Borg & Ors v Northern Rivers Finance & Ors [2004] QSC 28

SUPREME COURT OF QUEENSLAND CITATION: Borg & Ors v Northern Rivers Finance & Ors [2004] QSC 028 PARTIES: ANDREW JAMES BORG (first plaintiff) JASON MARK BYRNE (second plaintiff) ROBERT STUART CHRISTENSEN (third plaintiff) GLEN ANGELLO COPPO (fourth plaintiff) LAURENCE ROY DIXON (fifth plaintiff) IAN ANTHONY GLAZEBROOK (sixth plaintiff) MICHAEL CHARLES GOTTKE (seventh plaintiff) BRIAN KENNETH HINCHEY (eighth plaintiff) ROBERT MICHAEL McCLOY (ninth plaintiff) NANCY MARY MONTGOMERY (tenth plaintiff) HENRY ALEXANDER MONTGOMERY (eleventh plaintiff) GORDON EDWARD PARISH (twelfth plaintiff) GORDON JOHN REID (thirteenth plaintiff) JAMES MICHAEL ROACH (fourteenth plaintiff) GLEN ALAN SCOTT (fifteenth plaintiff) GASPAR SICH (sixteenth plaintiff) NEIL GREGORY CAMERON (seventeenth plaintiff) COLIN SCOTT PURDIE (eighteenth plaintiff) GEOFFREY DAVID RAPSON (nineteenth plaintiff) DREW KINGSLEY WOODMAN (twentieth plaintiff) NIKO JOZINOVIC (twenty-first plaintiff) v NORTHERN RIVERS FINANCE PTY LTD -- 1 of 17 -- 2 (first defendant) INVESTMENT LICENCING PTY LTD (second defendant) NORTHEN RIVERS PLANTATION MANAGEMENT LTD (third defendant) DARREN PAWSKI and RALPH MARCEL NUNIS trading as “SecurInvest Accounting Services” (fourth defendant) DREW GRAHAM FRANCIS (fifth defendant) BASE METALS EXPLORATION NL (sixth defendant) EXPLORERS AND PROSPECTORS FINANCE LIMITED (seventh defendant) DARREN CHARLES HORNER (eighth defendant) JOHN MEARES (ninth defendant) BANALASTA OIL PLANTATION (tenth defendant) SAFEINVEST PTY LTD (eleventh defendant) KAREN EVANS (twelfth defendant) PLANTATION EQUITY PTY LTD (thirteenth defendant) FILE NO/S: SC No 191 of 2000 DIVISION: Trial Division PROCEEDING: Civil Trial ORIGINATING COURT: Supreme Court at Mackay DELIVERED ON: 27 February 2004 DELIVERED AT: Brisbane HEARING DATE: 11 Sept 2003 JUDGE: Mackenzie J ORDER: As per Schedule attached to reasons CATCHWORDS: PROCEDURE – COSTS – SCALES OF COST – SCALE APPLICABLE – multiple plaintiffs – where aggregation of individual sums in issue exceed District Court jurisdictional limit – where individual sums did not – whether aggregated sum is a basis for ordering a higher scale of costs PROCEDURE – COSTS – GENERAL RULE – COSTS -- 2 of 17 -- 3 FOLLOW THE EVENT – CO-DEFENDANTS – general principles – ‘Bullock order’ – action succeeding against one defendant only – whether unsuccessful defendant to pay costs to be paid to successful defendant – whether in category of cases where a ‘Bullock order’ should be made PROCEDURE – JUDGMENTS AND ORDERS – INTEREST ON JUDGMENTS – IN GENERAL – whether interest payable on monies obtained and expended only by participation in tax minimisation scheme PROCEDURE – COSTS – TAXATION – PARTICULAR ITEMS – COUNSEL’S FEES – BRIEF ON HEARING – ALLOWANCE AND ASSESSMENT GENERALLY – adjournment – costs ‘thrown away’ – where parties in dispute as to issues – where late change of solicitors Uniform Civil Procedure Rules, r 65, r 698 Almeida v Universal Dye Works Pty Ltd (No 2) [2001] NSWCA 156, cited Canterbury Municipal Council v Taylor (No 2) [2002] NSWCA 96, cited Gould v Vaggelas (1984) 157 CLR 215, applied Sved v Council of the Municipality of Warringah (1998) NSW ConvR 55-842, cited COUNSEL: P E Hack SC for the plaintiffs B D O’Donnell QC, with T Sullivan for the fourth defendant C Wilson for the tenth and thirteenth defendants No appearance for the eighth defendant SOLICITORS: Macrossan and Amiet for the plaintiffs Phillips Fox for the fourth defendant Mullins and Mullins for the tenth and thirteenth defendants [1] MACKENZIE J: The judgments and orders are set out in the schedule annexed to these reasons. For reasons explained in reasons delivered on 5 November 2003 there were some issues that remained in dispute when draft orders for the purpose of giving effect to the reasons of 9 May 2003 were exchanged. These reasons indicate why the orders have taken the form in the schedule. Basis of assessing costs [2] There was an issue whether costs ought to be allowed to individual plaintiffs on the Supreme Court scale, as proposed on their behalf. None of the individual sums in issue exceeded the District Court jurisdictional limitation; some were within Magistrates Courts jurisdictional limits. It was common ground that the proceedings relied on UCPR 65 for joinder of the various parties. It was not -- 3 of 17 -- 4 suggested by anyone that the relief sought fell exclusively within the jurisdiction of the Supreme Court. The 10th and 13th defendants accepted that costs against them should be ordered on a District Court basis. The 4th defendants submitted that the costs orders against them should be on the Magistrates Court scale because none of the amounts recoverable against them exceeded the jurisdictional limit for the Magistrates Court. UCPR 698(2) was relied on. It was submitted that subject to an order to the contrary (UCPR 698(1)), costs must be ordered on that basis if the amount recoverable was less than the upper jurisdictional limit for the Magistrates