C H LEAMAN INVESTMENTS PTY LTD -v- TUESDAY ENTERPRISES PTY LTD as trustee for THE STEELE INVESTMENT TRUST [2022] WASC 447 (16 December 2022)

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CITATION : C H LEAMAN INVESTMENTS PTY LTD -v- TUESDAY ENTERPRISES PTY LTD as trustee for THE STEELE INVESTMENT TRUST [2022] WASC 447 (S)

TUESDAY ENTERPRISES PTY LTD as trustee for THE STEELE INVESTMENT TRUST

Costs - Application for costs - Appropriate order for costs when nominal damages awarded - Whether special costs orders should be made - Whether relevant costs determination inadequate - Whether inadequacy arose by reason of unusual difficulty, complexity or importance of matter - Turns on own facts

Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2018 (WA)

Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2020 (WA)

Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2022 (WA)

Legal Profession Uniform Law Application Act 2022 (WA) s 141

Supreme Court Act 1935 (WA) s 37

Plaintiff to pay defendants' costs of the proceedings

Application for special costs orders allowed in part

Amaca Pty Ltd v Hannell [2007] WASCA 158 (S)

Australian Conservation Foundation Inc v Forestry Commission of Tasmania [1988] FCA 144; (1988) 81 ALR 166

Crawley Investments Pty Ltd v Elman [2014] WASC 233 (S)

Currie v Currie [No 2] [2019] WASCA 2 (S)

Frigger v Lean [2012] WASCA 66

KSG Investments Pty Ltd v Open Markets Group Ltd (No 2) [2021] VSC 359

May v Thomas [2014] WASCA 176 (S)

Motium Pty Ltd v Arrow Electronics Australia Pty Ltd [2011] WASCA 65 (S)

Sino Iron Pty Ltd v Mineralogy Pty Ltd [2022] WASC 151

Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S)

State of Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174

Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388

Uon Pty Ltd v Hoascar [2020] WASC 271 (S)

1. On 16 December 2022, I delivered my reasons for decision following the trial of this matter.[376] At that time, orders were made for the parties to file minutes of orders, affidavits, and submissions in support of the costs orders they contended should be made.
2. The plaintiff's primary submission is that each party should bear their own costs, alternatively that the plaintiff should pay 40% of the defendants' costs of the proceedings. The defendants say the plaintiff should pay their costs of the proceedings and also seek a special costs order that their costs be assessed without regard to the limits in the applicable costs determinations.[377]
3. There are two primary issues in dispute between the parties, namely: first, whether the defendants are entitled to their costs of the proceedings and, if so, whether any discount should be applied to reflect they were not successful on all aspects of the matters raised by them; and second, whether special costs orders should be made in favour of the defendants.

1. Under s 37 of the Supreme Court Act 1935 (WA), the court has a wide discretion to award costs. However, the discretion is not unfettered and must be exercised judicially.[378]
2. The general rule is that costs should follow the event; that is, the successful party should recover their costs from the opposing party. It is incumbent on an unsuccessful party to satisfy the court that there are good reasons it should not pay the successful party's costs.[379]
3. As was noted by the Court of Appeal in Strzelecki Holdings Pty Ltd v Jorgensen:[380]

What constitutes 'success' in proceedings is to be determined by the reality of the circumstances involved in the case. The Court may depart from the general rule that costs follow the event and modify a costs order to take into account matters such as any unreasonable conduct of a generally successful party, or to the failure of that party on one or more specific issues. The exercise of the discretion in that way is recognised by a number of rules in the [Rules of the Supreme Court], together with the practice of the Court, and authority. So, for example, if the Court is of the opinion that the conduct of a successful party - either before or after the commencement of the litigation - has resulted in costs being unnecessarily or unreasonably incurred, the Court may deprive that party of costs, either wholly or in part, and it may further order that party to pay the costs of an unsuccessful party, either wholly or in part ...

