Ballymoss Pty Ltd v Kollaras & Co Pty Ltd

"10. If the defendant satisfies the threshold condition, the Court has an unfettered discretion to award security for costs, which must be exercised judicially, having regard to all of the circumstances.

1. 11. The factors commonly considered to be relevant in the exercise of the discretion have included the following:

(b) whether the orders being sought would stultify the claim;

(c) whether the defendant was the cause of the company's impecuniosity;

(d) whether there was delay in making the application;

(e) whether there are any persons standing behind the company who are likely to benefit from the litigation and who are willing to provide the necessary security;

(f) whether the persons standing behind the company have offered any personal undertaking to be liable for the costs and if so, the form of any such undertaking; and

(g) whether the company is in substance a defendant, as an order ought not be made against parties who are defending themselves and thus forced to litigate.

1. The burden of satisfying the Court that the threshold condition has been met and that the Court should exercise its discretion to order security for costs rests on the defendant 'from first to last.' However, matters that are peculiarly within the knowledge of the plaintiff, such as:

(a) whether an order for security would stultify its capacity to conduct the litigation or be oppressive; and

(b) whether the plaintiff's impecuniosity was caused by the defendant,

1. In exercising its discretion, the Court is called upon to balance the risk of a successful defendant being unable to enforce a costs order against the prospect of an impecunious corporation being prevented from pursuing a bona fide claim."
2. It is not necessary that each of the discretionary factors be examined - much depends upon the individual facts of each case.[43]

1. Ballymoss had sought security in the total amount of $216,446.80. This comprised $137,096.80 pursuant to the second MacDougall affidavit dated 7 December 2022 and $79,350 pursuant to the Dowd affidavit dated 16 March 2023. A detailed breakup of the costs sought relating to the first sum was set out in a letter to Kollaras' solicitors from Ballymoss' solicitors dated 2 November 2022. The security sought related to costs incurred after 15 July 2022 and included costs relating to the further discovery provided by Kollaras in September 2022 of the Tab 8 documents which compromised nine lever arch files, two of which contained some 126 Excel spreadsheets. This was reviewed by a forensic accountant engaged by Ballymoss, namely Korda Mentha. Costs were also claimed for Counsel's fees associated with reviewing the discovery and amending the defence dated 7 November 2022.
2. At the hearing, Ballymoss withdrew its claim for security for costs associated with the third-party notice of $17,600, referred to in the MacDougall affidavit. As for the costs claimed in the Dowd affidavit, the only remaining costs pressed were the first two items, namely, $2,000 for costs of compliance with an earlier order and $500 for the reply.
3. The total amount of further security was revised and reduced to $121,996.80. Ballymoss said this was the full amount it now sought but accepted it was usual practice to apply some discount.[44]
4. Ballymoss contends there is reason to believe that Kollaras has insufficient assets in Victoria to pay Ballymoss' costs of the proceeding if ordered to do so by reason of the following:

(a) Kollaras has failed to refute the assertion made by Ballymoss in October 2021 that for the year ended 30 June 2020, Kollaras had: > > > (i) negative equity of $3,852,681; > > > > (ii) had current liabilities exceeding its current assets; > > > > (iii) was prima facie insolvent; > > > > (iv) had received a qualified opinion from an independent auditor because of events or conditions "which give rise to the existence of a material uncertainty that may cast doubt about the company's ability to continue as a going concern and therefore the group may be unable to realise its assets and discharge its liabilities in the normal course of business;"[45] > > (b) Kollaras has a full paid share capital of only $10,006; > > (c) Kollaras has not lodged financial statements with ASIC since 30 June 2020; > > (d) financial statements for the year ending 30 June 2020 disclosed a loss of $10,440,525 for that financial year and a net asset deficiency of $3,852,681; and > > (e) Kollaras' failure, by its proper officer, to swear any affidavit as to its assets, liabilities or profit/loss and its capacity to satisfy any order for costs made against it in the proceeding.