Court. [3] I have come to the conclusion that orders should be made that the costs recoverable by the plaintiffs should be assessed on the District Court scale. In my view, proceeding in the Magistrates Court would have been inappropriate in the circumstances of the case. The costs recoverable by the defendants should be on the Supreme Court scale since they became involved in Supreme Court actions by virtue of the plaintiffs’ choice to litigate in the Supreme Court. [4] The principal argument on behalf of the plaintiffs in favour of Supreme Court costs was that there was one action, brought by a number of parties. Aggregation of the sums in issue exceeded the District Court jurisdictional limit. It was not a case where separate proceedings were ordered to be joined and heard together. In my view authorities under rules permitting class actions and providing for a costs regime applicable to them are not decisive. No authority was cited justifying use of the aggregated sum sought to be recovered in proceedings under UCPR 65 as the basis for ordering a higher scale of costs to be assessed. Each claim was essentially separate, although there was obvious convenience in hearing them together, and obvious inconvenience in doing otherwise. Nevertheless, in my view there is no reason demonstrated why the costs should be on the Supreme Court scale in each instance where the plaintiffs have recovered damages. Costs of proceedings in other courts [5] I am not prepared to make orders with respect to costs of proceedings in other courts at this time, principally because of the insufficiency of information about them. In principle, if the issues in them are similar to those in the present proceedings they will have become unnecessary. In the absence of agreement between the parties, the issue of the costs of those proceedings will have to be agitated in the courts in which the proceedings were instituted. I do not propose to say any more on the issue since I cannot pre-empt any necessary consideration of the issue in those proceedings in another court. However, one would hope that further costs could be avoided by agreement being reached. Bullock Order [6] The plaintiffs also seek, as part of the costs order against the 4th and 8th defendants, an order that those costs include any costs ordered to be paid by the respective plaintiffs to the 10th or 13th defendants to be assessed on a standard basis on the -- 4 of 17 -- 5 Supreme Court scale. It was submitted that a Bullock type order was appropriate in the circumstances of the case. [7] This was resisted by the 4th defendants on whose behalf it was submitted that it was not an appropriate case for such an order. It was submitted that it fell outside the category of cases in which an order of that kind would ordinarily be made. [8] In Gould v Vaggelas (1984) 157 CLR 215, at 230, Gibbs CJ, having noted that it was sometimes said that a court may make a Bullock order where it was reasonable in all the circumstances for the plaintiff to bring the action against two or more defendants, said the following: “In my respectful opinion, however, the mere fact that the joinder of two defendants was reasonable does not mean that the unsuccessful defendant should be ordered to pay, directly or indirectly, the costs of the successful defendant. Obviously a judge should make a Bullock order only if he considers it just that the costs of the successful defendant should be borne by the unsuccessful defendant, and, if nothing that the unsuccessful defendant has said or done has led the plaintiff to sue the other defendant, who ultimately was held not to be liable, it is difficult to see any reason why the unsuccessful defendant should be required to pay for the plaintiff’s error or overcaution.” [9] The 4th defendant also relied on a statement of principle in the judgment of Giles J in Sved v Council of the Municipality of Warringah (1998) NSW ConvR 55-842 at 56, 605, referred to and expressly approved by the New South Wales Court of Appeal in Almeida v Universal Dye Works Pty Ltd (No 2) [2001] NSWCA 156 and Canterbury Municipal Council v Taylor (No 2) [2002] NSWCA 96. It was submitted for the 4th defendant that the present case was one where the liability of the 10th and 13th defendants was vicarious since the principal liability was that of the 4th and 8th defendants. Further, the action did not fail against the 10th and 13th defendants because of the 4th and 8th defendants saying or doing anything in the relevant sense cause the plaintiffs to sue the 10th and 13th defendants. It failed for reasons given in paragraphs [100] to [106] of the reasons of 9 May 2003. [10] In my view the case is not within the category of cases where a Bullock order should be made. Interest [11] According to the plaintiffs’ schedule of damages in respect of the Northern Rivers and Base Metals schemes, the methodology that should be applied is that individual plaintiffs should recover a sum comprising the following components: (a) amounts of a capital nature paid to the scheme