Cases and authorities

TORTS – negligence – duty of care – whether the police owe a duty of care to attendees of a rally – where several police officers charged into a crowd to extinguish a suspected fire – whether duties imposed on the alleged tortfeasor would be irreconcilable with existing statutory obligations under the Police Act 1990 (NSW) and Law Enforcement (Powers and Responsibilities) Act (2002) (NSW) – whether there was a breach of duty – whether injury of the plaintiff was reasonably foreseeable in the circumstances – whether breach of duty caused injury to the plaintiff TORTS – negligence – lawful arrest – liability stemming from the forceful and reckless exercise of the power of arrest TORTS – negligence – assault – battery

COSTS — application by successful plaintiffs for indemnity costs order to compensate them for costs incurred as a result of one defendant’s unreasonable conduct in the proceedings — no question of principle.

CIVIL PROCEDURE – application for separate question – application to amend summons and list statement

SUCCESSION – Family provision – Application by disabled adult son – Order for provision made.

CORPORATIONS — Winding up — Statutory demand — Genuine dispute about existence or amount of debt — Parties in agreement as to variation of demand pursuant to s 459H(4) to reduce debt to undisputed amount CORPORATIONS — Winding up — Statutory demand — whether genuine offsetting claim — where evidence relating to key elements of offsetting claim did not rise above the level of assertion and where those assertions were inconsistent with contemporaneous documents

COSTS — Party/Party — Court’s discretion — Proper characterisation of the “event” — Where insured proceeded against two insurance towers of different policy years — Where insured sought indemnities from some insurers and declarations from other insurers — Where insured successful on some indemnity claims against some insurers in one tower and declarations against other insurance tower — Where insured unsuccessful in relation to most valuable indemnity claims COSTS — Party/Party — Bases of quantification — Indemnity basis — Calderbank offers — Where timing and terms of Calderbank offers differed between insurers — Whether insured’s rejection of Calderbank offers was reasonable — Where insured’s claims not interdependent — No question of principle COSTS — Party/Party — Orders when proceedings involve multiple parties — Bullock and Sanderson orders — Where insured sued two towers of insurance — Where relief against one tower was pleaded in the alternative — Where insured characterised proceedings as a “tower fight” — No Bullock or Sanderson orders made COSTS — Party/Party — Interest on costs — Whether court should order otherwise than interest payable on costs — Whether interest to be calculated on the basis of statutory court rates or cost of funds — s 101 Civil Procedure Act 2005 (NSW)

LAND LAW — Easements — Creation of easements — Creation by order of court — Where plaintiffs seeking stormwater drainage easement to facilitate residential development — Whether easement reasonably necessary for development — Whether there is sufficient evidence to determine question of reasonable necessity — Where easement not identified with precision — Where no easement imposed — Where question of compensation does not arise LAND LAW — Easements — Whether reasonable attempts made to obtain the easement or an easement having the same effect — Where alternative easement traversed other properties — Where limited evidence of correspondence with other owners — Where uncertainties associated with proposed easement ignored — Where uncertainties related to impact on retaining wall — Where reasonable attempts not made to obtain the easement

CONTRACTS — Formation — Contracts requiring written evidence — Contracts for sale of land or interest in land — Contract for the sale of rural land in Queensland — Where evidence of contract included receipt indicating deposit and signature — Whether deposit actually paid — Whether contract actually signed by purchaser — Where evidence does not demonstrate contract in existence CONTRACTS — Formation — Intention to create legal relations — Requirement that parties have the requisite intention to be bound — Whether parties intended to be bound at the time of signing the contract — Whether subsequent conduct of parties is admissible of such intention — Where vendor in any event had no intention to enter legal relations CONTRACTS — Discharge by abandonment — Where date of settlement in dispute — Where passage of time provided evidence of abandonment — Where contract therefore abandoned before purchaser’s demand for settlement CONTRACTS — Remedies — Specific performance — Whether the purchaser is ready, willing and able to perform — Where there was some evidence of third party financiers — Where evidence of financing did not demonstrate purchaser ready, willing and able EQUITY — Defences — Unclean hands and laches — Whether specific performance should be refused — Where no evidence of prejudice to vendor or third parties — Where the relevant impropriety was the purchaser’s failure to obtain approval from the Foreign Investment Review Board — Where no evidence of whether approval was required

