Rodriguez and Anor v Joyce

RESPONDENT: Kenneth Valentine Joyce

Unfair Contract - joint venture company - exparte hearing - jurisdiction established - section 108A does not apply - unfairness of arrangement established - misrepresentation and undervaluation of assets - misuse of funds and mismanagement resulting in liquidation of company - unfairness found - arrangement varied - money orders made

CATCHWORDS: Costs - application for indemnity costs - no special circumstances exist - usual order as to costs - respondent to pay applicants' costs as agreed or assessed

Anderson v Boner (1993) 52 IR 114 Autobake Pty Ltd v Budd & Anor (1986) 19 IR 8 Cornell v Titley [2002] NSWIRComm 326 Hampden Press Pty Ltd and Anor v Cramond Publications Pty Ltd [2003] NSWIRComm 99 CASES CITED: MMAL Rentals Pty Limited v Bruning [2004] NSWCA 451 Solution 6 Holdings Limited v Industrial Relations Commission of New South Wales (2004) 208 ALR 328 Stevenson v Barham (1977) 136 CLR 190 Tuholi Pty Ltd v Caltex Australia Petroleum Pty Limited (2001) 103 IR 329

APPLICANTS: Mr A Britt of counsel SOLICITORS: LEGAL REPRESENTATIVES: J Biady & Associates Pty Limited

RESPONDENT: No appearance

• 16 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

JAFETH ESTENIO RODRIGUEZ AND ANOTHER v KENNETH VALENTINE JOYCE Application under section 106 of the Industrial Relations Act 1996

1 These proceedings concern the fairness of an arrangement entered between the three parties and others, in March 2000. Under that arrangement, Mr Rodriguez, the first applicant, a Mr Raymond Vazquez and Mr Joyce, the respondent, agreed to work for a joint venture company to be known as Metropolis Interactive Pty Limited ('Metropolis'), as well as accepting appointment as directors of Metropolis. Mr Rodriguez and Co-Relate Pty Ltd ('Co-Relate'), the second applicant, agreed to transfer various assets to Metropolis as a part of the arrangement, as did two other companies, Virtu Pty Ltd ('Virtu') and Metropolis Interactive Pty Limited (which changed its name to Old Metropolis Pty Ltd ('Old Metropolis')). A shareholders agreement was also entered between Mr Rodriguez, Co-Relate, Mr Joyce, Old Metropolis, Virtu and Mr Vazquez. This agreement was said to comprise a part of the overall arrangement. 2 The proceedings were commenced in April 2002 and were the subject of an unsuccessful conciliation conference before Marks J in November 2002. While Mr Joyce filed a reply to the summons and was at one time represented and participating in the proceedings, the hearing finally proceeded ex-parte. 3 Mr Joyce had earlier commenced proceedings against the Metropolis, Mr Rodriguez and Mr Vazquez in 2000. Those proceedings were dismissed for want of prosecution by Marks J in August 2004. 4 It was Mr Rodriguez' case that Mr Joyce and Mr Vazquez had formerly operated the advertising and marketing business of Virtu and the interactive marketing business of the original Old Metropolis. He had operated Co-Relate's internet business, with his wife. The intention of the arrangement was to merge these businesses and for Mr Joyce, Mr Rodriguez and Mr Vazquez to work together in the new venture. 5 It was claimed that Mr Joyce misrepresented the assets which he transferred to Metropolis from Old Metropolis and Virtu, thereby unfairly inducing the applicants to enter into the arrangement. It was also alleged that Mr Joyce made certain unauthorised payments to himself and his nominees from the funds of Metropolis, totalling in excess of $220,000, while he was its managing director and the only signatory to its chequebook and accounts. As the result of Mr Joyce's conduct, Metropolis was placed into administration in November 2000 and as the result of steps then taken by Mr Joyce in the Supreme Court in November 2000, was placed into liquidation. Mr Joyce then unsuccessfully tried to purchase the business from the liquidator. 6 It was complained that the applicants unfairly lost the value of the assets they had transferred to Metropolis; that Mr Rodriguez unfairly lost his employment and Co-Relate, the business it had transferred to Metropolis, as well as the loss of Mr Rodriguez' right to receive notice of the termination of his employment. 7 The orders pressed by the applicants were: 1. A declaration that the contract between the First and Second Applicant and the Respondent under which the Applicants performed work in an industry in New South Wales was, at its inception, and became by reason of the conduct of the Respondent, harsh, unfair and against the public interest.

