In the matter of Contact 121 Pty Ltd and Contact 121 (Qld) Pty Ltd [2011] NSWSC 979 (16 August 2011)

Last Updated: 30 August 2011

Supreme Court New South Wales

Case Title:	In the matter of Contact 121 Pty Ltd and Contact 121 (Qld) Pty Ltd
Medium Neutral Citation:	[2011] NSWSC 979
Hearing Date(s):	Friday, 12 August 2011
Decision Date:	16 August 2011
Jurisdiction:	Equity Division - Corporations List
Before:	White J
Decision:	Refer to para [54] of judgment.
Catchwords:	PRACTICE AND PROCEDURE - costs - rule as to costs where a proceeding is resolved without a hearing - where orders made by consent - court will not try an hypothetical action to determine who would have succeeded in order to decide questions of costs - consent orders represented a compromise of the parties' position PRACTICE AND PROCEDURE - interest - where parties agreed that defendants would purchase plaintiffs shares at price determined by valuation - whether interest payable on unpaid purchase price - whether consent order for payment of purchase price is a judgment debt - whether consent order for payment of purchase price an order for payment of money - defendants' obligation to pay money and plaintiffs' obligations to transfer shares dependent and concurrent obligations - purchase price not payable except against the receipt of duly executed share transfers and share certificates - claim for interest rejected
Legislation Cited:	Corporations Act 2001 (Cth) Civil Procedure Act 2005
Cases Cited:	Heydon v NRMA Limited (No 2) [2001] NSWCA 445; (2001) 53 NSWLR 600 Rhodes v Fletcher [2002] NSWSC 637 McDonald v Dennys Lascelles [1933] HCA 25; (1933) 48 CLR 457 at 475-476; and Sunbird Plaza Pty Ltd v Maloney [1988] HCA 11; (1988) 166 CLR 245 Re Minister for Immigration & Ethnic Affairs (Cth); Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 662 ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548
Texts Cited:
Category:	Costs
Parties:	Joseph Tawfik (1st Plaintiff) Genevieve Louise Tawfik (2nd Plaintiff) Contact 121 Pty Ltd (1st Defendant) Contact 121 (Qld) Pty Ltd (2nd Defendant) Martin Bruce Bill (3rd Defendant) Wayne Bevin Boden (4th Defendant)
Representation
- Counsel:	I M Jackman SC (Plaintiffs) D R Pritchard SC (Defendants)
- Solicitors:	Ryan Law (Plaintiffs) Dibbs Barker (Defendants)
File number(s):	2009/289276
Publication Restriction:

Judgment

1. HIS HONOUR : This judgment concerns interest and costs. At relevant times the plaintiffs held 47.5 per cent of the issued shares in Contact 121 Pty Limited and Contact 121 (Qld) Pty Limited (together "the companies"). The first plaintiff was also a director of the companies. He was an employee until 20 February 2009 but was then dismissed.

2. On 17 June 2009 the plaintiffs commenced proceedings for relief under s 233 of the Corporations Act 2001 (Cth) in respect of alleged oppression. Initially, the defendants were the companies and the other shareholders. The relief sought included a declaration that the companies' affairs had been conducted by the other defendants oppressively and orders for the winding-up of the companies, or for the purchase by the defendant shareholders of the plaintiffs' shares or for the purchase by the plaintiffs of the defendants' shares at the plaintiffs' election.

3. On 7 September 2009 the proceedings against the companies were discontinued. Thus the remaining defendants are the other shareholders who at relevant times held between them 52.5 per cent of the issued shares.

4. From at least February 2009 the plaintiffs and the remaining defendants were agreed that they should go their separate ways. Either the defendants should purchase the plaintiffs' shares or the plaintiffs should purchase the defendants' shares, or the companies should purchase the shares of the plaintiffs or the defendants.

5. The parties were agreed that the price to be paid should be a pro-rata percentage of the value of the companies as determined by an independent valuation. But there were some sticking points, partly on matters of detail and partly on issues concerning who would purchase the shares.

6. On 21 December 2009 orders were made by consent for the appointment of a valuer to value the companies. The terms of instructions to the valuer were agreed. The parties agreed to be bound by the valuation. The defendants agreed to purchase the plaintiffs' shares for a price that was 47.5 per cent of the determined value of the companies.

