FEDERAL COURT OF AUSTRALIA Equuscorp Pty Ltd v Hopkins [1999] FCA 338 COSTS – costs of the proceedings at first instance - whether appropriate for costs to be apportioned by time spent on particular issues at the hearing – relevance of offers of settlement – costs expended proving facts disputed by Notice Disputing Facts but not disputed at the hearing – whether applicant has obtained relief primarily sought – costs of appeal – costs of submissions as to costs EQUUSCORP PTY LIMITED (formerly called EQUUS FINANCIAL SERVICES LIMITED) (ACN 006 102 344) v ANN HOPKINS NG 656 OF 1998 HILL, R.D. NICHOLSON AND EMMETT JJ 30 MARCH 1999 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 656 OF 1998 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: EQUUSCORP PTY LIMITED (formerly called EQUUS FINANCIAL SERVICES LIMITED) (ACN 006 102 344) Appellant AND: ANN HOPKINS Respondent JUDGES: HILL, R.D. NICHOLSON AND EMMETT JJ DATE OF ORDER: 30 MARCH 1999 WHERE MADE: SYDNEY THE COURT ORDERS THAT: (1) The Appeal be allowed in part. (2) Orders 1 and 2 made by his Honour Justice Foster on 19 June 1998 be set aside and in lieu thereof order, with effect from 19 June 1998: 1. The first to third respondents jointly and severally pay to the applicant: (a) the sum of $118,211.63; (b) the applicant's costs of and incidental to the proceedings. 2. The fourth respondent, jointly and severally with the first to third respondents, pay to the applicant: (a) the sum of $25,690.50; (b) the applicant's costs of and incidental to the proceedings other than the costs of and incidental to the question of whether the fourth respondent engaged in conduct in contravention of the Trade Practices Act 1974 or was involved in any contravention of the Trade Practices Act by the first, second or third respondents. (3) The appellant pay the respondent's costs of and incidental to the preparation of submission in relation to costs and final orders, including supporting evidence. (4) There be no other order as to the costs of the appeal. (5) A costs certificate under section 6 of the Federal Proceedings (Costs) Act 1981 be issued to the respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 656 OF 1998 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: EQUUSCORP PTY LIMITED (formerly called EQUUS FINANCIAL SERVICES LIMITED) (ACN 006 102 344) Appellant AND: ANN HOPKINS Respondent JUDGES: HILL, R.D. NICHOLSON AND EMMETT JJ DATE: 30 MARCH 1999 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 10 December 1998, the Court delivered its reasons for concluding that this appeal should be upheld. However, as indicated in those reasons, Dr Hopkins is nevertheless entitled to recover from Equus the sum of $18,202 and interest, representing the moneys paid by her which were received by Equus. The Court considered, therefore, that it was appropriate to permit the parties to make further submissions concerning costs both of the appeal and before the primary judge. The parties have now filed written submissions supported by affidavits on both sides. 2 Dr Hopkins contends that the Full Court should not interfere with the costs orders made by the primary judge and that there should be no order as to the costs of the appeal, except the costs of and incidental to the preparation of submissions in relation to costs. Dr Hopkins contends that those costs should be borne by Equus on an indemnity basis. Equus, on the other hand, contends that Dr Hopkins should pay the costs of the appeal and that Dr Hopkins should pay Equus's costs of and incidental to the proceedings before the primary judge, except for the costs directly related to the claim by Dr Hopkins for recovery of the sum of $18,202. 3 In support of Dr Hopkins' contentions, an affidavit by her solicitor, Mr P.C.W. Thompson has been filed, deposing to the conduct of the parties concerning negotiations for settlement up to the trial and in relation to the question of costs. The affidavit also deposes to the conduct of the proceedings before the primary judge by Equus. Equus has not disputed the substance of the matters deposed to in that affidavit. 4 Equus also relies on an affidavit sworn by its solicitor, Mr R.B.H Schneider, directed to establishing the relative proportions of the time occupied before the primary judge which should be attributed to various issues in respect of which the parties had differing degrees of success. A further affidavit by Mr Thompson has also been filed disputing certain of the assertions made in the affidavit sworn by Mr Schneider. In so far as there is a dispute as to those matters, it is not appropriate for the dispute to be resolved by the Full Court. They are essentially matters which, if they are relevant, should be resolved by a taxing officer. If there should be differential costs orders in relation to the issues before the primary judge those questions are more appropriately dealt with by a taxing officer. 