Supreme Court New South Wales Medium Neutral Citation: Champion Homes Sales Pty Ltd v Melanie Lydia Mannie [2014] NSWSC 1025 Hearing dates: 24 February 2014, 10 March 2014, 13 March 2014, 17 April 2014, 19 May 2014 Decision date: 29 July 2014 Jurisdiction: Equity Division Before: Robb J Decision: Orders set out in pars 56 and 57 of these reasons for judgment Catchwords: PROCEDURE - judgments and orders - enforcement of orders - determination of amount secured by mortgage - determination of amount of costs of executing writ of levy of property - variation of costs order earlier made - consequential orders Legislation Cited: Civil Procedure Act (NSW) s98 Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ss 43, 51 Real Property Act 1900 (NSW) s105 Uniform Civil Procedure Rules (NSW) Category: Principal judgment Parties: Champion Home Sales Pty Ltd (plaintiff) Melinie Lydia Mannie (first defendant) Alvin Andrew Mannie (second defendant) Victor Jayabalan Mannie (third defendant) Santhammah Saroj Mannie (fourth defendant) Representation: Counsel: C Stomo (plaintiff) First and Second defendants (self represented) Solicitors: Klonis & Co Lawyers (plaintiff) File Number(s): 2013/375413 Judgment 1The plaintiff engages in business as a homebuilder. 2The plaintiff entered into a contract to do building work for the third and fourth defendants in respect of residential property of which those defendants are registered proprietors, the property being the subject of Folio Identifier A/153363 (the property). 3There is valuation evidence that the property had a total value of $1,555,000 on 22 August 2013. 4Following a dispute between the plaintiff and the third and fourth defendants, the New South Wales Consumer Trader & Tenancy Tribunal made an order in favour of the plaintiff for $37,821. The plaintiff obtained a judgment in the Local Court in that amount, and in due course the plaintiff caused a writ of levy of property to be registered against the property for the purpose of recovering the judgment debt. 5The writ has been extended a number of times because of delay in executing it resulting from these proceedings, and on 26 June 2014 the writ was extended to 31 December 2014. 6The property is subject to 3 mortgages. The first and third mortgages are registered in the name of Westpac Banking Corporation. The second mortgage is in the name of the first and second defendants. 7The first and second defendants are the daughter and son respectively of the third and fourth defendants. 8The second mortgage was apparently executed on 1 July 1998 to secure an advance of $270,226.94. 9On 27 February 2013 the judgment debtors were served with a judgment creditor's notice pursuant to s 105 of the Real Property Act 1900 (NSW). All other formal steps necessary to permit the property to be sold by the sheriff to permit payment of the judgment debt have been taken. 10Steps have been taken by the sheriff to undertake a sale of the property pursuant to the writ. Problems arose. The only subsisting problem is that the sheriff is not prepared to enter into a contract to sell the property until he can be assured that the first and second defendants, as second mortgagees, will provide a payout figure, and discharge of mortgage at settlement. 11The first and second defendants did not cooperate to provide a payout figure that the plaintiff could accept, or to give an assurance that they would discharge the second mortgage on the settlement of any contract of sale entered into by the sheriff. 12These proceedings were commenced by summons filed in court on 13 December 2013. The plaintiff claimed a declaration that it is entitled to a discharge of the second mortgage upon payment to the first and second defendants of the amount of $270,226.94 plus interest, and an order that the first and second defendants provide a discharge of mortgage in registrable form upon payment of that amount. Initially, the only defendants were the first and second defendants. 13On the return date of the summons, on 18 December 2013, an order was made joining the third and fourth defendants to the proceedings. Leave was granted to the plaintiff to file and serve an amended summons. By the amended summons the plaintiff seeks an additional order that the property be sold by the sheriff on certain terms and conditions. 14The court also made an order that the first and second defendants serve on the plaintiff by 7 February 2014 an affidavit and supporting evidence disclosing the amount claimed to be owed by the third and fourth defendants to the first and second defendants. 15As I understand it, this order was made because the first and second defendants have claimed that their parents owe them, on the security of the second mortgage, a sum much greater than the principal sum of $270,226.94. The clause numbered "fifthly" is what is sometimes described as an "all moneys" clause. The precise terms of the clause are not material, and it is sufficient to note that the mortgage would secure all debts owing from time to time by the third and fourth defendants for the first and second defendants. 