7. The orders made on 21 December 2009 included the following:

" The Court notes that:

1. the parties have agreed to appoint Brendan P Halligan (trading as Halligan & Co) ( Halligan ) to provide an opinion as to the market value ( Value ) of all of the issued share capital in each of Contact 121 Pty Limited (ACN 093 596 537) and Contact 121 (Qld) Pty Limited (ACN 118 907 047) (together Companies );

2. the parties have agreed that the Value will be binding on them for all purposes in the proceedings;

...

By consent the Court orders that, subject to the parties consenting to a subsequent order to the contrary:

...

2. Pursuant to section 233 of the Corporations Act 2001, the Defendants purchase or, if the parties so agree in writing, the Defendants cause the Companies to purchase, all of the shares in the Companies held by the Plaintiffs (whether in their joint names or solely in the name of the first Plaintiff) ( Shares ) at a price equal to 47.5% of the Value ( Price ) on the following terms:

(a) Completion of such purchase ( Completion ) must take place in Adelaide at the offices of Mellor Olsson Lawyers no later than 30 days after Halligan notifies the solicitors for the Plaintiffs and the solicitors for the Defendants of the amount of the Value, or at such other place and time as the parties may agree in writing.

(b) On Completion the Defendants must pay (or, if the parties so agree in writing, cause the Companies to pay) the Price by bank cheque to the Plaintiffs or as they may direct in writing.

(c) On Completion the Plaintiffs must deliver to the Defendants (or, if the parties so agree in writing, to the Companies) transfers of the Shares duly executed by the registered holders in favour of the Defendants (or, if the parties so agree in writing, the Companies), together with the share certificates for the Shares.

...

4. If Completion takes place on or before 31 March 2010, the proceedings be dismissed with no order as to costs.

5. If Completion does not take place on or before 31 March 2010, the proceedings be listed for further directions on 7 April 2010. "

8. Completion did not take place by 31 March 2010. The valuation process, including the making of submissions, took longer than had been envisaged. Consistently with the arrangements then established the valuer, Mr Halligan, provided a draft report. That report was provided in May 2010. He invited further submissions. On 4 June 2010 the defendant raised issues concerning the terms of Mr Halligan's engagement that had been agreed upon on 21 December 2009.

9. On 16 July 2010 the defendants filed an interlocutory process seeking an order that the parties provide a supplementary letter of instructions to Mr Halligan that would change the assumptions he was required to make for the purposes of the valuation from those that had been agreed upon on 21 December 2009.

10. On 14 September 2010 Barrett J dismissed that interlocutory process with costs. There were further enquiries and submissions in relation to the valuation.

11. On 22 February 2011 Mr Halligan provided his valuation report. He determined that the market value of all of the issued shares in the companies was $3.639 million. It followed pursuant to order 2 made on 21 December 2009 that the parties were required to complete the purchase by the defendants of the plaintiffs' shares by 24 March 2011 for the price of $1,728,525.

12. The plaintiffs were ready, willing and able to complete. The defendants refused to do so. They asserted that there were errors in the valuation that meant that it was not binding.

13. On 25 March 2011, that is, the day after the completion had been due, the plaintiffs filed an interlocutory process seeking a declaration that the matters raised by the defendants did not excuse them from complying with the orders of 21 December 2009.

14. On 12 May 2011 the defendants filed an interlocutory process seeking a declaration that Mr Halligan's valuation was not binding on the parties. On 24 May 2011 Hammerschlag J declared that the valuation was binding. He ordered the defendants to pay the costs of both applications.

15. Still the defendants did not complete. They had not made any attempt to that time to raise the necessary finance.

16. On 24 June 2011 the plaintiffs filed notices of motion seeking garnishee orders directed to the Australia and New Zealand Banking Group Limited, ING Bank (Australia) Limited and Contact 121 Pty Limited in respect of debts claimed to be due by the defendants under the orders of 21 December 2009. Such applications are dealt with ex parte . On 14 July 2011 the Registrar made the garnishee orders sought. The garnishee orders stated that they were for judgment debts in the amount of $1,778,415.82 owed by the defendants.

17. On 27 July 2011 the defendants filed an interlocutory process seeking orders that the garnishee orders be set aside and restraining the plaintiffs from taking further steps purporting to enforce the orders of 21 December 2009. That application was compromised by the parties agreeing on further orders.

