Short v Crawley

Judgment 1HIS HONOUR: By notice of motion filed on 23 October 2013 the plaintiffs seek an order restraining the eighth defendant (Springsley) from filing or causing to be filed any application for assessment of costs with the Manager, Costs Assessment in respect of the costs orders made in these proceedings in favour of Springsley on 12 December 2008. 2The plaintiffs also seek an order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) that Springsley's costs payable by the plaintiffs pursuant to the order for costs made in favour of Springsley on 12 December 2008 be fixed in a gross sum to be determined by the Court. 3The background to this application is sufficiently set out in my reasons for judgment in Short v Crawley (No. 45) [2013] NSWSC 1541. That judgment determined separate questions as to whether the plaintiffs could apply for a gross sum costs order in respect of the costs ordered to be paid to the plaintiffs and for interest on those costs. 4The present application concerns costs payable by the plaintiffs to Springsley pursuant to orders made on 12 December 2008 (Short v Crawley (No. 40) [2008] NSWSC 1302). 5For the reasons given in Short v Crawley (No. 45) the plaintiffs are not precluded from applying for a gross sum costs order in respect of Springsley's costs because the application is made more than 14 days after the costs orders were entered. 6On 4 October 2013 Springsley served on the plaintiffs an application for assessment for party/party costs in respect of the costs awarded in its favour. Springsley's solicitor advised that "Our client will proceed to file the Application upon the expiry of 21 days or upon receipt of your client's objections in accordance with regulation 125(1) of the Legal Profession Regulations 2005 (NSW)". 7The Application for Assessment of Party/Party costs claims total costs excluding GST of $1,549,794.27. The plaintiffs submit that although Springsley's entitlement to costs is confined to its costs of defending the claims made against it, it appears from a review of the bill of costs annexed to the Assessment Application that the solicitor's portion of the bill comprises charges referable to Aldonet, Springsley and Gladewood with no attempt having been made to isolate Springsley's costs. The plaintiffs submit that counsel's portion of the bill similarly comprises charges referable to all three defendants with an attempt being made to isolate Springsley's costs only in the case of five out of 479 items. 8Section 98(4) of the Civil Procedure Act provides: "98 Courts powers as to costs ... (4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to: (a) costs up to, or from, a specified stage of the proceedings, or (b) a specified proportion of the assessed costs, or (c) a specified gross sum instead of assessed costs, or (d) such proportion of the assessed costs as does not exceed a specified amount." 9Section 98 does not confine the persons who can apply for an order under the subsection to those entitled to costs. Prima facie, a party liable to pay costs is entitled to seek an order that the costs the parties are liable to be paid be specified as a gross sum instead of assessed costs (Sherborne Estate (No. 2): Vanvalen v Neaves [2005] NSWSC 1003; (2005) 65 NSWLR 268 at [38]-[42]; Ireland v Retallack (No. 2) [2011] NSWSC 1096 at [44]; Nicholls v Michael Wilson & Partners Limited (No. 2) [2013] NSWCA 141 at [21]-[22]). 10Section 353 of the Legal Profession Act 2004 (NSW) relevantly provides: "353 Application for assessment of party/party costs (1) A person who has paid or is liable to pay, or who is entitled to receive or who has received, costs as a result of an order for the payment of an unspecified amount of costs made by a court or a tribunal may apply to the Manager, Costs Assessment for an assessment of the whole of, or any part of, those costs. (2) A court or tribunal may direct the Manager, Costs Assessment to refer for assessment costs payable as a result of an order made by the court or tribunal. Any such direction is taken to be an application for assessment duly made under this Division." 11 Sections 354-357 relevantly provide: "354 How to make an application for costs assessment (1) An application for a costs assessment: (a) must be made in accordance with the regulations (if any), and (b) subject to subsection (4), must be accompanied by the fee prescribed by the regulations. ... 356 Persons to be notified of application (1) The Manager, Costs Assessment is to cause a copy of an application for costs assessment to be given to any law practice or client concerned or any other person whom the Manager thinks it appropriate to notify. (2) A person who is notified by the Manager, Costs Assessment under subsection (1): (a) is entitled to participate in the costs assessment process, and (b) is taken to be a party to the assessment, and (c) if the costs assessor so determines, is bound by the assessment. 356A Regulations The regulations may make provision for or with respect to the making and processing of applications for costs assessments. 357 Referral of matters to costs assessors (1) The Manager, Costs Assessment is to refer each application for costs assessment to a costs assessor to be dealt with under this Division. ..." 