Warburton v County Construction

Affidavit and other evidence

1. The Plaintiffs rely, in respect of their application for costs, upon an affidavit dated 24 October 2022 of their solicitor, Mr Cotsis. Mr Cotsis there addressed the defence raised by the Defendants that the Plaintiffs had directly engaged, directed and paid building tradesmen and other companies to carry out work which would otherwise have been the subject of the contract and the subpoenas issued in that regard, and the scope of affidavit evidence dealing with that matter, and exhibits voluminous documents directed to that question. The Defendants did not read affidavit evidence in respect of the question of costs and instead relied on a chronology and a substantial tender bundle.
2. The Plaintiffs also rely on Mr Cotsis' second affidavit dated 2 November 2022, which refers to events that occurred prior to the commencement of the proceedings, including steps taken toward the appointment of an independent expert to resolve the dispute between the parties; events that occurred in the proceedings before the NCAT; suggested attempts by the Plaintiffs to settle the proceedings; the transfer of the NCAT proceedings to the District Court of New South Wales and the conduct of those proceedings in that Court; and a Calderbank offer made by the Plaintiffs on 18 October 2019 to settle the proceedings and an offer of compromise subsequently made by the Plaintiffs.

Quantification of interest

1. The Plaintiffs' submissions in chief did not address the quantification of interest, although they claim interest on the judgment in their favour and had been directed to address that issue. Instead, the Plaintiffs first addressed the calculation of interest in reply. While that was inappropriate, the issue as to interest is in narrow scope, and it would not promote the just, quick or cheap resolution of the real issues in dispute to disregard the calculation undertaken by the Plaintiffs in reply.
2. The Defendants submit that the Plaintiffs should not be allowed interest for the period when the proceedings were before the NSW Civil and Administrative Tribunal ("NCAT"). Mr Klooster, who appears for the Defendants, submits that there was no need for the Plaintiffs to commence the NCAT proceedings in June 2018; the Plaintiffs were not ready to pursue the proceedings when they were commenced in the NCAT; the Plaintiffs did not serve substantive evidence while the proceedings were before the NCAT and (the Defendants contend) they did not progress the matter in a timely way before the NCAT; and the proceedings should be treated as having been commenced when the Plaintiffs' Statement of Claim was filed on 30 August 2019. The Plaintiffs respond, in reply, that the First Defendant sought extensions to the timetable for the service of evidence before the NCAT. I do not consider that there is sufficient basis for criticism of the Plaintiffs' conduct of the proceedings before the NCAT to warrant treating the proceedings as commenced on a later date than they were in fact commenced, or to outweigh the fact that the Plaintiffs have been out of the money which they claimed since the proceedings were commenced. Mr Klooster also submits that there is "no evidence" that the Plaintiffs have been deprived of the use of any money by reason of the Defendants' conduct. It seems to that that position does not require evidence, where an order for interest reflects the fact that the First Defendant has had the use of the money to which the Plaintiffs would be entitled under their judgment since the commencement of the proceedings.
3. The Defendants quantify the Plaintiffs' entitlement to interest in an amounts of $30,188.14. The Plaintiffs, in reply, take issue with that calculation, if it were properly calculated from 30 August 2019. It is not necessary to address that question, where I do not consider the date on which interest is calculated should be deferred. The Plaintiffs recalculate the amount of pre-judgment interest from 25 June 2018, the date of commencement of the proceedings in the NCAT, to 21 September 2022 as $44,881.75. I will order that there be pre-judgment interest in favour of the Plaintiffs from 25 June 2018 to 21 September 2022 in that amount.