18. On 3 August 2011 the Registrar made orders by consent that provided inter alia :

" The Court orders, by consent and without admissions:

1. Subject to paragraph 8, the Garnishee orders made by the Court on 14 July 2011 in respect of Martin Bruce Bill and addressed to the following garnishees be stayed:

(a) Australia and New Zealand Banking Group Limited; and

(b) Contact 121 Pty Limited.

2. Subject to paragraph 8, the Garnishee orders made by the Court on 14 July 2011 in respect of Wayne Bevin Boden and addressed to the following garnishees be stayed:

(a) ING Bank Limited;

(b) Contact 121 Pty Limited;

...

5. Subject to paragraph 8, until further order, the plaintiffs by themselves their servants and agents are restrained from taking any further steps in purported enforcement or in reliance upon orders made in these proceedings on 21 December 2009.

6. Subject to paragraph 8, paragraphs (a) to (c) of order 2 dated 21 December 2009 be varied as follows:

(a) completion of such purchase shall take place at the office of Dibbs Barker at Level 8, 123 Pitt Street, Sydney in three stages, respectively on 10 August 2011, 2 September 2011 and 3 October 2011 at times to be agreed as follows:

(b) on or before 10 August 2011;

(i) the defendants must pay by bank cheque:

(A) $18,195 to Joseph Tawfik;

(B) $1,055,310 to Joseph Tawfik and Louise Genevieve Tawfik as trustees of the Tawfik Family Trust or their nominee;

(ii) the plaintiffs must deliver:

(A) a signed transfer of one ordinary share in Contact 121 (QLD) Pty Limited from Joseph Tawfik to Martin Bruce Bill;

(B) a signed transfer of one ordinary share in Contact 121 Pty Limited from Joseph Tawfik to Martin Bruce Bill;

(C) a signed transfer of 29 ordinary shares in Contact 121 (QLD) Pty Limited from Joseph Tawfik and Louise Genevieve Tawfik to Martin Bruce Bill;

(D) a signed transfer of 29 ordinary shares in Contact 121 Pty Limited from Joseph Tawfik and Louise Genevieve Tawfik to Martin Bruce Bill;

(E) a signed transfer of 29 ordinary shares in Contact 121 (QLD) Pty Limited from Joseph Tawfik and Louise Genevieve Tawfik to Wayne Bevin Boden;

(F) a signed transfer of 29 ordinary shares in Contact 121 Pty Limited from Joseph Tawfik and Louise Genevieve Tawfik to Wayne Bevin Boden;

(c) on or before 2 September 2011;

(i) the defendants must pay $400,290 by bank cheque to Joseph Tawfik and Louise Genevieve Tawfik as trustees of the Tawfik Family Trust or their nominee;

(ii) the plaintiffs must deliver:

(A) a signed transfer of 11 ordinary shares in Contact 121 (QLD) Pty Limited from Joseph Tawfik and Louise Genevieve Tawfik to Martin Bruce Bill;

(B) a signed transfer of 11 ordinary shares in Contact 121 Pty Limited from Joseph Tawfik and Louise Genevieve Tawfik to Martin Bruce Bill;

(C) a signed transfer of 11 ordinary shares in Contact 121 (QLD) Pty Limited from Joseph Tawfik and Louise Genevieve Tawfik to Wayne Bevin Boden;

(D) a signed transfer of 11 ordinary shares in Contact 121 Pty Limited from Joseph Tawfik and Louise Genevieve Tawfik to Wayne Bevin Boden;

(d) on or before 3 October 2011;

(i) the defendants must pay $254,730 by bank cheque to Joseph Tawfik and Louise Genevieve Tawfik as trustees of the Tawfik Family Trust or their nominee;

(ii) the plaintiffs must deliver:

(A) a signed transfer of 7 ordinary shares in Contact 121 (QLD) Pty Limited from Joseph Tawfik and Louise Genevieve Tawfik to Martin Bruce Bill;

(B) a signed transfer of 7 ordinary shares in Contact 121 Pty Limited from Joseph Tawfik and Louise Genevieve Tawfik to Martin Bruce Bill;

(C) a signed transfer of 7 ordinary shares in Contact 121 (QLD) Pty Limited from Joseph Tawfik and Louise Genevieve Tawfik to Wayne Bevin Boden;

(D) a signed transfer of 7 ordinary shares in Contact 121 Pty Limited from Joseph Tawfik and Louise Genevieve Tawfik to Wayne Bevin Boden;

7. Upon receipt of the payments referred to in paragraph 6, the plaintiffs consent to the garnishee orders referred to in paragraph 1 and 2 herein being set aside.

