Wardle v Agricultural and Rural Finance Pty Ltd; Agricultural and Rural Finance Pty Ltd v Brakatselos

COSTS - general rule - per defendant orders - where appropriate

COSTS - general rule - where ultimately successful party not successful on all grounds of appeal - appropriate apportionment of costs

WORDS AND PHRASES - "per defendant orders" Legislation Cited: Civil Procedure Act 2005 Contracts Review Act 1980 Pharmacy Act 1964 Suitors Fund Act 1951 Supreme Court Act 1970 Uniform Civil Procedure Rule 42.7 Cases Cited: Agricultural & Rural Finance Pty Ltd v Atkinson [2010] NSWSC 311 Agricultural & Rural Finance Pty Ltd v Atkinson [2010] NSWSC 425 Agricultural and Rural Finance Pty Ltd v Atkinson [2010] NSWSC 635 Agricultural and Rural Finance Pty Ltd v John Edward Atkinson [2010] NSWSC 1396 Agricultural and Rural Finance Pty Ltd v John Edward Atkinson [2011] NSWSC 555 Agricultural and Rural Finance Pty Ltd v Wardel [2012] HCA Trans 256 (5 October 2012). Attorney-General v Simpson [1901] 2 Ch 671 Brittain v The Commonwealth of Australia (No 2) [2004] NSWCA 427 Chappuis v Filo (1990) 19 NSWLR 490 Commonwealth v McCormack (1984) 155 CLR 273 Currabubula Holdings Pty Ltd v State Bank NSW (2000) NSWSC 232 Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 Hanson v Wearmouth Coal Co Ltd and Sunderland Gas Co [1939] 3 All ER 47 In re Whiston; Whiston v Woolley [1924] 1 Ch 122 James Hardie & Coy Pty Ltd v Seltsam Pty Ltd [1998] HCA 78; (1998) 196 CLR 53 Korner v H Korner & Co Ltd [1951] 1 Ch 10 Malpas v Malpas (1885) 11 VLR 670 Metropolitan Petar v The Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 Morgan v John Fairfax & Sons Limited (1988) 13 NSWLR 208 Rutherford v Richardson [1923] AC 1 Rutherford v Rutherford [1922] P 144 Simpson v Attorney-General [1904] AC 476 Stewart v McKinley (1885) 11 VLR 802 Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256 Wardle v Agricultural and Rural Finance Pty Ltd [2012] NSWCA 107 Wardle v Agricultural and Rural Finance Pty Ltd [2012] NSWCA 107 Woolworths v Strong (No 2) [2011] NSWCA 72 Category: Consequential orders Parties: 2011/236264 David James Wardle (First Appellant) Gavin Winston Long (Second Appellant) Agricultural and Rural Finance Pty Limited (First Respondent) Oceania Agriculture Pty Ltd (Second Respondent)

2003/92819 Peter Brakatselos (First Appellant/First Cross-Respondent) Geoffrey Nevell Fredericksen (Second Appellant/Second Cross-Respondent) Allan Patrick Holmes (Third Appellant/Third Cross-Respondent) Nicholas Charles Rowe (Fourth Appellant/Fourth Cross-Respondent) Maria Francesca Russo (Fifth Appellant/Fifth Cross-Respondent) David James Wardle (Sixth Cross-Respondent) Jennifer Dianne Wallace (Sixth Appellant/Seventh Cross-Respondent) Franco Giannuzzi (Seventh Appellant/Eighth Cross-Respondent) Gavin Winston Long (Ninth Cross-Respondent) Maria Michael (Tenth Cross-Respondent) Christina Spyrakis (Eleventh Cross-Respondent) Agricultural and Rural Finance Pty Limited (Respondent/Cross-Appellant) Oceanic Agriculture Pty Limited (Respondent/Twelfth Cross-Respondent) Representation: Counsel: SD Epstein SC; A Tsekouras (Appellants/Cross-Respondents) CJ Bevan (First Respondent/Cross-Appellant) P Condon, solicitor (Second Respondent/Twelfth Cross-Respondent) Solicitors: Abadee Dresdner & Freeman (Appellants/Cross-Respondents) Evangelos Patakas & Associates (First Respondent/Cross-Appellant) Peter Condon & Associates (Second Respondent/Twelfth Cross-Respondent) File Number(s): 2011/236264; 2003/92819 Decision under appeal Citation: Agricultural and Rural Finance Pty Limited v John Edward Atkinson & Ors [2011] NSWSC 555 Date of Decision: 2011-06-09 00:00:00 Before: Einstein J File Number(s): 2011/236264

Judgment 1CAMPBELL JA: The Court delivered judgment concerning the appeal and cross-appeal in this matter on 26 April 2012: Wardle v Agricultural and Rural Finance Pty Ltd [2012] NSWCA 107 ("the 2012 Appeal Judgment). At the time of delivery of that judgment the following orders were made: (1) Appeal allowed. (2) Set aside the judgments in the court below against each Appellant. (3) Enter judgment for Mr Holmes, with costs of the hearing at first instance. (4) Grant leave to Mr Wardle and Mr Gianuzzi to replead paras [28]-[31] of the Further Amended Defence by inserting into those paragraphs the particulars that had previously been in [27] of the Further Amended Defence, modified to make clear that Mr Lloyd is alleged to have been acting on behalf of both ARF and OAL. (5) Cross-appeal dismissed with costs. (6) Remit to the Equity Division for further hearing ARF's claim against each of the Appellants other than Mr Holmes (7) Reserve further consideration of what other orders should be made to give effect to these reasons for judgment. (8) Direct the parties within 14 days after delivery of these reasons for judgment to file short minutes of the orders that they agree are required to give effect to these reasons for judgment, and as to the costs of the appeal and the first instance hearing. (9) To the extent that the parties do not agree upon such orders, direct the Appellants within 21 days from the date of delivery of these reasons for judgment to file short minutes of the further orders it submits are required to give effect to these reasons for judgment, together with its submissions not exceeding four pages in length on the reasons why those orders are appropriate. (10) In the event that the parties do not agree upon orders pursuant to order 8, direct the Respondents within 35 days of the date of delivery of these reasons for judgment to file short minutes of the further orders it submits are required to give effect to these reasons for judgment, together with its submissions not exceeding four pages in length on the reasons why those orders are appropriate. 2The parties proved unable to agree on short minutes of order to deal with the remaining issues. This judgment disposes of those remaining issues. In this judgment I will use terminology and refer to people in a fashion that assumes familiarity with the 2012 Appeal Judgment.

