Ingot Capital Investment & Ors v Macquarie Equity Capital Markets & Ors

LEGISLATION CITED : Civil Procedure Act 2005 Uniform Civil Procedure Rules

CASES CITED : Ingot v Macquarie (No 6) [2007] NSWSC 124 Ingot Capital Investment v Macquarie Equity Capital Markets (No 7) [2008] NSWSC 199

Ingot Capital Investments Pty Limited (First Plaintiff) Stocks Convertible Limited (formerly AOIT Limited) (Second Plaintiff) ASC Pty Limited (Third Plaintiff) PARTIES : Stocks Convertible Trust plc (formerly Australian Opportunities Investment Trust PLC) (Fourth Plaintiff) Eastern States Securities Limited (Fifth Plaintiff) Ingot Capital Management Pty Limited (Sixth Plaintiff) John Trowbridge Consulting Pty Limited (Twelfth Defendant)

COUNSEL : R G Forster SC / P J Dowdy (Plaintiffs) P Greenwood SC (Twelfth Defendant)

SOLICITORS : Deacons (Plaintiffs) Minter Ellison (Twelfth Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

50169/01 INGOT CAPITAL INVESTMENTS PTY LIMITED & ORS v MACQUARIE EQUITY CAPITAL MARKETS LIMITED & ORS [No 8] JUDGMENT 1 HIS HONOUR: This is an application by the twelfth defendant (Trowbridge) to reopen the orders made by me on 13 May 2008 dealing with, although not completely, the costs of the proceedings. 2 By order 6 I ordered the plaintiffs to pay to each relevant defendant and to the relevant cross-defendant interest on that party's costs and disbursements in accordance with a formula (which it is convenient to call the Lahoud formula) set out in order 6. Reference to order 1 shows that the category of relevant defendants explicitly excluded Trowbridge. Reference to order 3 shows that Trowbridge was not the relevant cross-defendant. Thus, order 6 did not give Trowbridge interest on its costs and disbursements. 3 There are two issues underpinning today's application. The first is whether Trowbridge should be given leave to reargue the question of interest, having regard to some matters of history to which I shall turn. The second is whether, if it is given leave to reargue the question, the orders sought by it should be made. 4 The application is brought pursuant to a notice of motion filed on 27 May 2008. That notice of motion calls in aid UCPR rule 36.16. However, at the outset of the case, Mr Greenwood of Senior Counsel, who appeared today for Trowbridge, indicated that reliance was placed also on subrules 15 and 17. 5 Those rules, so far as they are relevant, read as follows: 36.15 General power to set aside judgment or order (cf DCR Part 13, rule 1, Part 31, rule 12A; LCR Part 11, rule 1, Part 26, rule 3) (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. (2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent. 36.16 Further power to set aside or vary judgment or order (cf SCR Part 40, rule 9)

(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. (2) The court may set aside or vary a judgment or order after it has been entered if: (a) it is a default judgment, or (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or (c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order. (3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it: (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief. (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. (3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered. (3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B). (4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.

36.17 Correction of judgment or order ("slip rule") (cf SCR Part 20, rule 10; DCR Part 17, rule 10; LCR Part 16, rule 10)

If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.