SUCCESSION – family provision – claim by one of two children, an adult daughter, for provision from the estate of her deceased father under Succession Act 2006, Chapter 3 – the plaintiff is an eligible person – the deceased’s will leaves his estate substantially to his surviving son, the defendant, and his grandchildren and great grandchildren, providing a legacy of $100,000 to the plaintiff – the plaintiff had a troubled childhood, became involved in drugs and was imprisoned for drug related offences – the plaintiff lived distant from the deceased – the plaintiff’s brother, the defendant, spent more time with the deceased in the final years of his life than the plaintiff – whether the plaintiff was estranged from the deceased – whether the plaintiff’s relationship with the deceased precludes making an award of further provision for the plaintiff out of the deceased’s estate – whether on discretionary grounds the Court should not make further provision for the plaintiff out of the deceased’s estate – whether the plaintiff needs further provision from the deceased’s estate for her proper maintenance, education and advancement in life and if so, what is the appropriate quantum of such provision – how the defendant’s financial needs should be balanced in making any award to the plaintiff.

Immigration – Refugees – Application for protection visa – Power of Minister under s 65 of Migration Act 1958 (Cth) to grant or refuse to grant visa – Where visa criterion in Sch 2, cl 790.227 of Migration Regulations 1994 (Cth) required Minister to be satisfied grant of visa in national interest – Where plaintiff convicted of aggravated offence of people smuggling – Where Minister personally refused to grant plaintiff protection visa – Where sole basis for decision that cl 790.227 not satisfied – Where Minister conceded all other criteria for grant of visa met – Where Minister did not exercise power to refuse visa under s 501 of Act – Whether cl 790.227 permitted Minister to refuse to grant visa solely on ground that not in national interest to grant visa to person convicted of people smuggling – Proper construction of cl 790.227 – Whether Minister's decision authorised by cl 790.227. Statutes – Interpretation – Context – Construction of visa criterion in Regulations – Where Act of Parliament inserted criterion into existing Regulations made by Governor‑General. Administrative law – Judicial review – Certiorari and mandamus. Words and phrases – "character test", "mandamus", "national interest", "people smuggling", "personally", "protection visa", "refugee", "unauthorised maritime arrival", "visa refusal". Migration Act 1958 (Cth), ss 47, 65, 233C, 501. Migration Regulations 1994 (Cth), Sch 2, cl 790.227; Sch 4, Pt 1, cl 4001.

Immigration – Visas – Cancellation of visa – Where respondent's visa subject to mandatory cancellation under s 501(3A) of Migration Act 1958 (Cth) – Where Minister decided not to revoke visa cancellation on basis that respondent represented unacceptable risk of harm to Australian community – Where Minister took into account respondent's offending as a child for which no conviction recorded – Where s 184(2) of Youth Justice Act 1992 (Qld) provided that finding of guilt without recording of conviction not taken to be conviction for any purpose – Where s 85ZR(2)(b) of Crimes Act 1914 (Cth) provided that where, under State law, a person is, in particular circumstances or for particular purpose, taken never to have been convicted of offence under law of that State, the person shall be taken, in any State, in corresponding circumstances or for corresponding purpose, by any Commonwealth authority in that State, never to have been convicted of that offence – Whether s 184(2) of Youth Justice Act a State law which provided that person to be taken never to have been convicted of offence under law of that State – Whether Minister took into account irrelevant consideration – Whether Minister's decision vitiated by jurisdictional error. Words and phrases – "another reason", "conviction", "criminal history", "finding of guilt", "for a particular purpose", "for any purpose", "in particular circumstances", "irrelevant consideration", "jurisdictional error", "pardon", "recording of a conviction", "unacceptable risk", "visa cancellation". Crimes Act 1914 (Cth), ss 85ZM, 85ZR, 85ZS. Migration Act 1958 (Cth), ss 501, 501CA. Youth Justice Act 1992 (Qld), ss 148, 154, 183, 184.

