FEDERAL COURT OF AUSTRALIA

Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd (No 2) [2017] FCAFC 101

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed with costs (except as against the seventh respondent).

2.    The cross appeal be dismissed with costs (except as against the second cross-appellant).

3.    Orders 1 and 2 made by the primary judge on 5 August 2016 and order 1 made by the primary judge on 25 August 2016 be set aside and in lieu thereof it be ordered that:

(1)    the seventh respondent pay the first applicant $112,326.02;

(2)    the first respondent pay the first applicant $28,081.51;

(3)    the third respondent pay the first applicant $28,081.51;

(4)    the second respondent pay the first applicant $11,232.60;

(5)    the seventh respondent pay the second applicant $187,783.57;

(6)    the fourth and fifth respondents pay the second applicant $149,379.95;

(7)    the first respondent pay the second applicant $46,945.89;

(8)    the third respondent pay the second applicant $46,945.89;

(9)    the second respondent pay the second applicant $18,778.36;

(10)    each of orders (5), (6), (7), (8) and (9) be enforceable severally provided that where the second applicant has recovered the total principal sum on which those orders are based, of $125,886 plus interest to the date of recovery, it cease to be entitled to recover any further sums under them;

(11)    the respondents pay the applicants’ costs before 11.00am on 24 June 2015 on a party and party basis and thereafter, on an indemnity basis;

(12)    unless a judge otherwise orders, no proceedings be taken to enforce these orders against the assets of the seventh respondent otherwise than in the ordinary process of its liquidation.

(13)    It be noted that each of orders (1) to (9) includes interest calculated for the period between 1 July 2010 and 30 June 2017.

4.    No later than 5 July 2017, the appellants serve the liquidator of the seventh respondent with these orders and the reasons for judgment of the Full Court delivered today.

5.    The liquidator of the seventh respondent may apply on or before 26 July 2017 to stay or vary orders 3(2), (3) and or (4), failing which those orders shall be immediately enforceable.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RARES, MURPHY AND DAVIES JJ:

1    On 12 May 2017, we published our reasons on the substantive issues in the appeal and cross appeal: Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd [2017] FCAFC 75 (our first reasons). We directed the parties to endeavour to agree on the orders to give effect to the findings in the first reasons and as to the costs of the trial and the appeal and, in default of agreement, to file draft orders and brief submissions as to their proposed orders. As is apparent, the parties did not agree.

2    In the first reasons we found that:

(a)    the appeal succeeded in that the primary judge should have held (as we did) that:

    the fourth respondent, Noel Reynolds, and the fifth respondent, Stephen Power, were accessorially liable for the unconscionable conduct of Twentieth Green Pty Ltd (the trustee) in obtaining from Colin Price (the controlling mind of the first appellant, Colin R Price & Associates Pty Ltd (CRP)), and one of two directors and shareholders of the second appellant, Grovan Pty Ltd, two payment authorities that the trustee used to divert trust distributions due to Grovan, as a unit holder in the unit trust, instead to repay loans that third parties had made for the benefit of the trustee. The trustee was devoid of assets at the time of judgment and went into liquidation shortly after the filing of the notice of appeal (our first reasons at [94]-[98]);

    Grovan was entitled to judgment against the three of the other four unit holders that were respondents, namely, Four Oaks Pty Ltd, Noel Jones (Carnegie) Pty Ltd and Eighty-Second Agenda Pty Ltd (which held 25%, 10% and 25% of the units respectively) (the three unit holders) in respect of the overpayment of distributions to them by reason of the trustee’s failure to pay Grovan the distribution that it should have received, including in respect of the repayment of the loans by wrongly using Grovan’s entitlement (our first reasons at [100] and [116]);

    the trustee had underpaid Grovan its 10%, or $6,000, entitlement in the distribution due to it in respect of an unsubstantiated expense of $60,000 in the trustee’s accounts (our first reasons [145]).

