FEDERAL COURT OF AUSTRALIA

Bird v McComb (No 4) [2012] FCA 270

THE COURT ORDERS THAT:

1.    Judgment be and hereby is entered for the plaintiff in the sum of six hundred and seventy five thousand dollars ($675,000) against the first defendant, jointly and severally with the second, third, fourth, fifth and sixth defendants, such judgment to be stayed against the first defendant for a period of 7 days from the date of this judgment.

2.    The defendants pay interest on the judgment debt pursuant to s 51A and s 52 of the Federal Court of Australia Act 1976 (Cth).

3.    The defendants pay the costs of the plaintiff of and incidental to the hearing of 20 February 2012 on an indemnity basis, to be assessed if not otherwise agreed.

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

REASONS FOR JUDGMENT

1    On 19 July 2011 the trial in QUD 10 of 2011 was listed to commence. Ms Bird was represented by Counsel and Mr McComb was self-represented, although no lawyer had been appointed to represent the corporate defendants as required by r 4.01(2) of the Federal Court Rules 2011. On that day, however, Ms Bird and Mr McComb (on behalf of himself and the corporate defendants) requested the indulgence of the Court to delay commencement of the trial and the opening of the case by Counsel for Ms Bird. It appeared that the parties to the proceeding were engaged in settlement discussions. After the luncheon adjournment on 20 July 2011 Counsel for Ms Bird informed the Court that the matter had settled, and that the parties were cooperating to transcribe terms of settlement into a settlement agreement. With the consent of the parties I ordered that the matter be adjourned to the Registry with liberty to apply.

2    Ms Bird now claims that Mr McComb and the corporate defendants have not complied with their obligations under the settlement agreement executed on that day (“the Settlement Agreement”). In particular, Ms Bird contends (and the defendants do not dispute) that the defendants have not complied with their obligation to pay Ms Bird the sum of $675,000 which was due, at the latest, by 20 January 2012. Ms Bird seeks orders giving her judgment in this proceeding.

3    In my view judgment should be given for Ms Bird, substantially in the terms sought. I form this view for the reasons set out below.

The Settlement Agreement

4    A copy of the Settlement Agreement is annexed to the affidavit of Mr Peter Mylne (the solicitor for Ms Bird) affirmed 24 January 2012. On its face it was executed on 20 July 2011 by Ms Bird on the one hand, and on the other hand by Mr McComb and by the five corporate defendants – Brimin Gem Pty Ltd, SCB Holdings Pty Ltd, Carriages Pty Ltd, Newtoun Pty Ltd and Austral Pacific Queensland Pty Ld – through their director Mr McComb. There is no dispute between the parties that the Settlement Agreement was properly executed by all parties.

5    So far as relevant the Settlement Agreement provides as follows:

RECITALS

B. Upon the first defendant on behalf of Brimin Gem and/or Austral Pacific (as trustee or otherwise) acquiring valuations in respect of Lot 18 Taroona Court, Mt Eliza in the State of Victoria, 2 Mackeith Court, Mt Eliza in the State of Victoria, 3 ackeith Court, Mt Eliza in the State of Victoria (“the Properties”); and

C. Upon the presentation of those valuations to Messrs Mylne Lawyers at 92 shmore Road, Bundall in the State of Queensland, demonstrating the existence of sufficient equity in the properties to satisfy payment to the plaintiff of the sum of $675,000.00 (the “Settlement Sum”); and

D. Upon the provision of mortgage documentation demonstrating as between the first defendant and Brimin Gem or Austral Pacific (as trustee or otherwise), the capacity to borrow 66% of the valuation of each of the Properties and the remaining equity in each of the Properties identified aforesaid as satisfying the net equity available to secure the advance of the Settlement Sum to the Plaintiff; and

E. Upon the defendants agreeing to pay to the plaintiff the Settlement Sum in full and final satisfaction of all proceedings between the plaintiff and the defendants, including all costs orders that each has against each other in all jurisdictions; and

F. Upon the defendants agreeing to be jointly and severally liable for the payment of Settlement Sum to the plaintiff herein;

AGREEMENT

1.    The plaintiff and defendants agree:-

a.    To adopt and incorporate the recitals as part of this agreement;

b.    To the lodging of a security by way of consent caveat over the properties and 1 Mackeith Court, Mt Eliza in the State of Victoria, securing the plaintiff’s interest in the properties to the benefit of the plaintiff subject to the terms and conditions herein below referred;

c.    That upon lodgement of the consent caveat as set out in paragraph (a) aforesaid and simultaneously herewith, the plaintiff will bring the matter back before the court and do all such things as are necessary to discharge the injunctions that have been made by the Federal Court of Australia in the proceedings herein as against all defendants.

