The University of Western Australia v Gray

REASONS FOR JUDGMENT 1 What is presently before the Court is a Notice of Motion dated 28 February 2007 filed by the third respondent which seeks an order as follows: '(1) The Court hereby approves the agreement for the resolution of these proceedings between the applicant and the third respondent in the terms of the "Agreed Settlement Terms" executed by the applicant and the third respondent dated 22 February 2007.' 2 The proceedings referred to are part of a major case which is fixed for hearing before the Court on Monday 12 March next and is expected to run for some considerable length of time. In the proceedings as originally constituted the parties were the University of Western Australia ('the University') as applicant, Bruce Nathaniel Gray ('Dr Gray') as the first respondent and Sirtex Medical Limited (ACN 078 166 122) as the second respondent ('Sirtex'). 3 A Substituted Application was filed on 19 April 2005 in which Cancer Research Institute Incorporated (Registered Number 1001005) ('CRI') was named as the third respondent. In the Substituted Application relief was sought in relation to the third respondent in the following prayers for final relief: '(5) A declaration that the Third Respondent has held on trust for the Applicant such of the shares and options in the Second Respondent as found by the Court. (6) Orders that the Third Respondent transfer to the Applicant such of its shares and options in the Second Respondent as determined by the Court to be held on trust for the Applicant. (7) Orders pursuant to section 175 of the Corporations Act 2001 that the: (a) share register kept by the Second Respondent be modified to record the Applicant as the owner of such of the Third Respondent's shareholding in the Second Respondent as determined by the Court to be held on trust for the Applicant, and (b) register of options kept by the Second Respondent be modified to record the Applicant as being the entitlee of such options for shares in the Second Respondent recorded to be exercisable by the Third Respondent as determined by the Court to be held on trust for the Applicant. (8) Orders that the Third Respondent account to the Applicant.' 4 Other non-specific relief was sought in the form of damages and other relief. 5 On or about 28 February 2007 the second respondent filed a 'Fourth Further Amended Defence and Cross-claim of the Second Respondent to the Further Substituted Statement of Claim 2 November 2006 filed pursuant to orders of French J made on 23 February 2007'. I am uncertain as to the precise date on which a pleading was first filed naming CRI as a respondent to a cross-claim instituted by Sirtex. Suffice it to say that no such cross-claim was in place as at 10 October 2006. In the Cross-claim which forms part of the second respondent's Fourth Further Amended Defence and Cross-claim Sirtex seeks relief against the first respondent, that is to say, Dr Gray, and the third respondent, that is to say, CRI. In the Cross-claim, paragraph 196 and following, Sirtex asserted the following: '196. If (which is denied) the Applicant is beneficially entitled to any right or entitlement to the Acquired Inventions, then: (a) Dr Gray breached the Gray Sirtex Warranties; (b) CRI breached the CRI Warranties; (c) each of the Gray Sirtex Representations and the CRI Representations were false, inaccurate and misleading to Sirtex. 196A. Alternatively, regardless of whether the Applicant succeeds in this proceeding on its claim for a beneficial right or entitlement to the Acquired Inventions, by reason of the matters set out in paragraphs 168, 169 and 171A of the Defence: (a) Dr Gray breached the Gray Sirtex Warranties; (b) each of the Gray Sirtex Representations and the CRI Representations were false, inaccurate and misleading to Sirtex. ... 198. Further or alternatively, in the premises referred to in paragraph 196, by reason of the indemnity provided to Sirtex by CRI as pleaded in paragraph 170A of the Defence, Sirtex is entitled to be indemnified by CRI against any claim, action, demand, damage, loss, liability, cost, charge, expense, outgoing or payment which Sirtex pays, suffers, incurs or is liable for in respect of: (a) CRI's breach of the CRI Warranties; (b) further or alternatively, CRI making the CRI Representations. 199. Further or alternatively, in the premises referred to in paragraph 196 and/or 196A each of Dr Gray and CRI by making the Gray and CRI Representations respectively to Sirtex, has engaged in conduct in trade or commerce which is misleading or deceptive in breach of s 10 of the Fair Trading Act1987 (WA)(FTA). …' 6 The formal claims of Sirtex against CRI are set out at the end of the Fourth Further Amended Defence and Cross-claim of the Second Respondent on page 98 of the pleading and I will not take time to set those claims out in detail. 