Doak v GJ & BP Chard

Summary judgment

1. The test for summary judgment has a high threshold.
2. UCPR 13.4(1) provides that the Court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are, if the proceedings are frivolous or vexatious, or if no reasonable cause of action is disclosed or if the proceedings are an abuse of the process of the court.
3. UCPR 14.28(1) provides that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading firstly, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings, or thirdly, is otherwise an abuse of the process of the court.
4. UCPR 14.28(2) provides that the court may receive evidence on the hearing of an application for an order under subrule (1).
5. In O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 the Court of Appeal applied the High Court decision of Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118. In Spencer the High Court was concerned with s 31A(2) of the Federal Court Act 1976 (Cth), but at [3] Macfarlan JA stated that the following principles are of general application: "(a) On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]). (b) The critical question can be expressed as whether there is more than a "fanciful" prospect of success (at [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the court to allow the action to go forward (at [54]). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success."
6. Powers to summarily terminate proceedings must be exercised with exceptional caution (see Spencer at [55] per Hayne, Crennan, Kiefel and Bell JJ and also French CJ and Gummow J at [24]).

The pleading framework

1. It is necessary to briefly set out the pleading framework. For the purposes of this application only, I accept the facts as those set out in the pleadings.

(A) The amended statement of claim

1. On 27 March 2014, the Margaret Doak filed an amended statement of claim ("ASC") against GJ Chard as first defendant and BP Chard as second defendant, seeking damages for serious personal injuries she suffered on 4 August 2010.
2. The ASC pleads as follows.
3. Margaret Doak resided with her husband, William Doak, at the property known as Box Moor [ASC 1]. Box Moor comprises of approximately 638 hectares and is owned by William Doak [ASC 2]. Box Moor is operated by the plaintiff in partnership with her husband as a working farm stocking Angus cattle, Merino sheep and fat lambs [ASC 3].
4. The first and second defendants carried on, in common and with a view of profit, a business in partnership out of premises in Glenn Innes supplying and delivering hay to farms.
5. On 1 November 2009, the plaintiff and her husband entered into a contract with the defendant for the supply and delivery of a load of wheaten hay ("the contract") [ASC 5]. On that day, the defendants delivered a truckload of wheaten hay to Box Moor [ASC 6]. The bales were stacked in a shed at Box Moor [ASC 10]. GJ Chard unloaded the hay into a shed at Box Moor [ASC 9].
6. The wheaten hay was in square bales. The bales were large, each bale being approximately 216cm in length, 116cm in width and 91cm in height and weighing approximately half a tonne [ASC 8]. The first defendant, using a tractor supplied by the plaintiff's husband, unloaded the bales and stacked them in a shed [ASC 9].
7. It was an implied terms of the contract that the defendants would exercise reasonable care in the delivery and in particular in the stacking of the wheaten hay in the shed at Box Moor [ASC 7] (the contract claim).
8. The plaintiff also pleads that the first defendant owed her and her husband a duty of care to exercise reasonable care in the delivery and in particular the stacking of the bales in the shed at Box Moor [ASC 20] (the negligence claim). The plaintiff provides particulars of negligence. They are in relation to the contract claim.
9. The liability of the second defendant (Mrs Chard), it is pleaded, arises from the [Chard] partnership. It is alleged that the first defendant and the second defendant had entered into a partnership and were a "firm" within the meaning of the Partnership Act 1892 (NSW) (ASC [35]).
10. It is alleged that the first defendant was acting in the ordinary course of the business of the firm, or in the alternative, that the first defendant was acting with the authority of the second defendant.
11. It is pleaded that the negligence of the first defendant was a wrongful act or omission within the meaning of s 10 of the Partnership Act. The plaintiff pleads that the second defendant is jointly and severally liable, to the same extent as the first defendant, for any loss or injury caused to the plaintiff by negligence of the first defendant (ASC [38] to [41]).