6 As with everything else in this litigation, the background to today's application involves a number of matters of contention. I gave my principal judgment (although numbered as No 6) on 30 March 2007: Ingot v Macquarie (No 6) [2007] NSWSC 124. In substance, I ordered that the plaintiffs' claims be dismissed as against all parties other than Trowbridge (orders having been made earlier, by consent, as between the plaintiffs and Trowbridge) and that all cross-claims, whether for contribution or indemnity or otherwise, be dismissed. I reserved the question of costs. 7 The various defendants, including Trowbridge, made application for orders for costs. In the case of Trowbridge, the orders made by consent dealt with costs up to the date of making of those orders but not thereafter. Thus, by notice of motion filed on 1 June 2007, Trowbridge sought orders for costs subject of course to the orders of the Court made earlier (on 29 June 2006). The relief sought by Trowbridge pursuant to the notice of motion filed on 1 June 2007 was as follows: 1. Subject to order 4 of the Court's orders made on 29 June 2006, the plaintiffs pay the costs of John Trowbridge Consulting Pty Limited (" Trowbridge" ) of the proceedings, including of bringing any cross claims, and cross defendants' costs in defending those cross claims. 2. The plaintiffs jointly and severally with each of the cross claimants to the second, seventh to thirteenth, sixteenth, nineteenth, twenty-second, twenty-fifth and thirty-fourth cross claims pay Trowbridge's costs incurred in defending the relevant cross claim up to and including 21 June 2006 on a party/party basis, and thereafter on an indemnity basis. 3. In the alternative to paragraph 2 above, the plaintiffs jointly and severally with each of the cross claimants to the second, seventh to thirteenth, sixteenth, nineteenth, twenty-second, twenty-fifth and thirty-fourth cross claimants pay all of Trowbridge's costs incurred in defending the relevant cross claim on a party/party basis. 4. Pursuant to section 98(4)(c) of the Civil Procedure Act 2005, Trowbridge is entitled to a specified gross sum instead of assessed costs in such amount as seems fit to this Honourable Court. 5. Pursuant to section 101(4) of the Civil Procedure Act 2005, Trowbridge is entitled to interest on the costs ordered to be paid to it, at the prescribed rate, from the dates on which the costs concerned were paid.

8 Other parties made various applications for costs, including in the majority of cases applications for orders for costs on the indemnity basis and applications for costs to be assessed in a gross sum pursuant to s 98(4)(c) of the Civil Procedure Act 2005. 9 The plaintiffs made a number of concessions in relation to costs, by their submissions filed on 16 July 2007. By para 2 of those submissions the plaintiffs accepted "that they must pay the costs of the first to fourteenth defendants against which they failed, assessed on the ordinary basis". By the third paragraph, the plaintiffs accepted "that they must indemnify the defendants for the costs of the first to thirty-second cross-claim, assessed on the ordinary basis". 10 I pause to observe that Trowbridge was the twelfth defendant and was not excepted from the concession made in para 2. Further, Trowbridge was a cross-claimant or cross-defendant in various of the first to thirty-second cross-claims. 11 The submissions made specific reference to Trowbridge in para 32. The plaintiffs accepted "that they should pay Trowbridge's costs of its cross-claims on the ordinary basis and not otherwise". Reasons were given for this. 12 The costs applications, with an exception, were fixed for hearing for three days commencing 4 February 2008. The exception was that, as had always been recognised would be necessary, all applications for gross sum orders would be deferred. Clearly, no gross sum assessment could be made until the basis of assessment (including issues as to indemnity costs and issues as to the costs of cross-claims that were not covered by the plaintiffs' concession) were resolved. 13 There was, I think, a considerable amount of toing and froing between the parties between 16 July 2007 and 4 February 2008. That process included the exchange of evidence and submissions. In the course of that process, I think, a number of issues were narrowed. 14 Relevantly, as between the plaintiffs and Trowbridge, Trowbridge's lawyers Minter Ellison wrote two letters on 15 January 2008. One of those letters, omitting formal parts, reads as follows: " We refer to your clients' submissions in relation to costs dated 16 July 2007. We note that in paragraphs 3 and 32, your clients have conceded that they will pay our client's costs of bringing and defending cross claims against it. We propose that at the hearing before his Honour Justice McDougall on 4 February 2008, our counsel hands up short minutes of orders in the form of the attached (which contains order 1 of our client's motion dated 28 May 2007). Please let us know if your clients agree to the proposed order "

15 The attached (draft) short minutes of order provided for a consent order as follows: 1. Subject to order 4 of the Court's orders made on 29 June 2006, the plaintiffs pay the costs of John Trowbridge Consulting Pty Limited of the proceedings, including of bringing any cross claims, and cross defendants' costs in defending those cross claims.

