KOOEE COMMUNICATIONS PTY LTD v PRIMUS TELECOMMUNICATIONS PTY LTD

CATCHWORDS: COSTS - offers of compromise - offer of compromise by defendant - offer not accepted -costs follow the event - offer made less than 24 hours before commencement of trial - whether offer open for such time as reasonable in circumstances - Uniform Civil Procedure Rules r 42.15, r 20.26 - COSTS - costs of appeal - consequence of offer of compromise made prior to trial - indemnity costs - Uniform Civil Procedure Rules r 42.15 - COSTS - costs follow the event - proportionate on level of success

LEGISLATION CITED: Uniform Civil Procedure Rules 2005, rr 20.25, 20.26, 20.27, 42.14, 42.15, 42.15A

Brymount Pty Ltd v Cummins (No. 2) [2005] NSWCA 69 Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; 26 IPR 261 Ettingshausen v Australian Consolidated Press Ltd (1995) 38 NSWLR 404 Estate of Virgona v De Lautour (No. 2) [2007] NSWCA 323 Fotheringham v Fotheringham [No. 2] [1999] NSWCA 21; 46 NSWLR 194 Hillier v Sheather (1995) 36 NSWLR 44 CASES CITED: Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd [2008] NSWCA 5 Leda Pty Ltd v Weerden (No. 3) [2006] NSWSC 220 Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 The Ombudsman v Laughton [2005] NSWCA 339; 64 NSWLR 114 State of New South Wales v Burton (No. 2) [2006] NSWCA 43 Stuart Pty Ltd v Condor Commercial Insulation Pty Ltd (No. 2) [2006] NSWCA 379 Suresh v Jacon Industries Pty Ltd (No. 2) [2005] NSWCA 270 Trustee for the Salvation Army (NSW) Property Trust v Becker (No. 2) [2007] NSWCA 194

Kooee Communications Pty Ltd - First Appellant PARTIES: SP Telemedia Limited - Second Appellant Primus Telecommunications Pty Ltd - Respondent

COUNSEL: A J Meagher SC/J G Duncan - Appellants R Garrett QC/D Priestley - Respondent

SOLICITORS: Aleco Vrisakis, Rylestone - Appellants Browne & Co, Melbourne - Respondent

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT DATE OF DECISION: 16 February 2007; 20 April 2007; 7 May 2007