Under O 66 r 1(3) RSC, where a party, though generally successful in an action, has, by the introduction of some issue or issues on which it has failed, increased the costs, the Court may order such party to pay the costs of such issue or issues. It is well-recognised that an order that a successful party recover only a portion of its costs, where it has not been wholly successful, should not be made as a matter of course, for at least two reasons. First, it is often the case that a successful party will not succeed on every issue raised. Secondly, to attempt, in every case, an analysis of which party was successful on which issue would add uncertainty and complexity to the outcome of litigation, and add to the time and cost of costs arguments. Consequently, the power to apportion costs in this way should only be exercised where there are discrete and severable issues on which the generally successful party failed, and which added to the cost of the proceedings in a significant and readily discernible way. Furthermore, while parties should be encouraged to consider carefully what matters they put in issue, justice may not be served if, by too ready a resort to deciding questions of costs according to success on particular issues, parties are dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case.

Where the Court decides, in the exercise of its discretion, to modify the usual costs orders to reflect the limited success of the successful party, that power will be exercised broadly, and as a matter of impression, and without any attempt at mathematical precision (which is likely to prove illusory in any event). That approach reflects the fact that it may be difficult to separate the factual and evidentiary substratum of different issues, the fact that some issues are more important than others, and the fact that some issues are subsidiary to others. (footnotes omitted)

1. However, even if a court does not accept all of a successful party's arguments at a trial, this does not, of itself, mean that it is appropriate to deal with costs orders on an issue by issue basis.[381] The court's discretion to render an award of costs by undertaking an assessment conducted by reference to issues at trial that have been won or lost, should only to be exercised in the clearest of cases.[382] The court's discretion to reduce costs for a successful party is approached as a matter of overall impression, without requiring any higher degree of mathematical precision.[383]
2. In assessing the success or failure of the parties on the issues in the proceedings, it is generally accepted that greater latitude is given to a successful defendant than a successful plaintiff. The rationale for this approach was explained by Burchett J in Australian Conservation Foundation Inc v Forestry Commission of Tasmania in the following terms:[384]

A party against whom an unsustainable claim is prosecuted is not to be forced, at his peril in respect of costs, to abandon every defence he is not sure of maintaining, and oppose to his adversary only the barrier of one hopeful argument: he is entitled to raise his earthworks at every reasonable point along the path of assault. At the same time, if he multiplies issues unreasonably, he may suffer in costs. Ultimately, the question is one of discretion and judgment.

1. Pursuant to s 141(3) of the Legal Profession Uniform Law Application Act 2022 (WA), the court has power to make special costs orders. This section is in identical terms to the now repealed s 280 of the Legal Profession Act 2008 (WA). Given the identical language of these provisions, it is accepted that the principles that govern the making of special costs orders, which are well established, continue to apply.
2. There are two questions for the court in considering an application for special costs:

(a) Is the maximum amount allowable under the applicable costs determination inadequate, in the sense that there is a fairly arguable case that, on taxation, costs may properly be allowed in an amount greater than the maximum amount?
>
> (b) Does the inadequacy of the costs allowable under the costs determination arise because of the unusual difficulty, complexity, or importance of the matter?

3. Each of these questions is addressed as a matter of impression, rather than matters of detailed evaluation, precision or science.[385]
4. The effect of s 141(1) of the Legal Profession Uniform Law Application Act 2022 (WA) is to confine the costs recoverable by a successful party to the limits imposed by the relevant costs determination then in force. As was noted by the Court of Appeal in Sino Iron Pty Ltd v Mineralogy Pty Ltd, in referring to the identical provision in the previous act, this provision is 'protective of the party charged and, more generally, serves the due administration of justice by limiting the allowable scope for legal costs'.[386]
5. In considering whether a party has established there is a fairly arguable case that a greater amount will be allowed on taxation than that which is allowable under the relevant costs determination, it is not sufficient for a party to show that it incurred costs greater than the limit in the costs determination. However, the fact that a party has incurred significantly greater costs in each step of the litigation, when viewed in the context of the difficulty, complexity or importance of the matter, may enable the court to conclude there is a fairly arguable case that each of the items identified is inadequate.[387]
6. There has been little judicial consideration as to what is meant by the term 'importance' in this section. In Crawley Investments Pty Ltd v Elman, Edelman J expressed the view that this did not require broader importance to the public or a sector of the public, and encompassed importance to the parties.[388] In Currie v Currie [No 2], the Court of Appeal accepted that the matter was important in that case because it was important to the resolution of a long‑running dispute, on which the livelihood of the first respondent depended.[389]
7. In Uon Pty Ltd v Hoascar, after emphasising that special costs orders are just that - special, Archer J summarised the authorities which have considered the meaning of this term as follows:[390]