8. In the event that the defendants do not comply with any one of:

(a) Clause 6(b)(i);

(b) Clause 6(c)(i); or

(c) Clause 6(d)(i);

the orders made in each of paragraphs 1, 2 and 5 are automatically vacated, without need for any further action to be taken by the plaintiffs, but subject to the plaintiffs accounting to the defendants for any payments already received under clause 6.

9. The orders made in paragraphs 1 - 8 are made without admission by the plaintiffs and without prejudice to the rights of the plaintiffs with respect to or arising out of the orders made on 21 December 2009, including the plaintiffs' application for interest and costs in these proceedings and the defendants' application of 27 July 2011.

10. The orders made in paragraphs 1 - 8 herein are made without admission by the defendants and without prejudice to the rights of the defendants with respect to or arising out of the orders made on 21 December 2009 including the plaintiffs' application for interest and costs in these proceedings and the defendants ['] position in relation to that application and the defendants ['] application of 27 July 2011.

11. The costs in respect of the defendants' interlocutory application dated 27 July 2011 be reserved.

12. Proceedings including the defendants' application dated 27 July 2011 be stood over to 12 August 2011 before the trial judge. "

19. The plaintiffs' application for interest and costs is not brought by any formal process. On 6 June 2011 Hammerschlag J ordered that the proceedings be stood over to Monday 20 June 2011 before the Corporations List judge for argument on interest and costs, if appropriate. His Honour directed times for service of affidavits in relation to those matters.

20. On 20 June 2011 the plaintiff's application was fixed for hearing on 12 August 2011. The plaintiffs contend that interest is payable pursuant to section 101 of the Civil Procedure Act 2005 on the sum of $1,728,525 at the rates prescribed for the purposes of that section. The plaintiffs seek the following orders:

"1. The defendants pay to the plaintiffs interest pursuant to section 101 of the Civil Procedure Act :

(a) in the amount of $70,253.89; and

(b) in the amount of $192.92 per day from and including 10 August 2011 (i.e. at the rate of 10.75% p.a. on the unpaid balance of $655,020), subject to adjustment by reason of further payments of principal to be made pursuant to the consent orders made on 3 August 2011.

2. Subject to the orders already made in relation to costs, the defendants pay the plaintiffs' costs of the proceedings, including the costs incurred in relation to the enforcement of the orders made on 21 December 2009 and the costs of the defendants' interlocutory application dated 27 July 2011. "

21. In his written submissions the solicitor for the plaintiff contended that interest should be ordered either from 25 March 2011 or from earlier dates on the basis that otherwise the defendants would be unjustly enriched. He referred to Heydon v NRMA Limited (No 2) [2001] NSWCA 445; (2001) 53 NSWLR 600 at 604 to 606.

22. In final submissions, Mr Jackman SC, for the plaintiffs, did not maintain this argument. He sought interest only from 25 March 2011 and only on the basis of s 101 of the Civil Procedure Act . The answer to the wider claim would be that the orders of 21 December 2009 embodied a contract in which the parties had not provided for the payment of interest (see Rhodes v Fletcher [2002] NSWSC 637 at [57] and [61]).

23. Section 101 of the Civil Procedure Act provides:

" 101 Interest after judgment

(cf Act No 52 1970, section 95; Act No 9 1973, section 85; Act No 11 1970, section 39)

(1) Unless the court orders otherwise, interest is payable on so much of the amount of a judgment (exclusive of any order for costs) as is from time to time unpaid.

(2) Interest under subsection (1) is to be calculated, at the prescribed rate or at such other rate as the court may order, as from:

(a) the date on which the judgment takes effect, or

(b) such later date as the court may order.

(3) Despite subsection (1), interest is not payable on the amount of a judgment if the amount is paid in full within 28 days after the date on which the judgment takes effect, unless the court orders to the contrary.

...

(6) This section does not authorise the giving of interest on any interest payable under this section.

