Amcor v Barnes & Ors [2015] VSC 90

2 In particular, by a summons dated 10 December 2014, the Amcor Parties seek orders that:

(a) Achilla provide security for costs in the sum of $600,000; and

(b) if that security is not provided within 14 days, the entire counterclaim be dismissed.

4 If it is determined in this application that security for costs should be awarded, the matter is to be referred to a Judicial Registrar to assess the quantum of the security in the absence of agreement.

5 The power to require security for the defendants' costs arises under r 62.02(1)(b) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (the 'Rules') and s 1335(1) of the Corporations Act 2001 (Cth) (the 'Corporations Act'). Each provision creates an independent power to grant security. As the Court of Appeal observed in Livingspring Pty Ltd v Kliger Partners[1], while the provisions are expressed in different words, the relevant principles apply equally to both, and are well settled.[2]

6 Rule 62.02(1)(b) of the Rules provides that where:

the plaintiff is a corporation ... the Court may, on the application of a defendant, order that the plaintiff give security for the costs of the defendant of the proceeding and that the proceeding as against that defendant be stayed until the security is given.

7 Under r 62.01 of the Rules, defendant 'includes any person against whom a claim is made in a proceeding' (in this case, the Amcor Parties) and plaintiff 'includes any person who makes a claim in a proceeding' (in this case, Achilla).

8 Section 1335(1) of the Corporations Act provides:

Where a corporation is plaintiff in any action or other legal proceeding, the court having jurisdiction in the matter may, if it appears by credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence, require sufficient security to be given for those costs and stay all proceedings until the security is given.

(a) Is there a 'rational basis' founded on 'credible testimony' to believe that the plaintiff will be unable to pay the costs of the defendant if successful (which may be described as the 'threshold question')? and

(b) If so, should the discretion to grant security be exercised?

10 In order to succeed, it is for Amcor to show, by 'credible testimony', that there is 'reason to believe' that Achilla will be unable to pay Amcor's costs if Amcor is successful. This is a 'threshold condition'[3] for ordering security of costs, but it is a 'low threshold'.[4] There must be a 'rational basis for the belief - and no more.'[5] This involves a 'risk assessment', examining Achilla's financial affairs in a 'practical, commonsense' manner.[6] Satisfaction of the threshold issue calls for the Court to act judicially to ensure fulfilment of the purpose for which the power was conferred.

11 If the threshold question is established, the discretionary power to order security is enlivened.

12 In Epping Plaza Fresh Fruit & Vegetables Pty Ltd v Bevendale Pty Ltd,[7] Winneke P and Phillips JA, made the following observations as to the exercise of the discretion in a security for costs application:[8]

It is thus apparent that the justification for the statutory rule is that the defendant, not being a voluntary litigant, deserves to be protected from the consequences of limited liability. Those who seek to conduct their businesses through limited liability companies expect to receive the benefits which such liability attracts. It seems to us a necessary corollary that they should be prepared to accept the strictures imposed by the section [s 1335] if the company embarks upon litigation: Buckley v Bennell Design and Constructions Pty Ltd (1974) 1 ACLR 301, 304 (NSW Court of Appeal).

It has not been, and could not be, suggested that the section compels the court to order security against an impecunious corporate plaintiff. The court is given an unfettered discretion to do what is justly required by the circumstances of each case. Street CJ made this point in Buckley when he said, at 305:

It seems to me that the discretion could properly be regarded as ordinarily exercisable so as to protect a defendant sued by an impecunious company, but that, if the court in any case takes the view that this protection should not be afforded to the defendant, it has an unlimited and unrestricted discretion to give effect to such view without having to look for special circumstances.

