New South Wales Supreme Court CITATION : Mid-City Skin Cancer & Laser Centre v Zahedi-Anarak [2006] NSWSC 1149 HEARING DATE(S) : 30 October 2006 JUDGMENT DATE : 7 November 2006 JURISDICTION : Equity JUDGMENT OF : Campbell J DECISION : In present case, conduct of defendant does not affect costs order, and entitlement to nominal damages equivalent to failure. CATCHWORDS : PRACTICE - costs - significance of uncommendable behaviour by a defendant - PRACTICE - costs - the effect of an entitlement to nominal damages on costs - PRACTICE - costs - other matters not involving considerations of principle LEGISLATION CITED : Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 WLR 394 Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 Mid-City Skin Cancer & Laser Centre v Zahedi-Anarak & Ors [2006] NSWSC 684 Mid-City Skin Cancer & Laser Centre v Zahedi-Anarak [2006] NSWSC 844 CASES CITED : Monier Ltd v Metalwork Tiling Company of Australia (No 2) (1987) 43 SASR 588 Nexus Minerals NL v Brutus Constructions Pty Ltd & Kozyrski (Full Federal Court, 10 September 1997, unreported) Ng v Chong [2005] NSWSC 385 Oshlack v Richmond River Council (1998) 193 CLR 72 Ritter v Godfrey [1920] 2 KB 47 White v Baycorp Advantage Business Information Services [2006] NSWSC 910 The Mid-City Skin Cancer and Laser Centre Pty Limited - Plaintiff Ali Zahedi-Anarak - First Defendant PARTIES : Idameneo (No 123) Pty Ltd (T/as Sydney Medical Centre) - Second Defendant L W Kernot Pty Limited - Third Defendant Laurence William Kernot - Fourth Defendant FILE NUMBER(S) : SC 2863/02 R D Marshall; P K Bruckner - Plaintiff COUNSEL : G Lucarelli - First and Second Defendants R D Wilson - Third and Fourth Defendants Kelvin Solari - Plaintiff Yeldham Lloyd Associates - First Defendant SOLICITORS : Kennedys - Second Defendant Hancock Alldis & Roskov - Third and Fourth Defendants IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST CAMPBELL J 7 NOVEMBER 2006 2863/02 MID-CITY SKIN CANCER & LASER CENTRE v ALI ZAHEDI-ANARAK JUDGMENT 1 HIS HONOUR: I gave judgment in this matter on 13 September 2006: Mid-City Skin Cancer & Laser Centre v Zahedi-Anarak [2006] NSWSC 844. This judgment concerns the orders that should be made, and costs. Procedural History 2 The proceedings were begun by summons on 24 May 2002. On 31 May 2002, the first and second defendants gave interlocutory undertakings, in terms set out at para [287] of my principal judgment. 3 Initially, the proceedings were against the first and second defendants only. The third and fourth defendants were joined when an Amended Statement of Claim was filed on 1 May 2003. 4 In some directions that the Registrar made by consent on 7 April 2005, it was noted: "The plaintiff does not propose to adduce evidence of the quantum of its loss nor seek discovery from the defendants on the issue of damages or the defendants' alleged profit but reserves all rights to do so if the Court at final hearing orders an account ..." 5 The matter came before me for pre-trial directions on 11 April 2006. On that day I made an order that the hearing be on all issues, save for the quantum of any damages which might be payable for breach of contract, breach of the Trade Practices Act, or breach of any equitable obligation. I noted: "that this order does not preclude the need for the plaintiff to establish that some damage has been sustained to obtain an inquiry as to damages." 6 Soon after that directions hearing, the plaintiff issued various subpoenas to the defendants. Those subpoenas were returnable on 30 May 2006. 7 The first and second defendants produced no documents that day, and the subpoenas were stood over, and eventually came to be stood over to the first day of the trial. On 7 June 2006 the third and fourth defendants wrote to the plaintiff in response to the subpoena which had been served on them, saying that they had nothing to produce. 8 On the first day of the trial, 13 June 2006, the first and second defendants each applied to set aside the subpoenas issued to them. Each had received a subpoena in identical terms. By 13 June 2006 the plaintiff did not press some paragraphs of the subpoenas, and other paragraphs of them were allowed by me only in a cutdown form. As ultimately allowed, the subpoenas to the first and second defendants sought: "1. All documents and records, including printouts of any electronically recorded documents in relation to: a. the employment and/or contractual relationship between Ali Zahedi-Anarak and Idameneo (No 123) Pty Limited including, but not limited to: iv. Invoices, including tax invoices, issued to Ali Zahedi-Anarak by Idameneo (No 123) Pty Limited; and v. Invoices, including tax invoices issued to Idameneo (No 123) Pty Limited by Ali Zahedi-Anarak, from 1 March 2002 to date; b. communications made or attempted by Ali Zahedi-Anarak and/or Idameneo (No 123) Pty Limited with former patients of the medical practice formerly known as "Sydney Skin Cancer Clinic" for the period from 1 March 2002 to date; AND 4. All documents and records, including printouts of any electronically recorded documents, in respect of the names and dates of birth of the patients who saw Ali Zahedi-Anarak for the period from 1 March 2002 to 28 February 2003; AND 6. Or copies of any or all of the documents referred to in paragraphs 1 to 5 inclusive above." 