5 Dr Hopkins claimed damages and other relief arising from her becoming involved in a pine plantation scheme promoted by Seymour known as the Seymour Softwoods No. 3 Trust. In the further amended application filed on 22 May 1997, the first four prayers for relief were for declarations that: (1) Dr Hopkins is not liable to pay principal or interest pursuant to the loan agreement between Dr Hopkins and Berrema ("the Loan Agreement"). (2) Dr Hopkins is not liable to pay rent pursuant to the leases entered into between Dr Hopkins and Sintoff ("the Leases"). (3) Dr Hopkins is entitled to restitution of moneys paid by her to Berrema and Sintoff under the Loan Agreement and the Leases. (4) The Leases are invalid and unenforceable. 6 In addition, Dr Hopkins claimed damages for breach of contract and/or pursuant to section 82 of the Trade Practices Act or alternatively section 1005 of the Corporations Law. In the alternative to the declarations set out above, Dr Hopkins sought orders pursuant to section 87 of the Trade Practices Act or alternatively pursuant to section 1325 of the Corporations Law: (a) Relieving her of any obligation to make further payments of principal or interest pursuant to the Loan Agreement. (b) Relieving her of any obligation to make further payments pursuant to any of the Leases. (c) Declaring each of the works and services contract between Dr Hopkins and Seymour ("the Works and Services Contract"), the management contract between Dr Hopkins and Seymour ("the Management Contract") and the Leases and the Loan Agreement void ab initio. (d) Declaring all of the respondents, including Equus, jointly and severally to pay to her the amount of her loss arising by reason of her investment in the scheme. (e) Directing the repayment to her of moneys paid by her to Berrema and Sintoff under the Loan Agreement and the Leases. 7 Dr Hopkins also sought, in the alternative, orders under the Contracts Review Act 1980 (NSW) and under section 73 of the Trade Practices Act. 8 Finally, Dr Hopkins sought an order that Equus pay to her: "The sum of $18,202 received by it from [Dr Hopkins] between 24 November 1993 and 15 August 1995 together with interest thereon." That was the only relief sought specifically against Equus. In its defence, Equus denied that Dr Hopkins was entitled to any of the relief claimed by her in the amended application or any relief as against Equus. 9 At the time of commencement of the proceedings, the first three respondents, Seymour, Sintoff and Berrema, were insolvent. At all times during the conduct of the proceedings, Equus and the first three respondents were jointly represented. A notice of change of solicitor was filed on behalf of Seymour, Sintoff and Berrema on 10 July 1997. However, thereafter, Seymour, Sintoff, Berrema and Equus retained the same counsel to appear. There is no evidence that any different approach was taken by Equus to the defence of Dr Hopkins claims after the change of solicitor. 10 Equus was in fact joined as a respondent to the proceedings on its own application made by a notice of motion filed on 2 April 1996. The order joining Equus was made by consent on 21 June 1996. The application was supported by an affidavit of Nicola Russo sworn 11 May 1996. In that affidavit, Mr Rosso deposed to Equus having entered into a deed of assignment with Berrema under which Berrema assigned to Equus all of the debts owed to Berrema under loan contracts in relation to the pine plantation scheme including the Loan Agreement. The affidavit asserted that the debts assigned to Equus by Berrema: "Included the sum of $51,750 lent by [Berrema] to [Dr Hopkins] pursuant to [Loan Agreement] together with interest on that sum payable under the [Loan Agreement], which as at 12 January 1996 was $3,628.78." The affidavit went on to say that if Equus is joined as a respondent in the proceedings, Equus would file a cross claim seeking an order for payment by Dr Hopkins to Equus of the amounts due by Dr Hopkins under the Loan Agreement. Such a cross claim was in fact filed. 11 The primary judge made the following declarations: (1) [Dr Hopkins] is not liable to pay principal or interest pursuant to the [Loan Agreement]. (2) [Dr Hopkins] is not liable to pay any rent pursuant to any of [the Leases]. (3) [Dr Hopkins] is entitled to restitution of moneys paid by her to [Sintoff] under [the Leases] and to [Berrema] under the Loan Agreement. (4) The [Leases] are invalid and unenforceable. (5) [Seymour, Sintoff, Berrema and Equus] are jointly and severally liable in respect of damages and losses caused to [Dr Hopkins] by contravention of the Trade Practices Act 1974. (6) [The Works and Services Contract, the Management Contract, the Leases and the Loan Agreement] are void ab initio. 12 The primary judge also made orders that the: (1) respondents jointly and severally pay to Dr Hopkins the sum of $118,211.63. (2) respondents pay Dr Hopkins costs of and incidental to the proceedings. (3) cross claim of Equus be dismissed with costs. 