16 Minter Ellison's other letter of 15 January 2008 was addressed to all parties. It referred to Trowbridge's notice of motion dated 28 May 2007 (the one filed on 1 June 2007) and noted "that our client no longer pursues the order [sic] in paragraphs 2 and 3 of the motion. Those paragraphs are abandoned by our client." 17 Mr Tan, a partner in Minter Ellison with responsibility for the conduct of the litigation on behalf of Trowbridge, has sworn that when he sent the letters in question his attention was focused on the costs of the cross-claims and not on the question of interest on costs. He noted that the question of a gross sum costs order had been deferred and said that he assumed, as to interest, that "given all defendants were in the same position...Trowbridge would be included in the final order that the Court would make regarding interest for all defendants". He noted that para 1 was "peculiar to Trowbridge" because of the settlement in June 2006, dealing among other things with costs to that date. Thus, he says, his letter enclosing the draft short minutes of order "focused on paragraph 1 [of the notice of motion filed on 1 June 2007] alone". 18 The plaintiffs' lawyers Deacons replied to the letter of 15 January 2008 by e-mail which, among other things, said:

We confirm that our clients are prepared to consent to those orders, on the basis that the orders are made on a party/party basis. If this is acceptable, could you please include reference to 'on a party/party basis' in the short minutes, and send them to us so that we may sign this prior to the hearing?

19 It does not appear that the amendment was made prior to the hearing. However, the short minutes of order that were in due course signed and handed up did include the words in question. 20 When the costs application came on for hearing, I asked Mr Forster of Senior Counsel, who then appeared and today appears with Mr Dowdy of counsel for the plaintiffs, to "outline briefly the matters that you understand to be in issue between your clients and each of the defendants" (T 6.3). Mr Forster then did so. In many cases, he referred explicitly to the question of interest on costs and noted that there was no dispute because interest had been conceded. 21 In some cases, however, Mr Forster did not refer expressly to the question of interest. Thus, in those cases, I asked him whether interest was sought and not disputed (T 10.45) and Mr Forster confirmed that this was so (T 11.1), both in relation to PWC and Phillips Fox who had been specifically referred to and then that "[i]nterest is not disputed with any of them" (T 11.5). 22 It was certainly the plaintiffs' case at all material times that interest was to be paid. I have not yet referred to the concession made in para 5 of the submissions of 16 July 2007. By that paragraph the plaintiffs accepted "that they should pay interest on the defendants' costs" under s 101 (4). That concession was repeated in para 1.1 (3) of the plaintiffs' further submissions on costs dated and circulated on 1 February 2008. However, referring to what had happened, those submissions noted specifically that, as between the plaintiffs and Trowbridge: "The plaintiffs and Trowbridge have agreed as to the orders that are to be made and ask the Court to make those orders." 23 When Mr Forster on 4 February 2008 ran through the position as between the plaintiffs and the various defendants, he said in relation to Trowbridge that as he understood it "the dispute between the plaintiffs and Trowbridge has been resolved - it has been resolved or is about to be or is well in train; I am not entirely certain (T 10.25)." 24 Later on the same day, after Mr Forster had put various submissions and various of the defendants had put their submissions, Mr Goodman of counsel, for Trowbridge, stated the position between the plaintiffs and Trowbridge as follows: MR GOODMAN: There is no dispute between the plaintiffs and Trowbridge and by reference to the prayers in the notice of motion, I can indicate that there is no dispute as to 1 or 5. Prayers 2 and 3 were withdrawn sometime ago and prayer 4 has been deferred.