7 The CRI Warranties to which reference is made are, according to counsel for Sirtex, to be found in clause 3.1 of an 'Assets Purchase Deed' made between CRI and Paragon Medical Limited which I understand to be a former name for Sirtex. Clause 3.1 relevantly provides under the heading 'Representations and warranties': 'The Institute represents and warrants to the Company that: … (k) legal and beneficial owner: (1) subject to the terms of this Deed, it is the absolute legal and beneficial owner of all of the rights and title to, and interest in, the Institute Assets; (2) subject to the terms of this Deed, it will be the absolute legal and beneficial owner of any property which it acquires on or after the date of this Deed and which forms part of the rights and title to, and interest in, the Institute Assets; and (3) no third party (including, without limitation, Yan Chen) has any right or title to, or interest in, or in connection with, any of the Institute Assets (whether or not recorded and whether or not arising at common law, equity or otherwise) except the rights and title to, and interest in, or in connection with, the Institute Assets, which are assigned, transferred and conveyed to the Company pursuant to the Assets Transfers; …' 8 The University's claims against the respondents are set out in a Further Substituted Statement of Claim filed 2 November 2006 to which the Fourth Further Amended Defence and Cross-claim to which I have referred is a response. 9 Under the heading 'University's entitlement to shares and/or or options held by CRI' the Further Substituted Statement of Claim asserts: '159. By reason of the matters pleaded in paragraphs 33 and 62 hereof, the University is beneficially entitled to any or all of the Initial CRI Shares. 160. By reason of the matters pleaded in paragraph 159 hereof, the University is beneficially entitled to any or all of the shares pleaded in paragraph 150 hereof. 161. By reason of the matters pleaded in paragraph 160 hereof, the University is entitled to have Sirtex rectify the share register pursuant to section 175(1) of the Corporations Act 2001 to show the University as the registered holder of the shares.' 10 It is unnecessary to set out in detail the terms of the paragraphs in the Further Substituted Statement of Claim to which reference has been made in paragraphs 159 to 161 inclusive. Having said that, it may be convenient to briefly refer to paragraph 62 which was as follows: '62. By reason of the matters pleaded in paragraphs 35 to 61 hereof: (a) any or all of Dr Gray, Dr Chen and CRI held and hold any right or entitlement which any or all of them obtained as a result of making the Gray/Chen DOX-Spheres Assignments or the CRI DOX-Spheres Assignments on trust for the University; and (b) further or alternatively, Dr Gray and CRI are liable to account to the University for any benefit received by either or both of them, including the consideration referred to in paragraph 55(c) hereof, pursuant to the matters pleaded in sub-paragraphs 11(b) and 11(c) in the case of Dr Gray and sub-paragraphs 54(b), 54(c) and 54(e) hereof in the case of CRI and/or in equity.' 11 According to the Further Substituted Statement of Claim, Dr Gray entered into a contract of employment with the University on 26 October 1984. The University contends that in the course of his work at the University and within the scope of his employment by the University Dr Gray developed and/or discovered certain inventions which were patentable and commercially significant. 12 They included an invention disclosed in patent application AU54724/94 entitled 'Radioactive Particles for treatment of cancer' and the invention disclosed in Australian Provisional Patent Application Number PR0983 dated 25 October 2000, entitled 'Polymer Based Radionuclide Containing Microspheres' and in Patent Cooperation Treaty application PCT AU/01/01370 entitled 'Polymer based radionuclide containing particulate material'. 13 I trust that I do not do a disservice to the pleading by simply saying that in relation to the inventions the University claims an entitlement to the benefit of them. The second respondent is, as I understand it, a party which presently enjoys the benefit of the inventions. The third respondent is an association incorporated under the Associations Incorporation Act 1987 (WA) which has a significant shareholding in the second respondent said to be worth something in the order of $11,000,000 to $16,000,000. 14 The constitution of the third respondent is contained in a document entitled 'Rules of Cancer Research Institute Inc' which in paragraph 3 sets out the Objects of Association. As one might expect, the Objects are consistent with the name of the third respondent, namely, Cancer Research Institute Incorporated. On 22 December 2006 the Court made certain orders for the appointment of a receiver of the assets of the third respondent. Those orders were in substitution for earlier orders made by the Court on 5 October 2006 as amended by further orders made on 25 October 2006. 