Haxglow Pty Ltd v Mirvac Retail Sub SPV Pty Ltd

These proceedings concern a lease of certain premises on the Lower Ground Floor of the Broadway Shopping Centre building in Ultimo. The plaintiff, Haxglow Pty Ltd, is the Lessee. It operates a hotel from the premises. The defendants, Mirvac Retail Sub SPV Pty Ltd and Perron Investments Pty Ltd are the successors in title to the Lessor. The lease is for a 25 year term commencing on 1 December 2006 and terminating on 30 November 2031. The lease contains three options to renew for further terms of 10 years each.

The plaintiff commenced these proceedings by filing a Statement of Claim on 26 October 2018. The plaintiff claims that it overpaid rent in the amount of $1,004,318.04, and seeks recovery of that sum, together with interest, as money had and received by the defendants for the plaintiff’s use. The alleged overpayment is based on the assumption that the rent under the lease was determined by a binding Rental Determination dated 27 July 2017 that was carried out by Mr Paul Hall of Ray White Advisory (“RWA”).

The parties agree that if the Rental Determination is final and binding, the plaintiff is entitled to succeed. The defendants contend, however, that by reason of the matters raised by them in their Cross-Claim, the Rental Determination is not final and binding.

By their Further Amended Statement of Cross-Claim, filed in Court on 4 March 2020, the defendants allege that:

The plaintiff denies these allegations and maintains that the parties to the lease are bound by Mr Hall’s determination of Current Market Rent at $480,000 p.a. plus GST. Accordingly, the plaintiff says that as and from the review date of 1 December 2016 the Minimum Rent is $480,000 p.a. plus GST.

Clause 7.1 provides that, subject to cll 7.2, 7.3 and 7.4, the Lessee must pay the Minimum Rent to the Lessor. Minimum Rent is defined to be $1,083,000 p.a. Clause 7.2 provides for the Minimum Rent to be multiplied by 103.5% on each Fixed Percentage Review Date, which dates are each anniversary of the Commencement Date [1 December 2006] which is not a Market Review Date.

Market Review Date is defined to be the tenth and twentieth anniversaries of the Commencement Date, and the commencement of the first year of any option term granted pursuant to cl 25 of the lease. 1 December 2016 was thus the first Market Review Date.

Clause 7.3 provides a mechanism for the parties to agree upon the Current Market Rent in relation to a Market Review Date, failing which a valuer nominated by the Australian Property Institute (“API”) is to be appointed by the parties jointly pursuant to cl 7.3.3.

Clause 7.3.4 provides:

Clause 7.3.5 provides:

Current Market Rent is defined to mean:

Clause 7.3.7 provides:

The defendants submitted that the Code falls within the ambit of “the professional practice standards and guidance notes of the Australian Property Institute” for the purposes of cl 7.3.4(f)(ii) of the lease. The plaintiff does not accept that is the case. In any event, the plaintiff denies that, upon the true construction of the lease, the valuer’s determination of the Current Market Rent must be made in accordance with the Code in order for the determination to satisfy the requirements of the lease and become final and binding on the parties. That question of construction is dealt with later in these reasons.

The Preamble to the Code is in the following terms:

The Code further provides, relevantly for present circumstances:

The parties failed to agree upon the Current Market Rent in relation to the 1 December 2016 Market Review Date. Mr Hall of RWA was nominated by the API to be the valuer to determine the matter. Mr Hall appears to have been appointed by the parties on or about 30 June 2017.

Mr Hall received detailed submissions from valuers retained by the respective parties, namely, from Mr Scott Robertson on behalf of the defendants and from Mr Phil Rennie on behalf of the plaintiff. Mr Hall provided his Rental Determination to the parties on about 27 July 2017.

The Rental Determination is divided into eight numbered sections. Section 1, headed “Location” contains the following:

Section 2, headed “Subject Premises”, contains a description of the premises the subject of the lease, including the following:

Section 3, headed “Synopsis of the Lease” set out in tabular form a number of the provisions of the lease, including clause 9.1 which requires the Lessee to use the Premises only for the Permitted Use of:

The terms of clause 7.3.4 which are said to outline the valuer’s “qualifications and instructions on conduct” are set out, as are the terms of clause 7.3.5. Reference is also made to various other provisions of the lease, including those concerned with outgoings (clause 8), and the Lessee’s ownership of the liquor licence and poker machine entitlements and permits (clause 26).