promoters; (b) non tax deductible portions of amounts paid to the scheme promoter; (c) interest at 5% on the total of (a) and (b); less (d) interest on monies retained by the plaintiff from the taxation return. -- 5 of 17 -- 6 [12] In respect of Banalasta Oil, paragraph (b) became the amount paid to the scheme promoters for which a tax deduction was not granted, which in some cases was zero. In all cases, there was no penalty imposed nor interest claimed by the ATO. While those categories are included in the schedule as part of the plaintiffs’ methodology of putting the plaintiffs back in the same position as if they had not entered into the schemes, each is zero. [13] The 10th and 13th defendants who are not directly affected by this issue do not take issue with the methodology. On behalf of the 4th defendant, issue was taken with the basis of the claim under paragraph (b) in so far as it was said to be based on the premise that a plaintiff had lost the use of that part of the tax refund moneys paid to the scheme promoter and was entitled to interest on that sum. The argument on behalf of the 4th defendant was that without participation in the scheme, a tax refund would not have been received from the ATO. One element of the scheme was that the amount payable to the promoter was to be paid from the ATO refund. In order to get the refund, the terms of the scheme had to be performed, including providing payment to the promoter. If the plaintiff had not participated in the scheme, he would not have received a refund cheque. In reality the plaintiff had the use of the ATO’s money and it was therefore misconceived to claim interest on the basis that the plaintiff had lost the use of his moneys over the whole period. There was no loss and damage in that respect for which compensation by way of interest might be claimed. It was conceded that where moneys had been refunded to the ATO, an interest claim was maintainable from the date of repayment. [14] The plaintiffs disputed that payment of moneys to the promoters was the ATO’s money, not the plaintiffs’. It was submitted that once the ATO had paid it, it was the plaintiffs’ money. The proper approach was to look at who expended the money. [15] It is self-evident that the money paid was the plaintiffs’ but, in my view, that is not decisive as to whether the plaintiffs are entitled to be compensated for the loss of its use. The reality is that the money was used to discharge an obligation that was an integral part of the scheme and would not have otherwise been available for the plaintiff to use for his own purposes. In the circumstances I accept the 4th and 8th defendants’ approach, the theory of which is set out in calculations in the schedule to a submission dated 16th October 2003, rather than that in the plaintiffs’ schedule, both of which have been marked as Exhibits 171 and 172 respectively, so that they are formally on the record. Costs of adjournment 1 September 2003 [16] The history of the matter since reasons for judgment were delivered on the plaintiffs’ claims against the defendants on 9 May 2003 is fully set out in the reasons delivered on 5 November 2003 for refusing to allow the late amendment to the statement of claim. I will not repeat them. Costs orders in respect of the adjournment remain to be made. -- 6 of 17 -- 7 [17] It is apparent from the history that notwithstanding the attempt to have outstanding issues finalised, wholly or as far as possible, by agreement between the parties in time for them to be disposed of on 1 September 2003, the terms of the orders to implement the findings in the reasons for judgment were not finalised. The counter- claim did not concern the 4th and 8th defendants if leave to amend the pleadings to seek indemnity or damages in the sum awarded to the 13th defendant was not granted. However, it was a live issue until such application was disposed of. [18] With respect to settling the terms of the orders there is little evidence that the plaintiffs did not attempt to progress the matter. It is apparent that the solicitors for both the 4th and 8th defendants and 10th and 13th defendants did not respond in a timely way. However, some of the indecision may have been contributed to by the issue of an amendment foreshadowing (at that time) a claim for indemnity from the 4th and 8th defendants which had never been circulated in the form of a draft. Its general nature was no secret and by 14 August 2003 the concept had been explained to the 4th and 8th defendants. [19] Notwithstanding the circumstances explained in paragraph [12] of the reasons of 5 November 2003, nothing more happened in relation to the proposed amendment before the hearing on 1 September 2003. By that date the original solicitors for the 4th and 8th defendants were in dispute with their clients over fees and new solicitors, apparently engaged at a late stage, appeared without the benefit of any information or material that could be used to progress outstanding matters. On that day the plaintiffs’ formulation of the amendment changed to