IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Common Law Division
Property List
S ECI 2019 04810

UDP HOLDINGS PTY LTD (subject to deed of company arrangement) (receivers and managers appointed) 
(ACN 167 100 692)	Plaintiff	
		
v  		
		
ESPOSITO HOLDINGS PTY LTD (in liquidation) 
(ACN 079 763 303)	First Defendant	
		
and		
		
AE BRIGHTON HOLDINGS PTY LTD (in liquidation)
(ACN 166 492 306)	Second Defendant	
		
and		
		
HAGIT PTY LTD
(ACN 150 965 825)	Fourth Defendant	
		
and		
		
GORAN TEMELKOVSKI	Fifth Defendant	
		
and		
		
REGISTRAR OF TITLES	Sixth Defendant	
		
and		
		
SPEAK MONEY PTY LTD
(ACN 642 793 262)	Ninth Defendant	

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JUDGE:	Richards J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	15 October 2021	
DATE OF JUDGMENT:	29 October 2021	
CASE MAY BE CITED AS:	UDP Holdings Pty Ltd v Esposito Holdings Pty Ltd (in liq) (No 2)	
MEDIUM NEUTRAL CITATION:	[2021] VSC 711	

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EQUITY – Balance of proceeds from sale of land paid into Court – Dispute between fourth and fifth defendant regarding entitlement to balance of funds in Court – Competing equitable interests in land – Whether interest created first in time takes priority – Whether failure to lodge a caveat is sufficient to postpone prior equitable interest to a later equitable interest – No disentitling conduct – Fifth defendant has better equity.

COSTS – Plaintiff put to proof of its claim by two defendants – Plaintiff achieved substantial success in proceeding – Plaintiff sought order that fourth defendant alone pay its costs of the proceeding – Whether costs should be ordered against fourth defendant – No order as to costs.
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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr C Young QC with
Mr P Annabell	Ashurst Australia	
			