Costs in respect of the claim against the First Defendant

1. Rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") provides that, subject to Pt 42, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs. In Commonwealth of Australia v Gretton [2008] NSWCA 117, Hodgson JA (with whom Mason P agreed) observed (at [121]) that: "In my opinion, underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs. Costs follow the event generally because, if a plaintiff wins, the incurring of costs was the defendant's responsibility because the plaintiff was caused to incur costs by the defendant's failure otherwise to accord to the plaintiff that to which the plaintiff was entitled; while if a defendant wins, the defendant was caused to incur costs in resisting a claim for something to which the plaintiff was not entitled … Departures from the general rule that costs follow the event are broadly based on a similar approach." (citations omitted)
2. That observation was cited, with apparent approval, by the Court of Appeal in Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34 at [98].
3. The Plaintiffs submit that the Defendants (or at least the First Defendant) should pay their costs as agreed or as assessed, notwithstanding their failure in respect of multiple claims and the extent of inadmissible evidence on which they had relied. The Plaintiffs submit they were successful and were awarded a substantial judgment in the amount of $224,727.34, and ought be awarded costs on that basis. They submit that, while they were not "wholly successful, the judgment in their favour was significant, and cannot be said to be "nominal or trivial". While I accept that proposition, that does not exclude the Court's ability to apportion costs across issues on which the Plaintiffs succeeded and on which they failed, in order to achieve a fair result, on the basis noted above.
4. The Plaintiffs submit that the Defendants pleaded matters in their Defence that were abandoned at the commencement of the hearing, and contend the Plaintiffs had incurred significant time and costs addressing those issues including a question whether they had directly engaged, directed and paid building tradesmen and other companies to carry out work in respect of the relevant project. They refer to the Defendants' issue of a Notice to Produce and subpoenas to third parties concerning that question. They submit that a significant portion of Mrs Warburton's first affidavit and its exhibit, much of which was not admissible and was not read at the hearing, and that a substantial part of the second affidavit of Ms Warburton was also directed to that issue. Mr Klooster submits, in reply, that little turns on the Defendants' abandonment of these matters, which he contends responded to the claim brought by the Plaintiffs against Mr Hart but abandoned on the second day of the hearing, and to an argument put by the Plaintiffs, which ultimately failed, that County had a continuing obligation to construct the project which was not altered by entry into the Second Agreement (defined in the Principal Judgment as the agreement dated 27 February 2017).
5. The Plaintiffs also submit that they were "substantially successful" in their claim against the First Defendant, although that submission does not address the extent to which they had failed in that claim, across multiple issues, as is apparent from the Principal Judgment.
6. There seems to be no basis on which the Court could fairly order that that the Defendants, or the First Defendant, pay all of the Plaintiffs' costs of the proceedings, given the extent of the inadmissible evidence led by the Plaintiffs, and not relied on at the hearing, and the extent of time spent on issues and claims, many of relatively small value, as to which the Plaintiffs failed.
7. The Defendants in turn seek an order that the Plaintiffs pay their costs of the Amended Statement of Claim (or such portion of those costs as the Court considers appropriate) on an ordinary basis up to and including 18 November 2021 and on an indemnity basis thereafter; or that the Plaintiffs pay their costs of the Amended Statement of Claim (or a portion of those costs) on an ordinary basis; or that there be no order as to costs as to the Amended Statement of Claim. In support of those orders, the Defendants advance three primary arguments which I address below.

