Claim by the surveyors
50.As earlier indicated, matters relied upon by the surveyors to resist the claim by CRIC for costs of the joinder application are, in large part, the same matters relied upon by them to seek an order for costs against CRIC. They submit that their opposition to joinder was vindicated by the ultimate result of the proceedings, there being no order made against them and no finding of "liability" on their part. As a consequence, they were "successful", or, at least, as against them, CRIC was "unsuccessful". That consequence should result in an order for costs in their favour.
51.In support of their application for costs against CRIC, the surveyors further argue that:
(i) their role in the preparation of the Deposited Plan was not "directly challenged";
(ii) the disconformity between the plan of stratum subdivision that was the subject of the Development Consent and the Deposited Plan was not alleged in these proceedings to be their responsibility;
(iii) there was no evidence of "contributory wrongdoing" on their part;
(iv) if the joinder by CRIC was to serve a collateral advantage, it was an abuse of process;
(v) there was no issue "genuinely intending to be determined" as against the surveyors in the absence of a "prima facie" case against them with the result that their joinder was tantamount to an abuse of process.
52.In support of the last two propositions, the surveyors rely upon the decision of the High Court in Williams v Spautz [1992] HCA 34; 174 CLR 509. However, for reasons that follow I am unable to accept those submissions.
53.My decision in CTI No 2 to order the joinder of the surveyors and certifiers was not the subject of appeal. The principles applied in reaching that decision and the decision itself cannot now be revisited, at least by me. In so far as the submissions of the surveyors implicitly challenge that decision, those submissions cannot now be entertained.
54.If the submissions of the surveyors are understood as being directed to the conduct of the proceedings following joinder, the reasons given in my principal judgment and the final orders made by me, I do not accept that the maintenance of proceedings by CRIC after joinder was for the predominant purpose of gaining a collateral advantage which was tantamount to an abuse of process.
55.The reasons for joinder were articulated in CTI No 2. The circumstance that in my principal judgment I have determined the plan disconformity issue, being an issue relevant and necessary to be determined in the foreshadowed common law claim by CRIC against the surveyors, would not, in my opinion, result in the joinder successfully sought by CRIC being an abuse of process. The fact that an issue that would otherwise arise in the foreshadowed common law claim has been determined by me in a manner that binds the surveyors and certifiers is not an abuse of process, even if it is described as a "collateral advantage" to CRIC. The potentially binding affect of such a determination was a principal reason for ordering joinder of the surveyors and certifiers to the proceedings (CTI No 2 at [17] - [19]).
56.In Williams v Spautz, the plurality said (at 526):
"To say that a purpose of a litigant in bringing proceedings which is not within the scope of the proceedings constitutes, without more, an abuse of process might unduly expand the concept. The purpose of a litigant may be to bring the proceedings to a successful conclusion so as to take advantage of an entitlement or benefit which the law gives the litigant in that event."
57.As I have earlier indicated, CRIC opposed the orders sought by JVCo and, importantly, maintained throughout the proceedings that there was no disconformity between the relevant subdivision plans. However, the prospect that such a finding might be made, with potential affect upon subsequent proceedings between CRIC and the surveyors was the purpose of joinder, with the consequence that if that determination was made, it would have the "benefit" of that determination "which the law gives ... in that event".
58.The separate judgment of Brennan J in Williams v Spautz is to similar effect as that of the plurality. At 535 his Honour said:
"There is no impropriety of purpose (whatever may be said of motive) when a plaintiff commences or maintains a proceeding desiring to obtain a result within the scope of the remedy, even though the plaintiff has an ulterior purpose - or motive - which will be fulfilled in consequence of obtaining the legal remedy which the proceeding is intended to produce."
59.By parity of reasoning, CRIC intended that its interests, in common with those of the surveyors and certifiers, was to defeat the claim of JVCo founded upon disconformity between relevant plans. However, by reason of the retainer of the latter parties by CRIC, in the event that the defence was unsuccessful, CRIC had the benefit of a determination on that issue.
60.Having decided that there is no proper basis to make an order against CRIC in favour of the surveyors on the basis that the joinder of the surveyors involved an abuse of process, it is necessary to consider the other bases for the costs claim made by the surveyors as I have identified them in [50] and [51] above. In so doing, it is important to note the part played by the surveyors in the conduct of the principal proceedings.
