Flinn v Flinn [1999] VSCA 134

2. On 4 August we published our reasons for decision in this appeal and intimated that we would later entertain the foreshadowed application by the plaintiffs for an order for the costs of the appeal against Bernard Robert Flinn and hear argument on the terms of the order we should make disposing of the appeal.

5. We shall continue to call the parties the plaintiffs, the defendant and (without any disrespect to Mr Flinn) Robbie. It seemed to us on reflection that to dispense by consent with the filing of a summons in support of the application for costs made against Robbie, as we were minded to do, might be too informal, and accordingly a summons has now been filed by the plaintiffs. We deal with this summons first.

8. An affidavit sworn on 9 August 1999 has been filed by Robbie in opposition to the costs application. We made it clear that this affidavit, and paragraph 9 of his affidavit sworn on 23 August 1999, and the evidence taken on his cross-examination, were received only for the purposes of the application and could not be resorted to for the purposes of the appeal. (Those affidavits are headed in the appeal, just as the summons is headed in the appeal.) The power of attorney was also put in evidence. The plaintiffs have not filed any affidavit in support of the application. Mr Garratt's position has been that he asks us to have regard to the view of the facts taken by the trial judge, and by this Court in determining the appeal, for the purposes of his submission that the power undoubtedly conferred by s.24 of the Supreme Court Act 1986 to make an order for costs against a non-party should be exercised in this case in relation to the costs of the appeal. He accepts that it is open to Robbie to endeavour to challenge those findings on the present application.

11. The general rule is, not only that the non-party is not bound by findings made in the litigation, but that they may not even be used as evidence of the facts found. To this general rule there are exceptions which enable findings made in litigation to be used against someone who was not a party to that litigation for the purposes of a summary procedure. Specifically, it has been laid down in England by the Court of Appeal that on an application against a non-party seeking an order for the costs of the litigation the applicant may in an appropriate case be permitted to rely on evidence given and facts found in the litigation: Symphony Group Plc v. Hodgson [1994] Q.B.179. In that case Balcombe, L.J. said at 193:

"The procedure for the determination of costs is a summary procedure, not necessarily subject to all the rules that would apply in an action. Thus, subject to any relevant statutory exceptions, judicial findings are inadmissible as evidence of the facts upon which they were based in proceedings between one of the parties to the original proceedings and a stranger: see Hollington v. F. Hewthorn & Co. Ltd. [1943] K.B. 587; Cross on Evidence, 7th ed. (1990), pp.100-101. Yet in the summary procedure for the determination of the liability of a solicitor to pay the costs of an action to which he was not a party, the judge's findings of fact may be admissible: see Brendon v. Spiro [1938] 1 K.B. 176, 192, cited with approval by this court in Bahai v. Rashidian [1985] 1 W.L.R. 1337 1343D, 1345H. This departure from basic principles can only be justified if the connection of the non-party with the original proceedings was so close that he will not suffer any injustice by allowing this exception to the general rule."

15. This judgment was concurred in by Staughton, L.J. and Waite, L.J., Staughton, L.J. observing at 196:

"[T]here are cases, as Balcombe, L.J. has shown where a person may be ordered to pay costs on the basis of evidence given and facts found at a trial to which he was not a party. Before such an order is made, it must be just and fair that the stranger should be bound by that evidence and those findings. In my judgment that is not the case here."

19. The statement of principle by Balcombe, L.J. was also endorsed by Batt, J. in C.E. Heath Underwriting & Insurance (Aust) Pty Ltd v. Daraway Constructions Pty Ltd (unreported, 1 September 1995). The decisions cited by Balcombe, L.J. on applications to have costs visited on a solicitor are Brendon v. Spiro and Bahai v. Rashidian. In the former, Scott, L.J. said ([1938] 1 K.B. 176 at 192):

"[T]he case must go back to [the trial judge] to be dealt with in such a manner, and according to such procedure as he thinks proper, providing, of course, that the two solicitors know what the case against them is, and have a sufficient opportunity of meeting it. Whether the learned judge should order affidavits, whether he should direct oral evidence, how far he can properly refresh his mind from his notes of the hearing of the case, and dispense with additional or new evidence to prove facts which were already established in the course of the proceedings, will all be matters for him to consider."