That deals with Trowbridge's notice of motion, your Honour. There is also the NCRA notice of motion, which affects Trowbridge. Does your Honour has [sic] the NCRA notice of motion? I'm told it is at tab 5 of the Macquarie bundle, if that is convenient. 25 Nothing turns on the question raised by Mr Goodman as to NCRA's application. 26 The short minutes of order, to which I have already referred, were amended, signed and handed up on 6 February 2008. Perhaps not surprisingly, given that the order sought was sought by consent, I made it. Mr Goodman said (and his evidence was not at all challenged) that he "believed that the orders relating to interest would be dealt with as part of the general order that applied to all defendants at the conclusion of the costs hearing". However, in retrospect, Mr Goodman acknowledged that "it would have been prudent to have included an order dealing with prayer 5". 27 I gave judgment on the costs issues that were argued on 4, 5 and 6 February 2008 on 14 March 2008; Ingot Capital Investment v Macquarie Equity Capital Markets (No 7) [2008] NSWSC 199. In that judgment I set out at [247] the orders that I proposed to make having regard to the conclusions that I had expressed. I invited the parties to give attention to the orders, and directed any party seeking a variation in those orders or any additional order to give appropriate notice. Various notices were given, including by Trowbridge. 28 By letter dated 20 March 2008, Trowbridge sought that the draft order as to interest (draft order 3) and the draft order as to costs (draft order 14) be extended to include Trowbridge. Contrary to the directions given by me in my reasons of 14 March 2008, the letter of 20 March 2008 gave no indication of the basis on which the variations were sought. 29 Deacons replied on 7 April 2008 refusing consent to the variations sought and giving reasons. They relied on the orders that had been made by consent on 29 June 2006 (dealing with costs up to that date) and on 6 February 2008 (dealing with costs thereafter) and said that it was not "open to Trowbridge now to seek a variation of those orders". 30 Minter Ellison responded on 11 April 2008. The letter disputed the proposition that the order of 6 February 2008 had resolved all costs issues. Clearly, that was correct at least in relation to prayer 4 of the notice of motion filed on 1 June 2008. However, although the letter gave reasons why the variations sought should be made, the letter did not refer to the concession made on 16 July 2007 and repeated on 1 February 2008. 31 Order 3 that I made on 14 March 2008 fixed 9 May 2008 for the making of orders and for directions in respect of the applications for gross sum costs orders. 32 On 6 May 2008, my Associate sent an e-mail to the parties stating, amongst other things, that if the disputes as to costs were "in a small compass" I would try to deal with them on 9 May 2008, but that otherwise the matter would be set down for a further hearing date. 33 The following day, the plaintiffs notified the parties (but not my Associate) by e-mail that their view was that the remaining issues were not "small in compass" and could not be dealt with on 9 May 2008. They invited the parties to respond if they did not agree. Mr Peck and PWC responded on 8 May 2008, disagreeing with the plaintiffs' assertion. 34 Mr Tan says that he was of the view that the question as to interest was not small in compass, could not be dealt with on 9 May 2008, and therefore would not be dealt with on 9 May 2008. However, he acknowledged a risk - which he categorised as "very small" - that I might take a different view. 35 Somewhat surprisingly, neither Mr Goodman nor Mr Tan was available on 9 May 2008. I say that I find that somewhat surprising because, at all times from 14 March up until 6 May 2008, it must have been apparent to all that I intended to finalise the costs orders on 9 May 2008. It was not until my Associate's e-mail was sent on 6 May that any doubt could have arisen. I have to say that I would have thought that Mr Tan would have made arrangements for either Mr Goodman or himself to be available on 9 May. Mr Tan is unable to confirm, at least in the case of Mr Goodman, that he did so. 36 In the result, Mr Tan thinking that the outstanding question as between the plaintiffs and his client would be adjourned, Mr Goodman arranged for Ms Callan of counsel, who either was or had just ceased being a reader, to appear on 9 May 2008. Ms Callan was not instructed in relation to the substantive questions. Her instructions were that the issues between the plaintiffs and Trowbridge were to be resolved at a later date, and she was armed with dates when Mr Goodman and Mr Tan would be available. 37 It did not seem to me that the disputes in relation to the draft orders, that I had hoped to resolve on 9 May 2008, were of such magnitude that they could not be dealt with on that day. Accordingly, I dealt with them. I gave ex tempore reasons (which were revised on 29 May 2008) dealing seriatim with the various questions in dispute. 38 As to Trowbridge's application for interest and costs of the costs application, I said the following at [20] to [24]: 20 The twelfth defendant (Trowbridge) seeks orders for interest on costs and that the plaintiffs pay Trowbridge's costs of its costs application.