The Effect of the 2012 Appeal Judgment on Issues Litigated in the Court Below 3It is convenient to state briefly the result of the proceedings in the court below, and how that result was affected by the 2012 Appeal Judgment. Agricultural and Rural Finance Pty Ltd ("ARF") had sued over two hundred defendants to recover money it had lent to them for the purpose of investing in prescribed interests projects relating to the growing of tea trees. Many of those claims were disposed of before the primary judge, Einstein J, gave several decisions in 2010 and 2011 concerning what remained of that litigation. His Honour held that all the defendants who continued to oppose the claim of ARF were liable to repay the money that ARF claimed. On the way to so holding, he delivered several judgments. The 2012 Appeal Judgment concerned an appeal that challenged all those judgments. 4By the time the primary judge gave the first of the judgments to which the 2012 Appeal Judgment relates there were twelve defendants who continued to oppose ARF's claim. One of them, a Mr Atkinson, was not involved in any way in the appeal that led to the 2012 Appeal Judgment. Two of the continuing defendants, Mr Wardle and Mr Long, brought appeals as of right. Another seven sought and were granted leave to appeal. As in the 2012 Appeal Judgment, I will include those seven amongst the Appellants. The remaining two continuing defendants, Ms Michael and Ms Spyrakis, neither appealed nor sought leave to appeal. However, ARF brought a cross-appeal, which named as cross-defendants not only the nine Appellants, but also Ms Michael and Ms Spyrakis. 5The trial of the proceedings in the court below had been fixed to commence on 6 April 2010. On 16 March 2010 the Court had made consent orders permitting certain amendments to be made to the defences and cross-claims of the then continuing defendants. However, those amendments were permitted on the basis that ARF would have the right to contend that the amended defences and/or cross-claims did not raise a triable issue. The order made on 16 March 2010 listed in a non-exhaustive fashion the basis upon which such a contention might be raised. One of them was that the amended pleadings "raise causes of action statute barred under a limitation provision". 6During the first six days of the period that had been set down for the trial, the primary judge considered a Notice of Motion brought by ARF that sought to strike out certain parts of those amended defences and cross-claims. The primary judge gave his judgment concerning that Notice of Motion on 21 April 2010: Agricultural & Rural Finance Pty Ltd v Atkinson [2010] NSWSC 311 ("the Strike Out Judgment"). 7Orders were made to give effect to that judgment on 29 April 2010. Certain parts of the defences and cross-claims were struck out. The twelve defendants who were then continuing were ordered to pay the costs of ARF and OAL concerning ARF's Notice of Motion, and to pay the costs of ARF and OAL that were thrown away by the striking out of those parts of the pleadings. 8One of the issues decided in the Strike Out Judgment was the correct construction of certain consent orders, which bound the continuing defendants. Those consent orders set out the basis upon which the court had earlier permitted a test case concerning one borrower from ARF, Mr Gardiner, to proceed. In the 2012 Appeal Judgment, this Court has held that the primary judge construed those consent orders incorrectly, and that the incorrect construction of the orders had affected the order that the primary judge made for striking out of certain parts of the defences and cross-claims. 9On the basis of his construction of the consent orders the primary judge had held that it was not open to the Appellants to litigate whether Mr Lloyd or Ms Edwards had, on any occasion whatsoever, authority to bind ARF. For that reason the judge struck out certain estoppel defences raised by two of the ongoing defendants, Mr Wardle and Mr Gianuzzi. This Court held, in the 2012 Appeal Judgment, that those estoppel defences can be litigated. Whether or not they succeed will be decided at the remitted hearing. 10While the primary judge also struck out a "waiver" defence that Mr Wardle and Mr Gianuzzi had also raised, and this Court permitted that striking out to stand, it was on the basis that the "waiver" defence added nothing to the estoppel defence. The fate of the "waiver" defence in this Court should not affect the costs orders of the proceedings at first instance that would otherwise be appropriate. 11Another issue that the primary judge decided in the Strike Out Judgment was whether an allegation of punctual payment that the continuing defendants made should be struck out. That allegation proceeded on the basis that the date of payment was to be decided in accordance with an alleged "postal rule", whereby payment of a debt was made on the date of posting a cheque. The primary judge did not accept that there was such a rule, and the Respondents retained that finding in this Court. No part of that question will need to be further considered at the remitted hearing. 12A further issue decided by the primary judge in the Strike Out Judgment was whether it was open to the continuing defendants to argue that the contract pursuant to which they invested should be modified under the Contracts Review Act 1980, because of alleged misrepresentations or non-disclosures in the prospectuses concerning the "round robin arrangement". The primary judge held that, because the Gardiner Test Case had used the "round robin arrangement" as the basis of a claim that the prospectuses were misleading and deceptive, and that claim had failed, it was an abuse of process to recast as a claim for relief under the Contracts Review Act the same factual matters as had been relied upon in the misleading and deceptive conduct claim. This Court held that it was open to the Appellants to litigate that Contracts Review Act claim. Whether it succeeds will be decided at the remitted hearing. 13Another of the judgments appealed against was Agricultural & Rural Finance Pty Ltd v Atkinson [2010] NSWSC 425 ("the CRA Judgment"). The primary judge gave that judgment on 10 May 2010, in the course of the hearing. The CRA Judgment related to the admissibility of evidence that was directed to a defence under the Contracts Review Act that had survived the striking out. In the 2012 Appeal Judgment this Court held that the Contracts Review Act defence that the Appellants are entitled to litigate is wider than the defence by reference to which the evidentiary rulings were made. In consequence, this Court held that the rulings that the primary judge made should be set aside. It will be necessary for those rulings to be reconsidered at the remitted hearing in light of the expanded Contracts Review Act defence. 14The primary judge decided the substantive issues that remained in the case after the Strike Out Judgment in a judgment delivered on 17 June 2010: Agricultural and Rural Finance Pty Ltd v Atkinson [2010] NSWSC 635 ("the Principal Judgment"). 15One issue involved in that decision was whether the Appellants had standing to rely on the Contracts Review Act at all. The Respondents contended that the Appellants lacked standing because of s 6(2) of the Contracts Review Act. The primary judge rejected that contention, and his rejection of it was not challenged on appeal. 16Another issue decided by the Principal Judgment was whether the Appellants succeeded in their Contracts Review Act defence. The primary judge held that the defence failed. However, the consequence of the 2012 Appeal Judgment is that the Contracts Review Act defence will need to be reconsidered at the remitted hearing, on the basis that it includes the portion of the defence that the primary judge had struck out. The primary judge considered the effect of various factors said to give rise to injustice, and concluded that those factors would not give rise to injustice. However, on the remitted hearing it will be necessary for the judge who hears that case to consider those factors again. That is because, even if the primary judge had been right in holding that the factors that remained in the defence after the Strike Out Judgment were insufficient to show injustice, it might be the case that those factors, plus the additional factor arising from the portion of the Contracts Review Act defence that had been struck out, are held to be sufficient to amount to injustice. In the 2012 Appeal Judgment this Court declined, at [338]-[340], to decide whether the primary judge had been right in holding that the factors that he considered did not give rise to injustice. This Court declined to enter into that question because, now that the Contracts Review Act would need to be considered on a wider basis than the primary judge had considered it, that question had become moot. 17Another issue considered in the Principal Judgment was whether the Appellants had paid all instalments punctually. The judge considered that question on the basis of his earlier rejection, in the Strike Out Judgment, of the contention of the Appellants that the date of payment should be decided in accordance with the so-called "postal rule". The judge held that none of the Appellants had paid all instalments punctually. 18There were two challenges to that finding on the appeal. The first, applicable to all the Appellants, was that the findings were vitiated by the judge applying an incorrect onus of proof. That challenged failed. The second related only to whether Mr Holmes had failed to pay punctually. That challenge succeeded, by virtue of facts that were peculiar to Mr Holmes.

Other Judgments Below 19The primary judge delivered two judgments relating to these proceedings that were not of central importance in the 2012 Appeal Judgment. One of them was delivered on 2 December 2010: Agricultural and Rural Finance Pty Ltd v John Edward Atkinson [2010] NSWSC 1396 ("the Interest and Costs Judgment"). The other was delivered on 9 June 2011: Agricultural and Rural Finance Pty Ltd v John Edward Atkinson [2011] NSWSC 555 ("the Orders and Costs Judgment"). (The Interest and Costs Judgment was mentioned in the 2012 Appeal Judgment, but only concerning ARF's application for leave to cross-appeal at [341] ff.) At the time of those judgments, there were still twelve ongoing defendants - the eleven who were involved in one capacity or another in the present appeal proceedings, and Mr Atkinson. The listing of parties in the judgments suggests that there were thirteen ongoing defendants, but that impression is misleading because Ms Russo appears twice in the list of defendants. 20One of the issues decided by the Interests and Costs Judgment was whether the ongoing defendants should be jointly and severally liable for ARF's costs, or whether the costs should be ordered on the basis that each defendant would pay: "i. any costs of the plaintiff referable to his or her case exclusively; and ii. his or her proportion of costs other than costs referred to in paragraph (i) worked out on a per defendant basis by reference to the number of active defendants at any one time." 21The primary judge decided that issue at [71]-[82] of the Interest and Costs Judgment. He held that the defendants should all be liable jointly and severally for the costs of the plaintiff, but that any costs which the plaintiff had already recovered by way of settlement inclusive of costs should be subtracted from the costs that otherwise would be assessed as being recoverable against the defendants. 22Orders to give effect to that decision in principle were made at the conclusion of the Orders and Costs Judgment. The ongoing defendants were referred to as "the ADF defendants". So far as presently relevant, the orders made at [16] of that judgment were: "(3) Subject to order 6, the ADF defendants pay the plaintiff's costs of and incidental to the proceedings on the summons and the cross-claims on a joint and several basis and on the usual basis subject to the plaintiff not recovering against the ADF defendants any costs which it has already recovered by way of settlement with other defendants inclusive of costs. (4) The ADF defendants pay the costs of the second cross defendant (Oceania Agriculture Pty Limited) of the cross-claims on a joint and several basis and on the usual basis. ... (6) That the parties represented by Ms Tsekouras pay the costs of the plaintiff incurred by reason of the defendants having withdrawn their contentions concerning the pre-determination interest to which the plaintiff was entitled." 23No ground of appeal made any separate challenge to the propriety of those orders. They fall to be reconsidered only as a consequence of the changes that this Court has made in the orders of substance made by the primary judge. 24Even though the hearing relating to the strike out Notice of Motion occurred during the time that had been allocated for the hearing of the matter, as mentioned at [7] above, separate orders concerning the cost of that Notice of Motion were made. The orders that were made at the conclusion of the Orders and Costs Judgment relate to the costs of the proceedings, insofar as those costs had not already been provided for.

