Fenn & Anor v Alex J Saunders Valuations (Sunshine Coast) Pty Ltd & Anor [2008] QDC 198

DISTRICT COURT OF QUEENSLAND CITATION: Fenn & Anor v Alex J Saunders Valuations (Sunshine Coast) Pty Ltd & Anor [2008] QDC 198 PARTIES: JONATHAN HOWARD FENN First Plaintiff/Applicant LAUREN MICHELLE FENN Second Plaintiff/Applicant v ALEX J SAUNDERS VALUATIONS (SUNSHINE COAST) PTY LTD First Defendant/Respondent ALEX J SAUNDERS VALUATIONS PTY LTD Third Defendant/Respondent FILE NO: 17 of 2006 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court DELIVERED ON: 22 August 2008 DELIVERED AT: Maroochydore HEARING DATE: 8 August 2008 JUDGE: K S Dodds, DCJ -- 1 of 14 -- 2 ORDER: Within fourteen days of this order: 1. The first and third defendants file and serve an affidavit pursuant to rule 223(2) of the UCPR deposing to the following matters: (a)(i) Other than the documents disclosed in the defendants’ list of documents dated 9 January 2007, whether minutes of meetings of directors and shareholders of the defendants for the period 1 January 2002 to 31 December 2004 do not now exist or have never existed; and (ii) If the said minutes did exist but no longer exist, the circumstance in which the minutes ceased to exist; and (iii) If the said minutes exist or existed and have passed out of the possession or control of the defendants the circumstances in which they did so. (b)(i) Whether documents relating to the ownership, maintenance and repair of the motor vehicle referred to in paragraph 2 of the counterclaim do not now exist or have never existed; and (ii) If the said documents did exist but no longer exist, the circumstance in which the documents ceased to exist; and (iii) If the said documents exist or existed and have passed out of the possession or control of the defendants, the circumstances in which they did so. (c)(i) Whether credit card statements with respect to the business credit cards of the defendants’ for expenses of Bart Charles Mead and Thomas Alexander Saunders do not now exist or have never existed; and (ii)If the said credit card statements did exist but no longer exist, the circumstances in which the documents ceased to exist; and (iii)If the said credit card statements exist or existed and have passed out of the possession or control of the defendants, the circumstances in which they did so. -- 2 of 14 -- 3 2. The defendants’ provide further and better particulars as follows: (a) With respect to paragraph 8(a) of the entry of appearance and defence, further and better particulars of who on behalf of the corporate entity the first defendant made any such promise in pre-contract negotiations, when and where any such promise or promises was or were made, whether any such promise was written or oral and if oral, what words were spoken. (b) With respect to paragraph 8(b) of the entry of appearance and defence, when and in what circumstances was each promise referred to therein made, who on behalf of the third defendant made each promise, whether the promise was in writing and if oral, what words were used. (c) With respect to paragraph 2 of the counterclaim: (i) what damage it is alleged was incurred by the first plaintiff causing or allowing the vehicle to be driven carelessly; (ii) the way or ways in which the first plaintiff caused the motor vehicle to be driven carelessly; (iii) the person or persons who were caused to drive the motor vehicle when it is alleged it was driven carelessly; (iv) the way or ways in which the first plaintiff allowed the motor vehicle to be driven carelessly; and (v) the person or persons who were allowed to drive the motor vehicle when it is alleged it was driven carelessly. 3. The plaintiffs have leave to amend their claim and statement of claim filed on 19 January 2006 in the form of the second amended claim and statement of claim filed on 6 December 2007. 4. The defendants have leave to amend paragraph 2(d) of their counterclaim in the terms indicated in paragraph 6 of exhibit CRS2 to the affidavit of -- 3 of 14 -- 4 Christopher Robert Sutton filed by leave on 8 August 2008. 5. The parties attend, participate in and act reasonably and genuinely in a mediation to be conducted at Maroochydore, on or before 30 September 2008. 6. The first and third defendants’ pay the plaintiffs’ costs of the application: ƒ For further and better particulars regarding those matters on which it succeeded. Costs of the application for further discovery are costs in the cause. The order is silent as to costs of the application to amend the claim, statement of claim and counterclaim. CATCHWORDS: PROCEDURE – PROCEDURE UNDER RULES OF COURT – PARTICULARS – application for orders regarding particulars – where particulars requested not provided – disclosure – where order for affidavit pursuant to rule 223(2) UCPR Corporations Act 2001 (Cth) s 9, s 251A Uniform Civil Procedure Rules 1999 (Qld) r 221, r 223(2), r223(4), r 444 COUNSEL: M Luchich for the plaintiffs/applicants R Murphy (sol) for the defendants/respondents SOLICITORS: Suttons Law for the plaintiffs/applicants Redmond van de Graff Lawyers for the defendants/respondents [1] This is an application by the plaintiffs filed on 19 June 2008 for orders