(b)    the cross appeal failed as to the primary judge’s findings that:

    the trustee had engaged in the unconscionable conduct (our first reasons [72]);

    Grovan was not bound by the payment authorities on which the respondents/cross appellants had relied in order to cause Grovan’s entitlement to a distribution from the unit trust wrongfully to be distributed to the other four unit holders, including the three unit holders (our first reasons [160]); and

    the parties be permitted to reopen after his Honour had delivered his first set of reasons (our first reasons [176]);

3    We also dismissed CRP’s appeal against the primary judge’s dismissal of its claims that it was not bound by the simple works contract for the development project for which they had established the unit trust administered by the trustee and that the trustee, Mr Reynolds, Mr Power and the sixth respondent, Geoffrey Rice, had engaged in conduct that was misleading or deceptive in relation to that contract.

4    Because of the above errors that we found his Honour to have made, it is also necessary to resolve the issues of costs of both the proceedings below as well as the appeal and cross appeal. The trustee, by its liquidator, has filed a submitting appearance in the appeal except as to costs.

The respondents’ submissions: orders as to the liability of Messrs Reynolds and Power

5    The primary judge entered judgment in favour of Grovan against the trustee in the principal sum of $119,886 (order 2(a)). His Honour arrived at that figure after taking into account a deduction of $7,530 in respect of Grovan’s admitted liability, as the holder of 10% of the units in the unit trust, to contribute 10% to the discharge of the $75,300 judgment debt that the trustee owed to CRP, from the larger overall liability of $127,416 due by the trustee to Grovan (J33-34). We increased Grovan’s judgment by $6,000 (our first reasons at [144]-[145]) taking it to $125,886, after deducting the $7,530.

6    His Honour found that the trustee had wrongfully paid to third parties, pursuant to the invalid payment authorities, $100,141 that should have been (but was not) distributed to Grovan. The respondents argued that Grovan should have judgment entered against Mr Reynolds and Mr Power jointly and severally in the principal sum of $94,489.04, rather than $100,141, plus interest. They submitted that the amount for which, as accessories Mr Reynolds and Mr Power were liable, should be reduced by deducting $5,651.96. The respondents argued that this reduction would reflect the proportionate burden that should be borne by Mr Reynolds and Mr Power to reflect the same proportionate deduction from the $100,141 that formed part of the deduction of $7,530 to reach the judgment sum of $125,886. His Honour found that interest should run on the judgment sums from 1 July 2010. We will make our orders on that basis.

Consideration

7    We reject the respondents’ argument. The primary judge found that the $100,141 had not been paid to Grovan as a direct result of the unconscionable conduct of the trustee for which we found each of Mr Reynolds and Mr Power accessorially liable because they procured Mr Price’s execution of the payment authorities.

8    The primary judge held that the $7,530 deduction from Grovan’s entitlement was an adjustment to reflect the trustee’s liability to pay CRP $75,300, for which he entered judgment in favour of CRP against the trustee. That was not a liability that related to the unconscionable conduct. In addition, each of Mr Reynolds and Mr Power is liable for interest on $100,141 for which they are jointly and severally liable to Grovan.

9    Grovan suffered loss and damage “by conduct” of each of Mr Reynolds and Mr Power within the meaning of s 82(1) of the Trade Practices Act 1974 (Cth). Their unconscionable conduct constituted a separate cause of action and gave rise to a discrete loss that should not be reduced by apportioning or setting off any liability of Grovan to the trustee. The trustee’s payment of Grovan’s $100,141 to the lenders pursuant to the payment authorities was Grovan’s loss or damage by the unconscionable conduct: Henville v Walker (2001) 206 CLR 459 at 505 [140] per McHugh J 509-510 [164]-[167] per Hayne J, with both of whom Gummow J agreed at 507 [153]. Grovan did not lose merely a proportion of that sum; rather it lost all of what the trustee repaid to the third parties in consequence of its use of the payment authorities.

The respondents’ submissions as to orders in respect of their liability to the appellants

10    The respondents accepted that each of the three unit holders was liable severally to Grovan in respect of the pro rata excess distribution each had received. On appeal, we decided that the under payment of Grovan amounted to $133,416, before deducting $7,530 in respect of Grovan’s 10% share of the trustee’s liability to CRP resulting in a judgment sum before interest of $125,886. However, the respondents argued that the three unit holders had no liability to pay either CRP, directly, or a sum to restore the trustee to the position where it could pay CRP the judgment sum of $75,300 (plus interest) due to it. The respondents contended that they had no liability to CRP.