21 Trowbridge filed a notice of motion on 1 June 2007 whereby it sought orders for its costs of the proceedings, an order for a specified gross sum and an order for interest. The notice of motion made other claims but they were withdrawn by letter dated 15 January 2008.

22 Also on 15 January 2008, and having regard to certain concessions that apparently had been made, the solicitors for Trowbridge proposed as a consent order that, subject to an irrelevant exception or condition, the plaintiffs pay Trowbridge's costs of the proceedings, including of bringing the relevant cross-claims. An order by consent was made in those terms on 6 February 2008. It was quite clearly an order made to resolve, or pursuant to a compromise of, the claims made in the notice of motion.

23 In those circumstances, bearing in mind the finality of orders and the public interest in leaving matters undisturbed once they have been the subject of orders (particularly by consent) I see no basis on which the question of interest should be revisited. In my view, the inference that interest was among the claims compromised by the orders made on 6 February 2008 is irresistible.

24 Ms Callan, for Trowbridge, points out that the orders made did not refer to the costs of the costs application. Nonetheless, in circumstances where those orders were made in compromise of the claims advanced by the notice of motion, I think the proper inference is that the parties intended that no further costs order should be made. It follows that I am not prepared to make the further costs orders now sought by Trowbridge.

39 It will be noted from what I have just set out that Ms Callan did in fact make submissions on the substantive questions. I must say that I admire her ability to seize the issues and deal with them, having regard to the limited basis of her instructions. I certainly do not think that Trowbridge should in any way be disadvantaged today by the fact that Ms Callan sought - and to a large manner succeeded - to put what could be put on the outstanding questions. 40 Nonetheless, as Ms Callan now acknowledges, it would have been more appropriate for her to indicate that she was not properly instructed in relation to those issues and to seek an adjournment. Ms Castle, a solicitor in the employ of Deacons having the carriage of the matter on behalf of the plaintiffs, has said that if such an application had been made, she would have instructed counsel to consent to it. 41 The background of confusion to which I have referred suggests to me that it would not be just to prevent Trowbridge from having an opportunity to put further submissions on the question of interest on costs (the question of costs of the costs application has fallen away). My Associate's e-mail of 6 May 2008 was sent in answer to a question from some of the parties as to what was to occur on 9 May 2008. As I have said, I remain of the view that at least up until 6 May no-one could have assumed - or could have assumed wisely - that anything other than resolution of the disputes as to the draft orders would occur on that date. Further, I think, if it were to be suggested that there should be an adjournment, it would have been wise to notify my Associate of the application. But be that as it may, and having regard to what I have said as to the apparent failure of Mr Tan, prior to 6 May, to ensure that either he or Mr Goodman was available, I still think that the interests of justice do not require Trowbridge to be shut out. 42 Thus, in my view, the first question should be answered in favour of Trowbridge. 43 That leads to the substantive merits of the application. I have to say that I do not see why rule 36.15 (nor for that matter, rule 36.17) is applicable. However, there appears to be no dispute that rule 36.16 is applicable. Thus, my doubts as to subrules 15 and 17 can be put to one side. 44 It seems to me that the determining or dispositive questions are whether, objectively, an agreement was reached between Trowbridge and the plaintiffs as to Trowbridge's notice of motion filed on 1 June 2007; and whether that agreement was given effect by the short minutes of order ultimately signed and handed up on 6 February 2008. I say that against the acknowledged and common background that one of the prayers of the notice of motion - dealing with gross sum costs - was on any view to be deferred; and whatever agreement was made must be taken to have acknowledged that. 45 I was favoured with much evidence of the states of mind of the persons responsible for the making of whatever agreement was achieved. To my mind, that evidence is irrelevant. Whether there is an agreement, and if so what are its terms, is something to be spelt out of the relevant circumstances and documents, on an objective analysis. It does not depend on the subjective and uncommunicated states of mind of the parties or their agents. 