Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Penson v Titan National Pty Limited (No 3) [2015] NSWCA 121 Hearing dates: 1 May 2015 Decision date: 26 June 2015 Before: JC Campbell AJA Decision: 1. Applicant to pay the costs of the respondents assessed at $11,800. 2. Applicant to pay interest on the said costs at the rates prescribed from time to time for the purposes of s 101 of the Civil Procedure Act 2005 (NSW), such interest to commence to run from the date when the respondents have paid to Pure Legal the whole of the costs and disbursements itemised in the memorandum of costs and disbursements dated 4 May 2015 that is Annexure B to the affidavit of Christine Louise Perry sworn 4 May 2015 in this application. Catchwords: COSTS – gross sum costs order - parties involved in extensive history of litigation in relation to costs – whether gross sum costs order should be made pursuant to Civil Procedure Act 2005 (NSW), s 98(4)(c) – whether costs order should be inclusive of GST PROCEDURE – order for interest on costs pursuant to Civil Procedure Act 2005 (NSW), s 101 when gross sum costs order made – appropriate form of order Legislation Cited: Civil Procedure Act 2005 (NSW), ss 98, 101 Cases Cited: Aquaqueen International Pty Ltd v Titan National Pty Limited (District Court of New South Wales, Gibson J, 19 August 2014, unrep) Hadid v Lenfest Communications Inc [200] FCA 628 Hamod v State of New South Wales [2011] NSWCA 375 Harrison v Schipp [2002] NSWCA 213; 54 NSWLR 738 In the matter of Aquaqueen International Pty Ltd [2015] NSWSC 500 Joseph Lahoud v Victor Lahoud [2006] NSWSC 126 Keen v Telstra Corporation Ltd (No 2) [2006] FCA 930 Kiwi Munchies Pty Ltd v Stern (2006) NSWSC 433 Leary v Leary [1987] 1 All ER 261 Penson v Titan National Pty Ltd (No 2) [2015] NSWCA 120 Penson v Titan National Pty Ltd [2015] NSWCA 108 Spedding v Nobles (No 2) [2007] NSWCA 87 TCN Channel 9 Pty Limited v Antoniadis (No 2) [1999] NSWCA 104; 48 NSWLR 381 Woolworths Limited v Strong (No 2) [2011] NSWCA 72; 180 NSWLR 445 Texts Cited: Richie's Uniform Civil Practice (NSW) Category: Costs Parties: Shirley Penson (Applicant) Titan National Pty Limited (First Respondent) Kathryn Wood-Weber (Second Respondent) Representation: Counsel: In person (Applicant) C Perry (First and Second Respondents) Solicitors: Pure Legal (First and Second Respondents) File Number(s): 2014/373028 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2014] NSWDC 219 Date of Decision: 1 May 2014, 7 May 2014, 1 August 2014 (Balla DCJ); 19 August 2014, 9 October 2014, 21 November 2014 (Gibson DCJ) File Number(s): 2009/337626; 2014/137439; 2014/017976 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. JC CAMPBELL AJA: Ms Shirley Penson instituted proceedings in the Court of Appeal seeking leave to appeal against, ultimately, six orders that had been made against her in the District Court. On Friday, 1 May 2015, I dismissed an application for a stay of those orders pending determination of the application for leave to appeal. [1] The judgment was delivered ex tempore. After the reasons for judgment had been delivered Ms Perry, the solicitor appearing for the respondents to the application, foreshadowed that she would seek a gross sum costs order. I gave directions for the delivery of affidavits and submissions relevant to any such application, and ordered that any decision would be made on the papers. These reasons for judgment relate to the application for a gross sum costs order. 2. Before proceeding to the substance of the application it is appropriate to explain why it has taken over seven weeks to deliver what should be a comparatively simple judgment. In the course of discussing directions on Friday 1 May 2015, I informed the parties that I would be leaving for overseas on the Saturday of the following week. The directions I gave on 1 May 2015 included directions concerning the filing of affidavits and written submissions by the solicitor for the respondents. Those directions were complied with. There was also a direction that by 9 am on 6 May 2015 Ms Penson "provide by email to the solicitor for the respondents and to my associate any affidavit material on which she seeks to rely concerning costs quantification together with written submissions not exceeding 2 pages". That direction was not complied with. 3. When the direction was not complied with the parties were notified that judgment would be delivered orally on 7 May 2015. However after that notification was given, Ms Penson served some written submissions, and an affidavit of 4 pages (omitting formal parts), with an exhibit of 66 pages. Even though Ms Penson would have had no legitimate ground for complaint if I had delivered judgment not taking account of the evidence and submissions that she had delivered late, my associate, at my request, informed the parties that judgment would now not be given on 7 May 2015. This judgment is now given as soon as possible after my return from overseas. 