that certain particulars be provided by the defendants, that further disclosure by the defendants occur and that the plaintiffs have leave to amend their claim and statement of claim, as per their second amended claim and statement of claim filed on 6 December 2007. In the title there is no reference to a second defendant. The proceeding against the second defendant has been discontinued by the plaintiff. -- 4 of 14 -- 5 [2] No objection was raised to the part of the application for leave to amend the claim and statement of claim, nor sensibly could there be. The order granting leave should be made. Background [3] The third defendant (Valuation) employed the male first plaintiff as a valuer in 1998. [4] The third defendant opened a Sunshine Coast branch. The first defendant, (Sunshine) by that name, came into existence. It is an associate of the third defendant in terms of section 9 of the Corporations Act 2001 (Cth). [5] In July 2002 the first plaintiff commenced employment as a registered valuer and manager of Sunshine and on 1 October 2002, was appointed a director. On or about 1 October 2002, 53,571 one dollar shares in Sunshine were acquired by the plaintiffs, or by the first plaintiff, whichever it was, as trustee for the Fenn Family Trust. 124,994 one dollar shares were acquired by Valuation. According to the plaintiffs’ statement of claim, the shares were issued to both plaintiffs. According to the defendants’ defence, they were issued to the first plaintiff. According to the plaintiffs’ statement of claim, the first and second plaintiff paid $53,571 for the shares in two instalments, $30,000 on 18 October 2002 and $23,571 on 9 June 2004 which sums were borrowed on interest only terms, the interest rate being 6.72%. According to the defendants’ defence, the first plaintiff as trustee for the trust paid for the shares. [6] On or about 1 July 2002, the first plaintiff executed a document entitled “Shareholders Agreement”. The parties named therein were the first plaintiff, Alexander Saunders (Saunders), Sunshine and Valuation. It was signed by the plaintiff in his capacity as a trustee for the Fenn Family Trust, by Saunders, by Bart Charles Mead, who was a director of Valuation, but not by Sunshine or Valuation and was not executed as a deed. [7] By a notice dated 3 November 2004 from Valuation to the first plaintiff as trustee for the Fenn Family Trust, entitled “Notice of Exercise of Option”, Valuation purported to exercise a call option in the shareholders agreement and without the consent of the plaintiffs, recorded and registered the first plaintiff had ceased to be a director of Sunshine as from 3 November 2004, that he no longer held shares in Sunshine and that Valuation had acquired those shares with effect from 3 November 2004. [8] Earlier, by resolution dated 28 October 2004, Sunshine resolved that the first plaintiff be expelled from the business of Sunshine, that the purchase price for the shareholding of the first plaintiff on exercise of the option “will be the capital amount” paid for the shares and would be payable by 3 equal instalments on each of the following three anniversaries of the exercise of the option. [9] No such payments have been made, resulting in the proceeding by the plaintiffs. [10] The defendants have contended that pursuant to the terms of the shareholding agreement they are not obliged to pay these amounts until the first plaintiff has paid or secured to the satisfaction of Valuation all monies owing by him to Sunshine. -- 5 of 14 -- 6 That had not been done. The defendant counterclaimed for $42,617.62 made up of numerous expenditures on numerous dates totalling $35,919.12, alleged to have been spent over the period 3 April 2002 to 29 October 2004 by the first plaintiff for the first plaintiff’s private purposes, without the consent of Sunshine and of $6698.50 spent repairing damage to a motor vehicle provided by Sunshine to the first plaintiff during his employment which damage was said to have been caused by his failure to operate the vehicle with due care and skill. [11] The original claim and statement of claim was filed by the plaintiffs on 19 January 2006. The defendants’ defence and counterclaim was filed on 17 March 2006. An amended claim and statement of claim was filed on 21 June 2006 and the second amended claim and statement of claim on 6 December 2007. [12] On 29 November 2006 the plaintiffs requested further and better particulars of the defence and counterclaim. On 9 January 2007 the defendants’ list of documents was provided and on 2 February 2007 the defendant provided some of the further and better particulars requested. [13] Nothing further appears to have occurred with respect to the defendants’ discovery or the particulars until 13 May 2008 when the plaintiffs’ solicitors by letter of that date wrote to the defendants’ solicitors requesting some further and better particulars of the counterclaim to be provided by 22 May 2008. A number of particulars sought on the earlier occasion had not been provided. [14] By a rule 444 Uniform Civil Procedure Rules 1999 (Qld) (UCPR) letter dated 14 May 2008 to the defendants’ solicitors, the plaintiffs’ solicitors