Supreme Court New South Wales Medium Neutral Citation: In the matter of Eden Resort Hotel Limited [2013] NSWSC 1820 Hearing dates: 11 December 2013 Decision date: 11 December 2013 Jurisdiction: Equity Division Before: Brereton J Decision: 1. Declare that the first plaintiff is entitled to inspect the documents comprised in MFI07. 2. Grant leave to the plaintiffs to discontinue the proceedings against the third and fourth defendants. 3. Order that the first plaintiff pay the third defendant's costs of the proceedings assessed in the sum of $30,000. 4. Order that the fourth defendant pay the plaintiffs' costs of the proceedings against the fourth defendant up to 2 May 2013 and the plaintiffs' costs of the fourth defendant's motion filed 26 August 2013, including one half of the plaintiffs' costs of the hearing before Brereton J on 4, 9 and 11 December 2013. Catchwords: CORPORATIONS - management and administration - access to documents of company - by director - where documents held by solicitors - inspection of documents produced to Court - documents comprise email correspondence between third and fourth defendants pertaining to arrangements between them in their capacity as "consultants" on the one hand and the first defendant company on the other - documents brought into existence primarily, if not exclusively, for purpose of the fourth defendant solicitor and on that basis they are the property of the solicitor - although the documents in question are the property of the fourth defendant, they are documents which the first defendant was entitled to have disclosed to it and to inspect - plaintiff has authority of the first defendant to inspect documents on its behalf - held, plaintiff is entitled to inspect documents. PROCEDURE - Costs - departing from the general rule - on discontinuance by plaintiff - whether to "otherwise order" - where plaintiff had obtained substantive relief sought - where proceedings commenced without prior notice and third defendant promptly submitted - where instituting of proceedings against fourth defendant reasonable. Cases Cited: Tyrrell v Bank of London (1862) 10 HL Cas 26 Wentworth v De Montfort (1988) 15 NSWLR 348 Category: Costs Parties: Heinrich Karl Michael Ruiz De Roxas (first plaintiff) HDR Hospitality Consulting International Pty Ltd (second plaintiff) Eden Resort Hotel Pty Ltd (first defendant) Lu Min Yong (second defendant) Dennis Low (third defendant) Stephen Velik (fourth defendant) Representation: Counsel: N Newton (first plaintiff) G Jones (third defendant) S Velik (solicitor) (fourth defendant) Solicitors: Thomsons Lawyers (first plaintiff) SV Law (fourth defendant) File Number(s): 2013/68943 Publication restriction: No Judgment - EX TEMPORE 1HIS HONOUR: By originating process filed on 6 March 2013 and first returnable on 22 March 2013, the first plaintiff Heinrich Karl Michael Ruiz De Roxas claimed orders against the first defendant company Eden Resort Hotel Pty Limited, the second defendant Lu Min Yong, the third defendant Dennis Low, and the fourth defendant Stephen Velik, to the effect that the plaintiff was entitled to inspect the documents of Eden Resort held vicariously by the second, third and fourth defendants, and orders requiring or facilitating such inspection. In addition and in the alternative, the plaintiff sought preliminary discovery against the second and third defendants only. 2The third defendant filed an appearance on 21 March 2013, indicating that he intended to appear and oppose the application. The fourth defendant was ultimately served by way of substituted service, deemed to be effective on 23 April 2013. On 2 May 2013, the fourth defendant communicated to the plaintiff that he would voluntarily provide the inspection sought as against him in the originating process. After some correspondence, to which I shall later refer, on 6 May the third defendant consented to an order being made for the inspection of the documents held by him. That inspection has subsequently taken place. On 18 July the fourth defendant filed a notice of appearance. 3The plaintiff, having now inspected the relevant documents, seeks leave to discontinue the proceedings as against the third and fourth defendants and an "otherwise order" for the purposes of the rules, to the intent that those defendants pay the plaintiff's costs (in lieu of the ordinary consequence upon discontinuance that the discontinuing plaintiff would pay the defendants' costs). By notice of motion filed on 26 August 2013, the Mr Velik seeks an order that the proceedings be dismissed and costs. By notice of motion filed on 21 October 2013, Mr Low seeks an order that the proceedings as against him be dismissed and that the plaintiff pay his professional time incurred in the location and production of the information and the documents sought by the plaintiff, and his legal costs. 4Three major issues remain for decision in the proceedings: first, whether the plaintiff should have access to a certain small category of documents, which have been called the "non-copied documents" and are presently comprised in MFI07, and which have been produced to the Court by Mr Velik on the basis that the Court would consider those documents and rule as to whether or not the plaintiff was entitled to inspection of them; secondly, the question of costs as between the plaintiff and Mr Low; and thirdly, the question of costs as between the plaintiff and Mr Velik. (While one of the defendants, by the their motions, seeks that the substantive proceedings as against them be dismissed, whereas the plaintiff seeks leave to discontinue, no argument has been addressed to that issue and there does not appear to be any practical significance attached it and I will, in due course, grant leave to the plaintiff to discontinue the proceedings against the third and fourth defendants.) 