LOWER COURT MEDIUM NEUTRAL CITATION: [2007] NSWSC 91; [2007] NSWSC 374; [2007] NSWSC 444

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40278/07 SC 50004/06

GILES JA TOBIAS JA BASTEN JA

6 May 2008 KOOEE COMMUNICATIONS PTY LTD v PRIMUS TELECOMMUNICATIONS PTY LTD (NO. 2) Judgment 1 GILES and TOBIAS JJA: We have had the benefit of reading the reasons of Basten JA in draft, and with reference to them can briefly state our own reasons. 2 We agree with his Honour's explanation of why Kooee's first offer of compromise does not avail it. We agree that its second offer of compromise was not left open for such time as was reasonable in the circumstances, and so can not bring entitlement to indemnity costs pursuant to UCPR r 42.15, and with his Honour's balancing of factors relevant thereto; to which we would add that the many observations to the effect that service of an offer of compromise under rules of court obliges the offeree to give serious thought to the risks of the proceedings and their outcome (eg Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724; Hillier v Sheather (1995) 36 NSWLR 44 at 422) mean that the court should not be ungenerous to an offeree in determining whether a time is reasonable. It was not submitted that the second offer of compromise should be given effect as a Calderbank offer, nor could it be if it was not left open for a reasonable time. It follows that the costs of the trial and of the appeal should be paid on the ordinary basis, and we agree with Basten JA's reasons for proportionate costs of the trial. 3 We prefer not to enter upon the basis for and nature of the continuing effect of a pre-trial offer of compromise under rules of court on the costs of an appeal. The appellant relied in its written submissions on Ettingshausen v Australian Consolidated Press Ltd (1995) 38 NSWLR 404, but there the continuing effect ascribed to the offer of compromise was in respect of the costs of the trial. The respondent's written submissions said that it "makes no submission against an order that it pay the appellant's costs of the appeal", and said nothing about the basis on which the costs should be assessed. The submissions did not otherwise address that matter. It being unnecessary to decide it, and in the absence of meaningful submissions, the matter should be left to an occasion when decision is necessary. 4 We agree with the orders proposed by Basten JA. 5 BASTEN JA: The principal judgment in relation to this matter was delivered on 12 February 2008: Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd [2008] NSWCA 5. In the Equity Division, judgment had been given in favour of Primus Telecommunications Pty Ltd ("Primus") in an amount of $2,647,832. That judgment was set aside and a judgment in favour of Primus in the amount of $1,391,040 was substituted. The parties were then given leave to file further submissions in relation to the appropriate order as to costs of the trial and as to the costs of the appeal. 6 As a result of those submissions, it is clear that two matters are not in dispute: first, both parties accepted that, adopting the approach of Einstein J at trial, an order as to the costs of the trial should be on a proportionate basis reflecting the degree of each party's success. Secondly, it was not in dispute that Primus should pay Kooee Communications Pty Ltd ("Kooee") its costs of the appeal. 7 Three matters did remain in dispute. First, there was a difference of view as to the proportion of the trial costs which Primus should recover, Primus arguing for 50% of its costs of the proceedings, whilst Kooee Communications Pty Ltd and SP Telemedia Ltd ("Kooee") argued that it should not have to pay more than 25%. A second issue concerned the effect of two offers of compromise made before the trial in relation to the costs of the trial. The third issue concerned the effect of the offers in relation to the costs of the appeal. Because the offers of compromise might potentially affect an assessment of the proportion of costs recoverable in relation to the trial, they will be addressed first. First offer of compromise 8 On 21 September 2006 Kooee made an offer to compromise the proceedings on the basis of a payment to Primus of an amount of $1.25 million, together with costs. The offer was said to remain open for acceptance within 28 days after the date on which it was made and it was accompanied by a letter identifying eight elements, including abandonment of Kooee's cross-claim. Primus did not respond to the offer. 9 Although the offer complied with r 20.26 of the Uniform Civil Procedure Rules 2005 ("the UCPR") and was not accepted, Primus did obtain an order more favourable to it than the terms of the offer. Accordingly, the potential costs consequences set out in r 42.15 did not apply. 10 Kooee filed written submissions which sought to explore the various component parts of the offer as explained in a letter to Primus sent shortly after the offer was served. However, the offer was (appropriately) an offer in proposed compromise of the whole proceedings. Kooee's suggestion that the offer, when read with the letter, formed the basis on which to claim indemnity costs, by reference to its component parts, cannot succeed. 11 The fact that the first offer was accompanied by an explanatory letter indicating the way in which Kooee had approached the calculation in question, was also relied upon in relation to the second offer. 12 On 19 January 2007 before Kooee's second offer, Primus made an offer to compromise its claim by accepting an amount of $2.5 million. That counter-offer was of no immediate significance, but had been relied upon before the trial judge by Primus, in seeking an order for indemnity costs on the basis that Primus had succeeded at trial in bettering its offer. The second offer of compromise made by Kooee was served electronically at 11.30am on 30 January 2007, the day before the trial was due to commence. It offered settlement on the basis of a payment by Kooee in the amount of $1.55 million. The offer was expressed to remain open until 10.00am on Wednesday, 31 January 2007, being the time of commencement of the trial. There was no response to that offer. Application of principles 13 There is an unresolved tension between the operation of the rule which provides that costs generally follow the event and the rules which provide for the allocation of costs in cases where offers of compromise have been made but not accepted. Although it is true that the general rule is not made subject to any other rule, because it operates at a level of generality it arguably should be understood as subject to more particular rules, in circumstances where they are engaged: see, eg, The Ombudsman v Laughton [2005] NSWCA 339; 64 NSWLR 114 at [19]-[23] (Spigelman CJ). Alternatively, the two provisions can be reconciled by treating the rules with respect to offers of compromise as informing the proper application of the general rule by specifying how "the event" should be identified in the particular circumstances created by an offer made in compliance with the rules. 