FEDERAL COURT OF AUSTRALIA Selig v Wealthsure Pty Ltd (No 2) [2013] FCA 770 Citation: Selig v Wealthsure Pty Ltd (No 2) [2013] FCA 770 Parties: RONALD SELIG AND JANNA SELIG v WEALTHSURE PTY LTD (ABN 93 097 405 108), DAVID BERTRAM, RICHARD WILLIAM SPENCER, SILVANA PEROVICH, MARK RICHARD NORTON, PETER MAURICE TOWNLEY, NEOVEST LIMITED (IN LIQUIDATION) ACN 104 915 906, NORTON CAPITAL PTY LIMITED (IN LIQUIDATION) ACN 086 207 169, DANIEL GEOFFREY LILLEY, DAMIEN BERNARD GREER, ROBERT NOEL GALLAGHER, STEPHEN JAMES DICKENS and MICHAEL JOSEPH CROUCH File number: SAD 11 of 2010 Judge: LANDER J Date of judgment: 6 August 2013 Catchwords: COSTS – application for indemnity costs – whether plaintiffs succeeded at trial upon relevantly different case to that advanced with offer to settle – application for Bullock order PRACTICE AND PROCEDURE – application for leave to enter judgment against bankrupt and in liquidation defendants – application by plaintiffs for stay of orders in their favour pending appeal by defendants Legislation: Bankruptcy Act 1966 (Cth), ss 58(3), 82(2) Corporations Act 2001 (Cth), ss 471B, 500(2), 553, 556, 563A, 1041N(4) Corporations Amendment (Sons of Gwalia) Act 2010 (Cth) Federal Court Rules 2011, r 1.04, div 2.3, pt 25 Cases cited: Bullock v London General Omnibus Co [1907] 1 KB 264 Cummings v Claremont Petroleum NL (1996) 185 CLR 124 Fowdh v Fowdh [1993] NSWCA 100 In re Newman; Ex parte Brooke (1876) 3 Ch D 494 Selig v Wealthsure Pty Ltd [2013] FCA 348 Sons of Gwalia v Margaretic; ING Investment Management v Margaretic (2007) 232 ALR 232 Date of hearing: 4 June 2013 Date of last submissions: 5 June 2013 Place: Adelaide (Telephone Link to Brisbane) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 110 Counsel for the Plaintiffs: Mr P Heywood-Smith QC with Mr D Riggall Solicitor for the Plaintiffs: Radbone and Associates Counsel for the First and Second Defendants: Mr T Cox Solicitor for the First and Second Defendants: Cosoff Cudmore Knox Counsel for the Third Defendant: The Third Defendant appeared via telephone Counsel for the Fourth Defendant: The Fourth Defendant did not appear Counsel for the Fifth Defendant: The Fifth Defendant did not appear Counsel for the Sixth Defendant: The Sixth Defendant appeared via telephone Counsel for the Seventh Defendant and liquidators of the Seventh Defendant: Mr C Coulsen Solicitor for the Seventh Defendant and liquidators of the Seventh Defendant: Mills Oakley Lawyers Counsel for the Eighth to Thirteenth Defendants: The Eighth to Thirteenth Defendants did not appear IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 11 of 2010 BETWEEN: RONALD SELIG AND JANNA SELIG Plaintiff AND: WEALTHSURE PTY LTD (ABN 93 097 405 108) First Defendant DAVID BERTRAM Second Defendant RICHARD WILLIAM SPENCER Third Defendant SILVANA PEROVICH Fourth Defendant MARK RICHARD NORTON Fifth Defendant PETER MAURICE TOWNLEY Sixth Defendant NEOVEST LIMITED (IN LIQUIDATION) ACN 104 915 906 Seventh Defendant NORTON CAPITAL PTY LIMITED (IN LIQUIDATION) ACN 086 207 169 Eighth Defendant DANIEL GEOFFREY LILLEY Ninth Defendant DAMIEN BERNARD GREER Tenth Defendant ROBERT NOEL GALLAGHER Eleventh Defendant STEPHEN JAMES DICKENS Twelfth Defendant MICHAEL JOSEPH CROUCH Thirteenth Defendant JUDGE: LANDER J DATE OF ORDER: 6 August 2013 WHERE MADE: ADELAIDE (TELEPHONE LINK TO BRISBANE) THE COURT ORDERS THAT: 1. The plaintiffs pay the first and second defendants' costs of the plaintiffs' interlocutory application filed on 29 May 2013 on an indemnity basis. 2. The plaintiffs' application for leave to enter judgment against the third, fourth, seventh, and eighth defendants, be dismissed. 3. The plaintiffs pay the seventh defendant's costs of the orders sought in the interlocutory application filed on 26 April 2013 to enter judgment against the seventh defendant. 4. The plaintiffs' application for an order that the first and second defendants indemnify the plaintiffs against the order that the plaintiffs pay the ninth to thirteenth defendants' costs be dismissed. 5. Subject to the first and second defendants being given credit for the costs incurred in the first and second defendants defending the second plaintiff's claim for damages for personal injury abandoned at trial, the first and second defendants pay the plaintiffs' costs of the proceeding: (a) to 11.00am on Monday, 20 February 2012 on a party and party basis; and (b) from 11.00am on Monday, 20 February 2012 to judgment on an indemnity basis. 6. There be no order as to costs of the interlocutory application filed on 26 April 2013 as between the plaintiffs, the first and second defendants, the third and fourth defendants, and the eight defendant. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 11 of 2010 BETWEEN: RONALD SELIG AND JANNA SELIG Plaintiff AND: WEALTHSURE PTY LTD (ABN 93 097 405 108) First Defendant DAVID BERTRAM Second Defendant RICHARD WILLIAM SPENCER Third Defendant SILVANA PEROVICH Fourth Defendant MARK RICHARD NORTON Fifth Defendant PETER MAURICE TOWNLEY Sixth Defendant NEOVEST LIMITED (IN LIQUIDATION) ACN 104 915 906 Seventh Defendant NORTON CAPITAL PTY LIMITED (IN LIQUIDATION) ACN 086 207 169 Eighth Defendant DANIEL GEOFFREY LILLEY Ninth Defendant DAMIEN BERNARD GREER Tenth Defendant ROBERT NOEL GALLAGHER Eleventh Defendant STEPHEN JAMES DICKENS Twelfth Defendant MICHAEL JOSEPH CROUCH Thirteenth Defendant JUDGE: LANDER J DATE: 6 august 2013 PLACE: ADELAIDE (telephone link to brisbane) REASONS FOR JUDGMENT 1 On 18 April 2013, I delivered reasons for judgment and made orders in favour of the plaintiffs after a trial on the issues of both liability and damages: Selig v Wealthsure Pty Ltd [2013] FCA 348 ("Selig v Wealthsure"). The orders made were: 1. The plaintiffs' claim against the ninth to thirteenth defendants be dismissed. 2. The plaintiffs have judgment against the first, second, fifth and sixth defendants in the sum of $1,760,512. 3. If the plaintiffs want to seek leave to enter judgment for the sum of $1,760,512 against the third and fourth, and seventh and eighth defendants, the plaintiffs file an application together with a supporting affidavit within 14 days of the making of these orders. 4. If the plaintiffs make an application pursuant to paragraph 3, the application be heard on Tuesday, 4 June 2013 at 9.30am. 5. The first and second defendants' claims for a declaration that the third to eighth defendants are proportionately liable be refused. 6. The first and second defendants' claims for indemnity and contribution against the third to eight defendants be dismissed. 7. The first and second defendants' claim against the ninth to thirteenth defendants be dismissed. 8. The first and second defendants pay the plaintiffs' costs of the plaintiffs' proceeding against the first and second defendants. 