Alteration of the Judge's Strike-Out Order 25The Appellants have provided the Court with written submissions on the remaining issues from Mr Stephen Epstein SC and Ms Anastasia Tsekouras. ARF has provided the Court with written submissions from Mr CJ Bevan. 26The first matter concerning which additional orders need to be made relates to the terms on which the strike out orders that the primary judge made on 29 April 2010 should be altered. The draft order that is proposed by the Appellants reflects a concession that Mr Epstein made in the course of argument in this Court. It was that the Appellants would not seek to rely upon the portions of the Contracts Review Act defence that related to what was called the "repayment understanding". Those matters had been pleaded in paras 33(ba)(x)-(xvii) of Mr Wardle's defence, and in para 33(ba)(xviii)(bb) of that defence, and in corresponding provisions of the other defendants' defences. The order proposed by the Appellants in this respect more accurately reflects the basis upon which the appeal was conducted. It is to be preferred to the draft order proposed by the Respondents, which reinstates somewhat more of the parts of the defence that had been struck out. 27It is appropriate to record that this decision is made on the basis that Mr Wardle's defence is in this respect a fair sample of all the defences.

Costs at First Instance 28The costs at first instance that need to be reconsidered, as a result of the 2012 Appeal Judgment, are the costs of the strikeout motion, and the orders made at the conclusion of the Orders and Costs Judgment. Cost of the Strike Out Motion 29Mr Epstein and Mr Bevan both accept that it is appropriate that the orders for costs made at first instance concerning the strike out motion be set aside. Mr Epstein submits that, in lieu, there should be an order that the Respondents pay the costs of the Appellants of that Notice of Motion. Mr Bevan does not propose any particular specific order concerning the costs of the Notice of Motion. Adopting that course would have the effect that the costs of the Notice of Motion would be disposed of in the same way as the general costs of the first instance proceedings. 30A fact that will need to be taken into account concerning the costs of the Notice of Motion is that this Court has already made an order that Mr Holmes have an order for judgment, with costs of the hearing at first instance. That order would itself carry the costs of interlocutory motions that were not separately ordered to be paid. However, the Court's order also reserved the question of what further orders should be made to give effect to the reasons for judgment. Thus the question of Mr Holmes' costs concerning the Notice of Motion remains for decision. 31Mr Epstein submits, concerning both the costs of the strike out motion and the general costs of the first instance hearing, that the Respondent should pay the Appellants' costs (or, concerning the general costs of the first instance hearing, a high proportion of those costs) because the incorrect decision arrived at concerning the strike out motion and the miscarriage of the first trial were both attributable to the "fault" of the Respondents. He recognises that when an appellate court sets aside orders made at a trial and orders that there be a new trial, a principle often followed is that the costs of a first trial are ordered to follow the event in the new trial. However, he submits that that usual practice is inappropriate when it is the fault of one of the parties that a second trial is required to be held: Stewart v McKinley (1885) 11 VLR 802 at 809-810; Malpas v Malpas (1885) 11 VLR 670 at 710-711; Morgan v John Fairfax & Sons Limited (1988) 13 NSWLR 208; Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 at [55]-[61]. 32In Brittain v The Commonwealth of Australia (No 2) [2004] NSWCA 427, McColl JA (Handley and Tobias JJA agreeing) explained at [30] the rationale for the usual practice, and this exception from it: "The logic of the general rule is manifest. While the Court has a plenary discretion concerning costs (s 76 Supreme Court Act), the ordinary principle is that costs follow the event: Pt 52A r 11. Where a new trial is ordered the parties' rights have not been finally determined. The identity of the successful party has not been established. The general rule is clearly intended to ensure that the ultimate costs order reflects the ordinary principle when the parties' rights are finally determined. Departures from the general rule are intended to deal with situations where its application would lead to injustice." 33In Brittain, McColl JA held, in a situation where the sole cause of a new trial was that one party had requested the trial judge to give to a jury a direction that the Court of Appeal ultimately held was erroneous, it was unjust for the usual principle to apply. Rather, her Honour held that the appellant had been put to the expense of a new trial solely because of the erroneous direction that the respondent had caused the judge to make, and in those circumstances it was appropriate for the respondent to pay the appellant's costs of the first trial on an indemnity basis. 34Mr Epstein submits that that approach should be adopted concerning the Notice of Motion, because in the Strike Out Judgment the judge accepted, either with attribution identified by quotation of the submissions in the judgment, or without attribution by repetition of their substance, submissions that the Respondents had made to him. It is correct that the Strike Out Judgment arose from the primary judge adopting submissions of the Respondents. 35Mr Epstein also submits that other than with respect to parts of their pleadings which the Appellants did not press, the Notice of Motion should have been dismissed with costs. The parts of the pleadings that he identified as ones which the Appellants did not press were paragraphs 32-40 of the defence of Mr Fredericksen, and corresponding paragraphs in the defences of Messrs Atkinson and Long, and Ms Spyrakis. That was an estoppel pleading, based upon representations by Mr Lloyd and other identified people on behalf of the Respondents to Mr Gianuzzi at the Ord Minnett seminar. It pleaded that Mr Gianuzzi passed that representation on to Mr Fredericksen. The judge noted, at [63] of the Strike Out Judgment, that Mr Fredericksen's defence of "waiver" was no longer pressed. 36Contrary to Mr Epstein's submission, it is not the consequence of the 2012 Appeal Judgment that the strike out motion should have been dismissed with costs. Order 2 that the primary judge made on 29 April 2010 struck out pleadings that, in substance, contended that a payment had been made punctually because a cheque for the payment had been put in the post prior to the due date. Order 2 granted liberty to replead those paragraphs, as set out in Schedule A to the orders, to contend that there had been punctual payment because the cheque in question had been received on or before the due date. 37In any event, in my view, the approach adopted in Brittain is not applicable concerning the costs of the Notice of Motion. The issues argued in the Notice of Motion will not be re-agitated at the remitted hearing. An important element in the injustice that was recognised in Brittain was that the appellant would be exposed to the costs of two trials on the same issues because of the erroneous submission of the respondent. That situation will not arise in the present case, so far as the costs of the Notice of Motion are concerned. 38Mr Bevan contends that no separate order should be made concerning the costs of the Notice of Motion, because if the Appellants (presumably, other than Mr Holmes) fail at the remitted hearing there will be no event to which they can point that supports their victory on an interlocutory hearing on appeal. 39I do not accept that submission, because it focuses on only one possible outcome at the remitted hearing. 40Rather, the costs of hearing the strike out motion should be borne in a way that takes into account this Court's decision concerning the issues involved in that motion. Each party has had a measure of success concerning those issues. 41The costs order should also recognise that the strike out motion was an interlocutory application. In accordance with Metropolitan Petar v The Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142 at [16]-[32], it is often appropriate, when a party has been successful in an interlocutory application, the costs of that application be that party's costs in the cause. However, in this case neither party has been wholly successful in the application. The significance and difficulty of those issues on which the Appellants succeeded was approximately equal to that of those on which the Respondent succeeded. In my view the appropriate principle to effect by the costs orders concerning the Notice of Motion is that each side should have fifty percent of the costs of the Notice of Motion as their respective costs in the cause. 42That principle, applied to Mr Holmes, would produce a result that he should have, now, an order for fifty percent of his costs of the strike out motion. I return later, at [81], to how one quantifies his costs of the strike out motion, bearing in mind that he was jointly represented on the motion. It also gives rise to a question of what, if anything, should be done concerning the orders made against the non-appealing defendants for the costs of the Notice of Motion. I also return later, at [81], to that question. Other Costs of the Trial 43Mr Bevan submits that, so far as Appellants other than Mr Holmes are concerned, the order made below for the costs of the trial should not be disturbed. 