FEDERAL COURT OF AUSTRALIA

Ambrose (Trustee) in the matter of Poumako (Bankrupt) v Poumako (No 6) [2018] FCA 577

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    On this interlocutory application, Legalese Pty Ltd applies to have certain orders set aside on the basis that material facts were not disclosed to the Court at the time that the orders were made.

2    Mr Peter Scragg is a director of Legalese and a legal practitioner. He appears on this application for Legalese and relies on an affidavit sworn by him on 18 October 2017. Legalese is not a party to the primary proceedings.

3    The applicant in the primary proceedings is Mr Colin Ambrose. He commenced the action in his capacity as trustee of the bankrupt estate of the first respondent, Robin Brian Poumako. The primary proceedings concerned transactions between Mr Poumako and the other respondents (together the Poumako interests). The transactions were found to be voidable as against Mr Ambrose as trustee.

4    The respondents were originally represented in the proceedings by Legalese. Legalese filed a notice of ceasing to act on 26 March 2012 and an adjournment of the trial was occasioned by its conduct. These proceedings concern certain costs orders made consequent upon the adjournment for which Legalese was held responsible. Although relatively insubstantial in amount, the orders have been the source of ongoing controversy between Legalese (by Mr Scragg), Mr Ambrose and Mr Ambrose’s solicitors.

5    By interlocutory application dated 18 October 2017, Legalese claims that Mr Ambrose withheld material facts from the Court at a hearing in October 2013 and that, as a consequence, two orders of the Court made on 29 November 2013 should be set aside. Consequential orders for the reimbursement of certain payments made by Legalese to Mr Ambrose are also sought.

6    For the reasons that follow, the interlocutory application should be dismissed with costs.

BACKGROUND

7    The trial of the principle proceedings was originally set down to commence on 2 April 2012. On that day, the respondents appeared as self-represented litigants. They sought and obtained an adjournment of the trial by reason of Legalese having ceased to act for them and by reason of their default in filing affidavits. On 3 April 2012, Mansfield J vacated the hearing and relisted the matter to 14 May 2012. His Honour made the following orders as to costs (the 3 April 2012 orders):

…

3.    The Applicants [sic] are entitled to costs thrown away, by reason of the adjournment fixed at $6,000 in any event.

4.    The costs so payable be paid:

(a)    by the Respondents jointly and several and that some of the costs be paid within 14 days of today’s date; and that

(b)    the question of whether those costs be paid by the respondents’ former solicitors be adjourned for hearing and determination on Thursday 5 April 2012 at 3:30 pm.

…

8    The trial of the principle proceedings then proceeded on 14 May 2012 and judgment was delivered in August of that year.

9    On 10 May 2013, Mansfield J made orders in the following terms (the 10 May 2013 orders):

l.    Legalese Pty Ltd trading as Scragg & Associates (Legalese) pay to the first respondent the sum of $6000 being the sum of $6000 ordered to be paid by the respondents to the applicant for costs incurred by the applicant by the adjournment of the hearing of the application, by order made on 5 April 2012.

2.    Legalese satisfy the obligation to the first respondent by Order 1 hereof by:

(a)    if the first respondent within 21 days produces evidence to Legalese of the payment of the said sum of $6000 to the applicant, payment to the first respondent; or

(b)    if the first respondent does not produce such evidence within the period specified, payment to the solicitors for the applicant on account of the applicant;

and such payment by Legalese shall in any event discharge any liability to the respondents in respect of the adjournment of the hearing.

3.    Legalese and any party have leave to apply within 21 days by written notice to the Court for an order to vary or discharge Order 2 hereof.

10    The order in paragraph 1 was made pursuant to r 40.07(1)(c) of the Federal Court Rules 2011 (Cth). It entitles a party who has reasonable cause to believe that additional costs have been incurred because of his or her lawyer’s misconduct to apply to the Court for an order that the lawyer pay to the party the costs that the party has been ordered to pay to another party (Ambrose (Trustee) in the matter of Poumako (Bankrupt) v Poumako (No 4) [2013] FCA 418 at [47], [52]).