(7) In this section, a reference to the prescribed rate of interest is a reference to the rate of interest prescribed by the uniform rules for the purposes of this section. "

24. It is not usual for a party to seek judgment for an amount of interest claimed to be payable under s 101 under an earlier judgment. If such interest is payable it can be recovered in execution of the original judgment. If a further judgment for interest were obtained which itself carried interest under s 101, there would be a compounding of interest contrary to s 101(6).

25. In recognition of this, Mr Jackman SC accepted that if the court made the orders sought, an order should also be made under s 101(1), that interest not be payable on this further judgment for interest.

26. In substance the plaintiffs seek a declaration that they are entitled to interest from 25 March 2011 at the rates prescribed for the purposes of s 101 on the sum payable on 24 March 2011 pursuant to order 2(b) of the orders of 21 December 2009. Under s 101 interest is payable on so much of the amount of a " judgment " (exclusive of costs) as is from time to time unpaid. " Judgment " is defined in s 4 as including any order for the payment of money.

27. The plaintiffs submit that order 2(b) was an order for the payment of money within the meaning of the definition of " judgment " in s 4, even though the obligation to pay money is concurrent with the plaintiffs' obligation to transfer shares. The plaintiffs point to the fact that they were willing and able to transfer the shares on receipt of $1,728,525, but the defendants refused to pay.

28. If the agreement contained in the consent orders of 21 December 2009 is considered as a simple agreement inter partes , that is to say, an agreement that the defendants would pay the sum determined by valuation and the plaintiffs would transfer their shares, then breach of the agreement by the defendants entitles the plaintiffs to damages, and would entitle the plaintiffs to an order for specific performance. The plaintiffs would not be entitled to sue for the price as a debt that is due and payable. That is because the obligation of the defendants to pay money and the obligation of the plaintiffs to transfer the shares are dependent obligations. The price for the shares was not payable on a different day from that on which the shares were to be transferred. The obligations of both parties were concurrent and dependent ( McDonald v Dennys Lascelles [1933] HCA 25; (1933) 48 CLR 457 at 475-476; and Sunbird Plaza Pty Ltd v Maloney [1988] HCA 11; [1988] HCA 11; (1988) 166 CLR 245 at 253-254).

29. The orders of 21 December 2009 embodied the parties' agreement for the purchase and sale of the shares. Just as in the absence of terms to the contrary an agreed price for the purchase of property is not recoverable as a contractual debt unless there has been a conveyance, even if the vendor is ready and able to convey and the purchaser is in breach of contract in refusing to settle, the moneys ordered to be paid under order 2(b) were not payable except against the receipt of the duly executed share transfers and share certificates. That is not to say that the plaintiffs are without remedy. But the remedy is not for interest under s 101, but for damages for breach of contract.

30. I reject the plaintiffs' claim for interest under that section.

31. I turn to the question of costs. The issues concerning costs fall under five separate headings. First, there are the costs up to the making of the consent orders of 21 December 2009. Secondly, there are costs up to the date due for completion on 24 March 2011. Thirdly, there are the costs from 25 March 2011 up to the plaintiffs' application for the issue of the garnishee orders. Fourthly, there are the costs of the plaintiffs' application for garnishee orders and the defendants' interlocutory process of 27 July 2011 seeking to set aside the garnishee orders. Fifthly, there are the costs of this application.

32. In relation to the costs up to the making of the consent orders of 21 December 2009 the parties are agreed that the relevant principles are as explained by McHugh J in Re Minister for Immigration & Ethnic Affairs (Cth); Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 662 at 624-625, and as further explained by Burchett J in ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548 at 553. The defendants submit that the orders of 21 December 2009 represented a compromise of the parties' positions and that there had never been a real dispute that one party would have to be bought out by the other. The only disagreement has been as to the details and these were settled in the orders of 21 December 2009.

33. The plaintiffs submitted that they had obtained the substantial relief sought and the costs should follow the event (r 42.1 of the Uniform Civil Procedure Rules 2005). The plaintiffs also submitted that the defendants had capitulated on the issues that had divided the parties in their negotiations. In this respect they emphasised three matters. First, on 29 July 2009, that is, after these proceedings were instituted, the defendants' solicitors advised that the defendants did not wish to purchase the plaintiffs' shares. They later agreed to do so. Secondly, on 1 May 2009 in negotiations concerning a draft share sale deed the defendants proposed that a purchase of the plaintiff's shares be subject to finance. No such condition was contained in the orders of 21 December 2009. Thirdly, the agreed instructions to the valuer of 21 December 2009 required him to make assumptions that the conduct alleged by the plaintiffs to be oppressive had not occurred. The required assumptions extended to, but also went beyond, the allegations of oppression contained in the plaintiff's statement of claim. The defendants later unsuccessfully sought to have the instructions changed.