9. The fifth and sixth defendants pay the plaintiffs' costs of the plaintiffs' proceeding against the fifth and sixth defendants. 10. The question of the plaintiffs' costs against the third and fourth, and seventh and eighth defendants be reserved pending any application by the plaintiffs pursuant to paragraph 3 of these orders for judgment against those parties. 11. The plaintiffs and the first and second defendants pay the ninth to thirteenth defendants' costs. 12. The plaintiffs have leave to make an application for an order that the first and second defendants indemnify the plaintiffs against the order that the plaintiffs pay the ninth to thirteenth defendants' costs by filing written submissions, not exceeding 5 pages, in support of such an order within 10 days. 13. If the plaintiffs make an application that the first and second defendants indemnify the plaintiffs against the order that the plaintiffs pay the ninth to thirteenth defendants' costs, the first and second defendants file written submissions, not exceeding 5 pages, in reply within 10 days. 14. The first and second defendants pay the third to eighth defendants' costs (if any) in relation to the first and second defendants' claims against those defendants. 2 As the orders made 18 April 2013 show (paragraphs 3 and 12), I provided a timetable within which the plaintiffs could, if they were so minded, make a further application for leave to enter judgment against four of the defendants and for a Bullock Order: Bullock v London General Omnibus Co [1907] 1 KB 264. 3 In the reasons for judgment published that same day, I provided further directions to the parties: Selig v Wealthsure at [1282]-[1300]; If the plaintiffs wish to obtain a judgment against the third, fourth, and seventh and eighth defendants, they should within 14 days file and serve on those defendants, and the third and fourth defendants' trustees, and the seventh and eighth defendants' liquidators, an application seeking leave to proceed to obtain judgment. The application should be accompanied by an affidavit stating the grounds upon which the orders are sought and insofar as is known to the plaintiffs, the assets and liabilities of each of the defendants. If an application is not made within 14 days of today's date, the plaintiffs' proceeding against the third, fourth, and seventh and eighth defendants will be dismissed. … If the plaintiffs seek a Bullock order in relation to their liability for costs to the ninth to thirteenth defendants, they should file written submissions within 10 days setting out the order that is proposed and the reasons for the order. If submissions are not filed within that time, then the plaintiffs' liberty to apply expires. If written submissions are made in that time, the first and second defendants should file written submissions in reply within 10 days. In both cases, the written submissions should not exceed five pages. 4 The parties to whom these orders and directions were directed have not complied with those orders and directions. They have not provided any explanation whatsoever for that non-compliance. They have simply assumed that they can disregard this Court's orders. 5 On 9 May 2013, the first and second defendants filed a notice of appeal. The applications 6 On 26 April 2013, the plaintiffs filed an interlocutory application (the first application) seeking three orders: first, that the plaintiffs have leave to enter judgment in the sum of $1,760,512 together with costs against the third, fourth, seventh, and eighth defendants; secondly, that the first and second defendants indemnify the plaintiffs against the order that the plaintiffs pay the ninth to thirteenth defendants' costs (the Bullock Order); and thirdly, that the first and second defendants pay the plaintiffs' costs of the proceeding on and from Monday, 20 February 2012, on an indemnity basis. 7 Contrary to the directions, the plaintiffs did not serve the third and fourth defendants' trustees in bankruptcy or the seventh and eighth defendants' liquidators. The seventh defendant's liquidator was represented at the hearing and the failure to serve that liquidator, although not excusable, does not have any consequence. The third defendant attended the hearing by telephone. The fourth defendant was aware of the hearing but did not attend. Instead she instructed the third defendant to speak on her behalf. The third and fourth defendants' trustees in bankruptcy did not attend. The plaintiffs' counsel did not inform me that they were not served. That came to my attention after the hearing when the trustees communicated with my associate and advised the Court that they were under the impression that insofar as the first application applied to the third and fourth defendants, it would be adjourned until after any appeal. However, apart from that communication, the trustees have not sought to make any submissions upon that application. 8 On 29 May 2013, the plaintiffs filed an interlocutory application (the second application) seeking a further four orders: first, that execution with respect to $264,512 of the judgment monies payable by the first and second defendants to the plaintiffs be stayed; secondly, that the first and second defendants pay that amount plus interest on the judgment sum into Court pending the outcome of the appeal filed by the first and second defendants; thirdly, that execution with respect to the plaintiffs' costs order against the first and second defendants be stayed; and fourthly, that execution with respect to interest payable to the plaintiffs by the first and second defendants be stayed. 9 The day before the hearing the plaintiffs emailed to my associate the orders which they proposed. 10 Apart from the orders sought in the two applications to which I have already referred, the plaintiffs sought other, and in one case different, orders: 3. That pursuant to Federal Court Rule 39.05 the judgement (sic) be varied by substituting the words "…for seven years…" in place of the words "…for six years…" at paragraph 1274 of the judgment. … 5. Leave is granted to the plaintiffs to proceed to seek an agreement as to the quantum of costs or alternatively tax costs on the basis that they will not execute any figure pending finalization of the appeal. 6. That the issue of whether the plaintiffs should have judgment against the third and fourth, and seventh and eighth defendants be adjourned pending the outcome of the appeals and cross appeals. 11 I will deal with proposed orders 3, 5 and 6, which were not sought in either the first or second applications, immediately. 12 Paragraph 3 refers to a misstatement of a period of time in the reasons. The slip rule has nothing to do with misstatements of that kind in the reasons for judgment. I shall publish a corrigendum. 