16It is convenient to note at this point that the second mortgage contains the following terms: Secondly -the Mortgagor will pay to the Mortgagee the principal sum, or so much thereof as shall remain unpaid, on the 1 day of July 2003. Eighthly - for the purposes of this Mortgage, the Mortgagor and the Mortgagee acknowledge that as at the date of this Mortgage, the amount advanced by the Mortgagee is Two hundred and seventy thousand two hundred and twenty six dollars and ninety four cents ($270,226.94) and calculated in accordance with the list annexed hereto and marked with the letter "B". Ninthly - the Mortgagor will pay interest on the principal sum or on so much thereof as for the time being shall remain unpaid and upon any judgment or order in which this or Clause Secondly may become merged at the rate of ten dollars ($10.00) per centum per annum by equal monthly payments on the day of each and every month in each year until the principal sum shall be fully paid and satisfied, the first of such payments computed from the day of 1998 to be made on the day of 1998 next. 17The document described as annexure B was not in evidence. 18The first defendant swore an affidavit on 3 February 2014, which was filed on 10 February 2014. Among other things the first defendant said that the defendants were unable to afford legal representation. In fact, the first and second defendants have appeared for the defendants on each occasion the matter has come before the court, and the first defendant has spoken on behalf of the defendants. 19In various ways the affidavit revisited the circumstances in which the case before the CTTT had been conducted, but relevantly to present purposes it contained a schedule of debts that were allegedly owed by the third and fourth defendants to the first and second defendants, and secured by the mortgage. The total amount was $3,843,304.58. Significant items were $1,286,186.67 for the principal debt and compound interest (item 1); $268,515 for home loan repayments by the second defendant (item 2); $1,277,500 as a care allowance for the second defendant (item 3); and $507,000 as a care allowance for the first defendant (item 4). There were also claims for water bills, electricity bills, rates, telephone bills, gas bills and things like groceries, petrol and medicine. The schedule also stated that there was an unqualified claim for compound interest monthly at 10%. 20The affidavit contained some material intended to support this claim, but it plainly did not provide any evidence in support of most of the claim that had been made. 21The matter came on before me in the duty list on 24 February 2014. 22The plaintiff objected to the first defendant's affidavit on various grounds, including that it was bad in form. As the defendants did not have legal representation I entered into an exploration of the claim made by the first and second defendants. While superficially items 3 and 4 seemed excessive and questionable, in principle it was possible that the claim in item 2 might be valid, provided it was supported by proper evidence. Clearly, the evidence put forward by the defendants was inadequate. 23On the one hand, if the defendants were able to raise the amount of $37,821 plus interest and costs, they would be able to pay out the plaintiff, which would obviate the need for the sheriff to sell the property. That was a desirable outcome, because the property has been configured to be suitable for the needs of the first and second defendants' mother, who is very ill. On the other hand, there were grounds for supposing that the first and second defendants were attempting to make a claim that the amount secured on the second mortgage was so great that there would be no equity in the property, after all three mortgages were paid out, to enable the third and fourth defendants to repay the legitimate claim of the plaintiff. The first of these reasons militated in favour of giving the first and second defendant's time by way of an adjournment to try to prove their case properly. The second of these reasons made it important for the court to act with some strictness. After argument, I formally rejected an application for an adjournment by the defendants, principally for the reason that I was not persuaded that if I granted an adjournment the first and second defendants would realistically be able to improve the state of their evidence. After some further argument, I was persuaded to take the unusual course of giving the defendants an additional period of grace, because of the serious consequences to the defendants of the sale of the property, and the appearance that some additional time would not be injurious to the plaintiff because the value of the property appeared to be ample to pay out all three mortgages and cover the third and fourth defendants' obligation to the plaintiff, if the first and second defendants were unable to prove that the secured debt was greater than $270,226.94 plus interest. 24I ordered the first and second defendants to file and serve any notice of motion seeking an adjournment of the proceedings and an affidavit in support by 5 March 2014. I stood the matter over to 10 March 2014 before myself. 25It should also be noted that I gave leave to the plaintiff to file a notice of motion seeking a gross sum costs order under s 98 of the Civil Procedure Act (NSW), as well as evidence in support. I will return to the issue of costs below. 26It is also convenient to note that in his written submissions, counsel for the plaintiff, Mr C Stomo, said that the plaintiff's argument concerning the quantification of the debt secured by the second mortgage was that the amount was $553,113.01 as of 18 December 2013, assuming there had been no repayment of any of the principal sum from 1 July 2013. That was on the basis that interest would be calculated at 10% per annum on a simple interest basis starting from 1 July 2003, which was the date specified in the second mortgage for repayment of the principal. Interest would continue to accrue at the rate of $74.03 per day. I will return to this argument, when I consider the amount that is presently secured by the second mortgage. 