4. Section 98 of the Civil Procedure Act 2005 (NSW) confers on the Court a broad discretionary power to make orders concerning cost of proceedings. Section 98(4) provides: "In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to: (a) costs up to, or from, a specified stage of the proceedings, or (b) a specified proportion of the assessed costs, or (c) a specified gross sum instead of assessed costs, or (d) such proportion of the assessed costs as does not exceed a specified amount." 1. In Hamod v State of New South Wales, [2] Beazley JA (Giles and Whealy JJA agreeing) identified some of the factors that could be relevant to the making of a gross sum costs order: "[816] The terms of s 98(4), together with the more general considerations reflected in the Civil Procedure Act , ss 56(1), 57(1)(d) and 60, suggest the factors that merit particular consideration include: the relative responsibility of the parties for the costs incurred (for example, Harrison v Schipp); the degree of any disproportion between the issue litigated and the costs claimed; the complexity of proceedings in relation to their cost; and the capacity of the unsuccessful party to satisfy any costs liability: Ritchie's Uniform Civil Procedure NSW at [s 98.45]. [817] The exercise of the power conferred by s 98(4) is particularly appropriate where the costs have been incurred in lengthy or complex cases and it is desirable to avoid the expense, delay and aggravation likely to be involved in contested costs assessment. This may arise either from the likely length and complexity of the assessment process: Beach Petroleum NL v Johnson (No 2) at 120; Charlick Trading Pty Ltd v Australian National Railways Commission ; Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006; or from the likelihood that the additional costs of formal assessment would disadvantage the successful party because of the likely inability of the unsuccessful party to discharge the costs liability in any event: Harrison v Schipp ; Sony Entertainment (Aust) Ltd v Smith (2005) 215 ALR 788 at [90], [194]-[195]; Hadid v Lenfest Communications Inc [2000] FCA 628." 1. As the word "include" in [816] makes clear, her Honour was not purporting to state exhaustively the relevant factors. Indeed, when the power under s 98(4) is a discretionary one, and s 98 places no explicit limits on the bounds within which the discretion is exercised, an exhaustive enumeration of relevant factors would be impossible. 2. Because s 98(4)(c) makes clear that a gross sum costs order is intended to be an alternative to assessed costs, the meticulous item by item examination of a bill of costs that occurs in the course of an assessment need not be engaged in. A "broader brush" approach can be adopted. [3] However, because the discretion is one which must be exercised judicially the Court must arrive at a figure that it is confident does justice between the parties, even though the full assessment process has not been gone through. In Hamod at [814] this Court approved the statement in Richie's Uniform Civil Practice (NSW) that "the courts have typically applied a discount in assessing costs on a gross sum basis". 3. Ms Perry submits that a fixed amount of costs can be an appropriate order in "simple cases in which there would be utility in the court cutting the Gordian knot of protracted fights about costs: Keen v Telstra Corporation [Ltd] (No 2) [2006] FCA 930 at [5]; where the amount in issues was a very modest sum and it would not be appropriate to require a further process of assessment to be undertaken: Kiwi Munchies Pty Ltd v Stern (2006) NSWSC 433 and where the cost assessment is likely to be a protracted and expensive exercise and the other party is unlikely to pay (Leary v Leary [1987] 1 All ER 261 at 266)." I accept that these are examples of situations where it might, depending on the individual circumstances, be appropriate to make a lump sum costs order. Ms Perry submits that each of these examples apply in the present case. I will return to that submission later. 1. Ms Perry gives evidence, by an affidavit sworn on 4 May 2015, that she is an accredited specialist in commercial litigation (insolvency) with the Law Society of New South Wales, and that she has been practising in that area of the law for in excess of 20 years. Under the costs agreement and costs disclosure documentation between Ms Perry's firm and the respondents to the motion, fees were calculated at the rate of $500 per hour plus GST. A premium rate of $650 per hour was chargeable for work carried out at the clients' request after 7.00 pm on weekdays and on public holidays or weekends. Disbursements were reimbursable in full. When the costs estimate was given on 22 April 2015 the legal costs for the application for a stay were estimated to fall between $6,500 and $12,000, and the disbursements to fall between $200 to $400, in each case plus GST. 2. Ms Perry's affidavit annexes a memorandum of fees dated 4 May 2015 which itemises the work done in connection with the application for a stay. That itemisation identifies how many six minute units of time