5. Ballymoss relies on Trailer Trash Franchise Systems Pty Ltd v GM Fascia & Gutter Pty Ltd (Trailer Trash),[46] where the Victorian Court Appeal provided guidance on a Court's function in assessing an appropriate amount for security of costs.

"[T]he Court does not seek to provide full protection for the estimated costs of the party seeking security. Rather, having regard to the fact that the order for security is usually made at an early stage of a proceeding and there are many contingencies that will affect the actual costs incurred by that party, the Court fixes an amount that it considers adequate in all the circumstances of the case. Those circumstances include the nature of the proceeding, the nature and complexity of the steps that need to be undertaken by the party seeking security, the likely costs in undertaking those steps, the length of the trial, any security already provided, and the possibility that the proceeding may settle.

In determining a sufficient amount for security for costs the Court does not undertake precise mathematical calculations. Rather, it adopts a 'broad brush' approach involving 'guesstimates as much as estimates.' However, the broad brush approach does not involve an abstract process. It must have an evidentiary basis. The Court must have regard to the evidence adduced by the parties as to quantum - whether in the form of an affidavit by an experienced litigation lawyer or an expert report by a costs consultant - although it is not bound by the parties' estimates. The Court may scrutinise the individual items in the parties' estimates, but not to the extent of minute examination akin to a taxation.

The amount ultimately fixed by the Court must not be so low that it fails to provide any real protection to the party seeking security or so high that it is oppressive to the party required to provide the security. The amount must be 'just and reasonable' in all the circumstances of the particular case."

1. On 20 May 2022, Judge Cosgrave ordered that additional discovery by Kollaras be served by 1 June 2022. The additional discovery comprising the Tab 8 documents were not provided in electronic form by Kollaras until 5 September 2022. The Tab 8 Documents comprised spreadsheets of data records, product items, sales of stock, customers, quantities, prices, import duty recovered from the ABF and unpaid import duty. The documents relate to alcoholic products in respect of every transaction listed in Annexure A to the SACC and are extracts from the ERP system operated by Kollaras. When printed the documents comprise some nine arch lever folders and include 126 Excel spreadsheets.
2. On 15 July 2022, when Ballymoss and Kollaras consented to an order that the Kollaras provide security of $53,818, discovery of the Tab 8 Documents had not been made. The extent of the documents was unknown. The amount of $15,000 allocated for the forensic accountant's fees had been sought solely in respect of Ballymoss' costs of compliance with Order 5 of orders made by Judge Macnamara on 26 April 2022.
3. Ballymoss now seeks $75,000 for forensic accountant's costs incurred in reviewing the Tab 8 documents. Ballymoss submits the $75,000 sought for forensic accountant's costs incurred after 5 September 2022 to analyse the Tab 8 documents it not a duplication of security previously paid by Kollaras as it relates to different tasks undertaken. The nature of the work undertaken comprising the sum of $75,000 is deposed to by Mr Ross of Korda Mentha in his affidavit of 7 November 2022.
4. As part of the additional security sought by Ballymoss, $17,600 is claimed for costs of counsel in considering the Tab 8 Discovery in settling the Defence to the SACC.

1. Kollaras argues Ballymoss has not met the threshold test which must be satisfied before the discretionary power to order security for costs is enlivened.[47]
2. It submits the well-established principles regarding the exercise of the Court's discretion may be summarised as follows:[48]

(a) The applicant for security bears the onus of establishing that the discretion should be exercised in its favour. > > (b) The Court does not seek to provide full protection for the estimated costs of the party seeking security. Rather, having regard to the fact that the order for security is usually made at an early stage of a proceeding, the Court fixes an amount that it considers adequate in all the circumstances of the case. Those circumstances include, among other things, any security already provided and the possibility that the proceeding may settle. > > (c) In determining a sufficient amount for security for costs, the Court does not undertake precise mathematical calculations. Rather, it adopts a "broad brush" approach involving "guesstimates as much as estimates." However, the broad-brush approach does not involve an abstract process. It must have an evidentiary basis. > > (d) The amount of security ordered must be "just and reasonable" in all the circumstances of the particular case. > > (e) The grant of security for past costs is a matter entirely within the Court's discretion; the longer the delay and the greater the costs the plaintiff has been allowed to incur, the less likely it is that an order will be made. > > (f) Prejudice to a plaintiff is assumed and presumed because of a delay in making an application for security. > > (g) Absent exceptional circumstances, the costs of third-party proceedings are not normally properly the subject of an order for security costs because it is a separate proceeding made by the defendant as plaintiff against the third party as defendant. The same principle applies to contribution claims between defendants. > > (h) A significant discount may be warranted if the costs are considered to be at the "high end" or reflecting a "deluxe approach."