a claim for damages against the 4th and 8th defendants rather than an indemnity, including costs payable by the plaintiffs to the 13th defendant. [20] It is literally correct to say, as the 4th defendant’s written submissions do, that there was no express direction that the terms of the judgment and orders be relisted on 1 September 2003. However, it had been reasonably clear that the expectation was that such matters would be resolved before that date and efforts had been made by my Associate with a view to trying to find out whether there were any matters which needed to be relisted prior to that date by the court, so that the counterclaim might proceed without complications. As matters had developed, and in particular because of what had been foreshadowed about the amendment which might impact on the form of the judgment, and the failure to reach agreement on other aspects of the terms of the judgment and orders, it must have been obvious to all concerned that it would not pass without attention on 1 September 2003 that agreement had not been reached. As it turned out, the 4th defendant was represented, notwithstanding that the counter claim, as pleaded then, did not affect it. The purpose of the representative being there was said to be to oppose a foreshadowed amendment and a concern that relief might be sought against the 4th defendant. It was understood that possible orders might be formalised. Senior counsel for the 4th defendant believed that the court may be asked to make orders to give effect to the reasons for judgment of 9 May 2003. [21] It also seemed to be the case that, on 1 September 2003, counsel for the plaintiffs was not inclined to seek an amendment immediately, preferring initially to merely foreshadow that he would pursue it if the plaintiffs were unsuccessful in defending -- 7 of 17 -- 8 the counterclaim made by the 13th defendant. It was only as discussion developed that the mutated form of amendment was propounded. [22] With respect to the counterclaim, the 4th defendant had come prepared to proceed and had witnesses available. The 8th defendant did not appear, notwithstanding being served. The complication caused by the potential for the shape of the case to change if there was a late amendment to the pleadings and the inability of the 4th and 8th defendants, because the need for a change of representation, to deal with that issue were the effective causes of the inability to proceed with the counterclaim on that day, or achieve anything else. [23] The situation with regard to costs is somewhat complex. However, it seems to me that the justice of the case requires the 13th defendant to have an order for costs thrown away by the adjournment of the hearing of the counter claim on 1 September 2003. The group of plaintiffs involved in the counterclaim should bear 50% of the costs thrown away by the adjournment. The plaintiffs should bear an equal proportion each of the 50% assigned to their side of the record. The 4th and 8th defendants also should bear 50% of the costs. In my view, the 4th and 8th defendants should be jointly and severally liable for this 50%. There was a submission by the 10th and 13th defendants that the costs be paid on an indemnity basis. Ordinarily, that submission would have had some attraction. Failure to make substantial progress in a timely way in connection with the terms of orders to implement the reasons of 9 May 2003 was contributed to by them. That, in turn, contributed to the abortive nature of the proceedings as a whole. In my view, while it is necessarily a creative and perhaps unscientific approach, it is appropriate to limit costs to the standard basis to allow for this. Costs of hearing, 11 September 2003 [24] On this occasion, there was a variety of issues explored. They included the application for leave to amend, the costs issues dealt with above, and whether judgments in respect of the first and second schemes should be made. On the last, I took the view that it was most convenient to make all outstanding orders at the same time. [25] On the costs issues, the 10th and 13th defendants succeeded except in respect of indemnity costs and the making of costs orders in other proceedings. They also succeeded in resisting the amendment of the pleadings. [26] The 4th defendant succeeded against the plaintiffs on the basis for assessing interest and in resisting the Bullock order. It resisted successfully the application for costs on the Supreme Court scale, but did not achieve a costs order on the Magistrates Court scale. It also succeeded in relation to the amendment in which it had an interest. As against the 10th and 13th defendants, it was ordered to pay part of the costs thrown away by the adjournment on 1 September 2003. -- 8 of 17 -- 9 [27] In view of the difficulty of dissecting the costs of the hearing by reference to issues, global orders should be made. Bearing in mind the relativities of success, the orders are that each of the plaintiffs pay, according to the same proportion in paragraph [23], 80% of the 10th