requested the particulars which had been requested in the request for further and better particulars dated 29 November 2006 and not provided be provided by 20 May 2008. [15] By a rule 444 UCPR letter dated 2 June 2008 from the plaintiffs’ solicitors to the defendants’ solicitors, certain specified documents were said not to have been disclosed on discovery and were sought by 10 June 2008. By letter dated 11 June 2008 from the defendants’ solicitors to the plaintiffs’ solicitors, the defendants’ solicitors responded to the 2 June 2008 rule 444 letter advising they would review the defendants’ list of documents and provide a supplementary list by 4 July 2008. No supplementary list was provided by that date. [16] By a rule 444 UCPR letter from the plaintiffs’ solicitors to the defendants’ solicitors dated 3 June 2008, the plaintiffs complained that the further and better particulars of the counterclaim, requested by letter dated 13 May 2008 had not been provided. The particulars were sought by 10 June 2008. By letter dated 11 June 2008 from the defendants’ solicitors to the plaintiffs’ solicitors the defendants’ solicitors responded to the 3 June 2008 rule 444 letter. The particulars requested were not provided. [17] By letter dated 7 August 2008, the defendants’ solicitors wrote to the plaintiffs’ solicitors addressing each of the orders sought in the application. Some matters, according to the plaintiffs, remain outstanding. I will deal with these. -- 6 of 14 -- 7 Particulars Number 1 [18] In the statement of claim, the plaintiffs pleaded that on 1 October 2002, they in their capacity as trustees for the Fenn Family Trust acquired and were issued 53,571 one dollar shares in Sunshine and paid $53,571 for the shares in two instalments. In their defence, the defendants pleaded that the first plaintiff as trustee for the Fenn Family Trust and not the first and second plaintiffs acquired and paid for the shares, but otherwise admitted the plaintiffs’ pleading. The plaintiffs sought further and better particulars namely “full particulars of all amounts paid for the 53,571 shares by the first plaintiff including time, amount, date and sources of payment”. The defendants have refused, asserting that the defendants have admitted the allegation in the statement of claim except that the first and second plaintiffs had acquired and paid for the shares. [19] I consider the defendants’ position to be correct when regard is had to the purpose of particulars. There is no dispute about the monies being paid and when. The only dispute is whether it was paid by both plaintiffs (the plaintiffs’ position) or the first plaintiff (the defendants’ position). Number 2 [20] In the statement of claim the plaintiffs pleaded the Shareholders Agreement executed by the first plaintiff on 1 July 2002 was not supported by consideration passing between the plaintiffs and the defendants. The agreement and the notice of exercise of option were therefore ineffectual to permit the forcible acquisition and transfer of the plaintiffs’ shares in Sunshine to Valuation or anybody else. [21] In their defence, the defendants denied this and pleaded that the Shareholders Agreement was supported by consideration, namely “a promise by the first defendant to employ the first plaintiff as managing valuer at a salary of $80,000 per annum together with other benefits specified in clauses 5.3 and 5.4 of the agreement”.1 [22] The plaintiffs sought further and better particulars as follows “as to the alleged promise: (a) when and in what circumstances was the promise made; (b) who on behalf of the first defendant made the promise; (c) state whether the promise was in writing, in which case provide a copy; (d) if verbal, state what words are alleged to have formed the promise, including who stated them”. [23] The defendants declined to provide the particulars requested. The reason assigned was that the promise was made in pre-contract negotiations, evidenced by the actions of the parties, its terms were put into writing in clause 5 of the shareholder agreement and it was executed by performance. 1 Paragraphs 8(a) and 10(d) of the entry of appearance and defence. -- 7 of 14 -- 8 [24] The first plaintiff was already employed by Sunshine at the time he executed the shareholder agreement. [25] I consider that the plaintiffs should be provided with further and better particulars of who on behalf of the corporate entity of the first defendant made any such promise in pre-contract negotiations, when and where any such promise or promises was or were made, whether any promise was written or oral and if oral, what words were spoken. Number 3 [26] This matter derives from the same pleading of the plaintiffs in number 2 above. As previously indicated the defendants pleaded the Shareholder Agreement was supported by consideration as in number 2 above, and also by “promises by the second defendant by, Bart Charles Mead and the third defendant to cause the first defendant to so employ the first plaintiff”.2 [27] The reference to the second defendant is to Saunders. He is no longer a party to the proceeding. [28] The plaintiffs sought further and better particulars of the promises