New South Wales District Court CITATION: Borg v The Owners of Strata Plan 64425 (Costs) [2010] NSWDC 204 HEARING DATE(S): 6 August 2010 JUDGMENT DATE: 27 August 2010 JURISDICTION: Civil jurisdiction JUDGMENT OF: Johnstone DCJ DECISION: Various orders for costs as provided for in paragraph [108] of the Reasons for Judgment CATCHWORDS: COSTS - various applications for special costs orders including a Sanderson order or Bullock order and orders for indemnity costs following service of Offers of Compromise - application for an order that interest run on unpaid party/party costs LEGISLATION CITED: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2004 ACQ v Cook (No 2) [2008] NSWCA 306 Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd [2008] NSWSC 7 Bartlett v Coomber [2008] NSWCA 282 Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12 Booksan Pty Ltd v Wehbe (No 2) [2007] NSWCA 103 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Bullock v London General Omnibus Co [1907] 1 KB 264 Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109 Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Cook v Hawes [2002] NSWCA 120 Coombes v Roads and Traffic Authority (No 2) [2007] NSWCA 70 Dean v Stockland Property Management Pty Ltd (No 2) [2010] NSWCA 141 Degmam Pty Ltd (in liq) v Wright (No 2) (1983) 2 NSWLR 354 Dominello v Dominello (No 2) [2009] NSWCA 257 East West Airlines Limited v Turner (No 2) [2010] NSWCA 159 Elite Protective Personnel v Salmon [2007] NSWCA 322 Equity 8 Pty Ltd v Shaw Stockbroking Ltd [2007] NSWSC 503 Gould v Vaggelas (1985) 157 CLR 215 Grynberg v Muller; Estate of Bilfeld [2002] NSWSC 350 Hancock v Arnold (No 2) [2009] NSWCA 19 Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 Ingot Capital Investment v Macquarie Equity Capital Markets (No 7) [2008] NSWSC 199 Jones v Bradley (No 2) [2003] NSWCA 258 Keddy v Foxall [1955] VR 320 CASES CITED: King Network Group Pty Ltd v Club of Clubs Pty Ltd (No 2) [2009] NSWCA 204 Lahoud v Lahoud [2006] NSWSC 126 Leichhardt Municipal Council v Green [2004] NSWCA 341 Liverpool City Council v Estephan [2009] NSWCA 161 Lollis v Loulatzis [2008] VSC 35 Macquarie Radio Network Pty Ltd v Arthur Dent (No 2) [2007] NSWCA 33 Milosevic v Government Insurance Office (NSW) (1993) 31 NSWLR 323 Morgan v Johnson (1998) 44 NSWLR 578 Nationwide News Pty Ltd v Naidu (No 2) [2008] NSWCA 71 Oshlack v Richmond River Council [1998] HCA 11 PCRZ Investments Pty Ltd v National Golf Holdings Ltd [2002] VSCA 24 Ralston v Bell & Smith t/as Xentex Patch & Grout [2010] NSWSC 913 Re Hodgkinson [1985] 2 Ch 190 Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd [2001] NSWCA 461 Russell v Edwards (No 2) [2006] NSWCA 52 San v Rumble (No 2) [2007] NSWCA 259 Sanderson v Blyth Theatre Co [1903] 2 KB 533 South Eastern Sydney Area Health Service v King [2006] NSWCA 2 Spedding v Nobles (No 2) [2007] NSWCA 87 Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, FCA, French J, 3 May 1991) Trikas v Rheem (Australia) Pty Ltd (1964) 81 WN (Pt 1) (NSW) 504 Trustee for the Salvation Army (NSW) Property Trust v Becker (No 2) [2007] NSWCA 194 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Wentworth v Wentworth [1999] NSWSC 638 White ACT (in liq) v G B White [2004] NSWSC 303 Sarah Jane Borg (Plaintiff) The Owners of Strata Plan 64425 (1st Defendant) QCron Tenancies Pty Ltd (2nd Defendant) PARTIES: The Owners of Strata Plan 64426 (3rd Defendant) The Owners of Strata Plan 64428 (4th Defendant) Quest Cronulla Pty Limited (5th Defendant) Sutherland Shire Council (6th Defendant) FILE NUMBER(S): 69/08 Ms M Fraser (Plaintiff) COUNSEL: Mr P Dodson (1st, 3rd and 4th Defendants) Mr G Gemmell (2nd and 5th Defendants) Mr N Polin (6th Defendant) Brydens Law Office (Plaintiff) SOLICITORS: Curwoods Lawyers (1st, 3rd and 4th Defendants) McCabe Terrill (2nd and 5th Defendants) DLA Phillips Fox (6th Defendant) REASONS FOR JUDGMENT The costs applications 1. I delivered written reasons for judgment in the substantive proceedings on 10 June 2010 in which I directed the entry of judgment in favour of the plaintiff against each of the first five defendants for $517,074.00. I also directed the entry of various judgments as between some of those defendants pursuant to cross-claims between them. In respect of the 6th defendant, the Council, I directed the entry of judgment in its favour against the plaintiff. These reasons relate to the costs orders to be made. 2. Orders for costs are usually made on the basis that the successful party is awarded costs to be assessed on the ordinary basis: r 42.1 and r 42.2 of the UCPR. The parties in the present case submit that orders for costs other than the usual orders should be made. 3. The plaintiff applied for costs orders as follows: (1) The first five defendants are to pay the plaintiff's costs, such costs to be assessed on the ordinary basis until 9 June 2009 and thereafter on an indemnity basis. (2) The first five defendants are to pay the costs of the 6th defendant. (3) No order as to costs as between the plaintiff and the 6th defendant. (4) Interest is to be paid on any amount of costs payable to the plaintiff to the extent that such costs remain unpaid after 28 days from the date of the order. 4. The 1st, 3rd and 4th defendants applied for costs orders as follows: (1) Subject to Order (4), the 1st, 3rd and 4th defendants are to pay 20% of the plaintiff's costs on the ordinary basis. (2) Subject to Order (4), the 2nd and 5th defendants are to pay 80% of the plaintiff's costs on the ordinary basis. (3) The plaintiff is to pay the costs of the 6th defendant. (4) The plaintiff is to pay the costs of the 1st to 5th defendants of and incidental to the joinder of the 6th defendant. (5) The 2nd and 5th defendants are to pay 60% of the costs of the 1st, 3rd and 4th defendants relating to the cross-claims. (6) To the extent not covered in Order (4), the plaintiff is to pay the 1st, 3rd and 4th defendants' costs thrown away by the various amendments to the Statement of Claim. 5. The 2nd and 5th defendants applied for costs orders as follows: (1) The plaintiff is to pay the 2nd and 5th defendants' costs on an indemnity basis in relation to the matters proved in the Notice to Admit Facts dated 17 February 2010 (MFI 6). (2) The plaintiff is to pay the 2nd and 5th defendants' costs of and incidental to the costs of the joinder of the 6th defendant including the costs in relation to the directions hearings and mentions which took place on 8 May 2009, 12 October 2009, 10 December 2009 and 19 January 2010. (3) To the extent not covered in Order (2) above, the plaintiff is to pay the 2nd and 5th defendants' costs thrown away by the various amendments to the Statement of Claim. (4) The plaintiff is to pay the 2nd and 5th defendants' costs of the plaintiff's Notice of Motion listed for hearing on 3 and 4 November 2009. (5) The plaintiff and/or the 6th defendant is/are to pay the 2nd and 5th defendants' costs in relation to the Notice of Motion filed by the 6th defendant dated 26 February 2010. (6) The 1st, 3rd and 4th defendants are to pay the 2nd and 5th defendants' costs in relation to the Notice of Motion filed by the 1st, 3rd and 4th defendants heard on 18 March 2010. (7) Each of the cross-claimants is to bear their own costs of each cross-claim filed. 