13 Paragraph 5 is unnecessary. Leave of the Court is not required for a party to agree costs with another party or for a party to tax costs. That is the right of a party in whose favour an order for costs has been made. 14 Paragraph 6 is impractical for a number of reasons, but one which cannot be overlooked. I will not be a judge of the Court when the appeal is heard and, of course, decided. For that reason alone, I would not have power to do what is proposed. In any event, the order sought is not appropriate. The third, fourth, seventh and eighth defendants are entitled to know in advance of the appeal whether orders have been made against them for no other reason than they might want to appeal against any orders of that kind. 15 In any event, in the first application the plaintiffs have sought orders against those defendants. The proposed order contradicts the plaintiffs' own application. 16 I will deal with the second application first, because it can also be dealt with shortly. The second application 17 Although I dismissed the second application at the hearing of that application, it is necessary that I address it briefly, because the question of costs on that application remains reserved. The second application filed by the plaintiffs can be described as nothing short of remarkable. The plaintiffs were, in effect, seeking orders directed to themselves preventing them from taking action that they were not required to take. They were seeking a stay of orders that had been made in their favour. If the plaintiffs are inclined not to seek to execute the orders in their favour, they can simply chose not to enforce those orders. If the plaintiffs are inclined to seek to recover only a partial amount of the monies in their favour, that is a choice they can make. They do not need the Court's orders to proceed in that way. 18 At the hearing the application, counsel for the plaintiffs admitted the application was "most unusual". No argument in support for the orders sought in the second application was advanced and, with respect, I cannot think of one. The plaintiffs submitted that they anticipated a stay order would be sought by the first and second defendants and in those circumstances they sought to be "proactive" and bring the application themselves. It might be thought peculiar that the plaintiffs did not take proactive steps to enforce the judgment to the extent that they sought, but rather took proactive steps to bring an application they anticipated the other side would bring shortly. 19 Notwithstanding that counsel for the plaintiffs failed to provide any supporting argument for the application, the plaintiffs chose not to abandon the second application. In those circumstances, I dismissed the second interlocutory application and I reserved the question of costs on that application. 20 The first and second defendants sought the costs of the plaintiffs' application. I can think of no reason why they should not have those costs. The application was misconceived and unnecessary. The application never had any prospect of success. The plaintiffs should pay the first and second defendants' costs of the application and on an indemnity basis. The first application 21 The first application sought, as I have said, three orders and I shall deal with each in turn. 22 The first order sought was an order that the plaintiffs have leave to enter judgment in the sum of $1,760,512 together with costs against the third, fourth, seventh, and eighth defendants, namely Mr Richard Spencer, Ms Silvana Perovich, Neovest Limited (Neovest), and Norton Capital Pty Limited (Norton Capital) respectively. 23 The plaintiffs sought that order because Mr Spencer and Ms Perovich are bankrupts, and Neovest and Norton Capital are in liquidation. 24 On 8 December 2010, I had given leave pursuant to s 58(3) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) for the proceeding to be commenced and continued against the third and fourth defendants; leave pursuant to s 471B of the Corporations Act 2001 (Cth) (Corporations Act) for the proceeding to be commenced and continued against the seventh defendant; and leave pursuant to s 500(2) of the Corporations Act for the proceeding to be commenced and continued against the eighth defendant. However, leave to proceed against those parties was granted only up to, but not including, entry of judgment. 25 On 26 April 2013, in support of the application for leave to enter judgment, the plaintiffs filed a supporting affidavit of Mr John Radbone, solicitor for the plaintiffs. 26 As I have said earlier in these reasons, I directed the plaintiffs that if they were to make an application seeking leave to enter judgment, the application was to be accompanied by an affidavit stating the grounds upon which the orders were sought and insofar as was known to the plaintiffs, the assets and liabilities of each of the defendants. 27 In Mr Radbone's affidavit, the sole ground advanced for the order sought was found at paragraph 3: The plaintiffs are concerned that unforseen consequential orders might be made in any appeal. They wish to preserve their position with respect to the remaining defendants against such possibility. 28 That, of course, is not a ground for the application. What is said to be a ground is merely a reason for the application. The plaintiffs are either entitled to judgment against those defendants or they are not. 29 The direction to address the assets and liabilities of each of the defendants was ignored and no explanation has been proffered. 30 The application for leave to enter judgment was opposed by the third and fourth defendants. 31 The application for leave to enter judgment was also opposed by the seventh defendant. The seventh defendant did not appear at trial and did not file a notice of acting until 3 June 2013, which was the eve of the hearing of these applications. Counsel who appeared for the seventh defendant informed the Court that he appeared for both the seventh defendant in liquidation, and the liquidators of the seventh defendant. 32 The eighth defendant neither appeared at the trial nor on the hearing of these applications. 33 In opposition to the application for leave to enter judgment, the third and fourth defendants relied upon an affidavit that was sworn and filed by the third defendant on 31 May 2013 (the third defendant's affidavit). The filing of that affidavit was over one month after the filing of the application to which it related, and only one clear business day before the hearing of the application. Whilst the third and fourth defendants were unrepresented at the trial and subsequently, the third defendant is a lawyer and those defendants should have filed documents upon which they intend to rely in a timely fashion that would allow time to review those documents before a hearing. 