Consideration

11    We reject the respondents’ argument. CRP and Grovan sought orders on the appeal that each of the three unit holders should put the trustee in funds to enable it to satisfy the orders for several payments of money to each of CRP and Grovan based on the three unit holders’ receipt of distributions to which they were not entitled. Grovan, as a beneficiary unit holder had a right to enforce that cause of action for its own benefit in respect of the $125,886 judgment due to it (our first reasons [97]-[98], [102]-[116]).

12    The distributions to the three unit holders greater than the profits of the venture were made in breach of trust. The benefit of the non-payment to CRP of the sum of $75,300 due to it, was part of what the three unit holders received in their distributions. The primary judge reduced the sum to which Grovan was entitled by $7,530, being its 10% share of liability to repay that sum. The three unit holders accepted the benefit of Grovan’s admission that it should not recover its 10% share of the $75,300 debt, but they refused to accept any liability to put the trustee in funds to meet its debt by repaying their consequently proportionate excess distributions.

13    We summarised the appellants’ claim at [98] of our first reasons. Here, all the parties were before the primary judge. The three unit holders and the individual respondents who controlled them (Mr Reynolds, Mr Rice and Mr Power) caused the trustee, first, to underpay each of CRP and Grovan, and secondly, to fight the proceedings below when they knew the trust had no funds or assets with which to meet any judgment or even pay its own costs. There is no prospect of CRP achieving any recovery in the liquidation unless it funds the liquidator to bring proceedings to recover the overpaid distributions (see: our first reasons [101]-[115]).

14    The primary judge found that the trustee had received payment of the $75,300 from the owners of properties in the development. He held CRP entitled to the $75,300 as the value of the additional building work it had done, with the trustee’s agreement, to repair those properties. He found the trustee had requested CRP to do that work but that the trustee had not paid CRP and that:

As the amount of $75,300 was received and retained by all of the unit holders [in the trust], Grovan has had the benefit of 10% of this amount, namely $7,530. In recognition of this, it is appropriate that the amount otherwise payable to Grovan be reduced by $7,530. (emphasis added)

15    The purpose of his Honour’s reduction of Grovan’s entitlement appeared to be that it would leave the trustee free to recover funds from the three unit holders to a commensurate extent, so that CRP could recover, ultimately, through the efforts of the impecunious trustee, those unit holders’ pro rata share of the $75,300 plus interest. And, the primary judge considered (wrongly, as we held in our first reasons) that CRP could and should begin new proceedings to recover the whole $75,300 from the trustee which could sue all of the unitholders other than Grovan (because the trustee had retained the $7,530 proportion due by Grovan) and then pay that amount to CRP.

16    Each of the three unitholders has retained its aliquot share of the overpayment of the distribution of the $75,300 that the trustee received and did not pay to CPR. The trustee, as the primary judge envisaged, could have brought proceedings to recover the respective amounts of overpayment from the three unitholders and then paid that to CRP. However, as we have found that each of the three unit holders is liable to repay its share of the $75,300 plus interest to the trustee, which is liable to pay the whole $75,300 plus interest to CRP, and all of them were parties to the proceedings below and the appeal, we found it appropriate to order that the three unit holders pay the amounts due by them to the trustee directly, at the suit of Grovan, to CPR in the proper execution of the unit trust: cf Heydon JD and Leeming MJ, Jacob’s Law of Trusts in Australia (7th ed, Butterworths, 2006) at [2303]. That course would avoid a multiplicity of proceedings: (see our first reasons at [109]-[116]).

17    Here, the trustee did not seek to recover those moneys and contested at the trial, after the other respondents put it in funds, its liability to pay CRP what was due to it. Moreover, the respondents also required Grovan to bring its 10% share of the trustee’s liability to CRP to account in ascertaining what was due by them to Grovan. If it had been aware before the payments were made, Grovan could have obtained an injunction preventing the trustee from distributing the $75,300 to the other unit holders in breach of its obligation properly to administer the trust: Yorkshire Miners’ Association v Howden [1905] AC 256 at 262 per Earl of Halsbury LC, 266-267 per Lord Macnaghten, 279 per Lord Robertson agreeing , 281 and 283 per Lord Lindley. We see no reason in principle why Grovan should not have standing, in the special circumstances, to enforce the trustee’s right to recover those overpayments and to ensure their proper application to meet the trustee’s liabilities given that the trustee unsuccessfully contested these matters at the trial: see our first reasons [102]-[106], and Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109; Lidden v Composite Buyers Ltd (1996) 67 FCR 560 at 563-564 per Finn J.