13 In its notice of appeal, Equus appealed from the whole of the judgment of the primary judge: "So far as it relates to the claims made against [Equus] under the Trade Practices Act 1974 and for moneys had and received…" 14 Notwithstanding the terms of the notice of appeal, on the hearing of the appeal, Equus did not seek to maintain any of the grounds directed to the primary judge's findings that Dr Hopkins was entitled to have refunded by Equus the sum of $18,202 which Equus admitted receiving. In substance, the appeal was concerned only with the question of whether or not Equus was involved in the misleading conduct on the part of Seymour and its associates as the primary judge had found. 15 Mr Schneider said, in his affidavit, that he estimates that between one-third and one-half of the total hearing time was taken up by Dr Hopkins claim that Equus either engaged in conduct in contravention of the Trade Practices Act or was relevantly a party to the misleading conduct within the meaning of section 75B of the Trade Practices Act. Mr Thompson, on the other hand, disputed that estimate and said that he estimated that no more than 2½ hours of the hearing was spent on the issue of Equus's knowledge of the misrepresentations. While he agreed with Mr Schneider's estimate of the proportion of supplementary written submissions which related to the claim made by Dr Hopkins against Equus, being 8 to 15 pages, the written submissions dealt with issues which were disputed by Equus at the hearing and found in favour of Dr Hopkins and were not challenged on the appeal. A dispute of that nature indicates the impracticability of the Full Court to determineing the apportionment of costs on the basis of time. The best that the Full Court can do is to apportion costs according to issues. 16 In relation to the costs of the hearing before the primary judge of the issues as to the involvement of Equus in the conduct of Seymour in contravention of the Trade Practices Act, Dr Hopkins relies on the attitude of Equus to the question of possible settlement of the proceedings. It is necessary, therefore to recount some of the communications between the parties in so far as they related to attempts at settlement. 17 On 13 December 1995, Equus sent to Mr Thompson a loan schedule "for Dr Hopkins account". The letter stated that to remedy the current default, Equus required payment of $3,011.26 on or before Thursday, 21 December 1995. The letter made the threat that failure to pay that amount or to contact Equus to arrange a mutually agreeable repayment plan would result in the file being placed "in the hands of our solicitors for recovery action". 18 On 12 January 1996 Mr Thompson received a telephone call from Mr Moreton of Equus. Mr Moreton asked whether Dr Hopkins was going to pay the account and asked what was the problem. Mr Moreton was told that if Equus's claim was based on the Berrema loan, it would have problems because there had been a complete failure by Seymour to fulfil its obligations under the arrangements. Mr Moreton said that he was used to solicitors advising clients not to pay moneys and raising defences under the Trade Practices Act and that he would deal with that and that that did not cause him any concern at all. 19 Also on 12 January 1996, Equus dispatched a notice of demand to Dr Hopkins, saying that she had: "made default in her obligation under a loan contract dated the 18th day of November 1991 with Berrema Finance Pty Ltd… which has been assigned to Equus Financial Services Ltd…" The demand required payment of the sum of $65,378.78 within 7 days "pursuant to the contract". 20 On 19 January 1996, Mr Thompson wrote to Equus referring to the "Notice of Demand" and denying that Dr Hopkins was indebted to Equus in the amount claimed. The letter said that Dr Hopkins had been advised that the contracts entered into in relation to the pine plantation investment were invalid, void and unenforceable against her and that she had commenced proceedings in the Federal Court of Australia "to seek appropriate orders to that effect and damages for the loss sustained by her as a result of entering into that investment". The proceedings were commenced on the same day. 21 On 24 January 1996, Mr Thompson wrote to the then solicitors for Equus, enclosing by way of service the application and statement of claim. The letter said: "Given the issues raised in these proceedings and the matters we discussed on the telephone, I am happy to discuss with you further how best the issues between our respective clients can be dealt with and hopefully resolved." 22 The response was a letter of 25 January 1996 saying that Equus did not accept that Dr Hopkins was entitled to rely upon any statutory provision for the purpose of avoiding the loan agreement. That was a reference to a notice given on behalf of Dr Hopkins under section 1073(2) of the Corporations Law purporting to declare the agreements in question, including the Loan Agreement unenforceable. 23 On 1 February 1996, Equus's then solicitors wrote to Mr Thompson asserting that the proceedings which had been commenced were "flawed" by reason of the fact that Dr Hopkins should also have sought relief against Equus as the assignee from Berrema. The letter invited the filing and service of an amended application and statement of claim. 