Industrial Relations Commission of New South Wales CITATION: Zammitt and Another v Trend Windows & Doors Pty Limited (No 2) [2008] NSWIRComm 234 APPLICANTS: Vincent Michael Zammitt PARTIES: Stephen Robert Hill RESPONDENT: Trend Windows & Doors Pty Limited FILE NUMBER(S): IRC 6531 and 7126 of 2002 CORAM: Backman J CATCHWORDS: Unfair contract - s 106 of the Industrial Relations Act 1996 - application by respondent - costs - offers of compromise - application of the IRC Rules - interest - whether award of interest should be limited on the ground of delay or in the alternative under s 100(4) Civil Procedure Act 2005 - set-off - whether a set-off of respondent's costs against applicants' costs should be ordered - whether a set-off of costs against any residual costs following a set-off of costs against costs should be ordered against the amounts granted in respect of the applicants' claims - whether judgment orders granting monetary relief under the claims should be stayed until costs are agreed or assessed - orders. LEGISLATION CITED: Civil Procedure Act 2005 Industrial Relations Act 1996 Abboud v State of New South Wales (Department of School Education) (No 2) (2000) 99 IR 299 Australian Beverage Distributions Pty Ltd v Evans & Tate Premium Wines Pty Ltd and Another (2007) 69 NSWLR 374 Bowman v Ricegrowers Ltd (formerly Ricegrowers' Co-operative Ltd) (No 2) (2007) 168 IR 180 Evans & Tate Premium Wines Pty Ltd v Australian Beverage Distributions Pty Ltd; Australian Beverage Distributions Pty Ltd v Evans & Tate Premium Wines Pty Ltd and Another (2000) 230 ALR 184 Gertig v Davies and Another (2003) 85 SASR 226 CASES CITED: Great Scott International Pty Ltd & Anor (No 3) v Cosmetic Suppliers Pty Ltd & Anor [2007] NSWIRComm 282 HK Frost Holdings Pty Ltd (in liq) v Darvall McCutcheon (a firm) [1999] FCA 795 John Sheiles v TB Clarke (overseas) Pty Limited [2007] NSWIRComm 262 Leichhardt Municipal Council v Green [2004] NSWCA 341 Morgan v Johnson Green (1998) 44 NSWLR 578 Zammitt and Another v Trend Windows & Doors Pty Ltd [2008] NSWIRComm 48 HEARING DATES: 19 May 2008 DATE OF JUDGMENT: 4 December 2008 APPLICANTS: Mr K J Pierce of counsel Solicitors: Stewart Cuddy & Mockler Solicitors (Mr D Mockler) LEGAL REPRESENTATIVES: RESPONDENT: Mr M J Moir of counsel Solicitors: K. P. O'Donnell & Associates (Mr B O'Donnell) JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: BACKMAN J Thursday, 4 December 2008 Matter No IRC 6531 of 2002 Vincent Michael Zammitt v Trend Windows & Doors Pty Limited Application under section 106 of the Industrial Relations Act 1996 Matter No IRC 7126 of 2002 Stephen Robert Hill v Trend Windows & Doors Pty Limited Application under section 106 of the Industrial Relations Act 1996 JUDGMENT [2008] NSWIRComm 234 1 The respondent seeks orders with regard to costs and interest following judgment in these matters in proceedings brought under s 106 of the Industrial Relations Act 1996: Zammitt and Another v Trend Windows & Doors Pty Ltd [2008] NSWIRComm 48. 2 The present application arises because the respondent sent the applicants offers of compromise prior to the hearings in an effort to settle the matters. Both offers were dated 2 September 2003 and expressed to be open for 28 days. Neither applicant appears to have responded to the respective offers within the time allotted and the offers lapsed accordingly. 3 The offer of compromise sent to Mr Zammitt provided for payment to him in compromise of his claim under s 106 of the Act in the sum of $45,000, as well as payment of his costs, "as agreed or assessed in accordance with Part 27 of the Rules". The offer of compromise sent to Mr Hill provided for payment to him in the sum of $40,000, as well as payment of his costs, "as agreed or assessed in accordance with Part 27 of the Industrial Relations Commission Rules 1996". 4 The respondent in Order 3 of the judgment orders was ordered to pay Mr Zammitt an amount equivalent to six months notice calculated by reference to his gross yearly earnings for the financial year ending 30 June 2002 less all operating expenses incurred during that financial year. The respondent was ordered to pay Mr Hill an amount equivalent to five months notice calculated on the same basis as the order made against it in Mr Zammitt's matter. 5 According to the respondent's calculation, with which both applicants are in agreement, this results in a sum payable to Mr Zammitt of $33,288.50, and a sum payable to Mr Hill of $28,923.75. Interest payable on Mr Zammitt's principal sum, from the date the summons was filed (15 December 2002) until the date of the offer of compromise (2 September 2003) has been assessed at $2,151.02. This results in a total amount payable of $35,439.52. Interest payable on Mr Hill's principal sum, from the date the summons was filed (16 December 2002) until the 2 September 2003 has been assessed at $1,860.93. This results in a total amount payable to Mr Hill of $30,784.68. 