and 13th defendants’ costs of this hearing and 60% of the 4th defendant’s costs, to be assessed. -- 9 of 17 -- SCHEDULE In these orders, the symbols (a), (b), (c) and (d) have the following meanings: (a) amounts paid to scheme promoters; (b) non tax deductible portion of (a); (c) interest on (a) from date of payment, plus interest on (b), if any, from date of repayment to date of judgment; (d) interest retained from tax refund. Upon the parties submitting an agreed draft incorporating the sums calculated according to the orders, such draft will be installed and become the formal orders. The orders are as follows: First Plaintiff 1. The fourth defendant pay to the first plaintiff in respect of the first scheme and second scheme an amount comprising the sum of (a), (b) and (c), less (d). 2. Judgment be entered for the tenth defendant and the thirteenth defendant against the first plaintiff in relation to the third scheme and the first plaintiff’s claim against the tenth defendant and the thirteenth defendant be dismissed. 3. The fourth defendant pay to the first plaintiff his costs of and incidental to his claims against them to be assessed on the standard basis on the District Court scale. 4. In respect of the third scheme, judgment be entered for the first plaintiff against the fourth defendant in an amount comprising the sum of (a), (b) and (c), less (d). 5. The first plaintiff pay to the tenth defendant and the thirteenth defendant their costs of and incidental to the first plaintiff’s claims against them to be assessed on the standard basis on the Supreme Court scale. Second Plaintiff 6. The fourth defendant pay to the second plaintiff in respect of the first scheme and second scheme an amount comprising the sum of (a), (b) and (c), less (d). 7. The fourth defendant, the eighth defendant, the tenth defendant and the thirteenth defendant pay to the second plaintiff in respect of the third scheme an amount comprising the sum of (a), (b) and (c), less (d). 8. There be judgment for the second plaintiff on the thirteenth defendant’s counterclaim against the second plaintiff and the counterclaim against the second plaintiff be dismissed. 9. It is declared that the loan agreement between the second plaintiff and the thirteenth defendant referred to in paragraph 200A of the second amended statement of claim filed 21 January 2002 is void ab initio. 10. The fourth defendant and the eighth defendant pay to the second plaintiff his costs of and incidental to his claims against them to be assessed on the standard basis on the District Court scale. 11. The tenth defendant and the thirteenth defendant pay to the second plaintiff his costs of and incidental to his claims against them to be assessed on the standard basis on the District Court scale. -- 10 of 17 -- 2 12. The thirteenth defendant pay to the second plaintiff his costs of and incidental to the thirteenth defendant’s counterclaim against him to be assessed on the standard basis on the District Court scale. Fourth Plaintiff 13. Judgment be entered for the tenth defendant and the thirteenth defendant against the fourth plaintiff in relation to the third scheme and the fourth plaintiff’s claim against the tenth defendant and the thirteenth defendant be dismissed. 14. In respect of the third scheme, judgment be entered for the fourth plaintiff against the fourth defendant and the eighth defendant in an amount comprising the sum of (a), (b) and (c), less (d). 15. The fourth defendant and the eighth defendant pay to the fourth plaintiff his costs of and incidental to his claims against them to be assessed on the standard basis on the District Court scale. 16. The fourth plaintiff pay to the tenth defendant and the thirteenth defendant their costs of and incidental to his claims against them to be assessed on the standard basis on the Supreme Court scale. Fifth Plaintiff 17. The fourth defendant and eighth defendant pay to the fifth plaintiff in respect of the second scheme an amount comprising the sum of (a), (b) and (c) less (d). 18. The fourth defendant, the eighth defendant, the tenth defendant and the thirteenth defendant pay to the fifth plaintiff in respect of the third scheme an amount comprising the sum of (a), (b) and (c), less (d). 19. There be judgment for the fifth plaintiff on the thirteenth defendant’s counterclaim against the fifth plaintiff and the counterclaim against the fifth plaintiff be dismissed. 20. It is declared that the loan agreement between the fifth plaintiff and the thirteenth defendant referred to in paragraph 330A of the second amended statement of claim filed 21 January 2002 is void ab initio. 21. The fourth defendant and the eighth defendant pay to the fifth plaintiff his costs of and incidental to his claims against them to be assessed on the standard basis on the District Court scale. 22. The tenth defendant and the thirteenth defendant pay to the fifth plaintiff his costs of and incidental to his claims against them to be assessed on the standard basis on the District Court scale. 