18    Accordingly, in our opinion, in the circumstances, having regard to s 22 of the Federal Court of Australia Act 1976 (Cth) and the considerations to which we referred in our first reasons at [109]-[116], subject to any submissions that the liquidator of the trustee may make, the three unit holders should be ordered to pay to CPR directly, as to each of Four Oaks and Eighty-Second Agenda, $18,825 plus interest, and as to Noel Jones (Carnegie) $7,530 plus interest.

19    We have framed orders on this basis to allow CRP to recover directly the proportionate over-distributions of $75,300 from the three unit holders to avoid a multiplicity of proceedings. However, it may be that the liquidator, who has caused the trustee to file a submitting appearance, may wish to argue that the trustee, not CRP, is properly entitled to those moneys. Accordingly, we will allow the liquidator three weeks to apply to assert any claim that the moneys payable pursuant to the orders enabling CRP to recover that sum should be applied otherwise (than for the purposes of meeting the trustee’s liability to CRP). The liquidator may need to address submissions on, among other matters, whether there should be an order that the sums so recovered be applied to satisfy, to the extent of the recovery, the $75,300 debt due by the trustee to CRP or alternatively to indemnify CRP for its costs in recovering those moneys in both the trial and this appeal, given the purpose for which the orders, under which the recovery will occur, were made: cf s 564(a) of the Corporations Act 2001 (Cth).

20    In framing the orders that should be substituted for those that the primary judge made, we have expressed the orders for monetary judgment in favour of each of CRP and Grovan as operating first, against the trustee for the full amount of each liability, namely $75,300 for CRP and $125,886 for Grovan, plus interest and made several orders against the three unit holders and, in Grovan’s case, Mr Reynolds and Mr Price. It is a matter for each of CRP and Grovan against which of the respondents (other than the trustee) it proceeds to enforce the orders and in which sequence. Of course, the rule against double recovery in respect of cumulative remedies will apply to prevent each of CRP and Grovan receiving more than the respective principal judgment sum and interest up to payment: cf Baxter v Obacelo Pty Ltd (2001) 205 CLR 635, at 653-654 [39]-[40] per Gleeson CJ and Callinan J, 659 [57] per Gummow and Hayne JJ, 669 [89] per Kirby J; Grimaldi v Chameleon Ming NL (No 2) (2012) 200 FCR 296 at 435 [641] per Finn , Stone and Perram JJ; Winnebago Industries Inc v Knott Investments Pty Ltd (No 4) (2015) 331 ALR 594 at 640-641[200]-[204] per Yates J.

21    Any adjustments can be made between the respondents by way of contribution after they discharge their several liabilities to Grovan.

The costs of the proceedings below and the appeal

22    On 25 August 2016, in his third reasons, the primary judge ordered each party to bear its or his own costs of the application and cross claim. The respondents argued that this order could only be set aside if his Honour’s discretion miscarried on a ground identified in House v The King (1936) 55 CLR 499. However, that argument was misconceived since we have found that his Honour erred in his substantive disposition of both CRP’s and Grovan’s claims. Accordingly, it is necessary for us to consider afresh the issues of the costs of the application and cross claim, as well as of the appeal and cross appeal.

The costs issues below – background

23    On 5 August 2016, his Honour granted each of CRP and Grovan relief only against the trustee on their claims. That relief was considerably more limited than each of those parties had sought below. He also dismissed the cross claim. The primary judge ordered that the trustee alone pay to CRP $75,300 plus interest and to Grovan $119,886 plus interest. He otherwise dismissed CRP’s and Grovan’s claims against all respondents.