23. In the second of those cases, Bahai v. Rashidian, Parker, L.J., having cited this passage from Brendon v. Spiro continued([1985] 1 W.L.R. 1337 at 1344):

"There is, here, recognition of the fact that, although it may be possible to dispense with new evidence in respect of matters established at the trial, it may also be necessary to have such matters dealt with afresh. If the issue of Mr Harris's liability is tried by the trial judge, he will certainly have to consider whether, in view of the gravity of the charges and Mr Harris's inability to cross-examine, some of the evidence will, in justice to Mr Harris, have to be given afresh. This, and no doubt many other matters, will have to be considered. Provided that (a) the procedure adopted by the judge gives to Mr Harris a full and fair opportunity to meet the charges and (b) to someone with knowledge of the strictures previously made by the judge a hearing by that judge would not appear to be marred by bias, the trial judge must be the right person to hear the application."

In the same case Balcombe, L.J., at 1345, observed:

"The exercise of this summary compensatory jurisdiction is now regulated by the provision of R.S.C., Ord. 62, r.8. Rule 8(2) requires the solicitor to be given a reasonable opportunity to appear before the court and show cause why the order should not be made, but otherwise the procedure to be followed is left to the judge who hears the application: see Brendon v. Spiro [1938] 1 K.B. 176. In particular he will have to consider whether he should direct oral evidence and how far he can properly refresh his mind from his notes of the hearing of the case, and dispense with additional or new evidence to prove facts which were already established in the course of the proceedings: per Scott, L.J. in Brendon v. Spiro [1938] 1 K.B. 176, 192."

29. In the unreported decision we have mentioned Batt, J., in dealing with the application for costs made against the non-party, Krongold, acted upon his finding, made in his principal judgment, that Krongold was "the heart and mind" of the defendant company. See further as to procedure the very recent decision of the Court of Appeal in Nordstern Allgemeine Versicherungs A.G. v. Internav Ltd. [1999] 2 Lloyd's Rep. 139 at 156.

32. Where an order for costs is sought against a non-party, issues of fact which were considered in the litigation may also arise on the application for costs. Each case depends on its own circumstances and the issues raised by the application for costs may be by no means identical to those raised in the litigation. Compare Re Land and Property Trust Co. Plc [No.4] [1994] 1 B.C.L.C. 232 at 244. In the present case the suggested circumstances put forward by the plaintiffs as justifying the order for costs against Robbie include very prominently the role of Robbie in the institution and conduct of the appeal and the mental incompetence of the defendant. These or similar matters were the subject of findings by the judge and were also adverted to by this Court, it being observed in the reasons for judgment of Brooking, J.A. (which may be treated as those of the Court) that it was clear that, both before and after the litigation began, the firm of solicitors representing both Mary and the estate of Bill had been receiving its instructions from Robbie. In this Court's reasons there are recorded the judge's findings that Mary probably had no idea what the litigation was about and that beyond doubt it was Robbie who was conducting the litigation. We refer to the judge's description of her as of unsound mind and his comment that she thought that her husband was still alive. (She also thought that her grandson was her son.) The judgment goes on to refer to passages in her evidence supporting the judge's view of her mental condition, and we need not mention these passages again. What the judge said about this was mainly directed to the circumstances in which it had become common ground before him that Mary's evidence should be disregarded, although what he said about Mary's state of mind and Robbie's role may also be regarded as part of the findings made on what might be called the background. His Honour was mainly concerned with whether he should place any reliance on evidence given by Mary in the course of the trial and he was not directly concerned with whether Mary had on other occasions what Robbie in his affidavit now describes as "days of lucidity". According to Robbie's affidavit of 9 August 1999:

"My mother's mental capacity has only severely deteriorated in the past eleven months and at the time of the trial and for some time after the appeal was commenced she had days of lucidity when I could discuss matters sensibly with her as previously."

Robbie goes on to assert in his affidavit that his mother had interested herself in the litigation at all stages, that he had passed on to the lawyers her instructions and that she had firmly requested that the appeal be instituted. His cross-examination also deals with this.

37. The plaintiffs say that Robbie has been financing the appeal. The question who was financing the litigation on the defendant's side seems not to have been gone into at the trial. According to the evidence of Robbie at the trial, the income received by Mary since Bill's death was enough to support her in the nursing home, including "extras", with only about $4000 to $5000 a year left over. There was no suggestion in his evidence that this small surplus was arrived at after taking into account payments made to fund the litigation. Robbie's affidavit does not deal clearly and specifically and in detail with the question from whose funds the costs of the action and appeal have been paid, although in it there are some references to legal costs and an assertion that he has paid from his own pocket very considerable sums for legal costs.

