SAGACIOUS PROCUREMENT PTY LIMITED (ACN 003 753 526) v SYMBION HEALTH LIMITED

Court of Appeal (NSW)|2007-07-27|Before: Mason P, Einstein J

CITATION: SAGACIOUS PROCUREMENT PTY LIMITED (ACN 003 753 526) v SYMBION HEALTH LIMITED (ACN 004 073 410) [2007] NSWCA 205

HEARING DATE(S): 27 July 2007, 2 August 2007

DECISION: Notice of motion dismissed with costs

CATCHWORDS: PROCEDURE - Costs - security for costs - for costs of appeal - for unpaid costs of matter at first instance

Civil Procedure Act 2002 Corporations Act 2001 (Cth), LEGISLATION CITED: Legal Profession Act 2004 Trade Practices Act (Cth) Uniform Civil Procedure Rules

Brocklebank & Co v King's Lynn Steamship Co (1878) 3 CPD 365 Bryan E Fincott & Associates Pty Limited v Eretta Pty Limited (1987) 16 FCR 497 Harvey v Jacob (1817) 1 B & Ald 159 106 ER 59 Idoport v National Australia Bank Limited [2006] NSWCA 202 CASES CITED: Massey v Allen (1879) 12 Ch D 807 Philip Morris Limited v Attorney General for Victoria (2006) 14 VR 21 Procon (Great Britain) Limited v Provincial Building Co Limited [1984] 1 WLR 557 Remm Construction (SA) Pty Limited v Allco Newsteel Pty Limited (1992) 57 SASR 180 Southern Cross Exploration NL v Fire and All Risks Insurance Co Limited (1985) 1 NSWLR 114

PARTIES: SAGACIOUS PROCUREMENT PTY LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) ACN 003 753 526 SYMBION HEALGH LIMITED (FORMERLY MAYNE GROUP LIMITED) ACN 004 073 410

COUNSEL: Appellant: J T Gleeson SC/J R Williams Respondent: D Pritchard

SOLICITORS: Appellant: Sagacious Legal Pty Limited Respondent: Freehills

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): SC 50158/2002

LOWER COURT DATE OF DECISION: 3 August 2006

LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWSC 654

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40478/2006

SAGACIOUS PROCUREMENT PTY LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) ACN 003 753 526 v SYMBION HEALTH LIMITED (FORMERLY MAYNE GROUP LIMITED) ACN 004 073 410

These were proceedings for security involving a claim by the appellant (Sagacious) for damages in excess of $100 million arising out of what was said to be a binding contract relating to web-based procurement services. The respondent (Symbion) cross-claimed against Sagacious for an amount of approximately $1.9 million.

At first instance Einstein J found for Symbion in the net amount of $2.1 million and ordered Sagacious to pay 90 per cent of Symbion's costs on an indemnity basis. His honour also refused Sagacious' application for a stay of the costs order.

Sagacious filed a notice of appeal without appointment against the judgment of Einstein J. Symbion subsequently filed an application for security of costs of the appeal seeking an order that Sagacious provide security for the costs of the Court of Appeal proceedings and the unpaid costs of Symbion in respect of the first instance proceedings. Symbion accepted that it was, in effect, seeking an order staying the further prosecution of the matter unless and until security is paid.

Security for costs was addressed at first instance and an order by consent was obtained for payment by Sagacious in the amount of $400,000. Symbion applied for further security in the amount of $250,000 and the judge ordered Sagacious pay $45,000. Subsequently Sagacious filed a substantially amended summons which led to Symbion incurring significant further costs however no further order for top up security was sought.

In this application Sagacious accepted its liability to pay security in respect to the costs of the Court of Appeal proceedings and paid $160,000 without prejudice to Symbion's right to press for more. Symbion pressed for an additional $60,000 on a party/party basis or $90,000 on an indemnity basis. Sagacious refused to provide security with respect to the first instance proceedings.