Disentitling conduct

1. The Defendants submit, first, that the Plaintiffs engaged in "disentitling conduct" before the proceedings commenced and during the proceedings. The Defendants outline the history of the proceedings, from the point at which the parties executed the Second Agreement in an attempt to resolve earlier disputes, through proceedings in NCAT which were then transferred to the District Court and subsequently to this Court. The Defendants contend that the Plaintiffs did not participate in a dispute resolution procedure contemplated by the Second Agreement prior to their commencing the proceedings against the First Defendant in NCAT on 25 June 2018, which originally did not quantify the amounts claimed. The Defendants point out that, by an Amended Points of Claim filed on 28 September 2018, the Plaintiffs initially quantified the amounts claimed at approximately $300,000 on account of the costs of rectification of incomplete and defective works. The Defendants point out that the First Defendant's Amended Points of Defence filed on 5 October 2018 raised a matter on which it was ultimately successful in the proceedings in this Court, that it was not liable for work undertaken by contractors engaged under the Second Agreement, unless defects in that work were caused by any failure of County to manage and supervise the completion of the project as required by that Agreement.
2. The Defendants refer to subsequent events in the NCAT, including the increase in the amount claimed by the Plaintiffs to in excess of $687,000 in May 2019, which resulted in the transfer of the proceedings to the District Court. The Defendants contend, although it is not necessary to decide, that they were prejudiced by the transfer of the proceedings to the District Court, which did not have the capacity to make a work order under s 48O of the Home Building Act 1989 (NSW). The Defendants refer to the conduct of proceedings in the District Court, including the voluminous affidavit evidence led by Mrs Warburton and the vacation of a hearing date for the proceedings in the District Court in November 2020. They point to the subsequent transfer of the proceedings to this Court, by orders made by Hammerschlag J (as his Honour then was) in February 2021 on the Plaintiffs' application. They then refer to the history of proceedings in this Court and again emphasise the significant volume of evidence initially relied upon by the Plaintiffs, which was only reduced once the Court raised that issue at the commencement of the hearing.
3. I have had regard, but need not address at any length, the several matters which the Defendants characterise as "disentitling conduct". Mr Klooster acknowledges that a successful party will only be deprived of costs and ordered to pay the opponents' costs in an exceptional case, but contends that this is such a case. I am not persuaded that the matters on which the Defendants rely, including the manner in which the proceedings were conducted and the extent of the lay evidence, disentitled the Plaintiffs from recovering their costs, as distinct from being matters which should be taken into account in assessing the amount of costs that are recoverable.
4. By submissions in reply, the Plaintiffs contend they did not engage in disentitling conduct before commencement of the proceedings and during their preparation, and address matters on which the Defendants rely. They submit that the dispute resolution clause was limited in its application and would not have addressed the whole of the dispute, and the outcome of a determination would not bind the parties, and point to steps taken by the Plaintiffs' solicitor at an early stage in the dispute seek to promote discussion of the issues in dispute. They make further submissions as to the history of the failed dispute resolution process, which I need not address given the conclusion which I reach below on other grounds. The Plaintiffs also submit that they were entitled to commence proceedings in the NCAT and they did so in June 2018, when monies had not been paid to them by the First Defendant that were due under the Second Agreement and the First Defendant had not attended to rectification works notified by the Office of Fair Trading. I addressed those issues in the Principal Judgment, and I accept that those matters may well have warranted the commencement of the proceedings in the NCAT, where the dispute resolution process had not led to a successful outcome. The Plaintiffs then advance their account of the history of the proceedings in the NCAT and respond to the Defendants' suggestion that the Plaintiffs had unreasonably delayed the matter before the NCAT. There is no utility in my determining which parties contributed, and to what extent, to the delays in the NCAT, given the conclusions that I reach on other grounds below. The Plaintiffs in turn point to the fact that the transfer of the proceedings from the NCAT to the District Court was made by consent and respond to submissions made by the Defendants as to whether a separate question could have been determined, by pointing to the fact that the NCAT did not accept the Defendants' application to have contractual issues separated from other questions of fact and law in dispute. The Plaintiffs point out that, so far as the Defendants now refer to the potential availability of a works order under s 48O of the Home Building Act in the NCAT, they had not sought such an order in the NCAT.
5. The Plaintiffs in turn set out their version of the history of matters in the District Court, and the further consideration whether a separate question should be determined in the District Court. They acknowledge delay in the preparation of proceedings in the District Court and seek to defend Mrs Warburton's first affidavit on the basis that that it "contained detail and information that was ultimately not required or relied on at the hearing". It seems to me that, as I noted at the commencement of the hearing, that affidavit extended well beyond any matters that could conceivably be relevant to a determination of the issues in the proceedings, and large parts of it would not have been admissible and were rightly not read. The Plaintiffs also address the circumstances in which the hearing of the District Court proceedings were vacated and note the District Court had made costs orders in that respect. The Plaintiffs also contend that they sought to transfer these proceedings to this Court when the quantification of their claims by their expert exceeded the jurisdictional limit of the District Court. The difficulty with that proposition is that those claims depended, in substantial part, on a construction of the Second Agreement which the Plaintiffs did not sustain in the Principal Judgment. The Plaintiffs also address the circumstances in which determination of a separate question was again raised, but not ordered at a directions hearing before Stevenson J in November 2021.
6. Returning to the question of Mrs Warburton's affidavit evidence, the Plaintiffs submit that: "The Plaintiffs acknowledge that the evidence was constrained at hearing. However, it cannot be said that it was only related to the evidence of the Plaintiff, and say that a large portion of the Defendants' evidence was not read. It is not a matter that it was only confined to the Plaintiffs' evidence and the parties are each guilty of failing to comply with principles of just cheap and quick in that regard." I accept that there is some force in their further submission that the parties bear a degree of shared responsibility for the manner in which these proceedings developed, and I have regard to that matter in the result that I reach below.
7. While I accept that the history of the proceedings is not impressive, it does not seem to me that these matters rise to a level that could be said to "disentitle" the Plaintiffs from recovering costs that they would otherwise properly be entitled to recover, and the approach which I adopt below will limit the costs recoverable by the Plaintiffs in that manner.