24 On 2 February 1996, a further conversation took place between Mr Thompson and Mr Alan Herskope, who was then acting for Equus. Mr Herskope reiterated Equus's position that it should be joined as a party to the proceedings. Mr Thompson said that if Dr Hopkins was successful it would cost Equus millions of dollars. Mr Herskope said that he did not think there were sufficient debtors of Berrema to make it so much but that his client was sufficiently concerned about it to give him instructions to brief Queen's counsel. Mr Herskope said he did not have any sympathy for any "schmuck" who invested in the scheme because they were all "greedy people who had a tax problem and that's why they went into the scheme". Mr Thompson said that his client was concerned that the scheme had completely collapsed and that Equus was "trying to screw even more out of people to recoup their losses under the scheme against poor individual investors". Mr Herskope said that Dr Hopkins had better have a lot of money because he was going to make sure that she needs it. 25 On 15 February 1996, Mr Thompson wrote again to Mr Herskope indicating that Dr Hopkins had recently received information which suggested that moneys purportedly advanced by Berrema under the Loan Agreement may not have been advanced at all. He said that that called further into question the existence of the debt. There was no response to that letter. 26 On 7 March 1996, Mr Schneider wrote to Mr Thompson indicating that he was now acting for the respondents. A notice of appearance was enclosed. The proceeding was listed for first directions on 8 March 1996 when Mr Schneider appeared for the then respondents. On that occasion, Mr Schneider indicated that he was also instructed by Equus and that Equus would file a notice of motion for joinder. A notice of motion was sent to Mr Thompson on 3 April 1996. 27 On 4 April 1996, Mr Thompson had a telephone conversation with Mr Schneider where when the question of settlement was raised. Mr Thompson said that the proceedings had been commenced as a defensive action to protect Dr Hopkins in respect of the demands made against her by Equus. He asked Mr Schneider whether there was any prospect of discussing the claim and resolving it earlier rather than later, given that substantial legal costs were now going to be incurred. Mr Thompson said that Dr Hopkins had paid some amounts of money by way of interest which she would be claiming back in the proceedings but that, practically, she was resigned to the fact that she probably would not see that money again. However, he said that under no circumstances was she going to pay any ongoing moneys to Equus or to Berrema. He said that if Equus or Berrema were prepared to give Dr Hopkins releases from the claims so that she would not have any future liability, Mr Thompson believed she would be prepared to discontinue the proceedings. 28 Mr Schneider responded that he did not have any instructions but that from a personal point of view he was always interested in looking at settlement. He said he would talk to his client about settlement on the basis of the parties paying their own costs. Mr Thompson said that, while he did not have any instructions, that could be "the way it could be done". Mr Schneider said that he would get back to Mr Thompson. On 24 April 1996, a further discussion took place. Mr Schneider said that he had been instructed to indicate that there was no prospect of resolving the proceeding and that his instructions are "to proceed right through". 29 Interlocutory steps for the preparation of the proceedings continued thereafter. On 16 October 1996, following a discussion of issues concerning settlement, Mr Thompson raised again with Mr Schneider the possibility of settlement. Mr Thompson said that the proceedings had now reached a stage where Dr Hopkins was starting to spend large amounts of money and that, while his instructions were to prosecute the proceedings, and Dr Hopkins would do so, it seemed to Mr Thompson that it was sensible for Equus to consider settling the proceedings on the basis of "walking away" from Dr Hopkins and "perhaps paying a little amount towards costs". Mr Schneider said he would talk to his client but said no more on the question of settlement. 30 Mr Thompson has no recollection of ever receiving any response to his overture at that stage. Accordingly, Mr Thompson formed the view that the matter was not likely to settle until, perhaps, closer to or at hearing. That view was confirmed when, on 31 October 1996, Dr Hopkins received a further demand from Equus dated 29 October 1996 requiring payment of a total amount of $82,252.84 on 21 November 1996. 31 In the meantime, a cross claim had been filed on behalf of Equus. On 12 October 1996, Mr Thompson requested further particulars of the cross claim including particulars as to when it was alleged that moneys had been advanced to Dr Hopkins by Berrema. A response was finally received on 14 March 1997 stating "no funds were advanced". 