alleged in the pleading as follows; “as to each alleged promise: (a) when and in what circumstances was each promise made by Bart Charles Mead; (b) when and in what circumstances was each promise made by the third defendant; (c) who on behalf of the third defendant made each promise; (d) state whether each promise was in writing, in which case provide a copy; (e) if verbal, state what words are alleged to have formed each promise, including who stated them. [29] The defendants’ response to the request for particulars was that the promises were incidental to setting up the business including introduction of a principal client base, assistance in the employment of staff and in the provision of the facilities to enable the business to commence. The promises related to the promise by the first defendant to employ the first plaintiff as managing director at a salary of $80,000 per annum together with other benefits specified in clauses 5.3 and 5.4 of the agreement. [30] I consider the plaintiffs should be provided with further and better particulars. The plaintiffs are entitled to full particulars of the consideration which the defendants allege supported the Shareholder Agreement. In their defence they have pleaded various promises as amounting to consideration. Having done so, the plaintiffs are entitled to particularity about the promises. 2 Paragraphs 8(b) and 10(d) of the entry of appearance and defence. -- 8 of 14 -- 9 Number 4 [31] In their pleading, the plaintiffs pleaded that the Shareholder Agreement and the notice of exercise of option were and remained ineffectual to grant, provide or authorise the defendants to forcibly acquire or transfer the plaintiffs’ shareholding in the first defendant to the third defendant or any other person. [32] In their pleading the defendants denied those allegations, because, amongst other things, “the agreement bound the first and third defendants, although not formally executed by them nor as a deed”. [33] The plaintiffs requested further and better particulars of all facts matters and circumstances by which it was alleged that the agreement bound the first defendant and the third defendant even though not executed by either. [34] In their response, the defendants informed that at the trial they would rely upon the Shareholder Agreement for it full meaning and effect. The defendants had ratified the Shareholder Agreement by discharging the promises to employ the first plaintiff at a salary of $80,000 per annum together with other benefits specified in clauses 5.3 and 5.4 of the agreement and the promises by the second defendant, Bart Charles Mead and the third defendant to cause the first defendant to employ the first plaintiff. [35] I do not consider that the defendants are required to provide any further and better particulars of this aspect of their pleading. This will have been sufficiently done in my view. The plaintiffs should be in no doubt about the way in which the defendants’ assert the Shareholder Agreement bound the first and third defendants even though not formally executed by them. Number 5 [36] In the counterclaim, insofar as it related to damage to the motor vehicle for which the first plaintiff was allegedly responsible, the defendants pleaded that it was an implied term of the Shareholder Agreement that the first plaintiff operate the vehicle with due care and skill. They further pleaded that the first plaintiff breached that implied term or his legal duty by driving the vehicle carelessly and thereby damaging it. By their letter of 7 August 2008 the defendants’ solicitors gave notice of an intention to amend the pleading by substituting “in breach of that implied term or legal duty, while the motor vehicle was in possession, power or control of the first plaintiff, the first plaintiff caused or allowed the vehicle to be driven carelessly thereby incurring damage to the vehicle”. [37] The plaintiffs had requested further and better particulars: “on each separate occasion alleged: (a) when, where and what circumstances did the first plaintiff allegedly drive the sedan carelessly; (b) who was in possession and control of the vehicle on each such occasion; (c) precisely what damage is alleged to have been sustained to the sedan on each such occasion.” -- 9 of 14 -- 10 [38] The defendants declined to provide the particulars sought. They indicated they were not able to provide the dates of each separate occasion of when, where and in what circumstance the first plaintiff drove the vehicle carelessly and thereby damaged it. The damage the motor vehicle sustained was the damage particularised in paragraph 2(e) of the counterclaim. It pleaded that the first defendant has been put to expense in the amount of $6698.50 in repairing the damage and particularised five dates, the name of a repair facility and an amount. [39] I consider that the defendant have adequately particularised the basis upon which they assert the first plaintiffs’ liability. They say they are unable to provide the dates of separate occasions of when, where and in what circumstance the first plaintiff drove the vehicle carelessly and thereby damaged it. It is clear enough that they assert that the