2.    That the proceedings herein be adjourned to the Registry to be brought on with two days notice each one to the other.

3.    That the defendants shall do all such things as are necessary to pay to the plaintiff the Settlement Sum within six calendar months of the date hereof or such other time as may be agreed by the parties in writing.

4.    That should the defendants fail to make payment of the Settlement sum within six calendar months or such time as agreed between the parties, then the terms of this agreement shall comprise sufficient evidence to effect judgment in the sum of $675,000.00 less any payments made together with interest calculated at the Supreme Court rate and costs, for the plaintiff against any or all of the defendants together, including any trust of which the defendants may be trustees.

5.    In the event that the defendants default the plaintiff agrees and acknowledges that she will pursue all reasonable avenues of recovery from the second to the sixth defendants prior to being entitled to recover from the first defendant.

6.    …

7.    The parties agree and acknowledge, despite any costs order to the contrary, that each will bear their own costs (including all reserved costs) in all proceedings in all jurisdictions, including but not limited to the Federal Court and the Victorian Supreme Court, such that the Settlement Sum is inclusive of any costs orders made against the Plaintiff.

8.    ...

9.    That in all other respects each party agrees to release and discharge each from any and all liability each to the other in respect of all proceedings including Victorian Supreme Court proceedings, Federal Court proceedings (subject to contents of the Deed) …

10.    That payment of the settlement sum shall be paid to the trust account of Mylne Lawyers by the defendants or their lawyers within the time as agreed as set out in this agreement or as otherwise directed by the first defendant.

11.    That upon payment of the settlement sum by the defendants to the plaintiff:-

a.    The plaintiff shall forthwith transfer any share or shares in any of the defendants (apart from the first defendant) to the first defendant;

b.    The plaintiff will do all such things necessary to discontinue proceedings QUD010/2011 in the Brisbane Registry of the Federal Court of Australia;

c.    All caveats will be recovered with each party bearing their costs of so doing;

d.    The plaintiff abandons any claims to the shareholder or the directorships of each of the corporate defendants.

12.    …

Background to the current application

6    The facts giving rise to this proceeding are explained in detail in previous judgments of this Court, namely Bird v McComb [2011] FCA 129, Bird v McComb (No 2) [2011] FCA 507 and Bird v McComb (No 3) [2011] FCA 697.

7    More recent events taking place between 20 July 2011 and the appearance in Court of the parties on 20 February 2012 were summarised in two affidavits sworn by Mr Mylne.

8    In his affidavit affirmed on 24 January 2012 and filed on 17 February 2012 Mr Mylne deposed (so far as relevant) as follows:

1.    I am the Solicitor for the Plaintiff and I am authorised to make this affidavit on the Plaintiff’s behalf.

2.    On 20 July 2011 the Plaintiff entered into a settlement agreement with the then 6 respondents to settle this matter. Since that time the Fifth Respondent has been deregistered on 31 August 2011 without notice to the Plaintiff.

3.    Recital C of the Agreement prescribes $675,000.00 as the settlement sum, clause 1 adopts the recitals as part of the Agreement and Clause 3 provides the time for payment, being on or before 20 January 2012. Annexed hereto and marked with the letters “PGM-1” is a true and correct copy of the settlement agreement.

4.    On 13 September 2011, upon an order by consent, certain injunctions made by his Honour Justice Greenwood on 18 February 2011 and 18 April 2011 were lifted to enable the first phase of settlement to take place. That first phase enabling the Defendants to refinance their then existing financial arrangements.

5.    Neither the Plaintiff or its solicitors have any advice as to whether the Defendants have taken any action to effect phase 2 of the settlement, being the sale of land or the further restructuring of existing mortgage facilities to enable payment to the Plaintiff of the settlement sum.