61.The surveyors were represented each day of the hearing by senior counsel together with an instructing solicitor. As recorded in my principal judgment at [16], the surveyors did not take an active role in the hearing before me. They did not adduce any evidence: none of the witnesses called at the hearing were cross-examined by them and no submissions were made on their behalf at the conclusion of the hearing. They seek to explain that passive role on the basis that no order was sought against them and their conduct, as surveyors, was not "directly" impugned.
62.As CRIC submits, the joinder of the surveyors as parties afforded the latter the opportunity to contend that there was no disconformity between the relevant plans and to explain, as the professionals who had drawn both plans, why that was so, assuming they wished to challenge the allegation of disconformity. No such contention was advanced by them. Instead, they sat by while CRIC sought to defend the claim of disconformity between plans.
63.CRIC further submits, as consistent with my judgment in CTI No 2, that the basis for joinder was not made with the prospect that any liability of the surveyors to CRIC would be established in the present proceedings. This Court had no jurisdiction to adjudicate upon any such claim. Rather, the joinder was made so as to afford the opportunity to the surveyors to be heard on the issue of plan disconformity. The determination of that issue had the potential to affect directly any liability that they may ultimately have to CRIC. A determination of disconformity between plans was a necessary step relevant to the ultimate determination of any liability to CRIC
64.In short, the surveyors were bound by a determination of disconformity, potentially operating in rem, with the consequence that by joinder they were afforded the opportunity to be heard on that issue. Their presence as parties thereby ensured that they were afforded procedural fairness.
65.If, as the surveyors submit, it was appropriate that they play no active role in the proceedings because no order was sought against them and their conduct was not directly impugned, CRIC submits that the appropriate course for the surveyors to take was to file a submitting appearance in the proceedings, having regard to the issues then identified by the pleadings and the orders then sought by any party. At most, CRIC submits that a watching role by a junior legal practitioner could be justified.
66.While the surveyors assert that uncertainty attended the claim that might ultimately be advanced either by JVCo or by CRIC, exemplified by JVCo filing and seeking leave to rely upon amended points of claim in the course of the hearing, I am not persuaded that the potential for such a course warranted the level of representation that they engaged. If the passive role of the surveyors was justified on the bases asserted by them, they would not have been prejudiced by a submitting appearance. If, as happened, there was an amendment to the claim to which they had filed a submitting appearance, such that an order was sought against them, they would have been entitled to receive notice of the proposed amendment and to reconsider their participation in light of those proposed amendments. The amendment to the claim that was in fact sought and made in the course of the hearing did not cause the nature of participation of the surveyors in the proceedings to change.
67.Further, in the context of Pt 42.1 of the UCPR, it is necessary to consider "the event" to which the rule would ordinarily require an order for costs to follow. Such an "event" is not so readily discernible when addressing the result of the proceedings as between CRIC and the surveyors.
68.For reasons earlier explained, CRIC did not seek any order against the surveyors upon which to identify any lack of success. Had such orders been sought but dismissed in my principal judgment, the "event" would have been the practical result of the surveyors successfully defending the claim brought against them.
69.However, in the present case, there is no such claim to which one may point. The purpose of joinder was as I have earlier described. That purpose achieved practical fulfilment when affording the opportunity to the surveyors to contest the determination ultimately made by me as to disconformity between plans. That practical prospect was the basis upon which joinder was ordered. In that sense, the practical result of the proceedings as between CRIC and the surveyors vindicated the joinder application made by the former.
70.However, that consequence can hardly be reflective of "the event" which the rule contemplates should trigger, as a general rule, an entitlement to an order for costs. Relevantly, the surveyors did not identify "the event" triggering their entitlement to costs conformably with the rule. It seemed to be assumed that because CRIC had joined them but had not succeeded in obtaining an order against them, their entitlement to costs followed. For reasons earlier explained, I do not accept that reasoning as founding an entitlement to costs.
71.While I accept that joinder resulted in the surveyors incurring costs for their participation in the proceedings, I do not accept that the cost was incurred on the basis claimed, such that a compensatory order should be made. This is essentially the case for the reasons that I have given in response to the surveyors claims and which substantially reflects the submissions made on behalf of CRIC. This seems to me to be quintessentially a case where "some other order should be made" conformably with the discretion available under r 42.1 of the UCPR. I will further consider the content of such an order after addressing the claim for costs made by the certifiers.