12Clauses 123 to 125 of the Legal Profession Regulation 2005 relevantly provide: "123 Application of Subdivision This Subdivision applies to the assessment of legal costs payable as a result of an order made by a court or tribunal. 124 How to make an application for assessment of party/party costs-section 354 (1) of the Act (1) For the purposes of section 354 (1) (a) of the Act, an application for assessment of party/party costs under section 353 of the Act is to be made in the approved form. ... 125 Procedure before application for assessment of party/party costs (1) The following procedure applies to an application for assessment of party/party costs made under section 353 (1) of the Act by the person to whom the costs are payable: (a) Before the application is made to the Manager, Costs Assessment, the person proposing to make the application is to complete the form of application in the approved form and send a copy of the application to the person liable to pay the costs with a notice advising the person that any objection to the application must be lodged with the applicant in writing within 21 days after the person receives the notice. (b) The applicant is to attach to the application any such objection received by the applicant before the application is lodged with the Manager, Costs Assessment. The applicant may attach to the application a response to any such objection. (c) If no such objection is received, the applicant is to certify in the application that no objection was received by the applicant before the application was lodged with the Manager, Costs Assessment. (d) The application may not be lodged with the Manager, Costs Assessment until after the applicant duly receives an objection or the period referred to in paragraph (a) expires (whichever first occurs). (e) In accordance with section 356 of the Act, a copy of the application is to be sent by the Manager, Costs Assessment to the person who is liable to pay the costs. (f) Any objection that is lodged with the applicant after the application is lodged with the Manager, Costs Assessment is to be sent by the applicant to the costs assessor to whom the application for assessment is referred (together with any response that the applicant wishes to make). (2) The following procedure applies to an application for assessment of party/party costs made under section 353 (1) of the Act by the person liable to pay the costs: (a) Before the application is made to the Manager, Costs Assessment, the person proposing to make the application is to complete the relevant parts of the form of application in the approved form and send the application to the person to whom the costs are payable (the recipient) with a notice advising the recipient that the information required of the recipient in the form is to be provided by the recipient and the completed application form returned to the applicant within 21 days after the recipient receives the notice (or within such longer period as the applicant and the recipient agree). (b) If the applicant wishes to object to the information provided, the applicant is to lodge the objection in writing with the person who provided the information, together with a notice advising the person that any response to the objection must be lodged with the applicant in writing within 21 days after the person receives the notice. (c) The applicant is to attach to the application any such objection made by the applicant and any response received by the applicant before the application is lodged with the Manager, Costs Assessment. (d) If no such response is received, the applicant is to certify in the application that no response to the objection made by the applicant was received by the applicant before the application was lodged with the Manager, Costs Assessment. (e) The application may not be lodged with the Manager, Costs Assessment until after the applicant receives the information referred to in paragraph (a) and, if an objection is duly made by the applicant, until: (i) if no response is duly lodged by the other person-after the period referred to in paragraph (b), or (ii) if a response is duly lodged-after the response is lodged. (f) However, if the information referred to in paragraph (a) is not provided within the period specified in that paragraph, the application may be lodged with the Manager, Costs Assessment at any time after that period has expired. (g) In accordance with section 356 of the Act, a copy of the application is to be sent by the Manager, Costs Assessment to the person to whom the costs are payable. (h) Any response that is lodged with the applicant after the application is lodged with the Manager, Costs Assessment is to be sent by the applicant to the costs assessor to whom the application for assessment is referred. (3) On receipt of a direction by a court or tribunal under section 353 (2) of the Act for assessment of party/party costs, the Manager, Costs Assessment is to deal with the direction as if it were an application referred to in subclause (2) made by the person liable to pay the costs and as if the Manager, Costs Assessment were the applicant. Note. Section 356 of the Act requires the Manager, Costs Assessment to cause a copy of an application for assessment (whether or not for party/party costs) to be given to any law practice or client concerned or any other person whom the Manager, Costs Assessment thinks it appropriate to notify. Section 358 of the Act enables the costs assessor to whom an application is referred to obtain further particulars about the application by notice served on a party." 