6 Each amount results in a total sum which is "not more favourable" than the terms of the respective offers of compromise. The expression "not more favourable" appears in Rule 216(6) of the IRC Rules which governs a party's entitlement to costs following an offer of compromise made by the respondent party which has not been accepted by an applicant. Rule 216(6) provides: 216 Offer of compromise (6) Where an offer is made by a respondent and not accepted by the applicant, and the applicant obtains an order on the claim to which the offer relates not more favourable than the terms of the offer, then, unless the Commission otherwise orders, the applicant shall be entitled to an order against the respondent for costs in respect of the claim up to and including the day the offer was made, assessed on a party and party basis, and the respondent shall be entitled to an order against the applicant for costs in respect of the claim thereafter, assessed on a party and party basis. 7 In accordance with the Rule, "unless the Commission otherwise orders", an applicant is entitled to his costs up to the day the offer of compromise was made, assessed on a party and party basis, and a respondent is entitled to costs thereafter, also assessed on a party and party basis. 8 Rule 216(8) is also relevant to the present applications. It provides that in determining the consequences as to costs pursuant to Rule 216(6) the Commission must disregard any interest ordered to be paid on the principal sum as related to the period after the day the offer was made. Where the Court has ordered that interest should be payable on the principal sum, therefore, only that component of interest payable up until the date the offer of compromise was made should be considered. 9 In the absence of any contention by the applicants to the contrary I propose to accept the respondent's calculations in my consideration of the applications made by it under Rule 216(6). The applicants are therefore entitled, prima facie, to their costs up to the date the offers of compromise were made, assessed on a party and party basis and the respondent is entitled to its costs thereafter also assessed on a party and party basis. 10 The applicants in written submissions contended that the Court should exercise its discretion against the respondent in relation to both applications and not make the orders sought by it under Rule 216(6). A number of matters were advanced in support of the contention. These were: (1) The Applicants' former legal representative (Mr Peter Elias, Solicitor) had ceased to act effective 3 July 2003; (2) The Applicants' new solicitor was yet to receive the Applicants' former solicitor's file during the currency of the offer; (3) On 4 March 2003 the Applicants still required that further directions be made, which were made by consent; (4) The Applicants were not in a position to file their Affidavits in chief until 6 September 2004; (5) The Respondent did not concede its unfairness at any time; (6) The Applicants each had an expectation of long term work; (7) The offer did not break down the gross sums offered in each case where the Applicants' work involved deductible business expenses which needed to be ascertained if to be deducted from any award, (8) The Applicants, consequent upon the unfairness to them were each left in terrible personal circumstances which severely hampered their respective ability to deal with the claims generally including: a. Their ability to consider with, and deal with claims in a timely fashion; b. Their ability to properly consider the offer; and its potential implications; c. Their ability to obtain properly informed legal advice in response thereof; d. Their ability to consider the relevant levels of their potential business expenses; e. The Applicants each had enough problems trying to salvage their personal lives, deal with financial problems and to assess their ability to decide whether or not they could find other work and in what period that might take place 11 An affidavit of Denis Joseph Mockler of Stewart Cuddy & Mockler (the applicants' solicitors on the record), was annexed to the applicants' written submissions. According to that affidavit Mr Mockler's firm was instructed to act on behalf of the applicants on 9 July 2003. Mr Mockler held a conference with Mr Zammitt on 8 September 2003 during which Mr Mockler was informed that Mr Zammitt was in financial difficulty and had to move out of home. Mr Zammitt was requested to make available business records and