2. The Shareholders Agreement dated 13 March 2000 is varied in accordance with s106(3) from its inception to include the following terms: (a) In the event the assets transferred to the new Metropolis Interactive Pty Ltd by Old Metropolis Interactive Pty Ltd, Virtu Pty Ltd and the Respondent are valued at less than $298,500 and/or intangible assets of $1,800,000 and/or the liabilities transferred to the new Metropolis Interactive Pty Ltd by old Metropolis Interactive Pty Ltd, Virtu Pty Ltd and the Respondent are valued at more than $41,621 then the Respondent shall pay the Second Applicant $89,286.

(b) In the event the Respondent makes any drawings from Metropolis Interactive Pty Ltd for himself, his wife or Virtu Pty Ltd or any of his nominees in excess of drawings made to the First Applicant then the Respondent shall pay the First Applicant and/or Second Applicants a similar payment from his own monies.

(c) In the event that the new Metropolis Interactive Pty Ltd is placed into administration or liquidated as a result of the financial mismanagement of the Respondent, in whole or in part, and the First Applicant's employment is terminated by new Metropolis Interactive Pty Ltd, the Respondent shall pay the First Applicant a payment equivalent to 3 months payment from the new Metropolis Interactive Pty Ltd to the First Applicant.

8 The money orders finally pressed were: (a) $89,286.00 to the Second Applicant; (b) $169,296.15 to the First Applicant; (c) $56,432.17 to the Second Applicant; and (d) $23,375 (which is 3 months' pay in lieu of notice on the First Applicant's remuneration package. 9 In the reply filed by Mr Joyce, while he was still participating in the proceedings, various allegations were conceded and others denied. Undervaluation of the assets transferred to Metropolis by the applicants was asserted. Mr Joyce claimed that payments he had made from Metropolis' funds were authorised and paid, in order to meet obligations which Metropolis had properly incurred. It was asserted that the liquidator of Metropolis had not claimed that the payments were not properly made, or that they were otherwise recoverable from him by Metropolis. It was also alleged that during the liquidation, Mr Rodriguez had improperly taken possession of Metropolis' software, customer database and intellectual property. 10 Evidence was called from Mr Rodriguez, Mr Biady, the applicant's solicitor and various documents were tendered, including the liquidators' report. 11 Mr Rodriguez' evidence was that he met Mr Joyce socially in early 1999 and despite a reluctance initially on his part to have business dealings with a friend, in February 2000 they agreed to work together and to merge their businesses. This involved the businesses of Co-Relate, a company established by Mr Rodriguez and that of Old Metropolis and Virtu, Mr Joyce's businesses, merging and being operated through a new company, Metropolis. It was agreed that Mr Rodriguez would have a 32% share of the merged business, Mr Joyce 51% and Mr Vazquez 17%. Mr Vazquez did not contribute any assets to the business. He had been working together with Mr Joyce and agreed to become Metropolis' creative director. Each of the three individuals was to be a director, shareholder and employee of the new company. Mr Joyce was to be managing director and Mr Rodriguez, technical director. Mr Rodriguez and Mr Joyce also agreed to inject current work in progress into the new business. The value of the assets and work in progress being injected into the business was assessed at the time as $100,000 from Mr Rodriguez' contributions and $300,000 from Mr Joyce's contributions. Mr Rodriguez obtained no accounting or other advice on these valuations. 12 Employment terms were also agreed. Each of the working directors was to be paid $1,000 per week plus superannuation, with a $40,000 car allowance, with running expenses being paid by Metropolis, gym membership and certain other minor benefits. A written employment agreement was later annexed to the shareholders agreement. Amongst other things, it provided for a week's notice of termination of employment. 13 The terms of various aspects of the arrangement were not reduced to writing until after the parties had implemented their agreement in early March 2000. When Metropolis commenced business, Mr Joyce was responsible for sales, as well as the work of managing director and Mr Rodriguez for the technical aspects of the business. A written shareholders agreement was later produced by Mr Joyce, but Mr Rodriguez was hesitant to sign it, as it then appeared to him that the business which Mr Joyce had represented to him, did not, in fact, exist. 