24    We decided that CRP can recover some of its judgment against each of the three unit holders. We also decided that each of Mr Reynolds and Mr Power was personally liable to pay Grovan $100,141 plus interest by reason of his unconscionable conduct, and each of the three unit holders was liable to pay Grovan its proportionate share of the overpaid distributions it had received. We also found that Grovan was entitled to recover a further $6,000, being 10% of the unsubstantiated $60,000 payment of trust funds to Gruboc: see our first reasons at [144]-[145]. As a result, Grovan was entitled to recover $125,886 plus interest from the trustee and a proportionate amount jointly and severally from each of the three unit holders in accordance with their overpaid distributions.

25    Accordingly, each of CRP and Grovan substantively improved its position on the appeal by obtaining judgments against solvent parties, including Mr Reynolds and Mr Power personally, and avoided the need to engage in further litigation against either the impecunious trustee, now in liquidation, or the three unit holders to recover the amounts to which CRP and Grovan respectively are entitled.

26    His Honour had left the trustee or CRP to bring separate proceedings to recover those sums from the three unit holders or third parties in order to discharge that judgment debt (J2 44). His Honour found it was “evident that Twentieth Green does not presently have any assets” but “it may be expected to seek to recover” the overpaid distributions from the three unit holders and that if the trustee were unwilling to do so, Grovan could do so in its name.

27    We considered that, in the circumstances, his Honour should have dealt with that issue and ordered the three unit holder to disgorge their overpayments in the proportions of their unit holdings in respect of the trustee’s overpayment to them resulting in its failure to pay CRP the $75,300 plus interest.

28    In addition, on 22 June 2015, the applicants (CPR and Grovan) served the respondents with a notice of offer to compromise under r 25.01 of the Federal Court Rules 2011 (the first offer). The first offer provided that:

    the respondents would pay the applicants a total of $180,000.00 inclusive of interest;

    costs (on a party and party basis) were in addition to, and not included in, that sum (as provided in r 25.03(1)(b));

    Grovan would not be liable to contribute to any payment made by the trustee if the offer were accepted;

    if accepted, the applicants’ claims would be dismissed;

    it was open to be accepted for 14 days (as r 25.05(3) provided); and

    the amount (viz: $180,000) be paid within 14 days of acceptance (as rr 25.04, 25.08 permitted).

29    On 6 July 2015, the applicants served a second notice of offer to compromise under r 25.01 (the second offer) which was materially the same as the first offer except that the applicants reduced the amount that they would accept to $175,000.

30    The respondents did not accept either of the first or second offers.

31    His Honour approached and evaluated the first and second offers by deciding that, first, he would make no order as to costs of the application and cross claim, and secondly, on that basis, he would assess the offers in light of what he had awarded to CRP and Grovan and then would assess the value of their entitlement to costs to the date for acceptance of each offer for the purpose of ascertaining, in accordance with r 25.14(3) whether the judgment obtained was more favourable than either offer.

32    His Honour found:

    Grovan overall had been successful in relation to its claims and, in isolation, would have been entitled to an order for costs;

    CRP had succeeded on the cross claim and, in isolation, would have been entitled to costs on that;

    CRP had failed on the major issue it had litigated in the trial, namely its claims to be remunerated on a different basis to that in the simple works contract that his Honour (and we) found governed its relationship with the trustee. The primary judge considered that, in isolation, he would have ordered CRP to pay half of the trustee’s costs of CRP’s claims, having regard to its relatively minor, but not insignificant, success on its separate cause of action for the $75,300 debt;

    it was not appropriate to make separate orders for costs. His Honour apportioned 66.67% of the overall costs to CRP’s claims and 33.33% to Grovan’s claims and the cross claim. Balancing all costs’ entitlements, and each party’s measure of success, his Honour arrived at the position that there should be no order as to costs;

    his Honour assessed the value of the outcome of the trial as at 30 June 2015 inclusive of interest, at $268,433 which was less than the first offer of $280,000, being the sum of the $180,000 and an assumed recovery of $100,000 in respect of the applicants’ party and party costs and also less than the second offer. Thus, his Honour found that the judgment obtained was less favourable than the terms of the first and second offers and, so the applicants were not entitled to costs under r 25.14(3).