14 It is not in doubt that Kooee, in reducing the judgment against it to an amount of $1.36 million, has bettered its offer by some 13%. That is a significant element of compromise, which is capable of attracting an order for indemnity costs in accordance with UCPR r 42.15, from the first day of the trial: see r 42.15(2)(b)(i). However, there is an issue as to whether, being open for approximately 24 hours, the offer was "left open for such time as [was] reasonable in the circumstances", within the terms of r 20.26(7)(b). If that condition were not satisfied, it would not necessarily be an irrelevant consideration on the question of costs, but it would not be an offer engaging an entitlement to indemnity costs pursuant to r 42.15. 15 Viewed in the abstract, an offer which is made less than 23 hours before the commencement of a hearing and requiring acceptance within that period, would not appear to have been left open for a reasonable time. Against that, there are practical considerations which might support a different conclusion. The first is that each of the parties had made prior offers, that of Kooee having been the subject of explanation as to the method of calculation of the component parts. Secondly, less than two weeks earlier Primus had made an assessment of its own position which led it to make an offer to settle for an amount of $2.5 million, an amount $1.25 million above the first Kooee offer. The second offer by Kooee reduced that gap by $300,000. Both the figures and the timing suggest that Primus could have been expected to assess the second offer with reasonable expedition. 16 The practical circumstances which must have existed at the time the offer was made may be said to tend in either direction. Thus, it appears to be common ground, as the Court might have assumed, that the legal representatives of Primus were conferring in preparation for the forthcoming trial, throughout the period that the offer was open. While that may have facilitated an immediate consideration of the offer by advisers who were focused on the relevant issues, it may also be said that the provision of an offer the day before trial provided an inconvenient distraction from preparation of the case for hearing. 17 In Leda Pty Ltd v Weerden (No. 3) [2006] NSWSC 220, Gzell J considered an offer made exactly one week before a trial, which was left open for four days. Amongst other considerations, his Honour noted that r 42.15(2)(b) envisaged an order for indemnity costs in relation to an offer made "on or after the first day of the trial". In such circumstances, the defendant will be entitled to an order for costs assessed on an indemnity basis "as from 11.00am on the day following the day on which the offer was made". 18 The precise interrelationship of the reasonable time provision in r 20.26 and the time from which indemnity costs may be awarded pursuant to rr 42.14, 42.15 and 42.15A appears not to have been explored in the cases. It is arguable that, if the other party is to be at risk of an adverse costs order on an indemnity basis from 11.00am on the following morning, the expectation must be that a period of 24 hours or less may constitute a reasonable time within which to consider and respond to an offer. In a sense, that may be seen as a small concession in respect of offers made during the trial, as an offer made before the first day of the trial will place the other party at risk as to costs from the beginning of the day following the day on which it was made: see, eg, r 42.15(2)(b)(i). Such an offer may be made on the day before the trial or some months before the trial. Yet, at least in the latter case, r 20.26(7)(a) requires that the offer be left open for at least 28 days to comply with the rule. 19 The reason for the discrepancy in relation to early offers is unclear. The primary incentive to accept arises from the potential for an adverse costs order on an indemnity basis where the offer is refused and the other party betters its offer. The fact that such costs will run from a specified time after the offer is made may be seen as an additional incentive to accept the offer and also an incentive to give it prompt consideration. The specification of the time from which indemnity costs will run clearly does not purport to determine what is a reasonable time in relation to a pre-trial offer which must be left open for 28 days and therefore should not be seen as identifying the period which is reasonable in relation to an offer made less than two months before the date for commencement of the trial. All that can fairly be inferred from the terms of r 42.15 is that an offer made on or after the first day of the trial may constitute a relevant offer for the purposes of the rule; such an offer must allow a "reasonable" time for acceptance (r 20.26(7)(b)). The time will effectively be cut short if, before its expiration, the Court begins to give its decision: r 20.25. (The reference in r 20.27 to the "period of acceptance" is presumably meant to be a reference to the defined term "period for acceptance".) 20 In considering whether the time allowed for acceptance is "reasonable in all the circumstances" once a trial commences, or indeed final preparation commences, three factors come into play. The first is that both parties may reasonably be expected to have a clear perception of the strengths and weaknesses of their positions, so that the reasonableness of a particular offer may be speedily assessed. Secondly, because significant costs will be accruing on a daily, even an hourly basis, there is a heightened incentive to respond within the time permitted. Thirdly, and counterbalancing the first factor, the need to address the terms of an offer, provide advice and obtain instructions will often be a significant distraction from final preparation. 21 In relation to the first factor, it should be accepted that by the day before the hearing, in commercial litigation involving experienced counsel and solicitors, the legal representatives would have been able to give the client an immediate assessment of:

(a) the approximate costs incurred to date; (b) the likely length of the trial; (c) the approximate amount of costs assessed on an indemnity basis if the matter proceeded to trial, and (d) the most likely outcome, which may involve a range as to quantum.

It should also be accepted that someone with authority to bind the client would have been available to give instructions based on legal advice as to the preferable response. 22 In seeking to demonstrate that the offer had not been left open for a reasonable time in all the circumstances, Primus sought to put before the Court evidence of how the offer was made and the circumstances of its own legal representatives at the time. However, that material was not relevant for this purpose. The question of reasonableness must be judged objectively, in the circumstances known, or which should reasonably have been anticipated, by both parties. In setting the time during which the offer is to remain open, the offeror must necessarily rely upon the circumstances as known to it, or which should reasonably be anticipated by it. The actual circumstances of the recipient, unknown to the offeror, may be relevant to an application that the Court otherwise order in relation to costs of a valid unaccepted offer, but so might evidence as to whether the recipient took any steps to bring such matters to the notice of the offeror. 23 In the present case, the time allowed was, on any view, a short period for the consideration of a global assessment of a reasonably complex dispute. It is Kooee which seeks to establish an entitlement to indemnity costs. To do that it must demonstrate that its offer was left open for a period which was reasonable in all the circumstances. Because the present case is truly borderline, it should be concluded that Kooee has failed to establish that its offer was left open for a reasonable time. Accordingly, the offer did not fall within UCPR r 20.26 and its non-acceptance did not engage the costs consequences in r 42.15. 24 If, contrary to the conclusion reached above, it were thought that the offer was open for a reasonable time, there would have been no obvious basis for the Court to make an order other than that which would flow from the operation of r 42.15. It was not suggested in the present case that any of the considerations which sometimes apply, such as inadequacy of information, or a change in the basis of a case, was relevant in the present circumstances. It would have followed that Primus would have been entitled to its costs of the trial on the usual basis up until 11.00am on 31 January 2007 and thereafter would have been required to pay Kooee's costs on an indemnity basis. Payment of proportionate costs 25 As appears from the judgments of the primary judge and the judgment of this Court disposing of the substantive issues in the appeal, the amount of the judgment was calculated by the addition of various items involving entitlements of one or other party. That the final balance came out in favour of one party rather than another was not, of course, arbitrary or inconsequential. Nor was it arbitrary or inconsequential that some components fell on one side of the ledger rather than the other. Factors which were relevant, however, were the particular issues in dispute, the time taken in addressing particular issues and which party was successful with respect to those issues. Because there was no dissention from the assessment by the trial judge that, on the findings he made, Primus should recover 75% of its costs, it is appropriate to make an adjustment to that figure, on the basis of the lower level of success achieved by Primus as a result of the appeal: see generally on proportionate costs, Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; 26 IPR 261. Although Kooee contended that an assessment of the separate issues which were litigated resulted in a substantial degree of success for Kooee, despite the monetary balance in favour of Primus, I am not persuaded that that is a decisive consideration, even if the assessment were accepted. A proportion of the time at trial must have involved, as it did in this Court, a consideration of the circumstances and documentation giving rise to the litigation before focusing on the specific issues. In my view Primus should, as it contended in its further written submissions, have 50% of its costs of the proceedings. Costs of the appeal 26 Kooee seeks to rely upon its offer of compromise of 30 January 2007 in relation to the costs of the appeal, although the offer was not repeated after the judgment in the Equity Division. Because the offer was not left open for a reasonable time, it cannot form a basis for seeking costs of the appeal assessed on an indemnity basis. If that factual assessment were thought to be wrong it would be necessary to consider the correctness of the premise, namely that the offer would have engaged r 42.15 in relation to the costs of the appeal. 