14 Mr Rodriguez obtained legal advice on the terms of the contract, but not the annexures attached to it, which included his employment agreement. He was advised that the shareholders agreement proposed that he have a 24% interest in the business, not 32% as agreed and that Mr Joyce would have 75%, not 51%. Despite ongoing concerns, Mr Rodriguez later signed the agreement in May, but it was backdated to March 2000. On his evidence he did so because of pressure from Mr Joyce and because he believed that he had too much to lose at that point. 15 By this time, cash flow problems had emerged in the business, because Mr Joyce's projected work in progress was not materialising in payments from clients. A $200,000 overdraft was proposed by Mr Joyce as a means of dealing with this problem, but the Bank would not agree, Mr Joyce asserted, because Mr Rodriguez had not signed the shareholders agreement. Mr Rodriguez signed immediately. A $50,000 overdraft was then put in place. Mr Rodriguez then discovered that there were a variety of payments being made by Metropolis to Mr Joyce and others, of which he was not aware and which had not been approved by he or Mr Vazquez, including a payment of $500 per week to Mr Joyce's wife. 16 After discussion between the three directors, it was agreed that an extra $500 per week would be paid to Mr Rodriguez and Mr Vazquez, backdated to March. The payments were not, in fact, made, although Mr Joyce's payments continued. 17 In June, Mr Rodriguez learned that certain work in progress which Mr Joyce had represented would be brought to the business would not be forthcoming. It transpired that Mr Joyce was aware of this since December 1999. In particular, Mercantile Mutual was refusing to pay some $180,000, with that company's legal department alleging that it had been overcharged for work done. 18 Shortly afterwards, Mr Joyce leased a BMW with a book value in excess of $100,000 in the name of Metropolis, in breach of the arrangements made as to motor vehicles. The difference was charged to his loan account. 19 Cash flow began to improve a little, but only, Mr Rodriguez came to appreciate, as the result of his efforts, flowing from the business he had brought to Metropolis. Discussions as to the continuation of the arrangement began. Mr Rodriguez' view was that Mr Joyce had too much equity in the business, given the contribution he was then making. After discussion between the three directors, in which Mr Joyce gave Mr Vazquez and Mr Rodriguez various assurances, it was agreed that if, after two years, things had not altered, equity would be re-arranged between them on a 33% basis for each of the directors. 20 It was Mr Rodriguez' evidence that Mr Joyce's performance still continued to decline, despite the assurances he had given, while Mr Rodriguez and Mr Vazquez continued working hard in the business. Mr Joyce did not come to work, asserting that he was working from home. The company's records were in disarray and Mr Joyce gave instruction to staff that creditors be fobbed off. In July, there was an extremely acrimonious meeting between the three directors, attended by Mr Joyce's wife. It became apparent to Mr Rodriguez that Mr Joyce was performing work for clients on a personal basis, outside the company. It was agreed that Mr Rodriguez and Mr Vazquez would become signatories on the company's accounts, but Mr Joyce went away on leave, without making the necessary arrangements, despite promising to do so. It was necessary for the other directors to make arrangements direct with the Bank, in order that business could be attended to during Mr Joyce's absence. Mr Joyce cancelled these arrangements on his return and refused to alter them. 21 In August, the company's accountant resigned, making various allegations against Mr Joyce's unethical and improper conduct, which Mr Joyce denied. His correspondence referred to improper destruction of group certificates; deletion of data files dealing with such certificates; unethical relations with creditors and unethical practices in relation to staff entitlements. 22 Mr Rodriguez then began discussing the ending of their arrangement with Mr Joyce, while Mr Vazquez was overseas on leave. Mr Joyce presented Mr Rodriguez with a document of resignation for Mr Rodriguez to sign, which he had prepared for their discussion. Mr Rodriguez considered the document and his position, while Mr Joyce began looking to find a replacement for Mr Rodriguez. 