(1) There is no reason to estimate costs on indemnity basis. The appeal is not so lacking in merit so as to warrant an abuse of process. (at [15])

(2) On the evidence available, the costs estimate of the respondent is not reasonable. (at [22]-[25])

Security for the outstanding costs at first instance

(1) Assuming that the court has jurisdiction or power to make the order sought, justice between the two parties does not support the awarding of security where a top up order on the first instance security for costs was not sought and where adequate security is provided with regard to the appeal costs exposure. (at [56], [58])

Remm Construction (SA) Pty Limited v Allco Newsteel Pty Ltd (1992) 57 SASR 180; Dal Pont, Law of Costs Australia, Butterworths, 2003; referred to IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40478/2006

SAGACIOUS PROCUREMENT PTY LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) ACN 003 753 526 v SYMBION HEALTH LIMITED (FORMERLY MAYNE GROUP LIMITED) ACN 004 073 410 JUDGMENT 1 HIS HONOUR: I have decided that the matter can be disposed of without reference to the stultification/client legal privilege issues that surfaced, so I propose to give reasons now. 2 Proceedings heard by Einstein J that involved a claim and cross-claim resulted in orders made on 3 August 2006 that there be net judgment in favour of the present respondent (Symbion) in the sum of $2.1 million. The appellant, the plaintiff below (hereafter Sagacious) had claimed damages in excess of $100 million arising out of what was said to be a binding contract relating to web-based procurement services. 3 The relationship between Symbion and Sagacious was initially recorded in Heads of Agreement and subsequently in a Strategic Alliance Agreement. Ultimately, Sagacious' claim at trial included a Trade Practices Act (Cth) representational case; a claim for damages arising out of the postponement of the rollout of Sagacious' services under the Strategic Alliance Agreement; and centrally, a claim for damages based on an allegation that a letter dated 16 April 2002 constituted a binding agreement. 4 Symbion cross-claimed for $1.7 million paid by it to Sagacious in respect of future services to be provided. 5 After an eighteen day hearing between 29 May and 26 June 2006, his Honour rejected Sagacious' Trade Practices Act representational claims, allowed damages to Sagacious against Symbion in respect of the delayed rollout under the strategic alliance agreement in the sum of $200,000 plus interest; rejected Sagacious' substantial claim in respect of the 16 April 2002 letter; and allowed Symbion's claim against Sagacious in respect of $1.7 million plus interest. 6 When final orders were made in Symbion's favour in the sum of $2,105,039 on 3 August 2006, Einstein J ordered Sagacious to pay ninety per cent of Symbion's costs on a party/party basis up to 23 December 2004 and on an indemnity basis thereafter, such order relating to unaccepted settlement offers. His Honour also ordered the balance of security for costs paid in respect of the first instance proceedings to be paid forthwith to Symbion. And he refused Sagacious' application for a stay of the costs orders. 7 On 3 August 2006, Sagacious filed a notice of appeal without appointment. Since then, further process has been filed in the Court of Appeal involving an appeal and a cross-appeal. The appeal concerns only the 16 April 2002 letter but it still entails claims by Sagacious for damages in excess of $100 million. 8 This is an application by Symbion for an order that Sagacious provide security for (a) Symbion's costs of the Court of Appeal proceedings in the amount of $250,000 or such other amount as the court considers appropriate, and (b) the unpaid costs of Symbion in respect of the first instance proceedings in the amount of $1.2 million or such other amount as the court considers appropriate. 9 Regardless of the form of the orders as framed in the amended notice of motion, Symbion accepts that what it seeks in effect is an order staying the further prosecution of the appeal unless and until the security is paid. If Sagacious or those backing it fail to put up such security in an acceptable form, Symbion is likely to move for and obtain the summary dismissal of the appeal. 10 There have been several hearings before the Registrar and subsequently myself. Sagacious accepted as early as 12 March 2007 that it was liable to pay security in respect of Symbion's costs in the Court of Appeal. $160,000 security has in fact been provided without prejudice to Symbion's right to press for more, this being the calculation of Sagacious' costs assessor of Symbion's likely party/party costs of the appeal proceedings. Sagacious refuses to provide security as sought with regard to the first instance proceedings.