In Section 4, headed “Submissions”, reference is made to the submissions and respective market assessments received from the parties. There follows (in Sections 4.2 and 4.3) a collation of the main points of the submissions, and then (in Section 4.4) Mr Hall makes various comments about the submissions in the following terms:

Section 5, headed “Licenced Hotel Rental Market”, contains the following:

Section 6 is headed “Determination Rational [sic]”. The introductory Section 6.1 contains the following:

In Section 6.2, Mr Hall states:

Mr Hall then goes on to identify various matters he took into consideration, under sub-headings “Location”, “Property”, “Market”, “Trading Attributes” and “Lease Terms”.

Under the sub-heading “Market” it is stated:

Under the sub-heading “Lease Terms” it is stated:

In Section 6.3, Mr Hall describes his assessment of market rent in the following terms:

Finally, in Section 7, headed “Determination”, Mr Hall states:

The parties were in agreement that the question whether the Rental Determination was final and binding upon them depended upon whether the expert determination was carried out in accordance with the terms of the contract, in this case the lease. There was no substantial disagreement as to the principles that are to be applied in answering that question. The Court was referred to the well-known authorities in this area, including Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 at 335-6, Holt v Cox (1997) 23 ACSR 590 at 597, AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd [2006] VSCA 173 at [51] and Australian Vintage Ltd v Belvino Investments No 2 Pty Ltd (2015) 90 NSWLR 367; [2015] NSWCA 275 at [74]-[75], as well as to some recent cases where the principles were applied, including Data Base Corporate Pty Ltd v Strike Australia Pty Ltd [2019] NSWSC 271 (affirmed, by majority, in Strike Australia Pty Ltd v Data Base Corporate Pty Ltd [2019] NSWCA 205) and Lainson Holdings Pty Ltd v Duffy Kennedy Pty Ltd [2019] NSWSC 576.

The Court was also referred to authorities concerned with the giving of reasons by an expert, including the decision of Palmer J in Kanivah Holdings Pty Ltd v Holdsworth Properties Pty Ltd (2001) 10 BPR 18,825; [2001] NSWSC 405 at [110]-[119]. That decision was affirmed on appeal in Kanivah Holdings Pty Ltd v Holdsworth Properties Pty Ltd (2002) 11 BPR 20,201; [2002] NSWCA 180 at [60]-[63], which decision was itself cited with apparent approval in Shoalhaven City Council v Firedam Civil Engineering Pty Ltd (2011) 244 CLR 305; [2011] HCA 38 at [26]. Whilst the defendants did not plead that the Rental Determination failed to comply with cl 7.3.4(f)(iii), which refers to the instruction to the valuer to give a determination with reasons, there was some criticism of the adequacy of the reasons given, and the suggested inadequacies were called in aid of showing that there had been failures to comply with the requirements of the lease.

Insofar as questions of construction of the lease were raised, the Court will apply the principles applicable to the construction of written commercial agreements. Those principles have been stated in recent times by the High Court in cases such as Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35], Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [46]-[52], and Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 at [16]. Accordingly, the meaning of the terms of the lease is to be determined objectively, by what a reasonable business person, placed in the position of the parties, would have understood the terms to mean.

The defendants submitted that upon the true construction of the lease, the Rental Determination was required to be made in accordance with the provisions of the Code, at least insofar as the Code was not inconsistent with the criteria set out in cl 7.3.5 of the lease. It was put that this was made clear by the language of cl 7.3.4(f)(ii). It was submitted that just as cl 7.3.5 required the valuer to be instructed to do or not to do certain things in determining the Current Market Rent, cl 7.3.4(f)(ii) required the valuer to be instructed to make the determination in accordance with certain practice standards and guidance notes, including the Code. The defendants submitted that, properly construed, the lease required the valuer to comply with the instructions to be given, and a failure to comply would have the consequence that the Rental Determination was not carried out in accordance with the lease.

The defendants submitted that the Rental Determination failed to disclose sufficient detail of the data, facts or information relied upon as the basis of the opinion as to Current Market Rent, such that it could not be concluded that the valuer had complied with rule 6.3 of the Code. It was put that it could not be seen whether Mr Hall obtained and verified relevant information, such as a prudent valuer would have, in order to give his opinion.