32 Preparation for the hearing continued. In particular, Mr Thompson served a notice to admit facts on 14 April 1997. On 29 April 1997, a notice disputing facts was served on behalf of all four respondents disputing a number of significant facts. Accordingly, it was necessary for costs to be expended in proving facts which ultimately were found in favour of Dr Hopkins. 33 Affidavits were filed and served on behalf of the respondent from Mr Russo of Equus together with Mr Smith, a director of Seymour, Mr Balcombe, Seymour's auditor and Mr Grose, a forester. At no time prior to commencement of the hearing was Mr Thompson informed by the respondent's representatives that they would not seek to read those affidavits. In the event, notwithstanding the notice disputing facts, no evidence was called by the respondents at the hearing in relation to any of the disputed matters. Mr Thompson has estimated that the costs associated with proof of the disputed facts which were proved is approximately $68,400. In addition, Dr Hopkins obtained interlocutory costs orders against Equus which were not challenged on appeal, Mr Thompson has estimated those costs as amounting to approximately $13,200. 34 In early May 1997, Mr Thompson had further conversations with Mr Schneider when the question of settlement was discussed. On 5 May 1997, Mr Thompson told Mr Schneider that he was instructed by Dr Hopkins to revisit settlement and that Dr Hopkins was prepared to look at settling "with your client". After a discussion concerning Dr Hopkins' health, Mr Schneider said that he would need some evidence as to Dr Hopkins condition and financial position. Mr Thompson said that he thought Dr Hopkins would not be prepared to walk away without any payment towards her costs but that he could get some instructions. Mr Thompson estimated that the costs incurred by Dr Hopkins at that stage were about $37,000. 35 Shortly after 12 May 1997, Mr Thompson told Mr Schneider that Dr Hopkins would take "about $35,000 and walk away". He told Mr Schneider that Dr Hopkins would be seeking leave to amend the statement of claim to raise the claim for $18,000 against Equus for interest received direct by Equus. During that conversation or shortly thereafter, Mr Schneider told Mr Thompson that "My client may come at $10,000 but that's all". There were no further discussions, and on 22 May 1997, Dr Hopkins filed a further amended statement of claim which raised the claim of $18,202 against Equus for money had and received. 36 On 16 July 1997, a notice of change of solicitor was filed on behalf of Seymour, Sintoff and Berrema. Subsequently, on 21 August 1997, after a conversation with the new solicitor for the first three respondents, Mr Thompson had a conversation with Mr Schneider suggesting that if further evidence was being obtained at the expense of Equus, Equus might be better off negotiating settlement with Dr Hopkins and giving her that money and have the matter go away. Mr Thompson suggested that Dr Hopkins would probably want something like $60,000. 37 In various discussions which Mr Thompson had with Mr Schneider after that time, occasional references were made to the effect that Equus was funding two sets of solicitors, Mr Thompson has no recollection of Mr Schneider refuting those comments and they were not denied by Mr Schneider. 38 The sequence of communications briefly summarised above indicates a fairly uncompromising attitude on the part of Equus. There is no indication that any attempt was made on behalf of Equus to persuade Dr Hopkins that allegations of Equus being involved in the misleading conduct of the first three respondents were without foundation. There has been no explanation for the belated decision for the first three respondents to be represented by a separate solicitor, although the same counsel appeared for all four respondents at the hearing. Thus, there does not appear to have been any perception of any conflict of interest between the first three respondents on the one hand and Equus on the other. Those considerations suggest that, while Dr Hopkins was not successful in her claims that Equus participated in the conduct in contravention of the Trade Practices Act, she should not be required to pay Equus's costs of those issues. 39 Dr Hopkins originally sought each of the declarations ultimately made in the proceedings against the first three respondents before joinder of Equus. There was no change in that claim for relief following the joinder of Equus which had no impact on the course adopted and maintained by Dr Hopkins concerning that relief. Nevertheless, the proceedings were prompted by the threats made by Equus and Equus resisted all of the relief sought by Dr Hopkins. It certainly had an interest in resisting the claim brought by Dr Hopkins concerning the Loan Agreement. The other agreements stood or fell with the Loan Agreement. 