23 At the end of August, Mr Joyce unexpectedly raised the possibility of he leaving the business and Mr Rodriguez taking over as managing director, instead of Mr Rodriguez departing. A valuation of the business was commissioned. An agreement was reached between the three directors as to a basis for Mr Joyce's departure, conditional upon the provision of certain information by Mr Joyce. Mr Vazquez in particular had concerns about the provision of this information, given his prior experiences with Mr Joyce and past difficulties in obtaining necessary information from him, for Mr Vazquez' personal tax purposes. An external accountant was then engaged to review the Metropolis accounts. Mr Joyce refused to answer questions raised by the accountant, or to provide requested information in relation to various payments made to Mr Joyce and associated persons and entities. 24 At a board meeting in September, Mr Joyce's unauthorised use of over $150,000 of company funds was raised. Resolutions were passed removing Mr Joyce as managing director and appointing Mr Rodriguez and Mr Vazquez as joint managing directors and Mr Rodriguez as company secretary. Mr Joyce challenged the legality of the meeting and resolutions. 25 In October, Mr Rodriguez engaged an insolvency expert to advise the company, given continuing difficulties. Advice as to insolvency was provided. Mr Joyce refused to accept the advice and a second firm was engaged, which valued the shares in the company at close to, or zero value. Mr Joyce threatened to exercise his rights as majority shareholder and to dismiss Mr Rodriguez and Mr Vazquez. Mr Joyce still retained control of the company's finances. 26 On 12 October, Mr Joyce resigned as a director, went to Metropolis' office and began removing items, including material from Mr Rodriguez' office, such his personal laptop, personal cheque book and various client files. The room was ransacked. Mr Rodriguez was alerted by office staff and upon his return, there was an aggressive confrontation between he and Mr Joyce, with Mr Joyce at one point filming Mr Rodriguez. When Mr Joyce left, the police were called. 27 The three directors endeavoured later to reach agreement on terms, but were unable to do so. Mr Joyce threatened litigation. Attempts were made by Mr Rodriguez and Mr Vazquez to continue the business and to repay its outstanding debts, through arrangements with creditors. They were unsuccessful, despite additional funds injected into the business by Mr Rodriguez. As a result, Mr Vazquez resigned as a director and the company was put into voluntary administration. Mr Joyce then applied to the Supreme Court and the company was put into liquidation. 28 Mr Joyce made various allegations against Mr Rodriguez to the liquidator, which the liquidator raised with Mr Rodriguez while he was away overseas. He responded upon his return. Steps taken by the liquidator at the time as the result of Mr Joyce's allegations affected Mr Rodriguez' reputation and endeavours made by Mr Rodriguez and Mr Vazquez to start a new business. As a result, Mr Vazquez went overseas to live. 29 Mr Rodriguez gave detailed evidence as to errors which he alleged existed in information provided by Mr Joyce to the liquidator and in the Metropolis records, as the result of steps taken by Mr Joyce, while managing director. Mr Rodriguez also detailed various misrepresentations made by Mr Joyce, while the company's managing director, in relation to turnover and sales, as well as his failures to attend to the business of the company. It is unnecessary to detail that evidence. 30 The liquidator's report in May 2001 indicated that with the assistance of Mr Rodriguez and Mr Vazquez, the liquidator continued to trade so as to permit conclusion of major works for which over $200,000 in fees was owing, and could be recovered. Litigation to recover those sums was underway. Unsuccessful efforts were made to sell the business, which Mr Joyce attempted to purchase. The assets of the business were then auctioned and $17,138 was recovered. The liquidator reported that Metropolis' computerised accounting records did not reflect its transactions. Metropolis appeared to be insolvent from its inception. Assets transferred into the business did not have the represented value. There had been various failures to comply with the requirements of the Corporations Law and in the liquidator's opinion, the directors may have committed various offences, including insolvent trading. The liquidator had investigated payments to directors, undue preferences and uncommercial transactions, but he was without funds to investigate further. Jurisdiction