The parties' successes and failures on the issues

1. The Defendants submit, second, that the Defendants were successful on the dominant issues at trial. The Defendants also make an overlapping submission that the Plaintiffs failed on several matters which took up significant time both at the hearing and in submissions, and that any costs order made must be proportionate to the limited success achieved by the Plaintiffs. The Defendants in turn submit that, in some cases, it may be appropriate to apportion costs of proceedings where a party has succeeded on only some issues, and refer to my judgment Breakfast Investments Pty Ltd v Giannopoulos & Anor (No 7) [2012] NSWSC 495 at [12]-[15] and to Chen v Chan [2009] VSCA 233 at [10] as authority that, in taking that approach, the Court will take a pragmatic approach in framing the order for costs, having regard to the success (or lack of success) of the parties on the relevant issues that approach will generally result in the successful party being awarded a proportion of its costs but not the full amount.
2. This approach has also been addressed in other case law. While the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed, although it may deprive a successful party of the costs relating to an issue on which it lost when that issue is clearly dominant or separable: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38]; Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd [2008] NSWSC 1423 at [28]-[31]; The Owners - Strata Plan No 61,162 v Lipman [2014] NSWSC 622 at [241]; Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 at [64]; Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [17]. The "event" for the purposes of UCPR r 42.1 encompasses both the overall outcome of the litigation and the parties' success on distinct issues and extends to any disputed question of fact or law; there may be sufficient justification to depart from the usual order to reflect a party's failure on particular issues if those issues were clearly dominant or separable or took up a significant part of the trial; and, where a successful party fails on particular issues, it may be reasonable that it bear its own costs and the other parties' costs of litigating those issues, particularly where an unsuccessful claim took up a significant part of the trial: Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 1509 at [5]-[11]. In Kraissa v Hair Industrie Penrith Pty Ltd [2015] NSWSC 1905 at [5], I observed that an issue-by-issue approach can be appropriate in making an order for costs in as follows: "The authorities also recognise that a costs order in favour of a successful party can be modified to reflect its failure on particular issues even if the successful party did not act unreasonably in raising those issues, and it may be appropriate to deprive a successful party of costs or a portion of its costs if the matters upon which it was unsuccessful took up a significant part of a trial, either by way of evidence or argument, and an issue by issue approach may be adopted if it will allow a fairer result than giving a party all of its costs." (citations omitted)
3. The Defendants submit that there were some thirteen issues in the proceedings, of which the Plaintiffs failed on ten; succeeded on two; and party succeeded on one, as to which they succeeded on three out of 24 defects claimed and recovered $158,386.64 of the $439,284.04 claimed. It seems to me that the organisation of those issues does not provide a particular helpful basis for assessing parties' relative success and failure, where (as Mr Klooster recognises in submissions) factual issues as to the nature of the defective works claimed took up a substantial part of the evidence and time spent at the hearing. Mr Klooster in turn refers to the preliminary view expressed in the Principal Judgment that the Plaintiffs had obtained limited success in respect of a much larger and longer case, although I qualified that preliminary view in the Quantification Judgment to note that their success on one issue brought a material financial recovery.
4. Mr Klooster also submits that any award of costs must consider issues of proportionality, where the Plaintiffs recovered 16.5% of the total amount claimed by them and that recovery largely reflects a substantial amount recovered in respect of a single defect, and the Plaintiffs failed in respect of numerous other defects for which they contended. Mr Klooster submits, and I think it likely that, the amount of the judgment obtained by the Plaintiffs is "grossly disproportionate" to the costs which will have been incurred by both parties in the proceedings, and that both of them will have expended legal costs which significantly outweigh the amount recovered the Plaintiffs.
5. The relevance of proportionality in respect of a claim for costs was recognised in Shield Mercantile v Citigroup [2013] NSWSC 287 ("Shield Mercantile") at [29]-[31], where McDougall J observed that: "The discretion as to costs is a broad one. It requires consideration of, among other things, a proportionate relationship between the amount that was recovered and the costs that might be allowed. It is to be exercised taking into account the prima facie position that costs follow the event. On that basis, as Mr Darke correctly submitted, Shield would be entitled to its costs. But to give Shield costs, which even the evidence before me indicates will be many hundreds of thousands of dollars, if not more, would I think be a rank injustice. It would mean that Shield would make a substantial recovery in costs, far exceeding the ultimate amount of its claim, for a case which it has never really been able to articulate. I say that not only because of the circumstances relating to quantification of damage to which I have pointed but also because, as I recorded in my reasons, the substance of the evidence, as to the commission files in question, came from Citigroup's witnesses; and the analysis that enabled me to reach the conclusions that I did was one provided by Citigroup's legal team. Equally, to make any costs order in favour of Citigroup … would fly in the face of r 42.1. Balancing those consideration as best I can, and taking into account the considerations of proportionality (which seem to me to be determinative in this case) I conclude that there should be no further order as to costs. That is to say, to the extent that there have been existing costs orders, they will be maintained; but there will be no other order."
6. In McBride v Christies Australia Pty Ltd (No 2) [2015] NSWSC 754 at [49], Bergin CJ in Eq (as her Honour then was) agreed with McDougall J's observation in Shield Mercantile that the discretion as to costs is a "broad one" and that it is appropriate to consider, amongst other things, "a proportionate relationship between the amount that was recovered and the costs that might be allowed". Mr Klooster also relies on the observations of the Court of Appeal in Il Vizio Corp Pty Ltd v Cashflow Finance Australia Pty Ltd (No 2) [2018] NSWCA 142 ("Il Vizio") at [9] and [16]-[17], which approved that approach as follows: "First, Il Vizio maintains that the principle of proportionality is enlivened, noting that the outcome of the appeal was that Cashflow recovered only a little over 10% of the amount it sought and less than the threshold imposed by r 42.35 after a four-day hearing; thus it says Cashflow has not enjoyed "substantial success" (a reference to Shield Mercantile v Citigroup [2013] NSWSC 287 at [25] per McDougall J). … As to the first of the discretionary considerations raised by Il Vizio, there is little room for doubt but that the outcome of the proceedings must have been wholly disproportionate to the costs incurred therein. Although Cashflow was successful in retaining the benefit of its first instance judgment in relation to the limited number of invoices on which liability was ultimately conceded by Il Vizio in this Court, overall Cashflow was unsuccessful on the bulk of its claim. If the "event" is treated as pointing to which party (following the outcome of the appeal in this Court) can be seen to have enjoyed substantial success in the proceedings at first instance, that must on any view be Il Vizio - Cashflow's success being limited in scope. In those circumstances the appropriate order is that Il Vizio pay 10% of the costs of Cashflow of the proceedings at first instance."
7. Mr Klooster submits that, if County fails on its other submissions, any award of costs in favour of the Plaintiffs should be limited to no more than 16.5% of their costs, as agreed or as assessed.
8. In reply, the Plaintiffs contest the Defendants' contention that they raised and pursued multiple issues that took a significant period of hearing time and submit that each party had a measure of success and that costs should follow the event. They submit that the principle of proportionality is not appropriate in this case and seek to distinguish the position in Il Vizio. The suggested distinction does not undermine the principles to which I have referred above. The Plaintiffs also submit that their claims were not without merit and the ultimate outcome of many of those claims determined on a question of construction of the Second Agreement. I do not accept this submission, so far as it depends on the proposition that the evidence led and the length of the hearing were not substantially increased by the Plaintiffs' pursuit of claims on which they failed. I will return to this issue in reaching a determination as to costs below.