6.    On 17 January 2012 I wrote to solicitors for the Defendants advising that settlement was due to be effected on or before 20 January 2012 and providing deposit details. Annexed hereto and marked with the letters “PGM-2” is a true and correct copy of that letter.

7.    At 5.00pm on 20 January 2012 I caused to have checked my trust account into which funds were to be paid by the Defendants and confirm that no settlement funds had been deposited.

8.    At 9.00am on 23 and 24 January 2012 I again caused to have checked my trust account and confirm that no settlement funds had been deposited.

9.    Clause 4 of the settlement agreement provides for the entry of judgment against the respondents, and each of them, in the following terms:

“That should the defendants fail to make payment of the Settlement Sum within six calendar months or such time as agreed between the parties, then the terms of this agreement shall comprise sufficient evidence to effect judgment in the sum of $675,000.00 less any payments made together with interest calculated at the Supreme Court rate and costs, for the plaintiff against any or all of the defendants together, including any trust of which the defendants may be trustees.”

10.    I confirm that no monies have been paid and no other agreement has been reached between the parties.

11.    The Plaintiff now seeks the judgment of the Court in the sum of six hundred and seventy five thousand dollars ($675,000.00) plus interest from the due date to the date of judgment pursuant to section 51A(1)(a) of the Federal Court of Australia Act and from the date of judgment until payment pursuant to section 52 of the Federal Court of Australia Act.

12.    On 23 January 2012 I wrote to the solicitors for the Respondents advising that the agreement had not been adhered to and that further action would now be taken. Annexed hereto and marked with the letters “PGM-3” is a true and correct copy of that letter.

13.    The application seeks the joining of Brimin Gem Pty Ltd and Austral Pacific Queensland Pty Ltd in their capacities as trustee of The B.M Family Trust. Since the change of trustee of The B.M family Trust occurred the land then held in the name of Brimin Gem Pty Ltd has not been transferred by the Respondent to Austral Pacific Queensland Pty Ltd. Clause 4 of the settlement agreement acknowledges that the trust is also bound to the agreement.

9    In his second affidavit, affirmed and filed 17 February 2012, Mr Mylne gave evidence in respect of his efforts to contact Mr McComb and solicitors who had previously acted for Mr McComb, to advise them of the hearing listed on 20 February 2012.

10    On 16 February 2012 Mr Mylne on behalf of Ms Bird contacted the Federal Court Registry in Brisbane and requested that the matter be relisted before me because the defendants had not complied with their obligations under the Settlement Agreement. Mr Mylne informed the Registrar that the plaintiff sought to rely upon my order of 20 July 2012 that the parties have liberty to apply. The matter was listed before me for urgent hearing on 20 February 2012.

11    Prior to the hearing Mr Mylne on behalf of Ms Bird submitted draft orders, for consideration at the hearing. Those draft orders were as follows:

1.    Brimin Gem Pty Ltd be and hereby is joined in its capacity as trustee of The B.M Family Trust as seventh respondent.

2.    Austral Pacific Queensland Pty Ltd be and hereby is joined in its capacity as trustee of The B.M Family Trust as eighth respondent.

3.    Judgement be and hereby is entered for the Plaintiff in the sum of six hundred and seventy five thousand dollars ($675,000.00) against the second, third, fourth, fifth, sixth, seventh and eighth defendants jointly and severally.

4.    Judgment be and hereby is entered for the Plaintiff in the sum of six hundred and seventy five thousand dollars ($675,000.00) against the first defendant, jointly and severally with the second, third, fourth, fifth, sixth, seventh and eighth defendants and that such judgment against the first defendant be stayed for a period of seven (7) days from the date of this judgment.

5.    The Defendants pay interest on the judgment debt pursuant to Section 51A and Section 52 of the Federal Court of Australia Act.

6.    The Defendants pay the costs of the Plaintiff on the indemnity basis as agreed, and if not agreed, as assessed.

Hearing of 20 February 2012

12    On 20 February 2012 following the commencement of the hearing the solicitors on behalf of both the plaintiff and the defendants informed me that the parties were in further settlement discussions. Those settlement discussions were, however, unsuccessful, and the hearing continued later that evening.