taxation returns for the period he was engaged to work for the respondent. Mr Zammitt in an affidavit also attached to the applicants' submissions confirmed this sequence of events. According to Mr Zammitt's affidavit he had "extreme difficulty" locating many relevant business records which had been stored after he moved our of his home in November 2003. Mr Hill's affidavit was also attached to the submissions. Mr Hill deposed that he instructed Stewart Cuddy & Mockler to take over the conduct of his application under s 106 of the Act in about July 2003 but the file was not transferred from the firm of solicitors previously retained to conduct the matter until November 2003. According to Mr Hill's affidavit he also had difficulty locating relevant business records. 12 In Leichhardt Municipal Council v Green [2004] NSWCA 341 Santow JA made a number of observations on the significance of offers of compromise in relation to the Court's general discretion to award costs, specifically offers of settlement made by a defendant. His Honour's observations were directed to the procedures for offers of compromise which were to be found in the Supreme Court and District Court Rules, and which contained procedures similar to the procedures set out in Rule 216 of the IRC Rules. In the context of making a comparison between the procedures for awarding costs attendant upon an offer of compromise made in a Calderbank letter and an offer of compromise made in accordance with the Rules, his Honour said (at [19]): where an offer of compromise has been made under the Rules, a prima facie entitlement arises in the relevant party to have costs awarded in accordance with the appropriate Rule. This entitlement, though subject to the Court's discretion to prevent substantial injustice in exceptional cases, will rarely be interfered with 13 In Morgan v Johnson Green (1998) 44 NSWLR 578 Mason P considered an application by a defendant under Rule 25(6) of Part 39A of the District Court Rules following a verdict to the plaintiff which fell below the sum previously offered by the defendant by way of an unaccepted offer of compromise. Rule 25(6) in Part 39A (as it stood prior to January, 1998) was substantially similar to the present IRC Rule 216(6). In considering the application of Rule 25(6) DCR, his Honour looked at the corresponding rules of the Supreme Court which, his Honour noted, were not materially different from the relevant District Court rule. His Honour then extracted a number of principles from leading cases on both sets of rules (at 581 - 582): (1) The purpose of the rule is to encourage the proper compromise of litigation, in the private interests of individual litigants and the public interest of the prompt and economical disposal of litigation: Maitland Hospital (at 725-726); Hillier (at 421, 431). (2) The aim is to oblige the offeree to give serious thought to the risk involved in non-acceptance: Maitland Hospital (at 724). (3) The prima facie consequence of non-acceptance will be that the rule will be enforced against the non-accepting party: NSW Insurance Ministerial Corporation v Reeve (at 102); Hillier (at 422). This is because, from the time of non-acceptance "notionally the real cause and occasion of the litigation is the attitude adopted by [the party] which has rejected the compromise": Maitland Hospital (at 724); see also Hillier (at 420). (4) Lying behind the rule is the common knowledge that "litigation is inescapably chancy": Maitland Hospital (at 725). For this reason, the ordinary provision is expected to apply in the ordinary case: ibid NSW Insurance Ministerial Corporation v Reeve (at 102-103). The mere fact that it was reasonable for the litigant to take the view that he or she did in rejecting the offer is not enough to displace the rule: NSW Insurance Ministerial Corporation v Reeve (at 102). As Clarke JA expressed it in Houatchanthara (at 2-3): The rule lays down the general principle that should be applied, and the order provided for in that rule should only be departed from for proper reasons which, in general, only arise in an exceptional case. It is clear that if the rule operates, the plaintiff will be significantly disadvantaged, but that disadvantage flows naturally from the risks of litigation. The idea behind the rule is to encourage settlement or compromise of proceedings, and more specifically, to encourage litigants to give serious consideration to the settlement of proceedings. Where an offer is made by a defendant to a plaintiff, the latter is put on notice that unless he or she accepts that offer, there is a significant risk that the order provided for by the rule may follow. In declining to accept the offer, the plaintiff undertakes the risk and the consequences that flow naturally from that risk." (5) The discretion to displace the rule is a judicial one, requiring the private and public purposes of the rule to be borne in mind: Maitland Hospital (at 725-726). Reasons must be given for "otherwise ordering": Hillier (at 419); Quach . 