(B) The defence

1. On 3 September 2014, the Chard partnership filed a defence to the ASC denying breaches of contract and negligence. It either asserts or admits that: 1. The plaintiff and her husband conducted a partnership which operated a farming operation from Box Moor stocking Angus cattle, merino sheep and fat lambs. 2. The Chards operated a partnership. The second defendant (Mrs Chard) denied she was liable for the work performed by the first defendant (who delivered the bales) as being outside the scope of the partnership (D [21(b)]). 3. The plaintiff was guilty of contributory negligence within the meaning of s 5R Civil Liability Act 2002 (NSW) and that her negligence was a complete answer to her claim within the meaning of s 5S Civil Liability Act (D [33]). 4. The plaintiff failed to inspect the bales before allowing Mr Doak to operate machinery for the purpose of removing the bales (D [33(b)]). 5. The plaintiff failed to test the structural integrity of the stacks of bales before any steps were taken to ensure the remaining bales were safe (D [33(c)]). 6. The plaintiff moved around near bales when machinery was operating, namely a tractor operated by her husband (D [33(j)]). 7. The plaintiff failed to observe movement of bales whilst her husband removed bales using the tractor on other occasions so as to determine the relative stability of the bales (D [33(n)]).

(C) The cross claim

1. On 3 September 2014, the Chard partnership filed a cross claim against William Doak as the sole cross defendant. The Chard partnership seeks indemnity and contribution pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).
2. The cross claim pleads that: 1. Box Moor was operated by the plaintiff in partnership with the cross defendant. 2. The cross defendant and the plaintiff lived on and operated a farming enterprise from Box Moor. 3. The cross defendant and the plaintiff owned a tractor used for maneuvering bales and the cross defendant devised and implemented a system for the storage, removal and use of bales which were delivered to Box Moor (CC [5]-[7]). 4. The system included various matters including the use of the tractor, selection of staff, OH&S considerations, inspections etc. (CC [8]). 5. In devising the system it was reasonably foreseeable that the plaintiff might be injured (CC [20]). 6. The cross defendant owed the plaintiff a duty to take reasonable care (CC [27]). 7. The cross defendant breached his duty of care by, inter alia, devising a system which exposed the plaintiff to a foreseeable risk of injury (CC [28]). 8. Particulars of negligence include failing to consider OH&S requirements, the need for risk assessment, allowing the plaintiff to be in the shed while the tractor was operating (it being a system that should have excluded any manual handling), allowing the plaintiff to remain in the vicinity of the bales while the system was in operation, in failing to keep a proper lookout and in failing to warn the plaintiff to keep a proper lookout (CC [28]).
3. William Doak submitted that the cross claim brought against him should be dismissed for three reasons. They are firstly, because he and Margaret Doak were in a partnership, the Chard partnership cannot establish an entitlement to contribution; secondly, because the cross claim gives rise to a circuity of action and is an attempt by the Chard partnership to obtain a "double recovery" for contributory negligence attributed to the plaintiff; and finally, permitting the cross claim to proceed will result in unnecessary costs in relation to a potentially uninsured liability so as to cause distress and hardship. I shall deal with each of these issues in turn.

Partnership and entitlement to contribution

1. In the cross claim the Chard partnership alleges that William Doak is a person who, if sued by Margaret Doak, would be liable within the meaning of s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act.
2. Section 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act limits recovery in terms "any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage." Section 5(1)(c) further provides that no person shall recover contribution under the section from any person entitled to be indemnified by "that person in respect of the liability in respect of which the contribution is sought."
3. William Doak submitted that because he and Margaret Doak were in a partnership, the Chard partnership cannot establish an entitlement to contribution pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act because William Doak would not, if sued, be liable to Margaret Doak. However, the Chard partnership argued that their cross claim is concerned with the delictual duties owed personally by William Doak to Margaret Doak and is not based on or concerned with their partnership relationship.
4. There are two ways by which William Doak could be liable to contribution, firstly, as an individual tortfeasor, as counsel for the Chard partnership termed it, "in relation to his delictual duties owed personally to Mrs Doak"; or secondly, by way of the operation the partnership. Whether or not William Doak will be found liable in relation to his delictual duties will only be ascertained once factual findings are made at trial.
5. As to whether or not the Box Moor partnership is liable for the personal injuries suffered by Mrs Doak it is necessary to briefly refer to some of the relevant provisions of the Partnership Act.