11    His Honour held (at [49], [54]):

49    … it is plainly a case where the conduct of the matter by the solicitors in a substantial degree caused the adjournment of the trial, and incurred the costs thrown away which the respondents were ordered to pay. …

…

54    Given the purpose of those costs, unless there is some supervening event of which I am unaware, I consider that that liability should be met either by paying that sum to the solicitors for the applicants direct if they have not been paid that sum, or alternatively by paying the sum to Mr Poumako if he is able to produce to the solicitors evidence (such as the receipt of the applicant’s solicitors) of the payment of that sum. I will give the solicitors and the respondents and the applicant’s solicitors leave to apply within 21 days to vary the order made by this paragraph of my reasons in the event that, for some reason of which I am presently unaware, it is not appropriate to make an order in those terms. The orders also ensure that the solicitors cannot be liable to any other respondent for the costs thrown away by the adjournment if the solicitors comply with the orders made.

12    On 20 September 2013, Legalese filed an interlocutory application in the primary action (quantum application).

13    On the quantum application, Legalese sought an order varying the 10 May 2013 orders under the so-called “slip rule” on the basis that the orders did not reflect the intention of the Court. In short, Legalese complained that the sum of $6,000 was in excess of the costs in fact thrown away by Mr Ambrose and so the orders did not reflect the Court’s intention to have Mr Ambrose indemnified only insofar as he incurred a liability to pay legal costs referable to the adjournment. The only variation sought to the orders was a reduction in the amount specified in the 10 May 2013 orders from $6,000 to $3,500, being an amount that had been paid by Legalese to Mr Ambrose’s solicitors on 23 August 2013.

14    Argument on the quantum application was heard on 8 October 2013. On 29 November 2013, Mansfield J made an order that the application be dismissed. His Honour further ordered Legalese to pay Mr Ambrose’s costs of that application. The costs were assessed at $5,302.03, and that sum has since been paid by Legalese to Mr Ambrose. Legalese paid the amount of $2,500 to Mr Ambrose’s solicitors in February 2014 and thereby discharged its obligation under the 10 May 2013 orders (which obligation is now disputed).

15    Following the dismissal of the quantum application, Mr Scragg obtained a creditor’s report prepared by Mr Ambrose in connection with the administration of Mr Poumako’s bankrupt estate. The report stated that Mr Ambrose had received $25,000 towards his legal costs in satisfaction of a costs order and that he expected to receive a further $6,000 pursuant to a separate costs order.

16    Mr Scragg subsequently obtained a copy of a settlement deed made on 18 June 2013 by Mr Ambrose on the one hand and the Poumako interests on the other. He asserts that he obtained the deed by making a request for it. The word “request” does not accurately describe the circumstances in which the deed was procured by Mr Scragg. More will be said about that later in these reasons.

17    The settlement deed provided for the payment by the Poumako interests to Mr Ambrose of a settlement sum in the amount of $25,000 in consideration for Mr Ambrose releasing the Poumako interests from certain liabilities. On the available evidence, I find that the settlement sum was paid on 2 July 2013 (that is, after the 10 May 2013 orders, but before Legalese brought its application to have those orders varied and before it paid the ordered sum in two instalments).

18    Mr Scragg submits that by virtue of the payment of the settlement sum “all costs claims between [Mr Ambrose and the respondents] were extinguished and resolved”. He submits the subsequent payment by Legalese to Mr Ambrose of $6,000 in two instalments resulted in Mr Ambrose receiving $31,000, being a sum greater than that to which he was entitled pursuant to the settlement deed. He further submits that the existence of the settlement deed and the circumstance that the settlement sum had been paid were material facts that should have been but were not disclosed to this Court at the hearing of the quantum application on 8 October 2013 and that, had those matters been disclosed, the orders of 29 November 2013 would not have been made.

the issues

19    The proposed orders on this application are expressed as follows:

1.    The orders made by this Court on 29 November 2013 be set aside on account of the applicant in the general proceedings (the respondent for interim orders), Mr Colin Louis Ambrose, failing to disclose:

1.1    the existence of the settlement deed made on 18 June 2013; and

1.2    the payment by the respondent in the general proceedings, Mr Robin Brian Poumako, in the amount of $25,000.00 to Mr Ambrose on 2 July 2013, to effect the settlement deed.