Attempts to settle the dispute

1. The Defendants submit, third, that they had made substantive efforts to settle the dispute on commercial terms. The Defendants point to the fact that they made two offers of compromise in respect of the proceedings, including a first offer of compromise on 29 September 2020 in the amount of $150,000 plus costs and a second offer of compromise on 17 November 2020 in the amount of $250,000 plus costs. The Defendants submit that they have bettered the terms of the second offer and the onus is on the Plaintiffs to demonstrate why the Court should not award indemnity costs in favour of the Defendants, referring to Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd (No 2) [2014] NSWCA 391. However, the Defendants' submission that they bettered the terms of the second offer of compromise depends upon the proposition that interest in favour of the Plaintiffs should only run from 30 August 2019 rather than 18 January 2018. I do not accept that submission for the reasons noted above in dealing with that question. It is accordingly not necessary to address any other issues in respect of the offers of compromise where the Defendants have not bettered their terms. The same conclusion also applies in respect of the Defendants' alternative argument that the second offer of compromise should be treated as a Calderbank offer.
2. In reply, the Plaintiffs contend that it is wrong to assert that the Defendants were the only party that made substantive efforts to settle the proceedings on commercial terms and point to a claim by the First Defendant that it would be placed in liquidation if the Plaintiffs succeeded against it. The Plaintiffs submit that they had also made attempts to settle the matter throughout the proceedings. I proceed on that basis, but need not further address the settlement offers made by the parties or the case law to which the parties refer further, where the Plaintiffs do not rely on any offer they made for a claim to indemnity costs and the Defendants have not bettered the basis of any offer they made, so as to establish a claim for indemnity costs.
3. The Defendants also seek an order that the Plaintiffs pay their costs thrown away by reason of any lay evidence served but ultimately not relied on by the Plaintiffs. I will not make such an order, which would likely give effect to significant delay and costs in any assessment, and will have regard to the inadmissibility of significant parts of Ms Warburton's affidavit evidence and the fact that that evidence was not read in reaching a determination as to the costs of the proceedings generally.