44Mr Bevan submits that one reason why the order for costs made at the trial should not be disturbed is that some of the defendants who have suffered judgment at the trial have not appealed against the failure of their defences and cross-claims, and their costs liabilities are inextricably bound up with those of the Appellants. While his submissions did not spell out how it happened that the costs liabilities of the non-appealing defendants were bound up with those of the Appellants, it is not hard to see how that is so. Under the joint and several costs order that was made in the court below, it would be open to ARF to seek to enforce the whole of the costs order against whichever defendant appeared to be the easiest target, and leave that defendant to seek to recover contribution from the other defendants who were liable to meet the same obligation. If the costs order remained in its present form, and an Appellant were to succeed in escaping or lessening his or her liability to pay costs, the non-appealing defendants could be prejudiced through having less extensive rights of contribution available to them. 45Mr Epstein submits that it is a consequence of the decision in the 2012 Appeal Judgment that the costs orders made by the primary judge in his final orders will now be set aside against the nine Appellants, and that in those circumstances it is no longer appropriate that the costs order should operate in its existing terms against the remaining defendants. He submits that Ms Michael should be ordered to pay so much of the costs as are properly attributable to her severally, Ms Spyrakis should pay so much of the costs as are properly attributable to her severally, and Ms Michael and Ms Spyrakis should pay jointly and severally two-elevenths of the costs that are properly attributable to the eleven defendants jointly. This submission is made on the basis that there were eleven defendants who were continuing at the time the costs orders were made, rather than the twelve who were actually continuing. It accepts that those non-continuing defendants against whom this Court now makes an order concerning the costs at first instance should, as between themselves, bear costs jointly and severally. 46An important basis upon which the primary judge decided to order that the defendants should all be liable jointly and severally for the plaintiff's costs was that all the defendants had been unsuccessful. The effect of Mr Holmes having succeeded in obtaining judgment on the appeal is that that situation no longer applies. In Currabubula Holdings Pty Ltd v State Bank NSW (2000) NSWSC 232 at [90]-[106], Einstein J helpfully collected the authorities relating to the circumstances in which it is appropriate for a court to order that unsuccessful defendants pay their several proportionate shares of the costs incurred by the plaintiff (a "per-defendant order"). Such an order can be appropriate where a plaintiff sues several defendants, the defendants appear by the same solicitor, and the plaintiff succeeds against some but not all of the defendants. His Honour summarised the rationale for the principle, at [95], as being: "... to achieve substantial justice in the awarding of costs as between a partially successful plaintiff and variously successful and unsuccessful defendants. The rule operates upon the premise that defendants are proportionately responsible for and liable for the joint costs involved in mounting the defence. Thus, a successful defendant cannot claim from the plaintiff more than a proportionate share of the joint costs of the action in addition to any costs separately referable to that defendant. Conversely, the partially successful plaintiff is prevented from looking to each of the unsuccessful defendants for more than an equal proportionate share of the costs not solely referable to the plaintiff's case against one or other of the defendants individually, in addition to the costs which are so referable. In this way, the rule of thumb prevents both the unjust enrichment of the partially successful plaintiff or successful defendant and the casting of an unfair burden on the unsuccessful defendants. Where the premise is falsified or the rule does not achieve its intended effect, it finds no application." 47Einstein J gave as an example of a situation where "the premise is falsified or the rule does not achieve its intended effect", the situation considered in Korner v H Korner & Co Ltd [1951] 1 Ch 10. There, seven of eight defendants had succeeded, but their success had been on issues that were not the substantial issue in the action. It was held that it would be unjust, in that situation, for the successful defendants to recover seven-eighths of the total costs incurred by the defendants in defence of the action. 48The fact that Mr Holmes has succeeded in his defence gives scope for Mr Epstein's argument that, insofar as the non-appealing defendants are concerned, a per-defendant order should be made concerning the costs of the first trial. No Jurisdiction to Make Orders Benefiting Non-Parties to the Appeal? 49To counter that argument, Mr Bevan submits that this Court does not have jurisdiction to make costs orders that would have an effect of benefiting non-parties to an appeal. 50I do not accept that this Court would lack the jurisdiction to make such an order. The present appeal is brought under s 75A Supreme Court Act 1970. The relevant provisions of that section are: "(5) Where the decision or other matter under appeal has been given after a hearing, the appeal shall be by way of rehearing. (6) The Court shall have the powers and duties of the court, body or other person from whom the appeal is brought, including powers and duties concerning: (a) amendment, (b) the drawing of inferences and the making of findings of fact, and (c) the assessment of damages and other money sums. ... (10) The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires." 51Purely as a matter of statutory construction, I would reach the conclusion that, if the success of Mr Holmes on the appeal had the consequence that it was no longer appropriate for the joint and several costs order to remain, replacing it with a per-defendant costs order (or whatever other order was appropriate, in light of the facts of the individual case) would be an order that "the nature of the case requires", and thus justified by s 75A(10), even if that replacement order had the incidental effect of benefiting someone who had not appealed. 52That conclusion, arrived at solely as a matter of construction, is consistent with previous decisions concerning appeals made under somewhat different statutory provisions. 53Attorney-General v Simpson [1901] 2 Ch 671 arose when the Attorney-General and a county council brought an action that sought to establish on behalf of the public a right of free passage in a river. The defendant was the successor in title of the constructors of certain locks located in the river. At first instance, Farwell J had held that prior to 1628 there had been no right of free passage arising under the general law by virtue of the river being navigable, because it had not been navigable until the locks were constructed. Construction of the locks had occurred pursuant to some letters patent granted to predecessors in title of the defendant in 1628 and 1638. Farwell J held that the 1628 letters patent were valid, while the 1638 letters patent were invalid. The 1628 letters patent conferred a right to charge a toll for a period that ended in 1718, but did not expressly confer any obligation to maintain the works. At first instance the plaintiffs had argued that the judge should infer that there was a lost grant in or after 1718 that conferred a right to charge a toll, subject to an obligation to repair and maintain the locks, but Farwell J declined to infer that there had been such a grant. He made a declaration that there was a right of free passage in the river, subject only to the payment of certain charges imposed by a particular statute from the time of George I, and that the defendant was not under any liability to maintain or work any of the locks (700). 54On appeal to the Court of Appeal, the view was taken that the 1638 grant was the operative one, and that it conferred a right to collect tolls that lasted for so long as the defendant kept the works in such repair as to keep the river navigable (per Vaughan-Williams LJ at 712-713). At 718-719, Stirling LJ took what appears to be a wider view, that the grant was subject to the obligation of maintaining and working the locks. The Court of Appeal made a declaration that the defendant was bound to maintain the locks (720). 55Relevantly for present purposes, the plaintiffs had not appealed against the portion of Farwell J's judgment that declared that the defendant was not bound to maintain or work the locks. At that time, order LVIII r 4 conferred on the Court of Appeal power "to give any judgment and make any order which ought to have been made, and to make such further or other order as the case may require". Stirling LJ said, at 720, that: "The order confers power to do this, although the appeal may be from part of the judgment only, and although the respondent may not complain of the decision." Vaughan-Williams LJ at 713 agreed that there was power to make the declaration. 56The decision of the Court of Appeal was reversed by the House of Lords, (Simpson v Attorney-General [1904] AC 476). Their Lordships rejected as a matter of substance the basis upon which the Court of Appeal had held that there was an obligation to maintain, but did not question the power of the Court of Appeal to make the declaration. See especially per Lord Macnaghten at 489-492, Lord Robertson (496) and Lord James (508) agreeing. 57Rutherford v Rutherford [1922] P 144 arose when a wife presented a petition for dissolution of marriage based on her husband's cruelty, and his adultery with a Miss Richardson on one occasion. The husband did not defend the petition, but Miss Richardson obtained leave to intervene and denied the adultery. The trial judge found that both cruelty and adultery were established, and granted the divorce. Miss Richardson appealed to the Court of Appeal. Atkin LJ recorded, at 160, that the husband did not appeal, and "the notice of appeal, so far as I can see, was not served upon him." The Court of Appeal was persuaded that the evidence did not establish that adultery had occurred. At the time, a finding of cruelty would justify a court in making a decree of judicial separation, but was not a sufficient basis for a decree of dissolution of marriage. The Court of Appeal ordered that the petition be dismissed, and a decree for judicial separation on the ground of cruelty be made (161). Atkin LJ at 160-161 specifically considered the power of the Court to make such an order in circumstances where the husband was not a party to the appeal. At the time, the relevant English rule, order LVIII r 4, conferred upon the English Court of Appeal powers: "... to draw inferences of fact and to give any judgment and make any order which ought to have been made, and to make such further or other order as the case may require. The powers aforesaid may be exercised by the said Court, notwithstanding that the notice of appeal may be that part only of the decision may be reversed or varied, and such powers may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision. The Court of Appeal shall have power to make such order as to the whole or any part of the costs of the appeal as may be just." 58Atkin LJ held, at 161, that: "... the right order for this Court to make is the order that the Court below ought to have made if it had taken the same view of the facts as this Court took at the hearing of the appeal". 