2.    That the respondent for interim orders to this application, Mr Ambrose, repay to Legalese Pty Ltd the following:

2.1    the sum of $6,000.00 paid by Legalese to Mr Ambrose in two parts, being 30 August 2013 and 18 February 2014; and

2.2    The sum of $5,302.03 paid by Legalese to Mr Ambrose on account of an order for costs made in his favour on 29 November 2013.

3.    Cost of and incidental to this application.

4.    Interest on the sums referred to in orders 1 and 2 above on a commercial rate.

5.    Such further and alternative orders as the Court thinks fit.

20    The interlocutory application does not specify the source of the Court’s jurisdiction to make the orders sought. That is significant because the proceedings in which this interlocutory application was filed were finalised some years ago. All orders made in the action have been entered, including the orders of 29 November 2013, being the particular orders (indeed the only orders) now sought to be set aside. Although not expressly stated, it appears to be Legalese’s position that the second order sought on the interlocutory application either would (as a matter of entitlement) or should (as a matter of discretion) follow as a consequence of the orders of 29 November 2013 being set aside.

21    An order of this Court may be set aside after it has been entered in any one of the circumstances described in r 39.05 of the Rules, including that the order is interlocutory (r 39.05(c)) or obtained by fraud (r 39.05(b)) or does not reflect the intention of the Court (r 39.05(e)). The reference to “fraud” is wide enough to encompass a case in which a material or decisive fact is not disclosed.

22    In addition, the Court has implied ancillary powers, equivalent to the inherent powers of a common law superior court of record, to set aside a judgment obtained by fraud. In Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (No 2) (1992) 37 FCR 234, the Full Court referred (at 241) to the “stringent principles” applicable on such an application as summarised by Mr DM Gordon QC in Fraud or New Evidence as Grounds for Actions to Set Aside Judgments (1961) 77 LQR 358. Where non-disclosure of evidence is alleged, it must be shown that evidence of the fact:

(1)    has been discovered since the trial;

(2)    could not have been found by the time of the trial by exercise of reasonable diligence; and

(3)    is so material that its production at the trial would probably have affected the outcome.

23    The non-disclosure by the successful party of a material fact must be such that it would be inequitable that such a party should take the benefit of the judgment: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 539 (Kirby P, with whom Hope and Samuels JJA agreed). See also Spalla v St George Motor Finance Ltd (ACN 007 656 555) (No 5) [2004] FCA 1262 at [60] – [61] and [66] (French J). These principles reflect the equitable origins of the power. In my view the same equitable origins underpin the express powers in r 39.05.

24    The issues to be determined are as follows:

(1)    whether the settlement deed should be admitted in evidence;

(2)    whether the effect of the 10 May 2013 orders was to create a direct liability upon Legalese to pay Mr Ambrose the sum of $6,000 which could not have been affected by the settlement deed;

(3)    if not, whether the effect of the settlement deed was to release Mr Poumako from his primary obligation under the 3 April 2012 orders to pay Mr Ambrose the sum of $6,000; and

(4)    if so, whether the fact and performance of the settlement deed were material facts, the withholding of which would warrant the grant of the particular relief sought on this interlocutory application.

admission into evidence of the settlement deed

25    Mr Ambrose objects to the admission into evidence of the settlement deed. It is argued that reliance upon the deed by Mr Scragg on this application constitutes a breach of an implied undertaking as to the use of the document. The implied undertaking is said to arise because of the circumstances in which it was obtained, which may be briefly summarised as follows:

(1)    Mr Ambrose’s solicitor, Mr Gretsas, made a misconduct complaint against Mr Scragg. In 2016, that complaint was the subject of proceedings before the Legal Practitioners Disciplinary Tribunal. Mr Scragg acknowledged that the Tribunal has powers under its rules to compel the production of documents between parties.

(2)    In the course of the disciplinary proceeding, Mr Scragg obtained, by way of discovery, a complete copy of a tax invoice that had been issued by Mr Gretsas to Mr Ambrose. The invoice contained entries that referred to a settlement deed. By letter dated 21 September 2016, Mr Scragg requested a copy of (among other things) the settlement deed. Mr Gretsas declined to produce it.

(3)    Mr Scragg again requested a copy of the settlement deed by letter dated 14 November 2016. He asserted the document was directly relevant to the matters then in issue in the disciplinary proceedings, an assertion he maintains on this application. He further stated that the letter should be treated as a “request for pre-action disclosure pursuant to Rule 32 of the District Court Rules”. That rule empowers the District Court of South Australia to exercise certain investigative powers before the commencement of an action, including the power to compel the production of a document.