13 The discretion is ''open ended' and is not to be fettered by rigid guidelines or principles',[9] although a number of factors have commonly proven to be relevant to the exercise of that discretion. These factors include 'whether the orders being sought would frustrate the claim, the merits of the claim, whether the defendant was the cause of the plaintiff's impecuniosity, and whether there was delay on the part of the applicant'.[10] However, whether the discretion should be exercised will depend upon all of the circumstances of the case.[11]

14 In exercising the discretion, as stated by the Court in Colmax Glass Pty Ltd v Polytrade Pty Ltd [12], the Court is required to:[13]

Carry out a balancing exercise. It must weigh the injustice to the plaintiff if it is prevented from pursuing a proper claim by an order for security, against the injustice to the defendant if no security is ordered and at trial the plaintiff's claim fails and the defendant is unable to recover costs ...

15 In other words, in the exercise of the discretion, courts aim to balance the consequences of a plaintiff corporation's limited liability with the risk of shutting out that plaintiff from conducting its litigation.[14]

16 The Amcor Parties accept that they bear the onus of satisfying the Court that security for costs should be ordered and there is no predisposition in favour of ordering security for costs. They submit however, that Achilla bears the onus of establishing discretionary factors in the event that it relies upon them to oppose security.

17 The consideration of this question by the Court of Appeal in Livingspring[15] calls for the submission as to onus advanced by the Amcor Parties to be clarified. It is not the case that once the threshold condition is satisfied the power to grant security will be exercised in the defendant's favour, unless the plaintiff corporation persuades the court (by reference to discretionary factors) that it should not be so exercised.

18 In the following passage in Livingspring[16] Maxwell P and Buchanan JA made it clear that an applicant for security, which is a defendant, bears the ultimate onus on both elements throughout:[17]

While the satisfaction of the threshold condition in the relevant sense "calls for" the exercise of the power, this does not alter the fact that the burden rests on the defendant, from first to last, to persuade the court that the order for security should be made.

19 However, the Court of Appeal in Livingspring[18] also made the observation that there are particular discretionary matters of which the plaintiff must necessarily have carriage. These are matters which lie uniquely within the knowledge of the plaintiff and are asserted by the plaintiff to persuade the Court to exercise the discretion in its favour. As observed by the Court of Appeal: 'If, for example, the plaintiff corporation asserts that an order for security would impose on it such a financial burden as would stultify the litigation, the plaintiff must establish the facts which make good that assertion'.[19] Two other examples referred to by the Court of Appeal in Livingspring,[20] where a plaintiff resisting the application is to have the carriage of establishing the necessary facts, are where it is part of the case of a company seeking to resist the order that the granting of the security will frustrate the litigation and does so by relying on the impecuniosity of those whom the litigation will benefit, and secondly where it is contended by a resisting plaintiff that its impecuniosity was caused by the defendant. In these cases an evidentiary burden falls on the plaintiff to prove the necessary facts.[21]

20 I turn to consider whether there is a 'rational basis' founded on 'credible testimony' to believe that Achilla will be unable to pay the costs of the Amcor Parties if they are successful in the proceeding.

21 The Amcor Parties submit that they have satisfied the threshold question by reliance on three bodies of evidence:

(a) First, it appears that Achilla is no longer trading. At a hearing before the Court of Appeal on 13 March 2014, counsel for Achilla advised the Court that 'the company is no longer running businesses.'[22]

(b) Second, effective 10 May 2013, the sole share in Achilla was transferred for $1.00 from ACB (Australia) Pty Limited, which had held that share beneficially, to Holihan Nominees Pty Limited, which does not hold the share beneficially.

(c) Third, a search of the Torrens Title Register reveals that Achilla does not hold any registered interest in land in any folios in the Register.

22 In support of this evidence, the Amcor Parties also place reliance on the absence before the Court of any accounting records or financial statements provided by Achilla that set out its financial position. They point to the fact that Achilla has refused repeated requests by the Amcor Parties for it to cooperate and produce such materials, including a letter from the Amcor Parties' solicitors to Achilla's solicitors dated 10 February 2015, which invited them to provide evidence of Achilla's financial position and its ability to pay any costs order. The Amcor Parties say that Achilla's failure to provide such financial material legitimately fortifies the 'credible testimony' upon which they rely.

23 I will deal with each of these items of evidence in turn.

24 Achilla accepts that it is no longer trading. Consequently, it must be accepted that the company no longer has any capacity to generate any cash flow from trading.