Security for the costs of the appeal 11 Sagacious does not dispute this Court's power to order security with respect to those costs, nor the appropriateness of doing so. Sagacious is an insolvent company subject to deed of arrangement. It is, to say the least, unlikely that Sagacious would be able to pay Symbion's costs if the appeal were dismissed and, if it were necessary to go further, Sagacious is funded by a litigation funder with respect to the appeal. 12 It is unnecessary in the circumstances to consider which one or more of the following bases for such a costs security order exists, namely Corporations Act 2001 (Cth), s1335(1); Supreme Court Rules 1970, Pt 51 r16; and Uniform Civil Procedure Rules 2005, r42.21 (UCPR). 13 The issue on this part of the case relates to quantum. Sagacious, relying on the evidence of its costs assessor, Ms Vine-Hall, contends that the $160,000 already provided by way of security for costs of the appeal will be adequate for the purpose. Symbion presses for an additional $60,000 on a party/party basis or $90,000 on an indemnity basis. 14 In Procon (Great Britain) Limited v Provincial Building Co Limited [1984] 1 WLR 557, Griffiths LJ said (at 571): It is, of course, for the party seeking an order for security to put before the court material that will enable the court to make an estimate of the costs of the litigation. In the normal course of things, it is to be expected that the court will, to some extent, discount the figure it is asked to award. Allowance will have to be made for the unquenchable fire of human optimism and the likelihood that the figure of taxed costs put forward would not emerge unscathed after taxation. 15 Before turning to the details, I would make three general observations. First, I can see no basis upon which it would be appropriate for me to estimate costs on the basis that they may come to be assessed on an indemnity basis. It is not contended that the appeal is so lacking in merit that it constitutes an abuse of process. This much was common ground until very late in the hearing last week when I ruled that Symbion's attempt to depart from it (to a degree) had been raised far too late. I should add that Sagacious has filed written submissions in the appeal, prepared and signed by respected counsel. Nor would it be proper, in my view, to go beyond a party and party guesstimate given that there is no evidence before me of any outstanding settlement offer referable to the appeal, not that I am sure I could receive or make use of such evidence in any event. 16 Secondly, however, the amount of money involved in Sagacious' continuing claim satisfies me that Symbion is entitled to oppose it with vigour. Without expressing any view about the strengths or weaknesses of the respective cases, I am comfortably satisfied that the respondent Symbion is entitled to put its best foot forward, sparing no reasonable expense in responding to an appeal of this potential magnitude. 17 Thirdly, no question of stifling the appeal is raised in opposition to this part of the security claim. 18 Turning to quantum, Symbion calculates its estimate as to the shortfall between what has been provided and what is still sought by reference to two broad matters. It relies on the evidence of its solicitor, Mr Holloway, as to the type of work required to be done in the appeal. Most of that work lies yet in the future as regards Symbion. Symbion also relies upon the evidence of its costs assessor, Ms Rosati, to establish the reasonableness of the rates to be charged out for the work in question by the persons identified by Mr Holloway. 19 Ms Rosati has opined that a successful litigant in the appeal could expect to recover about eighty per cent of its reasonable costs on a party/party basis. She has however made it clear that she has relied on Mr Holloway to stipulate his intentions as regards the resources he will direct into the opposition to the appeal. Unlike Ms Vine-Hall, Ms Rosati has not ventured her own opinion as to the likely response of a costs assessor determining a bill of costs in the instant matter, if Symbion obtains the dismissal of the appeal with costs. In short, she has relied on Mr Holloway to show the reasonableness of the anticipated legal expenditure. 20 Mr Holloway is a partner in Freehills with extensive litigation experience. His estimates as to the amount of time likely to be spent on various tasks are set out in para 28 of his affidavit of 30 January 2007. 21 The statutory benchmark for assessing party/party costs is found in s364 of the Legal Profession Act 2004 which relevantly provides in subs (1):

