Choppair Helicopters Pty Ltd v AMT Helicopters Pty Ltd [2022] QCA 264

[2022] QCA 264 COURT OF APPEAL BOND JA Appeal No 10330 of 2022 DC No 2012 of 2018 CHOPPAIR HELICOPTERS PTY LTD Appellant/Respondent ACN 087 863 723 TRADING AS THE HELICOPTER GROUP PTY LTD v AMT HELICOPTERS PTY LTD Respondent/Applicant ACN 006 385 324 TRADING AS AIRWORK HELICOPTERS BRISBANE MONDAY, 19 DECEMBER 2022 JUDGMENT [1] BOND JA: On 1 August 2022, Barlow QC DCJ1 published his reasons for judgment in Choppair Helicopters Pty Ltd v AMT Helicopters Pty Ltd [2022] QDC 169. His Honour ordered that there be judgment for AMT on Choppair’s claim. [2] On 29 August 2022, Choppair lodged an appeal from that judgment. On 1 November 2022, AMT applied for security for costs of the appeal and that application was resolved by a consent order on 18 November 2022 that: (a) Choppair pay security for costs in the sum of $35,000 by 4.00 pm on 25 November 2022; and (b) until the security provided by that order was provided, the parties to the appeal should not take a further step in the appeal without leave of the Court of Appeal. 1 As his Honour then was. -- 1 of 12 -- 2 [3] Choppair failed to pay that security as ordered and AMT applied for an order pursuant to UCPR r 774(b) or alternatively in this Court’s inherent jurisdiction for an order dismissing the appeal. [4] For the following reasons, that application should succeed. Factual background [5] Choppair accepts the description of the factual background in AMT’s written submissions before me at [2] to [19]. I record that description below (footnotes omitted, emphasis in original): “In June 2014, a company related to Choppair, imported a second hand AS 350BA Airbus helicopter from Cambodia. Installed in that helicopter was a modular Arriel 1B helicopter engine (Engine). The Engine was removed in December 2014. It was unserviceable. To be returned to service, the Engine required a “recalendar” to be performed on modules 1, 5 and the fuel control unit (FCU) by the Engine’s manufacturer, Safran. The Engine had not been maintained, stored, or preserved correctly in Cambodia nor in Australia. By law, the only means by which the Engine could be returned to service was through a disassembly and inspection of each of the Engine’s modules by Safran. The Engine was sent to Airwork. It arrived in October 2015. It was not transported correctly. That of itself required the Engine to be sent to Safran for disassembly for it to be returned to service. Airwork and Choppair entered into an agreement for modules 1, 5 and the FCU to be “recalendared”. Airwork sent the Engine to Pacific Crown Helicopters Pty Ltd (Pacific) who on-forwarded it to Safran. Safran disassembled the Engine and provided a quote of approximately $675,000 to return it to service. That uneconomical sum was attributable to the level of internal damage to every Engine module. At Choppair’s request, the Engine was “bagged and tagged” by Safran and returned to Pacific. Choppair refused to pay for that service. Pacific paid Safran for that service and retained possession of the disassembled Engine pursuant to an asserted lien. Choppair instituted proceedings against Airwork and Pacific claiming (in the originating process): (a) the return of the Engine (in the state it was prior to disassembly); (b) damages for the value of the Engine estimated at $675,000 (the Safran quote); and (c) “other damages” for breach of contract and bailment, detinue, conversion and negligence. Pacific counterclaimed for the cost of the “bagging and tagging” of the Engine ($30,047.60). On 15 March 2022, Choppair and Pacific settled their respective claims on the terms that Pacific pay $40,000 to Choppair and return the Engine to it. Both the claim and counterclaim were dismissed. In its further amended statement of claim, Choppair alleged that: -- 2 of 12 -- 3 (a) it entered into an agreement for Airwork to “re-calendar” module 1, module 5 and the FCU of the Engine for the sum of USD $78,000 subject to findings as a result of an inspection of the Engine, and that such works would not be undertaken by Airwork but would be subcontracted to an overseas maintenance facility and not a facility in Australia; (b) the Engine was delivered to Airwork pursuant to the agreement (giving rise to a bailment relationship) each of which was breached by Airwork providing the Engine to Pacific; (c) Choppair lost the use of the Engine and was required to loan and subsequently purchase another helicopter for $435,000 (i.e., mitigation damages). No claim for damages was pleaded for either the value of the Engine, or a loss of opportunity to acquire a different engine upon trade-in of the Engine. Airwork’s defence was that: (a) the terms of its agreement with Choppair were for the Engine to be sent to a third party for it to be disassembled and, as that is what occurred, Airwork committed no breach; (b) Choppair and Pacific entered into a substitutional bailment thereby terminating the agreement between Choppair and Airwork; and (c) Choppair suffered no loss. The evidence at trial was that on and from (at least) 2014, Safran provided an engine upgrade opportunity for owners of an Arriel 1D1 engine (Upgrade