6. The 6th defendant applied for costs orders as follows: (1) The plaintiff is to pay the 6th defendant's costs up to 6 July 2009 on the ordinary basis and on an indemnity basis from 7 July 2009. (2) To the extent that the plaintiff is liable to pay the costs of the 6th defendant, the first five defendants are to pay those costs to the 6th defendant. The substantive proceedings 7. In the substantive proceedings the plaintiff claimed damages in respect of injuries received in the early hours of Sunday 13 May 2007 when she fell at the top of a set of steps leading from the Council footpath down to the reception area of the Quest Apartments located in part of the "Sur Mer" building at 1 The Kingsway, Cronulla. She claimed her fall was caused by a cracked tile. At the time of her fall the plaintiff was returning to one of the Quest apartments where she and her family were staying pursuant to a contract of accommodation entered into with the 2nd defendant, QCron Tenancies Pty Ltd trading as Quest Cronulla Beach. 8. It was alleged that each of the original five defendants occupied and controlled the premises at the point that the plaintiff's fall occurred and that they all owed her a duty of care, the breach of which caused her injuries. In addition, it was alleged that the 2nd defendant was in breach of the warranty implied into the contract with the plaintiff by s 74 of the Trade Practices Act 1974, in that the services were not rendered with due care and skill, and the materials supplied in connection with the services were not reasonably fit for the plaintiff's purposes, whereby she fell and injured herself. As against the Council, which was subsequently added as the 6th defendant, it was alleged that if the point at which the plaintiff fell was in fact part of the footpath, the Council was in breach of its duty of care to the plaintiff. 9. The first five defendants denied they occupied the area in which the cracked tile was located and denied breach of any duty of care. In the alternative, they alleged contributory negligence by the plaintiff. The Council also denied liability and contended in particular that it had no actual knowledge of the particular risk alleged: s 45 of the Civil Liability Act 2002. The plaintiff ultimately abandoned her claim against the 6th defendant Council, but pressed her claim against the other defendants. 10. There were various cross-claims between certain of the defendants seeking contribution or indemnity pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. 11. The principal issues in relation to liability were: · What caused the plaintiff's fall? · On whose premises did the plaintiff fall? · Did the plaintiff's fall occur on premises occupied by any of thedefendants? · If so, was there a foreseeable risk of injury to the plaintiff? · Did the defendants take such care as was reasonable in the circumstances? · Did the defendants breach any duty that caused the plaintiff's injury? · If so, did the plaintiff fail to take reasonable care for her own safety? · Was there a warranty implied into the accommodation contract by s 74 Trade Practices Act 1974? · If so, was the 2nd defendant in breach of the implied warranty? · The extent of any contribution or indemnity under the cross-claims between the various defendants required pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946. Summary of the findings and conclusions in the substantive proceedings 12. It was not conceded that the cause of the plaintiff's fall was the defective tile. However, it was never put to her that it wasn't, nor was there any evidence to refute her account or her husband's description of the tile. Nor were there any convincing submissions to the contrary at the conclusion of the evidence. The inescapable conclusion from the evidence was that the heel of the plaintiff's shoe caught in the hole in the cracked tile. 13. A considerable amount of time and focus was spent during the course of the trial in relation to the question of whether the cracked tile that caused the plaintiff's fall was part of the Council footpath, or part of the "Sur Mer" building in which the Quest Apartments were located. The confusion as to the location of the tile was evident from the various amendments to the pleadings after the commencement of the hearing. It ultimately became clear, however, that the cracked tile formed part of an encroachment of the "Sur Mer" building into the adjacent Council footpath. 14. I found that each of the first five defendants was an occupier of the stairs leading from the Council footpath down to the reception area of the Quest Apartments. I was satisfied that occupation of the stairs extended to the outer limit of the tiling on the landing, which area included the cracked tile on which the plaintiff fell. I therefore found that each of the first five defendants was an occupier of the adjacent cracked tile and owed to the plaintiff a duty to take such care as was reasonable in the circumstances. 15. I was satisfied that there was a foreseeable risk of serious injury that was not insignificant from the cracked tile and that the probability was that harm would have occurred if care was not taken, of a likely serious nature. I found that the first five defendants did not take such care as was reasonable in the circumstances and were in breach of their duty of care, that breach having caused the plaintiff's injury. 16. I was not satisfied that the plaintiff failed to take reasonable care for her own safety and found that she was not guilty of any contributory negligence. 17. I rejected the plaintiff's additional claim against the 2nd defendant under s 74(1) of the Trade Practices Act 1974 (Cth). 18. There were various cross-claims brought in which certain defendants seek contribution or indemnity from other defendants pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 in respect of any damages awarded to the plaintiff. These cross-claims were brought by the 2nd and 5th defendants against the 3rd defendant, and in turn by the 3rd defendant against the 2nd and 5th defendants. I was required to apportion culpability between them, and determine the amount of contribution recoverable by each of them that is just and equitable having regard to their respective responsibility for the damage. 19. As between the 2nd and 3rd defendants I apportioned the contribution at 50% one from the other. I was satisfied that the 5th defendant's contribution to the plaintiff's damage was substantially more culpable than that of the 3rd defendant. I determined the amount of contribution recoverable by the 3rd defendant from the 5th defendant at 80%. Correspondingly, I determined the amount of contribution recoverable by the 5th defendant from the 3rd defendant at 20%. 