Cases in which importance has been found includes cases which involve the risk of significant professional damage, test cases, or cases which involve enormous sums of money.

Heartlink Ltd v Jones (as liquidator of HL Diagnostics Pty Ltd (in liq)) was a case in the first category, involving serious allegations against liquidators. In Heartlink, Martin CJ said that:

[B]y reference to 'importance' in this context, the legislature is allowing the court to have regard to the question of whether the work done was appropriate to the significance of the issue that arose in the litigation. Significance can arise either because of the significance of the issues to the parties or because of the significance of the issues to other prospective parties or to the public or to the community generally. In this case, the issues raised were of considerable significance to the liquidators in the practice of their profession, and in respect of whom serious allegations were made.

This passage was endorsed by the Court of Appeal in Sino Iron [No 2].

In Blatchford v Laine, Vaughan J commented on the passage as follows:

His Honour's formulation involves a qualitative evaluation as to the significance of the matter. It requires an assessment of the weight, seriousness and gravity of the issues and controversy before the court. Often the question of importance will be answered as a matter of impression informed by experience. Outside of those relatively rare cases involving matters of public importance - where 'importance' may well be obvious - the importance of the matter may be evident in the amount of the claim or the nature of the allegations that are being litigated.

Vaughan J concluded that the matter before him lacked importance in the sense used in s 280(2) of the Act. His Honour said:

The issues and controversy before the court as part of the application fell within the general remit of an application for judicial advice as is commonly determined in this court without remark. ... No issue arose where it was necessary for the plaintiff to defend his actions or reputation. The issues and controversy before the court had no signification over and above those commonly arising in applications by trustees for judicial advice and applications within item 11 more generally.

It is plain from these authorities, and the context of s 280 and the Act as a whole, that a matter will not be 'important' in the required sense simply because a party considers it to be so. If it were otherwise, the test of importance would probably be satisfied in every litigated dispute.

1. The discretion to be exercised by the court on an application for special costs must be exercised judicially as the interests of justice in each case require. As was noted by Quinlan CJ in Sino Iron Pty Ltd v Mineralogy Pty Ltd, the interests of justice include 'the need to keep the costs of litigation generally within reasonable bounds'.[391]

1. The plaintiff contended that in this case, given the number of issues in the proceedings on which the defendant was unsuccessful and the length of time that these matters occupied, it was appropriate to reduce the defendants' entitlement to costs to either nil or, at the most, 40% of their costs. In support of this position, the plaintiff submitted the defendant could have conceded liability, which would have significantly reduced the length of the trial. In addition, counsel for the plaintiff emphasised the matter was listed for an additional day to address the defendants' submissions in relation to the Final Payment. All of these submissions, save for one (in relation to the valuation of stock), were ultimately rejected.
2. The defendants contended that in this case, they were the successful party and that costs should follow the event. In relation to the issues on which the plaintiff succeeded, counsel for the defendants emphasised that these, ultimately, were not determinative. The defendants characterised the plaintiff's claim as an 'ambit award' which sought an unrealistic and unreasonable amount of damages. In these circumstances, it was contended that the defendants had 'no choice but to defend the proceedings on all bases'.
3. In support of its application for special costs orders, the defendants relied on an affidavit of Alexander Max Freund filed 13 February 2023, which annexed a draft bill of costs. The defendants submitted that the fact that the total amounts claimed by them significantly exceeded the relevant scale items was evidence that there was a fairly arguable case a taxing officer might properly allow costs at an amount greater than in the costs determination. In considering the application, counsel for the defendant emphasised that the court, in lifting any relevant item, was not expressing a view as to the quantum of the amount claimed or whether it should ultimately be allowed. Where there is insufficient evidence before the court to make an assessment of an appropriate ceiling, it is not uncommon for an order to be made removing the limit of the item in the costs determination.[392]
4. Counsel for the defendants submitted that this matter was of significant importance to the defendants because of the quantum of the claim and the impact it would have had on the first and third defendants.
5. The plaintiff opposed the application for a special costs order. The plaintiff submitted that in the exercise of discretion, it was a relevant factor that the defendant was not successful on all of the matters on which it litigated. The plaintiff emphasised the defendants did not adduce any evidence as to the importance of the proceedings to the defendants or any of them. On this basis, the plaintiff submitted the defendant had not satisfied the court that any inadequacy in the costs determination had been caused by the importance of the matter to the defendants.