13The approved form to be used for an application for assessment of party/party costs (Form 3) requires the provision of information concerning the details of the proceedings, the total amount of costs payable, the relevant work done, the period over which it was done, the identity of the persons who did the work, the basis on which costs have been calculated and charged and the facts relied on to justify the costs charged as fair and reasonable. If the application for assessment is made by the person by whom the costs are payable, that information need not be provided by that person, but is to be completed by the person to whom the costs are payable after a copy of the application is sent to that person. 14Thus, the person liable to pay costs can invoke the assessment procedures. There is no implication in the Legal Profession Act that a party cannot exercise its right to apply to have costs referred for assessment where an application has been made by another party under s 98(4) of the Civil Procedure Act. 15The plaintiffs submitted that there was at least a serious question to be tried that it would be entitled to an order under s 98(4)(c) that the costs they were liable to pay Springsley should be assessed as a gross sum. They submitted that the trial judge would be better placed than would a costs assessor to determine what proportion of the seventh to ninth defendants' costs were fairly attributable to the defence of the claims made against Springsley than the claims made against Aldonet and Gladewood. 16A question might also arise as to whether it was reasonable for the seventh to ninth defendants to have separate representation from the first to sixth defendants, given that all of the defendants were in the same interest and it was submitted that the trial judge would be better placed to make that determination than a costs assessor. The plaintiffs submitted that there would be a duplication in time and costs if parallel costs proceedings were run. Although the plaintiffs' claim for a gross sum order would require an assessment of the plaintiffs' costs, as distinct from Springsley's costs, there may be an overlap of the matters to be determined on the application of the plaintiffs' application for a gross sum costs order and on an assessment of Springsley's costs. 17I accept that there is at least a serious question to be tried that the plaintiffs might be found to be entitled to a gross sum costs order in respect of the costs payable by them to Springsley. 18It is clear that if Springsley's costs are referred for assessment the plaintiffs' claim for a gross sum costs order will be bound to fail. The balance of convenience would favour the grant of the injunction sought. Springsley contended that the assessment process was likely to be quicker than determination of the application for a gross sum costs order. I am not persuaded that that would be so. The costs assessor would have the unenviable task of determining which parts of the bill relate to work done in the defence of the proceeding against Springsley as distinct from the plaintiffs' claims against the other defendants. I doubt that that could be done simply by dividing the charges by three. It will at least require an analysis of the transcript, affidavits and submissions as well as the bill of costs. The costs assessor's task would be complex. Moreover, there are avenues for review of a costs assessment and for appealing or seeking leave to appeal against the decision of a costs assessor that could lead to delays that would not attend a gross sum costs application. 19In any event, if I am right in my reasons for judgment in Short v Crawley (No. 45) it would be open to Springsley to apply for an order for interest on the costs which it has paid to compensate it for being out of pocket. If I am wrong in that conclusion, the plaintiffs' undertaking as to damages would compensate Springsley for any amount by which it is out of pocket by reason of the grant of the injunction if it were found that the plaintiffs were not entitled to the gross sum costs order sought. 20Springsley also submitted that it would suffer prejudice because it has incurred costs of $36,375 in preparing the costs application to be filed with the Manager, Costs Assessment. However, if the plaintiffs' application for a gross sum costs order fails, those costs would not be wasted. Nor would they be wasted if the application for a gross sum costs order succeeds. The work done in preparing the costs application would be material to the determination of the sum to be fixed as a gross sum. Further, it would be open to the Court to include an appropriate sum in respect of the preparation of the costs application in a gross sum that might be fixed. 21These considerations indicate it would be convenient to grant the injunction sought to allow the plaintiffs' application that Springley's costs be determined as a gross sum to be decided on its merits. 