(1) In conducting an assessment of legal costs payable as a result of an order made by a court or tribunal, the costs assessor must consider: (a) whether or not it was reasonable to carry out the work to which the costs relate, and (b) whether or not the work was carried out in a reasonable manner, and (c) what is a fair and reasonable amount of costs for the work concerned. 22 There are four matters that cause me to discount Mr Holloway's estimates. First, he has allowed for a two to three day hearing of the appeal. Doing the best I can, and even allowing for generosity in Symbion's favour, I think that two days will suffice. There will be detailed written submissions and experienced senior counsel with a reputation for economy. This adjustment has an immediate reducing effect on the estimated costs for the hearing which are calculated in effect on a three day basis for all lawyers involved. 23 Second, I was unimpressed with Mr Holloway's evidence about the anticipated need to devote 50 hours of lawyer time to the preparation of "chronologies". This was broken up as follows: partner, 5 hours; senior associate, 15 hours; solicitor, 25 hours; paralegal, 5 hours; junior counsel, 20 hours. I bear in mind that the appellant will have prepared a chronology for the purposes of filing in accordance with the Supreme Court Rules. Mr Holloway sought in cross-examination to explain the entry in his affidavit as going beyond the preparation of the respondent's chronology (if any) required under the Rules. If that was his intent when framing his affidavit as he did, then there would appear to be significant overlap with other items such as "consideration of submissions" and "preparation of submissions". At least that is the view I have arrived at in making a generous but reasonable forward estimate. 24 Third, and to a degree coloured by the second point but not entirely, I have the impression that some of the items earlier mentioned including "conferences with counsel and officers of Symbion" (70 hours of solicitor time including 25 hours of partner time where there is also allowance for a senior associate and a solicitor), and "consideration of submissions and preparation of submissions" (80 hours of solicitor time including 20 hours of partner time when there is also allowance for a senior associate and a solicitor) were simply excessive. 25 Fourth, there is an item involving 45 hours of professional time relating to the preparation and hearing of this present application. Since I propose to dismiss this application with costs, it would be inappropriate to include these costs within a forward looking order for security. 26 Sagacious led evidence from Ms Vine-Hall, an experienced costs assessor, defending her estimate that the security already ordered to be paid with reference to the appeal is likely to represent the reasonable costs in the event of dismissal of the appeal. That evidence squarely addressed the provision in the Legal Profession Act to which reference has been made. And it was based upon Ms Vine-Hall's experience of what actually happens at costs assessments in relation to appeals of this nature. I note that Ms Vine-Hall states in para 13 of her affidavit of 2 April 2007: In my experience, assessors are not likely to allow for a respondent in an appeal a significant involvement at partner level in addition to significant involvement by senior and junior counsel. 27 I accept Ms Vine-Hall's evidence in light of my assessment of that of Mr Holloway. Accordingly, I would reject this portion of the application.