Constitutional law (Cth) – Taxation – Where Commonwealth makes grants to States for local government purposes under Local Government (Financial Assistance) Act 1995 (Cth) ("Local Government Assistance Act") – Where States agreed that local government would make "notional GST" payments notwithstanding prohibition in s 114 of Constitution against Commonwealth imposing tax on State property – Where s 15(aa) of Local Government Assistance Act provided as a condition on grants of financial assistance that States withhold from local governing bodies amounts representing notional GST payments that should have, but have not, been paid by those bodies – Where s 15(c) of Local Government Assistance Act provided that where State failed to comply with s 15(aa), State must repay to Commonwealth amount not more than amount which State failed to pay – Where plaintiff, a local government body, paid notional GST arising from sale of vehicle under protest – Whether notional GST was tax on State property contrary to s 114 of Constitution. Words and phrases – "Business Activity Statement", "circuitous device", "compulsory exaction", "condition", "financial assistance", "forced benevolence", "goods and services tax", "grants", "GST legislation", "GST revenue", "Intergovernmental Agreement", "legal compulsion", "liability", "local government", "notional GST", "practical compulsion", "tax", "taxable supply", "voluntary act". Constitution, ss 96, 114. A New Tax System (Commonwealth-State Financial Arrangements) Act 1999 (Cth), s 10. A New Tax System (Goods and Services Tax) Act 1999 (Cth), s 177-3. Federal Financial Relations Act 2009 (Cth), ss 5, 6(3)(a)(ii), 6(3)(c), 17. Intergovernmental Agreement Implementation (GST) Act 2000 (NSW), ss 4, 5. Local Government (Financial Assistance) Act 1995 (Cth), ss 6(8), 9, 11, 14(3), 15(a)(i), 15(aa), 15(c).

CIVIL PROCEEDINGS – cross-vesting – costs

DAMAGES – defendant’s claim against plaintiff for cost to complete – where defendant settled claim against its principal – whether a component of that settlement duplicated defendant’s claim against plaintiff – whether now open to plaintiff to contend that the entire settlement amount be deducted from defendant’s claim against it – how the settlement amount is to be taken into account

CORPORATIONS — Insolvency — Application to wind up foreign air carrier — foreign carrier a “separate entity of a foreign State” within the meaning of the Foreign States Immunities Act 1985 (Cth) (FSIA) — whether separate entity entitled to immunity under s 9 of FSIA — whether proceedings fell within an exception to the general immunity – proper construction of s 14(3) of FSIA — whether application to wind up a separate entity of a foreign State fell within exception or whether exception was confined to proceedings where foreign State or separate entity had an interest in property in proceedings concerning the bankruptcy, insolvency or the winding up of a body corporate PRIVATE INTERNATIONAL LAW — Jurisdiction — Immunities – Foreign States Immunities Act 1985 (Cth) (FSIA) — where winding up proceedings brought against separate entity of a foreign state – where separate entity claims immunity under s 9 of FSIA – whether nature of proceedings within s 14(3)(a) of FSIA and thus within an exception to the s 9 immunity — proper construction of s 14(3) of FSIA — relevance of Australian Law Reform Commission Report No. 24 Foreign State Immunity in construction of FSIA and ascertainment of statutory purpose — whether proceedings for the winding up of a “separate entity” within the meaning of the FSIA were proceedings concerning the bankruptcy, insolvency or the winding up of a body corporate – whether exception to statutory immunity on its proper construction applies to suscept separate entity of foreign state to winding up proceeding of the separate entity itself STATUTORY INTERPRETATION — Foreign States Immunities Act 1985 (Cth) (FSIA) — Literal meaning and legal meaning of statutory provisions — Context — Extrinsic materials as part of statutory context — relevance of Australian Law Reform Commission Report No. 24 Foreign State Immunity in construction of Foreign States Immunities Act 1985 (Cth) and ascertainment of statutory purpose – where second reading speech and explanatory memorandum state that the subsequent Act is based on Law Reform Commission Report

CONTRACTS – Construction – Interpretation – Use of recital in construction of deed – Meaning of the word ‘facilitate’ – Whether obligation to facilitate or cause means no more than a reasonable endeavours clause CONTRACTS – Remedies – Damages – Loss of bargain damages – Where agreement was to transfer unencumbered property to a trust to be controlled by the respondents – Whether more than nominal loss suffered – Whether subsequent events relevant to assessment of damages

CIVIL PROCEDURE – Dismissal of proceedings – Abuse of process – Where applicant has instituted successive proceedings raising the same issues in a short period of time – Where issues have been determined – Where applicant has declared intention to continue to litigate DIRECTIONS – Teoh direction – Show cause direction – Where Teoh direction made to prevent an abuse of process