25 However, as observed by Brereton J in Coolangatta Property Pty Ltd v Emily Dyason,[23] the mere fact that Achilla no longer carries on business 'says very little, if anything at all, as to its ability to meet any adverse costs order (...) It says nothing as to what the respective assets and liabilities of the plaintiff are'.[24]

26 I have no evidence about income which may be derived from any other source, for example investments, and no evidence about its expenses (if any). Apart from some evidence as to not owning any real estate and the claimed asset of a positive costs order in its favour (in both cases as to which, see below), I have no evidence as to what assets Achilla may have (other than not having any real estate) and what are its liabilities.

27 There was a change in ownership of Achilla pursuant to which the sole share in the company was transferred from ACB (Australia) Pty Limited to Holihan Nominees Pty Ltd with a recorded consideration of $1.00.

28 However, the change in shareholding does not affect Achilla's financial capacity to meet any adverse costs order.

29 Searches of public records demonstrate that Achilla owns no real estate.

30 Again, apart from the claimed asset of a positive costs order in its favour (as to which, see below), I have no evidence as to what other assets Achilla may have and what are its liabilities.

Achilla's Failure to Provide Financial Information

31 The Amcor Parties say that Achilla's failure to provide such financial material legitimately fortifies the 'credible testimony' upon which they rely.

32 Against this position, it is to be noted that the Amcor Parties did not undertake the exercise of eliciting such material before the Court, either by way of subpoena or notice to produce.

33 Nevertheless, I am satisfied that the Amcor Parties did make enquiries of Achilla by written communications through their solicitors inviting it to put its financial position before the Court which would establish its capacity to meet any adverse costs order made against it in the proceeding. Achilla declined to do this.

34 Consequently, I have no statements of financial performance, cash flow statements, balance sheets, bank statements, audited accounts, accounting records or the like which set out Achilla's financial position and its capacity to meet any adverse costs order.

35 The Amcor Parties refer to a body of case law on the issue.[25]

36 In Second Lenbourne Pty Ltd v Beagle Management Pty Ltd,[26] Goldberg J was satisfied that there was sufficient evidence before him to demonstrate the inability of the applicants to pay the respondents' pretrial costs. In arriving at this conclusion his Honour was assisted in drawing an inference of that inability by the refusal of the applicants to produce their financial accounts in response to notices to produce. However, in taking this course, Goldberg J expressly declined to use the rule in Jones v Dunkel[27] to 'fill gaps in the evidence or to convert conjecture or suspicion into a matter of inference'.[28]

37 Reference is made to the unreported judgment of the Supreme Court of Western Australia in Blackbird Entertainment Pty Ltd & anor v I O Research Pty Ltd,[29] where White J said:[30]

Furthermore, the failure, which must, I consider, be regarded as deliberate, to disclose their financial position in Ainsworth's replying affidavit provides support for that proposition, on the principle of Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. As to that, I respectfully adopt what Murray J said in Tipperary Developments Pty Ltd(supra), at 8-9:

"For the defendant it is argued that I may have regard to the failure of the plaintiff to provide complete information about its financial position and prospects and by applying what is generally referred to as the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, that the unexplained failure of a party to give evidence may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party's case, so entitling the court the more readily to draw an inference against that party which might otherwise fairly be drawn from the evidence which was adduced. That is, of course, an important limitation upon the operation of the rule. It is limited to assisting the court to draw an inference which is available from circumstantial evidence. The absence of evidence to the contrary may not, however, be directly converted into circumstantial evidence itself tending to prove the fact in issue against the silent party, as was made clear in Jones v Dunkel itself. The rule cannot be used to fill gaps in the evidence or to convert conjecture or suspicion into a matter of inference:

See per Kitto J at 308, Menzies J at 312 and Windeyer J at 321. Therein lies the impediment to the application of the rule in this case."