20. I assessed the plaintiff's total damages in an amount of $517,074.00. I ordered that costs were to follow the event and awarded the costs on the ordinary basis, unless a party applied for some other costs order. I gave leave for any such application to be made by notification to the other parties and the court within 14 days, in writing, specifying the order sought. Each party made such an application, and it is those applications that are the subject of these reasons. Matters agreed or conceded 21. The various parties provided written submissions prior to a hearing before me on Friday 6 August 2010, when there were oral submissions. During the course of the hearing various matters were agreed and some concessions were made. First, the 1st, 3rd and 4th defendants abandoned their applications No (1) and (2) for the apportionment of the costs payable to the plaintiff between the first five defendants. Secondly, the 2nd and 5th defendants abandoned their application No (6). Thirdly, the parties to the various cross-claims withdrew their various applications and agreed that each of them should bear their own costs. The plaintiff's application for indemnity costs under her Offer of Compromise 22. The plaintiff's first application was for an order that the 1st, 2nd, 3rd, 4th and 5th defendants pay the plaintiff's costs, such costs to be assessed on the ordinary basis until 9 June 2009 and thereafter on an indemnity basis. This application was based, in the first instance, on an Offer of Compromise served on 9 June 2009 under the relevant rules of the Uniform Civil Procedure Rules 2004 (UCPR): see r 20.26 and r 42.14. The plaintiff offered to resolve her claim for a sum of $200,000. The plaintiff recovered substantially more than $200,000 such that she is entitled to indemnity costs from the beginning of the day following the day the offer was made. 23. The first five defendants resist the application insofar as it is based on the Offer of Compromise. Their first contention is that the offer was not a valid offer. Their second contention is that their failure to accept the offer was not unreasonable in that the case on which the plaintiff ultimately succeeded was significantly different from that which existed at the date of the offer: South Eastern Sydney Area Health Services v King (No 2) [2006] NSWCA 2 at [85]. 24. The validity of the Offer of Compromise was challenged on two bases. 25. The first challenge to the validity was made on the basis that the document served containing the purported offer was undated; did not specify to which of the defendants the offer was directed; and did not specify whether one or several of the defendants were to pay the plaintiff's costs. In my view, these are not matters that invalidate the Offer of Compromise. The date of the offer was established by the accompanying letter. The offer was made to each of the defendants, and it was for any defendant accepting the offer to pay the costs. 26. The second challenge to the validity was made on the basis of r 20.26(4) which provides: "…a plaintiff may not make an offer unless the defendant has been given such particulars of the plaintiff's claim…as are necessary to enable the defendant to fully consider the offer." It was submitted that the "particulars of the plaintiff's claim" on which she ultimately succeeded were not those in the pleadings as they stood at 9 June 2009, the date of the offer. 27. In oral submissions it became clear that the first five defendants position is that it was not until the plaintiff filed her Third Further Amended Statement of Claim (3rd FASC) on 31 March 2010 that control of the defective tile was expressly alleged by the insertion of paragraph 7A, which reads: "The said tiled area was occupied and controlled by the defendants. All of them." The defendants say that prior to this amendment they had come to court to meet a case alleging defective means of access to their premises, because the tile did not form part of their premises. The plaintiff only succeeded on the amended pleading. Thus, at the date of the Offer of Compromise, the defendants had not been given 'such particulars of the plaintiff's claim' as were necessary to enable them to fully consider the offer. 28. Ms Fraser, counsel for the plaintiff, submitted that there was 'an air of unreality surrounding' this proposition. She pointed to the original Statement of Claim at paragraphs 7 - 13, where it was alleged from the outset that the cracked tile was either on or adjacent to the premises owned by the first five defendants, and they were under a duty of care to the plaintiff in respect of the tile, which duty was breached in various ways, including a failure to maintain or adequately repair the tile. 29. Whatever the first five defendants might have read into the original Statement of Claim prior to commencement of the trial on 15 April 2009, it was abundantly clear by 9 June 2009, when the Offer of Compromise was made, that the plaintiff was seeking to make a case based on occupation and control, by the first five defendants, of the defective tile. I said as much in my judgment of 30 March 2010 in respect of the application to file the 3rd FASC: "It is and has always been the plaintiff's case that she tripped, or that her heel became caught in the hole in the tile, and it is and was always her case that the tile was in an area for which the first to fifth defendants were responsible, irrespective of whether it was physically located within the technical boundary or otherwise, and owed her a duty of care in respect of that tile in the ways enunciated in the Statement of Claim. In my view, this is not an amendment which purports to make a new case. Rather it is, as Mr Lidden has submitted, an amendment which merely seeks to bring the pleadings into line with the way the case has proceeded. I will therefore allow the amendment." 30. In my view, therefore, the first five defendants had all the particulars of the plaintiff's claim as were necessary to enable them to fully consider the Offer of Compromise. 31. For these reasons I find that the plaintiff's Offer of Compromise made on 9 June 2009 was valid, and that it triggered the operation of r 42.14. Once the plaintiff recovered her judgment, which was no less favourable to her than her Offer of Compromise, she became prima facie entitled to indemnity costs from the beginning of 10 June 2009: Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109 at [32]. The onus in on the offeree to establish a basis for displacing the presumption: [33] - [35]. 