59Lord Sterndale MR and Warrington LJ both ordered that the petition should be dismissed, though without any express consideration of the power of the Court of Appeal to do so in the absence of the husband. 60The decision of the Court of Appeal was upheld by the House of Lords: Rutherford v Richardson [1923] AC 1. Viscount Birkenhead, at 7, said: "In my view it is open to the Court of Appeal to pronounce the decree of judicial separation which the judge, if he had determined the other issue differently, might have pronounced in the first instance. By not defending either issue, B. had put it out of his power to prevent the judge from making a decree of judicial separation in his absence. How can B. reasonably complain if, also in his absence, the same decree is made by the Court of Appeal?" 61After observing that marriage was more than a simple contract that was able to be dissolved consensually, and that the power of dissolving it depended upon the court being satisfied that adultery had actually taken place, he continued, at 8: "Similarly, when a Court of Appeal decides that a decree of dissolution, duly brought before it for review, ought not to have been pronounced, its duty must be to pronounce the right decree in the whole matrimonial cause, and not merely to limit its conclusion to the issue raised between the parties who have been served with notice of the appeal or have chosen to appear before it. Otherwise the result would be that, by the voluntary act of a party in regard to the conduct of legal proceedings, a competent Court might allow a marriage to be dissolved on the footing that adultery had occurred, while declaring that no such adultery had really taken place." Lord Dunedin, Lord Atkinson and Lord Sumner agreed with those reasons. The case is not one that exemplifies the appeal court conferring a benefit on a non-party to the appeal: one cannot tell whether the husband regarded it as a benefit or a burden to remain married (or, as he had been committed to a lunatic asylum, as neither). However, it is authority for it being the duty of the Court of Appeal to make such order, on appeal, as should have been made below, even in circumstances where the order affects a non-party to the appeal. 62In Hanson v Wearmouth Coal Co Ltd and Sunderland Gas Co [1939] 3 All ER 47 a plaintiff's house had been damaged by an explosion caused by gas escaping from a broken main. The main broke because the ground in which it was laid subsided, as a result of mining taking place below the surface. The plaintiff sued both the gas company and the mining company. At first instance the plaintiff obtained judgment against the gas company alone. The gas company appealed. The plaintiff did not appeal against the judgment in favour of the mining company. The gas company appealed unsuccessfully against the findings that it had been negligent, and that it was not entitled to recover contribution from the mining company. However, Goddard LJ, delivering the judgment of the court, rejected at 55 a submission that, as the plaintiff had not appealed against the judgment entered for the coal company, the appeal of the gas company was incompetent insofar as it sought to have the coal company held liable for contribution. He said, at 55: "The gas company were entitled at the trial, by reason of the provisions of the Law Reform (Married Women and Tortfeasors) Act 1935, to show, if they could, that the coal company were liable in whole or in part for the accident so as to obtain the benefit of indemnity or contribution given by the Act. The duty of the court below was to decide on the rights of the parties at the date of the writ. The Court of Appeal must rehear the case and give the judgment which ought to have been given below, and, if the judgment below should have been that both defendants were liable, so that a right of contribution would arise, this court has power to enter judgment accordingly, even though the plaintiff be content with judgment against one defendant." 63Consistency with James Hardie & Coy Pty Ltd v Seltsam Pty Ltd [1998] HCA 78; (1998) 196 CLR 53 would require, if an identical case were heard in New South Wales today, that the gas company have appealed against the judgment in favour of the mining company (at [20]). However, if that step were taken, it would be open to this Court to make similar orders to those the English Court of Appeal contemplated in Hanson. Hanson provides an example of the court holding it had power on an appeal to make an order that benefits a non-party, because in the situation Goddard LJ was considering the appeal would have resulted in the plaintiff having two sources from which to seek recovery. (No such order was in fact made, because the case against the coal company was not made out.) 64In re Whiston; Whiston v Woolley [1924] 1 Ch 122 concerned the construction of a will of a testator who had twice married, who had had three children by each wife, and survived both wives. His second wife had died intestate, as a consequence of which the testator had inherited certain of her property. His will made specific bequests concerning the property he had inherited on that intestacy. It provided for the specific property to be used to pay certain pecuniary legacies to the three children of his first wife, and the residue of the specific property to be given to the three children of the second wife, who were named. His will left the residue of his estate on trust for his six children equally, by name. At the time of the will one of the sons of the testator's second marriage, Philip, had been killed in the War, but the testator refused to believe that he was dead. Eve J held, at first instance, that the one-third share of the specific property that had been given to Philip lapsed and fell into general residue, and that the whole residue passed to the five children who survived the testator. The two surviving children of the second marriage appealed against the decision that the one-third share of the specific property lapsed and fell into general residue. They argued that it had not lapsed, and should be divided amongst the two surviving children of the second marriage. 65In substance, the Court of Appeal held that Eve J had been right in holding that the surviving two children of the second marriage did not receive the lapsed share of the specific property, but that he had been wrong in holding that the general residue of the testator's estate was divisible between the five surviving children. That had the consequence that, insofar as Eve J had held that the one-third of the specific property that lapsed was divisible amongst the five living children, it was incorrect. Instead, it should have been declared that in regard to one-sixth of that one-third there had been an intestacy. Warrington LJ noted, at 131, that the declaration that Eve J had made concerning the residue was incorrect, and that there was no appeal from that declaration. He said, at 132, that although the declaration concerning the residue "has not been appealed from I do not think we ought to allow the order to go without amendment". At 133, he proposed the order that the Court ultimately made, which included a declaration: "... in the events which have happened the one-sixth share of Philip in the testator's residuary real and personal estate (including his one-sixth of the one-third of the property of the testator's late wife which fell into residue as above mentioned) was in the events which happened undisposed of and passes as to the real estate to the testator's heir at law and as to the personal estate to the testator's next of kin." 66Sargant LJ, at 134, raised a suggestion that was ultimately adopted in the orders of the Court: "... although the specific gift of the wife's property deals only with the personal estate, I notice in the affidavit that the testator's residue, apart from the lapsed share of the specific property, does comprise a considerable amount of real estate. Therefore there will, with regard to that, be a difference caused by our decision from the effect produced by Eve J's decision. I see that there is no appeal by the heir at law, who was the person really prejudiced, against a decision which deprived him of his special rights in the real estate, but I suggest the proper way would be that we should give leave to the heir at law to appeal, notwithstanding that the time may have elapsed." 67He continued, at 134-135: "I remember one or two cases where beneficiaries under a trust who were on the same footing had a decision given against them, and there was an appeal to this Court only by one or two of the beneficiaries, and not by all, and the Court having put a construction on the trusts of the will on that appeal which was favourable to those beneficiaries, went on to say that although the other beneficiaries had not appealed, it must necessarily follow from the construction put by the Court on the trusts that they would, in the result, get the benefit of the appeal, although they had not run the risk of the appeal." 