9 One of the documents produced pursuant to the subpoena was a listing of patients that Dr Zahedi had seen at the second defendant's premises. That listing, which eventually became Exhibit D in the proceedings, is a computer-generated document dated 24 May 2006. In other words, it had been generated before the return date of the subpoena, but was not produced to the plaintiff until after the trial had begun. 10 When the trial began, the plaintiff filed a Second Further Amended Statement of Claim. It alleged causes of action additional to those that I ruled on in my principal judgment. Against the first and second defendants, it made allegations of passing off and breach of section 52 Trade Practices Act 1974 (Cth) concerning the business name, and concerning the use of confidential documents that had originally come from the Kernot Company. Against the third and fourth defendants it made allegations of breach of section 52 Trade Practices Act 1974 (Cth), through various alleged pre-contractual misrepresentations. Those allegations were not new ones, and the amendment made by the Second Further Amended Statement of Claim was minor. They were, however, deliberately reiterated at the start of the hearing. 11 At the end of the third day of the trial (15 June 2006) the plaintiff's counsel indicated that it was more likely than not that the passing off and Trade Practices claims against the first and second defendants would be deleted. On the morning of 16 June 2006 a Third Further Amended Statement of Claim was filed in court, which actually deleted those passing off and Trade Practices claims against the first and second defendants. It continued to allege breach of section 52 against the third and fourth defendants. It was not until addresses that it became clear that that allegation against the third and fourth defendants was not pressed. Pre-Trial Settlement Offers 12 Various settlement offers were made. On 9 July 2003 the first and second defendants' solicitors wrote to the plaintiff's solicitor offering to settle the proceedings for $8,000, and "parties to resolve outstanding issues associated with the business names the subject of the Proceedings." 13 Such an offer is not a Calderbank offer. It does not distinguish between the amount offered to settle the claim, and any offer there might be to pay costs. If one is to be able to tell, after a judgment has been given, whether an offeree has fared better or worse than the terms that were offered to him, it is necessary to be able to distinguish what is offered for costs, and what is offered for the claim itself: White v Baycorp Advantage Business Information Services [2006] NSWSC 910. As well, the proposal concerning the business names was not an offer – it was an invitation to negotiate. That letter leads to no consequences so far as costs are concerned. 14 The defendants made some other offers, which suffer from the same deficiencies. 15 There was, it seems, a mediation held, which had failed by 18 March 2005. On 18 March 2005 the solicitor for the plaintiff wrote to the solicitors for the first and second defendants, noting that the matter had not settled at mediation. The letter continued: "My client is resolved to litigate this matter. I further note that all the defendants express the need to have the claim quantified. In order to do that discovery will be necessary." 16 However, the plaintiff came to agree that it would not seek discovery from the defendants on the issue of damages or profits, and the note set out at para [4] was made on 7 April 2005. 17 On 7 July 2005 Minter Ellison, on behalf of all the defendants, made an offer to the plaintiff to settle for $45,000, composed of $10,000 in satisfaction of the claim, and $35,000 towards the plaintiff's costs. 18 That offer was made at the conclusion of a very lengthy letter, which tried to point out to the plaintiff various alleged weaknesses in its case. The theme of the letter, however, was that, as well as some potential problems of liability, the damages the plaintiff could hope to recover were of the order of $7,500. The particular difficulties in proof of damage, which ultimately led to the failure of the plaintiff, were not identified. I do not conclude that the plaintiff, acting reasonably, should have simply accepted the arguments of the defendants about why the damages would be likely to be comparatively small, at a time when it had not had discovery. For that reason, I do not regard that letter as conferring on any of the defendants an entitlement to indemnity costs. 19 On 11 May 2006 all the defendants joined in serving on the plaintiff an Offer of Compromise, under rule 20.26 Uniform Civil Procedure Rules 2005. The defendants offered $10,000 plus costs as agreed or assessed. 