34 The third defendant's affidavit annexed a letter that the third, fourth and sixth defendants had written to the plaintiffs, dated 28 May 2013. The third defendant said the letter had been emailed to the plaintiffs' solicitors on 29 May 2013, with copies also being provided to the first, second, and ninth to thirteenth defendants. 35 In that letter, the third and fourth defendants outlined their position and stated that the plaintiffs had failed to demonstrate any utility in entering judgment against them; the matter would more appropriately be dealt with by the Full Court hearing the appeal; and that given their status as undischarged bankrupts, entry of judgment was simply inappropriate. They asserted that as the seventh defendant was in liquidation and its winding up had not concluded the possibility of recovery to the plaintiffs was not excluded. They submitted that as the seventh defendant had made a claim in the bankrupt estates, they and their trustees were being twice vexed for the same debt. 36 They submitted that leave was granted to join them as defendants up to but not including judgment and that if wider leave had been sought, different steps may have been taken at that time. At the hearing of the first application, the third and fourth defendants did not add to their written material. 37 The seventh defendant was, as I have said, represented by counsel at the hearing of these applications. Counsel for the seventh defendant, who also acted for the liquidator of the seventh defendant, opposed the entry of judgment on the basis that it lacked utility, because a proof of debt had already been lodged by the plaintiffs for $450,000, which was their initial investment into Neovest and for which they were awarded damages: Selig v Wealthsure at [1198]. He submitted that the statutory regime in respect of the adjudication of proofs should be allowed to run. He said that only about $400,000 had been recovered by the liquidators who were seeking to avoid further litigation. 38 Counsel said that whether judgment was entered or not was significant for two reasons. First, counsel referred to the submission of the plaintiffs that leave ought to be entered so as to preserve the plaintiffs' position in light of any further orders made in the appeal. Counsel said that was not a justification in light of the fact that the seventh defendant did not have the resources or intention to take part in the appeal. 39 Secondly, counsel raised the issue whether or not entry of judgment would change the standing of the plaintiffs in light of the amendments made by Corporations Amendment (Sons of Gwalia) Act 2010 (Cth) (Sons of Gwalia amendment). Prior to those amendments, a shareholder pursuing remedies for misleading or deceptive conduct and non-disclosure that induced the shareholder to purchase shares in a company was entitled to prove in the administration of that company and rank equally with general unsecured creditors: Sons of Gwalia v Margaretic; ING Investment Management v Margaretic (2007) 232 ALR 232 ("Sons of Gwalia v Margaretic"). 40 The Sons of Gwalia amendment followed Sons of Gwalia v Margaretic and repealed and substituted s 563A of the Corporations Act 2001 (Cth), which now reads: 563A Postponing subordinate claims (1) The payment of a subordinate claim against a company is to be postponed until all other debts payable by, and claims against, the company are satisfied. (2) In this section: claim means a claim that is admissible to proof against the company (within the meaning of section 553). debt means a debt that is admissible to proof against the company (within the meaning of section 553). subordinate claim means: (a) a claim for a debt owed by the company to a person in the person's capacity as a member of the company (whether by way of dividends, profits or otherwise); or (b) any other claim that arises from buying, holding, selling or otherwise dealing in shares in the company. 41 Section 563A in its amended form commenced on 18 December 2010, after the conduct that caused the loss occasioned by the acquisition of the shares by the plaintiffs in this proceeding. It was submitted that the Sons of Gwalia amendment would probably not impact upon the plaintiffs. 42 Counsel also argued that entry of judgment may merge rights in the judgment and thus allow the plaintiffs to bypass the effect of the Sons of Gwalia amendment. That also, it was said, would allow the plaintiffs to lodge a proof of debt along side other unsecured, unrelated third party creditors whom, counsel said, are expected to receive 100 cents in the dollar. That submission, of course, contradicted the previous submission that the Sons of Gwalia amendment would not impact upon conduct antecedent to the amendment. 43 Counsel submitted that insofar as the plaintiffs sought to prove in the bankruptcies of the third and fourth defendants, and in the administration of the seventh defendant, the differences between s 82(2) of the Bankruptcy Act and ss 553 and 556 of the Corporations Act were significant. 44 Section 82(2) of the Bankruptcy Act provides: Demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust are not provable in bankruptcy. 45 Section 553(1) of the Corporations Act provides: Subject to this Division and Division 8, in every winding up, all debts payable by, and all claims against, the company (present or future, certain or contingent, ascertained or sounding only in damages), being debts or claims the circumstances giving rise to which occurred before the relevant date, are admissible to proof against the company. 46 Section 553(1) is wider than s 82(2) of the Bankruptcy Act and includes claims sounding in damages, which would include unliquidated damages. It was submitted that therefore any difficulties encountered by the plaintiffs in proving in the bankruptcies of the third and fourth defendants would not be encountered in proving in the administration of the seventh defendant. 47 Section 556 of the Corporations Act concerns priority payments and lists those debts and claims that are to be paid in priority to all other unsecured debts and claims in the winding up of a company. A judgment debt is not listed in that section and has no such priority. 48 Counsel submitted that the reason for seeking leave to enter judgment against the bankrupt defendants did not apply in the application for leave to enter judgment against the seventh defendant. 49 Whilst counsel for the seventh defendant did not oppose the application for leave to enter judgment outright, he submitted that the statutory scheme ought to be upheld, and that there was no utility in entry of judgment. 