1. The plaintiff, quite appropriately in my view, conceded the award of only nominal damages was an indication it was not the successful party in the proceedings and that it was contrary to current principles of case management and the efficient and cost‑effective use of judicial resources for a party in the position of the plaintiff to recover its costs, having substantively failed in the action.[393]
2. In considering the appropriate order as to costs, it is important to emphasise that, in my view, the defendants were the wholly successful party at trial. This is because, at its heart, this case concerned a claim by the plaintiff for damages of $6 million arising out the defendants' repudiation or renunciation of the contract between them. The plaintiff failed to establish it was entitled to any substantial award of damages. On this basis, prima facie, the defendants are entitled to receive their costs of the action subject to any discount for the matters raised by the plaintiff.
3. In my view, none of the matters raised by the plaintiff warrant a departure from the usual costs order that costs should follow the event.
4. In this case, the parties raised a number of issues that required determination. These were summarised at [47] and [48] of my Primary Reasons. I accept the plaintiff's submission that it was successful on a number of these issues, including the proper construction of the agreement, whether it was entitled to accept the defendants' renunciation of the agreement and terminate the Agreement, and whether it failed to mitigate its loss. I also accept that the time spent on these issues at the hearing was not insignificant.
5. However, given the quantum of the damages that were sought by the plaintiff against the defendants, I do not consider the defendants' conduct in raising these matters was unreasonable, or that the defendants unreasonably prolonged the length of the trial by raising any of these issues for determination.
6. In these circumstances, I do not consider that the defendants' costs should be discounted simply for the reason they did not succeed on all of the matters raised by them.

1. The defendants initially sought a general lifting of the limits imposed by the relevant costs determinations. In the course of the hearing, counsel for the defendants limited the application for special costs to the removal of the limits for the following items, set out in [43] of their submissions, namely:

(a) the defence;
>
> (b) discovery;
>
> (c) preparation of case;
>
> (d) attendance at trial; and
>
> (e) the costs application.

2. The only support for the application for special costs was the draft bill of costs which was annexed to the affidavit of Mr Freund. The rates used in the draft bill of costs, with one exception, reflect the rates for practitioners set out in the relevant costs determination. The exception is the rate for counsel in the 2018 Determination. At that time, the rate for counsel set out in the 2018 Determination was $418.00 and not $451.00. In considering this application, I have proceeded on the assumption that the basis for the application is that the limits for the costs of particular items in the relevant costs determination should be lifted rather than the hourly rates of the legal practitioners and counsel involved in the matter. This is consistent with the orders sought, the manner in which the application was argued, and the submissions.
3. In respect of the items set out at [28], the draft bill prepared by the defendants sets out the following information:

$47,355.00 (fee on brief for counsel, 5 subsequent days of trial and refresher)

(instructing solicitors attending - one as counsel (although not claimed at counsel rates) - assumes court hours of 5 hours per day)

$14,190 (assumes 2 days preparation; 1 day hearing)

1. The relevant limits for each of items in the costs determination is set out in the table above, together with the assumptions that underly these limits.
2. The only information before the court as to the work that was done by the defendants' solicitors and counsel is set out in the draft bill of costs. The items in the draft bill summarise the amount of time spent by each practitioner on each matter. However, no further information is provided as to what each of the practitioners specifically did, or the difference in the work that was done by each of them.