15 Relevantly, the orders made on 22 December 2006 included the following: '(1) The orders made on 5 October 2006 as amended by the orders of 25 October 2006 apply to the date of this order and thereafter are substituted with the orders following. (2) Mr Mark Conlan of RSM Bird Cameron Partners be appointed until further order of this Court as receiver of the assets of the third respondent. (3) Without limiting the other powers conferred on the receiver by these orders, the receiver have the power to: (a) determine the position that the third respondent should take in these proceedings; (b) have the conduct of these proceedings on behalf of the third respondent; (c) instruct solicitors to appear and to file and serve any documents in the proceedings; and (d) subject to the approval of the Court, enter into and give effect to any agreement for the resolution of all or part of these proceedings so far as they affect the third respondent. (4) For the purposes of orders 2 and 3 of these orders the receiver have all of the rights and powers: (a) of a member of the third respondent; (b) of the third respondent as a shareholder in the second respondent; (c) of the board of management of the third respondent including, without limitation, the power to manage any and all of the assets and undertakings of the third respondent in such manner as he considers appropriate, consistent with the objectives of the third respondent, and for the purposes of the conduct or resolution of these proceedings; (d) as may be reasonably incidental to the pursuit of any of those purposes or the exercise of any of the powers conferred by these orders. (5) In order to enable him properly to discharge his functions and exercise his powers under these orders, the receiver may obtain independent commercial and legal advice as he deems appropriate, including without limitation the advice of senior counsel.' 16 I will not take time to repeat the orders that followed. 17 An agreement was made on 31 July 2006 between the applicant and the third respondent for the settlement of the claims made by the University against CRI ('the 31 July 2006 Agreement'). That settlement agreement provided effectively for the constitution of a new charitable trust, the primary objects of which would be: '(i) to support and promote cancer research and education including without limitation funding cancer research and education at a State, national and international level; and, (ii) to establish, maintain and administer a public fund or funds for any charitable purposes it may decide in relation to cancer research and education.' 18 The proposal was that the trust be managed by a Board of Management initially comprising: '(i) a chairman who is appointed by UWA, CRI and WAIMR jointly; (ii) two nominees proposed by the WA Institute for Medical Research ("WAIMR"); (iii) one nominees (sic) appointed by CRI, (iv) one nominee appointed UWA;' 19 The 31 July 2006 Agreement contemplated the transfer by CRI to the trust of all of its assets. The terms of the 31 July 2006 Agreement were made known to Dr Gray and Sirtex in addition, obviously, to the parties to the agreement, namely the University and CRI. 20 The objects of CRI are to be found in clause 3 of the Rules of that body. They were as follows: '3.1 The objects of the Association are: (a) to support cancer research and public education in general but in particular those aspects of cancer research recommended by the Medical Advisory and Research Committee of the Cancer Research Institute (Inc); (b) to establish, maintain and administer a public fund or funds for any charitable purpose as the Association may decide in relation to cancer research and education but in particular for the purposes recommended by the Medical Advisory and Research Committee of the Cancer Research Institute (Inc); (c) to otherwise assist the aims of the Cancer Research Institute (Inc) and to promote cancer research and education in general but in particular activities recommended by the Medical Advisory and Research Committee of the Cancer Research Institute (Inc). (d) to establish, operate and maintain facilities for the provision of services to cancer patients including patient information, education, diagnostic services, testing and treatment. (e) to establish operate and maintain domiciliary support services for cancer patients, and to support and assist other organisations in the provision of those services. 3.2 The property and income of the Association shall be applied solely towards the promotion of the objects of the Association and no part of the property or income may be paid or otherwise distributed, directly or indirectly, to members, except in good faith in the promotion of these objects.' 21 On 5 and 26 October 2006, senior counsel for Sirtex made statements in Court in respect of a settlement or possible settlement of the University's claims against CRI. A letter was sent by the solicitors for Sirtex to the solicitors for CRI on 10 October 2006 with a copy to the receiver with a view to clarifying the position indicated by senior counsel for Sirtex to the Court on 5 October 2006. That letter was in the following terms: 'I am sending this letter to you in your capacity as the solicitor on the record for CRI. I confirm that you do not act for the Receiver. During argument before French J on 5 October 2006, Mr Elliott SC informed the Court of his instructions in respect of the proposed cross-claim against CRI. I formally record those instructions in this letter as follows: 1 If CRI settles with UWA (or it is determined that CRI has settled with UWA), Sirtex will: 1.1 withdraw its application for leave to file a cross-claim against CRI in these proceedings; or 1.2 seek leave to discontinue any cross-claim which has been filed and served. 2 If the events in paragraph 1 above occur, Sirtex will not object to the current freezing orders against the shares of CRI being lifted or varied to permit any settlement to occur. 