In relation to rule 3.1(f) of the Code, the defendants submitted that Mr Hall evidently relied upon the information supplied to him by the respective parties (a matter acknowledged by Mr Hall in the covering letter of the Rental Determination) but there was again a failure to disclose sufficient detail to show that he had not relied upon critical information supplied by a client “without appropriate qualification or confirmation from other sources”.

The defendants submitted that the Rental Determination contravened cl 7.3.5(d) of the lease because Mr Hall failed to disregard the goodwill of the Lessee’s business. This failure was said to be shown by Mr Hall’s estimation of gaming revenue and food and beverage revenue of the hotel operated at the premises, and the use of the estimated revenue in his consideration of the earning potential of a hotel business at the premises, and what rental a hypothetical potential Lessee may be prepared to pay. It was further submitted, based on evidence given by a valuer called by the defendants, Mr James Whealing, that the requirement to disregard goodwill meant that the premises had to be valued as a shell, suitable for a wide range of retail or commercial uses, but taking into account the Permitted Use under the lease.

In relation to cl 7.3.5(g), the defendants submitted that the matter of incentives given to lessees of comparable premises was inadequately dealt with in the Rental Determination. It was submitted that the information which underpinned Mr Hall’s deduction of an incentive of 2.5% was not disclosed and it was not known, for example, “how comparable” the information was.

The plaintiff submitted that whilst cl 7.3.4(f) requires the valuer to be instructed in a certain fashion, including that the determination be made in accordance with relevant practice standards and guidance notes, it did not follow that a determination would fail to comply with the lease if there was any breach of those standards or notes. It was put that the definition of Current Market Rent did not incorporate such matters, only the criteria set out in cl 7.3.5. The plaintiff submitted that the structure of the lease differentiated between matters which were merely to be the subject of instructions to the valuer, and the mandatory criteria set out in cl 7.3.5. It was submitted that only breaches of the latter would vitiate a determination of the Current Market Rent. The plaintiff further submitted that even if the Code was a relevant practice standard or guidance note within cl 7.3.4(f)(ii), it cannot have been the intention of the parties to the lease that a breach of any of its provisions would have the result that the determination of Current Market Rent would not be final and binding.

The plaintiff submitted that in any event no breaches of the Code had been established. In relation to rule 3.1(f), it was put that even if the parties were “clients” within the rule, it is clear that Mr Hall considered the submissions they made to him, and assessed them appropriately in the light of additional information gathered by Mr Hall himself. It was submitted that it was not a case where the valuer simply relied upon information supplied without either appropriate qualification or confirmation from other sources. It was put that there was no rational basis to conclude that Mr Hall approached his task in a manner lacking in impartiality and independence.

In relation to rule 6.3, it was submitted by the plaintiff that even if the Rental Determination was a “valuation” within the rule, the suggestion that Mr Hall had failed to take reasonable steps to gather sufficient relevant data or ascertain and verify information was no more than mere speculation. It was submitted that the Rental Determination reveals that Mr Hall had sufficient relevant data to form his opinion, and there was no evidence that other facts or information was required for that purpose.

In relation to cl 7.3.5(d), the plaintiff submitted that it was clear that Mr Hall appreciated that the goodwill of the Lessee’s business was to be disregarded, and his reasons, properly read, show that he did not have regard to any goodwill of the business. It was submitted that the assessment of what a prospective Lessee might consider the earning potential of a hotel business at the premises to be does not involve goodwill, and is a completely different exercise.

In relation to cl 7.3.5(g), the plaintiff submitted that it was clear that Mr Hall took into account the respective submissions of the parties in relation to incentives offered in the market, and expressly stated that he had “taken into account any rental incentives offered for the letting of new premises for the permitted use”.

Before dealing with the specific complaints made by the defendants about the Rental Determination, it is necessary to say something about the reasons given by Mr Hall for his determination of Current Market Rent. As already noted, the defendants do not allege that there was a failure to comply with the requirement in cl 7.3.4(f)(iii) to give a determination “with reasons”, but they nonetheless criticise the adequacy of the reasons given.