14 Principle (4) assumes particular significance in the present proceedings. It illustrates that a finding that an applicant's rejection of a respondent's offer of compromise made in accordance with Rule 216(6) was reasonable, would not, of itself, be sufficient to displace the Rule. 15 It follows from the foregoing observations, which I adopt for present purposes, that the respondent in the present proceedings under Rule 216(6) is entitled, prima facie, to its costs on a party and party basis, and that that entitlement will only be displaced in the discretion of the Court in exceptional circumstances in order to prevent a substantial injustice: see also Great Scott International Pty Ltd & Anor (No 3) v Cosmetic Suppliers Pty Ltd & Anor [2007] NSWIRComm 282; John Sheiles v TB Clarke (overseas) Pty Limited [2007] NSWIRComm 262; Bowman v Ricegrowers Ltd (formerly Ricegrowers' Co-operative Ltd) (No 2) (2007) 168 IR 180 at [25]. 16 Returning to the applicants' contentions on the application of Rule 216(6), while it may be appreciated that both applicants experienced considerable difficulties in the organisation and preparation of their respective cases, the chronology of events set out in the applicants' submissions reveals that much of the difficulties occurred well after the offer of compromise lapsed. In addition both applicants retained the services of Stewart Cuddy & Mockler, solicitors, in July 2003, some three months before the offers of compromise were made. According to an affidavit of Bernard O'Donnell, the respondent's solicitor, Mr Mockler informed the respondent by letter that both applicants had received their offers of compromise. No reasonable explanation, in my view, was forthcoming from the applicants as to why the offers of compromise were not considered. No correspondence was forthcoming on their behalf indicating that the offers had been formally rejected. The applicants' contention that the offers did not "break down the gross sums" lacks substance. There was nothing raised in the material before the Court which might have sustained a suggestion that the applicants were unable to communicate with the respondent and request clarification of the derivation of their settlement amounts. The rule allowed the applicant 28 days to consider the offers. They were both legally represented at the time the offers were made. 17 None of the circumstances relied upon by the applicants, in my view, would prevent the Court from exercising its discretion in the respondent's favour. I propose therefore to order in the terms set out in Rule 216(6) of the IRC Rules. The orders that I propose will be that the respondent pay the applicants' costs in respect of their claims under s 106 of the Act up to 2 September 2003 assessed on a party and party basis and the applicants pay the respondent's costs in respect of each claim thereafter, assessed on a party and party basis. Interest 18 The respondent also asks the Court, in the exercise of its discretion to limit any award of interest payable to the applicants. Two bases have been put forward by the respondent in support of its request. These are: (i) The applicants' delay in the conduct of the proceedings between the dates of filing the summonses for relief (December 2002) and the date the applications were set down to be heard by the Court; (ii) Section 100(4) of the Civil Procedure Act 2005. 19 With regard to the issue of delay, the respondent prepared a chronology of events in relation to the proceedings which is, for convenience, extracted below: Event Stephen Hill Vincent Zammitt Summons for Relief lodged - Slater & Elias 16 December 2002 15 December 2002 Notice of Appearance filed - Brian Eichhorn, Trend Windows 22 January 2003 22 January 2003 Reply filed 30 January 2003 30 January 2003 Response filed 12 February 2003 12 February 2003 Conciliation 13 June 2003 13 June 2003 Notice of Change of Solicitor filed for Applicants - Denis Mockler, Stewart Cuddy & Mockler 26 June 2003 26 June 2003 Notice of Change of Appearance filed for Respondents - Bernard O'Donnell, KPOD 26 August 2003 26 August 2003 First Directions Hearing: Agreed between parties that Applicants' solicitor mention the matters for both paries as Applicant's solicitor had not received the file for Mr Hill at that time. 13 November 2003 13 November 2003 Second Directions Hearing: Directions made by consent by Marks J 4 March 2004 4 March 2004 Affidavit and other evidentiary