5I turn first to the question of the non-copied documents comprised in MFI07 and produced to the Court by Mr Velik on the basis that the Court, having inspected them, would determine whether or not they should be included in the documents produced for inspection by the Mr Velik. The non-copied documents comprise, in essence, email correspondence between the Mr Velik and Mr Low, pertaining to the arrangements between them in their capacity as "consultants", on the one hand, and the company, on the other. Mr Velik says that he was not acting for Mr Low and never acted for Mr Low. There does not appear to be any suggestion to the contrary, and no claim for privilege in respect of the correspondence is made by or on behalf of Mr Low. 6A perusal of the documents reveal that could not conceivably be said that Mr Velik was in that respect acting for the plaintiff or for the benefit of the plaintiff. The communications in question took place not for the benefit of the plaintiff but for the benefit of Mr Velik and perhaps also for the benefit of Mr Low. Mr Velik submitted that these documents were not documents that belonged to the plaintiff, and thus were not documents which the plaintiff was entitled to inspect. 7The application for inspection has been made by the plaintiff as a director of Eden Resort who has asserted that, in pursuance of his common law rights as a director and perhaps also his statutory rights, he is entitled to inspect the company's documents. As I understand Mr Velik's position, he contends that the documents in question are not documents that belong to the company, being Mr Velik's former client, and thus are not documents which the company or the plaintiff, as a director of the company, are entitled to inspect. That argument involves, it seems to me, two limbs. The first is, to whom do the documents belong; and the second is, are they documents that the plaintiff or its director are entitled to inspect, even if they belong to its solicitor and not to the client company. 8As to the first, the Court of Appeal examined the position in Wentworth v De Montfort (1988) 15 NSWLR 348 and held that, in respect of communications with third parties, whether notes of telephone attendances, records of personal attendances or correspondence, the documents may be the property of the solicitor or the client, depending on their nature and content and largely on whether they were made for the primary benefit or purposes of the solicitor or the client [see in particular at 359F-360F]. 9As I have indicated, it seems to me that the documents in MFI07 were brought into existence primarily, if not exclusively, for the purposes of the solicitor and not for those of the client. On that basis, they are the property of the solicitor, that is to say Mr Velik, and not of the client, that is to say Eden Resort. 10However, in the course of the judgment, the Court explained that documents that belonged to the solicitor might nonetheless be documents which the client was entitled to inspect. That was so in particular in respect of trust account records [Wentworth v De Montfort, 356D-G, 358A-V, 361E, 361G]. Of course, it is well established that the relation between solicitor and client is a fiduciary one and that this carries with it obligations of full disclosure, especially in circumstances where the interests of the solicitor and those of the client may be in conflict. 11As long ago as Tyrrell v Bank of London (1862) 10 HLCas 26, Lord Westbury LC, said (at 39-40): My Lords, the decision which I shall advise your Lordships to pronounce in this case rests, in my opinion, on very clear principles and rules of conduct, of which it would be in the highest degree mischievous to impair the force or weaken the application ... The principle is that the solicitor shall not be permitted to make a gain for himself at the expense of his client. The client is entitled to the full benefit of the best exertions of the solicitor. The relation of solicitor and client involves, of course, the relation of principal and agent. The duties of the first relation include all those of the second and something more ... 12Later, his Lordship said (at 44): It is abundantly clear that two of the most important principles to be ever most sedulously preserved in considering the cases in which there is any breach of the high duties that are incident to the relation of solicitor and client have plainly been violated by Tyrrell. It was his bounden duty to tell his clients what he had done. It was his bounden duty to give his clients the benefit of those exertions which he had employed for his own advantage. He forgot the first duty of a solicitor in the concealment and falsehood which were practiced. My Lords, there is no relation known to society of the duties of which it more incumbent upon a court of justice strictly to require a faithful and honourable observance than the relation between solicitor and client and I earnestly hope that this case will be one of the many which vindicate that rule of duty which has always been laid down, namely that a solicitor shall not, in any way whatever, in respect of the subject of any transactions in the relations between him and his client, make gain to himself at the expense of his client beyond the amount of the just and fair professional remuneration to which he is entitled. 