40. If this was an application to the trial judge for an order for costs against Robbie, it would be well open to him to conclude (and we would ourselves conclude) that Robbie's connection with the action was so close that he would not suffer any injustice if the judge treated himself as at liberty to use for the purposes of the costs application such of the evidence given at the trial as could properly be said to be relevant to that application. We say this notwithstanding Robbie's affidavit. It would be for the judge to determine what procedure should be adopted, and it would seem that the just course would be for the judge to have regard to relevant evidence given on the trial but also to take into account any further relevant evidence tendered by Robbie or the plaintiffs, on the basis that evidence tendered could be tested by cross-examination. But the present case is unusual, and may even be unique, in that an order for the costs of an appeal is sought against a non-party after a trial by judge alone where the findings of fact of the trial judge have been called in question by the appellant and accordingly considered by the appellate court. How is the appellate court to devise a procedure to serve the ends of justice in these circumstances? It would not be just to act simply on the evidence given and findings made at the trial, ignoring the affidavit filed by Robbie, nor do the plaintiffs invite us to adopt that course. How is an appropriate procedure to be devised for the making of satisfactory findings of fact for the purposes of the application for costs unless there is to be an extremely costly re-hearing which pays no regard to the earlier evidence and findings? It is one thing for a primary judge, who has heard the evidence called in the principal proceeding, to take that evidence into account along with additional evidence led for the purposes of the costs application. But where, as in this case, the appellate court has disposed of an appeal in which a judge's findings of fact are called in question by applying the principles appropriate to such an appeal, how is the court to assess, on the one hand, the findings of the primary judge which have not been successfully called in question on the appeal and, on the other hand, affidavit material, the subject of cross-examination, placed before it? We are very conscious of these possible difficulties. But Mr Panna, on behalf of Robbie, has not raised these difficulties, or suggested that the procedure which has in fact been adopted is unjust or should not be adopted or should be modified. Moreover, as events have turned out, we are, in this case, not troubled by the problem of how to weigh the judge's findings against the evidence of Robbie that has been placed before us. This is because of the view which we take of the credibility of Robbie as a deponent cross-examined on this application. We were unfavourably impressed by him as a witness and we reject his evidence on a number of important points.

43. We need not set out in full detail what was said by Robbie in cross-examination, or what appeared in income tax returns signed by him, about payments made to finance the purchase of a farm by his wife from funds which formed part of Bill's estate or part of Mary's own estate. Regard should be had to exactly what was said in evidence or appears in tax returns about these payments. The tax returns show a loan to Robbie's wife (at first from both Bill's estate and Mary but later from Mary alone) of a number of sums of money - $75,185, $188,846 and $206,588 (the last sum being shown as that to which the amount of $188,846 had increased in consequence, presumably, of a further loan of $17,742). Cross-examined, Robbie said that he could not explain this last amount ($17,742) and that it did not represent either a loan or a gift made by his mother. He said that the first two amounts ($75,185 and $188,846) were not loans made by his mother to his wife but represented gifts made to him by his mother of livestock from Bairnsdale and Tambo Upper. He swore that the income tax returns spoke of a loan "via Ambroses" because he, having suffered a judgment after emerging from bankruptcy, wanted to defraud his creditors by paying the money given to him by his mother ($75,185) to the solicitor, in whose name it would then be lent to his wife. At the trial both Robbie and his wife had sworn unequivocally that this sum had been lent by Mary to the wife. He had added at the trial that it was secured on the farm at Glenthompson. His wife's evidence was that the loan was made to finance the purchase of that farm. The answers given by Robbie in cross-examination before us and his evidence at the trial are irreconcilable and the discrepancy cannot be explained as due to some bona fide mistake.

46. Robbie's evidence before us was that a further asset shown in the tax returns as an interest-bearing deposit of $49,867 was in fact a gift made to him by his mother. He said that he could not clarify that item in the accounts further without speaking to the accountant.

49. His evidence was that he had complained to his accountant that the amounts in question - including the $49,867 - were wrongly shown in the tax returns as assets when in fact gifts had been made by his mother to himself, but that the accountant had told him that they had been entered and could not be changed. He also swore that the accountant had told him that the amounts were shown as loans for tax reasons, but he himself was unable to explain in any plausible way what the supposed tax reason was.