38 In Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [No 2][31] Murphy JA, in the course of considering an application for security for costs under s 1335(1) of the Corporations Act, reasoned that, in all the circumstances before him in the application, it appeared by credible testimony, there was reason to believe that the plaintiff would be unable to pay the costs of the defendants if they were successful in their defence of the action. His Honour was

fortified in drawing that inference, although my finding does not depend on it, by the plaintiff's failure or refusal to disclose its financial position after 2002, following inquiry by the defendants prior to this application: FFE Minerals Australia v Mining Australia [25]; Second Lenbourne Pty Ltd v Beagle Management Pty Ltd [1999] FCA 486 [9], [31].[32]

39 I accept the approach of White J in Blackbird Entertainment,[33] in reasoning that the rule in Jones v Dunkel[34] is limited to assisting the court to draw an inference which is available from circumstantial evidence. The absence of evidence to the contrary may not, however, be directly converted into circumstantial evidence itself tending to prove the fact in issue against the silent party. In other words, the rule cannot be used to fill gaps in the evidence or to convert conjecture or suspicion into evidence in the nature of inference.

40 Accordingly, a failure to provide financial information in the face of a valid Court process, either in answer to a subpoena or a notice to produce, or in response to a reasonable request on the part of a defendant, may assist or fortify a conclusion based on direct evidence or upon inferences to be drawn from the other evidence as to the inability of the plaintiff to pay the defendant's costs should the defendant be successful. But it cannot of itself provide such evidence or give rise to that conclusion.

41 In any event, Achilla seeks to explain its failure to put on evidence as to its financial position by reason that:

(a) In circumstances where a defendant has not proffered evidence of the plaintiff's financial position, the plaintiff is entitled to decline to provide an account of its financial position; and

(b) Achilla's reluctance to expose its financial information to the Amcor Parties in this case is explicable on the basis that it is the confidential information of a privately-owned family company, when the Amcor Parties have been aggressively pursuing Achilla and its director and a related company in litigation since 2007.

42 In Christou v Stanton Partners Australasia Pty Ltd[35] Newnes JA, with whom Murphy JA agreed, said:[36]

I also do not accept that the filing by the appellants of an application for security for costs gave rise to some obligation on the second respondent to provide a full account of its financial position. That is to put the cart before the horse. In order to enliven the court's discretion there must be material before it which is sufficiently persuasive to permit a rational belief to be formed that, if ordered to do so, the second respondent would be unable to pay the appellants' costs if the second respondent were to be unsuccessful in the action; mere speculation as to the second respondent's insolvency or financial difficulties is not sufficient: see Warren Mitchell Pty Ltd v Australian Maritime Officers' Union (1993) 12 ACSR 1; Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744 [60]-[61]. In circumstances where the appellants had not troubled themselves to put any material before the court relating to the second respondent's financial position, it was not incumbent upon the second respondent to fill that gap. The second respondent apparently took the view (rightly, in my opinion) that the discretion had not been enlivened and was content to leave the matter at that. It was entitled to do so.

43 I respectfully adopt this analysis of Newnes JA in Christou.[37]

44 In the present case, there was no obligation on the part of Achilla to provide a full account of its financial position. I accept that Achilla took the view that the threshold issue could not be answered in favour of the Amcor Parties on the material before the Court, and that the discretion could not be enlivened. It was entitled to take this course and not put on any detailed financial evidence.

45 As to the second matter, the explanation advanced by Achilla for not supplying details of its financial circumstances may well have provided an explanation for not putting on such evidence for the purposes of Jones v Dunkel,[38] but for reasons already explained, no Jones v Dunkel[39] inference is capable of being drawn in this case.

46 Although it declined to put on evidence as to its precise financial position, Achilla did advance a positive case with the object of satisfying the Court that it had the requisite financial capacity. It relied upon these factors:

(a) Achilla has met every prior costs order made against it since this Proceeding commenced in 2007, which demonstrates that Achilla clearly has the capacity to meet costs orders; and

(b) Achilla owns a significant asset, being its entitlement to payment of its costs following the trial of the Amcor Parties' unsuccessful claim against it (pursuant to the orders of the Court of 21 June 2013). Those costs are the subject of a gross sum assessment order and are in the process of being assessed by the Costs Court.