Opportunity) to acquire an Arriel 1B engine at the reduced price of approximately €300,000 and which comprised: (a) the upgrade of the helicopter airframe of an Airbus AS350BA to an AS350B2 (at the customer’s expense); (b) the exchange of an Arriel 1B engine for an Arriel 1D1 engine; (c) a discount off the base price of an Arriel 1D1 engine on account of the helicopter airframe conversion (a discount of approximately €300,000); and (d) an additional incentive in the form of a further discount off the base price of a new Arriel 1D1 engine for the exchange of a second-hand Arriel 1B engine (approximately €100,000). The Upgrade Opportunity was offered to Choppair both in December 2014 (prior to disassembly) and in November 2016 (after disassembly). It was not availed of on either occasion. No evidence was led by Choppair that it had the means to pay, and would have paid, for the upgrade of the helicopter airframe (approximately €200,000 to €350,000) and the discounted cost of the Arriel 1D1 engine (approximately €300,000). -- 3 of 12 -- 4 The expert evidence of both parties at trial was that the Engine was worth between $25,000 (or less) and $70,000 prior to disassembly in October 2015, and $20,000 to $25,000 as at 2021. Choppair’s pleaded case was not its claim at trial, viz.: (a) first, the mitigation damages claim was abandoned and, over objection because it had not been pleaded, a claim was permitted to be advanced for damages for the value of the Engine; (b) secondly, the value of the Engine was submitted to be the sum of money that Choppair would have received pursuant to the Upgrade Opportunity, contended to be €400,000, but Choppair disavowed on the record making any claim for loss of opportunity; and (c) thirdly, the relevant “breach” was contended to be the disassembly of the Engine (not the transfer of the Engine to Pacific), a matter not pleaded against Airwork. On 1 August 2022, Judge Barlow KC entered judgment for Airwork and found: (a) the agreement was wholly in writing and comprised one document – a quote – sent by Airwork to Choppair on 11 November 2015; (b) the agreement was for the recalendaring of modules 1, 5 and the FCU with only those components to be disassembled (not the entire Engine); (c) Airwork breached the agreement because the entire Engine was disassembled and was not returned to Choppair; (d) the agreement was terminated by mutual agreement on 25 November 2016; (e) the new “loss” claimed by Choppair was a loss of opportunity claim that it had expressly disavowed, but in any event the trial Judge disposed of that argument by finding that the opportunity was not lost from Airwork’s breach because it was available after the relevant breach (the disassembly), and it was Choppair’s decision to not take it up, or it was unable to take it up, or both; and (f) the Engine’s value was $25,000 at the time it was delivered to Airwork, and was worth $20,000 after it had been bagged and tagged, with the result that Airwork’s breach caused a $5,000 diminution in value of the Engine; and (g) Choppair recovered more than that loss of value from its settlement with Pacific. The primary Judge ordered Choppair pay Airwork’s standard costs until 16 December 2021 and thereafter on the indemnity basis because of a joint formal offer made by Airwork and Pacific on 2 December 2021 to pay Choppair $60,000 and return the Engine. Choppair had conceded it should have to pay costs but opposed an order for indemnity costs. -- 4 of 12 -- 5 On 29 August 2022, Choppair filed a notice of appeal seeking the primary Judge’s orders be set aside and in lieu thereof judgment be entered for Choppair in the sum of €400,000 on the grounds that the primary Judge erred in: (a) finding that Choppair suffered no loss because of its settlement with Pacific; (b) failing to “draw the inference” that Choppair would have “acquired a different Helicopter and would have secured a trade-in for the Engine in the order of AUD $311,000.00”; (c) failing to find that the proper value of the Engine was “in the order of $311,000.00”; and (d) awarding Airwork its costs either at all or on the indemnity basis. On 4 October 2022, Airwork issued correspondence requesting Choppair provide security for costs or alternatively material that demonstrated Choppair would be able to meet an adverse costs order. Despite Choppair’s solicitor advising on two occasions that he would revert following instructions, no substantive response was provided. Choppair then failed to deliver its outline, list of authorities and draft index to record book by the (extended date) of 26 October 2022. On 1 November 2022, Airwork applied for security for costs. On 11 November 2022, Choppair agreed to pay security for costs in the sum of $35,000. That agreement was formalised by an order made by consent by McMurdo JA on 18 November 2022. Pursuant thereto, Choppair was to provide security by 4.00 pm on 25 November 2022. It did not do so. Rather, on 1 December 2022, Choppair’s solicitors forwarded an email from a separate solicitor John Maitland to Airwork’s solicitors wherein it was asserted (without any supporting material) that: (a) Choppair performed the “operational side” of