Are the maximum amounts allowable under the costs determination inadequate?

1. The draft bill of costs claims separate amounts for each of the amended defences that were filed, rather than seeking one amount for the defence. In this case, the defence was amended on six separate occasions and six separate claims are made for these costs.
2. In total, the amount claimed for the defence comprises 12.1 hours for counsel, 28.3 hours for 2 separate senior practitioners at the defendants' solicitors and 11.7 hours of a junior practitioner's time, or a total of 52.1 hours. No evidence is given as to the nature of the work that was done by each of these practitioners, or the difference in the work that was done.
3. I note that the defence that was relied upon by the defendants at trial is a 30 page document which raises a number of issues. On the basis of this defence, I consider that it is fairly arguable that on a taxation of the costs, it is possible that the taxing officer might allow an amount greater than $4,950, being the limit imposed by the relevant costs determination.
4. In this case, it is not possible to reach any conclusion as to what might be an appropriate limit for the costs of the preparation of the defence. In these circumstances, I have concluded it is appropriate to order that the limit imposed by the relevant item in the costs determination be removed. It will then be for the taxing officer to consider the reasonableness and the necessity for the work that was undertaken and make a judgment about the remuneration reasonably required.
5. In relation to discovery, four affidavits of discovery were sworn by the defendants and a little over 100 documents produced.
6. By way of example, the initial affidavit contains 93 documents in the List of documents. The draft bill of costs seeks $9,350 for the discovery of these documents, calculated on the basis of 17 hours of a junior practitioner's time and 6.8 hours of a senior practitioner's time. No evidence is given as to the nature of the work that was done by each of these practitioners, or the difference in the work that was done by them. In particular, there is no evidence before me as to how many documents were reviewed by the defendants, or why it is contended the item in the scale is inadequate.
7. The remaining amounts claimed of in excess of $13,000 arose from the plaintiff's request for further and better discovery. This is calculated on the basis of 17.4 hours of a senior practitioner's time and 15 hours of a junior practitioner's time. Once again, no evidence is given as to the nature of the work that was done by each of these practitioners, or the difference in the work that was done by them, how many documents were reviewed by the defendants, or why it is contended the item in the scale is inadequate.
8. On the evidence before me, I do not consider there is a basis on which I could consider that, on a taxation of costs, it is possible that the taxing officer might allow an amount greater than $4,950.
9. The draft bill of costs includes numerous items which comprise preparation of the case for trial. These include the issuing of a subpoena to the National Australia Bank (no 4), preparing statements of agreed facts (no 17), agreed issues (no 20) and agreed evidence schedule (no 21), preparing witness outlines for Mr Steele, Mr Jain and Mr Zilkens (no 31), preparing a brief to expert, reviewing and finalising the expert report (no 32) and joint expert report (no 40), preparing submissions (no 42) and chronology (no 44), and reviewing the material filed by the plaintiff.
10. While there is no specific evidence before me as to the nature of the work that was done, I consider that on the basis of the matters set out in the draft bill of costs, it is fairly arguable that, on a taxation of this item, the taxing officer may allow an amount in excess of the relevant item in the costs determination.
11. In this case, it is not possible to reach any conclusion as to what might be an appropriate limit for the costs of the preparation of the case. In these circumstances, I have concluded it is appropriate to order that the limit imposed by the relevant item in the costs determination be removed. It will then be for the taxing officer to consider the reasonableness and the necessity for the work that was undertaken and make a judgment about the remuneration reasonably required.
12. In respect of the costs of the trial and the application for costs, there is simply no evidence before me as to the basis on which I could conclude that the amounts in the relevant costs determination are inadequate.
13. In relation to the costs of the trial, the time claimed for counsel is not calculated on a daily rate but an hourly rate and the claim for the instructing solicitors exceeds the hours they were required to attend trial. There is no evidence before me to explain how these costs have been calculated, or how this work is different to the amounts claimable for preparation of case.
14. Similarly, in relation to the application for costs, ultimately the hearing before me took less than half a day. Detailed submissions were filed together with one affidavit. It is not clear as to the basis upon which it is contended that there is a reasonable basis on which I could conclude the amount in the costs determination is inadequate.