68One can see why the court granted leave to the heir at law, rather than simply modifying Eve J's declaration concerning the residue. The appeal of the two surviving children on the second marriage failed, and no amendment of any declaration of the primary judge was necessary to give effect to their decision that the appeal should be dismissed. It is the situation referred to in Sargant LJ's remarks that I have set out at [67] above that it provides the analogy with the present case. 69Chappuis v Filo (1990) 19 NSWLR 490 arose when a pharmacist contracted to sell the goodwill and other assets associated with the professional side of his pharmacy business to another pharmacist, and to sell the goodwill and assets associated with the non-professional part of his business to a non-pharmacist. The purchasers did not complete the contract. The vendor obtained judgment against each of them. The pharmacist purchaser appealed, but the other purchaser did not. The other purchaser was named as second respondent to the appeal, but was not served, and there was no reason to believe that he knew of the appeal. Priestley and Handley JJA held that the contract did not contravene the provision of the Pharmacy Act 1964 which prohibited a person who was not a pharmacist from having a pecuniary interest in the business of a pharmacist. However, they held that the judge had been mistaken in the construction of the provision of the contract that required each purchaser to pay for stock. They held that the contract with the pharmacist purchaser required him to pay for the stock of the professional side of the business, while the contract with the non-pharmacist required him to pay for the stock of the non-professional side of the business. 70Priestley and Handley JJA said, at 511-512: "Earlier we referred to the fact that this Court had proceeded to hear this appeal without having been satisfied that the second respondent had received any or sufficient notice of the existence of the appeal and the date fixed for the hearing. The result, so far as the second respondent is concerned, has been that his liability to the vendor will be reduced by $13,600 plus judgment interest. However he has also been deprived of his right of contribution from the appellant which as between the two purchasers would have left him ultimately responsible for only half of the judgment entered by the trial judge. Since the second respondent elected not to appeal against the several judgment against him for $57,500 there is no reason why this Court should not exercise its powers under the Supreme Court Rules 1970, Pt 51, r 15, to vary the judgment against the second respondent to reflect the variation in the judgment against the appellant so as to leave in existence a final judgment against the second respondent for the reduced amount. If the procedure adopted by the Court has unwittingly deprived the second respondent of his right to be heard, without any fault on his part, and if he has been prejudiced by these orders he would have the right to apply to have these orders, which so far as he was concerned were pronounced ex parte, set aside: see Taylor v Taylor (1979) 143 CLR 1." 71Kirby P dissented in the result. He would have held that the contractual arrangements contravened the Pharmacy Act, and would have dismissed the vendor's action. He also would have made orders to that effect, notwithstanding the absence of the second respondent. He said, at 492: "The orders which I propose can only benefit the second respondent. Accordingly, notwithstanding the care which must be taken in making orders against an absent party unaware of a change in the formulation of the case, I consider that it is safe and just to proceed to my orders: cf Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 64 ALJR 244." 72The same conclusion about the jurisdiction of this Court to make a costs order that benefits a non-party can be reached by another route. Section 75A(6) Supreme Court Act confers on the Court of Appeal all the powers of the court from which the appeal is brought. The court at first instance had the powers conferred by s 98 Civil Procedure Act 2005: "(1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. .... (3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings." That includes power to decide how the costs should be borne as between any of the parties to the first instance proceedings (or, indeed, against non-parties). 73For these reasons, I would reject the submission that this Court lacks the jurisdiction to make costs orders that confer a benefit on non-parties to an appeal. Decision Re Costs at First Instance 74Thus, I return to consider the order concerning costs at first instance on the basis that there is no jurisdictional obstacle to the court making a costs order that incidentally confers a benefit on a non-appellant. 75I accept that the success of Mr Holmes has the consequence that the order for all the continuing defendants to be jointly and severally liable for the costs of first trial should not stand. So far as the three non-appealing defendants (including Mr Atkinson) are concerned it should be replaced by a per-defendant costs order of the type that Mr Epstein seeks. 76There has been no challenge to the correctness of the principle that the primary judge applied, that any costs which the plaintiff had already recovered by way of settlement inclusive of costs should be subtracted from the costs that otherwise would be assessed as being recoverable against the defendants. That principle should be reflected in the drafting of the per-defendant costs order. 77I have concluded that, subject to that per-defendant order, and the order I propose concerning the costs of the Notice of Motion seeking the striking out, the costs of the first trial should be in the discretion of the judge who hears the remitted trial. 78It would not be appropriate, in the present case, to make the order that is frequently made when a new trial is ordered, that the costs of the first trial follow the event in the new trial. That is because there are some issues that were litigated at the first trial, concerning whether individual defendants had paid punctually, on which the Appellants lost, which will not be re-litigated at the second trial. 79Mr Bevan submits that an additional respect in which the scope of issues at the remitted hearing will not be the same as the scope of issues at the first trial is that the primary judge did not decide whether any of the amended pleadings should have been disallowed on the basis that they raised causes of action statute barred under a limitation provision. The orders of 16 March 2010 had raised the possibility that that might provide a basis upon which ARF argued that the amendment should not be allowed - [5] above. I would not be prepared to either adopt or reject that as an additional reason for this Court leaving it to the remitted hearing to decide how the costs of the first trial should be borne. That is because there has been no investigation on the appeal of the circumstances in which the primary judge did not deal with the question of whether the proposed amendments should be disallowed on the basis that they were statute barred. If it were correct that the amended pleadings raised statute barred causes of action, that might have provided a reason why the primary judge's striking out of the estoppel and Contracts Review Act defences was correct. No such argument was raised in this appeal by a Notice of Contention. It is at least a possibility that it is now too late to raise any such argument. Whether that is so should be decided by a judge before whom the issue has been properly litigated. 80Further, the outcome of the remitted issues might themselves bear upon the proper order that should be made concerning the first hearing. For example, if the Appellants were to succeed in an expanded Contracts Review Act defence, that might give rise to an argument of the type Mr Epstein now puts forward, that the costs of the first trial, insofar as they related to the narrower Contracts Review Act defence there litigated, were wasted by the fault of the Respondents. Returning to Costs of the Notice of Motion 81In light of that discussion, I return to the costs order that should be made concerning the non-appealing defendants and the notice of motion. In circumstances where they have irretrievably failed in the action, the effect of the principle that all defendants should have fifty percent of the costs of the notice of motion as their costs in the course, and that ARF should have fifty percent of the cost of the notice of motion as its costs in the cause is that the non-continuing defendants should pay 50% ARF's cost of that motion. Further, there should be a per-defendant costs order, of the type that Mr Epstein seeks, in relation to those costs. 82The costs of Mr Holmes concerning the Notice of Motion should likewise be identified by a per-defendant costs order, entitling him to be paid, now, fifty percent of one-twelfth of the total costs incurred by the defendants concerning that notice of motion.

Costs of the Appeal 83The orders that the Court has already made dispose of the costs of the cross-appeal. Costs of the Appeal 84At [369] in the 2012 Appeal Judgment I said: "Without the benefit of submissions, my preliminary impression is that the Appellants should receive an order for the costs concerning the appeal that have not been disposed of by orders already made, but not the whole of those costs. The postal rule submissions were not the dominant issue in the appeal, but they were a separable issue, on which the Appellants lost: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296; Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373. My present impression is that the Appellants ought receive something in excess of 25% of the costs that have not already been disposed of by orders already made. In putting it that way I am not seeking to foreclose the possibility that the Appellants receive considerably more than 25%." 85It is not accurate to characterise those remarks, as Mr Bevan did, as a "preliminary opinion ... that the appropriate proportion of appeal costs ARF and OAL should bear is 25%". 86Mr Bevan submits that the appropriate order for costs of the appeal is for the Respondents to pay twenty-five percent of the costs of the appeal, subject to some conditions that I will mention later. Mr Epstein submits that there are differences in the individual positions of various Appellants that should be reflected in the costs orders. Contrary to my preliminary impression, I accept that submission, and turn to consider the different positions in which certain of the Appellants find themselves concerning the cost of the appeal. Mr Holmes' Costs of the Appeal 87Mr Epstein submits that Mr Holmes should have an order covering the entirety of the costs of his application for leave to appeal and his appeal. Mr Bevan submits that, on the basis that the time and effort involved in the separate issue on which Mr Holmes succeeded was very small, the order for the costs of the appeal that is made in his favour should not differ from the order that is made concerning the costs of the appeal of any other Appellant. 