3. Kollaras argued the totality of the evidence advanced by Ballymoss on its financial position is insufficient to make good the proposition that it will be unable to meet an adverse costs order. The evidence relied upon by Ballymoss is no different to countless other companies trading successfully and responsibly. The application is based on conjecture and speculation and the Court would be unable to draw a "reasonable and definite inference" from such evidence.[49]
4. Kollaras argued there was a lack of credible testimony from Ballymoss. The contents of paragraph 11 of the Dowd affidavit were insufficient to satisfy the onus placed upon Ballymoss to adduce credible evidence of Kollaras' alleged financial inability to pay costs. The information contained in the ASIC search exhibited to the Dowd affidavit was inadequate. The fact that there was $10,006 paid up share capital went nowhere. There was indeed a reference to a low risk credit score in the search. The change of place of business did not affect the issue. Mere speculation is insufficient to satisfy the requirement for credible testimony.[50]
5. Contrary to Ballymoss' submissions, there was no obligation upon Kollaras to refute various allegations. The onus remained upon Ballymoss at all times. Further, it is not conceded that merely because Kollaras provided security in the past by consent, that this meant the threshold requirement had been satisfied.
6. Kollaras submits that if the Court disagrees and finds the discretion is enlivened, satisfaction of the threshold test alone does not dictate the making of an order for security for costs. The factors weighing against the making of an order for further security were:

(a) substantial security had already been provided to cover up to the handing down of judgment after trial; > > (b) Ballymoss has had several opportunities to estimate its likely costs when requesting earlier amounts of security - this was now the fourth application; and > > (c) many of the costs now claimed appeared to be for costs already incurred before the filing of the discovery application on 8 December 2022 - these are past costs which should not be allowed.

7. Ballymoss already has three orders for security made by consent totalling $314,518. These orders are:

1. Consequently, Ballymoss is not unprotected given a substantial sum of security has been ordered already.
2. Further, the orders made on 2 March 2022 and 15 July 2022 were expressly for costs "up to and including handing down of judgment after the final hearing in the proceeding." Kollaras argues there is no acceptable reason that the security now sought was not contemplated and could not have been sought on a previous occasion when security was considered. This is now the fourth application and there should be an end to it.
3. Ballymoss has already received security for much of the costs that it now seeks. As an example, Kollaras notes that Ballymoss sought security of $42,750 to cover counsel's fees of settling its defence to counterclaim. The orders made on 15 July 2022 encompassed fees for counsel for settling the defence. However, Ballymoss now seeks a further $17,600 for counsel's fees for settling its defence.
4. Weighing against the Court ordering the payment of any further security is that the sum of $137,096.80 referred to in the MacDougall affidavit relates entirely to costs already incurred by Ballymoss prior to the filing of its summons on 8 December 2022. The same is true in respect of aspects of the sum of $79,350 referred to in the Dowd affidavit although at the hearing, most of these costs were abandoned. Ballymoss should not awarded security for costs which have already been incurred being past costs.
5. Additionally, Kollaras notes Ballymoss does not allege the counterclaim is not made bona fide or does not have reasonable prospects of success.
6. If contrary to Kollaras' submissions, the Court does grant security, Kollaras disputes the quantum sought. It argues it would not be just and reasonable to make an order in the amount sought by Ballymoss. This is due to:

(a) the quantum sought by Ballymoss appears to be a full indemnity for its costs with no discount applied; > > (b) the quantum sought does not appear to make any provision for the security already provided or the prospect that the proceeding may settle; > > (c) Ballymoss seeks approximately $24,000 in respect of its claims against VP Brands and the Commonwealth of Australia. Those claims are not recoverable against Kollaras. This part of the claim was abandoned by Ballymoss at the hearing; and > > (d) the costs in respect of which security are sought are extremely "high end" and reflect a deluxe approach.