(4)    In a further letter dated 21 November 2016, Mr Scragg made a demand for the production of the deed. That letter concludes:

… please provide us with a copy of the June Deed as soon as possible and in any event within the next 24 hours. If the document is not provided your client should expect us to immediately issue proceedings pursuant to Rule 32 of the Supreme Court (Civil) Rules 2006 (SA) for its production.

26    Rule 32 of the Supreme Court (Civil) Rules 2006 (SA) is equivalent to r 32 of the District Court (Civil) Rules 2006 (SA). In light of Mr Scragg’s express threat to invoke that rule, and in light of his assertion that Mr Ambrose had a legal obligation in any event to produce the deed in the context of the disciplinary proceedings, there is merit in Mr Ambrose’s argument that the use of the deed is subject to an implied undertaking, being an undertaking given to the Supreme Court of South Australia, the District Court of South Australia or the Legal Practitioners Disciplinary Tribunal. Breach of any undertaking owed to the District Court or Supreme Court may constitute a contempt of those courts.

27    Mr Scragg submits that if the settlement deed is subject to an implied undertaking, then this Court may release him from it. He relied on Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283.

28    I reject that submission. If there be an implied undertaking it is one that is owed to the courts of another jurisdiction. It does not lie within the powers of this Court to release any party from it so as to permit conduct that may otherwise amount to a contempt of those courts. Nothing said in Liberty Funding is to the contrary. In that case, the undertaking was one owed to this Court and it was this Court that heard argument as to whether or not the party in question should be released from it.

29    For Mr Ambrose, it is submitted that this Court can and should refuse to admit the settlement deed into evidence in this action. The discretionary power to exclude the document from evidence is said to have its source either in this Court’s implied powers to control its own processes, or in s 135 of the Evidence Act 1995 (Cth).

30    In my view, it is neither necessary nor appropriate to conceive of the dispute as one affecting the admission into evidence of the document. It has not been demonstrated that use of the document would be unfairly prejudicial to Mr Ambrose, whether in a procedural or forensic sense. Indeed, Counsel for Mr Ambrose acknowledged that should any application be made by Mr Scragg to be released from the undertaking, he would not necessarily oppose the release. He would, however, have opposed an application for an adjournment to enable the release to be obtained, having regard to case management principles discussed by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. No application for an adjournment was made by Legalese.

31    Mr Scragg’s primary submission appears to be that no implied undertaking arises because the document was not produced under compulsion of a rule or an order of a court. Even if that submission be correct, it does not answer another critical issue, namely whether the use of the document in all of the circumstances would warrant this Court refusing relief on the present application in the exercise of its discretion.

32    As already mentioned, the relief Legalese seeks in this Court is equivalent to that which may be sought in equity. Mr Scragg is a legal practitioner. He demanded the production of the document, asserting its direct relevance in disciplinary proceedings then on foot and otherwise threatening to invoke the compulsive powers of the District Court or the Supreme Court to obtain it. I infer from the circumstances that Mr Scragg sought a copy of the deed for the very purpose for which he now employs it: to support an application to have orders of this Court varied.

33    In my view, use of the settlement deed on this application, obtained under the threat of pre-action discovery proceedings in another jurisdiction, constitutes an abuse of the processes of those courts. I do not accept Mr Scragg’s submission that the point raised by Mr Ambrose is a mere technicality. I would decline relief on the interlocutory application on that basis alone.

34    If I am wrong in concluding that relief may and should be denied for the reasons I have stated, I would nonetheless dismiss the application as lacking in substantive merit. The present case is one in which it is appropriate to give detailed reasons as to why the application is unmeritorious so that a second and alternative basis for dismissing the application is explained. If that were not done, there is potential for the underlying dispute between the parties to become all the more protracted and costly.

35    To be clear, the question of whether or not Mr Scragg’s use of the settlement deed on this application amounts to a breach of an implied undertaking owing to any other court is left undecided. Whether the undertaking is owed, and whether it has been breached, is more appropriately left for another court or tribunal to determine. The following reasons are premised on the settlement deed and related documents being received into evidence.