CRIME – Appeals – Appeal against sentence – Where applicant raised impact of Covid-19 pandemic upon custodial conditions in written submissions – Where submissions addressed then-current and potential future impacts – Whether sentencing judge failed to have regard to impact of pandemic upon conditions of imprisonment

CRIMINAL PROCEDURE — Trial — Jury — Application to discharge individual juror – where juror sent note indicating that she no longer respected the court officers – whether juror’s ability to perform his or her functions affected – juror discharged

CRIMINAL LAW – sentencing – murder – gangland violence – sentencing exercise overtaken by events – offender serving three life sentences for subsequent murders – brutal attack on rival drug dealer – aggravating circumstances – offence in company involving use of weapons – no intention to kill – transmogrification of shy and intelligent middle child of conservative and hardworking family into a notorious gangster – determinate sentence imposed – concurrent with life sentences – sad waste of a life

CIVIL PROCEDURE — interim preservation — freezing orders — bespoke orders drafted to provide sufficient security to plaintiffs in circumstances where freezing orders enable defendant company to repay debts impugned by plaintiff in proceedings

CIVIL PROCEDURE — summary disposal — security of payment (SOPA) — principles at [14]-[17] — summary judgment sought in the amount of payment schedules as a statutory debt — defendant claims payment schedules only issued as a consequence of plaintiff’s misleading and deceptive representations in subcontractor’s statement as to payment of employees and solvency — Bitannia v Parkline Constructions — defence not so clearly untenable that it cannot possibly succeed.

EQUITY – trusts and trustees – constructive trusts – common intention – where plaintiff alleges existence of oral agreements whereby his now deceased step-father agreed to give him $100,000 to assist with the purchase of a property and agreed to purchase the property to be held on trust for him – alleged oral agreements not made out on the balance of probabilities – common intention constructive trust not established – claim dismissed

APPEALS – Leave to appeal – Principles governing – Whether arguable case – Where primary judge made a winding up order on just and equitable grounds APPEALS – Procedure – Whether stay pending summons seeking leave to appeal ought to be granted

CRIME – appeal against sentence – murder – whether the sentencing judge erred in his approach to the significance of the standard non-parole period – “Muldrock error” – necessity to read sentencing remarks as a whole - where approach to sentence followed R v Way – where non-parole period arithmetically related to standard non-parole period – error demonstrated

CIVIL PROCEDURE – application for pro bono assistance under r 7.36 of the UCPR – application granted

CIVIL PROCEDURE – suppression and non-publication orders – whether publication of police intelligence reports would threaten the administration of justice – whether publication of police intelligence reports would expose the defendant and his family to significant risk of retributive action – non-publication and suppression orders made

CIVIL PROCEDURE – application for preliminary discovery – UCPR r 5.3 – whether the plaintiff has identified that it may be entitled to a claim for relief – orders for preliminary discovery made

CORPORATIONS – application for leave to proceed against companies in liquidation – s 471B Corporations Act 2001 (Cth)

GUARANTEE AND INDEMNITY – contract of guarantee – co-guarantors – joint and several liability – consequential orders on primary judgment COSTS – party/party – basis on which interest should accrue – compounding on daily rests – where plaintiff’s success against first defendants capped at $500,000 – where plaintiff otherwise successful

CORPORATIONS — Winding up — Statutory demand— Where corporate holder of convertible note changed name — Where noteholder did not apply to update company’s register of debenture holders prior to issuing notice of redemption — Where conditions of notes include that company will recognise only the noteholder whose name appears in the register, and may act accordingly — Where company did not redeem notes in response to notice of redemption — Whether genuine dispute about the existence of debt presently due and payable

CORPORATIONS — Winding up — Statutory demand — Genuine dispute about terms of oral agreement and whether debt presently due and payable — No question of principle

CORPORATIONS — Winding up — Statutory demand in respect of debt that is not a judgment debt — Where statutory demand served without verifying affidavit — Statutory demand set aside pursuant to Corporations Act 2001 (Cth), s 459J(1)(b) — No question of principle

COMMERCE — restraint of trade — interlocutory relief — whether orders should be made for an interlocutory injunction — whether there is a serious question to be tried — whether the balance of convenience favours the granting of interlocutory relief