32. In his written submissions, Mr Gemmell, counsel for the 2nd and 5th defendants, correctly submitted that a Court will only depart from the usual rule in exceptional circumstances: Morgan v Johnson (1998) 44 NSWLR 578 at 581 - 2; South Eastern Sydney Area Health Service v King [2006] NSWCA 2 at [83]; Macquarie Radio Network Pty Ltd v Arthur Dent (No 2) [2007] NSWCA 33 at [15]. He addressed the meaning of 'exceptional circumstances', citing a passage from San v Rumble (No 2) [2007] NSWCA 259 at [59]. He went on to submit that exceptional circumstances exist in the present case that justify the Court in displacing the presumption under r 42.14, because: "The course and history of this matter could not be described as one which is 'regularly, routinely or normally encountered'. At the time of service of the Offer of Compromise, the pleadings had not been closed. The Plaintiff's Solicitors had been put on notice as to the objections contained in the further Amended Statement of Claim. The Plaintiff's pleading was in limbo. The issue of the Plaintiff's pleadings was not resolved (in part) until 12 October 2009, four months after service of the Offer of Compromise. The Plaintiff's pleading was amended on at least two occasions following service of the Offer of Compromise. Critically, it was not until the Third FASOC (filed in Court on 31 March 2010) that the Plaintiff pleaded 'The said tiled area was occupied and controlled by the Defendants. All of them' (sic)." 33. I have already dealt with the amendment in the 3rd FASC. The circumstances referred to were not in my view exceptional, and even if they were, they were not circumstances that would justify displacing the presumption in favour of an award of indemnity costs. 34. The decided cases disclose three broad categories circumstances in which the presumption in favour of an award of indemnity costs might be displaced. The first basis is that the period for acceptance was unreasonable. The second is that the offer did not involve any compromise. The third is that the rejection of the offer was not unreasonable. 35. There was no suggestion that the period for acceptance of this Offer of Compromise was unreasonable, or that it did not involve a compromise. It is clear that the plaintiff's offer represented or formed part of a genuine attempt to reach a negotiated settlement: Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12 at [19]. 36. Mr Dodson, counsel for the 1st, 3rd and 4th defendants, submitted that the case on which the plaintiff succeeded was significantly different from that which existed at the date of the Offer of Compromise, citing the cases collected in the Ritchie practice at 42.14.10 and a passage from the judgment in South Eastern Sydney Area Health Service v King [2006] NSWCA 2 at [85]. This principle is also dealt with in the Thomson practice at [42.15.60]: see also Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd [2001] NSWCA 461; East West Airlines Limited v Turner (No 2) [2010] NSWCA 159 at [16]. 37. Thus, an Offer of Compromise may reasonably be rejected where the full parameters of the dispute were still uncertain at the time of the offer: Equity 8 Pty Ltd v Shaw Stockbroking Ltd [2007] NSWSC 503 at [42]; or where the offeror's case changes after the offer: South Eastern Sydney Area Health Service v King [2006] NSWCA 2006 NSWCA 2 at [85]. This determination is an evaluative judgment requiring a consideration of the facts and circumstance specific to the case: Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12 at [19]; King Network Group Pty Ltd v Club of Clubs Pty Ltd (No 2) [2009] NSWCA 204 at [11]. 38. In the present case, however, as I have already said, the substance of the plaintiff's case never changed, and by the date of the Offer of Compromise the defendants were on notice of the case on which she ultimately succeeded. The only thing that changed after the Offer of Compromise was served was the emergence, on the final day of the hearing, of the realisation on the part of the plaintiff's legal team that the cracked tile formed part of an encroachment by the "Sur Mer" building into the adjacent Council footpath (Exhibit Y). That fact, however, was not one that changed the plaintiff's case. It merely made it stronger. Nor, in my view, was it a fact that might be relied upon to contend that the parameters of the dispute were still uncertain at the time of the offer. The "Sur Mer" building was, after all, owned by the first five defendants. The status of the protruding tiles was a matter wholly within their own knowledge. Senior Counsel for the plaintiff dealt with this issue in his submissions at the trial, in referring to the well known passage in Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 at 247 where Kirby P referred Dixon CJ's approach in Hampton Court Ltd v Crooks (1957) 97 CLR 367, and 'spoke of the way in which courts should regard parties who do not go into evidence on issues which they know all about'. He cited the passage, including the following: "To say this is not to shift the onus of proof to the respondent. It is simply to stress the peril which attends the failure to call evidence. Any system of law which rewards those in the best position to call highly relevant evidence for not doing so is scarcely one worthy of respect. At the end of the evidence, such as it is, the inferences must be drawn by the court." 39. For these reasons I am not persuaded that the presumption in favour of the plaintiff under r 42.14 should be displaced, and in my view she is entitled to indemnity costs in accordance with that rule from the day following her Offer of Compromise, namely 10 June 2009. The plaintiff's application for indemnity costs on general principles 40. The plaintiff put her claim for indemnity costs on an alternative basis. 41. The plaintiff's written submissions on the alternative claim are: "Should the plaintiff need to do so, the plaintiff will in the alternative rely upon conduct of the first to fifth defendants as set out below, and on a letter sent 19 March 2010 to those defendants to found a basis for an indemnity costs order at least in respect to liability…" 42. Because I have already decided that the plaintiff is entitled to indemnity costs by reason of her Offer of Compromise, I will deal only briefly with this alternative claim. 43. The letter of 19 March 2010 in effect asks the first five defendants to admit control and occupation of the protruding tiles. The conduct of the first five defendants complained of is set out in some 30 paragraphs (paras 9 - 38), summarising various aspects of the history of the matter. It was submitted by Ms Fraser that the conduct of the first five defendants, viewed in its entirety, together with their refusal to make the admission sought, was contrary to their duty under s 56(3) of the Civil Procedure Act 2005 to assist the Court to further the overriding purpose to facilitate the just, quick and cheap resolution of the real issues in the proceedings. This justified the making of an order for indemnity costs. 44. The discretion to order that costs be paid on an indemnity basis, although absolute, must be exercised judicially: Degmam Pty Ltd (in liq) v Wright (No 2) (1983) 2 NSWLR 354; Milosevic v Government Insurance Office (NSW) (1993) 31 NSWLR 323. It used to be said that the court should only order indemnity costs in exceptional circumstances: Leichhardt Municipal Council v Green [2004] NSWCA 341. See, however: Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 at [111]. 