For the First Defendant	No appearance		
			
For the Second Defendant	Ms V Bell	Norton Rose Fulbright Australia	
			
For the Fourth Defendant	Mr L Watts	Efron & Associates	
			
For the Fifth Defendant	Mr L Faba	Stenta Legal	
			
For the Sixth Defendant	No appearance		
			
For the Ninth Defendant	No appearance		

HER HONOUR:
1	In January 2014, UDP Holdings Pty Ltd bought a dairy business from Esposito Holdings Pty Ltd, a company owned and controlled by Antonio Esposito.  The business collapsed soon after the sale, and various disputes between UDP Holdings, Esposito Holdings and Mr Esposito were referred to arbitration.  The arbitrator’s final award of 1 October 2018 included a declaration that, on and from 31 January 2014, Esposito Holdings held the purchase price on a constructive trust for UDP Holdings.  On 5 October 2018, Croft J made an order giving effect to the arbitrator’s award as a judgment of the Supreme Court of Victoria.
2	In this proceeding, UDP Holdings claimed to be entitled to trace the proceeds of the constructive trust into four properties purchased by AE Brighton Holdings Pty Ltd, a second company owned and controlled by Mr Esposito.  Those four properties were:
(a)	2 Kinane Street, Brighton (or the Kinane Street property);
(b)	92 The Esplanade, Brighton (or The Esplanade property);
(c)	639 and 649 Williams Road, Werona; and
(d)	101 Trunk Lead Road, Bunkers Hill.
3	On 26 August 2021, I published a judgment in which I held that UDP Holdings could trace the proceeds of the constructive trust into the properties, and has the following equitable interests in them:
(a)	$80,000 of the $536,359.19 paid into Court following the sale of the Kinane Street property;
(b)	all of the funds held in Court in respect of The Esplanade property; and
(c)	all of the Werona and Bunkers Hill properties.
4	The parties were requested to confer and seek to agree on the terms of orders to give effect to my judgment, and in relation to the costs of the proceeding.  There was no dispute that the following declarations and orders should be made:
THE COURT DECLARES THAT: 
The plaintiff has an equitable interest in the following properties, or their proceeds of sale: 
(a) 	$80,000 of the $536,359.19 paid into Court on or around 21 September 2020 in respect of proceeds of sale of 2 Kinane Street, Brighton, more particularly described in certificate of title volume 10042, folio 656; 
(b) 	the entirety of the amount of $3,979,032.36 paid into Court on or around 21 September 2020 in respect of the proceeds of sale of 92 The Esplanade, Brighton, more particularly described in certificate of title volume 12247, folio 249; 
(c) 	from 22 July 2014 onwards, the entirety of 101 Trunk Lead Road, Bunkers Hill, more particularly described in certificates of title volume 12293 folios 420 and 421; and 
(d) 	from 12 December 2014 onwards, the entirety of 639 and 649 Williams Road, Werona, more particularly described in certificates of title volume 09960 folios 044 and 045. 
THE COURT ORDERS THAT: 
Winding up of second defendant
1. 	Pursuant to s 471B of the Corporations Act 2001 (Cth), the plaintiff be granted leave, with effect from 12 May 2021, to proceed against the second defendant in this proceeding. 
2 Kinane Street, Brighton
2. 	The following sum be paid from Common Fund No. 1 and debited to Account No. 84858: 
(a) 	(at the direction of the plaintiff) to the fifth defendant, an amount equal to $80,000, but subject to the retention of a sum sufficient to cover any taxation liability that arises in relation to that $80,000 sum. 
3. 	Upon payment of the sum in accordance with paragraph 2 above, there also be paid to the fifth defendant from Common Fund No. 1 and debited to Account No.10, an amount equivalent to interest accrued on the sum of $80,000 in Account No. 84858 from 23 September 2020 at the rate last fixed in respect of Common Fund No. 1. 
92 The Esplanade, Brighton
4. 	The following sum be paid from Common Fund No. 1 and debited to Account No. 84869: 
(a) 	to the plaintiff, an amount equal to the balance of the said Account, but subject to the retention of a sum sufficient to cover any taxation liability. 
5. 	Upon payment of a sum equivalent to the balance of the said Account, in accordance with paragraph 4 above, there also be paid to the plaintiff from Common Fund No. 1 and debited to Account No.10, an amount equivalent to interest accrued on the balance of Account No. 84869 from 23 September 2020 at the rate last fixed in respect of Common Fund No. 1. 
101 Trunk Lead Road, Bunkers Hill, and 639 and 649 Williams Road, Werona 
6. 	In accordance with paragraph 1(d) of the orders made on 4 August 2021, John Lindholm in his capacity as liquidator of the second defendant, distribute the residual proceeds of sale of: 
(a) 	101 Trunk Lead Road Bunkers Hill VIC 3352, more particularly described in certificates of title volume 12293 folios 420 and 421; and 
(b) 	639 and 649 Williams Road, Werona VIC 3364, more particularly described in certificates of title volume 09960 folios 044 and 045, 
to the plaintiff.
5	Two areas of disagreement remain:
(a)	first, there is a dispute between the fourth defendant, Hagit Pty Ltd, and the fifth defendant, Goran Temelkovski, as to which of them is entitled to the balance of the funds held in Court in respect of the proceeds of the sale of the Kinane Street property (Kinane Street funds); and 