APPEALS — review of appeal panel decision of NCAT — residential tenancy — termination of tenancy — whether there was a denial of procedural fairness — construction of letter comprising part of the residential tenancy agreement — whether tenancy could be terminated by notice or was indefinite — whether termination notice was retaliatory

INSURANCE — “delayed claim” under “last resort” home warranty insurance policy — s 103BB, Home Building Act 1989 (NSW) — insured risk, being builder’s insolvency, materialises three years after end of period of cover — insured does not give notice under s 103BB(3) — whether s 54 Insurance Contracts Act 1984 (Cth) applies — s 103BB directly alters parties’ rights and obligations — s 54 provides relief against “the effect of a contract of insurance” not the effect of State law CONSTITUTIONAL LAW — inconsistency of Commonwealth and State laws — whether s 103BB, Home Building Act 1989 (NSW) inconsistent with s 54, Insurance Contracts Act 1984 (Cth) — no inconsistency — s 54, Insurance Contracts Act not engaged as the “effect” is not “the effect of a contract of insurance” but of State law.

HIGH RISK OFFENDERS – final hearing – extended supervision order – extended supervision order made by consent

COURTS AND JUDGES — Bias — Apprehended bias — Actual bias — Primary judge raised many queries and concerns in the course of applicant’s oral address — Concerns about the pleading entirely reasonable — Did not prevent the applicant from properly presenting her case — Interventions did not exceed permissible bounds CIVIL PROCEDURE — Fair hearing — Whether breach of procedural fairness in the making of the orders — Concession that amended statement of claim needed to be reformulated — Indicative orders raised with the parties — No breach of procedural fairness in the making of the orders — Reasons were not given where applicant agreed in oral submissions that she did not require reasons — Applicant gave up entitlement to reasons at the hearing CIVIL PROCEDURE — Order below that applicant serve supporting affidavits and documents when serving draft further amended statement of claim — Whether orders made were ultra vires — Such orders fall within the power granted in UCPR r 2.1 CIVIL PROCEDURE — Pleadings — Fraud and conspiracy — Need for proper basis and articulation of any such allegations — Pleading was concededly and palpably defective OCCUPATIONS — Legal practitioners — Applicant and solicitor acting as McKenzie friend have repeatedly accused range of persons, including legal representatives of respondent, of misconduct — No reasonable basis apparent for allegations — Solicitor acting for themselves or as a McKenzie friend bound by the Solicitors’ Conduct Rules — Possible breach of rr 5 and 32 of the Solicitors’ Conduct Rules — Opportunity to show cause why this Court should not refer this judgment and the papers in this application to the Legal Services Commissioner

LEGAL PRACTITIONERS — Legal Practitioners Fidelity Fund — claim against fund — whether consequential loss recoverable from fund — whether amount received by solicitor “trust money” — whether amounts received subject to instruction that they be applied to satisfied costs orders — whether amounts disbursed in accordance with client’s instructions

JUDICIAL REVIEW – review of judgment of District Court on appeal from Local Court – whether r 36.2 of the UCPR or s 35 of the Local Court Act requires separate written reasons for judgment in Small Claims Division proceedings – whether there was a denial of procedural fairness

CRIME — appeals — appeal against conviction — inconsistent verdicts — verdicts not inconsistent — unreasonable verdict — verdict not unreasonable

SENTENCING – non-parole period – standard non-parole period – correct standard non-parole period to be applied to offences against s 61M(2) of the Crimes Act 1900 (NSW) committed before 1 January 2008 – proper construction of s 25AA(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”) – where standard non-parole period for offences against s 61M(2) had previously been raised from 5 years to 8 years with retrospective effect – whether the effect of amendments in 2018 was to limit the retrospective application of the higher standard non-parole period – whether GL v R [2022] NSWCCA 202 should be followed APPEALS – precedent – departure from previous decisions – circumstances in which Court of Criminal Appeal will depart from its own previous decisions – discussion of principles of restraint outlined in Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76 – “plainly wrong” and “compelling reasons to depart” – whether conclusion about statutory construction in GL v R [2022] NSWCCA 202 falls within the ambit of the principles in Gett – whether principles in Gett are strictly confined to departure from the ratio decidendi of previous decisions – whether finding of error in sentencing discretion forms part of ratio decidendi in circumstances where appeal is ultimately dismissed because no less severe sentence is warranted in law STATUTORY INTERPRETATION – amendment and repeal – correct standard non-parole period to be applied to offences against s 61M(2) of the Crimes Act 1900 (NSW) committed before 1 January 2008 – proper construction of s 25AA(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”) – whether inconsistency existed between provisions of the CSPA introduced at different times – where standard non-parole period for offences against s 61M(2) had previously been raised from 5 years to 8 years with retrospective effect – whether the effect of amendments in 2018 was to limit the retrospective application of the higher standard non-parole period – transitional provisions said to limit the scope of operation of a substantive provision – whether GL v R [2022] NSWCCA 202 should be followed