23. The thirteenth defendant pay to the fifth plaintiff his costs of and incidental to the thirteenth defendant’s counterclaim against him to be assessed on the standard basis on the District Court scale. Sixth Plaintiff 24. The fourth defendant, the eighth defendant, the tenth defendant and the thirteenth defendant pay to the sixth plaintiff in respect of the third scheme an amount comprising the sum of (a), (b) and (c), less (d). 25. There be judgment for the sixth plaintiff on the thirteenth defendant’s counterclaim against the sixth plaintiff and the counterclaim against the sixth plaintiff be dismissed. -- 11 of 17 -- 3 26. It is declared that the loan agreement between the sixth plaintiff and the thirteenth defendant referred to in paragraph 361A of the second amended statement of claim filed 21 January 2002 is void ab initio. 27. The fourth defendant, the eighth defendant, the tenth defendant and the thirteenth defendant pay to the sixth plaintiff his costs of and incidental to his claims against them to be assessed on the standard basis on the District Court scale. 28. The thirteenth defendant pay to the sixth plaintiff his costs of the thirteenth defendant’s counterclaim against him to be assessed on the standard basis on the District Court scale. Seventh Plaintiff 29. The fourth defendant and the eighth defendant pay to the seventh plaintiff in respect of the second scheme an amount comprising (a), (b) and (c), less (d). 30. Judgment be entered for the tenth defendant and the thirteenth defendant against the seventh plaintiff in relation to the third scheme and the seventh plaintiff’s claim against the tenth defendant and the thirteenth defendant be dismissed. 31. In respect of the third scheme judgment be entered for the seventh plaintiff against the fourth defendant and eighth defendant in an amount comprising the sum of (a), (b) and (c), less (d). 32. The fourth defendant and the eighth defendant pay to the seventh plaintiff his costs of and incidental to his claims against them to be assessed on the standard basis on the District Court scale. 33. The seventh plaintiff pay to the tenth defendant and the thirteenth defendant their costs of and incidental to the seventh plaintiff’s claim against them to be assessed on the standard basis on the Supreme Court scale. Eighth Plaintiff 34. The fourth defendant, the eighth defendant, the tenth defendant and the thirteenth defendant pay to the eighth plaintiff in respect of the third scheme an amount comprising the sum of (a), (b) and (c), less (d). 35. There be judgment for the eighth plaintiff on the thirteenth defendant’s counterclaim against the eighth plaintiff and the counterclaim against the eighth plaintiff be dismissed. 36. It is declared that the loan agreement between the eighth plaintiff and the thirteenth defendant referred to in paragraph 452A of the second amended statement of claim filed 21 January 2002 is void ab initio. 37. The fourth defendant, the eighth defendant, the tenth defendant and the thirteenth defendant pay to the eighth plaintiff his costs of and incidental to his claims against them to be assessed on the standard basis on the District Court scale. 38. The thirteenth defendant pay to the eighth plaintiff his costs of and incidental to the thirteenth defendant’s counterclaim against him to be assessed on the standard basis on the District Court scale. -- 12 of 17 -- 4 Tenth Plaintiff 39. The claim by the tenth plaintiff against the fourth defendant in respect of the first scheme be dismissed. 40. The fourth defendant and the eighth defendant pay to the tenth plaintiff in respect of the second scheme an amount comprising the sum of (a), (b) and (c), less (d). 41. The fourth defendant, the eighth defendant, the tenth defendant and the thirteenth defendant pay to the tenth plaintiff in respect of the third scheme an amount comprising the sum of (a), (b) and (c), less (d). 42. There be judgment for the tenth plaintiff on the thirteenth defendant’s counterclaim against the tenth plaintiff and the counterclaim against the tenth plaintiff be dismissed. 43. It is declared that the loan agreement between the tenth plaintiff and the thirteenth defendant referred to in paragraph 578A of the second amended statement of claim filed 21 January 2002 is void ab initio. 44. The tenth plaintiff pay to the fourth defendant their costs of and incidental to the proceedings against them in respect of the first scheme to be assessed on the standard basis on the Supreme Court scale. 45. The fourth defendant and the eighth defendant pay to the tenth plaintiff her costs of and incidental to her claims against them in respect of the second scheme and the third scheme to be assessed on the standard basis on the District Court scale. 46. The tenth defendant and the thirteenth defendant pay to the tenth plaintiff her costs of and incidental to her claims against them in respect of the third scheme to be assessed on the standard basis on the District Court scale. 