52. The accounts for the year ended 30 June 1998 (which must have been prepared long after the judgment in this case) contain in two places the notation, which Robbie said in evidence in this Court "would have only been done weeks ago":

"Note: Loan Accounts (Assets); appear not to be an asset - rather than a total representing amounts gifted (to Son Rob Flinn &/or Maureen Flinn) $75,185 + $210,241-Solic confirmation required before alter. W.H Popplestone CPA."

In these accounts the larger loan has grown from $206,588, to $210,241.

57. Robbie also swore before us that his parents' home had been sold for $120,000 after Bill's death and that the net proceeds of sale had been paid by him to Mrs McKinnon, to whom he owed money, in discharge or on account of his debt. This was evidently, according to his evidence, a further gift made to him by his mother.

60. All this is, on any view, highly unsatisfactory.

63. We do not accept Robbie's explanation of the tax returns. One thing is clear. The proceeds of sale of substantial assets owned by Bill's estate and Mary have gone to Robbie, whose relationship to Mary was unquestionably a fiduciary one. Were these payments made by way of gift, by way of loan or by way of misappropriation in the sense that they were not made with the authority of an executrix who had and exercised the capacity to authorise and of Mary as a property owner who had and exercised the capacity to authorise? We reject Robbie's explanation of how he came to give evidence at the trial that the payment of $75,185 was a loan and his explanation of the tax returns. We find that loans were, in a sense, made to Robbie's wife of the sums shown as loans in the tax returns. We say "in a sense" because of the doubt which has for a considerable time attended the mental competency of Mary.

66. So far as the financial position of Bill's estate and Mary is concerned, Robbie's evidence in cross-examination was that there is now no money at all. Mary's will dated 3 March 1995 may (in the absence of a court order under the Wills Act 1997) be regarded as her last will, since in our view she now lacks the capacity to revoke it. This will leaves pecuniary legacies totalling $77,000. Robbie admits that there is no money at all to pay the legacies. He admits, and we accept the correctness of this admission, that payments have been made to him or his wife of the proceeds of sale of cattle belonging to Bill and Mary (amounting to about $264,000), the proceeds of sale of their house (about $120,000), and a further sum of approximately $50,000 (the interest bearing deposit). He admits that the defendant is quite unable to pay, in either of the capacities in which she is sued, the costs already awarded against her by the trial judge. He or his wife has, by his own admission, received from Mary sums totalling about $434,000.

69. As regards Mary's capacity, on a fair reading of paragraph 9 of Robbie's affidavit of 9 August 1999 his mother ceased to have "days of lucidity" some time after the appeal was instituted. He admits that it has been he himself who has given instructions for the purposes of the action and the appeal. He says that he has been passing on his mother's instructions, but we do not accept his evidence to this effect. In our opinion he has been the true controller of this appeal.

72. He has in addition financed the appeal, both directly and indirectly by the giving of security. Judgment was given on 17 December 1997. He asserts in his affidavit that he has paid legal costs for the purposes of the litigation as follows:

81. The only reimbursement from the Tongala farm account mentioned in the affidavit is of an amount of $3,000 on 29 August 1997. The dates show that the amount reimbursed must represent an expenditure by him additional to the $53,000. In his oral evidence Robbie says that there is now no money at all in his mother's accounts and that his own money has been used for legal costs. Earlier this month the nursing home payments for Mary's support were about four months in arrears.

84. He belatedly admitted that he has given the defendant's solicitors security for the costs of the proceedings over the $150,000 which he is to receive under the terms of the judgment. Initially he falsely denied that he had given any security. He says that, as at 9 August 1998, the defendant's own unpaid legal costs are about $106,000.

87. An order for costs against a non-party is exceptional: Aiden Shipping Co. Ltd. v. Interbulk Ltd [1986] A.C. 965 at 980 per Lord Goff; Taylor v. Pace Developments Ltd. [1991] BCC 406 at 410; Symphony Group Plc v. Hodgson [1994] Q.B. 179 at 192-3 per Balcombe L.J. The power must of course be exercised judicially: Knight v. F.P. Special Assets Ltd. [1992] HCA 28; (1992) 174 C.L.R 178 at 192. In that case Mason, C.J. and Deane, J., with whose judgment Gaudron, J. concurred, said at 192-3:

"For our part, we consider it appropriate to recognize a general category of case in which an order for costs should be made against a

non-party .... The category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. Where the circumstances of a case fall within that category, an order for costs should be made against the non-party if the interests of justice require that it be made."