Does the inadequacy arise because of the importance of the matter?

1. The only matter which the defendants relied on was that the matter was of importance.
2. Counsel for the defendants emphasised that the plaintiff sought a very substantial sum ($6 million) against the defendants. In the context of these defendants, being two very small companies and an individual, this was a very significant claim which would have had very significant implications for these defendants had it succeeded.
3. I accept the submissions of the defendants. While I accept that the test of importance is not satisfied simply because a party considers it to be important, in the context of these defendants, I am satisfied that it was of significant importance to them. This is because of the quantum of the claim made by the plaintiff and the likely impact of a successful claim on each of the defendants. On this basis, I accept this matter was important to the defendants.

1. For these reasons, I am satisfied that the plaintiff should pay the defendants' costs of the action. I am also satisfied that there is a fairly arguable case that the items in the costs determinations for the defence and the preparation of the case for trial are inadequate because of the importance of the matter and that the special costs order sought by the defendants in respect of these items should be made.
2. For these reasons, the court will make orders that:
   1. The plaintiff pay the defendants' costs of and incidental to the proceedings (including, for the avoidance of doubt, the costs in relation to the special appointment on 17 March 2023 and any reserved costs).
   2. Pursuant to s 141(3) of the Legal Profession Uniform Law Application Act 2022 (WA) the defendants' costs of its defence and preparation of case are to be taxed without regard to the limits imposed by the applicable determinations, being:

(a) Legal Profession (Supreme and District Courts) (Contentious Business) Determinations 2018 (WA);
>
> (b) Legal Profession (Supreme and District Courts) (Contentious Business) Determinations 2020 (WA).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[3] Statement of Agreed Facts [5.2]; Ex 1.102B.

[4] Statement of Agreed Facts [2.2]; Ex 1.102B.

[6] Statement of Agreed Facts [5]; Exhibit 1.102A.

[7] Statement of Agreed Facts [5]; Ex 1.102C.

[9] Statement of Agreed Facts [8]; Ex 1.106.

[14] Statement of Agreed Facts [15]; Ex 1.163.

[21] Statement of Agreed Facts [16]; Ex 1.45.

[24] Statement of Agreed Facts [23]; Ex 1.55.

[26] Statement of Agreed Facts [25]; Ex 1.61.

[27] Statement of Agreed Facts [26] - [27].

[28] Statement of Agreed Facts [29]; Ex 1.65.

[29] Statement of Agreed Facts [31]; Ex 1.69.

[30] Statement of Agreed Facts [32]; Ex 1.70.

[32] Statement of Agreed Facts [34]; Ex 1.72.

[33] Statement of Agreed Facts [35]; Ex 1.75 and Ex 1.75.1.

[34] Statement of Agreed Facts [36]; Ex 1.79 and Ex 1.79.1.

[35] Statement of Agreed Facts [38]; Ex 1.89 and Ex 1.89.1.

[36] Statement of Agreed Facts [39]; Ex 1.94.1.

[37] Amended Statement of Claim [20].

[38] Amended Statement of Claim [21].

[39] Amended Statement of Claim [22].

[40] Amended Statement of Claim [23].

[41] Plaintiff's further and better particulars of loss and damage.

[45] Substituted defence [21.2(a)] - [21.2(d)].

[52] Watson v Foxman [1995] NSWCA 497; (1995) 49 NSWLR 315, 318 ‑ 319 (McLelland CJ in Eq).