13By referring to these passages I do not mean to say that Mr Velik has necessarily made an inappropriate gain for himself. But, as the Lord Chancellor says, if it was his bounden duty to tell his client what he had done in respect of any remuneration arrangements made between him and Mr Low, as against his client, Eden Resort. It was his bounden duty to give his client the benefit of those exertions and all he knew. In those circumstances, it seems to me that though the documents in question are the property of Mr Velik, they are documents which Eden Resort was entitled to have disclosed to it and to inspect. 14Eden Resort is a submitting party in these proceedings. The plaintiff has the authority of Eden Resort to inspect documents on its behalf. In those circumstances, I am satisfied that the plaintiff is entitled to inspect the documents contained in MFI07, although the originals of those documents are the property of Mr Velik. 15I turn next to the question of costs as between the plaintiff and Mr Low. In this respect the plaintiff submits that there should be an "otherwise order" on the basis that he has obtained substantial success in the proceedings by the order for inspection that was made on 6 May by consent. Mr Low submits that the plaintiff should pay his costs on the footing that it was unreasonable for the plaintiff to commence the proceedings when it did, without a prior request for inspection. 16Mr Low was the accountant and company secretary of Eden Resort. In mid 2010, at the request of Eden Resort, Mr Low made available the company documents held by him for inspection by and on behalf of the plaintiff. That inspection took place in or about late June or early July 2010. On 13 July 2010, Me Low tendered his resignation as company secretary and accountant. By directors' resolution dated 18 August 2010, and signed by both directors - the second defendant, Mr Lu Yong and the plaintiff, Mr De Roxas - the directors of Eden Resort resolved to accept the Mr Low's resignation as company secretary and to retain Mr David Kenney of Hall Chadwick, Chartered Accountants, as the company's accountant and tax agent and to direct Mr Low to provide all of the company's books and records in his possession and custody and power to Mr Kenney without delay, and that Mr De Roxas be authorised to provide that direction to Mr Low. On 7 September 2010, Mr Low wrote to Mr Lu Yong a letter, which was subsequently seen by Mr De Roxas, conveying an undertaking that he was prepared to put the past behind and continue with the work and to try to finalise the company's accounts, provided that the directors gave undertakings that they would honour their agreements with him and cooperate in a cordial and professional manner. 17On 30 September 2010, Mr Leon Christodoulakis of Hall Chadwick wrote to Mr Low confirming that the firm had been approached by the directors of Eden Resort to attend to future business and taxation affairs and asking: Could you please confirm when you would be able to send across financial accounts and tax returns for the years ended 30 June 2000-2009 along with the working papers for each year including the depreciation schedules, tax calculations, final year trial balances and any corporate register documents that you may have. 18It is pertinent to note that this was a request by the incoming accountant for delivery of the relevant records and files to the incoming accountant and not a request by the plaintiff for - or for that matter, by Eden Resort - to inspect the documents in Mr Low's custody. An amount of correspondence then ensued between Mr Lowand Mr Christodoulakis. Mr Low sought guidance from a professional association as to what he was entitled to do in circumstances where he claimed to be owed unpaid fees. Ultimately, on 27 October 2010, Mr Low informed Mr Christodoulakis: I have submitted to the company that provided the directors will give me an undertaking that they will guarantee and honour their agreement to pay the fees due to me and the share of profit that they have agreed to give me when the company's project is sold and profits realised and when this undertaking is firmly in place I would be more than happy to assist anyone in the company's accounting and tax matters. 19On 5 November 2010, Mr Low confirmed to Mr Christodoulakis that he had sought guidance from the Institute's Professional Conduct and Ethics Committee and was reviewing that advice and the courses of action open to him; that he had some months ago permitted the plaintiff's lawyers to examine all the company's documents and files and take away hundreds of pages of documents for copying and return; and repeating what he had communicated to Mr Lu Yong on 7 September 2010, confirming that that offer remained open. 20By an email of 8 November 2010, Mr Christodoulakis sought particulars of the documents over which a lien was asserted and the basis upon which it was asserted and some other information. 