20 On 16 May 2006, the solicitor for the plaintiff wrote back, acknowledging receipt of the Offer of Compromise, but saying: "… considering: 1. This matter is listed for trial on liability only at this time; 2. The contents of the affidavit of Mr Tosh relied upon by my client; and 3. Documents in the possession of the Defendants that have not, at this time, been made available to my client, are required for my client to properly consider the offer, it does not appear to me that my client is currently in a position to properly consider the offer made in the Offer of Compromise. Further, it also appears to me that my client would not be in a position to properly consider the offer until well after the time for acceptance of that offer has expired. Should you and the other defendants wish to put forward an Offer of Compromise expressed in terms of liability, you are hereby invited to make such an offer." The affidavit of Mr Tosh, referred to in that letter, was an affidavit from an accountant, giving details of the sort of documentation he would need to have access to to be able to properly quantify any damages of the plaintiff. Its forensic purpose was to demonstrate, at eventual hearing, the need for an inquiry to quantify the damages. 21 The Offer of Compromise expired in the week before the trial began. 22 The trial took place in two separate time blocks, because the parties had underestimated the hearing time that would be needed. The evidence was only partly heard when the first of those time blocks came to an end, on 16 June 2006. The hearing was due to resume on 4 July 2006. 23 On 21 June 2006 the solicitor for the plaintiff purported to accept the Offer of Compromise. On 27 June 2006 it began proceedings seeking to enforce, by specific performance, a contract alleged to arise from acceptance of the Offer of Compromise. Those proceedings were brought on for hearing with great urgency. They were heard and decided by McDougall J on 30 June 2006: Mid-City Skin Cancer & Laser Centre v Zahedi-Anarak & Ors [2006] NSWSC 684. His Honour held that, while the Offer of Compromise was a valid offer in accordance with the rules, the purported acceptance was out of time, and hence did not result in any contract to settle the litigation. 24 Rule 42.15 Uniform Civil Procedure Rules provides: "(1) This rule applies if the offer concerned is made by the defendant, but not accepted by the plaintiff, and the plaintiff obtains an order or judgment on the claim concerned as favourable to the plaintiff, or less favourable to the plaintiff, than the terms of the offer. (2) Unless the court orders otherwise: (a) the plaintiff is entitled to an order against the defendant for the plaintiff's costs in respect of the claim, to be assessed on the ordinary basis, up to the time from which the defendant becomes entitled to costs under paragraph (b), and (b) the defendant is entitled to an order against the plaintiff for the defendant's costs in respect of the claim, assessed on an indemnity basis: (i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and (ii) if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made." Significance of the late response of the first and second defendants to the subpoenas 25 The plaintiff asserts that it was lateness in production of documents by the first and second defendants that meant that it could not properly evaluate its case on damages until after the hearing had commenced, and that, once documentation had been produced showing the extent to which there had been leakage of patients of the former Kernot practice to Dr Zahedi, the plaintiff demonstrated its willingness to settle by purporting to accept the offer which had been made. In those circumstances, the plaintiff submits, the court ought "order otherwise", under Rule 42.15(2). 26 There is an evidentiary difficulty with their submission, in that nobody from the plaintiff has given evidence saying that it was the absence of documents which made a critical difference. As well, by the end of the first four hearing days Dr Lindsay had been cross-examined, and it is reasonable to suppose that there were some aspects of his cross-examination that would have been discouraging to the plaintiff's advisers. In other ways as well, the evidentiary complexion of the case had changed somewhat from the way it appeared from a reading of affidavits. 27 There is also an analytical difficulty with the submission. 28 The plaintiff succeeded in establishing many elements of a claim against various of the defendants, namely that: - an obligation of confidentiality was owed by Dr Zahedi to the Kernot Company; – that obligation was inherently assignable to the plaintiff, and had been effectively assigned; - Dr Zahedi had acted in breach of it; - the Kernot Company had title to the booking sheets; - the plaintiff was contractually entitled to receive the booking sheets from the Kernot Company - the Kernot Company had a better right than Dr Zahedi to the third copies of the pathology reports; - the plaintiff was contractually entitled to receive the third copies of the pathology reports. 