50 As I have said, following the hearing, the trustees in bankruptcy of the third and fourth defendants contacted my Chambers to inform that they were never served with the first application. 51 The trustees also took issue with the failure of the plaintiffs on the first application to address the assets and liabilities of the defendants; a failure to which I have already referred. The trustees said that based upon correspondence between themselves and the plaintiffs, they understood the application to enter judgment was to be adjourned, and it was on that basis that they did not appear at the hearing of the application. They did not, however, take the opportunity to provide any further submissions against the application. 52 For the reasons that follow, I would refuse the plaintiffs' application for leave to enter judgment against the third, fourth, seventh and eighth defendants. 53 The plaintiffs brought unliquidated claims and have succeeded at trial on those claims and have been awarded damages on those claims. Those unliquidated claims are not, however, claims that are provable in the bankrupt estates of the third and fourth defendants: s 82(2) of the Bankruptcy Act. 54 Entering judgment against the third and fourth defendants after their bankruptcies does not convert those claims into a debt provable in their bankruptcies: Cummings v Claremont Petroleum NL (1996) 185 CLR 124 at 136; In re Newman; Ex parte Brooke (1876) 3 Ch D 494 at 496-497. 55 Therefore, there is no utility in entering judgment against those defendants and for that reason I would decline to do so. 56 Insofar as the seventh and eighth defendants are concerned, entering judgment against those defendants would not lack the utility to which I have just referred because, as I have said, the relevant provisions of the Corporations Act allow for a judgment creditor who has obtained a judgment debt for unliquidated damages to prove in the administration of a company in liquidation. 57 However, I would refuse the application for leave to enter judgment against the seventh and eighth defendants for a different reason. The statutory scheme to which I have referred that applies to the winding up of the seventh and defendant ought to be allowed to run. 58 It might be expected that the liquidator, unconstrained in the manner that a trustee in bankruptcy is by virtue of s 82(2) of the Bankruptcy Act, would admit a judgment of this Court following a trial on the merits as proof of the debt. I reject the plaintiffs' contention that the failure of the liquidator to confirm that the debt would be admitted to proof means that I should enter judgment against the seventh defendant. There is no reason to think that a liquidator, who is an officer of the Court, would not act appropriately in considering whether to admit the judgment debt in the administration. 59 Refusing to enter judgment against the third, fourth, seventh, or eighth defendants is not inconsistent with the grant of leave for the proceeding to be commenced and continued against those defendants up to, but not including, judgment. That leave was granted pursuant to the claims for apportionment made against those parties, notwithstanding that the proportionate liability provisions of the Corporations Act apply in a proceeding involving an apportionable claim whether or not all concurrent wrongdoers are parties to the proceeding: s 1041N(4). 60 The second order sought in the first application was for a Bullock order that the first and second defendants indemnify the plaintiffs against the order that the plaintiffs pay the ninth to thirteenth defendants' costs. 61 Order 12 of the orders made on 18 April 2013, reproduced in [1] of these reasons, provided that if the plaintiffs sought to make such an application, they were to file written submissions within 10 days. 62 On 29 April 2013, the plaintiffs emailed submissions to my associate but did not file them. Although is not uncommon for parties to email submissions or documents to associates at the same time as filing these documents, emailing documents to an associate does not, however, constitute the filing of that document: see Division 2.3 of the Federal Court Rules 2011 (the Rules). On 1 May 2013, because the submissions had not been filed, my associate contacted the plaintiffs' solicitors and advised them that emailing a document to an associate did not constitute the filing of the document in Court. Notwithstanding, the plaintiffs elected to ignore that advice and chose not to file those submissions. 63 On 31 May 2013, the plaintiffs emailed my Associate and foreshadowed filing revised submissions, in which they added a complaint of the failure of the first and second defendants' to comply with order 13 of the orders made 18 April 2013, which provided the time within which the first and second defendants had to reply to the plaintiffs' submissions. Such a complaint was made in circumstances in which the plaintiffs had themselves not complied with the orders and directions of the Court and had, on a literal reading of the directions given on 18 April 2013, lost the liberty to apply for a Bullock order altogether. 64 On 3 June 2013, the Registry received for lodging, not filing, those revised submissions. 65 For the purposes of the application for the Bullock order, it is necessary to recall that on 4 July 2011, the first and second defendants filed a notice of motion seeking leave to join the ninth to thirteenth defendants. The next day, I heard that notice of motion and granted leave. 66 The plaintiffs contended that a Bullock order should be made because the plaintiffs did not seek a judgment against the ninth to thirteenth defendants but rather maintained that the first and second defendants were responsible for the plaintiffs' losses. They submitted that they only joined and proceeded against the ninth to thirteenth defendants because those defendants had been brought into the proceeding by the first and second defendants so as to avoid the possibility of inconsistent results. They said: … the ninth-thirteenth defendants were joined by reason of the conduct of the primary defendants in asserting that the claim for compensation might be lost in whole or in part by operation of the doctrine of proportionality. In the circumstances it was both "reasonable" and "proper" for the plaintiffs to plead a remedy against these defendants. 67 The plaintiffs contended, inconsistently, that they never advanced a case against the ninth to thirteenth defendants, but only advanced a case against them that they were liable because the sixth defendant was liable. 