13    Mr Mylne applied for judgment in accordance with clause 4 of the settlement agreement.

14    Mr Cooper on behalf of Mr McComb submitted, in summary, as follows:

    the plaintiff did not submit that the Recitals in the Settlement Agreement had been complied with;

    there was nothing in the affidavit material stating that:

    Mr McComb had acquired valuations in respect of the properties; or

    on the presentation of those valuations to Ms Bird’s solicitors it was clear that $675,000 in equity in the properties existed; or

    mortgage documents had been provided demonstrating as between Mr McComb and Brimin Gem Pty Ltd and Austral Pacific Queensland Pty Ltd in their capacities as trustee of The B.M Family Trust the capacity to borrow 66% of the valuation of each of the properties and remaining equity in each of the properties;

    accordingly there was insufficient evidence before the Court to grant the order sought by Ms Bird;

    there was nothing in the affidavit material supporting orders joining Brimin Gem Pty Ltd and Austral Pacific Queensland Pty Ltd;

    paragraph 5 of the Settlement Agreement requires that, in the event the defendants default, the plaintiff agrees that she will pursue all reasonable avenues of recovery against the second – sixth defendants before seeking to recover from the first defendant.

15    During the hearing I asked Mr Mylne a number of questions in relation to the draft orders he had previously submitted. In summary:

    Mr Mylne explained that, although Brimin Gem Pty Ltd and Austral Pacific Queensland Pty Ltd were already parties to this proceeding, draft orders 1 and 2 were intended to provide clarity in relation to the capacities in which those parties were acting. However Mr Mylne submitted that he had no strong objection to me striking out those draft orders.

    Mr Mylne submitted that evidence could be filed by Ms Bird to support the plaintiff’s claims in respect of Recitals B, C and D.

    Mr Mylne submitted that judgment against the first defendant Mr McComb ought be stayed for a period of seven days from the date on which judgment is delivered, although I might take the view that 30 days is more appropriate.

16    On 23 February 2012, in light of the dispute between the parties concerning the existence of evidence relevant to Recitals B, C and D of the Settlement Agreement, I made directions from Chambers regarding the filing of further evidence by the parties.

Further evidence filed by Mr Mylne on 1 March 2012

17    On 1 March 2012 Mr Mylne filed an additional affidavit in response to my directions of 23 February 2012. In that affidavit Mr Mylne deposed, so far as relevant:

4.    The Deed of Settlement, for convenience, is attached hereto as “PGM-1”.

5.    Recital B states:

upon the first defendant on behalf of Brimin Gem and/or Austral Pacific (as trustee or otherwise) acquiring valuations in respect of Lot 18 Taroona Court, Mt Eliza in the State of Victoria, 2 Mackeith Court, Mt Eliza in the State of Victoria, 3 Mackeith Court, Mt Eliza in the State of Victoria (“The Properties”); and

I reasonably believe that on 27 July 2011 the solicitors for the proposed mortgagee obtained a valuation of:

18 Taroona Court, Mt Eliza;

2 Mackeith Court, Mt Eliza;

3 Mackeith Court, Mt Eliza

in compliance with Recital B. Attached hereto and marked “PGM-2” is a true and correct copy of the valuations under covering letter from Carrol and Dillon dated 17 August 2011.

6.    Recital C states:

Upon the presentation of those valuations to Messrs Mylne Lawyers at 92 Ashmore Road, Bundall in the State of Queensland, demonstrating the existence of sufficient equity in the properties to satisfy payment to the plaintiff of the sum of $675,000.00 (the ‘Settlement Sum’); and

Each of the properties had the following loans and valuations:

7.    Recital D states

Upon the provision of mortgage documentation demonstrating as between the first defendant and Brimin Gem or Austral Pacific (as trustee or otherwise), the capacity to borrow 66% of the valuation of each of the Properties and the remaining equity in each of the Properties identified aforesaid as satisfying the net equity available to secure the advance of the Settlement Sum to the Plaintiff; and

On 22 August 2011 I received from Alan Shnider Lawyers copies of the orders to register mortgages relating to the above properties in the names of Brimin Gem Pty Ltd, in the amounts set out in the table above which complies individually and collectively with the 66% in Recital D. Attached hereto on “PGM-3” is a true and correct copy of the S 73 certificates.