Had it been necessary to determine whether Mr Hall’s Rental Determination was given “with reasons” within the meaning of cl 7.3.4(f)(iii), I would have held that it was. That is to say, I would have concluded that the reasons satisfied the contractual requirement to give reasons. The content of that requirement reflects the nature of the expert determination process, which is neither arbitral nor judicial, and the nature of the issues to be determined (see Shoalhaven City Council v Firedam Civil Engineering Pty Ltd (supra) at [26]).

The reasons given by Mr Hall for his determination of the Current Market Rent are to my mind more than adequate to disclose the essence of his method and his reasoning towards his conclusion. The reasons identify the nature of the information considered by Mr Hall (much of which was supplied by the parties to the lease in the form of submissions), and generally how the information was used in the formation of his opinion. The reasons, read as a whole, were adequate in my opinion to allow the parties to reasonably assess whether the determination of Current Market Rent was carried out in accordance with the instructions to the valuer and in accordance with the relevant provisions of the lease. Reasonable persons in the position of those parties would not have understood that a valuer appointed under cl 7.3.3 of the lease would be required to give reasons more extensive than reasons which would enable such an assessment. Of course, it would have been open to Mr Hall to include a host of additional detail in relation to the matters he considered and the way he proceeded towards his conclusion, but this is not ordinarily required in an expert determination such as this (see the decision of Palmer J in Kanivah Holdings Pty Ltd v Holdsworth Properties Pty Ltd (supra) at [115]-[119]). The parties have chosen to be bound by the opinion of an independent expert on a question of valuation. Such questions inherently involve matters of judgment and opinion where exact reasoning may be difficult to expose (see Strike Australia Pty Ltd v Data Base Corporate Pty Ltd (supra) at [9]-[13] per Bell P).

In reaching this conclusion I have not overlooked that a valuer appointed under cl 7.3.3 of the lease is to be instructed to make the determination in accordance with the professional practice standards and guidance notes of the API. By their nature, such standards and notes are of wide, general application to the professional activities of valuers who are members of the API. The Code itself is described as representing “a framework for professional conduct and aims to provide assistance and clarification”. I do not think that reasonable persons in the position of the parties to the lease would expect that the reasons for the determination would have to include details sufficient to show whether every specific standard or guideline has been complied with. The reasons given by Mr Hall were adequate in the circumstances (see Halifax Life Ltd v Equitable Life Assurance Society [2007] 1 Lloyd’s Rep 528 at [85]).

I turn now to consider whether Mr Hall, in preparing the Rental Determination, was required by cl 7.3.4 of the lease to comply with the Code. The first question to consider here is whether the Code falls within “the professional practice standards and guidance notes” of the API. In my opinion it does. It is a code of professional conduct, one of the purposes of which is to maintain public confidence in the professional standards of members of the API. It constitutes, or is at least part of, the professional practice standards laid down by the API.

The next question to consider is whether, upon the true construction of the lease, a determination of Current Market Rent by a valuer appointed under cl 7.3.3 is required to be made in accordance with the Code (except to the extent that the Code is inconsistent with the criteria in cl 7.3.5), such that a failure to comply with the Code would mean that the determination was not carried out in accordance with the lease.

It is true, as pointed out by the plaintiff, that the definition of Current Market Rent refers only to the criteria set out in cl 7.3.5. The central task of the appointed valuer, namely the determination of the Current Market Rent, is thus focused upon those matters. Nevertheless, cl 7.3.4(f), which is directed to the content of the instructions to be given to the valuer, refers not only to the definition of Current Market Rent but also to making the determination in accordance with relevant professional practice standards (which in my view includes the Code). The differentiation between those matters and the cl 7.3.5 criteria, highlighted by the plaintiff in submissions, is thus somewhat blurred within the scope of the instructions to be given to the appointed valuer. It seems to me that cl 7.3.4 of the lease provides that the valuer is required to be instructed (and to accept instructions) not only to determine Current Market Rent, but also to make the determination in accordance with relevant professional practice standards. It seems to me that a demonstrated breach of those standards could lead to the conclusion that the determination of Current Market Rent was not made in accordance with the lease (see Halifax Life Ltd v Equitable Life Assurance Society (supra) at [80]).