34. I do not consider that the plaintiffs succeeded on the "event" merely because they obtained part of the relief sought in its originating process. There had never been any dispute that one or other party would have to be bought out. Whilst the plaintiffs did not act unreasonably in instituting the proceedings, the proceedings were a catalyst for bringing the parties to a resolution of their dispute which involved no capitulation by either side. A draft share sale deed had been supplied by the plaintiffs' solicitor on 24 March 2009. The plaintiffs proposed that there be an independent valuer, that the parties agree on the instructions to the valuer, that the parties make submissions, and that prior to the execution of the deed, surplus cash reserves be distributed. The defendants did not agree to the last point and it was not pressed.

35. There were then negotiations on the detail of the proposed deed. As indicated above, on 1 May 2009, the defendants proposed that the agreement be subject to finance. The plaintiffs did not agree. There were further negotiations that led to an in principle agreement that the sale be subject to finance only if and to the extent that a purchase price exceeded $5,000,000. Ultimately, that issue was dropped, but this involved no capitulation by either party. The determined price was well below that figure.

36. On 14 May 2009, prior to the proceedings being instituted, the defendants' solicitor advised that he was instructed that the matter should be progressed not as a private sale/purchase arrangement, but as a share buy-back. The plaintiffs did not agree. They said that this would have adverse tax implications for them. The defendants contended the position was otherwise and that the plaintiffs would be better off if their shares were purchased by the companies. This was the context in which the defendants' solicitor advised on 29 July 2009 that it was the defendants' then current position that they did not wish to buy the plaintiffs' shares. The defendants' solicitor went on to say that the companies were considering a share buy-back, or acquiring the plaintiffs' shares by other appropriate means.

37. On 23 September 2009 the defendants' solicitor confirmed that the defendants proposed that consent orders be made that would implement a share buy-back. This is not what the orders of 21 December 2009 ultimately provided. It is no part of the plaintiffs' case on costs that purchase of the shares by the defendants was necessarily a better outcome from their perspective, or a worse outcome from the defendants' perspective, than would have been provided by the companies buying back the plaintiffs' shares.

38. I do not think that merely because the parties ultimately agreed on a purchase and sale between shareholders, rather than a share buy-back, that this involved a capitulation.

39. Both parties during the course of negotiations made settlement offers to the other to purchasing the other's shares. No settlement offer made by any party bettered the final outcome.

40. Whilst the defendants later perceived that instructions to the valuer were disadvantageous to them, I do not infer that the assumptions that the parties agreed the valuer should make involved a capitulation by any party. For example, one of the assumptions the valuer was required to make was to the effect that the first plaintiff had not been excluded from management, contrary to the fact. But whether that assumption would be favourable to the plaintiffs or to the defendants in the determination of value would depend upon the valuer's assessment of whether a potential buyer would consider the first plaintiff's continued involvement in management as something that would increase or diminish the value of the companies.

41. The same is true of many of the other assumptions. I was not taken to any discussion by the valuer as to how these assumptions affected his determination. In any event, any such discussion would not necessarily indicate whether the defendants' agreement in December 2009 to those assumptions was a capitulation to the plaintiffs' demands.

42. Moreover, whilst an order was made for the purchase of the plaintiffs' shares, the orders of 21 December 2009 did not include the making of declarations that the affairs of the companies had been conducted contrary to the interests of the members as a whole, or were oppressive to or unfairly prejudicial to or unfairly discriminatory against the plaintiffs. Nor did those orders give the plaintiffs an election either to sell their shares to the defendants at the determined value, or to purchase the defendants' shares. Such declarations and orders had been part of the relief sought in the originating process.

43. The claims of oppression were contested. The court will not try an hypothetical action to determine who would have succeeded in order to decide questions of costs. In my view, it is not shown that either party acted unreasonably and it is not shown that the orders involved a capitulation by the defendants to the plaintiffs' demands. Accordingly, there should be no order as to costs up to 21 December 2009.