68 The first and second defendants provided written submissions opposing the application for a Bullock order, but not until 31 May 2013, only one clear business day before the hearing of the application. Those defendants also failed to comply with the orders made 18 April 2013. The plaintiffs, as I have said, emailed submissions to my associate on 29 April 2013, but did not file them. The solicitors for the first and second defendant were copied in to that email and received the submissions that day, and were copied in to the reply from my associate on 1 May 2013. If the first and second defendants wished to take issue with the fact that the plaintiffs' submissions were not filed, they ought to have done so at that time. In light of the fact that they did not, they ought to have provided their submissions in reply within 10 days, in accordance with order 13 made on 18 April 2013. 69 The first and second defendants submitted that contrary to the plaintiffs' assertions, they had in fact pleaded that the plaintiffs' claim might be lost in whole or part by reason of the conduct of the sixth defendant; the extent of the liability of the ninth to thirteenth defendants, who were partners of the sixth defendant at the relevant time, could not be any greater than the liability of the sixth defendant and thus a reduction in whole or in part of the liability of the first and second defendants was limited to the proportion of the extent of liability of the sixth defendant. 70 The first and second defendants submitted that their pleaded case on apportionment confined the concurrent wrongdoers to the eighth defendant and the seventh defendant and its directors, who were the third to sixth defendants. They submitted that they had pleaded that their liability was limited to the extent of their liability in proportion to the liabilities of each of third to eighth defendants as concurrent wrongdoers. They submitted that it was never pleaded that there would be any additional limitation of the first and second defendants' liability. 71 The first and second defendants submitted that the joinder of the ninth to thirteenth defendants arose because the ninth to thirteenth defendants were partners of the sixth defendant and thus the liability of those defendants could not extend any further than the liability of the sixth defendant, and thus could not limit any amount awarded in favour of the plaintiffs. 72 The first and second defendants further submitted that if the liability of the ninth to thirteenth defendants to the plaintiffs could never have been alternative to, or separate from, the liability of the sixth defendant and in those circumstances the ninth to thirteenth defendants' liability to the plaintiffs depended upon the plaintiffs succeeding against the seventh defendant. 73 They submitted that the plaintiffs' decision to join the ninth to thirteenth defendants was based on the plaintiffs' view as to the operation of partnership law and that it could not be said the joinder was reasonable and proper to ensure recovery. 74 Although the ninth to thirteenth defendants were joined on the motion of the first and second defendants, the plaintiffs nevertheless chose to advance a case against them. They advanced a contention that the ninth to thirteenth defendants were liable because they were partners of the sixth defendant. As counsel for the plaintiffs submitted, the claims advanced against the ninth to thirteenth defendants were made "to place ourselves in the … best position possible, so far as recover was concerned". Such conduct is, of course, entirely reasonable, but carries with it the risks of adverse costs orders should it fail. 75 The plaintiffs' claims against the ninth to thirteenth defendants were dismissed: Selig v Wealthsure at [1145]. 76 The plaintiffs always asserted that the apportionment legislation had no impact upon the plaintiffs' claims against the first and second defendants. They always claimed that the first and second defendants were solely responsible for the plaintiffs' losses. They joined the sixth defendant following upon the first and second defendants' joinder of that defendant, and sought relief against the sixth defendant in relation to his conduct leading up to the plaintiffs becoming investors in Neovest. They succeeded in that regard. They also joined the ninth to thirteenth defendants following upon the first and second defendants' joinder of those parties seeking to have those defendants responsible for the sixth defendant's conduct. In my opinion, the plaintiffs made a deliberate choice to join those parties even though they continued to maintain that the liability for their loss should rest upon the first and second defendants. 77 This is therefore not a case where the plaintiffs were faced with two defendants denying liability and both claiming that the other defendant was solely responsible for the plaintiffs' loss. This is a case where the plaintiffs made a conscious decision to join the ninth to thirteenth defendants seeking a judgment against them on account of their relationship with the sixth defendant. 78 This is not a case, in my opinion, for a Bullock order. The ninth to thirteenth defendants' costs should be met by the separate parties who joined them and failed against them. 79 I would refuse the application for a Bullock order. 80 The third and final order sought in the first application was an order that the first and second defendants pay the plaintiffs' costs on and from Monday, 20 February 2012, on an indemnity basis. That an application for indemnity costs would be made was first raised by the plaintiffs' counsel on 18 April 2013, immediately following the delivery of judgment and the publication of the reasons for judgment. The application for indemnity costs was subsequently made within the first application, which was filed 26 April 2013. 81 Although the plaintiffs filed an affidavit of Mr Radbone sworn on 26 April 2013 along with the first application, the plaintiffs said at the hearing that in support of the application for indemnity costs they relied only upon the affidavit of Mr Radbone filed 29 May 2013. In opposition to the application for indemnity costs, the first and second defendants sought to rely only upon the affidavit of Mr Patrick Coyle filed 31 May 2013, excluding paragraph 6 of that affidavit, which was said to be in error. I shall rely only upon those affidavits. 82 The plaintiffs' application for indemnity costs was made pursuant to the Rules. The Rules apply to a proceeding started in the Court on or after 1 August 2011: r 1.04(1). This proceeding was started before 1 August 2011. However, the Rules also apply to a step, in a proceeding that was started before 1 August 2011, if the step is taken on or after 1 August 2011: r 1.04(2). 