1. The respondents (in their capacity as cross-appellants) impugned the exercise of the judge's costs discretion on four bases, under cover of a broader submission that the judge acted upon a wrong principle and allowed extraneous or irrelevant matters to guide or affect his decision.[104]
2. First, it was submitted that the judge failed to recognise that this was ordinary hostile litigation between beneficiaries. The respondents submitted that, in disputes of that nature, costs do not come out of the estate.[105] Had the administrator of Marilyn's estate sought leave to defend the proceeding, that leave would have been refused because, as the judge recognised, the beneficiaries had the means to defend the proceeding themselves. In such circumstances, there was no doubt that costs would follow the event. So much followed from the principles governing the question whether an indemnity may be provided to a trustee in litigation, where there are beneficiaries with the means to conduct the litigation themselves.[106] The order that costs be paid out of the estate had the effect that the successful respondents had to pay their own costs as well as those of the appellants, which was plainly unfair.[107]
3. Secondly, the respondents argued that the 'rule' awarding costs out of the estate on the basis of fault on the part of the testator was confined to probate cases. It was wrong for the judge to have applied the 'rule' where the parties were in an ordinary adversarial relationship, as they were here. The extension of the 'rule' to an adversarial case would also undermine the overarching purpose of the Civil Procedure Act 2010 by insulating parties against the ordinary consequences of failure in litigation.[108]
4. Thirdly, the respondents submitted that it was irrelevant for the judge to have considered whether the appellants acted reasonably in putting the respondents to proof and defending the litigation. They submitted that reasonableness is expected of litigants as a matter of course. It was not a basis for ordering costs to be paid out of the estate.
5. Finally, the respondents submitted that the size of the estate was also an irrelevant consideration. While this was not a case like Shovelar, where an order that costs be paid out of the estate would have exhausted it, there was injustice in the judge's order irrespective of the size of the estate. The respondents submitted that costs are awarded as compensation for the successful party in recognition of the fact that the litigation should not have been visited upon them.[109] The effect of the judge's order was to require the respondents to compensate the appellants - as if a costs order was made against them.
6. If the costs discretion were to be reopened, the respondents submitted that the appropriate orders would be for the appellants to pay the respondents' costs on the standard basis and that there be no order for payment of the appellants' costs. As for the counterclaim, there should be no order as to costs, given that the counterclaim was pursued late in the trial, and the appellants were largely unsuccessful, recovering only $60,000 when they had sought $4,250,000.

1. The appellants (as cross-respondents) submitted that appeals from orders as to costs are exceptional and require the Court to exercise particular restraint. They submitted that the Court is required to consider whether there was a ground on which the judge could reasonably have made the order in question.[110] They argued that this was not a case where it could be shown that the judge could not have reasonably made the order, nor could any House v The King error be established.
2. The appellants argued, first, that the judge did have regard to the fact that this case involved hostile litigation between beneficiaries. There was a significant issue that needed to be resolved so that Marilyn's estate could be administered, and the appellants assisted the court by putting the respondents to their proof. The appellants submitted that, had the administrator applied for leave to defend the case, it is likely that leave would have been granted and an indemnity given, owing to the need to clarify the position in order that the estate could be administered.
3. Secondly, the appellants argued that the judge did not apply the 'rule' in probate cases regarding fault of the testator. Accepting that this was not a probate case but a claim brought in equity, the judge merely took into account the fact that Marilyn was the cause of the litigation,[111] in circumstances where the essential question before the court was whether the estate should be managed in accordance with the 1993 or 2018 will. These were relevant considerations.[112]
4. The appellants next submitted that their reasonableness in defending the litigation was a relevant consideration. A court may award indemnity costs where a party conducts litigation unreasonably. Where there are circumstances, in a probate context, that reasonably call for an investigation, costs may be awarded out of the estate, but not where a party (including a trustee or administrator) has acted unreasonably.[113] It would have been pertinent to the discretion on costs if the claim had been defended unreasonably,[114] and it was equally relevant that the appellants defended the claim reasonably.[115]
5. Finally, the appellants submitted that it was not irrelevant to consider the size of the estate. In the only authority relied on by the respondents, Shovelar, the court took that matter into account.[116] It was relevant that the size of the estate was not such that a costs order would substantially deprive the respondents of the benefit of their success.