47 As to the payment of costs orders by Achilla, it submits that it has thus far consistently met its obligations for the payment of costs ordered against it in this proceeding, and that such costs paid by Achilla total more than $100,000.

48 However, I accept that an amount was paid in satisfaction of costs orders by the Court of Appeal dated 13 September 2013 and authenticated 24 September 2013 but that amount was for a total less than $100,000. The Court of Appeal granted the Holihan Parties, including Achilla, a certificate under the Appeal Costs Act 1998 (Vic).

49 Moreover, it is not apparent from the receipt stub whether the money came from Achilla or from one or more of the Holihan Parties as the money was directly deposited in an Amcor account. The costs order in satisfaction of which this money was paid was made against all of the Holihan Parties and it is not known to what extent (if any) the costs order was met by Achilla in its own right. In the absence of this important detail, I discount this factor relied upon by Achilla.

50 In relation to Achilla's entitlement to payment of its trial costs by the Amcor Parties, the quantum of the debt cannot be determined with precision prior to completion of the assessment which is currently before the Costs Court (and which won't be determined until towards the end of this 2015 year). The assessment is to be undertaken on a gross sum basis and conducted in two phases, disbursement costs and profit costs in relation to skill, care and attention exercised by the solicitors. However, I accept that, as the actual costs the subject of the assessment exceeded $1 million in solicitors' fees and a further $1 million in disbursements, the inescapable inference is that the sum to be assessed will be significant. Further, I accept that the independent expert commissioned by Achilla has filed her report in the first phase of the assessment process (which deals only with counsel's costs of appearance at trial, expert's fees, and costs of trial transcript), and has assessed those costs alone to exceed $276,000.

51 I accept that these costs are payable by the Amcor Parties. However, the extent to which Achilla itself will benefit from the payment of costs ordered against the Amcor Parties, when those costs are eventually paid following the Costs Court assessment, is significantly blurred.

52 Achilla finds itself as one of the parties in the group of parties known as the 'the Holihan Parties'.

53 The costs order was made in favour of all of the Holihan Parties without distinction as to which party should benefit. Accordingly, it is unknown whether Achilla itself will benefit from the costs order, and if it does, it is not known whether, and to what extent, it will be liable to other of the Holihan Parties to reimburse them for legal fees previously advanced by them. Further, it is not known which of the Holihan Parties might permit Achilla to receive an amount of the costs award and the amount of any such allowance.

54 Next, it is relevant to note that an appeal has been brought against the principal judgment to which these costs orders relate. This potentially may result in a reversal or reduction or re-allocation of the costs liability in the costs order made to date.

55 Finally, there is no guarantee that payment in respect of any costs order received by Achilla will be retained by it pending completion of the trial on its counterclaim.

56 I am not satisfied that the material before the Court is sufficiently persuasive to permit a rational belief to be formed that, if ordered to do so, Achilla would be unable to pay the costs of the Amcor parties, if it was to be unsuccessful in its counterclaim. The absence of real estate assets, combined with a low share capital, and the fact that it has ceased to trade, are all based upon credible testimony, however, together they do not provide reason to believe that Achilla will be unable to meet an adverse costs order if made against it in its counterclaim proceeding.

57 The 'threshold question' is therefore not satisfied in favour of the Amcor Parties.

58 In arriving at this conclusion, the absence of any financial records put on by Achilla in the face of reasonable requests by the Amcor Parties for the provision of such information, is not sufficient to fill the gaps in the evidence.

59 The power to order security not having been enlivened, there is no need to focus attention on the factors that may guide the Court's discretion as to whether to make such an order. However, even if Amcor was able to make out the threshold question, I would not have exercised the discretion in Amcor's favour in this case.

60 Achilla relies upon four discretionary factors in support of its contention that no security should be ordered. Each will be considered in turn.

61 It was submitted on behalf of Achilla that until such time as they satisfy the costs order against them, the Amcor Parties are effectively in possession of a significant measure of security.