(b)	second, there is a dispute between UDP Holdings and Hagit regarding the appropriate order as to the costs of the proceeding.
6	For the reasons that follow, I have determined that the Kinane Street funds should be paid to Mr Temelkovski, and that, with one exception, there should be no order as to costs.
Kinane Street funds
7	AE Brighton purchased the Kinane Street property in 2013 for $10,800,000, to which AE Brighton contributed a deposit of $540,000 before settlement, and payments totalling $2,236,342.31 at settlement.  The balance of the purchase price was paid by Westpac Banking Corporation as mortgagee.
8	The Kinane Street property was sold on 4 September 2020, for $10,995,600.  The balance of the sale proceeds was only $536,359.19, which was paid into Court on 23 September 2020.  The plaintiff has an equitable interest in $80,000 of that amount.  The dispute between Hagit and Mr Temelkovski concerns the remaining $456,359.19.
9	Mr Temelkovski claims an estate or interest in the Kinane Street property, based on a facility agreement between Mr Temelkovski and AE Brighton dated 5 November 2013.  On 12 May 2021, Mr Temelkovski admitted that UDP Holdings’ estate or interest in the properties took priority over his claim and he took no further part in the trial of the proceeding.  His position throughout has been that his interest takes priority over Hagit’s interest, as the first in time.
10	Hagit claims an estate or interest in the Kinane Street property, based on a loan advanced to Violeta Esposito (also known as Violeta Stojcevski) in March 2018.  At trial, Hagit accepted that its claim would rank behind UDP Holdings’ claim, if established.  It now contends that its interest takes priority over Mr Temelkovski’s interest.
11	The ninth defendant, Speak Money Pty Ltd, applied at the trial of the proceeding to be joined as a defendant.  At the trial, it claimed to have replaced AE Brighton as the trustee of bare trusts in respect of each of the properties, after AE Brighton was wound up by court order on 12 May 2021.  In respect of the Kinane Street property, it relied on a declaration of trust, apparently signed by Mr Esposito on 30 October 2013, nominating Ms Esposito as beneficiary.  UDP Holdings did not accept the authenticity of this document.  Following judgment, neither Ms Esposito nor Speak Money made any claim to be entitled to payment of the Kinane Street funds.
12	There were at least two other parties who had claimed an interest in the Kinane Street property before it was sold.  In 2020, both First Mortgage Capital Pty Ltd and Maxum Capital Pty Ltd lodged caveats, each claiming an interest as chargee.  Both caveats lapsed before settlement.  Both companies had been defendants to the proceeding.  Both were given notice of the hearing listed for 15 October 2021, and the direction that any application and evidence in respect of the payment out of the Kinane Street funds be filed and served by 5 October 2021.  Neither company made any claim.
Temelkovski facility agreement
13	On 5 November 2013, Mr Temelkovski and AE Brighton entered into a facility agreement, in which Mr Temelkovski agreed to make available to AE Brighton a cash advance facility of $2,500,000 over a 10-year period.  The primary security for the facility was:
Mortgage by the Borrower in favour of the Lender in respect of the property known as 2 Kinane Street Brighton Vic 3186.  Such charge against this Property includes any equitable interest in the Property and any subsequent legal or other interest.
The facility was also secured by a guarantee given by Mr Esposito, a Personal Property Securities Register security interest over AE Brighton’s assets, and a ‘charge against all other presently and future owned property’ of AE Brighton.
14	Also on 5 November 2013, Mr Esposito, who was then the sole director of AE Brighton, executed a mortgage of land for the Kinane Street property.  The mortgagor specified in the document was ‘AE Brighton Holdings Pty Ltd (ACN 166 492 306)’ and the mortgagee was ‘Goran Temelkovski’.
15	As Hagit pointed out, the mortgage was given by AE Brighton before settlement on 21 November 2013, and before AE Brighton became the registered proprietor of the Kinane Street property on 2 December 2013.  This circumstance did not prevent AE Brighton from granting an equitable mortgage over the property, since a valid charge can be granted over future property.
16	AE Brighton was the registered proprietor of the Kinane Street property when it drew down on the facility between 4 December 2015 and 25 September 2018.  The equitable mortgage dated 5 November 2013 was apparently sufficient security for Mr Temelkovski, who did not require a registered mortgage before advancing funds to AE Brighton under the facility agreement.
17	Mr Temelkovski did not lodge a caveat in relation to the Kinane Street property until 2 October 2019.
18	As at 29 April 2021, AE Brighton owed an amount of $2,498,955.98 to Mr Temelkovski under the facility agreement.
Hagit deed of loan
19	Graeme Efron, solicitor, is the sole director of Hagit.  He is also the principal of Efron & Associates, the solicitors for Hagit in these proceedings.