22Section 66(4) of the Supreme Court Act 1970 (NSW) provides: "66 Injunction ... (4) The Court may, at any stage of proceedings, on terms, grant an interlocutory injunction in any case in which it appears to the Court to be just or convenient so to do." 23This provision does not entitle a party to an interlocutory injunction other than in aid of a legal or equitable right, or to restrain unconscionable conduct, or to prevent the unconscientious exercise of a legal right, or to protect the integrity of the court's process (Mayfair Trading Co. Pty Ltd v Dreyer (1958) 101 CLR 428 at 454; South Carolina Insurance Co v Assurantie Maatschappij De Zeven Provincien NV [1987] 1 AC 24 at 39-40; R P Meagher, J D Heydon and M J Leeming, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies, 4th ed (2002) at [21-070]). 24Mr Ogborne of counsel who appeared for Springsley submitted that Springsley could not be restrained from exercising its right under s 353(1) of the Legal Profession Act to apply to the Manager, Costs Assessment for an assessment of its costs. He submitted that the plaintiffs did not have an entitlement to a gross sum costs order. All they had was the right to apply under s 98(4) for a gross sum costs order, but the right of a party to apply for such an order is qualified by the express terms of s 98(4) that such an order cannot be made if the costs have been referred for assessment. Nothing in s 98 itself, nor in Div 11 of Pt 3.2 of the Legal Profession Act places any restriction on the right of a party to apply to the Manager, Costs Assessment, for an assessment of costs. 25Mr Ogborne referred to South Carolina Insurance Co v Assurantie Maatschappij De Zeven Provincien NV where Lord Brandon of Oakbrook, with whom Lord Bridge and Lord Brightman agreed on this point, said (at 39-40, 41): "... it will be helpful in the first place to state certain basic principles governing the grant of injunctions by the High Court. The first basic principle is that the power of the High Court to grant injunctions is a statutory power conferred on it by section 37 (1) of the Supreme Court Act 1981, which provides that 'the High Court may by order (whether interlocutory or final) grant an injunction in all cases in which it appears to the court to be just and convenient to do so.' That provision is similar to earlier provisions of which it is the successor, namely, section 45 (1) of the Supreme Court of Judicature (Consolidation) Act 1925 and section 25 (8) of the Supreme Court of Judicature Act 1873. The second basic principle is that, although the terms of section 37 (1) of the Act of 1981 and its predecessors are very wide, the power conferred by them has been circumscribed by judicial authority dating back many years. The nature of the limitations to which the power is subject has been considered in a number of recent cases in your Lordships' House: Siskina (Owners of cargo lately laden on board) v. Distos Compania Naviera S.A. [1979] A.C. 210; Castanho v. Brown & Root (U.K.) Ltd. [1981] A.C. 557; and British Airways Board v. Laker Airways Ltd. [1985] A.C. 58. The effect of these authorities, so far as material to the present case, can be summarised by saying that the power of the High Court to grant injunctions is, subject to two exceptions to which I shall refer shortly, limited to two situations. Situation (1) is when one party to an action can show that the other party has either invaded, or threatens to invade a legal or equitable right of the former for the enforcement of which the latter is amenable to the jurisdiction of the court. Situation (2) is where one party to an action has behaved, or threatens to behave, in a manner which is unconscionable. The third basic principle is that, among the forms of injunction which the High Court has power to grant, is an injunction granted to one party to an action to restrain the other party to it from beginning, or if he has begun from continuing, proceedings against the former in a foreign court. Such jurisdiction is, however, to be exercised with caution because it involves indirect interference with the process of the foreign court concerned. ... ... It is difficult, and would probably be unwise, to seek to define the expression 'unconscionable conduct' in anything like an exhaustive manner. In my opinion, however, it includes, at any rate, conduct which is oppressive or vexatious or which interferes with the due process of the court." 26In Worcestershire County Council v Tongue & Ors [2004] EWCA Civ 140 Peter Gibson LJ observed (at [38]) that where Lord Brandon referred to restraining unconscionable behaviour, he had in mind some procedural misbehaviour by a party to proceedings. 27Mr Ogborne submitted that the plaintiffs had no legal or equitable right to have Springsley's costs assessed as a gross sum. All they have is the right to apply for such an order. But that right is inherently subject to and limited by a prior exercise of a party's right to have costs referred for assessment. Hence he submitted it would only be if Springsley were acting unconscionably that it could be restrained from exercising its right to have its costs referred for assessment that it could be restrained. The plaintiffs have not contended that it would be unconscionable for Springsley to exercise its rights and there would be no basis for such a contention. 28I agree with the thrust of this submission, although what was said by Lord Brandon must be considered in light of the observations of the majority of the High Court in CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345 and of Gummow and Hayne JJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199. 