21On the same day, Mr Low repeated what he had said on 27 October, referred to above, and added: In my last email and the attached letter to you (being the letter of 5 November) I have informed you that I have extended my gesture of goodwill to your instructing director a number of times and my suggestion of the appointment of an independent auditor was made to the client some time in May 2010 and certainly prior to your firm's engagement but your instructing director has not been willing to reciprocate. In the circumstances and in the absence of any undertakings as sought by me and submitted to the directors on many other occasions, I shall not be providing any further information, assistance or spend any time on this company's matters. Could you please note this and that convey it to the client and also inform the client that as soon as the company's directors have agreed to acknowledge and sign an undertaking to pay my fees and the share of the company's profits due to me in terms of their initial agreement, I shall expedite delivery of all the company's documents to you, if that it is the wish of the directors. 22It is true, as has been submitted, that in respect of his claimed lien, Mr Low does not then appear to have distinguished between corporate registers and similar documents over which there may be no entitlement to claim a lien, and his work product as an accountant over which there would prima facie be an entitlement to claim such a lien. However, it is also the case that that distinction does not appear to have been drawn to his attention at that time. 23After that correspondence in November 2010, there appears to have been no further correspondence between or on behalf of the plaintiffs Mr Low until the institution of the proceedings, without further notice, on 6 March of this year. Following the institution and service of the proceedings, on 20 March, Mr Low wrote to the plaintiff's solicitors noting that orders were sought authorising inspection of the first defendant's books and financial records in the possession of the third defendant and stating, "As I will explain below it was not necessary for your client to apply for such orders against me", the reasons for which contention are then set out. Reference was also made to the alternative claim for preliminary discovery. Mr Low advised that unless the plaintiff consented to an order dismissing the application as against him and an order paying his costs and expenses including legal costs and his personal costs in perusing the summons, affidavit and exhibit, he would seek indemnity costs and reserved other rights. 24In the course of the letter, Mr Low referred to paragraph 127 of the plaintiff's affidavit (which summarised the plaintiff's concerns as to the adequacy of the earlier disclosure of documents by Mr Low, the main point in which appears to have been the non-production of fourteen bank statements from the Commonwealth Bank (which Mr Low disputed were in his possession, custody or power). The plaintiff's solicitors responded on 4 April 2013, pressing the demand for inspection. Again, the main matter in issue appears to have been the so-called missing Commonwealth Bank statements. 25On 11 April 2013, Mr Low replied to the plaintiff's solicitors' letter of 4 April and essentially reiterated the same arguments, acknowledging nonetheless, "I appreciate that your clients do have the right to inspect the first defendant's books and records and if necessary take copies of them". He added: I will only be prepared to do this on the following basis that your clients consent to an order that they pay my reasonable costs and expenses of making available for inspection and copying of the company's books and records in my possession subject to my right to claim over any of these documents and my costs and expenses incurred already in locating a large number of these documents in anticipation of responding to your client's application which I have assessed in the amount of $3,300 and an order that you pay my legal costs in responding to your client's application. 26The plaintiff's solicitors responded on 2 May 2013, disputing the claim for costs and submitting that the appropriate means of progressing was simply to allow inspection to occur without delay, with the question of costs and expenses reserved to a later date. Presumably as a result of that approach, on 6 May 2013 the Court by consent made an order that the third defendant make available for inspection by the plaintiffs all of the books and records of the first defendant in his possession with inspection to take place by the plaintiffs by 15 May 2013. That inspection has since taken place, and the plaintiff seeks no further relief and is apparently satisfied with the production that has taken place. 27It seems to me, reviewing all of that history in context, that this is a case where, first, the plaintiffs had been permitted inspection, without hindrance, in mid 2010 on the only previous occasion where there had been a request for inspection; secondly, no further request for inspection was made before commencing proceedings; and thirdly, there had never been a refusal by Mr Low to permit inspection by or on behalf of the plaintiff. It is true that when the proceedings were instituted the initial response notified by the notice of appearance was one of opposition, but that must be seen in the context of the contemporaneous correspondence, which indicated that inspection would be permitted, subject to payment of costs associated with it and the legal costs of the proceedings. Before long, however, even that objection was conceded and