1. As the appellants submitted, appeals from orders as to costs are exceptional and require this Court to exercise particular restraint. The trial judge is generally best placed to assess how the discretion as to costs should be exercised.[117]
2. The question whether leave to appeal should be granted may be approached by considering first whether there are discretionary considerations justifying the refusal of leave, irrespective of the proposed appeal's prospect of success.[118] Applications for leave to appeal from a costs order may therefore be refused, without entering into the merits of the proposed appeal, on the basis that such appeals are exceptional and there are no discretionary reasons for departing from that approach in the particular case.[119] Conversely, unless there is no real prospect of success, leave may be granted on the basis that matters of general principle arise, especially if those matters concern a specific kind of costs order.[120]
3. In Re Buckton,[121] Kekewich J decided a question of construction of a will. He then stated that it would not be right to neglect the opportunity to enunciate rules as to the costs of such an application for the guidance of the profession. Similarly, we consider that leave to appeal should be granted because the case concerns the making of a specific kind of costs order, namely an order for costs to be paid out of a trust fund or estate, which involves important matters of principle.
4. Kekewich J in Re Buckton distinguished three kinds of case in which issues arise for determination in the administration of a trust. They were explained by McMillan J in Mantovani v Vanta Pty Ltd [No 3]:

In Re Buckton, Kekewich J set out a tripartite classification of disputes involving trustees and explained the costs consequences that typically flow from cases in each category. The first is an action brought by trustees relating to the construction of a trust instrument or some other question arising in the course of the administration of a trust, in which case the costs of all parties are treated as necessarily incurred for the benefit of the estate and are ordered to be paid out of the fund on an indemnity basis. The second is where a dispute involves an application which is made by a party other than the trustee, but raises the same issues as the first category and would have justified an application by the trustee. In this instance, the same rule applies in relation to a trustee's costs, because the application is considered to be for the benefit of the trust estate. The final category of trustee dispute involves the bringing of a hostile claim against a trustee (or another beneficiary) by a beneficiary. Costs in this type of case are treated in the same way as in ordinary litigation, that is, they follow the event. As was observed by his Honour:

• It is often difficult to discriminate between cases of the second and third classes, but when once convinced that I am determining rights between adverse litigants I apply the rule which ought, I think, to be rigidly enforced in adverse litigation, and order the unsuccessful party to pay the costs.

However, in such cases, a trustee that properly, albeit not necessarily successfully, defends a claim for the benefit of the estate will be entitled to their costs out of the estate, to the extent that they are not recovered from another party.[122]

1. These principles draw a distinction between 'ordinary' adversarial litigation and litigation for the resolution of issues for the benefit of the trust estate. That distinction, not always easily drawn, is significant. In the probate context, it reflects the public interest in ensuring that wills are not wrongly admitted to probate by reason of the cost of litigating an issue arising under a will, together with the need not to encourage parties to engage in litigation irrespective of its merits, on the basis that their costs will be paid by others.[123] Outside the probate jurisdiction, analogous considerations apply.
2. In probate cases, one factor that may assist in characterising the litigation is whether the conduct of the testator has given rise to the issue requiring resolution.[124] That circumstance allows the court more readily to characterise the dispute as one needing to be resolved for the benefit of the estate. But ultimately it is no more than a factor bearing on the exercise of the costs discretion, just as the conduct of any party to the litigation may influence the court's ultimate conclusion as to costs.
3. It will be recalled that the judge in the present case did not treat it as a probate case, but took account of Marilyn's conduct in breaching the mutual wills agreement as a factor that was relevant by analogy with the approach that would be taken in a probate case where the issue in question arose as a result of the conduct of the testator. The respondents contend that this reasoning, even if appropriate in a probate case, has no application in a mutual wills case, whether by analogy or otherwise. They rely on the English Court of Appeal decision in Shovelar.
4. In Shovelar, Ward LJ referred to a 'rule' that, 'if the cause of litigation takes its origin in the fault of the testator or those interested in the residue, costs may properly be paid out of the estate'.[125] The 'rule' has been criticised more recently as being insufficiently responsive to the danger of encouraging litigation.[126] In Shovelar itself, plaintiffs who had successfully advanced a mutual wills argument won an order for costs against the beneficiaries under the will that had been made contrary to the agreement found by the court. The unsuccessful beneficiaries appealed, seeking that the costs be paid out of the estate. After reviewing the authorities, Ward LJ concluded:

I conclude that the so-called rule in probate cases does not apply in the case before us. The probate rule is rooted in the inquisitorial exercise that was conducted by the ecclesiastical courts and the Probate Division where the court had to be satisfied of the validity of the will before it could pronounce for the will and admit it to probate. The effect of mutual wills upon the distribution of the estate under a later will which is admitted to probate is a matter for the Chancery Division applying the law of trusts; it is not a matter of probate law and practice. The nature of that litigation is not inquisitorial: it is adversarial and, not infrequently, very adversarial as the two families disunited by death battle for their perceived true inheritance. That is exactly what has happened here. It may be unfortunate that the two sides of the family have locked horns in battle with no quarter given. In my judgment the judge was entitled to find, indeed right to find, that 'the contention between the parties was not unlike any other hostile litigation and not such that would enable the court to move away from the general rule'. The reasons she gave in para 39 of her judgment ... [are] beyond challenge: there would be a plain injustice if the claimants were deprived of any benefit of their success. The challenge by the defendants as to what had been said and done and the legal consequences of that behaviour do not provide a reason for departing from the general rule that costs follow the event.[127]