46 The relevant features include the following: (1) the terms of the prayers for relief made by Trowbridge's notice of motion filed on 1 June 2007; (2) the concessions as to costs and interest made by the plaintiffs in their written submissions dated 16 July 2007; (3) Minter Ellison's letter of 15 January 2008 withdrawing, or abandoning, prayers 2 and 3 of the notice of motion; (4) Minter Ellison's other letter of 15 January 2008 propounding, by way of consent order, the draft short minutes to which I have referred; (5) Deacons' e-mail of 1 February 2008 accepting the orders propounded on 15 January 2008 on the basis that the orders were made on a party and party basis; and (6) the plaintiffs' further written submissions (which were served by e-mail on 1 February 2008 but some four hours after the earlier e-mail accepting the orders propounded on 15 January 2008) in which the concession as to interest was repeated. 47 The relevant circumstances may also include what was said by counsel on 4 February 2008. I have referred to that already. Mr Forster said that the dispute between the plaintiffs and Trowbridge had been or would be resolved; and, later the same day, Mr Goodman confirmed this. 48 Mr Greenwood put stress on what Mr Goodman had said on 4 February 2008: in particular, his statement "that there is no dispute as to 1 or 5". However, that statement is ambiguous. It may mean that both those prayers had been agreed. It may mean that one of them had been agreed and that one of them had been abandoned. The short minutes of order that were propounded two days later are certainly consistent (and at the very least not inconsistent) with Mr Goodman's statement. 49 Mr Greenwood also submitted that it would be unlikely in the extreme that his client would have propounded, as a compromise, something that did not embody all the concessions that the plaintiffs had said they would make. In this context, he referred to the plaintiffs' general concession that they would pay the defendants' costs of the various cross-claims, and their express acknowledgement that this would extended to Trowbridge. That concession was the subject of prayer 1 of the notice of motion, and the order made on 6 February 2008. Mr Greenwood inquired, with some force, why Trowbridge would have abandoned the further concession made by the plaintiffs that they would pay interests on the defendants' costs. 50 However, the question is to be resolved not by reference to such rhetorical considerations but by reference to the objective circumstances. If there were a concluded bargain, limited to prayer 1 of the notice of motion and the order made on 6 February 2008 (bearing in mind as always that the question of gross sum orders was to be determined at a later date) then there is no basis for the Court to intervene. Trowbridge does not seek any relief aimed at setting aside or varying any bargain that may have been reached. Its prayer for relief is directed to the order made. But if the order made reflected the bargain that, objectively, the parties reached then (apart from anything else) there is no ground for the application of the slip rule. 51 As will be noted, I dealt with these matters in a fairly summary way at [20] to [24] of my ex tempore reasons given on 9 May 2008. I do not wish to engage in a great deal of elaboration of what I there said. It seems to me that what I there said was the correct analysis of the relevant dealings. In other words, it seems to me, Minter Ellison's letter of 15 January 2008 to Deacons, attaching draft short minutes of order, is to be taken as an offer. That offer was accepted either on 1 February 2008 or, probably, some time between then and 6 February 2008 when the words "on a party/party basis" were inserted and the short minutes of order, so amended, were signed and provided to the Court. 52 It may be that the offer was made pursuant to some mistake, because it did not refer to the question of interest. However, it is not said that the plaintiffs were guilty of some improper conduct, so as to suggest that the objective agreement could be set aside on the basis that it is some form of catching bargain. As I have said, the debate focused entirely on the agreement that, objectively, was reached. 53 There are many matters that might be put if some application were made to relieve against the consequences of the making of that agreement. But, as I have said more than once, Trowbridge does not rely on those things. 54 In summary, therefore, it is my view now, as it was on 9 May 2008, that objectively speaking the agreement made between the plaintiffs and Trowbridge as to costs (after 29 June 2008 and excluding the question of a gross sum costs order) is that embodied in the short minutes of order signed and handed up on 6 February 2008, and given effect by the orders made on that date. 55 I therefore conclude that the second question should be answered adversely to Trowbridge. 56 It follows that the notice of motion filed on 27 May 2008 should be dismissed and I so order. I order Trowbridge to pay the plaintiffs' costs of that notice of motion.

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