7. Consequently, the quantum of the security is severely inflated and should be substantially discounted. The figures for counsel's fees should be discounted by 20 percent. The costs claimed of 20 days for the forensic accountant were excessive and plainly unreasonable A "Rolls Royce' approach should not be permitted. An appropriate figure would be $40,000 before a discount was applied with the result that at most, Ballymoss should receive a figure in the order of $20,000 to $30,000.
8. In reply, Ballymoss noted it relied on all the affidavits referred to and not just the Dowd affidavit. This included the extract of the independent auditor's report exhibited as Exhibit "DCM-8" to the first MacDougall affidavit. As noted in Amcor, the threshold requirement imposes a low burden. Unlike Amcor, in this case there are financial reports in evidence which disclose a deficiency in net assets and a loss of $10.4m. Ballymoss further argued there was no substantial delay in making the additional request as after receiving the Tab 8 documents in September, its solicitors made a request in November 2022. Ballymoss accepted that a discount should be given on its claimed sum. It also said that the mere fact that the costs claimed were past costs was not an impediment to an award of security in the exercise of the Court's discretion.[51]

1. Dealing first with the threshold requirement, I am persuaded that Ballymoss has satisfied the threshold test although the matter was not free from doubt. The issue of the paid up share capital is not enough.[52] Nor do I consider the change in address advances the matter at all. The assertion made in the submissions that Kollaras is prima facie insolvent is not borne out by any hard evidence that Kollaras is unable to pay its debts as and well they fall due - it is merely an assertion or speculation. I also accept that it was not incumbent upon Kollaras to enter the fray and provide opposing material given the onus always rested upon Ballymoss to adduce credible testimony, which Kollaras alleged it had failed to do so.
2. But there is evidence being information taken from financial statements that Kollaras had a substantial loss of $10.4m in the year ended 30 June 2020 and had a net asset deficiency. It has not lodged any further statements with ASIC since 2020 so there is no information before the Court to show whether the position has changed from 2020. There is also the extract of the independent auditor's report from 2020 in evidence. It states there are events or conditions which give rise to the existence of a material uncertainty that may cast significant doubt on the company's ability to continue as a going concern and Kollaras may therefore be unable to realise its assets and discharge its liabilities in the normal course of business.[53] Given these matters, I am satisfied that Ballymoss has done enough to meet the threshold test which has been described variously as a low one or undemanding or fairly modest.[54] Ballymoss has provided sufficient and credible evidence in my view, to show that Kollaras may not be able to pay Ballymoss' costs, should it successfully defend the counterclaim.
3. The next issue is whether there are relevant discretionary factors which militate against an order being made. Kollaras argues that security should not be ordered because Ballymoss already has adequate protection by reason of the earlier security given by consent. It should not be allowed, by way of a fourth application, to top up the security sought when the last two orders expressly covered costs up to and including the delivery of judgment after trial. It should have foreseen the costs it now seeks. The costs now sought represent mostly past costs and were incurred prior the discovery application being made in December last year. As to that, Ballymoss says there was no real delay as the request for additional security was made promptly after Kollaras gave discovery in September 2022 of documents, including the Tab 8 documents.
4. Whilst there should be an end to requests for security, the circumstances relating to the additional security relate to the Tab 8 documents primarily. Ballymoss says it has incurred significant costs in reviewing the documents and retaining Mr Ross of Korda Mentha to analyse the documents. Whilst it was incumbent on Ballymoss to assess its future costs with some degree of accuracy when seeking security, the reasons for the top up now sought have been explained.
5. There would be a risk, in my view, that Ballymoss may not recoup these further costs if it were successful unless security was ordered. The mere fact that most of these costs were incurred before the application was filed and therefore are "past" costs, is not of itself a basis for rejecting the application. Past costs are not automatically excluded in applications of this sort.[55] I am also satisfied that there is no real delay on the part of Ballymoss given the sequence of events regarding the production of the Tab 8 documents which would prevent an order now being made.
6. Although Ballymoss suggested in reply oral submissions that that there could be some doubts about Kollaras' prospects of success given the discovery issues raised, I am not persuaded the counterclaim is not made bona fide or lacks reasonable prospects of success. I am satisfied that Kollaras has an arguable cause of action.
7. Overall, I was not persuaded by the various arguments raised by Kollaras that I should not order security in the exercise of my discretion, in circumstances where the jurisdiction was enlivened.
8. The final aspect relates to quantum. I consider that there is some force in the submission made by Kollaras that the costs claimed are "deluxe" and represent a full indemnity. Whilst self-evidently Ballymoss can chose to incur costs as it sees fit, including the costs of a forensic accountant, regard must be had to proportionality of those costs in assessing whether they would be recoverable upon a party/party taxation of costs. I accept that the costs are at the high end and would not be allowed in full upon a taxation.
9. The costs claimed are now in the order of $121,000. $75,000 of this represents the fees of the forensic accountant for 20 days work. Doing the best I can and not sitting as a taxing officer, I consider the costs should be reduced to a reflect a figure more in keeping with party/party costs rather than a full indemnity amount. Allowing for the costs to be assessed on a party/party basis, I would reduce the sum claimed by 50 percent to arrive at $60,000. Accepting the likelihood that not all the costs claimed may be allowed upon a taxation as being reasonable and necessary, for example, 20 days claimed for the forensic accountant, I would further discount the sum sought by 20 percent. I will therefore order that Kollaras provide the sum of $48,000 as additional security.