The Partnership Act

1. The relevant sections are 6, 9, 10 and 12. They read: "6 Partners bound by acts on behalf of firm (1) An act or instrument relating to the business of a firm other than an incorporated limited partnership, and done or executed in the firm-name, or in any other manner, showing an intention to bind the firm by any person thereto authorised, whether a partner or not, is binding on the firm and all the partners. … 9 Liability of partner (1) Every partner in a firm other than an incorporated limited partnership is liable jointly with the other partners for all debts and obligations of the firm incurred while the partner is a partner; and (if the partner is an individual) after the partner's death the partner's estate is also severally liable in a due course of administration for such debts and obligations so far as they remain unsatisfied, but subject to the prior payment of the partner's separate debts. … 10 Liability of firm for wrongs (1) Subject to subsection (2), where by any wrongful act or omission of any partner in a firm other than an incorporated limited partnership acting in the ordinary course of the business of the firm, or with the authority of the partner's co-partners, loss or injury is caused to any person not being a partner of the firm, or any penalty is incurred, the firm is liable therefor to the same extent as the partner so acting or omitting to act. … 12 Liability for wrongs joint and several (1) Every partner in a firm other than an incorporated limited partnership is liable jointly with the partner's co-partners and also severally for everything for which the firm while the partner is a partner therein becomes liable under either of the two last preceding sections. …"
2. I accept that pursuant to s 12(1) of the Partnership Act, every partner in a firm is liable jointly with the partner's co-partners and also severally for everything for which the firm while the partners is a partner therein becomes liable. If at trial, there is a finding that the Box Moor partnership is liable to pay damages to Margaret Doak, the legal arguments made by William Doak will come into play.

The case law

1. The case law on the topic of whether a partnership is liable for personal injuries suffered by a partner is scant. Both parties referred to the three authorities on this topic, but each party submitted that these authorities supported their case. The cases are Mair v Wood [1948] SC 83, Huston v Burns [1955] Tas SR 3 and Facchini v Facchini [2002] WADC 127.

Mair v Wood

1. In Mair v Wood, a fishing venture was operated by a partnership. One of the partners removed the engine room floorboards from the vessel. Before the boards were replaced, another partner put his foot through the opening in the floor onto a revolving shaft and was injured. The injured partner brought an action against the partnership. In considering whether the action could be pursued against the partnership, Keith LJ considered the availability of actions between partners personally. At 93 Keith LJ held: "To take the illustration of a shipwreck, if a partner on board the ship, engaged in trade for the partnership, incurred personal outlay or liability in an attempt to salve ship or cargo, I do not doubt that he is entitled to be reimbursed by the partnership, and this right of reimbursement might entitle him to recover his expenses in returning himself to the seat of the partnership, including any medical expenses necessary to fit him for the journey. If, however, he lost a leg in the disaster, there is no principle on which the partnership would be bound to compensate him for the permanent loss of a leg, it is a loss incurred while engaged in the partnership affairs, but it is a personal loss compensation for which would have no relation at all to the purposes or objects of the partnership...If illness or accident gives no right to indemnity from the partnership still less can it give a partner such a right where brought about by the negligence of a fellow partner. In such a case the injured partner has a common law remedy against the wrongdoer personally. He has none, in my opinion, against the partnership."
2. Lord Keith concluded that the action could not proceed against the partnership (which, in Scots law had a separate legal identity), and it was dismissed (at 93). Importantly, there was no claim made against the negligent partner in his personal capacity.