45. The bulk of the recent cases where indemnity costs have been awarded, other than pursuant to Offers of Compromise or Calderbank letters, fall into certain recognised categories. But it has been emphasised that the categories are not closed: PCRZ Investments Pty Ltd v National Golf Holdings Ltd [2002] VSCA 24 at [35] - [36]; Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, FCA, French J, 3 May 1991); Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248 at 233-234 (FCR). Those categories are: · Hopeless cases or defences · Abuse of process · Fraud and other serious misconduct · Unreasonable conduct or "relevant delinquency" in the proceedings 46. It seems to me that the plaintiff's reliance on the letter of 19 March 2010 is an assertion falling into the first category, that is to say that the denial by the first five defendants of occupation and control of the protruding tiles was to propound a defence that in effect had no chance of success: Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12 at [4]. 47. I do not agree with the assertion that that defence was hopeless. Whilst the defendants ultimately lost on that issue, their position could not be said to have been "without substance", "groundless", "fanciful or hopeless" or so "weak as to be futile", some of the phrases used in the cases. Mere weakness of a case is not sufficient to warrant an exercise of the discretion to award indemnity costs: see Wentworth v Rogers (No 5) (1986) 6 NSWLR 534. 48. As to the dangers of assessing "hopelessness" in the "bright light of hindsight", see Grynberg v Muller; Estate of Bilfeld [2002] NSWSC 350 at [48]. 49. The other matters relied upon by the plaintiff seem to me to be assertions of unreasonable conduct sufficient to ground an order for indemnity costs: Oshlack v Richmond River Council [1998] HCA 11 at [44]. 50. There appears to be no fixed rule or rationale as to when the discretion might be exercised: Harrison v Schipp [2001] NSWCA 13 at [139], except that it requires a "sufficient or unusual feature": Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233 - 234, or some "relevant delinquency": Oshlack v Richmond River Council [1998] HCA 11 at [44]. Relevant delinquency, however, does not mean moral delinquency or some ethical shortcoming, but delinquency bearing a relevant relation to the conduct of the case: White ACT (in liq) v G B White [2004] NSWSC 303 at [11], cited in Ingot Capital Investment v Macquarie Equity Capital Markets (No 7) [2008] NSWSC 199 at [24]. See also Liverpool City Council v Estephan [2009] NSWCA 161 at [95]. 51. This is not the occasion to examine the sort of conduct that would justify an order for indemnity costs. It is sufficient for me to say that in the present case there was not, in my view, any such conduct on the part of the first five defendants. 52. I would not make an order for indemnity costs against the first five defendants in the present case on grounds other than their failure to accept the plaintiff's Offer of Compromise. The 6th defendant's application for indemnity costs 53. The 6th defendant seeks an order that the plaintiff pay its costs on an indemnity basis from various alternative dates based on two separate Offers of Compromise, the first having been served on 6 July 2009 and the second having been served on 17 November 2009. 54. In its first Offer of Compromise the 6th defendant offered to settle on the basis that there be a judgment in its favour, each party to bear their own costs. This is commonly referred to as a "walk away" offer of compromise. The second Offer of Compromise was also an offer for judgment in favour of the 6th defendant, but on the basis that the plaintiff pay 50% of the costs and disbursements incurred by the 6th defendant. The basis of the application for indemnity costs was that the 6th defendant obtained a result more favourable than the terms of the offers, the plaintiff having lost against the 6th defendant: r 42.15A. 55. Counsel for the 6th defendant but faintly pressed the application based on its first Offer of Compromise, the "walk away" offer. 56. The effect of an outcome whereby the parties to litigation are to bear their own costs is that no party/party costs are payable: Re Hodgkinson [1985] 2 Ch 190; Trikas v Rheem (Australia) Pty Ltd (1964) 81 WN (Pt 1) (NSW) 504. Such costs as the parties may have incurred themselves, or any liability to pay practitioner/client costs, lie where they fall: Wentworth v Wentworth [1999] NSWSC 638. (Thus, an order that each party pay their own costs is inappropriate, the better order being that each party bear their own costs: Liverpool City Council v Estephan [2009] NSWCA 161 at [75].) 57. In New South Wales the concept of walk away offers has been given express legislative recognition. Rule 20.26(2) of the UCPR provides: "An offer must be exclusive of costs, except where it states that it is a verdict for the defendant and that the parties are to bear their own costs." 58. Nevertheless, the offer must represent or form part of a genuine attempt to reach a negotiated settlement: Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12 at [19]. In Hancock v Arnold (No 2) [2009] NSWCA 19 the Court said at {23] - [24]: "What is required to trigger the costs consequences is an offer of "compromise". It is sometimes said that the offer must be "genuine", but this epithet probably adds little to the concept of compromise. Indeed, it may be distracting if it suggests that some assessment is required of the subjective intentions of the offeror. Whether there is an offer of compromise must be capable of objective determination by reference to the circumstances at the time the offer was made… The purpose of the cost rules is to encourage the making of offers of compromise. If the offer is designed to attract the rules, the rules are presumably having their intended effect…The incentive to settlement will be diminished to the extent that persons receiving offers believe they can ignore them with impunity as to costs consequences". 59. Whether an offer involves the required element of compromise is an evaluative determination, as to which "judicial minds may differ". Thus, an offer designed "merely to trigger any costs sanctions" will not be regarded as an offer of compromise: Leichhardt Municipal Council v Green [2004] NSWCA 341 at [21] - [24], [36] and [39]; Russell v Edwards (No 2) [2006] NSWCA 52 at [8]; Jones v Bradley (No 2) [2003] NSWCA 258 at [12]. Or, the offer involves so small a compromise as to be illusory: Bartlett v Coomber [2008] NSWCA 282 at [8] and [10]. 60. The concept of success is not to be confused with the concept of compromise. In Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 at [28] - [30] the Court of Appeal said: "It will rarely be the case that a decision needs to be made as to whether or not an "offer" answers the description of an "offer of compromise" within the rules. To the extent that the element of compromise is absent, the Court will be more likely to "otherwise order"… The offer…was an invitation to surrender, rather than any form of commercial compromise… Any such element of compromise was, at best, "of limited significance"… The offer can be accurately described as derisory." 