court should infer from damage said to be evidenced in the five invoices particularised that the first plaintiff breached the implied term or legal duty they assert by causing or allowing the vehicle to be driven carelessly. [40] However it is, in my view, insufficient to simply plead the content of what I take to be five invoices from various repairers. The first plaintiff is entitled to particulars of what damage it is alleged was incurred by causing or allowing the vehicle to be driven carelessly, the ways in which it is alleged damage was caused and who it is alleged the first plaintiff caused or allowed to drive the vehicle in the way alleged. Number 6 [41] In its counterclaim, the defendants pleaded that while the first plaintiff was employed by the first defendant, he applied its funds without its consent for his private purposes. The particulars provided in the counterclaim consist of dates, a payee and an amount. There are about 300 entries. [42] The plaintiffs sought further and better particulars of this aspect of the counterclaim namely “particulars of the facts, matters and circumstances relied upon in support of the allegation that the first plaintiff applied as alleged the first defendant’s funds in respect of each of the entries contained in the particulars to paragraph 1(a) of the counterclaim. [43] The defendants responded that the facts, matters and circumstances were those evident from the details of the expenditures, particularised in the counterclaim and otherwise as evidenced by receipts and invoices documenting the expenditures full particulars of which had been provided to the plaintiffs during disclosure. [44] It is, I think, clear from the counterclaim that the defendants are asserting that each of the expenditures particularised involved using the funds of the first defendant, were for the first plaintiff’s private purposes and each was without its consent either express or implied. Discovery, if complete, should provide information about the content of the expenditure. If not, then it may be the defendants’ proof will fall short. I do not consider I should order the further and better particulars sought. Disclosure [45] The rule 444 letter of 2 June 2008 by the plaintiffs’ solicitors to the defendants’ solicitors referred to 6 specified classes of documents said not to have been -- 10 of 14 -- 11 disclosed. The application was in respect of all of them. However by the date of hearing the application only 3 remained for consideration namely: ƒ Minutes of directors and shareholders meetings for each defendant for the period 01 January 2002 to 31 December 2004; ƒ Records relating to the ownership, maintenance and repair of the motor vehicle referred to in paragraph 2 of the counterclaim; ƒ Credit card statements with respect to the business credit cards of the defendants for expenses of Bart Charles Mead and Thomas Alexander Saunders. [46] The documents referred to, if they exist, may be considered to be directly relevant to an allegation in issue in the pleadings. If they exist, they would in the normal course of events be in the possession and under the control of the defendants. In that event, the defendants are under a duty to disclose them. 3 Minutes [47] The defendants’ by their solicitors letter to the plaintiffs’ solicitors have said that there are no minutes of directors and shareholders meetings of each defendant for the period in question, apart from 3 previously disclosed. [48] The first plaintiff has deposed in his affidavit sworn 7 August 2008 and filed by leave on the hearing of application that during the period in question, the first defendant met for directors meetings usually monthly, occasionally every second month. The meetings were held only with director Bart Thomas Mead. He produced an agenda or typed notes for discussion and made handwritten notes on these documents as the meeting progressed. Reports regarding various matters generated by the Brisbane office of the third defendant were also produced by Mead at meetings. [49] Pursuant to the Corporations Act 2001 (Cth) section 251A, an obligation to keep minutes of proceedings and resolutions of meetings of a company, is imposed. Repair of motor vehicle [50] The defendants’ in their solicitors abovementioned letter of 7 August 2008 have said that there are no records relating to the ownership, maintenance and repair of the motor vehicle referred to in the counterclaim to be disclosed as there are no such records in existence. [51] No documents which appear to relate to the particulars in the counterclaim appear to have been disclosed. Ordinarily if the repairs or services particularised in the counterclaim by reference to a date, repairer or service provider, and an amount were carried out, an invoice or similar detailing them would be generated. 