31 While the proceedings were undefended, the Court's jurisdiction to make the orders sought must still be established. 32 I am satisfied on the evidence, that jurisdiction has been established and that the arrangement before the Court was, in terms of s106(1), one whereby work was performed in an industry. Like the circumstances before the Court of Appeal in MMAL Rentals Pty Limited v Bruning [2004] NSWCA 451, here Mr Rodriguez acquired equity in Metropolis at the very commencement of the arrangement. The share sale agreement expressly provided for his employment on agreed terms, which included an employee share profit scheme. That employment, in fact, commenced before the written agreements were entered. The necessary close relationship between the performance of work and the aspects of the arrangement which the Court is here asked to declare void or vary, was also established on the evidence. (See Solution 6 Holdings Limited v Industrial Relations Commission of New South Wales (2004) 208 ALR 328.) 33 I am also satisfied that the arrangement was not one to which s108A applied.

34 In Autobake Pty Ltd v Budd & Anor (1986) 19 IR 8 the former Industrial Commission in Court Session observed at pp29 - 30 in relation to a calculated business risk, advisedly taken, that has proved unsuccessful: Where such a calculated risk is taken it is not intended by s 88 F that the other party should become a guarantor, as it were, that the business will be successful, or that the party performing the work will receive at least the rates of pay he would have received had he been an employee. Each case has to be considered on its own merits and the discretion of the Commission exercised accordingly.

35 That discretion must be exercised in the manner discussed by Barwick CJ in Stevenson v Barham (1977) 136 CLR 190 at 192: The legislature has apparently left it to the good sense of the Industrial Commission not to use its extensive discretion to interfere with bargains freely made by a person who was under no constraint or inequality, or whose labour was not being oppressively exploited.

36 Here, of course, it was Mr Rodriguez' case that there was such exploitation. He claimed to have been duped into entering this arrangement, as the result of Mr Joyce's misrepresentations about the value of the assets being transferred to the business and the workflow which he was already generating in the businesses he was conducting through Virtu and Old Metropolis, which would become a part of the new business. Furthermore, the business of the new venture was affected by Mr Joyce's failure to make the necessary contributions, by mismanaging the business in various ways, including improperly performing the work he had undertaken to perform and by his misuse of the company's funds, by unauthorised payments made to he, his wife and various of his associates. This resulted in the loss of the assets and the viable business which the applicants had transferred to Metropolis, as well as Mr Rodriguez' employment, when Metropolis was liquidated. 37 Mr Joyce did not appear in these proceedings to resist the complaints made against him. There is no reason for me to doubt the truth of the evidence Mr Rodriguez gave in these proceedings. 38 I am entirely satisfied, on the evidence, that the requisite unfairness was established. The uncontested misrepresentations, misuse of Metropolis' funds, mismanagement and resulting liquidation of Metropolis was made out. It follows that the finding that the arrangement here in question was relevantly unfair, must follow, as must an order of variation. Money orders

39 The next issue to be considered is the nature of the money orders which justice requires be made in these circumstances. As was observed in Autobake at p29, the section requires the exercise of a discretion, even if orders of avoidance or variation are made. Orders under s106(5) are not made automatically. 40 Here, the applicants firstly seek repayment of the value of the assets which were transferred into the joint venture company, some $89,286. On the evidence Mr Rodriguez subsequently injected further funds of some $45,712.75, in order to support the Metropolis business as a going concern, when the results of Mr Joyce's misrepresentations started to have effect. No recovery of this amount is sought. 41 The applicants complained that they were induced to merge Co-Relate's viable business into Metropolis, including its assets and work in progress, by the false representations made by Mr Joyce as to what he and the companies associated with him were bringing to the venture. The end result of this and Mr Joyce's other unfair and improper conduct, was that Co-Relate's business became subsumed in what was, from the outset, an unviable business and so was inextricably caught up in the Metropolis liquidation. 42 I am satisfied that this complaint was made out on the evidence. Mr Joyce's representations were plainly untrue, as he was aware. The liquidator suspected that the Metropolis business was insolvent from the outset, despite the injection of the applicant's business and assets, Mr Rodriguez' financial support and the work performed by he and Mr Vazquez, even after the liquidator was appointed, which plainly generated further work and income. In the circumstances, I am satisfied that justice requires the money order sought in relation to this aspect of the claim. 43 I am unable to come to the same conclusion in relation to the second aspect of the claim. The complaint is that Mr Joyce wrongly appropriated some $227,051.90, which in effect, the applicants seek that he be ordered to pay to them, on a 75%/25% basis. I can see not basis for such an order. 44 At best, an order that Mr Joyce should pay Mr Rodriguez 32% of this sum, reflecting his agreed share of Metropolis, or one third of the sum, as reflecting the agreement between the three individuals, that they were to be treated equally in terms of remuneration in the business they were engaged in together, might be ordered. 45 On balance, I am satisfied that an order of 32% of this sum should be paid by Mr Joyce to Mr Rodriguez reflecting the shares in the business they agreed upon at the outset. This leaves to one side whether all or any of these sums are recoverable from the directors by the liquidator. That is a matter for the liquidation, not these proceedings. 46 The final money order sought was in relation to notice of termination of Mr Rodriguez' employment. I am satisfied that such an order should not be made, as a matter of justice, in these proceedings. The evidence showed that Mr Rodriguez was misled and duped by Mr Joyce, in such a way that it can only properly be concluded that the arrangement in question was relevantly unfair. This has led to the money orders earlier outlined. 47 What must not be overlooked however, in this last aspect of the claim, it seems to me, is that Mr Rodriguez was a willing participant in this venture, who accepted obligations as a director of Metropolis and who had an awareness of the problems of the business, given Mr Joyce's ongoing conduct, from as early as May 2000, even before he signed the shareholders agreement. Mr Rodriguez went into the venture without troubling to take advice as to what Mr Joyce was, in reality, bringing to the business. Mr Rodriguez also had plenty of notice of the problems Metropolis faced and failed to take steps available to him as a director to deal with them. It appears that the result may have been that, as a director, he was involved in Metropolis' insolvent trading. If so, that, no doubt, had an impact on its employees and creditors. These proceedings are not the place for such issues to be resolved. 48 I am satisfied, nevertheless, that any orders in relation to notice of termination of employment, additional to that agreed when the venture was entered, ought not here to be made in those circumstances, as a matter of discretion. Additional notice, or a payment in lieu, is not what justice here requires. The approach of the former Court Session in AutoBake, in my view lends force to that conclusion. Costs