61. Thus, an offer that is in substance an invitation to surrender, rather than a commercial compromise, will not trigger the indemnity costs mechanisms unless something more is present, such as a claim approaching the frivolous or vexatious: Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 at [31]. "If it were otherwise, the public policy to encourage settlement would rarely be served, in an all or nothing case." 62. What is ultimately required is that the offer contain some real benefit to a plaintiff, something more than total capitulation: see Bennette v Cohen (No 2) [2009] NSWCA 162 at [38]. See also Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No 2) [2009] NSWCA 336 at [17] - [21]. 63. When the 6th defendant made its first Offer of Compromise, at that stage of the proceedings the costs incurred by it would not have been substantial and in my view, the offer to walk away did not represent or form part of a genuine attempt to reach a negotiated settlement. The offer was an invitation to surrender, designed solely to attract the indemnity costs provisions, not to achieve any form of commercial compromise. The application fails for that reason. 64. But even if the 6th defendant's first Offer of Compromise had been a genuine attempt to resolve the matter, the question arises as to whether it was unreasonable for the plaintiff to have refused the offer, given the stage at which the proceedings then were. 65. The determination as to whether the rejection of an offer was unreasonable is also an evaluative judgment requiring a consideration of the facts and circumstance specific to the case: Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12 at [19]. 66. Circumstances relevant to the reasonableness of rejection have been held to include the situation where the full parameters of the dispute were still uncertain at the time of the offer: Equity 8 Pty Ltd v Shaw Stockbroking Ltd [2007] NSWSC 503 at [42]; or where the offeror's case changes after the offer: South Eastern Sydney Area Health Service v King [2006] NSWCA 2006 NSWCA 2 at [85]; Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd [2001] NSWCA 461; East West Airlines Limited v Turner (No 2) [2010] NSWCA 159 at [16]. 67. As at 6 July 2009 the full extent of the plaintiff's investigations into the potential liability of the 6th defendant were incomplete. The Statement of Claim was not in its final form, and interrogatories had not been finalised. In my view, the full parameters of the dispute so far as it concerned the 6th defendant were still uncertain. I find, therefore, that it was not unreasonable for the plaintiff to have not accepted the 6th defendant's first Offer of Compromise. 68. Turning to the 6th defendant's second Offer of Compromise, the position is simple. The Offer of Compromise is invalid. Rule 20.26(2) of the UCPR provides: "An offer must be exclusive of costs, except where it states that it is a verdict for the defendant and that the parties are to bear their own costs." The offer in question was not exclusive of costs and was not an offer that the parties were to bear their own costs. 69. Mr Polin, counsel for the 6th defendant, submitted in the alternative, that the offer should be treated as a Calderbank offer. 70. There are important differences between an offer of compromise made under the UCPR and offers of compromise made by way of a Calderbank offer. 71. These differences are addressed in detail in a comprehensive extra-curial paper delivered in 2008 by the Hon Justice Beazley AO (see the Supreme Court website at Speeches). See in particular her discussion of the advantages of an Offer of Compromise over a Calderbank offer at paras 60 - 67: see also Macquarie Radio Network Pty Ltd v Arthur Dent (No 2) [2007] NSWCA 339. One such distinction is that a Calderbank offer may be made on an inclusive of costs basis: Trustee for the Salvation Army (NSW) Property Trust v Becker (No 2) [2007] NSWCA 194 at [25] - [29]. See for example: Elite Protective Personnel v Salmon [2007] NSWCA 322 at [7], and Dean v Stockland Property Management Pty Ltd (No 2) [2010] NSWCA 141 at [29]. 72. An offer of compromise which does not conform to the Court rules may nevertheless be considered under the Calderbank principles: Cook v Hawes [2002] NSWCA 120, provided the offer discloses an intention to make a genuine offer: Trustee for the Salvation Army (NSW) Property Trust v Becker (No 2) [2007] NSWCA 194 at [27]. The intention must however, be made clear: Dean v Stockland Property Management Pty Ltd (No 2) [2010] NSWCA 141 at [34]. 73. In the present case, there was no express statement to the effect that the Offer of Compromise should, in the alternative, be treated as a Calderbank offer. In those circumstances I am not satisfied that the 6th defendant made a Calderbank offer. 74. For these reasons, the application by the 6th defendant for an order for indemnity costs based on its Offers of Compromise fails. The application was not put on any alternative basis. The joinder of the 6th defendant 75. A number of applications were made by the parties for special orders for costs arising from the adjournment of the trial on 17 April 2009 (Day 3), and the subsequent joinder of the 6th defendant, the Council. First and foremost is the plaintiff's application, supported by the successful 6th defendant, for a Sanderson order, or a Bullock order, in respect of her liability for the costs of the 6th defendant. The other defendants seek orders of and incidental to the joinder, of various subsequent interlocutory steps, motions and hearings, and the costs of the 6th defendant's motion filed on 26 February 2010, heard on 8 March 2010. 76. Where a plaintiff sues more than one defendant and is unsuccessful as against one or more of those defendants an order for costs will usually be made that the plaintiff is to pay the costs of the successful defendant/s. The Court may, however, exercise its discretion to make other, special orders, commonly referred to as Bullock or Sanderson orders: Gould v Vaggelas (1985) 157 CLR 215. A Bullock order requires the unsuccessful defendant to pay the plaintiff by way of reimbursement any costs the plaintiff has paid to the successful defendant: Bullock v London General Omnibus Co [1907] 1 KB 264. A Sanderson order is more direct and simply requires the unsuccessful defendant to pay the costs of the successful defendant, leaving the plaintiff out of the process entirely: Sanderson v Blyth Theatre Co [1903] 2 KB 533, thus eliminating unnecessary administrative and procedural steps: Coombes v Roads and Traffic Authority (No 2) [2007] NSWCA 70 at [42]. 