27On 10 March 2014 counsel appeared for the defendants instructed by The Law Society's pro bono Community Division. In substance counsel explained that he had not had sufficient time to prepare evidence, but he submitted that it was possible that part at least of the first and second defendants' claim for additional debts secured by the second mortgage could properly be supported by evidence. I gave the defendants another indulgence by standing the proceedings over to 13 March 2014. 28When the matter came on before the court again on on 13 March 2014, counsel who appeared for the first and second defendants on the previous occasion advised the court that his instructions had been withdrawn some 40 minutes earlier. I gave counsel leave to withdraw. Previously, I had received in chambers from counsel a document that listed some additional claims that counsel intended to argue were also secured by the mortgage. 29As a result of the withdrawal of counsel, the defendant's were in the same position that they had been in on 24 February 2014. 30However, I was informed by the first defendant that the defendants had raised some $40,000 that they were in a position to pay that day towards the amount owed by the third and fourth defendants to the plaintiff. While the first and second defendants were not in a position to establish that they were owed on the security of the second mortgage any more than the original principal plus interest, the fact that the defendants were able to pay slightly more than half of the amount that was owing to the plaintiff caused me to make a number of orders to give the defendants a further opportunity to put themselves in the position where they could pay the balance. 31The principal orders that I made had the effect that the first and second defendants were required to provide an executed discharge of mortgage to the plaintiff, on the basis that the plaintiff was not to cause the sheriff to enter into a contract to sell the property before 16 May 2014. That gave the defendants an opportunity to raise the necessary additional money before 15 May 2014. I noted that the third and fourth defendants would pay the plaintiff $40,000 that day. I also ordered that the plaintiff provide the defendants with a precise statement of the amount that it claimed was owing to it, and gave directions intended to facilitate the parties agreeing to the total that was owed, or alternatively allowing the court to decide any disagreements. I ordered the defendants to pay the plaintiff's costs of these proceedings to that date on a gross sum basis fixed at $19,000. 32On 17 April 2014 and 19 May 2014 I made further directions for the exchange of documents relevant to the quantification of the plaintiff's claim against the third and fourth defendants. On the later date I reserved the question of the amounts secured by the second mortgage until orders were made in relation to the plaintiff's costs and disbursements. (Those costs and disbursements related to the steps that the plaintiff was required to take to obtain execution on its judgment debt, other than the legal costs covered by the gross sum costs order that I had made). 33It is now necessary to determine the amount of the debt that is secured by the second mortgage. The first and second defendants have not succeeded in bringing before the court any properly constituted claim that they are entitled to any more than the principal sum secured by the second mortgage plus interest calculated in accordance with its terms. 34I can see no basis, on the proper construction of the second mortgage, that supports the plaintiff's claim that interest was only to run from the date of 1 July 2003, which was the date that the principal sum was required to be repaid. In my view it is clear from the term described as "Ninthly" that interest was to run from the date of the mortgage as it says: "the Mortgagor will pay interest on the principal sum or so much thereof as for the time being shall remain unpaid....". The rate of interest was to be 10% per annum on a simple basis. The evidence was not entirely clear, but I am prepared to infer, and the case was conducted on the basis that, the third and fourth defendants have made no repayment of principal or interest to the first and second defendants. 35I will calculate the amounts secured by the second mortgage to 23 July 2014. As noted above, the principal amount is $270,226.98. The interest must be calculated from 1 July 1998. That is 16 years plus 23 days. The amount of interest for the 16 years at 10% flat per annum is $432,363.17. The amount of the interest that accrues each day is $74.03. The amount of interest that has accrued over the 23 days in July is $1702.69. The total amount secured on the second mortgage as at 23 July 2014 will be $704,292.84. Interest will accrue thereafter at the rate of $74.03 per day. The plaintiff is entitled to a declaration to this effect. 36The final issue that must be determined is the total amount of the additional costs and disbursements to which the plaintiff is entitled. 37It is appropriate that I provide some explanation of how this issue has arisen, the procedural context in which it must be considered, and the basis that underlies the course that I have taken. 