88The issues in the appeal that were relevant to Mr Holmes were the construction of the consent orders (on which he succeeded) whether his allegation of punctual payment should not have been struck out because of the alleged "postal rule" (on which he failed), whether his allegation of punctual payment succeeded on the facts (on which he succeeded), whether the judge applied the wrong onus of proof concerning whether there had been punctual payment (on which he failed) and whether it was open to him to argue the portion of his Contracts Review Act defence that was struck out (on which he succeeded, but which will ultimately be irrelevant). The issues concerning which he failed were two of three separate arguments for the conclusion that he had paid punctually. He succeeded in establishing that conclusion. 89While the "postal rule" question on which he failed was a separable question, and was an important question in the appeal, its importance was not so great as to make it a dominant issue. The usual principle that costs follow the event is sometimes qualified where the otherwise successful party has failed on matters that were either the dominant issue, or were clearly separable. In the present case, his failure concerning one argument for a conclusion on which he succeeded should not result in any reduction in the costs of the appeal to which he is entitled. 90However, account must be taken of the fact that Mr Holmes was commonly represented concerning issues other than those arising concerning the facts of his individual payment. The appropriate way of providing an indemnity to him for his costs, that does not confer a windfall benefit on the other Appellants, is to make an order that he is entitled severally to receive one-ninth of the total costs of the Appellants of the appeal. The costs likely to have been incurred on the issue of whether Mr Holmes paid promptly are likely to be so small, in the overall context of the litigation, that there is no justification for making any separate provision for them. Mr Wardle's Costs of the Appeal 91Mr Wardle did not raise a "postal rule" defence, though all the other Appellants raised such a defence: 2012 Appeal Judgment at [234]. Mr Epstein submits that, thus, Mr Wardle has been in substance totally successful on the appeal, and should receive an order for his costs of the appeal. He recognises that Mr Wardle did not succeed concerning two grounds of appeal. They were the ground relating to whether the primary judge was mistaken in rejecting certain evidence in support of the Contracts Review Act claim, and the ground relating to who bore the onus of proof that payments under the loan agreement had been made punctually. He submits that, so far as Mr Wardle was concerned, those issues were irrelevant to the outcome of the appeal - there would still need to be a retrial, regardless of the decision concerning those issues. I accept that submission. As well, those issues were comparatively minor ones in the overall context of the appeal. I accept that Mr Wardle should receive his costs of the appeal. However, like Mr Holmes, the order should recognise that he was commonly represented. Mr Wardle should be entitled severally to receive one-ninth of the total costs of the Appellants of the appeal. Other Appellants' Costs of the Appeal 92Concerning the Appellants other than Mr Holmes and Mr Wardle, Mr Epstein submits that only a small reduction in their costs should be made. He acknowledges that a substantial part of the argument on the appeal was directed to the consideration of the "postal rule", but submits that that was simply a consequence of the successful grounds of the appeal "being so manifestly clear as to make any extensive argument over them unnecessary". 93Mr Bevan seeks to justify the twenty-five percent figure by reference to an analysis of the time taken in argument of a particular issue. The submissions do not provide a full analysis on this basis, but in any event a decision about what is the just order concerning the costs of an appeal could not depend upon as mechanical a process as this: Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256 at [84]. Further, the proportion of the total time that has been spent arguing a particular issue on the hearing of an appeal is not necessarily reflective of the proportionate costs attributable to that issue when one factors in the work involved in preparation for the hearing. 94In my view, it is highly desirable to make an order that deals with the costs of the appeal on as simple a basis as possible. Balancing the issues on which the Appellants other than Mr Holmes and Mr Wardle succeeded and to those on which they failed, in my view they should receive thirty-five percent of their costs of the appeal. 95However, that order should recognise that those Appellants were commonly represented with Mr Holmes and Mr Wardle concerning all issues except that of whether Mr Holmes paid promptly. The different measures of success of Mr Holmes, Mr Wardle and the other Appellants makes it appropriate for the costs orders to reflect those different measures of success. Each Appellant other than Mr Holmes and Mr Wardle should be severally entitled to be paid thirty five percent of one-ninth of the costs of the Appellants of the appeal. Respondent's Proposed Conditions on Appeal Costs Order 96Mr Bevan submits that the costs order made in favour of all Appellants except Mr Holmes should not be assessed before the determination of the questions that have been remitted to the Supreme Court for further hearing. He reminds us that Uniform Civil Procedure Rule 42.7 provides: "(1) Unless the court orders otherwise, the costs of any application or other step in any proceedings, including: (a) costs that are reserved, and (b) costs in respect of any such application or step in respect of which no order as to costs is made, are to be paid and otherwise dealt with in the same way as the general costs of the proceedings. (2) Unless the court orders otherwise, costs referred to in subrule (1) do not become payable until the conclusion of the proceedings." 97Mr Bevan also reminds us that Metropolitan Petar at [49] held that the provisions of UCPR 42.7 apply concerning the costs of an appeal. In Metropolitan Petar, the consequence was that the costs of an appeal from a decision concerning an interlocutory injunction were themselves interlocutory, and thus not payable until the conclusion of the proceedings unless the court otherwise ordered. 98In the present case, the appeal was in part from the interlocutory decisions in the Strike Out Judgment, but also from the final orders made at the trial. However, insofar as it was an appeal from the interlocutory decision, it was the sort of appeal that could be brought as of right as part of an appeal from final orders, where an interlocutory order has affected the final result: Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 at [6], 483; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [78]. While seven of the Appellants sought and obtained leave to appeal, (2012 Appeal Judgment at [6], [15]) their need to obtain leave to appeal arose from the judgments against them being for less than $100,000, not because the decision appealed against was interlocutory: Supreme Court Act sub-ss 101(2)(e) and (r). The orders against which they were appealing included orders that each of them pay money, which were clearly final orders. The appeal in the present case, unlike the appeal in Metropolitan Petar, was not itself an interlocutory proceeding. 99Mr Bevan is correct in submitting that the substantive merits of the defences and cross-claims have not yet been determined. However, there have still been costs incurred in the appeal, regardless of the outcome at the remitted hearing. For that reason I would not make any order requiring the costs of the appeal not to be assessed until the determination of the remitted questions. Nor would I make the lesser order that the costs of the appeal not be payable until the determination of the remitted questions. An additional reason for not making those orders is that Mr Holmes is entitled to receive the costs to which he is entitled as soon as their quantum is ascertained. The type of order to which he is entitled requires the costs of the Appellants as a whole to be quantified without waiting for the outcome of the remitted hearing. Other Orders 100ARF and OAL seek a certificate under the Suitors Fund Act 1951 concerning any costs of the appeal that they are ordered to pay. It is appropriate that such a certificate be given. Mr Epstein submits that, in addition to the orders that this Court has already made, there should be an order setting aside the orders in the court below that dismissed the cross-claim of each Appellant. That order should be made. 101The 2012 Appeal Judgment related to an appeal brought by Mr Wardle and Mr Long, and seven separate applications for leave to appeal. The 2012 Appeal Judgment said at [15] that leave to appeal should be granted to each Applicant, and both that judgment and this judgment proceeded as though the Applicants were already Appellants. However, the formal order granting leave to appeal was not made. It should be made now. 102The orders that were made at the time of delivering the 2012 Appeal Judgment proceeded on the basis that each Applicant for leave to appeal was already an Appellant. To give effect to the intent of those orders, the orders granting leave to appeal should be accompanied by a nunc pro tunc order adding each Applicant for leave to appeal as an Appellant in the appeal, with effect from the institution of the appeal. That will have the effect that costs incurred in connection with any application for leave to appeal will be treated as costs of the appeal. The costs orders proposed at the end of this judgment should be understood on that basis.