RESPECTIVE RIGHTS AND OBLIGATIONS

36    Legalese and Mr Ambrose remain in dispute as to the respective rights and obligations created by the 3 April 2012 orders and the 10 May 2013 orders. At issue is whether the orders conferred any direct right upon Mr Ambrose to recover any sum from Legalese. It is common ground that if Legalese owed any obligation directly to Mr Ambrose, that obligation would not have been affected by the settlement deed.

37    Counsel for Mr Ambrose submitted that the effect of the 10 May 2013 orders was that if the Poumako interests should fail to provide Legalese with evidence that they had discharged their primary obligation under paragraphs 3 and 4 of the 3 April 2012 orders, then the primary obligation would be transferred to Legalese. In that event, Mr Ambrose would no longer have a right of recovery against the Poumako interests and instead would have a right of recovery against Legalese. In my view, that submission is inconsistent with the words of the orders themselves and the reasons given by Mansfield J in Poulmako (No 4).

38    The orders operate to:

(1)    impose an obligation upon the Poumako interests to pay to Mr Ambrose the sum of $6,000, being the costs thrown away occasioned by the adjournment;

(2)    impose an obligation upon Legalese to pay to Mr Poumako the sum of $6,000; and

(3)    enable Legalese to discharge its own obligation to Mr Poumako either by:

(a)    paying the sum to Mr Poumako, provided that Mr Poumako within 21 days provided evidence that he has discharged his own obligation under the 3  April 2012 order to pay the same sum to Mr Ambrose; or

(b)    if no such evidence is provided, paying the sum to Mr Ambrose’s solicitors on Mr Ambrose’s account (that is, for Mr Ambrose’s benefit).

39    It appears that the language of the parties in the course of argument upon the quantum application indicated that they each had wrongly assumed that the 10 May 2013 orders created a direct obligation owed by Legalese to Mr Ambrose. Whilst it was not necessary to do so in order to resolve the quantum application, Mansfield J incidentally explained the operation of the 3 April 2012 orders and the 10 May 2013 orders in a manner that reflected the plain words of the orders themselves, and that is in accordance with r 40.07(1)(c) of the Rules pursuant to which the latter orders were made: see Ambrose (Trustee) in the matter of Poumako (Bankrupt) v Poumako (No 5) [2013] FCA 1269 at [6] and [11]. His Honour confirmed that Mr Ambrose did not have a direct right to recover payment from Legalese. Whilst the legal effect of the orders must turn upon the words of the orders themselves, I respectfully adopt his Honour’s analysis as accurately restating their effect.

construction of the settlement deed

40    The subject matter of the settlement deed is to be ascertained from the document as a whole, read objectively and in accordance with well-settled construction principles: see generally Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337.

41    It is convenient to commence with operative cl 3. It relevantly states:

In consideration for the payment by the Respondents of the settlement sum to the Trustee, the Trustee AGREES AND UNDERTAKES not to pursue the Respondents for the Federal Court costs …

42    The phrase “Federal Court costs” is defined to mean “the costs the subject of the Federal Court Orders which the parties agree shall be fixed in the sum of $66,000 inclusive of GST”. Legalese submits that this includes the order for costs made on 3 April 2012. That submission ignores the phrase “Federal Court orders”, a phrase defined in Recital E (an operative clause) to mean those orders made on 29 January 2013 upon judgment being handed down on that day, together with a judgment delivered on 21 August 2012. Nothing in the orders made on 21 August 2012 and 29 January 2013 affected the subject matter of the 3 April 2012 orders or, for that matter, the 10 May 2013 orders.

43    The effect of these definitions is that Mr Ambrose’s undertaking in cl 3 of the deed not to pursue the Poumako interests for costs is expressly confined in its subject matter to those cost orders made upon the finalisation of the underlying action. Clause 3 of the settlement deed creates no obligation on Mr Ambrose to forebear enforcement of the costs order of 3 April 2012.

44    Legalese also relied upon cl 5. It states:

Upon receipt of the settlement sum in clear funds, the Trustee AGREES AND UNDERTAKES to fully and finally withdraw and fully release the Respondents from the Trustee’s claims.