3 Sirtex otherwise reserves all of its rights against CRI and the above position should not be regarded as any concession in that regard. Sirtex will rely upon this letter in any argument on costs in respect of the withdrawal of the application or the discontinuance of any cross-claim.' 22 On 11 April 2006, representatives of CRI had met with representatives of the University to canvass settlement of the University's claims against CRI. CRI had indicated that it wanted an outcome that enabled it to proceed with its proposed transfer of its shareholding, and I would interpolate valuable shareholding, in Sirtex, to the Walter and Eliza Hall Institute of Medical Research ('the WEHI') in Melbourne. On 12 April 2006, CRI gave notice to the University of its intention to proceed with the disposal of its shares in Sirtex to the WEHI. 23 On 2 June 2006 the University obtained an injunction restraining CRI from proceeding with the donation of its shares in Sirtex to the WEHI. That injunction is, so I understand, the 'current freezing orders' referred to in paragraph 2 of the letter of 10 October 2006 to which I have referred. 24 On 29 September 2006 the University filed a Notice of Motion in which it sought relief in the nature of specific performance in respect of the 31 July 2006 Agreement. My understanding is that that Notice of Motion has not been finally disposed of. 25 As indicated above the University contends that if it succeeds with its case against CRI it would be entitled to an order which would effectively mean that the assets of CRI would be held in trust for it. Sirtex's position is that the case brought by the University against Dr Gray and CRI and indeed itself will fail. 26 However, in the event that the case of the University against CRI succeeds, Sirtex contends in its Cross-claim against CRI that it is, in effect, entitled to an indemnity from CRI as a result of the breaches of the Warranties in the agreement to which reference has earlier been made, described as the 'Assets Purchase Deed'. Sirtex also contends that it has an entitlement to relief against CRI otherwise as set out in its Cross-claim to which reference has been made. 27 It is suggested that those who instructed the entry by CRI into the 31 July 2006 Agreement may not have had authority to do so. In the circumstances, the receiver was appointed and cloaked with the power to enter into an agreement himself. On 22 February 2007, a further agreement was entered into described as 'Agreed Settlement Terms (22 February 2007)' between the University and CRI by its receiver, Mr Conlan ('the 22 February 2007 Agreement'). 28 In substance that Agreement provided for the creation of a new charitable trust in essentially the same terms as was contemplated by the 31 July 2006 Agreement. Clause 3 of the 22 February 2007 Agreement relevantly provided: '3. CRI and UWA instruct Mrs Elizabeth Heenan to prepare the documents required to constitute the Trust in accordance with the following principles: (a) the Trust be a charitable trust; (b) the primary objects of the Trust are to be: (i) to support and promote cancer research and education, including without limitation funding cancer research and education at a state, national and international level; and, (ii) to establish, maintain and administer a public fund or funds for any charitable purposes it may decide in relation to cancer research and education. (c) the Trust be managed by a Board of Management initially comprising: (i) a chairman appointed by UWA, CRI and the WA Institute for Medical Research ("WAIMR") jointly; (ii) two nominees proposed by WAIMR; (iii) one nominee appointed by CRI; (iv) one nominee appointed UWA (sic), with the intention that all persons to be appointed to the Board of Management be acceptable to each of UWA, CRI and WAIMR. The University and WAIMR acknowledge that CRI may propose as its nominee a representative of the Walter & Eliza Hall Institute of Medical Research ("WEHI") and the University and WAIMR agree that they will have no objection to a representative of WEHI being appointed to the Board provided the nominee is otherwise appropriately qualified; …' 29 This application for approval relates to the 22 February 2007 Agreement, although the Agreement itself was the subject of amendment on 2 March 2007, with the introduction of a qualification in respect of clause 11 thereof. What is now sought is an order approving the 22 February 2007 Agreement as amended. Whilst there are points of difference between the 31 July 2006 Agreement and the 22 February 2007 Agreement as amended on 2 March 2007 ('the Amended 22 February 2007 Agreeement'), the two agreements are essentially the same. The original Agreement provided for a transfer of the assets of CRI to a new charitable trust with certain objects, and the Amended 22 February 2007 Agreement contemplates the same outcome. 30 Clause 4 of each agreement provided: 'Upon the constitution of the Trust and the appointment of its inaugural Board of Management, CRI shall transfer to the Trust all of its assets.' 31 In the 31 July 2006 Agreement the word 'shall' was not included, but in the Amended 22 February 2007 Agreement it was. 32 The Application for approval of the Amended 22 February 2007 Agreement has been before the Court for limited parts of the day on 2 March 2007, 6 March 2007 and 7 March 2007, that is to say last Friday, Tuesday of this week and yesterday, Wednesday, of this week, today being Thursday. The Court has been sitting out of hours in Sydney with counsel either in Sydney and Perth at the same time, or Sydney, Melbourne and Perth at the same time, all parties being connected by video-conferencing facilities. 