CRIME — Appeals — Crown appeal against inadequacy of sentence — Parity — Manifest excess — where respondent released from custody — evidence of rehabilitation — discretion to dismiss prosecution appeal — appeal dismissed

CRIME – Appeals – Appeal against conviction – Whether misdirection on availability of mental element of sexual offences – Where the trial judge gave a direction as to an additional mental element that was not part of the Crown case – Whether miscarriage of justice

CRIME – Appeal against conviction of child sex offence – Sexual touching of a child under the age of 10 years – Incompetence of counsel – Whether counsel erred by failing to cross-examine the mother of the complainant as to whether she originated the complaint with a view to obtaining sole care of the complainant SENTENCING – Appeal against sentence – General principles – whether the primary judge erred by taking into account extraneous material

CRIME – SENTENCE APPEAL – alleged failure to find remorse – distinction between remorse or contrition and regret at consequences or mere plea of guilty – construction of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – no error disclosed

CRIME – appeals – appellant convicted by jury of two counts of sexual assault without consent and one count of sexual touching without consent CRIME – appeals – where ERISP allegedly wrongly admitted – where misleading DNA evidence allegedly wrongly admitted – where phone records allegedly “contradict” Crown case – where misleading screenshot evidence allegedly wrongly admitted – where alleged failure by DPP to provide appellant with “all trial materials” – where evidence of complainant’s friends allegedly wrongly admitted – where evidence of doctors allegedly “[not] adequate” – where non-contemporaneous statement of OIC allegedly wrongly admitted – where diary of OIC allegedly wrongly admitted – where failure to call witnesses alleged – where trial judge alleged to have helped Crown – where trial judge allegedly gave misleading directions as to consciousness and consent – where trial judge allegedly misdirected jury on nonresponsive answers – where trial judge allegedly misdirected jury on complainant’s evidence – where representation allegedly incompetent – where alleged bias – where verdict allegedly unsafe and unsatisfactory – where judge allegedly misdirected jury as to elements of the offence CRIME – appeals – appeal against sentence – aggregate sentence – whether sentence manifestly excessive EVIDENCE – criminal trials – application of the rule in Browne v Dunn to criminal trial by jury – whether timeliness and consistency of complaint and general improbability of accused’s account sufficient to warrant application of the proviso

CRIMINAL LAW – appeal against conviction – tendency evidence – proper directions – where accused relied on tendency of the alleged victim – jury wrongly directed it should exercise caution in drawing inferences that tendency established – jury directed to enquire where it ”more likely than not” that the alleged victim had the tendency alleged – directions apt to reverse onus or proof – where prosecution concedes error in directions – appeal grounds sustained CRIMINAL APPEALS – whether no substantial miscarriage occurred despite erroneous directions – application of proviso – nature of error – assessment of prosecution case – case rebutting self-defence not overwhelming – accused case not “glaringly improbable” – where appellate court did not see witnesses – conflict in evidence – proviso should not be applied – appeal allowed – re-trial ordered

CRIME – appeals – appeal against sentence – whether sentencing judge was in error in her finding regarding specific deterrence – whether sentence manifestly excessive – no error – not manifestly excessive – appeal dismissed

COSTS – indemnity costs – gross sum costs orders – where the plaintiff obtains judgments against defendants based on loan agreement – where loan agreement provides for costs to be paid on an indemnity basis – whether costs should be awarded on an indemnity basis – whether the award of costs on a gross sum basis is appropriate in all the circumstances – held that costs should be awarded on an indemnity basis and that gross sum costs orders should be made against defendants