45    The phrase “Trustee’s claims” is defined in cl 1(g) as follows:

‘the Trustee’s claims’ shall mean any and all claims against the Respondents arising from the Federal Court proceedings and the Federal Court orders and all claims arising from the bankrupt estate of Mr Poumako but does not include the statutory obligations of the Trustee to comply with the provisions of the [Bankruptcy Act 1966 (Cth)].

46    As I have already observed, the phrase “Federal Court orders” does not include the costs order of 3 April 2012. The remaining issue is whether the phrase “all claims against the Respondents arising from the Federal Court proceedings” encompasses that order. In my view, the intention that may be discerned objectively from the whole of the text is that the costs orders that are to form the subject matter of the deed are those expressly provided for in cl 3 of the deed. Clause 3 would appear to have very little work to do if the 3 April 2012 costs order were to be included in the more general language of cl 5 and cl 1(g). The preferred construction is that the reference to claims against the respondents “arising from the Federal Court proceedings” is a reference to the trustee’s substantive claims against the respondents, being the substantive controversy concerning voidable transactions.

47    Counsel for Mr Ambrose relied upon email communications passing between his solicitor and Mr Poumako evidencing negotiations that culminated in the deed. He submitted that the emails were admissible in order to determine the common intention of the parties to the deed as to the subject matter covered by it.

48    I accept that the email communications are admissible in evidence for that limited purpose: Codelfa at 351 – 354 (Mason J). Furthermore, I reject Mr Scragg’s submission that the admission of the emails into evidence would be contrary to cl 22 of the deed, which is to the effect that the deed is the entire agreement of the parties “on the subject matter”. Clause 22 invites the very question to which the email communications may be employed: what is the subject matter of the deed?

49    Although admissible in evidence, I do not consider it necessary to refer to or rely upon the emails in order to determine whether the deed was intended to extinguish any liability Mr Poumako might have owed to Mr Ambrose pursuant to the 3 April 2012 orders. The common intention of the parties on that subject may be objectively discerned from the words used in the instrument itself. As I have said, the text of the deed confirms that the parties turned their minds to the particular cost liabilities intended to be affected by their agreement and made express provision in relation to them. In consideration for the settlement sum, Mr Ambrose undertook not to pursue his rights to enforce those cost orders defined in the instrument. There was no such undertaking in relation to the 3 April 2012 orders.

50    It follows that nothing in the settlement deed altered the Poumako interests’ primary obligation to pay Mr Ambrose $6,000. Accordingly, Legalese’s argument that it was not obliged to indemnify Mr Poumako in respect of that obligation should fail. Whilst the settlement deed was not disclosed to Mansfield J at the time that he made orders on 29 November 2013, that fact was immaterial because it could not have altered the outcome of the quantum application. This is a second and independent basis for dismissing the application.

ALTERNATE BASIS FOR DISMISSAL

51    There is a further reason for dismissing the interlocutory application. As mentioned earlier, the application determined by Mansfield  J on 29 November 2013 was limited in its scope. The relief sought on the application then before the Court was an order varying the amount specified in the 10 May 2013 order. The application was dismissed on the ground that the challenge to the quantum of costs charged by Mr Ambrose’s solicitor was unmeritorious. To the extent that Legalese was ordered to pay Mr Ambrose’s costs of the application, the costs were to compensate Mr Ambrose’s expense in answering an unmeritorious argument concerning the assessment of his costs, being a confined dispute over an amount of $2,500.

52    Assuming Legalese was correct in its construction of the deed and the obligation of Mr Ambrose to disclose it at the hearing of the quantum application, the most that could be said is that Legalese may have withdrawn the quantum application and may perhaps have made some alternative claim for relief, perhaps for recovery of the $3,500 that had been paid at that time. An alternate course is not given clear expression in Mr Scragg’s affidavit. Although Mr Scragg alluded to having made a payment labouring under a mistake, the doctrines of mistake and restitution were not the subject of any submissions. Instead, Legalese proceeded on the assumption that non-disclosure of the deed at the time of the quantum application would, without more, be sufficient to justify the relief it now seeks. Whatever alternate relief might have been available to Legalese, it has not been shown that any variation of the 29 November 2013 orders would be necessary or appropriate in all of the circumstances.

53    This is a third and independent basis for dismissing the interlocutory application.

54    The application should be dismissed with costs.

Associate:

Dated:    30 April 2018

SCHEDULE OF PARTIES