49 An indemnity costs order was sought, in lieu of the usual party/party order. Reliance was placed upon various authorities, including the decision of Haylen J in Cornell v Titley [2002] NSWIRComm 326. There his Honour concluded that such an order was appropriate in circumstances where the respondent had failed to participate in proceedings dealing with outstanding superannuation entitlements, even at the conciliation stage. That was not the case here. 50 Peterson J reached a similar conclusion in Hampden Press Pty Ltd and Anor v Cramond Publications Pty Ltd [2003] NSWIRComm 99, where at issue was unpaid commission and expenses. 51 The circumstances where an indemnity costs order may be made in proceedings such as this, is well settled. The fact that the proceedings go forward on an ex-parte basis does not alone provide a basis for such an order. In this case, Mr Joyce participated in the proceedings by putting on a response to the summons and appearing at the conciliation. Had he continued to participate in the proceedings, undoubtedly greater costs would have been incurred. Some special circumstance must exist for a departure from the usual order, such as a persistence in the proceedings for purposes such as ulterior motive, undue prolongation by groundless contentions, imprudent refusal of an offer of compromise and so on. (See the discussion of Wright J President in Tuholi Pty Ltd v Caltex Australia Petroleum Pty Limited (2001) 103 IR 329 where reference is made to the Full Court's decision in Anderson v Boner (1993) 52 IR 114.) 52 I am unable to conclude that such special circumstances here exist, which would warrant an indemnity costs order, particularly when consideration is given to the claims made in the summons, those finally pressed and the relief actually granted. 53 The usual order as to costs should be made, unless there is some other relevant matter to put before the Court, once the amount of the money orders made is known.

54 For all of the reasons given, I find the arrangement unfair and make the following orders: 1. The arrangement is varied, so as to: (a) Provide that in the event the assets transferred to the new Metropolis Interactive Pty Ltd by Old Metropolis Interactive Pty Ltd, Virtu Pty Ltd and the Respondent are valued at less than $298,500 and/or intangible assets of $1,800,000 and/or the liabilities transferred to the new Metropolis Interactive Pty Ltd by old Metropolis Interactive Pty Ltd, Virtu Pty Ltd and the Respondent are valued at more than $41,621, then the Respondent shall pay the Second Applicant $89,286.

(b) Otherwise require Mr Joyce to pay Mr Rodriguez 32% of $227,051.90. 2. Mr Joyce is ordered to pay the applicants the sum of: (a) $89,286.00, plus (b) 32% of $227,051.90, plus (c) interest on that amount, from 26 April 2002 to the date of judgment, calculated at the rates prescribed by the Supreme Court Rules.

55 The usual order as to costs would be that Mr Joyce pay the applicants' costs, as agreed or assessed. Unless there is an application within 14 days for a costs order on some other basis, an order in those terms will be made, without further hearing.

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