27 There has been a level of uncertainty as to the effect of a pre-trial offer of compromise in relation to an appeal. Many of the cases in this Court have been concerned with offers made under the District Court Rules and their effect in relation to an appeal: the Court has held that it is not bound to apply the costs rules in the District Court in relation to such offers: see authorities referred to in Suresh v Jacon Industries Pty Ltd (No. 2) [2005] NSWCA 270 at [14]. On the other hand, the fact that an offer has been made remains a relevant consideration in relation to the costs of the appeal: see Suresh at [15]. The operation of pre-trial offers in relation to claims made in the Supreme Court is less clear. Further, before relying upon earlier authority, it is necessary to be sure that no relevant changes have been effected by the introduction of the Uniform Civil Procedure Rules in 2005. 28 In Ettingshausen v Australian Consolidated Press Ltd (1995) 38 NSWLR 404, Gleeson CJ and Priestley JA noted that "the subject of an offer of compromise is a claim in proceedings": at p 408E. Their Honours continued: "It is not a compromise of a hearing, or of one round in a bout of litigation. The appellant had only one claim, and it was that which he offered to compromise. The same claim was litigated at the second trial. That claim was only finally heard and determined at the conclusion of the second trial (and, still then, subject to the appeal process)." 29 After rejecting the argument that it would be "absurd and unjust" that a party should be adversely affected in costs of the second trial, by reference to an offer which was no longer open to be accepted, their Honours continued at p 409G-410B: "There is nothing in [the rule] which either requires or justifies the conclusion that the consequences of an offer are 'exhausted' once the trial, prior to which the offer was made, comes to an end. As was noted, the offer is made, not in respect of a trial, but in respect of a claim. Depending upon the circumstances of a case, a claim may not be finally heard and determined until after there have been a number of appeals, and, perhaps, a number of trials. … In truth, this Court routinely reassesses damages on appeal, and is frequently asked to make, and makes, orders for indemnity costs based upon offers of compromise that were made before the original trial. … In our view, there is no justification for concluding that, once the claim to which it relates has been the subject of a complete trial, an offer of compromise made before the trial has no further significance for any appeal, or subsequent re-trial." 30 In Fotheringham v Fotheringham [No. 2] [1999] NSWCA 21; 46 NSWLR 194, a five judge Court considered whether a respondent should have his costs of the appeal on an indemnity basis because, although the appellant had been successful in reducing the amount of the judgment given at trial, the sum awarded by this Court exceeded the amount by which the respondent had offered to compromise the proceedings before trial. Both the judgment of Powell JA and the further comments of Stein JA (with both of whom Spigelman CJ, Mason P and Beazley JA agreed) were unclear as to the operation of the relevant rule, which was the predecessor of UCPR r 42.14. The Court appears to have accepted that the rule operated with respect to the costs of the appeal, but did not create an entitlement. Thus at [26] Powell JA stated: "Let one accept that the respondent's offer continues to be of relevance when the question of the costs of the appeal comes to be considered, in my view the provisions of the Act and the Rules do not, in the present case, dictate that the respondent should have an order for her costs of the appeal, and still less that those costs should be assessed on an indemnity basis." 31 To similar effect, Stein JA stated at [33]: "It seems to me that the starting point for consideration of the proper costs order in this appeal is to accept that the offer of compromise continues to have cost consequences for an appeal: Ettingshausen v Australian Consolidated Press Ltd (1995) 38 NSWLR 404 at 410. It follows that it is a relevant factor to consider on the question of costs. It was not an extraneous consideration." 32 Although both members of the Court who gave separate judgments referred to the rule as being "relevant", it would seem that each considered that its operation was engaged so that there was a relevant "entitlement", unless the Court thought it proper to order otherwise. However, Powell JA also noted that r 11, which stated that costs should generally follow the event was a rule "of general application and not one limited to cases in which no offer of compromise has been made": at 28. 