1st plaintiff v 1st plaintiff

[4] Northgate Park Pty Ltd v Floyd [2022] VSC 783, [6]-[8].

[5] More recently, Jodi has been appointed as litigation guardian for Merilyn as evidence was adduced of concerns relating to Merilyn's capacity to properly give instructions.

[6] Lay evidence was adduced in early October 2022 and expert evidence was given in late October 2022.

[7] Northgate Park Pty Ltd v Floyd [2022] VSC 783.

[10] It was not apparent whether Jodi's solicitors were involved in the preparation of this memorandum.

[11] On 2 February 2023, counsel for the Present Owners informed the court by email that the orders sought in the joint memorandum from the parties in the Advice Proceeding were inconsistent with a settlement agreement that had since been reached in the Main Proceeding: see par 12 below.

[12] The deed of settlement and release included the following clause: "The Parties acknowledge and agree that the question of whether Penny and Jason's costs incurred in relation to the [Advice Proceeding] are to be borne by them personally or by Northgate in its capacity as trustee of the [Family Trust] remains in dispute between the Parties and, in default of agreement as to who is to bear those costs, will be determined by the Court."

[13] This reflects the position stated in the Advice Judgment: Northgate Park Pty Ltd v Floyd [2022] VSC 783, [90].

[14] These included a 5 hour "mediation" (the circumstances of this meeting were self-evidently unsatisfactory) held on 15 January 2021 that was recorded and was the subject of evidence in the trial of the Main Proceeding.

[15] Some of the issues related to a partnership which may or may not have been dissolved. It is not necessary to refer to the detail.

[16] Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 261 CLR 544, 551 [16] (Kiefel, Bell and Gordon JJ), 571 [73] (Nettle J, dissenting). See also Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104, 116-117 [46]-[52] (French CJ, Nettle and Gordon JJ), 134 [118]-[120] (Bell and Gageler JJ); Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 352.2 (Mason J).

[17] Oxford English Dictionary (application at 6 March 2023) "incidental" (def 2).

[18] Oxford English Dictionary (online at 6 March 2023) "incidental" (def 2).

[19] [1932] ArgusLawRp 27; [1932] VLR 322.

[22] Mio Art Pty Ltd v Macequest Pty Ltd (No 2) [2013] QSC 271, [5], [17]-[20] (Jackson J); Aged and Community Care Victoria Ltd v Warley Hospital Inc [2011] VSC 145; (2011) 33 VR 102, 117-118 [70]-[73] (Habersberger J); Talacko v Talacko [2009] VSC 446, [5]-[7] (Osborn J); Fifteenth Eestin Nominees Pty Ltd v Rosenberg (No 2) [2009] VSCA 178; (2009) 24 VR 155, 195 [9] (Maxwell P, Neave and Redlich JJA); Re Hudson; Ex parte Citicorp Australia Ltd (1986) 11 FCR 141, 144.2 (Pincus J).

[23] [2009] VSCA 178; (2009) 24 VR 155.

[25] Ibid, 195 [9] (Maxwell P, Neave and Redlich JJA).

[27] [2009] VSC 446.

[29] [2009] VSCA 178; (2009) 24 VR 155.

[30] Talacko v Talacko [2009] VSC 446, [6].

[31] Compare, in relation to the correct meaning of "consequential loss", Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd [2008] VSCA 26; (2008) 19 VR 358, 389 [93] (Nettle JA, with whom Ashley and Dodds-Streeton JJA agreed).

[32] See par 8 above.

[33] Northgate Park Pty Ltd v Floyd [2022] VSC 783, [90].

[34] Mantovani v Vanta Pty Ltd (No 3) [2022] VSC 357, [10] (McMillan J); In re Buckton [1907] UKLawRpCh 98; [1907] 2 Ch 406, 414.4 (Kekewich J).

[35] See par 16 above.

[36] Northgate Park Pty Ltd v Floyd [2022] VSC 783, [16].

[37] FAI Traders Insurance Company Ltd v Savoy Plaza Pty Ltd [1993] VicRp 76; [1993] 2 VR 343, 350.6-351.6 (Brooking J, with whom Nathan and Eames JJ agreed), 353.3 (Nathan J).

[38] See par 11 above.

[39] See par 14 above.