83 The offers to which the plaintiffs referred in their written submissions and thus purported to rely upon for the indemnity costs application were offers made in early 2012. Therefore, the Rules apply to those offers. Whilst there were several offers referred to in those submissions, there was evidence of only one offer before the Court, which was made on 16 February 2012. 84 Part 25 of the Rules concerns offers to settle. It provides that a party may make an offer to settle by serving a notice in the appropriate form but that the notice must not be filed in Court: r 25.01. The notice must be signed by the offeror and state whether the offer is inclusive of costs or costs are in addition to the offer: rr 25.02, 25.03(1). The offer may separately specify the amount that represents the offer in respect to the claim and the interest, if any: r 25.03(2). 85 A party may make an offer at any time before judgment is given and a party may make more than one offer: r 25.05. In this proceeding, the offers were not disclosed until after judgment was given, in accordance with r 25.06(2)(b). 86 The plaintiffs made an application for indemnity costs pursuant to r 25.14(3), which provides: (3) If an offer is made by an applicant and not accepted by a respondent, and the applicant obtains a judgment that is more favourable than the terms of the offer, the applicant is entitled to an order that the respondent pay the applicant's costs: (a) before 11.00 am on the second business day after the offer was served — on a party and party basis; and (b) after the time mentioned in paragraph (a) — on an indemnity basis. 87 The plaintiffs made an offer that was not accepted by the first and second defendants. The question is, therefore, whether the plaintiffs obtained a judgment that was more favourable than the terms of the offer. If they did, they will be entitled to an order for costs in the terms provided for in r 25.14(3). 88 At the hearing, the plaintiffs said they had no further submissions to make but relied upon their written submissions and the affidavit to which I have referred. Mr Radbone's affidavit filed 29 May 2013, did not annex to it the letter containing the offer upon which the plaintiffs sought to rely for the indemnity costs application (the offer letter). Mr Radbone's affidavit filed 26 April 2013 had the offer letter annexed to it, but as I have said, the plaintiffs said at the hearing that in support of the indemnity costs application they only sought to rely upon Mr Radbone's affidavit filed on 29 May 2013. 89 However, in paragraph 7 of the affidavit of Mr Coyle filed 31 May 2013, the first and second defendants sought leave to refer to the affidavit of Mr Radbone filed 26 April 2013. In those circumstances, the plaintiffs' offer is before the Court. In any event, there was no dispute between the parties that the plaintiffs had made the offer. The dispute was as to the effect of the offer. 90 The offer letter enclosed a notice of offer to compromise (Form 45) addressed to the first and second defendants in the following form: The plaintiffs offer to compromise these proceedings. The offer is made on the following bases:- 1. The plaintiffs accept payment from the first and second defendants of the sum of one million one hundred thousand dollars ($1,100,000.00) with respect to the plaintiffs' claims inclusive of the sum of twenty thousand dollars ($20,000.00) for the second plaintiffs' personal injury and inclusive of interest. 2. The plaintiffs will discontinue their claims against the third to thirteenth defendants in this action. 3. The first and second defendants pay the plaintiffs their party and party costs of this action. 4. The first and second defendants indemnity the plaintiffs from and against any claims for costs which may be made by the third to thirteenth defendants in respect of the plaintiffs' claims in this action. This offer of compromise is open to be accepted for 19 days after service of this offer of compromise. 91 The letter was dated 16 February 2012 and signed by Mr Radbone as solicitor for the plaintiffs. 92 The plaintiffs submitted that they had obtained a judgment more favourable than the terms of the offer and thus because of r 25.14(3) they were entitled to indemnity costs. 93 The first and second defendants conceded that $1,760,512, the amount awarded pursuant to order 2 of the orders made 18 April 2013, was plainly in excess of the offer that they had rejected. The first and second defendants noted that the judgment of $1,760,512 comprised the initial investment loss of $450,000 and consequential losses flowing from that initial investment loss and submitted that it was only because the consequential losses were proved at trial through the oral evidence of the plaintiffs that the award of damages exceeded the offer made on 16 February 2012. 94 It was further submitted that the basis upon which damages were claimed at the time the offer was made, rested upon expert reports provided by Mr Timothy Clifton and the evidence contained in the plaintiffs' affidavit material, all of which was rejected at trial. 95 At trial, the plaintiffs had submitted that their loss should be determined by comparing their financial position at two points in time, namely before and after the conduct of the defendants of which they complained. That approach assumed that the whole of the change in the plaintiffs' financial position was caused by or because of the conduct of the defendants. That approach was flawed and I rejected it: Selig v Wealthsure at [1166]. 96 The first and second defendants referred to Fowdh v Fowdh [1993] NSWCA 100 in which the plaintiffs made an offer to settle that they bettered in the judgment after trial. The plaintiffs subsequently made an application for indemnity costs, which was rejected. Appeal Justice Mahoney said (at 10-11): It is one thing for a plaintiff to present her evidence, make an offer of compromise, and to succeed at the trial on that evidence. In such a case, indemnity costs may be warranted. It is another thing for the plaintiff to present a case and make an offer of settlement, and then to succeed at the trial upon a relevantly different case. A plaintiff who has done that may not readily receive indemnity costs. I do not mean by this that minor differences between the case at offer and the case at trial will be of significance or that, if the difference be significant, a discretionary judgment for indemnity costs may not be given. But where the difference between the position at offer and the position at trial be as the Master assessed it to be, a decision to refuse indemnity costs may readily be understood. 97 The first and second defendants submitted that the plaintiffs' damages were assessed in a manner inconsistent with the offer formulated and the offer should not be relied upon to found indemnity costs. 