3 Uniform Civil Procedure Rules 1999 (Qld) rule 221. -- 11 of 14 -- 12 Credit card statements [52] The defendants have said there are no credit card statements on company or business credit cards of the defendants which relate to the practice of reimbursing credit card expenses of Thomas Alexander Saunders as their was no such practice during the specified period. [53] In the plaintiffs’ reply to the counterclaim, the plaintiffs assert that the practice of reimbursement of the Fenn’s by Sunshine was consistent with the practice of reimbursement of credit card expenses from Messrs Mead and Saunders who had credit cards in their names which they used for business and business entertainment purposes. The plaintiffs’ application [54] In the light of the letter of 7 August 2008 and the matters I have mentioned, the plaintiffs now seek an affidavit from the defendants pursuant to rule 223(2) of UCPR regarding the various documents that I have mentioned above. [55] Pursuant to rule 223(4) of UCPR such an order may be made only if “(a) there are special circumstances and the interests of justice require it; or (b) it appears there is an objective likelihood – (i) the duty to disclose has not been complied with; or (ii) a specified document or class of documents exists or existed and has passed out of the possession or control of the party.” [56] I consider the material before me establishes an objective likelihood that the duty to disclose has not been complied with or that documents of the nature discussed exist or existed. [57] It may be they have passed out of the possession or control of the defendants. Accordingly I order as follows: Within fourteen days of this order: 1. The first and third defendants file and serve an affidavit pursuant to rule 223(2) of the UCPR deposing to the following matters: (a)(i) Other than the documents disclosed in the defendants’ list of documents dated 9 January 2007, whether minutes of meetings of directors and shareholders of the defendants for the period 1 January 2002 to 31 December 2004 do not now exist or have never existed; and (ii) If the said minutes did exist but no longer exist, the circumstance in which the minutes ceased to exist; and (iii) If the said minutes exist or existed and have passed out of the possession or control of the defendants the circumstances in which they did so. -- 12 of 14 -- 13 (b)(i) Whether documents relating to the ownership, maintenance and repair of the motor vehicle referred to in paragraph 2 of the counterclaim do not now exist or have never existed; and (ii) If the said documents did exist but no longer exist, the circumstance in which the documents ceased to exist; and (iii) If the said documents exist or existed and have passed out of the possession or control of the defendants, the circumstances in which they did so. (c)(i) Whether credit card statements with respect to the business credit cards of the defendants’ for expenses of Bart Charles Mead and Thomas Alexander Saunders do not now exist or have never existed; and (ii)If the said credit card statements did exist but no longer exist, the circumstances in which the documents ceased to exist; and (iii)If the said credit card statements exist or existed and have passed out of the possession or control of the defendants, the circumstances in which they did so. 2. The defendants provide further and better particulars as follows: (a) With respect to paragraph 8(a) of the entry of appearance and defence, further and better particulars of who on behalf of the corporate entity the first defendant made any such promise in pre-contract negotiations, when and where any such promise or promises was or were made, whether any such promise was written or oral and if oral, what words were spoken. (b) With respect to paragraph 8(b) of the entry of appearance and defence, when and in what circumstances was each promise referred to therein made, who on behalf of the third defendant made each promise, whether the promise was in writing and if oral, what words were used. (c) With respect to paragraph 2 of the counterclaim: (i) what damage it is alleged was incurred by the first plaintiff causing or allowing the vehicle to be driven carelessly; (ii) the way or ways in which the first plaintiff caused the motor vehicle to be driven carelessly; (iii) the person or persons who were caused to drive the motor vehicle when it is alleged it was driven carelessly; (iv) the way or ways in which the first plaintiff allowed the motor vehicle to be driven carelessly; and (v) the person or persons who were allowed to drive the motor vehicle when it is alleged it was driven carelessly. -- 13 of 14 -- 14 3. The plaintiffs have leave to amend their claim and statement of claim filed on 19 January 2006 in the form of the second amended claim and statement of claim filed on 6 December 2007. 4. The defendants have leave to amend paragraph 2(d) of their counterclaim in the terms indicated in paragraph 16 of exhibit RCM3 to the affidavit of Raymond Charles Murphy filed by leave on 8 August 2008. 5. The parties attend, participate in and act reasonably and genuinely in a mediation to be conducted at Maroochydore, on or before 30 September 2008. 6. The first and third defendants pay the plaintiffs’ costs of the application: ƒ For further and better particulars regarding those matters on which it succeeded. Costs of the application for further discovery are costs in the cause. The order is silent as to costs of the application to amend the claim, statement of claim and counterclaim. -- 14 of 14 --