20	In late February or early March 2018, Mr Efron was approached by Mr Esposito to lend $150,000 to Ms Esposito.  On 2 March 2018, Efron & Associates sent a conditional letter of offer to Ms Esposito’s solicitors, in which Hagit offered to lend up to $150,000 to Ms Esposito, to be secured by:
(a)	Deed of Loan;
(b)	Joint and several guarantees from ANTONIO PATRICK ESPOSITO and RCH NOMINEES PTY LTD (ACN 094 555 101) and any other person or entity identified during the Due Diligence process;
(c)	Second registered mortgage over the property located at 12 Claremont Place, Epping VIC 3076 more particularly described in Certificate of Title Volume 11101 Folio 858 (“Security Property”).
(e)	Mortgage over any other property owned by the Borrower and/or Guarantor.
(f)	registered security interest over the Range Rover vehicle.
(g)	registered security interest over the borrower’s rights, property and undertaking of whatever kind and whatever situated whether present or after-acquired.
21	Mr Efron deposed that, after reviewing a title search of the property in Epping, he was not satisfied with the adequacy of that security, and asked Mr Esposito whether any other property could be provided as security.  Mr Esposito informed him that AE Brighton would secure the proposed loan by way of a second unregistered mortgage over the Kinane Street property.  Mr Efron’s firm conducted a title search of the Kinane Street property, which revealed mortgages to Westpac and JM Nominees Pty Ltd, and caveats lodged by Margaret Esposito (Mr Esposito’s former wife) and UDP Holdings.
22	According to Mr Efron:
I spoke to Tony Esposito and said to him that I was concerned about the caveats.  I was then informed by Tony Esposito and verily believe that Margaret Esposito would not be pursuing her caveatable interest over 2 Kinane Street, and that AE Brighton Holdings Pty Ltd had a strong defence against UDP’s claimed caveatable interest over 2 Kinane Street.  I then asked Tony Esposito who was the sole director of AE Brighton Holdings Pty Ltd from 29 October 2013 – 14 April 2016 whether there were any other securities which could affect Hagit’s proposed second mortgage security to which Tony Esposito said to me, and I verily believed, that there were no other security interests that could affect the proposed mortgage security.  
23	Mr Efron was satisfied with the security proffered and instructed an employee solicitor with his firm to complete the loan and security documents, including a mortgage over the Kinane Street property.  These documents included a deed of loan, an authority to complete documents and acknowledgement, and a mortgage over the Kinane Street property.  
24	The loan and security documents were signed by Ms Esposito on 5 March 2018, both in her personal capacity and as sole director and secretary of RCH Nominees Pty Ltd and AE Brighton.
25	The deed of loan listed the following security for the loan:
(i)	This Deed;
(ii)	Joint and Several guarantees from:
a.	ANTONIO PATRICK ESPOSITO of 2 Kinane Street, Brighton VIC 3186
b.	RCH NOMINEES PTY LTD of 2 Kinane Street, Brighton VIC 3186
c.	AE BRIGHTON HOLDINGS PTY LTD of Freshwater Place Level 17, 2 Southbank Boulevard Southbank VIC 3006
(iii)	Caveat and Second registered mortgage over the property located at 12 Claremont Place, EPPING VIC 3076 contained in Certificate of Title Volume 11101 Folio 858.
(iv)	Caveat and unregistered registered mortgage over the property located at 2 Kinane Street, BRIGHTON VIC 3186 contained in Certificate of Title Volume 10042 Folio 656.
(v)	Mortgage over any other property owned by the Borrower and/or Guarantor
(vi)	Registered Security Interest over the Borrower’s Range Rover vehicle …
(vii)	Registered Security Interest over the Borrower’s rights’ property and undertakings of whatsoever kind and wherever situated whether present or after acquired.
26	The mortgage over the Kinane Street property signed by Ms Esposito on 5 March 2018 identified the mortgagor as ‘Violeta Stojcevski’.
27	The authority is addressed to Hagit and its solicitors.  Clause 1 provides that, in consideration of Hagit agreeing to make a loan facility available to Ms Esposito on the security listed, including a caveat and unregistered mortgage over the Kinane Street property, and in consideration of the settlement of the facility:
I/We irrevocably authorise you to complete the Security Documents and any other documents relating to the Facility (or any of them that may be incomplete) by inserting all relevant dates and details, to correct any errors and to make any amendments or additions to the documents necessary in your opinion:
1.1	to give effect to the documents and the agreed terms and conditions of the Letter of Offer; and/or
1.2	to enable the stamping and (where applicable) registration of the documents by the Registrar of Titles or the Australian Securities & Investments Commission.
1.3	to make advances to the Borrower under the Facility.
28	On 5 March 2018, Hagit advanced the sum of $150,000 to Ms Esposito.  Mr Efron deposed that at that time he had no knowledge of Mr Temelkovski’s mortgage over the Kinane Street property and that, if he had been aware of its existence, Hagit would not have lent the $150,000.
29	Hagit lodged a caveat in relation to the Kinane Street property on 6 March 2018.
30	Between 8 and 12 October 2021, relying on the authority, Hagit ‘amended’ the mortgage signed by Ms Esposito on 5 March 2018, by deleting the name of the mortgagor ‘Violeta Stojcevski’ and inserting the name ‘AE Brighton Holdings Pty Ltd (ACN 166 492 306)’.
