Marshall v Fleming (No 3)

1. [1]

   PAYNE J: On 24 August 2017, I made the following orders in the principal proceedings:

   1. (1)

      Amended statement of claim dated 22 November 2016 is dismissed.

   2. (2)

      The plaintiffs to pay the defendants’ costs as agreed or assessed.

2. [2]

   Both parties sought an amendment of those orders. On 5 December 2017, I made the following further orders:

   1. (1)

      Pursuant to UCPR r 36.16 to amend order 2 made on 24 August 2017 and order that:

   2. (2)

      otherwise dismiss the motion filed by Kreindlers dated 7 September 2017;

   3. (3)

      the Marshalls should pay 50 per cent of Kreindlers’ costs of the motion dated 7 September 2017;

   4. (4)

      the Marshalls motion dated 23 October 2017 is dismissed;

   5. (5)

      the Marshalls must pay Kreindlers costs of the motion dated 23 October 2017.

3. [3]

   On 15 December 2017 at 11:02am, the solicitor for the defendants sent the following email to my chambers:

4. [4]

   The proposed consent orders provided as follows:

   1. (1)

      Subject to the making of order 3, set aside order 1 made 5 December 2017.

   2. (2)

      Subject to the making of order 3, set aside order 2 made 24 August 2017 and in lieu thereof order:

   3. (3)

      All other costs orders made in the proceedings are preserved and remain undisturbed.

5. [5]

   On 15 December 2017, the following email was sent to the parties by my chambers:

6. [6]

   The defendants filed a submission entitled ‘Joint Submission re Form of Costs Orders’. It was there explained that the parties seek to ensure that any costs assessor considering a costs application is under no misapprehension as to the scope of the costs covered by the orders. No submission was filed by the plaintiffs in accordance with my direction and I will proceed on the basis that they do not dissent from the submissions made by the defendants about the proposed consent orders. The essence of the submission is:

Consideration and orders

1. [7]

   Whilst I do not think there can be any real doubt about what I intended by my 5 December 2017 orders, it is obviously undesirable that there be any room for further disagreement between these parties. I do not propose to make orders, however, in the conditional form proposed by the parties as “subject to the making of order 3”. I also harbour doubts about the utility of proposed order 3, which on one view is in the nature of a direction to a costs assessor rather than an order of the Court. Given the history of internecine disputes between these parties, however, I am persuaded that it is in the interests of justice to make proposed order 3. Accordingly, to remove any doubt about the interpretation of my orders of 5 December 2017, pursuant to UCPR 36.15 I make the following orders:

   1. (1)

      Set aside order 1 made on 5 December 2017.

   2. (2)

      Set aside order 2 made 24 August 2017 and in lieu thereof order:

   3. (3)

      All other costs orders made in the proceedings remain undisturbed.