18    No material was filed by the defendants in respect of this issue.

Consideration

Draft orders 1 and 2

19    In light of Mr Mylne’s concession that no order need be made by the Court joining Brimin Gem Pty Ltd and Austral Pacific Queensland Pty Ltd in their capacities as trustees of the B.M Family Trust as respondents to this proceeding, I do not propose to make the orders sought in paragraphs 1 and 2 of the draft submitted by Mr Mylne. In any event, I note that on 18 April 2011 Greenwood J ordered that Austral Pacific Queensland Pty Ltd as trustee of the B.M Family Trust be joined in the proceedings as the sixth defendant.

Draft orders 3, 4 and 5

20    In relation to her claim that judgment be entered for her in the sum of $675,000 against the defendants, it appears that Ms Bird relies on r 26.01(1)(e) of the Federal Court Rules 2011, which entitles a party to apply to the Court for an order for summary judgment where the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

21    The evidence of Mr Mylne in his affidavit affirmed 1 March 2012 is not disputed by the defendants. I am satisfied, following an examination of Mr Mylne’s affidavit and the annexures thereto, that the requirements of Recitals B, C and D of the Settlement Agreement have been complied with.

22    It is clear that the proceedings before the Court were compromised in the Settlement Agreement executed 20 July 2011. There is no suggestion that the Federal Court has no jurisdiction to entertain Ms Bird’s claim that she is entitled to invoke the aid of the Court in enforcing the terms of the Settlement Agreement. Indeed, following the decision of the Full Court in Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510 it is clear that the Court has jurisdiction to entertain and determine such a claim pursuant to powers conferred by s 22 of the Federal Court of Australia Act 1976 (Cth). The terms of that section, which have remained unchanged since the decision in Ellwood, are as follows:

Determination of matter completely and finally

22. The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.

23    In Ellwood the facts before the Court – which in a general sense resemble those before me – were summarised by Pincus and Einfeld JJ at 520-521 as follows:

A purchaser under contracts for sale of land paid the total price, but received no conveyance. Subsequently, asserting that he had been misled, the purchaser claimed damages including the price, by proceedings brought under the Trade Practices Act 1974 (Cth). The respondent vendor agreed to pay $77,500 “all up”, and the matter was settled on that basis; being so informed, Pincus J adjourned the case to the Registrar. Subsequently, the vendor, not giving any substantive reason, reneged on the settlement and Spender J gave judgment in the proceedings for the agreed sum, less $20,000 which had been paid under the compromise.

24    After extensive consideration of the authorities their Honours summarised their approach to as follows:

It is clear that s 22 cannot have been intended merely to give the Court power to make orders of particular kinds “in relation to matters in which it has jurisdiction”; that work is explicitly done by the following provision, s 23. What the Court is required to do by s 22 is to grant all remedies to which any party appears to be entitled in respect of a claim properly brought forward in a matter. Is an order enforcing a compromise of a case such a remedy? On general principles it would seem at least arguable that the enforcement of a compromise of a claim is a remedy in a new claim and in a separate case. However, both Smith J and McPherson J, in the cases above mentioned, have taken the contrary view. If, as McPherson J held (in our respectful opinion, correctly), the Queensland equivalent of s 24(7) of the English Judicature Act enlarged the circumstances in which a compromise may be enforced by order in the action compromised, that was only so because such an order is a remedy of the kind referred to in the section. McPherson J did not decide the case before him on the basis that what was sought was nothing but a remedy in respect of a fresh cause of action in contract; nor should we do decide this case. (at 525-526)

25    Ellwood has been followed in numerous cases in this Court, including Reid v Interarch Australia Pty Ltd [2000] FCA 1328, Needlework Warehouse Pty Ltd v Chansonette Pty Ltd [2005] 226 ALR 252, AG Cowley Holdings Pty Ltd v Central City Pty Ltd [2010] FCA 199 and ACT Cross Country Club Inc v Cundy (t/as Cundy Sports Marketing) [2010] FCA 782.