Security referable to the outstanding costs at first instance 28 As indicated, Symbion obtained an order that Sagacious pay ninety per cent of its costs at first instance on a party/party basis up to 23 December 2004 and on an indemnity basis thereafter. Although Einstein J refused to stay the costs order, Symbion has not proceeded to enforce it. This is understandable in the circumstances but it is nevertheless of some relevance. The recoverable outstanding costs are in excess of $1 million dollars, but there is no agreement as to the exact quantum. The exercise of assessing the costs would itself be prolonged and costly, not to say ultimately fruitless if Sagacious were successful in its appeal. There has been no application for a gross sum assessment under s94(4) of the Civil Procedure Act 2002. Furthermore, it is common ground that Sagacious would be unable to pay costs of this magnitude out of its own funds. 29 Symbion's actual costs at first instance have been calculated at over $4million dollars. Ms Rosati, a costs consultant and legal practitioner, has estimated that the costs as assessed would on any view exceed $1,677,059. 30 Security for costs was addressed at first instance. 31 The proceedings commenced in September 2002. 32 On 29 October 2002, Symbion first applied for security for costs and not long thereafter it obtained an order by consent for payment of $400,000. 33 On 10 May 2005, Symbion applied for further security in the sum of $250,000. On 8 July 2005 Bergin J ordered Sagacious to pay additional security of $45,000. Her Honour otherwise dismissed Symbion's application for further security without prejudice to its right to renew the application. 34 The first instalment of security in the amount of $200,000 was paid into court on behalf of Sagacious in September 2003. The second instalment in the amount of $245,000 was provided by way of bank guarantee on around 15 August 2005. It would appear that this was provided by a litigation funder. 35 The trial was initially fixed to take place in July 2005. This did not occur. 36 In early December 2005, Sagacious filed a substantially amended summons. This inevitably led to Symbion incurring significant additional costs. No further security was however sought. Symbion's solicitor, Mr Holloway, was taxed about this in cross-examination before me. It is clear that he was aware by the end of 2005 that costs were running over the security provided thus far and that this was substantially due to the amendment of the summons that took place in December 2005. 37 By March 2006, over $2million dollars had in fact been incurred by Symbion in solicitor/client costs. Even discounting for the difference between solicitor/client and party/party costs, it would have been apparent to Symbion and its lawyers that further security was needed to cushion it against the likely inability of Sagacious to meet an adverse costs order if proceedings were ultimately decided in Symbion's favour, as they were in substance. Yet no application for top-up security was made despite liberty to apply to that effect having been reserved by Bergin J. 38 The trial took place between 29 May and 26 June 2006 before Einstein J. 39 The claim for additional security referable to the outstanding costs at first instance is calculated at $1,232,059 on the basis that this is the difference between Ms Rosati's estimate of recoverable costs and the total amount of security actually paid during the first instance proceedings. 40 As with the earlier part of the application for security, this claim proceeds on the back of unchallenged evidence that Sagacious is admittedly insolvent, not even able to pay the judgment debt ordered below. It is supported in the appeal by a litigation funder. 41 The real issues on this topic concern the power of this Court to order security referable to unpaid, unassessed costs outstanding from the trial; and the appropriateness of doing so in the circumstances having regard to normal principles touching delay, discretion and stultification of a litigant's access to justice. 42 Symbion does not assert that the appeal is an abuse of process or otherwise appropriate for summary dismissal. Sagacious has filed its submissions. Indeed, it is Symbion that is in default in not yet having filed its submissions. I hasten to add that this default is not relevant to my decision on the security matter. 43 There has been a degree of posturing on either side on the question of whether the making of an order as sought would stultify the appeal so far as Sagacious is concerned. Symbion points out that this consideration is not a definitive bar to security being ordered. Symbion also wishes to pursue enquiries to show that shareholders of Sagacious and/or its present or future funders might have the capacity to meet any order for security as sought. I have glided over questions of onus in this summation. 44 There is an outstanding issue concerning an application by Symbion to get access to funding documents with a view to cross-examining Mr Purchas, who was a joint administrator of Sagacious. A question of client legal privilege has surfaced. 45 In the upshot, it is unnecessary to address or resolve these matters because I would in any event refuse the order as sought. I now explain why. 46 This is not a case where a party has instituted a fresh action without paying costs ordered to be paid in an earlier discontinued action. Nor is it a case involving the costs of repeated unsuccessful interlocutory applications within the one proceeding. As to these situations, see generally Idoport v National Australia Bank Limited [2006] NSWCA 202 at [105], and Philip Morris Limited v Attorney General for Victoria (2006) 14 VR 21. 47 Sagacious is exercising a right to challenge by way of appeal the very costs orders that, if they stand, generate Symbion's entitlement to recover its costs at first instance. 48 Counsel know of no decision in which a court exercising a power under statute or rules, or in the exercise of its inherent jurisdiction, has made an order in the nature of the one sought here. 49 Symbion points to decisions in which a court has ordered security in a sum that includes an allowance for costs already incurred in the proceedings (see Harvey v Jacob (1817) 1 B & Ald 159 106 ER 59; Brocklebank & Co v King's Lynn Steamship Co (1878) 3 CPD 365; Massey v Allen (1879) 12 Ch D 807; Southern Cross Exploration NL v Fire and All Risks Insurance Co Limited (1985) 1 NSWLR 114 at 122; Bryan E Fincott & Associates Pty Limited v Eretta Pty Limited (1987) 16 FCR 497 at 515). 50 However, none of these cases involve an appeal court ordering security with reference to unpaid trial costs. Indeed, the cases all appear to involve the not uncommon situation of an application for security being made by a defendant promptly after the commencement of proceedings. In that context, it is understandable that the quantum of security ordered might address costs already incurred. An insolvent plaintiff could hardly complain if an application is made that the defendant looks to be protected with reference to the costs of the entire proceedings. 51 I observe that the headnote in the Brocklebank case states: Security for costs where the plaintiff has become bankrupt or has filed a petition for liquidation is not necessarily confined to future costs but may when applied for promptly be extended to costs already incurred in the suit. 52 Professor Dal Pont in his work on the Law of Costs Australia, Butterworths, 2003 states in para 28.35 (footnotes omitted): The court's discretion is not restricted to making an order for security in respect of only future costs that may be incurred. It can extend to an order in respect of costs already incurred , provided that such costs are not the subject of an existing costs order, which overcomes one of the concerns in quantifying an order for security, that of uncertainty. A court is nonetheless reticent to order security for costs incurred to date, for in the ordinary case the defendant has chosen to incur those costs without seeking the protection of an order for security. The case may be otherwise where, aside from the defendant's lack of diligence, the plaintiff's impecuniosity has only just come to the defendant's knowledge. 53 I have real doubts about the jurisdiction or power to make the order sought, but I shall confine myself to explaining why I would not make the order even if there is power to do so. Whatever its form, the substance of an order for security is to the effect that proceedings are stayed until security is provided. The rationale of the power explains the way in which a court goes about computing the amount of security. The purpose is to ensure that a party to a proceeding brought by an impecunious claimant is not oppressed in consequence of the moving party litigating without responsibility. 54 In Remm Construction (SA) Pty Limited v Allco Newsteel Pty Limited (1992) 57 SASR 180, King CJ said at 189: In considering security for costs the court ought to try to do justice as between the parties. The court should protect a defendant against the loss which may result from inability to recover costs by reason of the impecuniosity of the plaintiff but should not go further than is reasonably necessary for that purpose. 55 This rationale does not work for the present claim, in essence because the first instance proceedings are finished. There is no way in which an order could be framed so as to give the plaintiff an option of securing the costs or abandoning the first instance proceedings. In truth, to make the order sought would be tantamount to security in the form of securing a stable door after the horse has bolted. It is well established that delay in seeking an order is a factor that may be taken into account as a discretionary reason for refusing it. There is a reason for this attitude and it too reinforces my conclusion in the present matter. I quote again from Dal Pont at para 29.124 (footnotes omitted): The impact of the timing of an application for security for costs upon the court's discretion was well stated by the Supreme Court of Western Australia in Ravi Nominees Pty Ltd v Phillips Fox [(1992) 10 ACLC 1313 at 1315 per Master Bredmeyer] as follows: … an application for security for costs should be brought promptly and prosecuted promptly so that if it is going to delay the plaintiffs' claim, while it is finding the security, or if it is going to frustrate the plaintiffs' claim completely and stop the action, it does so early on before the plaintiffs have incurred too many costs. An early hearing of such an application also benefits the defendant because it stops the plaintiffs' claim early before the defendant has incurred too many costs. For a defendant to delay applying for security so as to permit the plaintiff to incur substantial costs in preparing for the proceeding has the potential to unduly prejudice and be oppressive to the plaintiff, and as such will ordinarily mean that the justice of the case will not favour the order of security. A chief concern in this respect is that the plaintiff may have incurred costs in prosecuting the matter that it would not have incurred had the application for security been made successfully at the outset. The same principles apply in respect of applications for security in the case of an appeal, and regarding applications to increase the amount of security already ordered, although in the latter case the application is mitigated by the fact that the plaintiff has been placed on notice by the proper application.