Huston v Burns

1. In Huston v Burns, Crisp J considered a claim by A against B and C. A, B and C were partners. A was injured by B's negligent driving of a motor vehicle (of which C was the registered owner but not present when the accident occurred), while A and B were engaged in partnership business. B and C argued (as the cross-defendant does here) that they were not liable to A, as A had no cause of action against them as the accident occurred in the course of the partnership business. B and C contended that Mair v Wood supported their position. Crisp J considered the effect of Mair v Wood and held (at 9): "The answer is I think that the texts cited are concerned with actions in which the partnership is concerned qua partnership, i.e. where the action is directly concerned with the contractual obligations arising out of the partnership relation and not with delictual actions between partners where that relationship is an incidental circumstance merely."
2. Crisp J identified Mair v Wood as a case against the legal persona of the partnership, and that found that as a consequence it was not analogous to the case before him, in which the two defendants were sued personally. His Honour concluded that rather than supporting B's (the driver's) contention that the action could not proceed, Mair v Wood "destroyed it". Crips J found (at 15) that B's case suffered from the: "...false premise [of] assimilating these proceedings to proceedings against a partnership. The fact that the first defendant is a partner of the plaintiff is incident and not the gist of the action, and there is in my opinion nothing in the relationship of the parties to free him from his liability as an actual tortfeasor."
3. Crisp J concluded that the fact that the wrongdoer was a partner of the plaintiff was "incidental and not the gist of the action", and in those circumstances the wrongdoer (B) was personally liable to the plaintiff, even though the tortious conduct occurred during the conduct of partnership business.

Facchini v Facchini

1. Facchini v Facchini, involved a summary judgment application like the situation here. The plaintiff was in partnership with the defendant owing and running as crayfishing vessel known as "Spellbound". The defendant was the master skipper and the plaintiff was the deckhand. On 27 May 1996, the plaintiff had to gain access to the engine room and then return to deck. In order to return to the deck, the plaintiff had to climb up a ladder and pass through the hatch. The hatch was unsecured. It suddenly fell shut causing the plaintiff to let go of the edge, he slipped and fell onto his back on the engine room floor and thereby sustained personal injuries. The defendant denied liability and alleged contributory negligence. It was common ground that the plaintiff and defendant were in partnership.
2. The plaintiff maintained that he was proceeding against the defendant as the actual tortfeasor and not against the partnership nor against the defendant in his capacity as a member of the partnership. The defendant disagreed and argued that the plaintiff's cause of action against it was in the defendant's capacity as a partner properly operating the partnership as a part of that business. The defendant did not accept the action was against him personally as the wrongdoer or tortfeasor. Further, the defendant's position was that in all of the circumstances the partnership was not incidental to the plaintiff's presence on the vessel at the time of the alleged injury.
3. After referring to passages in Huston v Burns and Mair v Wood (quoted earlier in this judgment) his Honour concluded at [16], [17] and [18]: "[16] It must be appreciated that relevant to Mair v Wood (supra) in Scottish law a firm or partnership has a separate legal persona as distinct from the individuals who compose it. The situation in this jurisdiction and the English jurisdiction is somewhat different in that the law does not recognise the existence of a firm as distinct from the members of it; Meyer & Co v Faber (1923) 2 Ch 421 at 439. Interestingly however, and in my view of some relevance is that in Lindley and Banks on Partnership (17th ed) the observation is made at 12-90 footnote No 42, that the position as enunciated in Mair v Wood (supra) is now a fortiori in England, where the firm has no such personality. [17] Notwithstanding the contention on behalf of the defendant that the observations in Huston v Burns & Anor (supra) do not apply in the circumstances of this case and in this jurisdiction, I am not persuaded that this is the case. [18] Further, whether ultimately this is an action that is brought in respect of a matter arising in the course of partnership business and relating strictly to partnership property ought be the subject of evidence."
4. The result is that his Honour declined to make the strike out order and permitted the action to go to trial.

Submissions

1. Counsel for William Doak submitted that the partnership relationship cannot be said to be incidental to the alleged conduct because the relevant conduct was undertaken "as a partner". Here, like in Huston v Burns, it is arguable that the partnership relationship is merely the incident or occasion for the injury - i.e. the circumstance in which it occurred. The partnership relationship itself is not the "substance of the suit" nor "the gist of the action". It is arguable that the Chard partnership's cross claim proceeds against William Doak in his capacity as the actual tortfeasor, not because his conduct was undertaken as a partner. As previously stated, whether liability, if any, arises against William Doak either personally or as a partner depends on the findings as to the facts and circumstances in relation to liability. The cross claim should not be struck out or dismissed on this basis.

Circuity of action

1. William Doak submitted that if the cross claim was allowed to proceed, there would be a circuity of action. His submission was that the circuity arises in two ways:

• Firstly, liability for contribution that William Doak may be ordered to give would fall on Margaret Doak by virtue of their partnership relationship; and
• Secondly, any apportionment of liability to William Doak would take into account the actions of Margaret Doak as his partner.