Determination as to costs as between the Plaintiffs and the First Defendant

1. On balance, it seems to me that the matters to which I have referred above support an order that there be no order as to the costs of the proceedings, for similar reasons that led McDougall J to take this approach in Shield Mercantile. In summary, an order that the Defendants pay the Plaintiffs' costs of the proceedings would be wholly unjust, given the history of the proceedings in three jurisdictions, the substantial amount of inadmissible evidence on which the Plaintiffs relied up to the commencement of the hearing, and the extent to which the costs of the proceedings will have exceeded the Plaintiffs' recovery in them. It seems to me that, on balance, it would also be unjust to make an order in favour of the Plaintiffs for the recovery of costs on a percentage basis, where that would largely reflect their success on a single claim. I also do not think that I could fairly order costs in favour of the Defendants, a possibility that I had noted in the Principal Judgment, where the Plaintiffs have had success in several claims (although only one had significant monetary value) and Defendants abandoned a defence at the commencement of the hearing which plainly had increased the costs of preparation of the proceedings for all parties. In making no order as to costs, I also take account of the abandonment of the claim against Mr Hart, which it seems to me substantially overlapped with the matters in issue between the Plaintiffs and County and to County's modest success on one aspect of the Cross-Claim.

Determination as to costs as between the Plaintiffs and the Second Defendant

1. The Defendants also seek an order that the Plaintiffs pay the costs of the Second Defendant, Mr Hart, of the Amended Statement of Claim on an ordinary basis, consistent with the fact that the proceedings against him were not pressed. Mr Klooster points to the fact that the claim against Mr Hart had been pursued by the Plaintiffs from the date on which the Statement of Claim was filed, on 30 August 2019, until it was abandoned at the final hearing, after, he contends, the Defendants had incurred substantial costs in responding to that claim. Mr Klooster submits that there is no reason why Mr Hart should not be entitled to his costs of having to defend that aspect of the Plaintiffs' claim.
2. In chief, the Plaintiffs submit that they did not pursue their claim against the Second Defendant, Mr Hart, at the hearing and that occupied no time at the hearing, although that does not address the fact that claim was maintained up to the point of the hearing. In reply, the Plaintiffs acknowledge that the claims against Mr Hart were abandoned and do not resist a costs order in his favour, although they point out that the claim against him was limited and submit that it took little or no time in evidence. I make that costs order in favour of Mr Hart where it relates to the costs of a discrete matter and is not resisted by the Plaintiffs.

Costs of the Cross-Claim

1. The Plaintiffs submit that the Cross-Claim occupied little time at the hearing, part of that claim was not pressed, and the balance was not disputed at the hearing and little time was incurred in that respect. The Defendants seek an order that the Cross-Defendants pay their costs of the Cross-Claim on the ordinary basis. Mr Klooster submits that, notwithstanding the "minimal" time and effort involved in the Cross-Claim and its outcome, there is no reason why the Plaintiffs should not be ordered to pay the Defendants' costs of the Cross-Claim. In reply, the Plaintiffs submit that the First Defendant abandoned most of its Cross-Claim immediately prior to the commencement of hearing and that costs were incurred in dealing with issues relating to the Cross-Claim in the course of the proceedings. They submit that they should not be subject to an adverse costs order in respect of the Cross-Claim and that the Cross-Claimants should pay their costs of the Cross-Claim, apparently notwithstanding the Cross-Claimants' partial success in it. I took account of this issue in reaching my determination as to the costs of the proceedings as between the Plaintiffs and the Defendants and make no further order in this respect.

Orders

1. Accordingly, I make the following orders:
2. Order that there be pre-judgment interest in favour of the Plaintiffs from 25 June 2018 to 21 September 2022 in the amount of $44,881.75.
3. There be no order as to the costs of the proceedings and the Cross-Claim as between the Plaintiffs and the First Defendant, other than any other costs orders already made.
4. The Plaintiffs pay the Second Defendant's costs of the Amended Statement of Claim on an ordinary basis, as agreed or as assessed.

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: 20 November 2022