[53] McClellan P, 'Who Is Telling the Truth? Psychology, Common Sense and the Law' (2006) 80 Australian Law Journal 655, 665, quoting Australian Psychological Society, Guidelines Relating to Recovered Memories (2000).

[59] See for example Ex 1.3, Ex 1.67, Ex. 1.81, Ex 1.87.

[76] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 308, 312, 320 - 321.

[77] AVWest Aircraft Pty Ltd as trustee for AVWest Aircraft Trust v Clayton Utz (a firm) [No 2] [2019] WASC 306 [145].

[79] Flack v Chairperson, National Crime Authority (1997) 80 FCR 137, 148 - 149.

[80] Morley v Australian Securities and Investments Commission [2010] NSWCA 331; (2010) 247 ALR 140 [634].

[81] Morley v Australian Securities and Investments Commission [634].

[82] AVWest Aircraft Pty Ltd as trustee for AVWest Aircraft Trust v Clayton Utz (a firm) (No 2) [146].

[85] This description was subsequently corrected as it was an email from Mr Brennan to Zilkens Lawyers. The defendants did not contend or make any additional submissions that this would alter the orders or judgment given in relation to this document (see ts 471).

[91] Fraser v Fraser [2019] WASC 135 [29] - [35].

[92] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 [28] ‑ [29].

[93] Bennett v Chief Executive Officer, Australia Customs Service [2004] FCAFC 237 [6].

[94] Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475; see also AWB Ltd v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 [164].

[95] Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332.

[106] ts 307 - 308 (Leaman, XXN); 368 (Pocock, XN)

[184] ts 284; Ex 1.68.

[249] Connective Services Pty Ltd v Slea Pty Ltd [2019] HCA 33.

[250] Connective Services Pty Ltd v Slea Pty Ltd [17].

[251] Plaintiff's opening submissions [31].

[252] Sheahan v Londish [2010] NSWCA 270.

[253] CIC Insurance Ltd v Hannan & Co Pty Ltd [2001] NSWSC 437.

[255] Pilbara Iron Ore Pty Ltd v Ammon [2020] WASCA 92 [85] - [86].

[256] George 218 Pty Ltd v Bank of Queensland Ltd [No 2] [2016] WASCA 182; (2016) 313 FLR 287 [82] and the cases cited; Black Box Control Pty Ltd v TerraVision Pty Ltd [2016] WASCA 219 [42(11)].

[257] CSR Ltd v Adecco (Australia) Pty Ltd [2017] NSWCA 121 [158].

[258] Paltara Pty Ltd & Anor v Dempster & Ors (1991) 6 WAR 85, 89 (Malcolm CJ, Pidgeon J agreeing).

[259] Transfield Pty Ltd v Arlo International Ltd (1980) 144 CLR 83, 101.

[260] O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36; (2008) 36 WAR 197 [144] - [157].

[261] Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, 143 - 144.

[262] O'Rourke v P & B Corporation Pty Ltd [147].

[263] Hospital Products Ltd v United States Surgical Corporation, 64; referred to by Martin CJ in O'Rourke v P & B Corporation Pty Ltd [148].

[264] Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135, [150] - [151].

[265] Joseph Street Pty Ltd v Tan [2012] VSCA 113; (2012) 38 VR 241.

[266] Joseph Street Pty Ltd v Tan [40].

[267] Joseph Street Pty Ltd v Tan [41].

[268] MK & JA Roche Pty Ltd & Ors v Metro Edgely Pty Ltd [2005] NSWCA 39.

[269] MK & JA Roche Pty Ltd & Ors v Metro Edgely Pty Ltd [44] - [47].

[270] MK & JA Roche Pty Ltd & Ors v Metro Edgely Pty Ltd [45].

[271] Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418, 440 - 442.

[272] Tamanna v Zattere [2017] NSWSC 1388 [126] and the authorities cited there.

[280] Adler v ASIC; Williams v ASIC (No 3) [2002] NSWSC 171; (2002) 20 ACLC 576.

[281] Adler v ASIC; Williams v ASIC [2003] NSWCA 131; (2003) 21 ACLC 1,810.