were spent on any particular item of work, on any particular day. The work involved attendance in court on three separate days, 20 April 2015, 28 April 2015 and 1 May 2015. The court hearing on 1 May 2015 occupied very nearly the entire day, including the delivery of oral reasons for judgment. The memorandum of fees itemises all work done in preparation for those hearings. On occasions the time that Ms Perry actually took to carry out a task recorded in the memorandum of fees exceeded the time that she has recorded and charged. As well, even though she has on occasions carried out work at nights and on weekends she has charged $500 per hour for that work, rather than the $650 per hour to which the costs agreement entitled her. 3. The nature of the work done, and the time for which a charge has been made, do not strike me as being excessive or unreasonable. The memorandum of fees also includes some items relating to units of time that, at the time of the memorandum of fees, were anticipated to be spent rather than had actually been spent. Those anticipated items included the costs of completing the present application for a gross sum costs order. The total fees relating to those anticipated items are $550. Ms Perry's expectation of spending one hour and six minutes on the items that she listed seems to me to be clearly not excessive, and in light of the contents of Ms Perry's affidavit and written submissions has probably proved to be an under-estimate. 4. The charge out rate of Ms Perry is within the range of those customarily charged by solicitors of her degree of experience in Sydney. Concerning Ms Perry's charge out rate, Black J has recently observed that it "is significantly less than hourly rates that would ordinarily be charged by senior solicitors in larger firms. To the extent that her hourly rate exceeds that of a more junior solicitor, or a solicitor who does not have a specialist expertise in insolvency, the costs are likely to have been reduced, as she points out, by the fact that Counsel was not retained, and accordingly her clients (and by extension, Aquaqueen and Ms Penson) are not exposed to a claim for costs by both Counsel and solicitor in respect of interlocutory and final hearings, as would ordinarily be the case. Ms Perry also points out, and I accept, that the hourly rate which she claims finds some support in the rules formerly adopted by the Federal Court of Australia for the taxation of costs, albeit that those rules have now been superseded." [4] 1. Those remarks of Black J's were made in proceedings which are not the ones that are the subject of the present application for leave to appeal. In this application, they do not play the role that findings of the primary judge ordinarily play in appellate proceedings relating to a decision of that primary judge. Even so, in my view they are applicable to the present application. 2. The total fees charged, exclusive of GST, were $14,500. The total disbursements were $630. Apart from a filing fee, those disbursements were made up of printing and photocopying costs. A 50 per cent discount had been allowed to the client on the agreed charge out rate for printing and photocopying, by reason of the large bulk involved. 3. Each of those items was subject to GST, apart from the filing fee. The total of the memorandum of fees inclusive of GST was $16,625.80. 4. The convoluted history of this matter in the District Court is summarised in the judgment I delivered on 1 May 2015. [5] The proceedings in the court below, from 2 September 2013 onwards, all arose from a dispute about the correctness of a costs assessment certificate. The amount that ultimately proved to be in dispute, of the costs that had been awarded by the costs assessment certificate, was less than $2,100. There was a proliferation of notices of motion, such that the costs of the District Court proceedings were gigantic by comparison with the sum at issue, and significantly exceeded the amount of costs that Ms Penson had been held liable to pay. In a judgment delivered in the court below on 19 August 2014 her Honour Gibson J said that Ms Penson and her company Aquaqueen International Pty Ltd: "have fought the assessment of those costs with a level of bitterness that is truly extraordinary having regard to the history set out above. It is the conduct of these proceedings by the plaintiffs and what Mrs Perry calls the 'barrage of correspondence on virtually a daily basis' that really is the most compelling reason for the making of an order for costs assessment on a lump sum basis." [6] My reading of the papers concerning the stay application gives me no reason to disagree with her Honour's remarks. 