material served by Applicants 1. Stephen Hill 6 September 2004 6 September 2004 2. Vincent Zammit Affidavit and other evidentiary material served by Respondent 1. Brian Eichhorn All affidavits served upon the applicant on 9 March 2005 All affidavits served upon the applicant on 9 March 2005 2. Anthony Ciappara 3. Petr Krotky No discovery - Notice to Produce filed 8 June 2005 8 June 2005 Notice of Motion to dismiss the application for want of prosecution 11 July 2006 11 July 2006 20 According to the respondent, the table reproduced above, which was completed from information set out in Mr O'Donnell's affidavit, identifies a "litany of delay" on the part of the applicants who failed to prosecute their claims in a timely and reasonable manner. 21 The applicants, in contending to the contrary, relied on the circumstances set out in support of their submissions that Rule 216(6) should not be invoked, in the exercise of discretion, in the respondent's favour. In addition the applicants contended that the respondent, which had acted unfairly, has had the benefit of the money. The applicants also contended that the issue of delay had already been disposed of by agreement between the parties. This last mentioned contention appears to be a reference to a Notice of Motion filed by the respondent in July 2006 in which orders were sought to strike out the applicants' claims for want of prosecution. According to Mr O'Donnell's affidavit the respondent ultimately withdrew its Notice of Motion following negotiations with the applicants. Correspondence between the parties annexed to Mr O'Donnell's affidavit suggested that on 18 October 2006 the applicants had failed to comply with directions made by consent before his Honour Justice Marks, which had resulted in further delay in processing the applications. 22 The respondent in advancing its contention that the delay in the proceedings caused by the applicants should limit any awards of interest payable on the principal sums, relied on a passage from a Federal Court decision of HK Frost Holdings Pty Ltd (in liq) v Darvall McCutcheon (a firm) [1999] FCA 795 at [11]: [11] . . . insofar as concerns a successful applicant who has been guilty of unreasonable delay, the view I am prepared to follow in the absence of binding authority is that the period for which the interest award is made can properly be adjusted if to allow interest for the whole period for which it could otherwise be ordered would work an injustice to the respondent in the circumstances: cf Clarke v Foodland Stores Pty Ltd , above, at 400. Such would seem to be consistent with the policy of the s 51A(1) in that an applicant that has been held out of the benefit of its money because of its own unreasonable actions should not be allowed as of course to cast the effects of a `self-inflicted burden' onto the respondent: Keithara Pty Ltd v J G L Holdings Pty Ltd (Supreme Court of Victoria, Smith J, 6 December 1994, unreported). 23 Based on the passage quoted above, the respondent submitted that it would be "just in the circumstances of the case" for any awards of interest to be heavily discounted owing to the unreasonable delay on the part of the applicants. 24 In Abboud v State of New South Wales (Department of School Education) (No 2) (2000) 99 IR 299 Schmidt J at [47] made the following observation with regard to an award of interest on a principal sum ordered to be paid under s 106 of the Act: [47] It follows that the awarding of an interest component is a matter of discretion to be exercised in the particular circumstances of the case in order to discharge the statutory duty, now arising under s 106(5), to make a monetary order in connection with the contract varied, "just in the circumstances of the case". This will not necessarily require that interest at commercial rates and for commercial reasons be awarded in every case, even those with a commercial flavour. 25 In my view although the material before the Court contains some indications of delay on the part of the applicants in prosecuting their applications, it is not of sufficient severity to warrant limiting the amounts of interest that may otherwise be awarded on the ground of delay. One factor which has influenced my decision in this regard is that the respondent's Notice of Motion filed in July 2006 seeking orders that the applicants' claims be struck out for want of prosecution was withdrawn by agreement between the parties. Thereafter there was some indication of further delay but otherwise both matters progressed to a hearing which commenced on 30 April, 2007. 