The respondents’ submissions on costs

33    The respondents argued that the first and second offers should be evaluated as the primary judge had done. They contended that the effect of the adjustments to the primary judge’s orders on appeal did not justify a different result in respect of the costs of the trial. They contended that the increase of $6,000 in Grovan’s judgment sum was very minor and should not affect the overall calculus arrived at by the primary judge. They submitted that Grovan’s success in obtaining judgment against Mr Reynolds and Mr Power and CRP’s and Grovan’s success on appeal in obtaining orders against the three unit holders, while substantive, did not alter the total monetary amount of the ultimate judgment sums (except in respect of the minor sum of $6,000).

34    The respondents argued that similar considerations applied to the costs of the appeal and cross appeal, namely that CRP had failed on its substantial claim to recover over $1 million plus interest, even though it had extended the number of respondents who were liable for the $75,300 debt. They contended that both sides had had a measure of success and failure on the appeal and cross appeal and that, once again, there should be no order for costs of both. Alternatively, the respondents argued that if any of them were to be ordered to pay costs in respect of the appeal, the orders should be several and proportionate to the judgment sums against each, namely that Mr Reynolds and Mr Power should only pay about 50% of the costs and the three unit holders should pay costs in proportion to their respective unit entitlements.

Costs – consideration

35    In light of our conclusions on the appeal, CRP and Grovan were entitled to judgment in a combined total of $201,186 ($75,300 for CRP and $125,886 for Grovan). Interest to 30 June 2015 on that total amounted to $75,499.25. Thus, at 30 June 2015 the appellants were entitled to $276,685.25, being a sum slightly greater than the value of the second offer of $175,000 and the assumed costs of $100,000 to 22 June 2015. While the appellants’ solicitors had used the figure of $100,000 as their assumed party and party costs, in their covering letter accompanying the first offer, they also said in that letter that the appellants would accept payment of $95,000 for those costs if the first offer were accepted.

36    The primary judge evaluated the overall result under r 25.14(3). The word “judgment” in r 25.14(3) has the same meaning as in s 4 of the Federal Court of Australia Act 1976 (Cth), namely “a judgment, decree or order”. In deciding whether r 25.14(3) applied, the primary judge was entitled to reason, as he did, by evaluating the value of any order for costs included in the first or second offers and comparing both the actual money sum offered with the overall judgment sums and the effect of his costs orders. Had we not considered that the appeal should be allowed, it would be difficult to see a basis on which to set aside the primary judge’s finding that the overall judgment that the applicants below obtained was not “more favourable than the terms of [either] offer” within the meaning of r 25.14(3).

37    However, the position before us is different to that facing the primary judge. His Honour evaluated the issue of costs on the basis that, in effect, the appellants only had succeeded against the trustee alone, and there should be no order for costs.

38    In our opinion, his Honour’s decision that there should be no order as to costs should be set aside. First, Grovan, as his Honour found, substantively succeeded below and, having regard to the result of the appeal, has markedly improved its position in being able to recover payment of what it is owed from several more respondents. Secondly, while CRP failed on its principal claim, both it and Grovan had to bring and prosecute the proceedings against a determined set of respondents who were intent on paying them nothing, despite the unconscionable behaviour of Mr Reynolds and Mr Power and their use of the assetless trustee to fight to proceedings to judgment. Moreover, because of the trustee’s financial position, which the other respondents controlled, they had argued, successfully below, that CRP and Grovan only had a remedy against the impecunious trustee. Thus, the primary judge only found the trustee liable to CRP and Grovan and dismissed their claims against the other respondents.

39    In our opinion, his Honour was correct to recognise that Grovan was entitled to its costs and CRP was entitled to the costs of the cross claim. The primary judge did not find that CRP’s unsuccessful claims were trivial, unreasonable or unmeritorious. Rather, his Honour found that the costs of the applicants below should be assessed having regard to CRP’s failure on its claim to be renumerated on a basis other than the simple works contract. However, while CRP failed on its major claims, it succeeded in recovering $75,300 in circumstances where the respondents made no concessions that they owed it anything.

40    In our opinion, CRP’s limited success did not require or justify that it be ordered (as his Honour contemplated) to pay 50% of the respondents’ costs of CRP’s claims. It was still necessary for CRP to bring the proceedings with Grovan in order for them each to obtain the judgments that they achieved below and, as varied, on appeal. While it was appropriate for his Honour to consider reducing the amount of CRP’s and Grovan’s costs, it was not appropriate for CRP and Grovan to be deprived entirely of an order for costs when they each recovered judgments of substance in circumstances where the respondents had denied, and contested, all liability issues.