1. The amount of costs that has been claimed by the respondents is very much more than the amount of costs that would ordinarily be involved in an application for a stay. However, the present application was far from an ordinary application for a stay. Ms Penson relied upon three affidavits that she had sworn, two in chief and one purportedly in reply. The annexures to her affidavits in chief gave only a partial account of the proceedings below, in relation to which she sought leave to appeal. Ms Perry filed an affidavit that explained in some detail the proceedings in the court below, and had exhibited to it some 229 pages of supporting documents. It was largely from that affidavit that I gathered the history recounted in the judgment delivered on 1 May 2015. 2. Ms Perry also prepared, and relied upon, an affidavit of the director and shareholder of the corporate respondent, giving evidence of the financial circumstances of the respondent. That evidence was intended to deal with a potential argument that a stay should be granted pending appeal where there is a risk that the successful party will be unable to repay a judgment without difficulty or delay if the appeal were to succeed. [7] 3. Ms Penson's affidavit in reply exhibited other documentation relating to the history of the matter in the District Court, including an exhibit of some 359 pages. It would have been necessary for Ms Perry to read, absorb, and make a decision about the relevance of that evidence. 4. The present case is one in which, in my view, there would be utility in the Court making a gross sum costs order to prevent there being future protracted fights about the costs of the present application. The amounts in issue are comparatively small (in the context of the costs often involved in litigation in this Court), and the history in the District Court suggests that there is a realistic risk that a costs assessment procedure could become very protracted and expensive. There is no evidence that would enable me to form a view about Ms Penson's capacity to satisfy any costs liability. However, the history of the proceedings in the District Court suggests that there is a realistic risk that, whether or not she had the capacity, actual payment might not be made until many litigious avenues had been exhausted. In all these circumstances, it is appropriate to make a gross sum costs order. 5. Ms Penson disputes Ms Perry's memorandum of fees dated 4 May 2015 item by item, sometimes as to the necessity for the work to be done at all concerning the stay application, sometimes as to the amount charged. It is not clear whether this latter category of dispute is a dispute concerning the time necessary to do an item of work, or as to the rate of charge applied. The result of Ms Penson's reworking of the memorandum of fees is that, in her submission, an amount of $3062.40 should be payable. Once it has been decided that it is appropriate to make a gross sum costs order, this method of proceeding is quite inappropriate. In any event, as I have already said, the memorandum of fees does not strike me as unreasonable. 6. There are two aspects of Ms Penson's itemisation of objections to the memorandum of fees that I should deal with specifically. The first is that Ms Penson submits that Ms Perry should receive no costs concerning 20 April 2015, because Ms Perry did not appear that day. That submission is factually incorrect. I gave an ex tempore judgment that day rejecting an ex parte application that Ms Penson made for a stay. [8] As [22] of the reasons for judgment records, at the close of delivering judgment a legal representative of the respondents (who was in fact Ms Perry) entered the court. After the judgment had concluded there was discussion about the future course of the matter, and I gave directions. Ms Perry's claim concerning that day is justifiable. 7. The second is that Ms Penson draws attention to the cover sheets of Ms Perry's affidavits of 23 April 2015 and Ms Wood-Weber's affidavit of 22 April 2015, and notes that where the standard form requires a deponent to fill in a blank entitled "Filed in relation to" the words "Applicant's summons seeking leave to appeal and any appeal" and "Applicant's summons seeking leave to appeal" have been respectively inserted. She submits that the purpose of the affidavits is thus not to do with the application for a stay. I do not accept that submission. Both of the affidavits were filed at a time when the Registrar had given directions for the filing of affidavits concerning the stay application, both affidavits were read in the stay application, and submissions based on them were made in the stay application. 