38As the solicitor for the plaintiff now has a discharge of mortgage in registrable form executed by the first and second defendants, which the plaintiff is now free to use in relation to the implementation of the writ of execution, and as I will now make an order that declares the amount that is secured by the second mortgage, the sheriff will be free to proceed with the sale of the property. The effect of UCPR r 39.15 is that, after any contract for the sale of the property is completed, the net proceeds of sale after the three mortgages have been discharged are to be applied, first, to cover the sheriff's fees and expenses in executing the writ, secondly, to the plaintiff to satisfy the judgment debt, including interest, and then thirdly, to the third and fourth defendants. The effect of UCPR r 39.28 is that, after the balance of the sale price is paid by the sheriff to the registrar of the court that issued the writ of levy of property, the plaintiff would have two months in which to file a notice of motion for the assessment of the plaintiff's costs of executing the writ, together with evidence to prove those costs. The assessment of the costs would be carried out by the registrar of the court that issued the writ of levy of property, either in chambers or in open court. 39The determination of the amount of the plaintiff's costs of executing the writ as part of the present proceedings in this court, rather than by the procedure in the UCPR r 39.28, is an unusual course, that was embarked upon because the parties were before the court, none of the parties dissented from this course being adopted, and it appeared that it would be a convenient and less expensive course, that would bring certainty to the process of executing the writ. 40I will add for completeness that the effect of UCPR r 39.25 is that the third and fourth defendants will have a right to stop the property being sold under the writ for the levity of property at any time up until the time fixed for the sale of the property under the writ, provided that they pay to the sheriff the full amount of the judgment debt plus interest, the sheriff's costs as estimated by the sheriff, and the plaintiff's costs of executing the writ, again as estimated by the sheriff. 41The third and fourth defendants have a right to apply under UCPR r 37.2 to the Local Court pay the balance of third judgment debt by instalments. Although the third and fourth defendants have paid an instalment of $40,000, as I understand it no application has been made to pay the balance by instalments. 42Unfortunately, it is not a simple matter to try to explain what the position of the contending parties was concerning the determination of the amount of costs to which the plaintiff is entitled in respect of the execution of the writ of levy of property. The purpose of the various directions that I gave was to assist the parties to reach the position where the plaintiff would prepare a schedule that itemised all of the expenses it had incurred, principally by reference to the tax invoices that it had received from its solicitor, limited to work that was done for the purpose of enforcing the judgment debt through the medium of the sheriff executing the writ of levy of property. I intended that the defendants would indicate the items that they accepted, and why they did not accept other items. The objective was to facilitate the preparation of a document that made the position of the parties, as to their agreements and disagreements, clear. When the matter came on for hearing I discovered that the plaintiff had indeed prepared a document containing the information that I expected, but because of a misunderstanding between the parties, the plaintiff had not incorporated into the schedule the submissions made on behalf of the defendants in a document called "Notice of motion (form 20) additional information". I advised the parties that I would consider that document together with the other submissions that had been provided to the court. 43At the end of the process it appears that the plaintiff's total claim (as taken from the document called "Plaintiff's claim for costs as adjusted") is $38,465.47. (That is in addition to an amount of $6753 that the plaintiff claims to have paid to the sheriff on account of the sheriff's costs of executing the writ, which apparently will be repaid out of the proceeds of sale of the property, and need not be further considered here). The $38,465.47 includes the $19,000 gross sum costs order to which I have referred above, the plaintiff's claimed costs of executing the writ of levy of property up until the commencement of these proceedings of $14,856.70, and an additional claim for $4578.70 for further legal work done in these proceedings after the period covered by the first gross sum costs order. 44It is therefore necessary for me to deal with two issues; the first being the validity of the claim for $14,856.70; and the second being what I will treat as a second application for a gross sum costs order in relation to the amount of $4578.70. 45The amount of $14,856.70 was arrived at by the plaintiff starting with all of the tax invoices that it had received from its solicitor, and then deducting all costs that were not strictly related to the enforcement of the writ of levy of property. Principally, this involved deducting costs that related to a failed attempt to obtain a sequestration order against the third defendant. This led the plaintiff to deduct $8225.60 from the total of the tax invoices of $23,082.37 to derive the amount of $14,856.77. In calculating the deduction of $8225.60 the plaintiff acknowledged in its schedule that it was necessary to make a number of further deductions on the basis that some of the arguments made by the defendants were valid. 