inspection was permitted. Much of the plaintiff's rationale for pursuing inspection against Mr Low was over the missing Commonwealth Bank statements, but the plaintiff has not succeeded in that respect, because Mr Low does not have the missing Commonwealth Bank statements. It seems to me that as against Mr Low, given his previous attitude to inspection, and his offers of cooperation and not unreasonably sought undertakings in respect of outstanding fees, at least a letter of demand was called for before proceedings were instituted. In the presence of previous cooperation and inspection, and no previous request for inspection, no previous refusal of inspection, it was unreasonable peremptorily to commence these proceedings against Mr Low, even though the plaintiff ultimately and quickly obtained the relief it was seeking in them. 28On that basis, it seems to me that the plaintiff should pay Mr Low's costs of the proceedings as against him. Even if it was not unreasonable to institute the proceedings against Mr Low, it was unreasonable to maintain them on foot after the order for inspection was made on 6 May, which was all of the relief that the plaintiff ultimately obtained against or even sought against the third defendant in the proceedings. Of course if there was a non-compliance with the order it would have been open to the plaintiff to bring separate enforcement proceedings, which would be the proper course, rather than keeping the substantive proceedings on foot after the final order had been made. 29That said, I do not accept that Mr Low is entitled to his costs of, in effect, being a party to the proceedings. Although it was categorised in different ways at different times, a perusal of the contemporaneous correspondence reveals that the claim for Mr Low's personal time is largely in respect of perusing the summons, perusing the supporting evidence and perusing the three volumes of exhibits that accompanied it. A party is ordinarily not entitled to costs in respect of its own time in being engaged in proceedings as a party. That is essentially what that part of Mr Low's claim is, and I do not consider that he is entitled to that component of what he claims. 30So far as Mr Low's costs of the proceedings are concerned, they have been estimated (on the basis of counsel, who has acted on a direct access basis) at the sum, after a 10 per cent discount, of about $28,500. That estimate was made before the second day of the proceedings, and I think no injustice will be done by an overall assessment of Mr Low's recoverable costs in the sum of $30,000. 31I turn then to the question of costs as between the plaintiff and Mr Velik. Again the plaintiff submits that an "otherwise order" should made, on the basis that it obtained the relief it sought in the proceedings, though not by a formal order, by the voluntary agreement of Mr Velik but only after proceedings were instituted. Mr Velik submits that it was unreasonable to institute the proceedings without prior notice in the circumstances. 32On 22 June 2010, the plaintiff's solicitors wrote to Mr Velik asserting that they acted for the first plaintiff and his company, the second plaintiff, and that as a director of the first defendant company, Eden Resort, Mr De Roxas was in a position to instruct on behalf of the company and instructed the fourth defendant to make the subject files available for inspection without delay. It was asserted that the first plaintiff had an entitlement to inspect the documents without there being a necessity to obtain approval from any other director. 33On 6 July 2010, there having been no response to that letter, the assertion that the first plaintiff was entitled to inspect the documents irrespective of any instructions to the contrary from any other director was reiterated. On 13 July Mr Velik responded, indicating, amongst other things, that instructions were still awaited from the other director, asserting that an aspect of the plaintiff's solicitors' letter was "almost certainly false", asserting that the instruction to make the files available for inspection was inconsistent with previous instructions and that the fourth defendant took the instructions of the company to be to continue to provide the directors originals or copies of documents being specific documents or correspondence or documents in relation to specific subject matter, asserting that the solicitors were "conflicted", demanding that they cease acting and threatening to refer their conduct to the Legal Services Commissioner for "unprofessional conduct or professional misconduct as the case may be". Mr Velik also engaged in some "off the record" communications directly with the first plaintiff which the first plaintiff rebutted. 34I have already referred to the resolution of the directors bearing the date 18 August 2010 and signed by both directors. One of the resolutions of that date was that: For the avoidance of any doubt Mr De Roxas is and has been authorised by the company to instruct Mr Velik on the company's behalf for all company matters including without limitation the inspection of any records within Mr Velik's possession. 