a broader business group whilst another entity, “Red Balloon”, had the “financial side”; (b) the wife of Michael van der Zypp (Choppair’s sole director and shareholder) had “removed substantial sums of money and … prevented Choppair from calling on funds”; (c) Mr van der Zypp “brought the dispute before the Family Court to rectify the problem” which was taking longer than expected and was the reason for the delay in the provision of security; (d) in the circumstances, Choppair should request the appeal be vacated and re-listed on a later date; the appeal should remain stayed; and the matter be listed for directions early in 2023 at which time it was said to be expected the Family Court proceedings would be resolved and money released for the use of Choppair to pay security and proceed with its appeal. On 2 December 2022, Airwork applied for the appeal to be dismissed.” [6] The application first came on for argument before me on Monday 12 December 2022. On that occasion, Choppair sought an adjournment essentially on the bases that it had -- 5 of 12 -- 6 not had sufficient time to brief counsel to respond to the application, or to prepare material opposing the application. It also pointed out that pursuant to the terms of the consent security for costs order, AMT needed the Court’s leave before making the application to dismiss and AMT had not sought that leave. [7] After hearing argument, I acceded to an oral application by AMT to grant it leave to amend its application to seek the requisite leave, and also acceded to Choppair’s application for an adjournment of the hearing of the amended application until today, one week later. I ordered Choppair to file any material on which it intended to rely in opposition to AMT’s application by 4.00 pm on Thursday, 15 December 2022. Costs were reserved. [8] AMT complains that Choppair has not complied with directions initially made when the appeal was filed and has not provided security despite having been ordered to do so. AMT is not content with simply having had its success in the District Court and having the stay in place. It wishes to have a final resolution of the matters the subject of Choppair’s claims against it. That wish of AMT is consistent with r 5 of the UCPR. But quite apart from the wishes of AMT, Mr Tomkins, who is the sole director, shareholder and secretary of AMT, deposes that delay in resolution adversely affects him personally. He is 64 and wants to sell AMT and retire. He wishes to do that by selling the shares in AMT to a purchaser. There is good reason behind that commercial goal. He considers, and I would accept, that the continued existence of unresolved litigation would be an obstacle to his plans. [9] In opposition to AMT’s application, Choppair filed an affidavit from its sole director, Mr van der Zypp, sworn on 15 December 2022. The evident intention of the affidavit was to seek to provide an evidentiary basis for the following argument: (a) Choppair, Red Balloon Helicopters Pty Ltd (Red Balloon), Freycinet Air Pty Ltd, and Ayers Rock Scenic Flights Pty Ltd trade and operate collectively as the Helicopter Group. (b) There was an agreement between Choppair and Red Balloon by which Choppair could have called on Red Balloon to provide it with sufficient funds to comply with the security for costs order. (c) Mr van der Zypp resigned as a director of Red Balloon in about December 2021. Mrs van der Zypp remained in sole control of Red Balloon. (d) In early 2022, Mr van der Zypp separated from his wife. (e) Mrs van der Zypp removed substantial monies from Red Balloon. In breach of the agreement, Mrs van der Zypp withheld payments from Red Balloon to Choppair. (f) Proceedings were commenced in the Family Court, but they are yet to be finalised. Mr van der Zypp is prevented by injunction from making any financial decisions in relation to Choppair. (g) Mr van der Zypp expects that the impasse between Red Balloon and Choppair will be resolved in Choppair’s favour in the near future, with the result that Choppair will be able to pay the security and proceed with the appeal. (h) The appeal should not be dismissed. Rather, Mr van der Zypp should be given the time to resolve the financial impasse between Red Balloon and Choppair, which would enable him to pay the security and proceed with the appeal. -- 6 of 12 -- 7 [10] Unfortunately, the affidavit does not provide an adequate evidentiary basis for the critical parts of the argument. I make the following observations: (a) Paragraph [4] of the affidavit sought to prove the so-called agreement. It failed to do so in an admissible way. It neither exhibited any document, nor sought to prove the terms of any conversation or conduct which might have done so. It expressed merely Mr van der Zypp’s opinion that an agreement existed. Although no objection was taken to it, I give it no weight. (b) Paragraph [7] stated that Mr van der Zypp had access to the books and records of the companies comprising the group. (c) He exhibited Choppair’s balance sheet as at 30 June 2020. Notably, the financial position there described is almost two and a half years out of date. No explanation was provided as to why any more up to