31	Mr Efron deposed that, as at 8 October 2021, the debt owing to Hagit was $795,000.
Whose interest takes priority?
32	Mr Temelkovski disputed the effectiveness of Hagit’s recent amendment of the mortgage on a number of grounds.  It is unnecessary to resolve that dispute, because it is clear that Mr Temelkovski’s interest takes priority over whatever interest Hagit might have in the Kinane Street property.  Assuming in Hagit’s favour that it has an equitable interest in the property, it acquired that interest at the earliest on 5 March 2018, subsequent to Mr Temelkovski’s interest.
33	The general rule for resolving competing equitable interests in land is that, where the merits are equal, the first interest in time has priority.  However, the earlier interest can be postponed to the later interest by disentitling conduct on the part of the owner of the earlier interest.  The question of which party has the better equity is to be determined having regard to the conduct of each party in relation to their respective interests, a comparison of that conduct in all the relevant circumstances, and ‘general considerations of fairness and justice’.  However, the mere failure of the holder of the earlier interest to lodge a caveat does not dictate that the earlier interest will be postponed in favour of a person who acquired the later interest after searching the register and finding no caveat.  It is just one of the circumstances to be considered in determining who has the better equity.
34	Hagit submitted that Mr Temelkovski’s interest should be postponed to its later interest because he had failed to lodge a caveat to protect his interest, and because Mr Efron had agreed to lend money to Ms Esposito in reliance on the title search he had obtained in relation to the Kinane Street property.  Hagit emphasised the lack of any explanation for Mr Temelkovski’s failure to lodge a caveat that might have given it notice of his interest.  It referred me to a number of authorities including Heid v Reliance Finance Corporation Pty Ltd and Gogetta Equipment Funding Pty Ltd v Mark & Liz Pty Ltd.
35	Considering the conduct of Mr Temelkovski and Hagit in relation to their respective interests in the Kinane Street property, and comparing that conduct, I do not accept Hagit’s submission that it has the better equity.  My reasons for that conclusion are as follows.
36	First, the mortgage over the Kinane Street property was the primary security for the facility made available to AE Brighton by Mr Temelkovski.  It is plain that he would not have entered into the facility agreement in November 2013, or advanced funds under the facility between 2015 and 2018, unless the funds were ‘secured against real estate’. 
37	Second, while Mr Temelkovski had not lodged a caveat by March 2018, that alone is not sufficient to postpone his interest to Hagit’s later interest.
38	Third, Hagit could point to no other conduct on the part of Mr Temelkovski that led it to accept the Kinane Street property as security in the belief that his interest did not exist.  There were no dealings directly between them; indeed, in March 2018 they were unaware of each other’s existence.  Mr Temelkovski did not contribute to Mr Efron’s willingness to accept Mr Esposito’s representations about the worth of the Kinane Street property as additional security for the loan.
39	Fourth, the Kinane Street property was not the sole or even the primary security for the loan advanced by Hagit to Ms Esposito in March 2018.  Mr Efron initially offered to lend her the money on the basis of other security, in particular a registered second mortgage over a property in Epping.  It was only after he had second thoughts about the adequacy of the security that he asked about further security, and Mr Esposito proposed an unregistered mortgage over the Kinane Street property.
40	Fifth, I accept that Mr Efron relied on the title search he obtained for the Kinane Street property.  While that search did not reveal Mr Temelkovski’s interest, it did put Mr Efron on notice that the property was already substantially encumbered.  There were not one but two registered mortgages — the first in favour of Westpac, the second in favour of JM Nominees.  Mr Efron did not depose to making any inquiry about the debts secured by either mortgage.  In addition, there were two caveats on the title — one lodged by Margaret Esposito, and the other lodged by UDP Holdings.  Mr Efron apparently accepted Mr Esposito’s assurances that these caveats would not affect the proposed security, without making any further inquiries.  This indicates to me that Mr Efron was prepared to take a significant risk in accepting the Kinane Street property as additional security for the loan.
41	Hagit relied on Gogetta as authority for the proposition that a prior interest can be postponed to a later interest due to a failure to lodge a caveat.  That was not the basis on which that case was decided.  After a close consideration of the whole conduct of both parties in that case, Lansdowne AsJ found that neither party had protected their security interests with appropriate diligence and that, if all else had been equal, the priority of the earlier interest in time should remain.  The deciding factor was that the charge was not critical to the plaintiff’s grant of finance, while the mortgage was critical to the defendant’s decision to enter into a further loan.  On that basis, the defendant was held to have the better equity.