91. It is accepted in other decisions that relevant considerations include whether the person concerned has managed the legal proceedings or has financed them: Symphony Group Plc v. Hodgson [1994] Q.B. 179 at 192-3 per Balcombe, L.J.; Nordstern Allgemeine Versicherungs A.G. v. Internav Ltd. [1999] 2 Lloyd's Rep. 139 at 156 per Waller, L.J.

94. In the present case Robbie has played an active part in the institution and conduct of the appeal; indeed, he has been the real controller of it. The party on the record has in our view throughout the pendency and hearing of the appeal been incapable by reason of senility or mental infirmity of managing her affairs in relation to the appeal and incapable of discharging her duties as executrix. Robbie has a most substantial interest in the outcome of the appeal. Under Mary's last will he is the specific devisee and legatee of the farm land and associated personal property. He has financed the appeal, both by making substantial payments out of his own funds and by giving the appellant's solicitors security for costs over his own property - the $150,000 he is entitled to receive under the judgment. The appeal has been instituted so far as the record is concerned, by an executrix not in a fit state to carry out the directions in her testator's will and a litigant not fit to attend to litigation in her personal capacity.

97. We have not overlooked the matter put to us on Robbie's behalf in relation to the ability of a respondent to an appeal to seek an order for security for costs.

100. In our view the present case is one of those exceptional ones in which justice requires that a non-party be ordered to pay the costs of litigation, and we will order that Robbie pay the costs of the appeal. We are, however, not persuaded that those costs should be awarded on a solicitor-client basis. Nor are we, on the other hand, persuaded that we should award costs of issues in relation to the appeal, or direct payment of only a part of the plaintiff's costs of the appeal.

103. We will make an order enabling the liability of Robbie for the costs of the appeal, once its amount has been ascertained, to be set off against the $150,000 to be paid by the plaintiffs to Robbie. This will require an initial deferment of the payment of interest, since the amount of the principal as reduced by set off will not be known at the outset.

106. We turn now to the matter of representation. The plaintiffs' summons directed to Robbie seeks not only an order for costs but also an order removing Mary as executrix and appointing an administrator in her place, and an order appointing a litigation guardian for her. These questions of representation should, however, be dealt with, not in the lis between the plaintiffs and Robbie for the purposes of which the summons was filed, but in the appeal.

109. For the purposes of dealing with this matter of representation we have had regard, without objection, to three affidavits, those of the plaintiffs' solicitor, Mr Gilchrist, sworn on 20 and 24 August 1999 respectively, and that of the defendant's solicitor, Mr Young, sworn on 23 August 1999. In addition there has been filed the consent to be litigation guardian required by Rule 15.03(6) of Chapter I. This material supplements the material which is otherwise available for the purposes of the appeal and so available when the particular matter of representation is considered. This is a convenient point at which to record that other affidavits additional to those just mentioned have been filed by both the plaintiffs and the defendant with a view to their being used on the question of the order which the Court should make in other respects by way of determining the appeal. In the end, both Mr Kendall and Mr Garratt invited us to dispose of the appeal without having regard to any of these additional affidavits, and accordingly we ignore them. But since the defendant as well as the plaintiffs proceeded until the last minute on the basis that these affidavits would be used, we think that the costs of preparing or perusing them should be included in the costs awarded against the defendant and Robbie.

112. We directed the attention of counsel to the problems arising from the unsoundness of mind of the defendant when the matter came before us briefly on 10 August. It is remarkable that until this Court raised the matter no attention had apparently been given by the parties to any of these problems. Even when the Court suggested to Mr Kendall on 10 August that it was clear that Mary was not competent to continue to act as her husband's executor he declined to accept the suggestion. It is not contended that Mary has completed her executorial duties. In particular, she has not, by means of a transmission application, placed herself on the register as the proprietor of her testator's interest in the farm land; see In the Will and Estate of Allan [1912] VicLawRp 51; [1912] V.L.R. 286. It is clear that Mary is and has for a long time been incapable of acting in the office of executrix. The making of an order by the Court of Appeal directly removing her might be objectionable as an exercise of original jurisdiction. But we can bring about her removal indirectly, as it were, as part of the judgment which we substitute for the judgment below. Once the mental state of Mary was revealed when she came to give evidence and it became common ground that her evidence should be disregarded, her removal from office should have been sought. Let it be assumed that at the time of trial Mary had days when she was of sound understanding. Plainly a personal representative should not be allowed to remain in office if the dying light of reason flickers from one day to the next. The same may be said in considering whether a litigant is a "handicapped person" within the meaning of Order 15. It is accepted that the power of attorney (which, it is common ground, is an enduring power) does not extend to any of the powers of Mary as executrix.