33 Given the commencement of the major hearing on Monday next, it is important that the status of CRI, as the third respondent to the applicant's claims, be sorted out promptly. It will be evident from the documents referred to above that the settlement originally proposed between the University and CRI contemplated a stripping of the assets of CRI. So also did the later Amended 22 February 2007 Agreement. 34 I have heard submissions or received submissions in relation to the question of approval of the Amended 22 February Agreement from the University and CRI, which support an order for approval; from Dr Gray and two interveners, Mr Sanders and Ms Daebritz, who oppose the approval of the Agreement and, in addition, from Sirtex, which also opposes the approval of the Agreement. I hope I do not do a disservice to the submissions of Dr Gray, Mr Sanders and Ms Daebritz to say that they as putative directors of CRI would prefer to see the assets of CRI pass to the WEHI in Melbourne, a notable charitable organisation in that city. 35 Insofar as there may be a difference of opinion as to where the assets of CRI should go, it seems to me that the appropriate approach for the Court to take would be to consider the matter as if it was approving a cy-près scheme. The relevant principles in relation to approving cy-près schemes were referred to in the judgment of Hutley J in Phillips v Roberts [1975] 2 NSWLR 207 at 210-211 where his Honour quoted from a judgment of Helsham J as follows: 'Charged with [the] task of choosing a means of giving effect to the general charitable intention, I do not think the court is restricted in its inquiry by any rigid rules, but will inform itself by whatever evidence it thinks will best help it to achieve a result as near as may be to what the donor expressed as his intention. If this means admitting credible evidence directed towards filling out a donor's expressed intention, giving it greater depth and intelligibility, so be it; for the Court must settle its scheme to replace that of the donor, and I do not think it should be restricted in trying to reach a real understanding of what the true intention of the donor was.' 36 In the instant case, of course, the Court is not confronted with a will where a charitable object cannot be fulfilled or with a donor. The Court is concerned with an incorporated association which has very noble charitable objects, the management of which has become somewhat difficult given uncertainty as to the state of the membership and as to the composition of the Board of Management. The receiver has, as he was empowered to do, taken advice or referred to advice in respect of the Agreement the approval of which is sought. The advice has been provided in documents which have become exhibits NM-2, NM-3 and NM-4 on the present application and it has been agreed that privilege is maintained in respect of those advices. Needless to say, the only persons who are privy to these advices are CRI and myself. 37 It seems clear that the settlement proposed by the Amended 22 February 2007 Agreement is one which should be supported given that, if CRI failed in resisting the claims made against it by the University and/or Sirtex, it would be in a position where its assets would have to pass to one or other of those organisations and the charitable purpose of the body would be defeated. 38 This brings me to a consideration of the position of Sirtex. At first blush, one would say that an agreement should not be approved which would lead to a divestiture of assets by one of the parties when claims are made by another party which, if successful, could not be met once the assets had been divested. Sirtex, of course, does not claim to be a creditor of CRI, rather it claims to be a contingent creditor and says it will not have any claim on CRI unless it fails in its defence of the proceedings brought against it by the University. 39 In this context, one has to pay regard to the terms of the communications made by senior counsel for Sirtex to the Court on 5 and 25 October 2006 and, more importantly, to the letter of 10 October 2006 written by Sirtex's solicitors to the solicitors for CRI, to which reference has been made above. It is clear that the letter was written in circumstances where a settlement agreement was either in place or may thereafter have been put in place which involved a stripping of the assets of CRI. In the face of such a possibility, Sirtex indicated that if such a settlement was reached it would either not proceed to file a cross-claim against CRI or, if it had already done so, would seek leave to discontinue any cross-claim which had been filed and served. As mentioned earlier, no cross-claim had been filed and served at the time when the letter was written. 