56 In the present case it was apparent to those in Symbion's camp, including Symbion itself I infer, that the first instance security for costs was inadequate and that the door had been left open for a top-up application. Further security was however not sought. Mr Holloway was taxed about this and the reasons for it in cross-examination. Client legal privilege precluded the matter being probed to its deepest, but this matters not. What is significant as touching the justice between the two parties is that an application was not made. It is unhelpful to speculate whether or not the application would have succeeded. We do not have Bergin J's reasons when she made the orders she did. 57 I go no further than saying that I doubt whether additional security would have been refused had it been sought in early 2006. It is possible that Symbion did not want to stop the trial because it was anxious that there be no further delay. This would be understandable, but again it has little bearing on the justice of the situation as it stands at present. 58 One then asks: In what way has the lodging of an appeal changed matters for the better as regards Symbion's position? Symbion will get adequate security with regard to its appeal costs exposure. I do not see why the pendency of this appeal should put it in the position of going back for more as regards the outstanding first instance costs, even though they may be irrecoverable in the circumstances. Accordingly I would reject this second aspect of the application as well. 59 UCPR 42.72 provides that unless the court orders otherwise, the costs of an interlocutory application that are ordered to be paid do not become payable until the conclusion of the proceedings. I propose that the amended notice of motion be dismissed with costs. It is my intent that the regime stipulated in UCPR 42.72 should be the situation as regards the costs of this application. I have in mind that Symbion's right to have today's order set off against a costs order in its favour at the end of the appeal, if this is how matters pan out, ought to be preserved. Unless I am informed otherwise, it is my understanding that the orders I am about to make will do this. 60 I therefore order that the notice of motion be dismissed with costs.

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