62 However, by reason that the costs order made against the Amcor Parties is in favour of the Holihan Parties as a group, without any differentiation in relation to a costs package payable to Achilla in its own right, I discount this as a proper factor to be taken into account in the exercise of the discretion.

63 A significant factor in the exercise of the discretion is the delay on the part of the Amcor Parties in making and prosecuting this application for security for costs.

64 Mason CJ said in Devenish & Ors v Jewel Food Stores Pty Ltd:[40] 'As a general rule, applications for security for costs should be made promptly and before significant expense is incurred.'

65 This theme was reinforced by Derham AsJ when he observed in Colmax:[41]

The company, which can be assumed to be in financial difficulties, is entitled to know its position in relation to security at the outset, and before it embarks to any real extent on its litigation, and certainly before it makes a substantial financial commitment toward litigating the claim ...

...

As a rule, an application for security should be made promptly once the defendant has knowledge of the facts that would justify the making of an order. Delay in applying brings with it the inevitable consequence that an order for security might unfairly prejudice Colmax, which has no doubt incurred a considerable liability for costs so far.

66 Where delay has occurred, the reason for and the degree and effect of the delay are matters to be taken into account in determining whether the discretion should be exercised against the making of an order for security on the ground that to do so would be unfair or oppressive. In this respect, the observations of Newnes JA (also adopted by Murphy JA) in Christou[42] are referred to where the Court of Appeal said in the following passage:[43]

There are, however, degrees of delay and the effect of delay will vary according to the circumstances. The reason for the delay will also be an important consideration. Where delay has occurred it will not necessarily bar an order for security for costs, but generally the longer the delay, the more proximate the hearing and the more that has been done by the plaintiff to advance the case, the greater will be the significance of the delay and the more difficult it will be for the defendant to persuade the court that an order for security for costs will not be unfair or oppressive.

67 In this case, the delay on the part of the Amcor Parties in prosecuting the present application for security for costs has been established, and carries with it significant potential for an order for security, however it is framed, to be unfair and oppressive in effect. No satisfactory explanation has been proffered by the Amcor parties for the delay.

68 The trial of the counterclaim has been set down and is imminent. The trial has been set down for hearing on 18 May 2015 with an estimate of 4-6 weeks. The scope and scale of the evidence is considerable.

69 Achilla has undertaken considerable work for the trial, including the filing of witness statements in readiness for the trial pursuant to pre-trial orders made on 12 September 2014. All of the Holihan parties' expert and lay evidence were served by 10 November 2014. This evidence is voluminous. However, the application for security was not issued by the Amcor parties until 10 December 2014.

70 The most significant effect of the delay is this: the Amcor parties have permitted Achilla to incur the most significant portion of its pre-trial expenses before launching an application for security for costs.

71 In these circumstances, even if on the material before it the Court was satisfied that the threshold question had been made out, by reason of the delay I would have declined to exercise the discretion to order security for costs in Amcor's favour.

72 The Amcor Parties seek three orders in the alternative, namely:

(a) Achilla is to pay the Amcor Parties security for costs as fixed and ordered in the above matter by 4 pm on the day four weeks after the due date of that order, otherwise Achilla's counterclaim be dismissed without further order.

(b) Achilla is to pay the Amcor Parties security for costs as fixed and ordered in the above manner by 4 pm on the day four weeks after the date of that order, and if it fails to do so its claim is stayed.

(c) Any payment ordered to be paid by the Amcor Parties in respect of the claim for costs as set out in the Initial Report of Jenny Young dated 30 January 2015 and filed by the Holihan Parties in the gross sum assessment of costs in proceeding S CI 2007 8181 is to be paid into Court or into a Trust Account as directed by the Court and shall not be disbursed in whole or in part without a further order of the Court.

73 However, it follows from the findings made that the application of the Amcor Parties for security for costs against Achilla should be dismissed with costs.

[1] [2008] VSCA 93; (2008) 20 VR 377, ('Livingspring').

[2] Livingspring (2008) 20 VR 37, 380-1 [10] (Maxwell P and Buchanan JA).