1. The parties are directed to confer and provide minutes of proposed orders to give effect to these reasons, including the costs of each application.

I certify that these 63 pages are a true copy of the Reasons for Ruling of Her Honour Judge A Ryan delivered on 26 July 2023.

SCHEDULE - 'KOLLARAS DISCOVERY SOUGHT 8 MARCH 2022'

1. The following documents for each of the goods described in the column headed 'Item Description' in Annexure A to the Second Amended Counterclaim filed 4 April 2022 and served on 11 April 2022 (SACC):

a) documents including purchase orders and invoices evidencing sales of those goods not exported; (Domestically Sold Goods) > > b) financial records or other documents evidencing the profit or loss on the Domestically Sold Goods;

2. all financial records, including bank statements, evidencing or recording the sale of stock to the parties named in the column headed 'Kollaras Purchaser' in Annexure A to the SACC and the payment of invoices listed in the column headed 'Kollaras Invoice Numbers' in Annexure A to the SACC;
3. all documents and correspondence passing between Kollaras and the Australian Border Force since 1 July 2014;
4. all documents and correspondence passing between Kollaras, on the one hand, and each of Worldwide Beverage Group Pty Ltd, Daniel Baronian, VP Brands International Pty Ltd, Joseph Saad or Ramy Saad, between 3 February 2018 and 20 July 2020;
5. all documents and correspondence passing between Kollaras on the one hand and each of the purchasers named Eminence International, SPX Traders Pty Ltd, Global Brand, MTR Bega International PTEW LTD, Ariki PTE LTD, P.G.A. Holdings Ltd, New World Distribution, Quality International Purchase B.V, World Export Service Trading BV, World Class Purchase Group N.V (WCPG) in the column headed 'Kollaras Purchaser' in Annexure A to the SACC between 1 July 2014 and 20 July 2020;
6. all documents evidencing or constituting claims made for import duty drawback on the Australian Border Force by Kollaras since 1 July 2014 in respect of goods purchased from Ballymoss.