46I have reviewed the plaintiff's schedule, which incorporates the plaintiff's submissions, the defendants' responses, and the plaintiff's reply. I have also read the defendants' submissions called "Notice of motion (form 20) additional information". I do not propose to deal with all of the submissions in detail. Indeed, it would be difficult if not impossible for me to deal with all of the defendants' submissions in a rational way. The defendants have, unfortunately, made a large number of submissions that do not go to the point; and, unfortunately, have only had the effect of driving up the costs incurred by the plaintiff in responding to those submissions. Many of the defendants' submissions revisited the circumstances in which the proceedings in the CTTT were conducted leading up to the order made by that Tribunal. The defendants complained that the plaintiff ought to have availed itself of the procedure whereby it could relist the matter before the Tribunal, after the third and fourth defendants failed to pay the amount that the Tribunal ordered them to pay. The defendants seem to suggest that some instalment arrangement would have been put in place had the plaintiff followed that course. The defendants may have in mind the procedure that was available to the CTTT under s 43 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), but I suspect that that procedure was more apt to the case where the CTTT made an order that a party do some act other than the payment of money. It appears that the plaintiff availed itself of the procedure in s 51 of the Act to recover the amount required to be paid under the order by filing the certificate issued by the registrar of the CTTT in the registry of the Local Court. Whatever be the truth of this, it is irrelevant to the present proceedings. The defendants also make many submissions concerning the impecuniosity of the defendants, and the hardship that they will suffer if the property is sold by the sheriff. Unfortunately, these matters, though apparently true, are irrelevant to the present issues. Unfortunately, the defendants were unable to put together the $40,000 that they have recently paid to the plaintiff at an earlier time, when that payment would have covered the amount that the CTTT ordered be paid to the plaintiff. Had that been done, then the defendants would have been freed from their present woes. 47Those matters might be relevant in the context of an application by the third and fourth defendants to pay by instalments, but they are not relevant to the determination of the amount of the plaintiff's costs incurred in executing the writ of levy of property, or to its further costs of conducting the present proceedings. 48It appears to me from my consideration of the plaintiff's claim for $14,856.77 for the costs of enforcing the writ of levy of property, and the evidence that supports the claim, that the costs have been incurred and are generally reasonable. I am conscious that I am in effect second- guessing the assessment that a registrar of the Local Court would make of the claim. It is in substance a gross sum costs claim. It is appropriate that I reduce the claim by 20%, which is the same course that I followed in relation to my earlier gross sum costs order. I would therefore award the amount of $11,885 as the costs of executing the writ of levy of property to which the plaintiff is entitled. 49In relation to the plaintiff's claim for additional legal costs of these proceedings in the sum of $4578.90, treating that claim as one for a gross sum costs order, I will also make an order that discounts the claim by 20%. That is an appropriate discount notwithstanding that the defendants were successful in reducing the plaintiff's original claim. Unfortunately, the manner in which the defendants went about explaining their position had the effect of significantly, and to a considerable extent pointlessly, increasing the amount of legal work that the plaintiff's solicitor had to do. The amount of the order will be $3660. 50Before I make the necessary orders, it is appropriate that I review the overall situation. The CTTT ordered the third and fourth defendants to pay to the plaintiff $37,821 on 25 November 2011. I do not appear to have evidence of the amount of post-judgment interest to which the plaintiff is entitled. I have calculated the amount using the UCPR r 36.7(1) rates as being approximately $8700. (It should be noted that this calculation does not bind any of the parties, and will not be precisely correct). I have assessed the plaintiff's costs of executing the writ at $11,885. The plaintiff has asserted in submissions that it has also paid the sheriff $6753, which the plaintiff says that it is entitled to recover when the property is sold. Subject to there being additional amounts that are presently unknown, the total of these sums is $65,159. The defendants have paid the plaintiff $40,000, which leaves a balance of $25,159. At one point in the proceedings the first defendant advised the court that the defendants had been able to raise an additional $15,000 towards paying out the plaintiff, but as at that time they could not raise any more. If these calculations are accurate, then the defendants would require little more than an additional $10,000 in order for the third and fourth defendants to exercise their right under UCPR r 39.25 to stop the sale of the property by the sheriff executing the writ of levy of property. 