33 In Stuart Pty Ltd v Condor Commercial Insulation Pty Ltd (No. 2) [2006] NSWCA 379 the Court considered whether costs should be awarded on an indemnity basis where an appeal had been dismissed, the respondent relying in part upon an offer of compromise made prior to the trial. The Court (Beazley, Ipp and Tobias JJA) repeated the Fotheringham language that such an offer was "a relevant factor" (at [6]) but also considered that the primary rule in relation to an appeal was that costs follow the event (at [8]) and that they should be allowed on a party and party basis unless there is "some good cause for an order to be made on some other basis": at [9] referring to Brymount Pty Ltd v Cummins (No. 2) [2005] NSWCA 69, dealing with Calderbank offers made prior to trial. 34 More recently, in Estate of Virgona v De Lautour (No. 2) [2007] NSWCA 323 Ipp JA (with whom Hodgson JA and Young CJ in Eq agreed) stated that an offer made before trial "can have costs consequences for an appeal …, but only as an element in the Court's general discretion": at [10]. His Honour referred to earlier comments made by him in Trustee for the Salvation Army (NSW) Property Trust v Becker (No. 2) [2007] NSWCA 194 at [9] where his Honour had said, in relation to a Calderbank offer that had not been renewed: "As the offer had so lapsed (prior to the conclusion of the trial), it was not possible for the appellants to accept it thereafter. In particular, it could not have been accepted on the launching of the appeal or thereafter. On that basis alone, it seems to me, the offer could play no part in the exercise of the discretion to order indemnity costs in regard to the appeal." 35 It appears to follow from the judgment in Ettingshausen, which has not been expressly departed from and was not challenged in the present proceedings, that once an offer has been made, the relevant costs rule continues to operate for so long as the "claim" in relation to which it was made has not been finally determined. The fact that, once it has lapsed, it cannot be accepted, is not an objection to this conclusion, but flows directly from the operation of the rule, whether there is one trial or more. Further, once the rule is engaged, it would appear that, on an application for costs being made in terms of the rule, the Court must apply the principles stated in the rule. That does not mean that the application of the principles may not vary depending on the stage reached in the whole proceedings, but it would seem to mean that an order for indemnity costs would be appropriate, unless the Court otherwise ordered, so long as the precondition to the operation of the rule remains satisfied. 36 There will remain a pragmatic consideration, namely that a costs order will be able to reflect an offer of compromise where an appeal is finally determined by this Court but may not be able to do so where the matter is remitted for further consideration by the trial court. Unless this Court were to stay its hand in awarding costs in those cases where there is a remitter, the result may have an arbitrary quality as between those cases where a remitter occurs, and those where it does not. That is so in part because this Court has held that it should not stay its hand, but should deal with the costs of the appeal as the circumstances dictate upon conclusion of the appeal: see Suresh at [17], applied in State of New South Wales v Burton (No. 2) [2006] NSWCA 43 (Spigelman CJ, Basten JA and Hunt AJA). Further, in practice the extent of arbitrariness appears to be limited. As the judgment in Virgona and other authorities demonstrate, the fact of a judgment at trial and an appeal therefrom, are frequently treated as relevant considerations, militating in favour of the Court otherwise ordering where the only offer is one which was made and not accepted before the completion of the trial: see the order in Ettingshausen itself, as noted in Fotheringham, at [18]. Conclusions 37 I would propose the following orders:

(1) In lieu of the costs order made by the trial judge, order that Kooee pay 50% of Primus' costs of the proceedings in the Equity Division, to be assessed on the ordinary basis.

(2) Order that Primus pay Kooee's costs of the appeal, to be assessed on the ordinary basis.

(3) Grant Primus a certificate under the Suitors' Fund Act 1951 (NSW), if not disqualified under s 6(7). Corrigendum 38 THE COURT: Following delivery of judgment, counsel drew the attention of the Court to a disconformity between order (1), requiring Kooee to pay 50% of Primus' costs of the proceedings in the Equity Division, and the last sentence at [25] in the reasons of Basten JA, stating that the payment "must be limited to the calculation of costs up to 31 January 2007". That was the date on which Kooee's second offer of compromise was expressed to take effect. Because the Court held that the offer was not open for a reasonable time, it did not take effect and accordingly Primus was entitled to recover 50% of its costs in the Equity Division, without temporal qualification. Accordingly, pursuant to r 36.17 of the Uniform Civil Procedure Rules, the words "although that amount must be limited to the calculation of costs up to 31 January 2007" are deleted from [25].

12/05/2008 - Disconformity between order (1) and last sentence at [25] in reasons of Basten JA. - Paragraph(s) [25] and [38]

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