29 The plaintiff's claim for damages for breach of the contractual obligation of confidence was always doomed to fail, however, because the only damages the plaintiff could recover were those which the Kernot Company itself could have recovered, and (as the plaintiff well knew) the Kernot Company had gone out of business immediately after selling its practice to the plaintiff. 30 Any damages that the plaintiff might be entitled to receive from the Kernot Company, by reason of the Kernot Company not delivering all the documentation that the plaintiff was entitled to receive, was not dependent upon receiving any documents under compulsory legal process from the first and second defendants. Rather, it depended completely upon what loss the plaintiff itself had sustained by reason of not having received all the documents to which it was entitled. 31 Even if an account of profits were available against Dr Zahedi, the need to make an allowance for his time skill and expertise in the calculation of such profits means that nothing would be recoverable from him. None of the evidentiary material which I relied upon in the principal judgment as leading to this conclusion, (at paras [275]-[277]), derived from documents obtained on subpoena from the first and second defendants. 32 Thus, in my view, proper assessment by the plaintiff of its prospects against the first, third and fourth defendants did not depend upon obtaining any documents from the first and second defendants. 33 If the plaintiff had made out a case of liability against the second defendant, documents requested on subpoena from the first and second defendant could have been relevant to quantify that claim. However, the plaintiff failed to make out its case of liability against the second defendant. 34 In all these circumstances I do not accept that the failure of the first and second defendants to respond promptly to the subpoenas served on them resulted in the plaintiff being uninformed about matters relevant to acceptance of the Offer of Compromise. I do not regard that slow response as a reason to otherwise order. Costs to 31 May 2002 35 The plaintiff submits that it should receive the costs of the proceedings up to and including 31 May 2002. In that time, the plaintiff obtained the interlocutory undertakings which ultimately were extended until further order. The plaintiff did not ask for final orders in terms similar to those interlocutory undertakings, presumably because now the confidentiality of the information that the undertakings sought to protect has lessened in practical importance. However, consistently with the findings in my principal judgment, if the case had been brought on for hearing on a final basis soon after it had commenced, it is likely that a final injunction of a kind similar to the interlocutory undertakings given would have been granted. The plaintiff had requested undertakings before commencing the proceedings, and those undertakings had at that stage been refused: principal judgment paras [283]-[285]. In those circumstances it is appropriate for the first and second defendants to pay the costs of the plaintiff to and including 31 May 2002. Conduct of Dr Zahedi 36 The plaintiff submits that Dr Zahedi's removal of the documents from the Kernot practice: "… is inexcusable. It was part of a design by the first defendant to safeguard his future at the expense of the Kernot Practice. Holding onto those materials and using them in breach of confidence after the acquisition by the plaintiff of the Kernot Practice (to the first defendant's knowledge) is equally inexcusable. It should be inferred that the first defendant knew that the plaintiff had paid the Kernot interests for the acquisition of that practice. Notwithstanding that knowledge, the first defendant set about undermining the value of the asset purchased by the plaintiff. In short, the first defendant's conduct was deplorable, and for that he should not receive the benefit of a "costs follow the event" order, eg Monier Ltd v Metalwork Tiling Company of Australia (No 2) (1987) 43 SASR 588 at 592." 37 I have already found that Dr Zahedi took the photocopy booking sheets and third copies of the pathology reports home without the knowledge or consent of the Kernot Company (principal judgment para [149]). As well, however, I found that when he told Ms Glynne that he had taken the pathology reports home he also told her that he had a right to retain those reports, and that that was an opinion he had at that time (para [91]). 38 Consistently with those findings, it is not open to find that Dr Zahedi's actions were a knowing invasion of the plaintiff's rights. Monier Ltd v Metalwork Tiling Company of Australia (No 2) (1987) 43 SASR 588 was an action for infringement of a registered design, which the plaintiff lost only because the defendant succeeded in an allegation, raised late in the piece, that the registration of the design was invalid. The defendants in Monier, "deliberately set out to capture the plaintiff's market by copying the plaintiff's registered design making only such changes as it hoped would be sufficient to answer any allegation of infringement." (At 591). 