[285] See Corporations Act 2001 (Cth), s 254T(1)(c).

[292] Armada Balnaves Pte Ltd v Woodside Energy Julimar Pty Ltd [2022] WASCA 69 [509] - [512].

[293] Armada Balnaves Pte Ltd v Woodside Energy Julimar Pty Ltd [515].

[294] Sopov v Kane Constructions Pty Ltd [2007] VSCA 257; (2007) 20 VR 127.

[295] Sopov v Kane Constructions Pty Ltd [11].

[296] Sopov v Kane Constructions Pty Ltd [16].

[297] Sopov v Kane Constructions Pty Ltd [17].

[298] Sanpine Pty Ltd v Koompahtoo Local Aboriginal Land Council [2006] NSWCA 291 [103] - [104].

[299] Woodar Investment Development Ltd v Wimpey Construction UK Ltd [1980] UKHL 11; [1980] 1 All ER 571; [1980] 1 WLR 277.

[300] Woodar Investment Development Ltd v Wimpey Construction UK Ltd 280.

[301] Woodar Investment Development Ltd v Wimpey Construction UK Ltd 283.

[302] Joseph Street Pty Ltd v Tan [47].

[303] Plaintiff's opening submissions [76].

[304] Foran v Wight [1989] HCA 51; (1989) 168 CLR 385, 408 - 409.

[308] Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd [1998] HCA 38; (1998) 192 CLR 603 [134].

[309] TC Industrial Plant Pty Ltd v Robert's Queensland Pty Ltd [1963] HCA 57; (1963) 180 CLR 130, 138.

[310] Plaintiff's opening submissions [92].

[311] Plaintiff's opening submissions [93].

[317] Defendants' opening submissions [3].

[318] Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd 608, 612, 627, 640; Commonwealth of Australia v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64, 118.

[319] The Mediana [1900] UKLawRpAC 3; [1900] AC 113, 116.

[320] Wenham v Ella [1972] HCA 43; (1972) 127 CLR 454.

[321] Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd [1954] HCA 25; (1954) 90 CLR 235, 250 - 251 (Kitto J).

[322] Tamanna v Zattere [158] citing with approval Ng v Filmlock Pty Ltd [2014] NSWCA 389; (2014) 88 NSWLR 146 [26] (Emmett JA), [44] (Gleeson JA).

[323] Castle Constructions Pty Ltd v Fekala Pty Ltd [2006] NSWCA 133; (2006) 65 NSWLR 648 [28].

[324] Edelman J, McGregor on Damages (21st ed, 2021) [29-003].

[325] Olympic Holdings Pty Ltd v Lochel [2004] WASC 61 [121].

[326] Commonwealth of Australia v Amann Aviation Pty Ltd, 91 - 92, 102, 118 - 120; Sellars v Adelaide Petroleum NL; Poseidon Ltd v Adelaide [1994] HCA 4; (1994) 179 CLR 332, 349

[327] Hadley v Baxendale (1854) 9 Exch 341, 354; (1854) 156 ER 145, 151.

[328] Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, 643.

[329] G W Sinclair & Co Pty Ltd v Cocks [2001] VSCA 47 cited with approval in Olympic Holdings Pty Ltd v Lochel [2004] WASC 61 [123].

[330] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd (No 2) [2009] WASCA 183 [102].

[331] Castle Constructions Pty Ltd v Fekala Pty Ltd [24].

[352] Plaintiff's supplementary opening submissions on loss and damage [18].

[353] ts 197 referring to McGregor on Damages, [4-004].

[356] See McGregor on Damages, [27-001] - [27-010] and in particular [27-005].

[357] See McGregor on Damages, [25-004].

[358] Plaintiff's supplementary opening submissions on loss and damage [26].

[364] See Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgersson trading as Holgerssons Complete Home Service [2019] WASCA 114 [77] and the cases referred to there.

[365] Commonwealth of Australia v Amann Aviation Pty Ltd, 83.

[371] Calculated at 25% of the value of Stock and plant and equipment.