42	In this case, that situation is reversed.  The evidence is that a mortgage over the Kinane Street property was critical to Mr Temelkovski’s decision to enter into the facility agreement, and was the primary security for that loan.  By contrast, it was supplementary security for the loan advanced by Mr Efron, which he accepted knowing that there were other prior competing claims.
43	Mr Temelkovski’s interest in the Kinane Street property is the better equity.  The amount secured by the mortgage exceeds the balance of the proceeds of the sale of the property by a considerable amount.  I will order that the Kinane Street funds are to be paid to Mr Temelkovski, with any interest that has accrued on those funds.
Costs
44	UDP Holdings has achieved substantial success in the proceeding, and would ordinarily be entitled to an order for costs in its favour.  However, UDP Holdings did not seek any costs order against AE Brighton.  I was informed that those two parties had resolved the issue of costs as between them.  Instead, UDP Holdings sought an order that Hagit pay its costs of the proceeding.
45	Hagit’s initial position was that UDP Holdings should be ordered to pay its costs of the proceeding.  At the hearing on 15 October 2021, its position was that there should be no order as to costs.
46	No other party sought a costs order.
47	UDP Holdings submitted that Hagit should pay all of its costs of the entire proceeding on the ordinary basis because it had denied the elements of UDP Holdings’ claim.  Hagit had denied the existence of the constructive trust, it had denied that Mr Esposito was the controlling mind of AE Brighton, it had denied the breach of trust, and it had denied that UDP Holdings had a caveatable interest in the Kinane Street property.  In addition, Hagit objected to its joinder as a defendant, objected to the joinder of various other parties, and contended that the proceeding was an abuse of process.  UDP Holdings had therefore been required to prove all aspects of its claim.
48	UDP Holdings argued that Hagit had not identified any special circumstances justifying a departure from the ordinary rule that costs should follow the event.  It contended that, as the successful plaintiff, it should be entitled to an order for costs against all of the parties who put it to proof, regardless of the role taken at trial.  It relied on the authority of Re Bias Boating Pty Ltd (in liq), in which a costs order was made against those defendants which had not admitted the plaintiff’s insolvency.
49	Having considered the matters raised by UDP Holdings, I have concluded that, with one exception, there should be no order as to costs in the proceeding.
50	The main issue in dispute in the proceeding was whether UDP Holdings could trace the proceeds of the constructive trust into the four properties purchased by AE Brighton.  AE Brighton denied the existence of the constructive trust, it denied the breach of trust, it denied that Mr Esposito was its controlling mind and had procured the breach of trust, and it denied that UDP Holdings had an equitable interest in any of the properties.  It maintained these denials throughout, including after the liquidator was appointed on 12 May 2021.  In those circumstances, UDP Holdings had to prove its case for relief against AE Brighton, regardless of the position taken by Hagit in the proceeding.
51	The issues in dispute between UDP Holdings and Hagit were secondary, and contingent on UDP Holdings establishing its claim for relief against AE Brighton.  In contrast with the position in Bias Boating, any admissions by Hagit would not have resolved the primary dispute between UDP Holdings and AE Brighton.  UDP Holdings was put to its proof by AE Brighton’s denials, and not by the various positions Hagit took in the proceeding.
52	Indeed, although Hagit took a belligerent stance in its defence, it had moderated its position by the time of the trial.  It did nothing to further its objection to being joined as a defendant, or its plea that the proceeding was an abuse of process.  In its written opening submissions, it accepted that its claim ranked behind any claim that UDP Holdings might succeed in establishing.  Hagit did not take an active role in the trial, tendering no evidence and making no submissions.  It merely reserved its rights to pursue its claim for funds if UDP Holdings was unsuccessful.
53	In those circumstances, it would plainly be unjust to order Hagit to pay UDP Holdings’ costs of the entire proceeding.  Since UDP Holdings has resolved the costs issues between it and AE Brighton, I do not consider that a costs order should be made against any other defendant, including Hagit.
54	The only costs order that may be appropriate is an order that Hagit pay Mr Temelkovski’s costs of their respective summonses filed on 8 and 5 October 2021, and the hearing on 15 October 2021.  I will provide an opportunity for those two parties to make written submissions as to whether such an order should be made.
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