98 It was further submitted that I ought to consider two further factors in favour of exercising my discretion against an award of indemnity costs. First, the first and second defendants incurred costs in defending the personal injury claim brought by Mrs Selig, which was abandoned at trial. Secondly, costs were wasted in relation to the witness statements of the plaintiffs in considering objections taken by the first and second defendants. It was submitted that time was wasted dealing with certain parts of those statements that were later ruled inadmissible, which led to the plaintiffs giving extended oral evidence and the further time of the court being wasted. 99 The first and second defendants submitted that in light of those factors, the plaintiffs' costs should be limited to a party and party basis. 100 The plaintiffs submitted that notwithstanding that their initial approach to the assessment of damages was rejected, the first and second defendants were, at the time the offer was made, sufficiently on notice that the plaintiffs' losses included the initial investment of $450,000, and the consequential losses incurred on the purchase of the units located at Berrima Street, Wynnum: see Selig v Wealthsure at [422], [1173], [1199]-[1244]. 101 The plaintiffs submitted that if they were awarded damages for those losses alone that, when compound interest at the rate the Court determined of 8.19% was added, that led to an award of damages that exceeded the offer made. They relied upon paragraphs [1244]-[1245] of the reasons for judgment: The plaintiffs' damages exclusive of interest on the first of the three claims are: 1. Loss on investment in Neovest $450,000.00 2. Capital losses on Units 1 and 7 at Wynnum $20,000.00 3. Acquisition and selling costs of units at Wynnum $84,697.08 4. Establishing the initial loan $19,558.93 5. Establishing the ING loan $14,862.21 6. Borrowing costs $128,000.00 7. Orio refinancing $97,564.37 $814,682.59 say $814,680.00 That sum should bear compound interest at the rate of 8.19%. I will return to that. 102 The question is, therefore, whether or not the first and second defendants knew, at the time of the offer on 16 February 2012, that the plaintiffs were seeking the costs of the purchase and losses on the Wynnum properties. 103 In support of a finding that the second and defendants knew of that part of the plaintiffs' claim, the plaintiffs sought at the hearing of this application to refer to a letter that had been provided to the first and second defendants on 20 August 2008. The late disclosure of the new material upon which the plaintiffs sought to rely was further indicative of the failure of the parties to be ready to proceed on the hearing of these applications, notwithstanding that a timetable had been set in place some six weeks prior to the hearing. However, the first and second defendants did not object to me receiving the letter of 20 August 2008. 104 The plaintiffs submitted that the letter showed that the first and second defendants were adequately apprised of the nature of the plaintiffs' losses and contended that any further uncertainty, as to how the damages would be assessed as the proceeding progressed, should be accommodated. 105 The first and second defendants submitted that it was not appropriate to compare the offer of $1,100,000 with the amount of $814,680, which was the amount awarded net of interest for the loss of the initial investment in Neovest and in relation to the Wynnum properties: Selig v Wealthsure at [1244]. They submitted that from $814,680, the following amounts should be deducted; first, the cost of establishing the initial loan of $19,558.93; secondly, the cost of establishing the ING loan of $14,862.21; thirdly, the borrowing costs of $128,000; and fourthly, the cost of Orio refinancing of $97,564.37. They submitted that those figures were not addressed in the letter of 20 August 2008 and thus the first and second defendants were not properly aware of the relevant basis upon which the plaintiffs sought to recover damages in that regard. It followed, they submitted, that if those amounts were left out of account, the final damages that the plaintiffs were awarded, in respect of those bases of damages of which the first and second defendants were properly aware, did not exceed the offer made on 16 February 2012. 106 There are many factors impacting upon the exercise of discretion in relation to the plaintiffs' costs; first, the plaintiffs offered to settle for a sum significantly less than that which they were awarded; secondly, the basis for the formulation of the sum which the plaintiffs said they would accept was rejected by the Court but, nevertheless, the plaintiffs were awarded a sum significantly greater than the offered amount; thirdly, the plaintiffs abandoned the second plaintiff's claim for personal injuries during the trial; and fourthly, the plaintiffs' statements were subject to a number of objections, some of which were, I must say, quite technical. 107 The purpose of awarding indemnity costs in favour of a plaintiff, who has offered to settle proceedings at a figure less than that which is awarded, is to encourage defendants who might be found liable to settle at a reasonable figure. 108 The first and second defendants were not prepared to entertain the plaintiffs' reasonable offer. Whilst it is a factor that the plaintiffs' formulation was not relied upon for the manner in which the damages were ultimately assessed, there can be no doubt that the first and second defendants were always aware that the plaintiffs claimed that their losses included the loss of the investment in Neovest and the losses on the three units purchased at Wynnum, together with all of the consequential losses which flowed from the investment and the purchases. 109 In my opinion, the plaintiffs should be entitled to their costs against the first and second defendants on an indemnity basis from 11.00am on the second business day after the offer was served: r 25.14(3). However, offset against the costs in favour of the plaintiffs should be the costs incurred by the first and second defendants in defending the personal injury claim which was abandoned. Costs 110 Because the plaintiffs succeeded only on the third order sought in respect of the first application filed on 26 April 2013, it would be appropriate to make no order as to costs as between the plaintiffs and the first and second defendants on that application. The seventh defendant has been successful in resisting the order sought against it on that application and the plaintiffs should pay the seventh defendant's costs of that application. The third and fourth defendants, and eighth defendant, are not entitled to costs because they were unrepresented. I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 6 August 2013