29In CSR Limited v Cigna Insurance Australia Limited the majority said, in the context of a claim for an anti-suit injunction (at 391-392): "The counterpart of a court's power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion. And in some cases, it is that counterpart power of protection that authorises the grant of anti-suit injunctions. Thus, for example, if 'an estate is being administered ... or a petition in bankruptcy has been presented ... or winding up proceedings have been commenced ... an injunction [may be] granted to restrain a person from seeking, by foreign proceedings, to obtain the sole benefit of certain foreign assets'. Similarly, as Gummow J pointed out in National Mutual Holdings Pty Ltd v Sentry Corporation, a court may grant an injunction to restrain a person from commencing or continuing foreign proceedings if they, the foreign proceedings, interfere with or have a tendency to interfere with proceedings pending in that court. The inherent power to grant anti-suit injunctions is not confined to the examples just given. As with other aspects of that power, it is not to be restricted to defined and closed categories. Rather, it is to be exercised when the administration of justice so demands or, in the context of anti-suit injunctions, when necessary for the protection of the court's own proceedings or processes. Quite apart from the inherent power of a court to protect its own processes, a court may, in the exercise of the power deriving from the Chancery Court, make orders in restraint of unconscionable conduct or the unconscientious exercise of legal rights. If the bringing of legal proceedings involves unconscionable conduct or the unconscientious exercise of a legal right, an injunction may be granted by a court in the exercise of its equitable jurisdiction in restraint of those proceedings no matter where they are brought." (Footnotes omitted.) 30In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, Gummow and Hayne JJ said (at [94]-[95]): "[94] It was also emphasised in Cigna that the grant of what are somewhat loosely called 'anti-suit injunctions' in some instances did not involve the exercise of the power deriving from the Court of Chancery. The order in question may be supported as an exercise of the power of the court to protect the integrity of its processes once set in motion. Likewise it was emphasised in the joint judgments in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia and in Cardile v LED Builders Pty Ltd that the doctrinal basis of the Mareva order is to be found in the power of the court to prevent the frustration of its process. In Cardile, the point was emphasised by the statement that to avoid confusion as to its doctrinal basis it is preferable to substitute 'Mareva order' for the term 'injunction'. The Supreme Court of the United States, shortly after Cardile was decided, held that a Mareva order is not a preliminary injunction within the traditional principles of equity jurisdiction. [95] The distinctions drawn in the above decisions are not readily to be perceived in the judgments in the English cases which preceded them. This is important for the present case, given the reliance placed by Lenah upon observations by Lord Brandon of Oakbrook in South Carolina. In that case, the House of Lords discharged orders made by Hobhouse J restraining the defendants from taking further interlocutory steps in a particular action in the United States. Lord Brandon determined the matter by considering whether the conduct which was enjoined by the order made in England was oppressive or vexatious or interfered with the due process of the English court in concurrent litigation before it. His Lordship used the expression 'unconscionable' to describe such conduct and classified the orders which had been made as injunctions. However, as is apparent from Cigna, the doctrinal basis for these orders may equally readily have been found in the power of the English court, by order, to protect the integrity of its processes." 31In CSR Limited v Cigna Insurance Australia Limited, the majority of the High Court referred to the power to grant a Mareva injunction as an instance of the Court's having power to protect the integrity of its processes once set in motion (at 391, footnote (109)). The foundation of the power to make a freezing order of the Mareva variety in the Court's inherent jurisdiction was based on protecting the integrity of the court's process by preventing a defendant from divesting himself of assets to frustrate the enforcement of an apprehended judgment (Jackson v Sterling Industries Limited (1987) 162 CLR 612 at 619, 621, 639). 32Springsley could defeat the plaintiffs' application that its costs be determined as a gross sum by exercising its right under s 353 of the Legal Profession Act to apply for the referral of its costs for assessment. Pursuant to s 357(1) of the Legal Profession Act the Manager, Costs Assessment is required to refer the application for a costs assessment to a costs assessor. Such a step will inevitably mean that the plaintiffs' claim that Springsley's costs be determined in a gross sum must fail. But that conclusion is the result of the limitation on the Court's powers pursuant to s 98(4) of the Civil Procedure Act and the absence of any restraint in the Legal Profession Act on the exercise of rights under s 353(1) where an application has been made pursuant to s 98(4) of the Civil Procedure Act. The exercise of that right would not defeat the integrity of the court's process. It would bring the court's process to an end, but this would not be an abuse. Rather it would remove the controversy as to whether costs should be determined by assessment or by a gross sum costs determination because Parliament has provided that such a controversy cannot be resolved once costs have been referred for assessment. 