77. Bullock and Sanderson orders may only be made where two pre-conditions are satisfied: first, that it was reasonable for the plaintiff to proceed against the successful defendant, and secondly, that the conduct of the unsuccessful defendant made it fair to impose liability upon it for the costs of the successful defendant: Gould v Vaggelas (1985) 157 CLR 215. The conduct must be more than a denial of liability. It does not need to amount to misconduct, but it must be conduct sufficient to make it fair to make the order: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [29], such as creating circumstances of uncertainty as to who is the proper defendant: Dominello v Dominello (No 2) [2009] NSWCA 257, citing RTA v Palmer (No 2) [2005] NSWCA 140 at [35]. 78. There is no additional pre-condition to the effect that the cause of action must be substantially connected or interdependent: Nationwide News Pty Ltd v Naidu (No 2) [2008] NSWCA 71 at [16] - [18]; ACQ v Cook (No 2) [2008] NSWCA 306. Properly understood the interdependence of claims against two defendants or the need to join both in circumstances where only one may be liable, but the plaintiff is unable to determine which, are examples of circumstances which may demonstrate the reasonableness of the plaintiff joining the successful defendant. 79. To my mind the first pre-condition was clearly satisfied in the present case. On 17 April 2009, the third day of the trial, the evidence had reached a point which made it quite clear that the cracked tile that caused the plaintiff's fall was part of the Council footpath, and was not on the premises owned by the first five defendants. The subtlety of it being part of an encroachment was not at that stage in the conscious realisation of any party. It was principally for that reason that the trial judge proposed an adjournment to enable the joinder of other parties, including the Council. None of the existing parties opposed that course: T 176.25 - 178.10. 80. The determination of the second pre-condition is more difficult to resolve as there are a number of competing considerations. The plaintiff contends that it was the denial by those defendants that the accident occurred on premises that they either owned or controlled that justifies the order. But as the authorities make clear, a mere denial of liability is not conduct that justifies the making of a Bullock and Sanderson order. The interdependence of the claims against the various defendants in circumstances where only one might be liable may have put the plaintiff in a position of uncertainty, but that only demonstrated the reasonableness joining the 6th defendant, not conduct on the part of the first five defendants sufficient to make it fair to make an order that they should pay the 6th defendant's costs. The reality is that at that stage of the proceedings it was an open question as to which one defendant, all of them, or a combination of them, exercised a sufficient degree of control over the cracked tile to give rise to a duty of care. 81. This was not a case where the unsuccessful defendant changed its position, or its tactics forced the plaintiff to join the additional defendant: see Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 at [189] - [192]. I see nothing in the conduct of the unsuccessful defendants other than a vigorous defence of the plaintiff's claim, on the consistent basis that they exercised no control over the cracked tile. That does not make it fair to impose liability upon them for the costs of the successful 6th defendant. (See also a recent discussion of this issue by Hislop J in Ralston v Bell & Smith t/as Xentex Patch & Grout [2010] NSWSC 913 at [40].) 82. In Dean v Stockland Property Management Pty Ltd (No 2) [2010] NSWCA 141 at [43] the Court of Appeal warned that care must be taken not to unduly deter parties from bringing or defending proceedings for fear that they will retrospectively be found to have not been justified in doing so: "Uncertainty in outcome is not enough, and what appears certain at the time of judgment does not necessarily have that character at an earlier time." 83. For these reasons I refuse the plaintiff's application for a Bullock or Sanderson order. For the same reasons, however, I refuse the applications by the unsuccessful defendants for the costs of the joinder of the 6th defendant, including any costs incurred by reason of the adjournment and the costs associated with the various subsequent interlocutory steps, motions and hearings, except as any such costs may be dealt with expressly later in these Reasons. 84. I come then to the applications relating to the 6th defendant's motion filed on 26 February 2010 and heard on 8 March 2010. That motion sought revocation of the order joining the 6th defendant to the proceedings, or alternatively that the trial judge should disqualify himself. 85. In my view, the need for this motion and the hearing is to be considered against the background of the correspondence passing between the parties in the lead up to the filing of the motion. The 6th defendant's solicitors had written to the plaintiff's solicitors on 17 November 2009, putting her clearly on notice of its position concerning the cracked tile. More importantly, the letter said: "Our client clearly has available to it a defence under s 45 of the Civil Liability Act as our client had no knowledge of the alleged broken tile. Our client also has a defence under s 732 of the Local Government Act, which exempts our client from liability as a consequence of relying upon the certification from Trevor Howse." 86. In the belief that it had a strong defence, the 6th defendant was concerned to ensure that it could recover its costs if successful in its defence, especially against a background in which the joinder was brought about by an order of the Court on its own motion. It sought concessions from the plaintiff in that regard, but these were not given. The substance of the motion was directed at securing the 6th defendants position as to costs in the event it was successful. I am satisfied that the plaintiff should have made those concessions, and if it had the motion would have been obviated. It took the hearing on 8 March 2010, at which I put the plaintiff to a very clear election in this regard, before the plaintiff would concede the potential costs consequences of the joinder of the 6th defendant. 87. On that basis, I am satisfied that the motion and subsequent hearing were necessitated by unreasonable conduct on the part of the plaintiff. The presumption that costs should follow the event may be displaced where there has been disentitling conduct: Oshlack v Richmond River Council [1998] HCA 11 at [22]. Such conduct includes the occasioning of unnecessary expense: Keddy v Foxall [1955] VR 320 at 323-4; Lollis v Loulatzis [2008] VSC 35 at [28]. For that reason I consider the plaintiff should pay the costs of all the other parties of that motion and hearing. Costs thrown away by amendments to the Statement of Claim 88. The first five defendants seek an order in respect of costs incurred but wasted, or additional costs incurred by reason of various amendments to the Statement of Claim. The order was opposed. 