1. In Eastern Extension, A/asia & China Telegraph Co Ltd v Federal Commissioner of Taxation (1923) 33 CLR 426 at 441, Isaacs and Rich JJ described the circuity of action principle as follows: "In Walmesley v Cooper Lord Denman CJ speaks of the 'principle … of avoiding circuity of action, ie, the scandal and absurdity of allow A to recover against B, in one action, the identical sum which B has a right to recover in another against A. The law, when it clearly detects the possibility of such a waist of the suitor's money and its own process, as well as of the public time, will interpose to prevent its happening.'"
2. In Idameneo (No 123) Pty Ltd v Gross (2012) 83 NSWLR 643 at [159], Hoeben JA adopted the criteria for the application of the principle set out by Young J (as his honour then was) in McCamley v Harris (1997) 8 BPR 15,683, where Young J held: "Before one can have circuity of action, as I understand it: (a) it must be shown that precisely the same amount of damages would be awarded in the defendant's proposed action as in the plaintiff's action; (b) both the plaintiff and defendant must be suing each other in the same right; (c) both actions must be actions at law, not one in law and one in equity; and (d) either the cause of action must be complete, or alternatively, the defendant so obviously has an action as a result of the finding for the plaintiff that it would be scandalous to put the defendant to the trouble of starting a fresh action."
3. William Doak submitted that in light of the structure of the proceedings, there is no real issue to be tried, of fact or law, in relation to of the allegations of contributory negligence. The thrust of William Doak's submissions were that the cross claim is an attempt to obtain a "double recovery" for contributory negligence attributed to Margaret Doak.
4. The Chard partnership submitted that the double recovery argument is infected by the false premise that the cross claim is a claim against the partnership and that once that premise is removed, the primary basis on which William Doak asserts circuity of action, i.e. that any amount awarded on the cross claim would be recoverable against Margaret Doak, as she is liable as partner for William Doak's negligence, falls away.
5. William Doak also says that has an immunity from contribution as he is "entitled to be indemnified" even where the indemnity is not fully and immediately enforceable when the relevant event occurs. In response, the Chard partnership argued that William Doak's proposition, that he would be entitled to indemnity from the partnership, and thus Margaret Doak, for any amounts that he may be ordered to pay on the cross claim, is doubtful. Counsel for the Chard partnership referred to Mair v Wood where it was concluded that a partner has no claim against the partnership (as opposed to the negligent partner personally) for injuries suffered as a consequence of a negligent act of another partner in the course of conducting partnership business. In these circumstances, the Chard partnership submitted firstly, that there would appear to be no proper basis for the tortfeasor to claim indemnity from the partnership for any amount it is ordered to pay to the injured partner as a consequence of his or her wrongdoing; and secondly, that even if such an indemnity were available, the first limb of Young J's criteria for the application of the circuity set out in McCamley v Harris, i.e. that two parties to the proceedings be liable to each other for "precisely the same amount of damages" can never been satisfied because there is simply no circumstance in which such a circumstance might arise.
6. Whether there is any deduction for contributory negligence depends on the facts be ascertained at trial. But in the event there is a deduction made for contributory negligence, counsel for the Chard partnership submitted that there is no principled reason why a defendant is not entitled to avail itself of the defence of contributory negligence vis-a-vis the plaintiff, and seek contribution or indemnity from a cross-defendant. It is my view that there is no "double recovery", because it is arguable that the defence and the cross-claim are concerned with the personal conduct of Margaret Doak on the one hand, and of William Doak on the other.
7. Overall, William Doak submitted that the statement of cross claim discloses no reasonable cause of action or other case appropriate to the nature of the pleading, has a tendency to cause prejudice and embarrassment in the proceedings or is otherwise an abuse of the process of the Court or is untenable in the known or admitted circumstances. In response, the Chard partnership submitted that William Doak has not advanced any additional basis on which the cross-claim should be struck out pursuant to UCPR 14.28, other than the matters referred to in his argument for summary dismissal.
8. For reasons given earlier, it is my view that it is arguable that the liability of William Doak is a personal one. As in Huston v Burns, it is arguable that the partnership relationship is merely the incident or occasion for the injury - i.e. the circumstance in which it occurred. The partnership relationship itself is not the "substance of the suit" nor "the gist of the action". Whether the liability of William Doak (if any) arises from the partnership's actions or his individual actions can only be determined at trial. It is only if a finding is made that his liability arises from the Box Moor partnership's acts or omissions that these arguments of William Doak will come into play. The cross claim should not be struck out or summarily dismissed on these grounds.