47. The thirteenth defendant pay to the tenth plaintiff her costs of and incidental to the thirteenth defendant’s counterclaim against her to be assessed on the standard basis on the District Court scale. Eleventh Plaintiff 48. The claim by the eleventh plaintiff against the fourth defendant in respect of the first scheme be dismissed. 49. The eleventh plaintiff pay to the fourth defendant their costs of and incidental to the eleventh plaintiff’s proceedings against them to be assessed on the standard basis on the Supreme Court scale. Twelfth Plaintiff 50. The fourth defendant and eighth defendant pay to the twelfth plaintiff in respect of the second scheme an amount comprising the sum of (a), (b) and (c), less (d). 51. Judgment be entered for the tenth defendant and the thirteenth defendant against the twelfth plaintiff in relation to the third scheme and the twelfth plaintiff’s claim against the tenth defendant and the thirteenth defendant be dismissed. 52. The fourth defendant and eighth defendant pay to the twelfth plaintiff his costs of and incidental to his claims against them in respect of the second scheme and the third scheme to be assessed on the standard basis on the District Court scale. -- 13 of 17 -- 5 53. In respect of the third scheme, judgment be entered for the twelfth plaintiff against the fourth defendant and eighth defendant in an amount comprising the sum of (a), (b) and (c), less (d). 54. The twelfth plaintiff pay to the tenth defendant and the thirteenth defendant their costs of and incidental to the twelfth plaintiff’s claim against them to be assessed on the standard basis on the Supreme Court scale. Thirteenth Plaintiff 55. The fourth defendant and the eighth defendant pay to the thirteenth plaintiff in respect of the second scheme an amount comprising the sum of (a), (b) and (c), less (d). 56. The fourth defendant, the eighth defendant, the tenth defendant and the thirteenth defendant pay to the thirteenth plaintiff in respect of the third scheme an amount comprising the sum of (a), (b) and (c), less (d). 57. There be judgment for the thirteenth plaintiff on the thirteenth defendant’s counterclaim against the thirteenth plaintiff and the counterclaim against the thirteenth plaintiff be dismissed. 58. It is declared that the loan agreement between the thirteenth plaintiff and the thirteenth defendant referred to in paragraph 724A of the second amended statement of claim filed 21 January 2002 is void ab initio. 59. The fourth defendant and the eighth defendant pay to the thirteenth plaintiff his costs of and incidental to his claims against them to be assessed on the standard basis on the District Court scale. 60. The tenth defendant and the thirteenth defendant pay to the thirteenth plaintiff his costs of and incidental to his claims against them to be assessed on the standard basis on the District Court scale. 61. The thirteenth defendant pay to the thirteenth plaintiff his costs of and incidental to the thirteenth defendant’s counterclaim against him to be assessed on the standard basis on the District Court scale. Fourteenth Plaintiff 62. The fourth defendant and the eighth defendant pay to the fourteenth plaintiff in respect of the second scheme an amount comprising the sum of (a), (b) and (c), less (d). 63. The fourth defendant, the eighth defendant, the tenth defendant and the thirteenth defendant pay to the fourteenth plaintiff in respect of the third scheme an amount comprising the sum of (a), (b) and (c), less (d). 64. There be judgment for the fourteenth plaintiff on the thirteenth defendant’s counterclaim against the fourteenth plaintiff and the counterclaim against the fourteenth plaintiff be dismissed. 65. It is declared that the loan agreement between the fourteenth plaintiff and the thirteenth defendant referred to in paragraph 783A of the second amended statement of claim filed 21 January 2002 is void ab initio. 66. The fourth defendant and the eighth defendant pay to the fourteenth plaintiff his costs of and incidental to his claims against them to be assessed on the standard basis on the District Court scale. -- 14 of 17 -- 6 67. The tenth defendant and the thirteenth defendant pay to the fourteenth plaintiff his costs of and incidental to his claims against them to be assessed on the standard basis on the District Court scale. 68. The thirteenth defendant pay to the fourteenth plaintiff his costs of and incidental to the thirteenth defendant’s counterclaim against him to be assessed on the standard basis on the District Court scale. Fifteenth Plaintiff 69. The fourth defendant pay to the fifteenth plaintiff in respect of the second scheme an amount comprising the sum of (a), (b) and (c), less (d). 70. The fourth defendant pay to the fifteenth plaintiff his costs of and incidental to the claims against them to be assessed on the standard basis on the District Court scale. Sixteenth Plaintiff 71. Judgment be entered for the tenth defendant and the thirteenth defendant against the sixteenth plaintiff in relation to the third scheme and the sixteenth plaintiff’s claim against the tenth defendant and the thirteenth defendant be dismissed. 