date financial statements could not be provided. In any event, the balance sheet as at 30 June 2020 showed the following: (i) Current assets of $464,764.10, comprised of $406,564.10 cash at bank and an asset described as “Taxation” of $58,200. (ii) Non-current assets totalling $836,227.84 comprised principally of the depreciated value of helicopters totalling $804,557.96. (iii) Current tax liabilities of $50,837.14. (iv) Non-current financial liabilities comprised of a loan from Red Balloon of $674,771.72 and a hire purchase liability of $438,020.70. (d) Amongst other things, bank statements were exhibited showing the following balances: (i) Choppair Helicopters Pty Ltd balance as at 21.05.2021 $446,833.77. (ii) Red Balloon Helicopters Pty Ltd balance as at 7.05.2021 $433,162.84. (iii) Freycinet Air Pty Ltd balance as at 23.04.2021 $145,379.25. (iv) Ayers Rock Scenic Flights Pty Ltd balance as at 21.05.2021 $199,909.40. (v) The total of those balances was, as at May 2021, $1,225,285.20. (e) Although not as dated as the balance sheet, the bank statements were still more than 19 months out of date. No explanation was provided as to why any more up to date bank statements were not provided. (f) Presumably, that material was thought to be probative of the notion that the current position as at December 2022 was that resources presently existed which are likely to lead to Choppair being able to provide security. If that was the thought, then the material failed in that intention. In order to be persuaded to infer that conclusion to be true, I would need more than such dated material. And Mr van der Zypp’s unexplained failure to place any more up to date financial information (especially bank statements) before me, despite his having access to the books and records, justifies the inference that up to date material would not assist his case. The result is that I am not persuaded to infer that resources exist which are likely to lead to Choppair being able to provide security. -- 7 of 12 -- 8 (g) Paragraphs [12] and [13] described Mrs van der Zypp’s conduct. But the material was vague and lacking in detail. The affidavit said she removed “substantial money” but did not condescend to saying when or how much or how. The affidavit expressed the inadmissible opinion that her conduct in withholding payments from Red Balloon to Choppair was in breach of the agreement. I observe that no agreement had been proved; no circumstances demonstrating an obligation that Red Balloon should pay Choppair were proved; and no detail given as to how much should have been paid to Choppair and when. (h) Although objection was taken to this paragraph and upheld by me, I record that paragraph [14] said: “… to resolve the matters between myself and [Mrs van der Zypp] concerning the personal family matters and the impasse between Red Balloon and Choppair, proceedings were commenced in the Family Court at Melbourne which are yet to be finalised.” But the attempt to characterise the nature of the issues which arise in the Family Court proceeding must be regarded as inadmissibly seeking to give secondary evidence of the contents of documents. Even if I had not ruled it inadmissible, I would have observed that it lacked any detail concerning when the Family Court proceeding had commenced or what its nature was, apart from the fact that there was one. Further detail was expressed in paragraphs [19] to [21], which was similarly flawed. (i) Paragraph [15] was also a paragraph to which objection was taken and upheld. Nevertheless, I observe that it attributed the delay in providing security to the matters already dealt with. It then expressed the deponent’s confidence that the impasse would be resolved in Choppair’s favour in the near future with the result that Choppair would be in a position to pay the security and proceed with the appeal. But this was an inadmissible expression of opinion. The deponent did not depose to having either the expertise or the experience to express an opinion concerning either prospects or the time within which Family Court proceedings might be finally resolved. And, in any event, no basis for the opinion had been provided. A similarly flawed expression of the view that the deponent expected the impasse with Red Balloon to be resolved soon was set out in paragraph [18]. (j) Paragraph [16] expressed an inadmissible opinion as to Choppair’s prospects of success in the appeal. [11] The result is that although Mr van der Zypp conveys that Choppair was willing to pay the security, his affidavit demonstrates that it is not presently able to do so. And it does not provide an evidentiary basis from which one could conclude when, if at all, it will ever be able to do so. [12] I pause to interpolate that the written submissions advanced by Choppair’s solicitor advanced a number of propositions to the contrary, for which there was either no or no adequate evidentiary support. [13] Paragraph [6(c)] of the written submissions submitted that Mr van der Zypp’s wife had removed the sum of $600,000 from the company, that being the company’s only reserve of cash. First, there is no evidence of the sum removed. Second, there is no evidence that the