonable for the applicants to have rejected the December 2015 Calderbank offer in the circumstances. 34 It follows that the June 2015 Offer, the July 2015 Offer and the December 2015 Calderbank offer do not affect the costs that would otherwise be ordered. For the reasons set out above, I will therefore order that each party bear its own costs of the proceeding (including the cross-claim). 35 In these circumstances, the applicants are entitled to the release of the security which they paid into Court. The first to seventh respondents contend that the security should not be released until the end of the appeal period. They contend that, if the applicants appeal unsuccessfully, the first to seventh respondents are unlikely to recover their costs unless the security remains in place. However, if the applicants appeal, the question whether they are required to provide security for the costs of the appeal is something to be dealt with at that stage. In any event, I think I should proceed on the basis of the costs order that I will make rather than what may happen if either side appeals. On the basis of the costs order that I will make, the applicants are entitled to have the security released. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.