[3] Livingspring [2008] VSCA 93; (2008) 20 VR 377, 382 [19].

[4] Livingspring [2008] VSCA 93; (2008) 20 VR 377, 382 [16].

[5] Livingspring [2008] VSCA 93; (2008) 20 VR 377, 382 [15].

[6] Livingspring [2008] VSCA 93; (2008) 20 VR 377, 382 [15].

[7] [1999] VSCA 43; [1999] 2 VR 191, ('Epping Plaza').

[8] Epping Plaza [1999] VSCA 43; [1999] 2 VR 191, 195 [14]-[15].

[9] Epping Plaza [1999] VSCA 43; [1999] 2 VR 191, 195 [16].

[10] Trility Pty Ltd v Ancon Drilling Pty Ltd [2013] VSC 577, 15 (Croft J).

[11] See, eg, Ariss v Express Interiors Pty Ltd (in liq.) [1996] 2 VR 507, 514; Epping Plaza [1999] VSCA 43; [1999] 2 VR 191, 196; Livingspring [2008] VSCA 93; (2008) 20 VR 377, 382 [19].

[12] [2013] VSC 311, ('Colmax').

[13] Colmax [2013] VSC 311 [19].

[14] See Tradestock Pty Ltd v TNT (Management) Pty Ltd [1977] FCA 1; (1977) 14 ALR 52, 56 (Smithers J).

[15] [2008] VSCA 93; (2008) 20 VR 377, 383 [21].

[16] [2008] VSCA 93; (2008) 20 VR 377.

[17] Livingspring [2008] VSCA 93; (2008) 20 VR 377, 383 [21].

[18] [2008] VSCA 93; (2008) 20 VR 377, 383 [21].

[19] [2008] VSCA 93; (2008) 20 VR 377, 383 [22].

[20] Livingspring [2008] VSCA 93; (2008) 20 VR 377, 383 [22].

[22] Transcript of hearing before Court of Appeal, 13 March 2014, at p 60 lines 23-24.

[23] [2011] NSWSC 929.

[24] Coolangatta Property Pty Ltd v Emily Dyason [2011] NSWSC 929 [8] (Brereton J).

[25] Second Lenbourne Pty Ltd v Beagle Management Pty Ltd [1999] FCA 486 [9], [31] (Goldberg J); Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [No 2] [2010] WASC 225 [10] (Murphy JA); Trility Pty Ltd v Ancon Drilling Pty Ltd [2013] VSC 577 [22]-[24] (Croft J); Citicorp Australia Ltd v Cirillo (2003) 228 LSJS 132, 134 [12] (Sulan J); Ffe Minerals Australia Pty Ltd v Mining Australia Pty Ltd [2000] WASCA 69; (2000) 22 WAR 241, 248-9 [25].

[26] [1999] FCA 486 [9], [31] (Goldberg J).

[27] [1959] HCA 8; (1959) 101 CLR 298.

[28] Second Lenbourne Pty Ltd v Beagle Management Pty Ltd [1999] FCA 486 [31].

[29] (Unreported, Supreme Court of Western Australia, White J, 2 June 1998), ('Blackbird Entertainment').

[30] Blackbird Entertainment (Unreported, Supreme Court of Western Australia, White J, 2 June 1998) 16.

[31] [2010] WASC 225.

[32] Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [No 2] [2010] WASC 225 [10] (Murphy JA).

[33] (Unreported, Supreme Court of Western Australia, White J, 2 June 1998) [23].

[34] [1959] HCA 8; (1959) 101 CLR 298.

[35] [2011] WASCA 176, ('Christou').

[36] Christou [2011] WASCA 176 [34].

[37] [2011] WASCA 176.

[38] [1959] HCA 8; (1959) 101 CLR 298.

[39] [1959] HCA 8; (1959) 101 CLR 298.

[40] [1990] HCA 35; (1990) 94 ALR 664, 666 (Mason CJ).

[41] [2013] VSC 311 [20(f)], [44].

[42] [2011] WASCA 176.

[43] Christou [ 2011] WASCA 176 [22].