sum was removed from Choppair. Rather, the material suggested that Mrs van der Zypp might have removed money from Red Balloon, not Choppair. -- 8 of 12 -- 9 [14] Paragraph [6(e)] submitted that Choppair was able to secure the funds to provide security for costs by way of a bank guarantee or a security interest granted over one of its helicopters. There was no evidence justifying that submission. [15] Paragraph [13] submitted that the security for costs “will be forthcoming”. It continued to advance the proposition that: “It is clear from the evidence that The Helicopter Group has sufficient cash reserves to pay for or to obtain a bank guarantee for the amount of security requested, namely, $35,000 or to provide for some sort of lien or other security over one of the Group’s helicopters, an adequate amount.” [16] There was no evidence that permitted that submission to be advanced. [17] I turn to the question of the relevant principles. Relevant principle [18] It is not controversial that a single judge of the Court of Appeal may exercise of the powers of the Court of Appeal to dismiss an appeal on the grounds currently advanced: see Jason Hall t/as JHL Lawyers v Val Eco Homes Pty Ltd (in liq) [2021] QCA 236 per Fraser JA at [10] and UCPR rr 767 and 774(b). [19] Subject to one caveat, AMT submits, and I accept, that the discretion I am to exercise is unfettered, albeit one to be exercised judicially, and to be exercised after a consideration of all relevant circumstances, which includes (footnotes omitted): “(a) Choppair’s prospects of success; (b) the explanation given by Choppair as to why it has not paid security; (c) whether there is a prospect security will be paid and, if so, the relevant timeframe; (d) the need to balance the public interest in Choppair having its appeal heard and determined and ensuring that the Court process is not misused by one bringing proceedings without concern for the financial consequences that flow to the other party; (e) that Choppair has had its day in Court; (f) the undesirability of an appeal being stayed for an indeterminate and unknown period, and the impact that has on Airwork and the Court; and (g) whether [AMT] will suffer prejudice by reason of the attendant delay.” [20] The caveat concerns the assessment of the prospects of success of the appeal. I accept that if an assessment could reliably be made in the present context, it would be relevant. A negative assessment would strongly favour dismissal, and a positive assessment would be at least be something in the balance which might suggest allowing the appellant further time within which to comply with the security for costs order. I make the following observations: (a) There are essentially three grounds of appeal raised by the notice of appeal and in the course of argument advanced: -- 9 of 12 -- 10 (i) Grounds 1 and 2 raise the question of the correctness of the application of principles concerning double recovery in relation to the question of the determination of any award of damage against AMT. (ii) Grounds 3 and 4 seek to overturn the fact finding in relation to valuation of the particular engine concerned or the opportunity lost. (iii) Ground 5 seeks to overturn the exercise of the costs discretion. (b) Although I was addressed by each side on the question of prospects, I do not think that I am in a position reliably to form a judgment, either negatively or positively, at least as to the issues raised by grounds 1 and 2. [21] It seems to me that that does not matter here as other considerations mentioned by AMT strongly favour dismissal: (a) Choppair has failed to comply with a consent order that it provide security for costs by a specified date. One would have expected that, behaving responsibly, the date Choppair chose to agree to in the consent order was a date that it thought it could comply with. (b) Choppair has not provided any sufficient explanation as to its non-compliance. Notably too, it has not demonstrated that anything changed after the consent order was made which meant that something surprising happened which dashed its reasonable explanation that it would have been able to provide security by the date ordered. This is concerning: if the current problems existed at the time the order was made, then they would reveal that Choppair had consented to an order being made which it knew it would never be able to meet. Although I was asked to infer that that must be the position, I do not think there is a sufficient evidentiary basis to draw that inference. The significant consideration, however, is that it is plainly right, in my view, to say that Choppair has not provided any sufficient explanation for its non-compliance. (c) There is no certainty that security that has been ordered will be paid in the future. The evidence does not even demonstrate a likelihood that security will be paid in the future. And, if it will be paid at all, that period of time is indeterminate. It would turn, at its most generous, on something happening in the resolution of the uncertain and, frankly, not proved financial arrangements between Choppair and Red Balloon in the context of a Family Law dispute being resolved favourably. It