40 The letter has not, in terms, been withdrawn. Much of the evidence before the Court on the approval application has been directed to the question of whether or not Sirtex is estopped from effectively withdrawing from the position which it declared in the letter as a matter of law. It does not seem to me necessary for the Court to resolve the issue of estoppel on this application. The important question for the Court is to decide how to exercise its discretion on the approval application. It seems to me that given its standing as a contingent but only a contingent creditor of CRI, Sirtex cannot be heard to complain about the approval of the Amended 22 February 2007 Agreement in the face of the letter of 10 October 2006. It seems to me that the question of approval of an agreement for which the orders of the Court of 22 December 2006 provided should be decided in the interest of justice and I consider that the Amended 22 February 2007 Agreement is one which should be approved. 41 Plainly, it would be inconsistent for the University to maintain its freezing order in the light of the approval of the Agreement, and no doubt an order will be sought for the dissolution of that freezing order to allow the Agreement, to which the University is a party, to be implemented. If Sirtex wishes to itself apply for a freezing order in respect of the assets of CRI, that is a matter for it and no doubt it is a matter where questions of estoppel may well arise in determining whether or not relief should be granted. 42 In the circumstances, the order that I propose to make is one approving the Amended 22 February 2007 Agreement. I have no doubt the Agreement will be incapable of full and complete implementation in the space of the next day or so. What I propose to do is to direct that the order approving the Agreement not be entered until 2.15 pm Western Daylight Saving Time on Friday 9 March 2007, to allow Sirtex to make such application as it may be advised for any freezing order in respect of the assets of CRI. 43 As I said at the commencement of my reasons for judgment of 2 March 2007 on the application for intervention made by Dr Gray, Mr Sanders and Ms Daebritz, this is a quite unusual application. Whilst my remarks were directed at the Notice of Motion filed on behalf of the intending interveners, the description - 'this is a quite unusual application' - is in my view equally applicable to the Notice of Motion of the third respondent which has just been resolved. 44 I have heard the parties on the question of costs of the Notice of Motion for approval of the Amended 22 February 2007 Agreement. The third respondent, that is to say CRI, seeks an order that the second respondent, that is to say Sirtex, pays 70 per cent of the third respondent's costs of the Motion. 45 The applicant seeks an order that the first and second respondents and the interveners pay the costs of the applicant, that is to say the University, of and associated with the Motion of 28 February 2007 for the approval of the settlement agreement. 46 Mr Vaughan of counsel for the interveners and Mr Freeman for Dr Gray, I think of counsel, have each reminded the Court of the necessity for an approval process, the limited involvement they have had in the hearing of the matter and the relevance of the submissions that they have made which, amongst other things, they say, and I think quite rightly, led to the alteration of the terms of the 22 February 2007 Agreement on 2 March 2007, to which reference has been made. It would seem to me quite inappropriate to visit any costs order on the first respondent, Dr Gray, or on the interveners, Mr Sanders and Ms Daebritz. 47 The question then is what, if any, order for costs should be made against the second respondent who has from beginning to end opposed the approval of the Amended 22 February 2007 Agreement. In the result, I have been strongly influenced by the terms of the second respondent's solicitor's letter of 10 October 2006 in reaching the view that the Court's discretion will be properly exercised in the circumstances of the case by approving the Agreement. 48 I think it is fair to say that, in the result, the second respondent has lost in its opposition to the approval application and I think an order for costs should be made against it. I think it also fair to say that it would be inappropriate to burden Sirtex with the whole or even the fraction proposed by counsel for the third respondent, that is to say 70 per cent of the costs of the third respondent and of the applicant as the other party to the Agreement. 49 Whilst it may be possible to formulate an order which would provide for one set of costs to be ordered to be divided up between the third respondent and the applicant, there may be difficulties in doing so as it might be thought that the greater burden in relation to the approval application has been accepted and discharged by the third respondent, who is the moving party in the Notice of Motion rather than the University. I will order that the second respondent pay 50% of the third respondent's costs and 50% of the applicant's costs of the motion. 50 In relation to the question of when such costs should be paid, it seems to me that this is a distinct, discrete issue and one which requires that the payment of the costs be addressed now rather than deferred until the conclusion of the proceedings, where there will be extant claims between the applicant and the first and second respondents but not the third respondent, at least so far as the applicant is concerned. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.