Restitution 103Some, but not all, of the Appellants have paid the judgment debts. They seek restitution of the payments that they have made, with interest. As noted in the 2012 Appeal Judgment at [366], Mr Epstein does not seek interest on any judgment amount concerning which restitution is sought at any higher rate than the usual rate of pre-judgment interest. 104There is no dispute that ARF should give restitution to Mr Holmes promptly. Five other Appellants (Mr Fredericksen, Mr Gianuzzi, Mr Rowe, Ms Russo and Mrs Wallace) have paid their judgment debts, and seek restitution. Mr Bevan submits that any order for restitution should be conditional upon the grounds of defence and claims for relief in the cross-claims being determined in their favour, and judgment being given in favour of those Appellants on the summons and their cross-claims. 105I do not accept that it is appropriate for restitution to be made conditional in that fashion. Orders for restitution, made by an appellate court where the judgment below has been set aside, is a matter of right, not discretion: Woolworths v Strong (No 2) [2011] NSWCA 72 at [25] and cases there cited, in particular Commonwealth v McCormack (1984) 155 CLR 273 at 276. It is unnecessary to consider whether there was a basis for the Court to make a discretionary decision to make restitution conditional upon the outcome of the remitted hearing. 106Mr Bevan submits that, unlike most situations where restitution is ordered, here the Appellants owe ARF the money that they borrowed, and by their defences and cross-claims seek to transfer that liability to OAL. I leave to one side whether, if that were so, it would provide a valid ground for refusing an order for restitution, which has been said to arise as a matter of right whenever a judgment that has been paid is set aside. Mr Bevan's characterisation of the present legal situation is inaccurate. It follows from clause 7 of the Loan Agreement (2012 Appeal Judgment at [32]) that if the Indemnity Agreement is enforceable, a Borrower does not owe the money at all. 107Mr Bevan's draft orders proposed that restitution be given "together with interest accrued and calculated as from the date of such payment on their judgment debts at the rate specified from time to time in the Uniform Civil Procedure [Rules] for the purposes of [section] 101 of the Civil Procedure Act". Section 101 Civil Procedure Act provides for the payment of post-judgment interest. UCPR 36.7 prescribes a rate for such interest. It is s 100 Civil Procedure Act that provides for pre-judgment interest. Further, there is no rule in the UCPR that fixes a rate for pre-judgment interest. That rate remains a matter of discretion, though the discretion can take into account the usual practice identified, since 1 July 2010, by Practice Note SC Gen 16. Comparison of UCPR 36.7 and the Practice Note shows that the usual rate of pre-judgment interest is two percent per annum lower than the rate of post-judgment interest. Thus Mr Bevan's draft would not give effect to Mr Epstein's concession about the rate of interest that was appropriate on amounts concerning which restitution was ordered. 108There is no occasion in the present case to order a rate of interest that is different to that identified by the Practice Note. It is desirable to make explicit that the rate of interest that is ordered runs to the date of entry of judgment, as once judgment is entered the higher rate of interest that is payable under s 101 Civil Procedure Act will start to run. 109A special arrangement has been made concerning payment by Mr Wardle of the judgment debt that he owed in accordance with the orders made below. Pursuant to that arrangement a sum of money is presently held in an account with St George Bank. The parties have agreed about the order that should be made concerning that sum of money. Their agreement provided for the money in that account to be paid in different ways depending on, inter alia, whether ARF succeeded in obtaining special leave to appeal to the High Court against the 2012 Appeal Judgment. Since that agreement was reached, the High Court has refused the special leave to appeal: Agricultural and Rural Finance Pty Ltd v Wardel [2012] HCA Trans 256 (5 October 2012). An order shall be made in accordance with their agreement, modified to take account of the fact that the High Court has now rejected the application for special leave.

Orders 110I propose the following orders: In addition to the orders made on 26 April 2012, the Court orders that: In each of the appeal (2011/236264) and each of the applications for leave to appeal and cross appeal (2003/92819) (1) Grant leave to appeal to each of Mr Brakatselos, Mr Fredericksen, Mr Holmes, Mr Rowe, Ms Russo, Mrs Wallace and Mr Gianuzzi. (2) Order, nunc pro tunc, that each such person be added as an Appellant in appeal 2011/236264 as from 21 July 2011, to the intent that orders made and costs incurred in connection with any such application for leave to appeal will be treated as orders made in the appeal and costs of the appeal. In the appeal (2011/236264) (3) The orders made by Einstein J on 29 April 2010 be set aside insofar as - (i) they struck out the following parts of the pleadings: (a) Brakatselos' Defence, sub-para 29(ba) (i)-(ix) and (xviii)(aa); (b) Federicksen's Defence, sub-para 27(ba) (i)-(ix) and (xviii)(aa); (c) Rowe's Defence, sub-para 26(ba) (i)-(ix) and (xviii)(aa); (d) Russo's Defence, sub-para 27(ba) (i)-(ix) and (xviii)(aa); (e) Wardle's Defence, paras 27-32 and sub-para 33(ba) (i)-(ix) and (xviii)(aa); (f) Wallace's Defence, sub-para 27(ba) (i)-(ix) and (xviii)(aa) (g) Giannuzzi's Defence, paras 24, 25, 28-33 and sub-para 34(ba) (i)-(ix) and (xviii)(aa); (h) Long's Defence, sub-para 34(ba) (i)-(ix) and (xviii)(aa); and (ii) they made the costs order in clause 3 of those orders (4) In lieu of the order referred to in Order 3(ii) above, order (a) Mr Atkinson, Ms Michael and Ms Spyrakis jointly and severally to pay three-twelfths of 50% of the costs of the Respondents of the notice of motion to which the orders of 29 April 2010 relate ("the strike out motion") (b) The Respondents pay to Mr Holmes one-twelfth of 50% of the costs of the defendants listed in Schedule B of those orders ("the Continuing Defendants") of the strike out motion (c) Each Appellant other than Mr Holmes have as his or her respective costs in the cause one-twelfth of 50% of the costs of the Continuing Defendants of the strike out motion. (d) The Respondents have as its costs in the cause 50% of its costs of the strike out motion, excluding the costs to which Order 4(a) above relates. (5) The order made at first instance on 9 June 2011, dismissing the Appellants' cross-claims, be set aside. (6) Set aside the orders for costs made by paras 3 and 4 of the orders of Einstein J made on 9 June 2011, and in lieu thereof order: (3) Subject to order 6 of the orders made on 9 June 2011, Mr Atkinson, Ms Michael and Ms Spyrakis to pay (i) Severally, such of the costs of Agricultural and Rural Finance Pty Ltd as are attributable, respectively, to him or her severally (ii) Jointly and severally, three-twelfths of the costs of Agricultural and Rural Finance Pty Ltd as are properly attributable to the Continuing Defendants jointly, minus any costs that it has already recovered by way of settlement with other defendants inclusive of costs. (4) Mr Atkinson, Ms Michael and Ms Spyrakis to pay: i. Severally, such of the cost of Oceania Agriculture Pty Ltd of the cross claims as are attributable, respectively, to him or her severally. ii Jointly and severally, three-twelfths of the costs of Oceania Agriculture Pty Ltd as are properly attributable to the Continuing Defendants jointly. (7) Subject to costs orders already made, order the Respondents to pay to Mr Holmes one-ninth of the total costs of the Appellants of the appeal. (8) Subject to orders as to costs already made, reserve to the judge who decides the remitted hearing the question of how the costs of the first trial should be borne. (9) ARF and the First Appellant, David James Wardle, shall do all things necessary to cause the joint trust account held with St George Bank, being Power Saver Account No. XXX XXX XXX to be closed and for the entire proceeds of that account to be paid to David James Wardle pursuant to the terms of the orders of the Supreme Court of New South Wales made on 18 July 2011 for Mr Wardle to secure the judgment debt entered against him on 9 June 2010 as a term of the stay of execution of the judgment debt granted by that Court pending the determination of his appeal in this Court. (10) The First Respondent repay $36,271.77 to Mr Fredericksen, together with interest at the rate of 8.75% per annum from 7 July 2011 to 31 December 2011 (being $1,534.86); and at the rate of 8.25% per annum from 1 January 2012 to 30 June 2012 and thereafter at the rate of 7.50% per annum to the date of entry of judgment. (11) The First Respondent repay $40,061.57 to Mr Holmes, together with interest at the rate of 8.75% per annum from 7 July 2011 to 31 December 2011 (being $1,695.23); and at the rate of 8.25% per annum from 1 January 2012 to 30 June 2012 and thereafter at the rate of 7.50% per annum to the date of entry of judgment. (12) The First Respondent repay $80,123.14 to Mr Rowe together with interest at the rate of 8.75% per annum from 7 July 2011 to 31 December 2011 (being $3,390.46); and at the rate of 8.25% per annum from 1 January 2012 to 30 June 2012 and thereafter at the rate of 7.50% per annum to the date of entry of judgment. (13) The First Respondent repay $80,123.14 to Ms Russo, together with interest at the rate of 8.75% per annum from 7 July 2011 to 31 December 2011 (being $3,390.46); and at the rate of 8.25% per annum from 1 January 2012 to 30 June 2012 and thereafter at the rate of 7.50% per annum to the date of entry of judgment. (14) The First Respondent repay $31,958.80 to Mrs Wallace, together with interest at the rate of 8.75% per annum from 7 July 2011 to 31 December 2011 being $1,352.35); and at the rate of 8.25% per annum from 1 January 2012 to 30 June 2012 and thereafter at the rate of 7.50% per annum to the date of entry of judgment. (15) The First Respondent repay $100,809.81 to Mr Giannuzzi, together with interest at the rate of 8.75% per annum from 7 July 2011 to 31 December 2011 being $4,265.82); and at the rate of 8.25% per annum from 1 January 2012 to 30 June 2012 and thereafter at the rate of 7.50% per annum to the date of entry of judgment. (16) The Respondents to have a certificate under the Suitors Fund Act 1951, if qualified, concerning the costs of the appeal. 111BARRETT JA: I agree with Campbell JA. 112SACKVILLE AJA: I agree with Campbell JA.

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