39 It was in that context that Jacobs J said, at 592: "The conduct of the defendants in copying the plaintiff's design was so blatant as almost to invite litigation, and although the defendants are entitled to, and has received, a verdict according to law, I do not think a court is obliged to close its eyes to the plaintiff's conduct viewed in terms of commercial morality, when exercising its discretion as to costs." 40 In contrast, the present case is not one where dishonesty on the part of Dr Zahedi has been established. 41 As well, it is not enough, to exercise a judicial discretion to affect in some detrimental way a costs order, that the judge disapproves of the conduct of the person detrimentally affected. 42 Ritter v Godfrey [1920] 2 KB 47 involved an action for medical negligence, which the defendant doctor won. The trial judge had disallowed the defendant costs of the action, on the ground that "… there is ground for serious criticism of Dr Godfrey, even though the facts may not establish negligence" (at 51-2), and that a letter that the defendant wrote to the plaintiff before action was "not only unjustifiable, but deplorable from every point of view" (at 52). That decision was overturned in the Court of Appeal. Atkin LJ at 60, said: "In the case of a wholly successful defendant, in my opinion the judge must give the defendant his costs unless there is evidence that the defendant (1) brought about the litigation or (2) has done something connected with the institution or the conduct of the suit calculated to occasion unnecessary litigation and expense, or (3) has done some wrongful act in the course of the transaction of which the plaintiff complains." 43 His Lordship went on, at 60-61, to explain what he meant: "By (1) is meant – has so conducted himself as to lead the plaintiff reasonably to believe that he had a good cause of action against the defendant, and so induce him to bring the action … (2) and (3) may possibly overlap. (2), I think, would include proper conduct in or connected with the litigation calculated to defeat or delay justice. Such conduct would also be included in (3), which, I think, further extends to cases where the facts complained of, though they do not give the plaintiff a cause of action, disclose a wrong to the public: King v Gillard [1905] 2 Ch 11, by which I understand some criminal or quasi criminal misconduct, eg a fraud or crime or preparation for a fraud or crime, or possibly some act of serious oppression. Such conduct must, however, be in the course of the transaction complained of." 44 There is nothing in the conduct of Dr Zahedi which fits within any of these guidelines for when a successful defendant can be denied his costs. 45 Eve J, at 66, said that in exercising the judicial discretion to deny a successful defendant his costs: "… the judge must eliminate from consideration the conduct constituting the alleged cause of action, and must then enquire whether the defendant has so conducted himself ante litem motum (1) as to induce in the plaintiff's mind the reasonable belief that there is no valid defence to the claim or (2) has so misconducted himself as to have goaded the plaintiff into a litigation on which he would never have embarked but for such misconduct." 46 Nothing in Dr Zahedi's conduct before the action was commenced fits within those guidelines either. Even though the conduct of anyone who breaches an obligation of confidence is not commendable, Dr Zahedi's action in so doing is, in the circumstance where the plaintiff has lost its case against him, not sufficient to deny Dr Zahedi his costs. Significance of establishment of breach of contract? 47 The plaintiff succeeded in establishing that Dr Zahedi had breached his contractual obligation of confidence, and that the Kernot Company had breached its contractual obligation to deliver all documents. Strictly, when there is an action for breach of contract, and the plaintiff establishes breach, but cannot prove any substantial loss, the plaintiff is entitled to a verdict for nominal damages. In the present case, the plaintiff does not actually ask for the verdict for nominal damages – sensibly, as no doubt the costs involved in receiving it would vastly exceed the verdict itself – and is content that an order for dismissal of the proceedings adequately gives effect to the reasons for judgment. However, a question remains of whether proof of an entitlement to nominal damages affects the cost orders which should be made. 48 Since the Judicature Act in England, the award of costs has been discretionary: Oshlack v Richmond River Council (1998) 193 CLR 72 at 85-86 per Gaudron and Gummow JJ. A significant factor taken into account in exercise of that discretion is who is the successful party. 