41    The primary judge noted, and s 43 of the Federal Court of Australia Act provided, that the award of costs is discretionary. However, “generally that discretion is exercised in favour of the successful party”: Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 at 62 [25] per Gleeson CJ, Gummow, Hayne and Crennan JJ.

42    The effect of his Honour’s order, that each party bear his or its own costs, deprived of all their costs both Grovan, which was substantially successful, and CRP, which failed on its major claim, but succeeded on a minor, but still contested one. Moreover, on appeal we substantially augmented the relief granted by finding liable five respondents, in addition to the sole respondent, that his Honour found liable namely the impecunious, and now insolvent, trustee.

43    As French CJ, Kiefel, Nettle and Gordon JJ said in Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 327 ALR 192 at 193 [6]:

the preferable approach in this case is the one usually taken, that costs should follow the outcome of the appeal. This is not a case where it may be said that the event of success is contestable, by reference to how separate issues have been determined [Compare Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 at 393[241]]. There are no special circumstances to warrant a departure from the general rule, and good reasons not to encourage applications regarding costs on an issue-by-issue basis, involving apportionments based on degrees of difficulty of issues, time taken to argue them and the like. (emphasis added)

44    The respondents acted jointly in the proceedings below and (except for the submitting trustee) on appeal and had common representation, as indeed did the appellants. The eighth respondent below, Mr Weerappah, did not appear below and was not a party to the appeal, but he gave evidence in the other respondents’ case below. In that situation, there is no reason to apportion costs between the respondents (except in respect of the trustee on appeal).

45    In our opinion, given that, on appeal, CRP and Grovan have obtained additional relief against the three unit holders, as well as, in Grovan’s case, Mr Reynolds and Mr Power and a slight increase in its monetary judgment, his Honour’s decision to make no order as to costs cannot stand. The successful parties should not be deprived of all their costs. There was a common substratum of facts and law relevant to the overall relationships between the parties: cf Les Laboratoires Servier v Apotex Pty Ltd (2016) 117 IPR 415 at 482-484 [297]-[306] per Bennett, Besanko and Beach JJ. In all of the circumstances, the appropriate order for costs of the proceedings below would have been that the respondents (who were active below) pay one third of the applicants’ costs.

46    Accordingly, as a result of the appeal, the appellants can now be seen to have achieved at trial a considerably more favourable judgment than either of the first or second offers provided. That is because the total judgment sum with interest and an entitlement to one third of their costs (using the assumed sum, being over $33,000), of over $310,000 exceeded the value of each offer of around $280,000. It follows that the provisions of r 25.14(3) should apply and the respondents should be ordered to pay the applicants’ costs of the proceedings below:

    before 11.00am on 24 June 2015 (being the second business day after the 22 June 2015 offer was served) on a party and party basis; and

    thereafter on an indemnity basis.

47    The respondents should pay the appellants’ costs of the appeal and cross appeal (on a party and party basis) having regard to the result: Firebird 327 ALR at 193 [6].

48    We will make the following monetary orders:

(1)    the seventh respondent pay the first applicant $112,326.02 (being $75,300 plus interest of $37,026.02);

(2)    the first respondent pay the first applicant $28,081.51 (being $18,825 plus interest of $9,256.51);

(3)    the third respondent pay the first applicant $28,081.51 (being $18,825 plus interest of $9,256.51);

(4)    the second respondent pay the first applicant $11,232.60 (being $7,530 plus interest of $3,702.60);

(5)    the seventh respondent pay the second applicant $187,783.57 (being $125,866 plus interest of $61,917.57);

(6)    the fourth and fifth respondents pay the second applicant $149,379.95 (being $100,141 plus interest of $49,238.95);

(7)    the first respondent pay the second applicant $46,945.89 (being $31,471.50 plus interest of $15,474.39);

(8)    the third respondent pay the second applicant $46,945.89 (being $31,471.50 plus interest of $15,474.39);

(9)    the second respondent pay the second applicant $18,778.36 (being $12,588.60 plus interest of $6,189.76).

Associate:

Dated:    30 June 2017

SCHEDULE OF PARTIES