Hardship

1. Overall, William Doak submitted that permitting the cross claim to proceed will result in unnecessary costs in relation to a potentially uninsured liability so as to cause distress and hardship.
2. William Doak says that he and Margaret Doak were insured for legal liability under a rural plan, but that the policy did not insure William Doak against the liability of a partner to another partner where the partnership is an insured under the policy. William Doak and Margaret Doak have a Farm Liability policy in place with Wesfarmers General Insurance Limited trading as WFI for the periods covering 30 December 2008 to 30 December 2009 and 30 December 2009 to 30 December 2010 respectively.
3. In the policy under the heading "What is not Insured", at clause 11 "Partnership" is defined as "of a partner to another partner where the partnership is an insured under this policy." I accept that in these circumstances, this policy may not respond, but whether this is so may be subject to further legal argument at trial.
4. William Doak further submitted that the claim for contribution against him amounts to an attempt to recover damages/indemnity/contribution from Margaret Doak, and that a failure to grant a dismissal or stay of the cross claim would work an injustice to he and Margaret Doak because of duplication of proceedings and unnecessarily incurred costs with no net advantage to the Chard partnership. I have already addressed the indemnity and contribution arguments earlier in this judgment. I do not think that there will be a duplication of proceedings and costs unnecessarily incurred with no net advantage to the Chard partnership. This is because the liability, if any, on William Doak's part arises from the same facts and circumstances. They will be elicited at the one trial.
5. The Chard partnership submitted that firstly, William Doak cited no authority in support of his submission, because no authority exists; secondly, the existence or not of insurance is irrelevant to whether or not proceedings may be brought, maintained and defended and as to the determination of disputes between parties: Lister v Romford Ice and Cold Storage Co [1957] 1 All ER 125; [1957] AC 555 at 576-7, Davie v New Merton Board Mills Ltd [1959] 1 All 346; [1959] AC 604 at 627; and finally, that notions of hardship have absolutely no relevance to the question of whether the relief sought in the notice of motion ought to be granted.
6. I take into account that the insurance policy may not respond if William Doak is found liable arising from his actions as a partner and he will suffer hardship and distress, but these reasons are not sufficient to justify the cross claim being struck out or dismissed.

Stay of the cross claim

1. Section 67 of the Civil Procedure Act reads: "67 Stay of proceedings Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day."
2. Section 67 gives the Court a wide discretion to grant a stay of proceedings. In New South Wales v Plaintiff A [2012] NSWCA 248, Basten JA (Beazley JA and Hoeben JA agreeing) held at [15] that: "[15] …Section 67 does not identify any particular criteria as relevant to the exercise of the power but, at least in the Supreme Court, it may be understood to cover a variety of circumstances in which the Court's inherent jurisdiction to prevent abuse of its process may be invoked."
3. Counsel for the Chard partnership submitted that William Doak does not advance any particular reason why, if summary dismissal or a strike out or both were refused, a stay should be granted. I take into account the reasons may be hardship, expense and duress. In my view, these reasons are not, in the exercise of my discretion, sufficient to grant a stay of the cross claim
4. The result is that the notice of motion filed 30 January 205 is dismissed.
5. Costs are discretionary. Costs usually follow the event. The cross defendant is to pay the cross claimants' costs as agreed or assessed on an ordinary basis. The Court orders that: (1) The notice of motion filed 30 January 2015 is dismissed. (2) The cross defendant is to pay the cross claimants' costs as agreed or assessed on an ordinary basis.

Amendments 14 May 2015 - Catchwords on cover sheet amended. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 May 2015