33Parliament has provided two pathways for the determination of the sum of money to be payable pursuant to a costs order. One is by assessment under the Legal Profession Act. The other is by application for a gross sum costs order. Because both a party entitled to costs and a party liable to pay costs can apply to have the costs referred for assessment, and as no gross sum costs order can be made if the costs have been referred for assessment, Parliament has given primacy to the assessment procedure. 34In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ said (at 33): "The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked." [citation omitted] 35It is true that an application for costs to be referred for assessment will prevent the exercise by the court of the jurisdiction to make a gross sum costs order despite that jurisdiction having been invoked. However, s 98(4) of the Civil Procedure Act contemplates that the jurisdiction to make a gross sum costs order, even if already invoked, will become unavailable should a party make an application for costs to be referred for assessment. It is therefore an inherent limitation of the jurisdiction to make a gross sum costs order that its availability is subject to there being no application for costs to be referred for assessment. It can hardly be said that restraining a party from making an application for costs to be referred for assessment is "needed to ensure the effective exercise of the jurisdiction" to make a gross sum costs order when the legislative scheme devised by Parliament for making costs orders specifically provides for the defeasibility of the gross sum costs jurisdiction in the event of a party's making an application for costs to be referred for assessment. 36That is not to say that a party has a "fundamental right" to have the quantum of costs determined by assessment. As the Court of Appeal said in Hamod v State of New South Wales & Anor [2011] NSWCA 375 at [821]-[822], the express power conferred by s 98(4) of the Civil Procedure Act demonstrates that there is no "fundamental right" for a party to have costs assessed by the formal costs assessment process. On the other hand, the limitation in s 98 coupled with the right of a party entitled to costs or liable to pay costs to apply to have the costs referred for assessment indicates that providing the party exercises the power under s 353(1) for a proper purpose, it can ensure that the quantum of costs is determined by assessment. 37If a party liable to pay costs were to apply to have the costs referred for assessment pursuant to s 353(1) for the dominant purpose of delaying or frustrating the party entitled to costs from receiving the fruits of the costs order, or putting it to extra expense, then its exercise of its right under s 353(1) of the Legal Profession Act would be unconscientious and the Court would have inherent power to restrain the exercise of that right in order to protect its own process. But that is not this case. 38It follows that s 98(4) allows a party to thwart another party's application for a gross sum costs order by applying for the costs to be referred to a costs assessor, provided only that the party applying for referral to assessment does not act for an improper purpose. Where an application for a gross sum costs order has merit this would seem to be inconsistent with the overriding purpose of the Civil Procedure Act under s 56, which is to facilitate the just, quick and cheap resolution of the real issues in proceedings. While s 56(2) provides that the Act is to be interpreted so as to give effect to that overriding purpose, such purpose must give way to express provisions of the Act that have a contrary effect. Section 98(4) is such a provision. 39Counsel for the plaintiffs raised the prospect that it might be argued that a gross sum costs order could not be made in favour of the plaintiffs in respect of its costs if Springsley's costs were referred for assessment. I do not think that that contention would be seriously arguable. In any event I do not infer that Springsley is seeking to have its costs referred for assessment for the purpose of stopping the plaintiffs' application that their costs be determined as a gross sum. 40It follows that the plaintiffs are not entitled to the injunction sought. The existing injunction which was granted until further order in order to hold the status quo pending the delivery of judgment should be discharged. If the plaintiffs seek an extension of the injunction in order to enable them to bring an application for leave to appeal, I will consider such an extension. 41Prima facie, the plaintiffs should pay Springsley's costs of the application for interlocutory relief. I will hear the parties on costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 November 2013