8. I accept that in the present case, for the purpose of a gross sum costs order, it would be appropriate to allow Ms Perry 70 per cent of the solicitor/client costs she has charged. It would be appropriate to allow the full amount of the disbursements, particularly bearing in mind that the quantum of the filing fee was a matter over which the respondents had no control, and that the printing and photocopying costs have already been discounted by 50 per cent. 9. If a lawyer's memorandum of costs and disbursements includes an item for GST, and the client is entitled to an input tax credit for the amount of any GST paid, and if a costs order requires the opposite party to that client in litigation to pay the amount of the client's costs, the amount payable under the costs order does not include GST. [9] 10. Ms Penson disputes the entitlement of the respondents to have GST on any part of the fees and disbursements. She relies on the refusal of the original costs assessor to allow any amount of GST. The reason why the assessor refused to allow any amount for GST was because he was of the view that an input tax credit was available to both Titan and Ms Wood-Weber. Whatever may have been the basis on which the assessor came to that view, in the present case the undisputed evidence is that Ms Wood-Weber has no entitlement to an input tax credit, it will be Ms Wood-Weber who actually pays the costs and disbursements, and while Titan is still registered for GST purposes it has disposed of its primary asset (the industrial premises that had been leased to Aquaqueen) and is largely dormant. When the purpose of a costs order is to provide indemnity (even if only to a limited extent), the practical reality of where the liability for costs will fall makes it appropriate to allow GST. Thus GST should be allowed on 70 per cent of the fees charged, and the full amount of GST charged on disbursements should be allowed. 11. The total amount allowable is therefore calculated as follows: Fees - $14,500 x 70% $10,150.00 GST on allowed fees @ 10% $1,015.00 Total disbursements rendered $630.00 GST charged on disbursements $45.80 Total $11,840.80 To reflect the broad brush approach involved in setting a gross costs sum, I would round that down to $11,800.00. 1. Ms Penson has raised a number of other arguments concerning the quantum of the costs that should be awarded. I find none of them persuasive, and now give brief reasons why I have come to that conclusion. 2. Ms Penson contends that she has repeatedly tried to settle the proceedings. She relies on letters she wrote on 10 March 2014, 25 July 2014 (dated 25 April 2014 by mistake) and 31 March 2015. The letter of 10 March 2014 made an offer to settle the District Court proceedings for $67,000, with each party bearing its own costs. The letter date 25 April 2014 repeated the offer of 10 March 2014. The letter dated 31 March 2015 did not make a settlement offer, unless an invitation to withdraw the writs of execution is regarded as a settlement offer. These letters relate to offers made in the course of the District Court proceedings, not in the present Court of Appeal proceedings. Thus they are not relevant to the question now at issue, namely whether there should be a gross sum costs order concerning the failed application for a stay, and if so what the quantum of that costs order should be. In any event, they are offers to settle for considerably less than the respondents were ultimately held entitled to receive. 3. Ms Penson observes that even though it was on 24 June 2011 that his Honour Judge Williams made the order for costs of the 2009 Proceedings, it was not until 28 November 2012 that the respondents made an application to have their costs assessed. She contends that Ms Perry is blaming her for this delay in the respondents receiving the costs they were held entitled to receive. I do not understand Ms Perry to be attributing any such blame. Even if she were, I have not made a finding about who is responsible for that delay, and do not intend to do so. For reasons I have already given, the events that have occurred since the filing of the application for a costs assessment are in my view amply sufficient to justify the making of a gross sum costs order. 4. Ms Penson observes that Ms Wood-Weber had not signed the offer to enter a costs agreement with Ms Perry. She makes no specific submission on the basis of this observation, but if the observation is intended to suggest that Ms Wood-Weber might not have a liability to Ms Perry, that suggestion would be incorrect. The offer to enter a costs agreement provides that it can be accepted in several ways, one of which is "giving us instructions in any form after receiving this document". The offer to enter a costs agreement is dated 22 April 2015, and it is quite clear that Ms Wood-Weber has instructed Ms Perry to take steps concerning the stay application after that date. 5. Ms Penson seeks to rely on decisions that other judges have made in other proceedings in which she or Aquaqueen has been involved, concerning the relationship between the quantum of costs claimed and the amount of gross sum costs actually awarded. I do not find that helpful in deciding the appropriate amount to award concerning this application. 6. Ms Penson contends that the respondents are seeking indemnity costs. That is not so. The quantum of costs payable under the costs agreement between the respondents and their solicitor is the starting point from which they calculate the amount that they submit is an appropriate gross sum to order, but when a significant discount is applied to that figure their claim is in substance not one for indemnity costs. 