SCHEDULE- 'KOLLARAS DISCOVERY SOUGHT 20 APRIL 2022'

1. Electronic copy of (in original 'native' form) each of Annexures A-D to the Second Amended Counterclaim filed 4 April 2022 and served on 11 April 2022 (SACC).

1. To the extent (if at all) that the documents upon which Annexures A-D to the SACC rely have not been produced, those documents;

1. An electronic copy of Kollaras stock records that relate to the records of all stock movements (purchases, sales, returns and other disposals) in every product which is the subject of any claim by Kollaras (for either unpaid duty, loss and damage due to misrepresentation or unpaid debt) where the period of time to which this request relates is the entire period (for each product) between:

a) the last date which pre-dates the earliest Kollaras purchase order date (for purchase orders included in Annexure A) on which Kollaras' stock records record that Kollaras had no stock on hand of the relevant product; and > > b) the day after the last dispatch of a relevant product as part of an alleged export shipment which is the subject of Kollaras' claim or, in the case of export goods that have been subsequently returned to Kollaras, to the date of the return of such goods.

1. Documents which record the outcomes of stocktakes performed in relation to Kollaras inventory between the earliest alleged supply by Ballymoss to the first annual reporting date after the last alleged relevant export by Kollaras.

1. Documents relating to the alleged supplies of goods to export customers:

a) bills of lading or other documents which identify the volume of goods delivered to the relevant customers by Kollaras; and > > b) proof of delivery documents signed by Kollaras' customers evidencing the receipt of goods by those customers; and > > c) remittance advices and other similar documents which record payments received by Kollaras from those customers.

1. Financial statements of Kollaras for the four years ended 30 June 2021.

1. As at 30 June of each of the four years to 2021, a list of Kollaras' trade receivables, including, for each trade debtor, the amount owed and the composition (in terms of deliveries made, payments received and credits provided) of each debt.

1. Documents which record the total volume of each of the (relevant) products sold by Kollaras to domestic customers, along with any documents which record purchase orders from domestic customers that were not fulfilled by Kollaras.

1. Business Activity Statements ('BAS') or other records which record:

a) the last date which pre-dates the earliest Kollaras purchase order date (for purchase orders included in Annexure A) on which Kollaras' stock records record that Kollaras had no stock on hand of the relevant product; and > > b) sales revenue generated by Kollaras from the sale of those products (including sales revenue generated from domestic sales on that component of Kollaras' alleged purchases from Monacellars which was not exported by Kollaras; and > > c) GST collected on those sales.

a) supplier to supplier; and > > b) original importer;

named in the unredacted Kollaras Discovered Document number 26 to the affidavit of Peter Rostirolla affirmed 9 October 2020.

SCHEDULE- 'KOLLARAS DISCOVERY SOUGHT 5 OCTOBER 2022'

1. In respect of each Tab 8 Product Spreadsheet in 'Annexure A- Lots' discovery of the following documents:

a) documents referred to in the column headed 'Document No.;' > > b) documents relevant to the meaning of the descriptors in the column headed 'Dept Code;' > > c) documents relevant to the meaning of the descriptors in the column headed 'Channel Code;' > > d) documents referred to in the column headed 'Description' to the extent that they do not refer to purchase orders of Monacellars; > > e) documents relevant to any drawback claims made in respect of the amounts (other than 0.00 and any such amount claimed for drawback the subject of Annexure A to the SACC) stated in the column headed 'Duty Amount;' > > f) spreadsheet documents for:

(vii) Chivas Regal 12 YO 750 ml (1094952);

in a format recording Monacellars as the 'Vend Name' and no other vendor.

1. If the ERP/ accounting system operated by Kollaras is Microsoft Dynamics Navision, read-only access to the database, or alternatively, a copy of the SQL database

1. The emails referred to in paragraphs 16-21 (inclusive) of the Affidavit of Peter Rostirolla affirmed 23 February 2022;

1. The emails referred to in paragraphs 6,7 and 8 of the Affidavit of John Kollaras affirmed 24 February 2022;

1. All legal advices provided to Kollaras about or concerning its entitlement to import duty drawback at any time from the date of its first purchase from Ballymoss, and about or concerning any drawback application to ABF.