51The plaintiff will in addition be entitled to the costs of these proceedings under the two gross sum costs orders of $19,000 and $3660. I made the $19,000 cost order on 13 March 2014 against all of the defendants (order 13). Upon further consideration I have realised that it was an error on my part to make that order against all of the defendants, rather than the first and second defendants alone. The third and fourth defendants were joined as parties to the proceedings by an order made on 18 December 2013 by White J. I infer that that order was made so that the third and fourth defendants, as mortgagors, would be bound by the determination as between the plaintiff and the first and second defendant mortgagees of the amount secured by the second mortgage. Up to 13 March 2014 the plaintiff was not in substance seeking relief against the third and fourth defendants. On 13 March 2014 I made the orders necessary to put an executed discharge of the second mortgage into the hands of the plaintiff. After that date the only issue as between the plaintiff and the first and second defendants was the relatively simple issue of calculating the amount secured by the second mortgage. 52In my view the proper course is for the court to vary order 13 made on 13 March 2014, so that the obligation to pay the $19,000 will fall upon the first and second defendants alone. This error may have occurred in part because the defendants were not legally represented. I must give to the plaintiff an opportunity to make submissions before I vary any order that I have already made. I regard order 13 as involving a slip on my part, as my attention was not drawn to the basis upon which the third and fourth defendants had been joined to the proceedings, and I did not turn my mind to that issue myself. 53The second gross sum costs order of $3660 should be made against the third and fourth defendants, as the proceedings relating to those costs almost entirely related to the issue of the amount that those defendants owed to the plaintiff for its costs of executing the writ of levy of property. 54The defendants have now had the benefit of the elapse of a significant amount of time, by reason of the course these proceedings have taken, to enable them to gather the funds to pay out the plaintiff. I do not know whether the defendants' position has improved since 13 March 2014 when the third and fourth defendants paid the sum of $40,000 to the plaintiff. As I need to give the plaintiff an opportunity to make submissions in relation to the variation of the costs order made on 13 March 2014, it will unfortunately be necessary for me to read relist this matter, hopefully for one last time. 55That will, as a practical matter, give to the defendants one last opportunity to pay out the amount that must be paid to the plaintiff and the sheriff in order to stop the sale of the property, before I permit the plaintiff to cause the sheriff to put the property to auction. The third and fourth defendant's rights under UCPR r 39.25 will, in any event, continue. It remains the case that it would be desirable for the plaintiff to be paid out, rather than for the third and fourth defendants' home to be sold. The payment by the first and second defendants of the cost order of $19,000 is a separate matter that is not directly related to the execution of the writ of levy of property. However, it is now entirely plain that, unfortunately, if the third and fourth defendants cannot pay out the balance of the moneys necessary to stop the sale of their property by the sheriff, then that is the only possible course of action that is available. 56I make the following orders: (1)Declare that the amount of the debt owed by the second and third defendants to the first and second defendants that is secured by Registered Mortgage No 5275494F as at 23 July 2014 is $704,292.84 plus $74.03 per day thereafter until the debt is repaid. (2)Declare that the plaintiff is entitled to a discharge by the first and second defendants of Registered Mortgage No 5275494F upon payment of the amount payable in accordance with the declaration in par 1 as at the date of discharge. (3)Declare that the plaintiff is entitled to be reimbursed its costs of executing the writ of levy of property over the property in Folio Identifier A/153363 up to 23 July 2014 in the sum of $11,885. (4)Order that the third and fourth defendants pay to the plaintiff its costs of these proceedings between 13 March 2004 and 23 July 2014 on a gross sum basis fixed at $3660. (5)Order that the plaintiff not act upon the declarations in pars (1) and (2) up to and including 6 August 2013. (6)Direct that on 6 August 2013 the parties advise the court whether they, or any of them, oppose the court varying order 13 made by the court on 13 March 2014 to provide that the costs the subject of that order be paid by the first and second defendants rather than all of the defendants, and put to the court submissions in support of their position. (7)Stand the proceedings over to Friday, 8 August 2014 at 9:30 AM before Robb J. 57In addition I will make the following order concerning the disposal of exhibits and subpoenaed material (if any): (8)Order pursuant to UCPR r 31.16A and r 33.10, and Practice Note No S C Gen 18 par 26: (a)that the exhibits be returned forthwith to the parties who tendered the exhibits to be held by them in compliance with Practice Note No S C Gen 18 par 28; (b)that the parties return any exhibits that were produced to the Court by any person in answer to a subpoena or notice to produce to the person who produced the document forthwith upon the expiry of any time for which the party to whom the exhibit is returned is required to retain the exhibit; (c)that all material produced directly to the Court by any party in answer to any notice to produce that has not become an exhibit be returned forthwith to the party who produced the material; and (d)that the Registry should forthwith return, or otherwise deal with in accordance with Practice Note No S C Gen 18 par 27, all material produced to the Registry in answer to any subpoena or notice to produce. ********** 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: 27 August 2014