40 No effort was made by Equus on the appeal to interfere with the declarations made by the primary judge that Dr Hopkins is not liable to pay any moneys, that the Leases are invalid and unenforceable and that the Works and Services Contract, the Management Contract, the Leases and the Loan Agreement are void ab initio. In addition, Dr Hopkins has been successful in obtaining a judgment against Equus. While the primary judge's conclusion that Dr Hopkins was entitled to damages against Equus because of its involvement in the conduct in contravention of the Trade Practices Act has been overturned on appeal, she has, nevertheless, been successful in obtaining, as against Equus, the relief which she primarily sought and the claim for which was prompted by the threats by Equus. Since there has been no challenge to that result, Dr Hopkins is entitled as against Equus to her costs of those questions before the primary judge. 41 As we have said, the grounds of appeal by Equus included a ground relating to the claim for $18,202 plus interest. That ground was not abandoned until the hearing of the appeal. It is possible that Dr Hopkins may have taken a different approach to the appeal if those grounds had never been raised or had been abandoned at an earlier stage. 42 Dr Hopkins has been successful in retaining a judgment in the sum of $18,202 plus interest. The approach taken by Equus on appeal was different from the approach adopted at the hearing. Central to the case presented by Equus on appeal was that it had changed its lending criteria after March 1991 and before 25 June 1991. Previously, Equus had declined to admit that there had been any such change of lending criteria. On the hearing of the appeal, Equus relied upon the presence of the word "speculative" in the draft prospectus to counter Dr Hopkins case that Equus was aware that the promotional documents were misleading. On the other hand, Equus declined to admit that its employees had seen the draft prospectus. There was no submission made to the primary judge concerning the word "speculative". In the circumstances, this is an appropriate case for the Court to decline to make any order as to the costs of the appeal. 43 Finally, there is the question of the costs of the submissions as to the costs of the appeal. On 17 December 1998, following publication of our earlier reasons, Mr Thompson wrote a lengthy letter to Mr Schneider putting forward a proposal to resolve the outstanding issues concerning costs which were reserved in our earlier reasons. In his letter, Mr Thompson indicated that Dr Hopkins was prepared to settle on the following basis: (i) Dr Hopkins be paid her costs of the proceedings at first instance as agreed or taxed. (ii) Dr Hopkins to recover $18,202 plus interest. (iii) Dr Hopkins pays Equus's costs of the appeal as agreed or taxed. 44 In addition, Mr Thompson advanced a proposal which involved a sum of money estimated to give effect to a similar result. That settlement proposal was rejected by Equus without any counter proposal. The proposal was put without prejudice except as to costs. The conclusions which we have reached are not identical to those proposed by Mr Thompson. However, our conclusions are probably equally favourable to Dr Hopkins as the proposal advanced on her behalf. In the circumstances, it is appropriate that Equus pay the costs of the further submissions. However, we do not consider that it is appropriate that a special order be made for indemnity costs. 45 In the result, the orders of the Court are should be: (1) Appeal allowed in part. (2) Set aside orders 1 and 2 made by his Honour Justice Foster on 19 June 1998 and in lieu thereof order, with effect from 19 June 1998: 1. the first to third respondents jointly and severally pay to the applicant: (a) the sum of $118,211.63; (b) the applicant's costs of and incidental to the proceedings. 2. The fourth respondent, jointly and severally with the first to third respondents, pay to the applicant: (a) the sum of $25,690.50; (b) the applicant's costs of and incidental to the proceedings other than the costs of and incidental to the question of whether the fourth respondent engaged in conduct in contravention of the Trade Practices Act or was involved in any contravention of the Trade Practices Act by the first, second or third respondents. (3) Order that the appellant pay the respondent's costs of and incidental to the preparation of submission in relation to costs and final orders, including supporting evidence. (4) There be no other order as to the costs of the appeal. (5) A costs certificate under section 6 of the Federal Proceedings (Costs) Act 1981 be issued to the respondent. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Hill, R.D. Nicholson and Emmett. Associate: Dated: 30 March 1999 Counsel for the Applicant: D.F. Jackson QC; S.D. Kalfas Solicitor for the Applicant: Michell Sillar Counsel for the Respondent: R.W. White; D.A.C. Robertson Solicitor for the Respondent: Thompson Eslick Date of Judgment: 30 March 1999