89. Where a party amends a pleading and causes costs to be wasted, for example, by the abandonment of a claim in respect of which preparation had been undertaken, in my view the party should be required to pay those wasted costs. Similarly, where as a result of amendment work is required by way of duplication or redoing work, such as filing an Amended Defence, that is also a circumstance calling for the amending party to pay the costs of the other party. 90. I therefore propose to make an order that the plaintiff pay the costs of the first five defendants thrown away by reason of her amendments to the Statement of Claim. Cost incurred in relation to the Interrogatories 91. The first five defendants seek an order in respect of costs incurred in respect of the plaintiff's application for the administration of interrogatories. The order was opposed. 92. It was submitted that most of the interrogatories sought were defectively drafted and that ultimately the first five defendants were required to answer only two of the 15 original interrogatories and costs should be awarded to the first five defendants. 93. Given the limited success of the plaintiff in respect of the interrogatories, in my view the parties should be required to bear their own costs of administering and responding to the interrogatories. The Notice to Admit Facts served by the 2nd and 5th defendants 94. The 2nd & 5th defendants seek an order that the plaintiff pay their costs in relation to the matters set out in the Notice to Admit Facts dated 17 February 2010 that the plaintiff refused to admit. 95. The facts that the plaintiff was asked to admit were that the tile on which she alleged she tripped was: 1. Within the public road reserve. 2. On the footpath. 3. Not part of the common property of the apartments located at 1 Kingsway. 96. The 2nd & 5th defendants claimed costs unnecessarily incurred by being put to proof of these matters, including the expenses of the expert surveyor retained. 97. It was clear by 17 February 2010 that the cracked tile was technically located within the footpath and did not form part of the Sur Mer building. However, having regard to the state of the dispute at that time and the continuing resistance of the first five defendants to the assertion of occupation or control of the fractured tile, it was in my view not unreasonable for the plaintiff to keep these matters in issue. 98. The application for costs arising from the Notice to Admit Facts is, therefore, refused. The various motions and interlocutory hearings during the adjournment 99. A series of submissions and criticisms was levelled by all parties in relation to the various of the interlocutory steps undertaken during the adjournment of the trial, that is, between 18 April 2009 and 26 March 2010. Except for the matters that I have already dealt with, I regard all other interlocutory steps taken as part of the concomitants of hard fought litigation, as to which costs should follow the ultimate outcome, in accordance with r 42.7(1)(b). Interest on unpaid costs 100. The plaintiff also seeks an order for interest on unpaid costs. The application is made under s 101(4) of the Civil Procedure Act 2005, which provides that the Court may order that interest is to be paid on any amount payable under an order for the payment of costs. 101. Interest does not run on so much of a judgment that arises under an order for costs, unless there is an order under s 101(4), or until the costs have been assessed and the registrar enters judgment, in accordance with the certificate of the costs assessor, for any unpaid costs: r 36.10(2): Spedding v Nobles (No 2) [2007] NSWCA 87 at [15]. The power to award interest is a wide one, the purpose of which is to compensate a party out of pocket as a result of paying its practitioner/client costs: Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 at [176]. There is no requirement to satisfy the court that there are circumstances out of the ordinary: Lahoud v Lahoud [2006] NSWSC 126 at [82]. 102. Ultimately, there was no opposition to the making of an order, provided it was expressed to operate only in the future, after a period of 28 days following notification of payment of the underlying solicitor/client costs for which indemnity is sought, and that the order extend to all parties. Costs of the Costs Applications 103. It remains for me to deal with the costs of the various costs applications. 104. The plaintiff has succeeded on only some of her applications. Similarly the defendants have only succeeded on some of their applications, but not on others. In my view it is appropriate to apportion the costs. 105. Where there has been a mixed outcome in proceedings justifying an apportionment of the costs, and mathematical precision is illusory, the exercise of discretion will often depend upon matters of impression and evaluation: Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [11]; Booksan Pty Ltd v Wehbe (No 2) [2007] NSWCA 103; Alamdo Holdings Pty Limited v Australian Window Furnishings (NSW) Pty Ltd [2008] NSWSC 7 at [32]. 106. It may also be appropriate, where each party has had substantial success, to order that there be no order as to costs: Hogan v Trustee of the Roman Catholic Church (No 2) [2006] NSWSC 74 at [40]; Xstrata Qld Ltd v Santos Ltd [2005] QSC 358; AWB Ltd v Cole (No 6) [2006] FCA 1274. 107. In my view, I should exercise my discretion so as to require that the parties each bear their own costs of the various applications the subject of this judgment. Disposition 108. I therefore revoke the costs order made on 10 June and order instead as follows: (1) Except to the extent provided in the following orders, the 1st, 2nd, 3rd, 4th and 5th defendants are to pay the plaintiff's costs. Such costs are to be payable on the ordinary basis until 9 June 2009 and from 10 June 2009 are payable on an indemnity basis. (2) The plaintiff is to pay the costs of the 6th defendant, on the ordinary basis. (3) The plaintiff is to pay the costs of all six defendants, on the ordinary basis, in respect of the 6th defendant's motion filed on 26 February 2010 and heard on 8 March 2010. (4) The plaintiff is to pay the costs of the 1st, 2nd, 3rd, 4th and 5th defendants thrown away by reason of her amendments to the Statement of Claim, on the ordinary basis. (5) Each of the parties is to bear their own costs of the Interrogatories. (6) Each of the cross-claimants is to bear their own costs of each Cross-Claim filed. (7) Each party liable to pay the party/party costs of another party is to pay interest on any such costs that remain unpaid, such interest to run only from the expiry of 28 days after notification by the party having the benefit of the costs order that the practitioner/client costs to which such party/party costs relate have actually been paid. 109. I direct the entry of judgments in accordance with these orders. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.