26    In this case the Settlement Agreement provides, unequivocally, that Ms Bird is entitled to payment of $675,000 by the defendants within six months of 20 July 2011 in settlement of this proceeding. Clearly, this has not occurred. Unlike in other cases previously before this Court where the proceedings have been complicated by the involvement of third parties not parties to the relevant settlement agreement (for example, note the discussion of the Full Court in this respect in Pallas v Finlay (1985) 61 ALR 220), in this case the parties to this proceeding are the same as the parties to the Settlement Agreement. To that extent, Ms Bird is entitled to the aid of the Court in enforcing payment of that sum.

27    Clause 5 of the Settlement Agreement requires Ms Bird to pursue “all reasonable avenues of recovery from the second to sixth defendants prior to being entitled to recover from the first defendant”. In this case it appears that the avenues of recovery taken by Ms Bird have been:

    to communicate with the defendants, through her solicitor Mr Mylne, demanding that they fulfil their obligations under the Settlement Agreement;

    to seek to communicate with the defendants, through and including Mr McComb, and through solicitors previously instructed by Mr McComb, informing them that Ms Bird would take legal action to seek to enforce the Settlement Agreement; and

    to engage in further – although ultimately fruitless – settlement negotiations on 20 February 2012.

28    Mr Cooper submitted that these actions did not satisfy clause 5. In the circumstances however, I consider that these actions were “reasonable avenues of recovery from the second to sixth defendants”. I take this view because:

    it is clear from the material before the Court that the second to sixth defendants are under the control of Mr McComb;

    any decisions on behalf of the second to sixth defendants will be made by Mr McComb;

    engaging in further settlement discussions with Mr McComb in an attempt to settle the proceedings on 20 February 2012 was a reasonable attempt to recover from the second to sixth defendants; and

    in light of the events leading to the hearing of 20 February 2012, including further settlement discussions and briefing her solicitor to pursue inquiries of the defendants in respect of compliance with their obligations, in my view it would be unreasonable to require Ms Bird to incur more expenditure in commencing new proceedings against the second to sixth defendants.

29    There is some duplication in draft orders 3 and 4. When viewed with draft order 4, in my view draft order 3 is otiose (and could also lead to the confusing prospect of judgment being given to the plaintiff in respect of two separate amounts of $675,000, which is not contemplated by the Settlement Agreement).

30    I am prepared to make an order in accordance with the terms of draft order 4 (subject to deletion of reference to the seventh and eighth defendants, being Brimin Gem Pty Ltd and Austral Pacific Queensland Pty Ltd in their capacities as trustees of The B.M Family Trust), including the requirement that judgment be stayed against the first defendant for seven days.

31    In the further absence of submissions contesting an order in terms of draft order 5 or demonstrating good cause as to why an order for interest payable should not be made in accordance with the statute, I order that interest be payable on the judgment debt of $675,000 pursuant to s 51A and s 52 of the Federal Court of Australia Act 1976 (Cth).

Draft order 6

32    I understand from submissions of Mr Mylne that Ms Bird seeks indemnity costs of and incidental to the hearing of 20 February 2012.

33    Section 43 of the Federal Court of Australia Act 1976 (Cth) confers a broad discretion on the Court to award costs in proceedings. Indemnity costs may properly be awarded where there is some special or unusual feature in the case justifying the Court exercising its discretion in that way: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233.

34    It is clear from the Settlement Agreement that Ms Bird on the one hand, and Mr McComb and the other defendants on the other, agreed to bear their own costs of the litigation between them and in relation to the proper completion of the terms of the Settlement Agreement. However in my view this agreement did not extend to circumstances where the defendants failed, for no reasons of which the Court has been apprised, to comply with their obligations under the Settlement Agreement to pay Ms Bird the sum of $675,000 within six months after execution.

35    The defendants, clearly, are in breach of the Settlement Agreement they executed on 20 July 2011. As Mr Mylne submitted, correctly in my view, the involvement of the Court should have ended on 20 July 2011, and there should have been no necessity for Ms Bird to have taken the steps and incurred the further costs of seeking judgment against the defendants. Courts take a cautious approach to ordering costs on an indemnity basis, however I am satisfied that the circumstances attendant on this application exhibit features special or unusual so as to justify the Court in departing from ordinary practice. Costs should be awarded to Ms Bird on an indemnity basis.

Associate:

Dated:    22 March 2012