26 I also rely upon and adopt my remarks, as relevant to the issue of whether an interest payment on a principal sum ordered to be paid under s 106 should be limited, in John Sheiles v TB Clarke at [31]: [31] While it cannot be disputed that there are strong public policy reasons for providing incentives to litigants to end the litigation as soon as possible (as to which see Leichhardt Municipal Council at [14] [44]), it must be borne in mind that the present applicant was successful in his claim under s 106. In the passage earlier extracted from the judgment of Santow JA in Leichhardt Municipal Council (at [45]), his Honour remarked that depriving a successful plaintiff (or applicant) of costs and awarding them in favour of a defendant (or respondent), "should ordinarily be sufficient sanction against a plaintiff failing to give adequate consideration to a defendant's offer". The consequences to the present applicant will be that he must pay the respondent's costs on a party and party basis from the day after the offer of compromise was made notwithstanding that he has been successful on his claim. This should operate as a sufficient sanction against the failure to give adequate consideration to the offer of compromise and should satisfy the public policy objectives underlying the rejection of offers of compromise that should have been accepted. 27 In the alternative the respondent relied on the application of s 100(4) of the Civil Procedure Act in advancing its contention that the applicants should not be awarded interest beyond the date that the respondent made its offers of compromise. 28 In John Sheiles v TB Clarke (at [30]) I found that s 100 (4) was confined in its terms to proceedings for damages and therefore had no application to monetary orders made under s 106 of the Act. For convenience the relevant passage from the judgment is extracted below: [30] The respondent also submits that s 100(4) of the Civil Procedure Act 2005 should be applied by the Court in determining the amount of interest that is to be awarded to the applicant under s 106(5). Under that section the Court may not order payment of interest from the period when, "an appropriate settlement sum", was offered by the defendant unless the special circumstances of the case warrant the making of such an order. "Appropriate settlement sum" is defined in s 100(5). It means, in effect, the amount offered by way of settlement offer if the actual judgment amount does not exceed it by more than 10%. The section, however, is confined in its terms to proceedings for damages and does not therefore apply to proceedings under s 106 of the Act. So much has been conceded by the respondent, whose reliance on the section is confined to what it has described as underlying public interest considerations, namely the encouragement of an appropriate settlement sum without the need to use the resources of the Court and without incurring unnecessary legal costs. 29 For the same reasons I find that s 100 (4) has no application to the present proceedings. 30 I propose therefore to make orders that the respondent pay interest on the principal sums awarded in the judgment from the date each summons for relief was filed until the date of judgment. Set-off 31 The respondent also submitted that it is "appropriate and fair" for the Court to make an order that it set-off the costs ordered to be paid by the applicants to the respondent against the costs of the applicants until 2 September 2003 as agreed or assessed on a party and party basis. 32 The basis upon which the Court was asked to make such orders was that the costs of the respondent incurred after the making of the offers of compromise, "will significantly exceed the costs of the applicants". This proposition proceeded upon an assumption on the part of the respondent that the applicants' costs incurred from 15 and 16 December 2002 respectively until 2 September 2003, on a solicitor-client basis, "can be assessed to be [a] relatively low amount (say in the order of $5,000 to $10,000) . . . because the substantial part of this period was taken up by conciliation and did not involve much, if any substantive preparation for the hearing." By contrast the respondent estimates its costs on a party and party basis, incurred from 3 September 2003 until 20 March 2008, to be in excess of $60,000. 33 The applicants made no submissions on this particular issue. Taking therefore the respondent's estimates at face value, and in the absence of any submissions made by or on behalf of the applicants on the issue, it would appear, given the disparity in the estimates, that the respondent's costs incurred after 2 September 2003 will exceed the applicant's costs incurred prior to that date. This result becomes more likely when regard is had to the fact that much of the preparation associated with the litigation took place after 2 September 2003. 