The defendants contend that Mr Hall breached rules 3.1(f) and 6.3 of the Code. Rule 3.1(f) provides:

The rule applies where the exercise of objective judgment is required. I consider that it would therefore apply to the carrying out by Mr Hall of the Rental Determination. I further consider that information supplied to Mr Hall by either the plaintiff or the defendants for the purpose of the Rental Determination would be information “supplied by a client” within the meaning of the rule. In my opinion, as both parties jointly instructed the valuer, they should each be regarded as a client of the valuer for the purposes of the rule.

The defendants were unable to point to any critical information supplied by either party that was relied upon by Mr Hall without appropriate qualification or confirmation from other sources. The defendants thus resorted to a complaint about Mr Hall’s reasons, stating that they were deficient because they did not positively show that Mr Hall had complied with the rule. As I have already said, I do not think that the reasons given for the determination were deficient. The reasons identified the nature of the information considered by Mr Hall and generally how that information was used in the formation of his opinion. The content of the information supplied by the parties to Mr Hall is clear from the submissions of Mr Robertson (for the defendants) and Mr Rennie (for the plaintiff). The reasons enabled the parties to assess whether any of that information was “critical”. The parties were also in a position to assess whether any information supplied was such that, absent confirmation from other sources, some appropriate qualification was required. The parties were also in a position to establish whether any information supplied was inaccurate, and thus unable to be confirmed from other sources. The defendants did not seek to demonstrate a breach of rule 3.1(f) in this fashion. In my view, the defendants have failed to establish any breach of the rule.

I should add that the manner in which Mr Hall apparently considered and assessed the respective submissions of the parties strongly suggests that he dealt with them diligently and on their merits, accepting some of the arguments but not all, and placing qualifications upon others. He evidently had regard to information in addition to that supplied to him by the parties. There is no good reason to think that Mr Hall simply adopted and relied upon any of the information supplied to him, without appropriate qualification. There is certainly no reason to think that Mr Hall was not acting with independence and impartiality when he carried out the Rental Determination.

Rule 6.3 provides:

I am prepared to assume that in undertaking the Rental Determination, Mr Hall was undertaking a valuation within the meaning of the rule.

The defendants did not submit that Mr Hall had insufficient data to form his opinion as to Current Market Rent. Neither did the defendants identify any relevant facts or information that ought to have been ascertained and verified in order that a professional valuation could be provided. This is unsurprising in circumstances where Mr Hall evidently considered information over and above that supplied by the valuers retained by the respective parties, each of whom expressed an opinion as to the market rent of the premises. Further, the defendants did not identify any reasonable steps which Mr Hall should have taken, but failed to take, to gather relevant data or ascertain and verify relevant facts or information. Again, the defendants complained that Mr Hall’s reasons were deficient, but I do not accept that to the case. In my view, the defendants have failed to establish any breach of rule 6.3.

The next issue to consider is whether the Rental Determination contravened cl 7.3.5(d) of the lease because Mr Hall failed to disregard the goodwill of the Lessee’s business.

Mr Whealing stated in paragraphs 6.3 to 6.7 of his report:

The quoted statement must, of course, be read in the context in which it appears. Earlier in Section 4.4, Mr Hall stated that he did not agree with the view, advanced by Mr Rennie, that the market review “must disregard the trading position of the hotel”. Mr Hall explained that this was because “publicans (potential Lessees) assess the rental value of a licensed hotel on the turnover and profit they consider the venue can generate and not on a rate per square basis.” In the sentence immediately preceding the quoted statement, Mr Hall noted that in the absence of the Lessee’s financial statements it was not possible “to assess the affordability of the rent from hotels’ [sic] current operation”. Later, in Section 6.2, under the sub-heading “Lease Terms” (see [28] above), Mr Hall stated:

In cross-examination, Mr Whealing agreed that goodwill is defined as the benefit or advantage of the good name and reputation of a business. He further agreed that to estimate goodwill it would be necessary to analyse the trading figures of a business over a period of time. Mr Whealing accepted that to assess the amount that a premises could earn, based upon a permitted use at that location, would not be an assessment of goodwill.

Later in his cross-examination, when taken to that part of Section 6.2 under the sub-heading “Lease Terms” which concerns the hypothetical potential Lessee, Mr Whealing seemed to agree that likely potential business to be generated from the premises was at least part of what a prudent potential Lessee would consider. Mr Whealing also said, based on the assumption that the permitted use was restricted to hotel and gaming rights, that a prudent potential Lessee would make an assumption about what he could afford based on that use. Mr Whealing accepted that it would thus be important to obtain information from the Liquor and Gaming Authority “about what a hotel premises in that location had made from that permitted use”. Finally, Mr Whealing agreed that that would not be an assessment of the goodwill of the Lessee.