44. The next period to be considered is from that date up to 24 March 2011. So far as appears the parties' efforts were then directed either to providing information or making submissions to the valuer, or were directed to the defendants' unsuccessful application before Barrett J. As to the first of those, no order as to costs is appropriate. Both parties had a measure of success and failure in the valuer's decision. As to the latter, Barrett J has made the appropriate costs orders.

45. The third period is from the date for completion on 24 March 2011 up to the date on which application was made for garnishee orders. During that period there appear to have been two relevant applications. The first was the application dealt with by Hammerschlag J. His Honour made costs orders in relation to that. The second was the preliminary steps then taken in relation to the application for interest and costs with which I am now dealing. In relation to those steps I will make appropriate costs orders later.

46. The fourth period concerns the costs of the plaintiffs' application for garnishee orders and the defendants' application to have those orders set aside. The plaintiffs submitted that the defendants had acknowledged their entitlement to the garnishee orders by the orders of 3 August 2011. However, the orders were made by consent and without admission and were expressed to be without prejudice to the rights of both the plaintiffs and the defendants in relation inter alia to the defendants' application of 27 July 2011.

47. There was a dispute as to whether the Registrar had power to make the garnishee orders. That dispute was resolved by the consent orders of 3 August 2011 by the defendants agreeing not to press their claim to have the garnishee orders set aside if the restructured timetable for payments was not met, and by the plaintiffs agreeing to a stay of the garnishee orders if the new timetable for payments was met.

48. At first blush one might think that the principles in Re Minister for Immigration and Ethnic Affairs (Cth); Ex parte Lai Qin apply equally to the issue of costs in relation to the garnishee orders. That is to say, the parties compromised their positions. However, both parties referred to and relied upon the saving provisions in orders 9 and 10 that their agreement to the orders 1 to 8 was without prejudice to their position on interest and costs and in respect of the defendants' application of 27 July 2011.

49. I do not think that the principles in Re Minister for Immigration and Ethnic Affairs (Cth); Ex parte Lai Qin can be excluded by the parties' agreement. Those principles reflect the public interest that litigation not be pursued merely to determine questions of costs where proceedings have settled. However, McHugh J observed (at 625) that in some cases a judge may feel confident that although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. His Honour observed that in such a case the court may make a costs order in favour of the party who would have succeeded, but, as his Honour said, such cases are likely to be rare.

50. Here the issue which would have arisen on the application to set aside the garnishee orders has been raised in substance by the claim that interest is payable under s 101 of the Civil Procedure Act on the amount payable pursuant to order 2(b). Section 106(1) provides that a " judgment debt " may be enforced by a garnishee order. A " judgment debt " includes any amount payable under a " judgment ".

51. I have determined on the issue of interest that no amount was payable under the " judgment " except against receipt of duly executed share transfers and share certificates. That question having been determined, and in the light of the reservations contained in orders 9 and 10 of 3 August 2011, it is appropriate to give effect to that determination.

52. The garnishee orders were not authorised, but they are not a nullity. I am not to be taken as saying that the defendants would be entitled to resist enforcement of the garnishee orders if they fail to comply with the revised timetable for payment for the shares. Prima facie I see no reason why the defendants should not be held to their agreement contained in the orders of 3 August 2011. But that is not a question that arises on this application. Nonetheless, consistently with the reservations in orders 9 and 10 and having decided the question that arises in relation to the garnishee orders in the context of the argument under s 101, I consider that the costs in relation to the garnishee orders should follow the event, that is to say, the plaintiffs should pay the defendants' costs of the defendants' application of 27 July 2011.

53. The remaining issue concerns the costs of this application. They should follow the event. As the defendants have succeeded on this application, they are entitled to their costs.

54. For these reasons I make the following orders:

1. Order that the plaintiffs' application that judgment be entered against the defendants for interest claimed to be payable under s 101 of the Civil Procedure Act be refused.

2. Subject to the earlier orders for costs, and subject to the order below, there be no order as to costs of the proceedings with the intention that each party pay his and her own costs.

3. Order that the plaintiffs pay the defendants' costs of the defendants' interlocutory application filed on 27 July 2011 and of the plaintiffs' application the subject of the hearing on 12 August 2011.

4. The exhibits may be returned after 28 days.

5. I give the parties liberty to apply on reasonable notice to the Corporations List judge if any further dispute arises in relation to the implementation of the orders of 3 August 2011.