115. Mr Kendall resisted the suggestion that Mary should be removed as executrix. He was unable, however, to advance any reason why she should not be removed and did not submit that, had application been made to the trial judge, the case would not have been regarded as falling within s.34 of the Administration and Probate Act 1958. As to the suggested administrator put forward by the plaintiffs, he submitted only that it was undesirable that the administrator should be a person unknown to Mary, who lived a long distance from her and was not shown to have knowledge of the management of dairy farms. No alternative person as appointee was put forward in relation either to the office of executrix or to that of litigation guardian. Nothing is alleged against the character or independence of the suggested appointee, a solicitor, Mr Adams. It is not submitted that any further formal steps should be taken for the purposes of the removal of the executrix and appointment of the administrator or the appointment of a guardian. We think we should make the orders as part of the substituted judgment below. This will regularise the position for the purposes of the appeal also.

118. Rule 6.09 of the Administration and Probate Rules 1994 will have to be complied with. No guarantee will be required.

121. We come now to the substantive order to be made disposing of the appeal. Here the main question argued is whether the Court should make an order imposing a trust which, instead of giving Mary a life interest in the farm, requires the plaintiffs to maintain her. Mr Kendall submits that this should not be done, essentially because the judge found that the plaintiffs had promised to operate and manage the farm and declared, in effect, that they were to be entitled to the farm upon Mary's death subject to their continuing to operate and manage the farm "if required and permitted by Mrs Flinn". But for almost five years now Mary has refused to allow the plaintiffs to have anything to do with the farm. We see no reason for departing from the terms of the proposed order in the respect suggested. It is said that the proposed order, by depriving the defendant of her property, interferes with her legal rights. But it is the office of equity to interfere with legal rights where their enforcement would be unconscientious. We were pressed with the view that our proposed order went beyond what was necessary to satisfy the equity that had been established. This we do not accept. The question was debated before us on behalf of Mary with a vigour disproportionate to the small amount concerned, $4000 to $5000 a year on the estimate of Robbie.

124. As regards the costs of the appeal as between the plaintiffs and the defendant, two questions arise. In the first place, Mr Kendall submits that because his client has succeeded on the contract question, an order should be made either providing for costs of issues or giving the plaintiffs a proportion only of their costs. But despite the argument advanced we remain of the view provisionally expressed in the reasons for judgment that the plaintiffs should be given the usual order for the costs of the appeal, with no special order relating to the costs of issues. The second question is whether the plaintiffs should, as they suggest, be given costs as between solicitor and client. We are not persuaded that such an order is appropriate in this case and, as with Robbie, costs will be on a party and party basis.

127. Mr Kendall sought leave to appeal against the order for costs made by the trial judge on the footing that s.17A(2) of the Supreme Court Act 1986 made leave necessary. To the extent to which complaint is now made of the judge's failure to order the plaintiffs to pay the defendant's costs of calling an expert witness, this application is a hopeless one. The real basis of the application was a submission that, once it was determined on appeal that the claim in contract failed, the costs order below became unfair by reason of its failure to reflect the plaintiffs' ultimate failure on that issue. On the assumption that leave to appeal was necessary, we would grant it, but we would not vary the judge's order for costs on the ground essentially relied on by Mr Kendall, being unpersuaded by his submission.

130. Mr Garratt, in turn, asked us to order that the costs awarded by the judge to the plaintiffs against the defendant be set off against the $150,000 which the plaintiffs are to be required to pay to Robbie. We think it would be wrong for us to do this. It will be for the plaintiffs, if they see fit, to apply to the judge for an order that Robbie pay the costs of the action and, if they obtain that order, to apply for a variation of this Court's order.

133. Now we will hand down the proposed orders, a long one on the appeal and a short one on the application by summons. If counsel would be good enough to have a look at those.

(Discussion ensued.)

The orders will be as handed down in writing and I will initial a copy of each order, which will remain on the file.

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