The concessions made by Mr Whealing in cross-examination, particularly the last, seem to me to undermine the opinions he expressed in his report to the effect that to estimate revenue that might be earned from the Premises by taking into account trading based on the Lessee’s trading is to have regard to the goodwill of the Lessee’s business. Viewing his evidence overall, there appears to be an acceptance that there is a distinction between an assessment of the goodwill of the Lessee’s business on the one hand, and an assessment by a potential Lessee of revenue likely to be earned from the Premises on the other, even if the latter assessment is to some extent at least based on an assessment (or estimate) of the trading of the Lessee’s business.

The defendants submitted that it was a distinction without a difference. However, for myself, I consider that there is such a distinction, and it is real. An assessment by a potential Lessee of what revenue it may be able to earn in the future from a business at the premises is not an assessment of any goodwill that is attached to the business of the existing Lessee. In my opinion, the mere fact that the assessment is partly based on estimates of the revenue earned by that business does not mean that it involves any consideration of goodwill of the Lessee’s business.

Accordingly, to take into account what a potential Lessee would pay in rental “given their assumption of likely potential business to be generated from the premises” is not to have regard to (or fail to disregard) the goodwill of the Lessee’s business. That is so even if the assumption is informed to an extent by estimates of revenue earned by the Lessee’s business.

I therefore do not accept the defendants’ contention that in determining Current Market Rent Mr Hall failed to disregard the goodwill of the Lessee’s business and hence failed to comply with cl 7.3.5(d) of the lease. Mr Hall was plainly aware of the need to disregard the goodwill of the Lessee’s business, and by proceeding in the way he did, he did not erroneously fail to do so.

I am also unable to accept the defendants’ contention that in determining Current Market Rent Mr Hall failed to have regard to incentives given to a lessee of comparable premises and hence failed to comply with cl 7.3.5(g) of the lease. Mr Hall referred to incentives in Sections 4.2 to 4.4 when summarising and commenting upon the submissions he received. He noted that 20% “appears above the level of incentives currently being achieved for licensed premises in the market as at the date of the review date”. In Section 6.2, under the sub-heading “Market”, Mr Hall expressly stated that he had taken into account any rental incentives offered for the letting of new premises for the permitted use. Those statements, read in the context of the Rental Determination as a whole (which refers to numerous leases of licensed premises, including some not the subject of either submission made to Mr Hall) should be read as referring to comparable licensed premises, even if Mr Hall was of the view that there were no “directly comparable leasing transactions”. It is clear that he considered that many premises were comparable to a degree (see, for example, his statement in Section 6.2, under the sub-heading “Market”, that he had regard to the rental paid for “the most comparable premises”).

The defendants have not established that in making the Rental Determination, Mr Hall failed to comply with the Code as alleged. The defendants have also not established that in determining Current Market Rent, Mr Hall failed to comply with either of cll 7.3.5(d) or 7.3.5(g) as alleged. It has not been shown that the Rental Determination was not carried out in accordance with the provisions of the lease. It follows that, pursuant to cl 7.3.7 of the lease, Mr Hall’s determination of Current Market Rent at $480,000 p.a. gross (exclusive of GST) became the Minimum Rent on and from 1 December 2016, and the determination is final and binding on the parties.

The defendants’ Further Amended Statement of Cross-Claim must be dismissed. It is agreed that in these circumstances the plaintiff is entitled to recover an overpayment of rent in the amount of $1,004,318.04. Interest should run on that amount at the rates prescribed by General Practice Note 16 for the purposes of s 100 of the Civil Procedure Act 2005 (NSW). Costs should follow the event so that the defendants/cross-claimants pay the plaintiff/cross-defendant’s costs of the proceedings.

I direct that the parties confer on the appropriate amount for pre-judgment interest and, if agreement is reached, bring in a form of Consent Orders to give effect to these reasons. If agreement is not reached and a form of Consent Orders is not brought in within 14 days, the matter will be re-listed for further directions.