49 In an action for breach of contract, if a plaintiff establishes liability, and obtains an order for payment of nominal damages, that plaintiff is usually not to be regarded as the successful party in the action: Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 at 874; Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 WLR 394; Oshlack v Richmond River Council (1998) 193 CLR 72 at [98] per McHugh J; Ng v Chong [2005] NSWSC 385. 50 Stephenson LJ in Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 WLR 394 at 401 explains that costs should be awarded against a plaintiff who has obtained an order for nominal damages because the award of nominal damages: " … was not the event at which the plaintiffs were aiming. They were aiming at £ 82,500, and the mere fact that they ultimately got something -- token or nominal damages -- does not enable me to regard them as remaining successful plaintiffs." 51 As Spender, Nicholson and Finn JJ said in Nexus Minerals NL v Brutus Constructions Pty Ltd & Kozyrski (Full Federal Court, 10 September 1997, unreported) at 12: " An award of nominal damages ought not today be regarded as a "peg on which to hang costs": cf Beaumont v Greathead (1846) 2 CB 494 at 499; see McGregor on Damages , para404-para405, Sweet & Maxwell, London, (1988, 15th Ed); see also Burrows, Remedies for Tort and Breach of Contract , 269-270, Butterworths, London (2nd ed 1994)." 52 As with all questions of costs, the ultimate decision must be made by reference to the facts of the individual case. One circumstance that Hamilton J in Ng v Chong [2005] NSWSC 385 at [8] regarded as possibly justifying an award of costs in favour of someone who recovered nominal damages was when "some other right is vindicated by the judgment, eg, the establishment of a legal right irrespective of whether any substantial remedy is obtained." However no such question arises in the present case. Even though the plaintiff would, strictly, have been entitled to an award of nominal damages against both Dr Zahedi and the Kernot Company, for the purpose of exercising any costs discretion it is to be regarded as having failed against each of those defendants. Other Orders 53 It follows from the conclusions which I arrived at in my principal judgment that the plaintiff is entitled to receive all the pathology reports and photocopy booking sheets that Dr Zahedi kept from the Kernot Company's practice. I do not regard this entitlement as something which should alter the order as to costs which would otherwise be made. Such an order was not specifically claimed in any of the versions of the Statement of Claim which were current during the trial, and was not sought in address. Such orders were not what the plaintiff was aiming at in bringing and running the proceedings. Given that these documents are additional copies of documents which the first plaintiff already has, they will be, in themselves, of little practical use to the plaintiff. However, particularly as the interlocutory undertakings will cease when final orders are made, and the evidence shows that a tendency to develop skin cancer lasts the entire life of a susceptible person, there may be some practical benefit, from the plaintiff's point of view, in keeping those documents out of the hands of Dr Zahedi. 54 In all these circumstances, the only respect in which I shall "order otherwise", under Rule 42.15 (2), is by ordering the first and second defendant to pay the plaintiff's costs of the proceedings to and including 31 May 2002, and that those costs may be set off against the liability of the plaintiff to pay costs to the first and second defendants. Orders 1. The first defendant deliver up to the Court within 7 days any booking sheets or pathology reports of which he obtained possession while he conducted practice at 468 George Street Sydney and which still remain in his possession, custody or control, and any documents containing information extracted from any such booking sheets or pathology reports. 2. All such booking sheets or pathology reports delivered up to the Court, or previously either delivered up to the Court or tendered in evidence in these proceedings, be released by the court to the plaintiff's solicitor after 28 days from the date of these orders in the event that an appeal is not lodged. In the event an appeal is lodged, they are to be retained until disposition of the appeal or further order. 3. The proceedings be otherwise dismissed. 4. Discharge the undertakings given by the first and second defendants on 31 May 2002. 5. First and second defendants to pay the plaintiff's costs to and including 31 May 2002. 6. Plaintiff to pay costs of the defendants of the proceedings incurred between 1 June 2002 and 11 May 2006, inclusive of both dates. 7. Plaintiff to pay costs of the defendants of the proceedings incurred on or after 12 May 2006 on the indemnity basis. 8. Costs payable by the plaintiff to the first and second defendants, and costs payable by the first and second defendants to the plaintiff, to be set off. 9. Exhibits may be returned after 28 days in the event an appeal is not lodged. ********** 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.