35On 25 August 2010, the plaintiff's solicitors forwarded a copy of that resolution to Mr Velik. On any reasonable view it ought to have removed any doubt as to Mr De Roxas' authority to inspect the documents in question and the validity of the instructions that he gave in that respect. Thereafter, the plaintiff and plaintiff's solicitors made professional conduct complaints against Mr Velik, and Mr Velik made a professional misconduct complaint against the plaintiff's solicitors. On 24 December 2010, Mr Velik wrote to the plaintiff's solicitors, relevantly confirming that Mr Velik ceased acting for the company and asserted a lien over all the company's files for unpaid work since 2000, "and about which we are communicating directly with the company and appropriately not your firm". 36On 18 January 2011, the plaintiff's solicitors requested particulars of the lien asserted by Mr Velik. In the absence of any response, that request was pressed in a letter of 4 February 2011. No response was ever provided and although there was extensive correspondence with the Law Society concerning the professional conduct complaints, at least some of which was copied to the opposing parties, there was no satisfactory answer to the request for particulars of the lien in any of that correspondence. 37In the case of Me Velik, there were plainly expressed and repeated requests for inspection of the documents sought. Even if Mr Velik was entitled to have some doubts about the authorisation of those requests prior to 18 August, they were removed by the 18 August resolution. The fourth defendant's responses, though articulated in great detail and often repeated were, in my view, entirely spurious. To suggest there were "irregularities" because the instructions were inconsistent with previous instructions or out of the ordinary course was pure prevarication. Yet these positions were persisted in and repeated. So far as the lien asserted was concerned, a solicitor's lien might well justify withholding inspection of documents, at least where providing inspection would have the effect of defeating the lien. The cases are in a degree of discord as to whether a solicitor who terminates a retainer without good cause is entitled to assert a lien. I am content to accept for present purposes that even in those circumstances a solicitor is entitled to assert a lien. But what is quite clear is that the Court may moderate the impact of the lien by permitting access to and even use of the documents, in circumstances where that is necessary to avoid destruction to or damage to the client's rights and that is so even where the solicitor terminates with good cause. 38Accordingly, I am content to accept without deciding that for the purposes of this case Mr Velik was entitled to assert a lien as and when he did. However, when particulars of that lien were sought and pressed they were not provided. More particularly, it would be an absurd outcome if in response to a client's request to inspect its documents, held by its solicitor, the solicitor could defeat that request by terminating the retainer and asserting a lien. In this case it seems to me that it ought to have been plain that the Court would have made an order for inspection, if asked, notwithstanding the assertion of any lien. Moreover, in this case, given the tenor of the correspondence which emanated from Mr Velik and the spuriousness of the grounds asserted by him, it was entirely reasonable for the plaintiff to form the conclusion that there was absolutely no prospect of securing inspection of the documents without instituting proceedings, and that further correspondence would have done no more than produce further allegations of misconduct. 39Me Velik's letter of 2 May, in which he volunteered production, was in marked contrast to everything that had gone before and represented capitulation to the institution of the proceedings, rather than reflecting the position that would have prevailed had there been a pre-proceeding request. In circumstances where Mr Velik, unlike Mr Low, did not consent to an order but volunteered production, it was not unreasonable to maintain the proceedings on foot until that production had taken place, minimising costs in the meantime as the plaintiff did, by offering to mention the matter for the fourth defendant from time to time. That said, I do not consider that the plaintiff should have an order for costs for the period after 2 May 2013 when the proceedings were kept on foot, essentially for the plaintiff's benefit. 40In my view the plaintiff is entitled to an order that the fourth defendant pay its costs of the proceedings as against the fourth defendant up to 2 May 2013 and also the costs of the fourth defendant's motion filed 26 August 2013, including the costs of its hearing before me, which represent roughly one half of the costs of the hearing. 41My orders are: (1)Declare that the first plaintiff is entitled to inspect the documents comprised in MFI07. (2)Grant leave to the plaintiffs to discontinue the proceedings against the third and fourth defendants. (3)Order that the first plaintiff pay the third defendant's costs of proceedings assessed in the sum of $30,000. (4)Order that the fourth defendant pay the plaintiffs' costs of the proceedings against the fourth defendant up to 2 May 2013 and the plaintiffs' costs of the fourth defendant's motion filed 26 August 2013 (including one half of the plaintiffs' costs of the hearing before Brereton J on 4, 9 and 11 December 2013). (5)The costs payable pursuant to these orders may insofar as assessment is required be assessed forthwith and are payable forthwith. ********** 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. Decision last updated: 01 July 2014