The second cross claims
10The Amended Second Cross Claim in each action is brought by the plaintiff and, for present purposes, can be looked at in respect of claims against the second cross defendant (Fast Track) the third and fourth cross defendants (AMBFS and Famularo) and the sixth cross defendant (Sandra Ianni).
11Paragraphs 11 and 12 of the draft minutes provide that there be no order for costs in favour of the third and fourth cross defendants. An assumption that this was by consent was said by counsel to be incorrect and, in accordance with the indication at the time of principal judgment, an ordinary order for costs should follow the events.
12In paragraph 10 of each set of draft minutes, it is proposed that the second cross defendant have an order for costs on an ordinary basis up to 7 April 2010 and on an indemnity basis from 8 April 2010. Those dates refer to offers made and I do not understand the making of an order for indemnity costs in those terms is in contest.
13What is in contest is the proposal that "Sanderson" orders be made that those costs be paid by Baira and Ianni in each instance.
14I note that an alternative on behalf of the second defendant in relation to a "Bullock" order was advanced but, in the light of the conclusion which I have reached, it will not be necessary to deal with that alternative.
15The second cross defendant is what is known in the industry as an "aggregator". As such, it has contractual arrangements with brokers and with money lenders, in this instance, RHG Mortgage through its agent, RHG Home Loans.
16Neither Baira nor Ianni dealt with the second cross defendant, nor by their pleadings did they make any claim against it. There was no suggestion that the defendants (Baira and Ianni) had any knowledge of the agreements involving Fast Track or, indeed, whether they were aware of its existence and its participation in the chain of mortgage arrangements.
17In my view it is plain in the circumstances that the second defendant should recover its costs against the cross claimant which brought it into the litigation. To the extent that it was submitted that the cross claimant was relying upon allegations made by Baira and Ianni and that the cross claim was contingent upon their success, the submission must fail when there were in fact no allegations by Baira and Ianni against Fast Track.
18The draft minutes also propose a "Sanderson" order that the defendants pay the costs of the successful sixth cross defendant (Sandra Ianni).
19I interpolate that application is made on behalf of Sandra Ianni that the costs payable to her as a successful cross defendant in the second, third and fourth cross claims and be assessed on an indemnity basis from 30 April 2011. Offers of compromise proposing verdicts in favour of Sandra Ianni on those three cross claims with each party to pay his, her or its own costs were made in the form appropriate to the Rules on Friday 29 April 2011, such offers to remain open for acceptance until 10am on 2 May 2011. For the reasons given in respect of other similar claims, I regard them as simply designed as an attempt to trigger a purported entitlement to indemnity costs and I decline to make such orders.
20The issue of a "Sanderson" order against defendants (Baira and Ianni) in respect of the costs recoverable by the sixth cross defendant needs to be considered in the light of the stances taken by those defendants. Eventually, of course, they sought relief against Sandra Ianni in their respective fourth cross claims which failed, essentially, for lack of evidence supporting the pleaded allegations. Baira and Ianni sought to agitate matters of complaint against Sandra Ianni and, in my view, it cannot be concluded that it was unreasonable for the cross claimant to join her, given the identifiable uncertainties at the time joinder was made, and to the extent that it might be thought relevant, since then. The defendants should be ordered to pay the costs referable to the joinder of Sandra Ianni in these cross claims.