1. All legal advices provided to Kollaras concerning the term of each sale included in each Kollaras Purchase Order referred to in paragraph 4 of the SACC.

[1] Cargill Australia Ltd v Viterra Malt Pty Ltd (No.9) [2018] VSC 433; Wang v HMG Capital Pty Ltd (15 December 2022)(Elliott J); Opti-Pharm Pty Ltd v Nature One Dairy Pty Ltd (No 2) [2018] VSC 688 at [20]

[2] (No 9) [2018] VSC 433 at [40]

[3] [2018] VSC 688 at [20]

[4] [2015] VSC 492 at [30]

[7] [2020] VSC 427 at [41]

[9] [2022] VSC 645 at [6]- [8]

[10] [2020] VSC 427 at [50]- [51]

[11] "SACC" is a reference to Kollaras' second amended counterclaim dated 30 March 2022

[12] Cecil affidavit dated 16 March 2023 at paragraph 31.

[15] Evidence Act 2008, s122

[16] [2020] NSWCA 266 at [57]

[17] GR Capital [2020] NSWCA 266 [57]

[18] Viterra Malt Pty Ltd v Cargill Australia Ltd [2018] VSCA 118; (2018) 58 VR 333

[19] Paragraph 29 of Defendant Submissions 17 March 2023

[20] Evidence Act 2008 (Vic) s118

[21] Evidence Act s119

[22] [2021] VSC 245

[24] Council of the New South Wales Bar Association v Archer [2008] NSWCA 164; (2008) 72 NSWLR 236, [48]

[25] [2016] FCAFC 117 at [32]

[26] See The Queensland Local Government Superannuation Board v Allen [2016] QCA 325 [70]-[73]

[27] [2006] FCA 371

[29] [2018] VSCA 118; (2018) 58 VR 333

[30] (2008) 234 CLR 275

[33] Expense Reduction Analysts Group Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 at [30] - [31]

[35] See commentary in Odgers, Uniform Evidence Law, Thomson Reuters, 17th ed, [ES.122.150] at p1090

[37] Livingspring Pty Ltd v Kliger Partners [2008] VSCA 93; (2008) 20 VR 377, 381- 383 ('Livingspring')

[38] See Rule 62.01 and Habersberger J in Saint Gobain RF Pty Ltd v MAAX SPA Corporation Pty Ltd [2004] VSC 335 at [38]

[39] Livingspring Pty Ltd v Kliger Partners [2008] VSCA 93; (2008) 20 VR 377 at [15]- [16]

[40] Saint Gobain RF Pty Ltd v Maax SPA Corporation Pty Ltd [2004] VSC 335 at [8]

[41] See for example US Realty Investments LLC #1 & Ors v Need [2013] VSC 590 per Derham AsJ at [21]

[42] [2022] VSC 206 at [10] - [13]

[43] Madgwick v Kelly [2013] FCAFC 61; [2013] 212 FCR 1 at [8]

[45] Affidavit of Craig Donald MacDougall sworn 20 December 2021 [DCM-7]

[46] [2017] VSCA 293 at [63]- [65]

[47] Livingspring Pty Ltd v Kliger Partners [2008] VSCA 93; (2008) 20 VR 377, [11]

[48] See paragraph 8 of Kollaras' submissions dated 17 March 2023 and the cases referred to therein

[49] Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, 141

[50] cf Amcor v Barnes [2015] VSC 90 at [36] to [40] and the cases referred to therein

[51] Per Sifris J in The Oswal matters - application for security for costs Oswal v Australia and New Zealand Banking Group Ltd [2016] VSC 52 at [55] and ff and the cases referred to therein

[52] Dal Pont, Law of Costs, LexisNexis 5th ed at [28.25]

[53] Exhibit "DCM-8" to the first MacDougall affidavit

[54] Dal Pont, Law of Costs at [28.23]

[55] Dal Pont, Law of Costs, Lexis Nexis, 5th ed at [28.37]