34 Based on these considerations I propose to make an order to set-off the respondent's liability to pay costs against the applicants' liability to pay costs, in accordance with Rule 216(6). The respondent also contended that, following a set-off of costs against costs which it says would result in a substantial balance of residue owing to it, a further order should be made to set-off the balance owing to it against the principal sums payable to the applicants on their claims as well as any interest recoverable by them. In reliance upon the contention the respondent directed attention to Evans & Tate Premium Wines Pty Ltd v Australian Beverage Distributions Pty Ltd; Australian Beverage Distributions Pty Ltd v Evans & Tate Premium Wines Pty Ltd and Another (2000) 230 ALR 184 at [68] to [70], and Gertig v Davies and Another (2003) 85 SASR 226 at [23] to [24] as authorities in support of the proposition that the Court has the power to order a set-off of judgment for costs; cf . Australian Beverage Distributions Pty Ltd v Evans & Tate Premium Wines Pty Ltd and Another (2007) 69 NSWLR 374 at [145]. 35 While I acknowledge that the Court has the power to make such an order I decline to do so in the present circumstances. The basis of such an order would necessarily proceed upon one party's estimate of costs incurred. The Court would require some degree of certainty as to the costs actually incurred before it was prepared to entertain the making of such an order, which could effectively deprive the applicants of any monetary relief following the success of their claims. Stay 36 The respondent also seeks a stay of the judgment orders, which awarded the applicants payments by way of additional notice, until the costs of the parties are agreed or assessed. I see no reason to grant a stay in circumstances where I have declined to make an order to set-off the orders for monetary relief against costs. I note also, that a court's jurisdiction to stay its own proceedings, which extends to the staying of the execution of judgment and orders, should be exercised with caution: Evans & Tate Premium Wines Pty Ltd v Australian Beverage Distributions Pty Ltd; Australian Beverage Distributions Pty Ltd v Evans & Tate Premium Wines Pty Ltd and Another (2000) 230 ALR 184 at [72]. 37 Finally the respondent invites the Court to "clarify and confirm" the quantum of money orders awarded in favour of the applicants, in the amounts agreed between the parties, namely a payment of $33,288.50 in favour of Mr Zammitt and a payment of $28,923.75 in favour of Mr Hill. I propose accordingly to vary Order 3 by deleting it from the judgment orders made in both matters and substituting the following orders: In Matter No IRC 6531 of 2002 3. Trend Windows & Doors Pty Limited is to pay Vincent Michael Zammitt the amount of $33,288.50. In Matter No IRC 7126 of 2002 3. Trend Windows & Doors Pty Limited is to pay Stephen Robert Hill the amount of $28,928.75. Orders 38 The Court makes the following orders: In Matter No IRC 6531 of 2002 1. Order 3 made by the Court on 20 March 2008 is varied by deleting it and substituting the following order: 3. Trend Windows & Doors Pty Limited is to pay Vincent Michael Zammitt the amount of $33,288.50. 2. The respondent is to pay the applicant's costs as agreed or assessed on a party and party basis up to 2 September 2003 and the applicant is to pay the respondent's costs as agreed or assessed, on a party and party basis from 3 September 2003 until 20 March 2008. 3. The respondent is to pay to the applicant, interest on the sum of $33,288.50 from 15 December 2002 until 20 March 2008. 4. The respondent may set-off the costs ordered to be paid under Order 2 above against the costs of the applicant, as agreed or assessed on a party and party basis until 2 September 2003. In Matter No IRC 7126 of 2002 1. Order 3 made by the Court on 20 March 2008 is varied by deleting it and substituting the following order: 3. Trend Windows & Doors Pty Limited is to pay Stephen Robert Hill the amount of $28,928.75. 2. The respondent is to pay the applicant's costs as agreed or assessed on a party and party basis up to 2 September 2003 and the applicant is to pay the respondent's costs as agreed or assessed, on a party and party basis from 3 September 2003 until 20 March 2008. 3. The respondent is to pay to the applicant interest on the sum of $28,928.75 from 16 December 2002 until 20 March 2008 4. The respondent may set-off the costs ordered to be paid under Order 2 above against the costs of the applicant, as agreed or assessed on a party and party basis until 2 September 2003. _____________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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