is, as things presently stand, entirely speculative as to whether they will be resolved favourably, and if they are, when that might occur. I agree that it is not appropriate that AMT should not be expected to acquiesce to an indefinite stay in the progress of this appeal. (d) AMT does not demonstrate, to my mind, prejudice going beyond the prejudice suffered by any litigant having a delayed appeal, but that prejudice is not nothing. Litigants have the expectation that litigation, in the trial division of this Court, in the District Court, in the Magistrates Court and in the Court of Appeal, will proceed without undue delay, and if for some reason there is to be delay, and that delay is to be excused, it behoves the person causing the delay to give a properly reasoned, properly demonstrated excuse. That has not occurred here. This litigation has been ongoing for years. It is not unreasonable for AMT to take the position that it seeks to have no further delay. Beyond that, of course, is the effect on third parties, and in this case, the third party is AMT’s sole shareholder, who wishes to sell his shares and depart his involvement in AMT’s business. He will, undoubtedly, suffer prejudice by the -- 10 of 12 -- 11 impact on the ability to fulfill that desire that will necessarily be caused by the uncertainty created by delay to the resolution of the appeal. (e) Choppair has had its day in Court and lost. [22] Choppair encapsulated its submissions in these terms (footnotes omitted) “In Thompson v Robinson [2005] QCA 387 at 7, the Supreme Court when called upon to determine whether discretion under the said provision should be exercised, did so with regard two controlling factors. Firstly, whether the Appellant was ready and willing to pay costs, balanced against, secondly the prejudice which the other party might ensue from an order extending the time for the provision of security. While the facts of Thompson are not relevant to the current proceedings, the court ought to take note of paragraph 13 of the [judgment], as it indicates the analysis the court should undertake in exercising discretion; The determination and enforcement of the rights and obligations of the parties in accordance with law is the principal function of the courts. In this case, there has been a determination of the rights of the parties by the decision at first instance. Each of the parties has had his day in court. Mr Robinson has, of course, a right of appeal against that decision. The order for security did not seek to deny that right, but sought to strike a balance whereby that right of appeal would be exercised on terms under which, if the appeal were to be unsuccessful, Mr Thompson would not suffer an undue erosion of the benefit of the judgment he had obtained by the expenditure of legal costs which he could not recover from Mr Robinson. That was an appropriate balancing of the interests of both parties. It is a balance which, unfortunately, has been upset by Mr Robinson’s delay in meeting his obligations. The reason for that delay is unexplained in the sense that Mr Robinson has not satisfactorily explained why he was unable to give the security, which he is now able to give, in accordance with the terms of the order of Nase DCJ. Those terms no longer provide adequate security. Mr Robinson has not established that he can presently or shortly provide Mr Thompson with adequate security for costs of and incidental to the appeal. Mr Robinson's application to vary Nase DCJ’s order for security for costs should be refused. Essentially, the court should not exercise discretion against an appellant where there is an adequate explanation for the delay in providing the security for costs, it may be balanced against the interest of the other party, and, above all and most important, that the appellant is willing to pay security for costs and can provide evidence that such will be fort[h]coming.” [23] The problem with that submission is, as I have explained, there is no adequate explanation for the delay, and the appellant has not been able to provide evidence as to when security might be forthcoming, if at all. [24] The application must be allowed. -- 11 of 12 -- 12 [25] I order as follows: 1. The respondent be granted leave to bring the application filed 2 December 2022. 2. The appeal be dismissed. … [26] Having succeeded, the applicant should have its costs of this application and, it would follow, of the appeal that I have dismissed. A question arises as to the costs that were reserved on 12 December 2022. The solicitor advocate for Choppair submits that Choppair should have those costs, because it succeeded. I think that is an overstatement. Choppair was granted a boon. In fact, both sides were granted a boon. In that respect, I think the fairest course in treatment of those costs is that they be each party’s costs in the proceeding. [27] Accordingly, the orders that I make are: 3. I order that each party’s costs that I reserved on 12 December 2022 be its respective costs in the application. 4. I order that the appellant must pay the respondent’s costs of the appeal and of the application filed 2 December 2022, to be assessed. -- 12 of 12 --