7. There are some orders on foot, arising from other proceedings, under which sums of money are payable from (in broad terms) the Titan camp to the Penson camp. Ms Penson submits that it would be appropriate for there to be a set-off of those amounts, or for there to be an exchange of bank cheques concerning them. It is not for the court to order a procedure for exchange of bank cheques. Nor in the circumstances would I order there to be a set-off of the various amounts of costs owed. A sufficient reason for taking that view is that there is a lack of identity in the parties who owe money one to the other. The order concerning the present application for a stay will be one whereby Ms Penson is ordered to pay costs to Ms Wood-Weber and Titan. The costs judgment in favour of Ms Penson is one given on 10 March 2015 in favour of Ms Penson, but against Titan alone. I recognise that that judgment arose from a certificate of determination of costs issued on 19 February 2015 which stated that the costs applicants were Aquaqueen and Ms Penson, and the costs respondents were Titan and Ms Wood-Weber. However unless and until it is set aside, it is the judgment itself that is conclusive about who owes money to whom. Interest on Costs 1. Ms Perry submits that the history of the matter makes it appropriate to order that interest accrue on these costs. Sections 101(4) and 101(5) of the Civil Procedure Act 2005 empower the Court to order that interest be paid on any amount that is payable under an order for payment of costs. Such interest will not run on a costs order unless the Court expressly orders that it do so. [10] 2. Because an order for costs aims to compensate a party who has been successful in litigation for the costs of running that litigation, it is usually appropriate to allow interest on costs, to the extent that those costs are allowed on assessment, from the date the costs are actually paid. [11] In the usual situation where an order for interest on costs is made, the costs have already been paid by the time the order for interest on costs is made, and have been paid in varying amounts and at varying times as the litigation has progressed. Thus the order commonly made, following the Lahoud v Lahoud precedent, provides a mathematical rough approximation of the amount that would result if a full calculation was made of interest running for different periods of time, each period of time starting when an amount of costs was paid. 3. In the present case, so far as the evidence discloses, none of the costs concerning which interest is sought have yet been paid. It is possible that the costs have been paid in the time between the respondents' evidence being filed and the date of delivery of these reasons for judgment, and the drafting of the order for interest on costs should allow for the possibility that that has occurred. 4. While there is a theoretical possibility that the costs might be paid by instalments, in relation to such a comparatively small amount it is not appropriate to complicate an order for interest on costs by making provision for what is to happen if the costs are paid by instalments. Allowing interest in that way would introduce a complexity that is not in keeping with the aim of gross costs orders, of providing simplicity. Interest on costs shall run only from the date the totality of the memorandum of fees is paid. Orders 1. I make the following orders concerning the notice of motion filed 13 April 2015 in proceedings 2014/00373028: 1. Applicant to pay the costs of the respondents assessed at $11,800. 2. Applicant to pay interest on the said costs at the rates prescribed from time to time for the purposes of s 101 of the Civil Procedure Act 2005 (NSW), such interest to commence to run from the date when the respondents have paid to Pure Legal the whole of the costs and disbursements itemised in the memorandum of costs and disbursements dated 4 May 2015 that is Annexure B to the affidavit of Christine Louise Perry sworn 4 May 2015 in this application. ********** Endnotes 1. Penson v Titan National Pty Ltd (No 2) [2015] NSWCA 120. 2. [2011] NSWCA 375 at [816]-[817]. 3. Hadid v Lenfest Communications Inc [2000] FCA 628 at [35]; Harrison v Schipp [2002] NSWCA 213; 54 NSWLR 738 at [22]. 4. In the matter of Aquaqueen International Pty Ltd [2015] NSWSC 500 at [29]. 5. Penson v Titan National Pty Ltd (No 2) [2015] NSWCA 120. 6. Aquaqueen International Pty Ltd v Titan National Pty Limited ( District Court of New South Wales, Gibson J, 19 August 2014, unrep) at 16. 7. TCN Channel 9 Pty Limited v Antoniadis (No 2) [1999] NSWCA 104; 48 NSWLR 381 at [15]-[16]; Woolworths Limited v Strong (No 2) [2011] NSWCA 72; 80 NSWLR 445 at [67]-[68]. 8. Penson v Titan National Pty Limited [2015] NSWCA 108. 9. Gagner Pty Ltd t/as Indochine Cafe v Cantouri Corporation Pty Ltd [2009] NSWCA 413; 262 ALR 691 at [149]-[154] and cases there cited. 10. Spedding v Nobles (No 2) [2007] NSWCA 87 at [14]-[15]. 11. Joseph Lahoud v Victor Lahoud [2006] NSWSC 126, especially at [82]-[83]. 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: 26 June 2015