72. In respect of the third scheme, judgment be entered for the sixteenth plaintiff against the fourth defendant and eighth defendant in an amount comprising the sum of (a), (b) and (c), less (d). 73. The fourth defendant and eighth defendant pay to the sixteenth plaintiff his costs of and incidental to the claims against them to be assessed on the standard basis on the District Court scale. 74. The sixteenth plaintiff pay to the tenth defendant and the thirteenth defendant their costs of and incidental to the sixteenth plaintiff’s claim against them to be assessed on the standard basis on the Supreme Court scale. Seventeenth Plaintiff 75. The fourth defendant and eighth defendant pay to the seventeenth plaintiff in respect of the second scheme an amount comprising the sum of (a), (b) and (c), less (d). 76. Judgment be entered for the tenth defendant and the thirteenth defendant against the seventeenth plaintiff in relation to the third scheme and the seventeenth plaintiff’s claim against the tenth defendant and the thirteenth defendant be dismissed. 77. In respect of the third scheme judgment be entered for the seventeenth plaintiff against the fourth defendant and eighth defendant in an amount comprising the sum of (a), (b) and (c), less (d). 78. The fourth defendant and eighth defendant pay to the seventeenth plaintiff his costs of and incidental to the claims against them to be assessed on the standard basis on the District Court scale. 79. The seventeenth plaintiff pay to the tenth defendant and the thirteenth defendant their costs of and incidental to the seventeenth plaintiff’s claim against them to be assessed on the standard basis on the Supreme Court scale. -- 15 of 17 -- 7 Eighteenth Plaintiff 80. Judgment be entered for the fourth defendant, the eighth defendant, the tenth defendant and the thirteenth defendant against the eighteenth plaintiff in relation to the third scheme and the eighteenth plaintiff’s claim against the fourth defendant, the eighth defendant, the tenth defendant and the thirteenth defendant be dismissed. 81. The eighteenth plaintiff pay to the fourth defendant, the eighth defendant, the tenth defendant and the thirteenth defendant their costs of and incidental to the eighteenth plaintiff’s claims against them to be assessed on the standard basis on the Supreme Court scale. Nineteenth Plaintiff 82. Judgment be entered for the tenth defendant and the thirteenth defendant against the nineteenth plaintiff in relation to the third scheme and the nineteenth plaintiff’s claim against the tenth defendant and the thirteenth defendant be dismissed. 83. The fourth defendant and eighth defendant pay to the nineteenth plaintiff his costs of and incidental to his claims against them to be assessed on the standard basis on the District Court scale. 84. In respect of the third scheme judgment be entered for the nineteenth plaintiff against the fourth defendant and eighth in an amount comprising the sum of (a), (b) and (c), less (d). 85. The nineteenth plaintiff pay to the tenth defendant and the thirteenth defendant their costs of and incidental to the nineteenth plaintiff’s claim against them together with any costs ordered to be paid by the nineteenth plaintiff to the tenth defendant or to the thirteenth defendant to be assessed on the standard basis on the Supreme Court scale. Twenty-first Plaintiff 86. Judgment be entered for the tenth defendant and the thirteenth defendant against the twenty-first plaintiff in relation to the third scheme and the twenty- first plaintiff’s claim against the tenth defendant and the thirteenth defendant be dismissed. 87. In respect of the third scheme judgment be entered for the twenty-first plaintiff against the fourth defendant and eighth defendant in an amount comprising the sum of (a), (b) and (c), less (d). 88. The fourth defendant and eighth defendant pay to the twenty-first plaintiff his costs of and incidental to his claims against them to be assessed on the standard basis on the District Court scale. 89. The twenty-first plaintiff pay to the tenth defendant and the thirteenth defendant their costs of and incidental to the twenty-first plaintiff’s claim against them to be assessed on the standard basis on the Supreme Court scale. Other Costs Orders 90. The fourth defendant and the eighth defendant pay one half and each of the first, fourth, seventh, twelfth, sixteenth, seventeenth, eighteenth, nineteenth and twenty first plaintiffs pay one eighteenth of the costs thrown away by the adjournment of the trial on 1 September 2003 to the tenth and thirteenth defendants, to be assessed on the standard basis on the Supreme Court scale. -- 16 of 17 -- 8 91. The first, fourth, seventh, twelfth, sixteenth, seventeenth, eighteenth, nineteenth and twenty first plaintiffs pay 80% of the tenth and thirteenth defendants’ costs, and 60% of the fourth defendant’s costs the hearing on 11 September 2003, on the standard basis on the Supreme Court scale, each plaintiff to be liable to pay one ninth of those sums. -- 17 of 17 --