1. The respondents seek to draw too much from these observations. Shovelar does not stand for the proposition that it is irrelevant to the determination of costs in a mutual wills case that the dispute arose because of the conduct of the testator. It provides only that there is no 'rule' that costs should be paid by the estate where litigation is caused by a testator, outside the context of probate cases (as to which the application of the 'rule' did not need to be decided). There was accordingly no reason why the judge could not take account of the fact that the issue in the litigation was traceable to Marilyn's breach of the mutual wills agreement.[128]
2. Conversely, no House v The King error was involved in the judge not having characterised the litigation as ordinary adversarial litigation between beneficiaries (in the third category identified in Re Buckton). It was open to the judge to treat the situation as more nuanced than that. The submission that the judge's failure to identify the litigation in this way vitiated his exercise of the costs discretion cannot be sustained.
3. The remaining elements of the cross-appeal are the respondents' assertion that the judge took account of two irrelevant considerations, namely whether the appellants acted reasonably in defending the proceeding and the size of the estate.
4. The question whether the appellants acted reasonably was advanced by the respondents as an aspect of the judge's alleged application of the 'rule' in probate cases. For the reasons already given, that challenge to the judge's exercise of discretion must fail. In any event, the reasonableness of the unsuccessful party's conduct of litigation is a relevant consideration in determining costs, in the probate context and elsewhere.
5. Finally, the size of the estate was also a relevant consideration. The judge was entitled to take account of the fact that the estate was not so modest in size that an order for costs to be paid from the estate would unfairly or disproportionately diminish it to the detriment of the ultimate beneficiaries (the respondents).
6. For these reasons, the cross-appeal should be dismissed.

1. Leave to appeal and to cross-appeal should be granted. Both the appeal and the cross-appeal should be dismissed.
2. We will give the parties the opportunity to make written submissions as to the costs of the appeal and the cross-appeal. Our present inclination is that those costs should follow the event in each case. If either party seeks an order that these costs be paid out of the estate, it will be necessary to give the first respondent (Ms Kallweit) an opportunity to make submissions on behalf of the estate.

• INES KALLWEIT (in her capacity as the administrator of the estate
• of MARILYN MARJORIE MIGLIC, deceased)

[1] Without disrespect, we will refer to the principals in this case by their first names.

[2] We will refer to Kurt's children as 'the respondents', notwithstanding Ms Kallweit's status as the third respondent. Ms Kallweit took no active role in the proceedings.

[3] Re Miglic [2014] VSC 20 [5] (Gorton J) ('Reasons').

[4] [1937] HCA 52; (1937) 57 CLR 666.

[5] Ibid 683. See also Baird v Smee [2000] NSWCA 253 [65] (Giles JA, Mason P agreeing at [1]) ('Baird').

[6] Birmingham v Renfrew [1937] HCA 52; (1937) 57 CLR 666, 685 (Dixon J) citing Francis Hargrave, Juridical Arguments and Collections (GG & J Robinson, 1797-99) vol 2, 295.

[7] Osborne v Osborne [2001] VSCA 228 [24] (Buchanan JA, Winneke P agreeing at [19], Vincent JA agreeing at [30]) ('Osborne').

[8] Birmingham v Renfrew [1937] HCA 52; (1937) 57 CLR 666, 681 (Dixon J).

[9] Ibid 674-5 (Latham CJ) (citations omitted).

[11] Ibid 683; see also 674-5 (Latham CJ), 692 (Evatt J); Osborne [2001] VSCA 228 [24]-[25] (Buchanan JA, Winneke P agreeing at [19], Vincent JA agreeing at [30]), citing Re Dale [1994] Ch 31, 48-9 (Morritt J).

[12] Legg v Burton [2017] EWHC 2088; [2017] 4 WLR 186 [20] (Matthews J), citing Lord Walpole v Lord Orford [1797] EngR 489; (1797) 3 Ves Jun 402; 30 ER 1076, 1084-5 (Lord Loughborough LC); Re Cleaver, deceased [1981] 1 WLR 939, 947 (Nourse J).

[13] Osborne [2001] VSCA 228 [15] (Winneke P); see also [29] (Buchanan JA), [30] (Vincent JA).

[14] Baird [2001] NSWCA 253 [12] (Mason P), citing Re Oldham [1925] Ch 75, 88 (Astbury J).

[15] Re Goodchild, deceased [1997] EWCA Civ 1611; [1997] 1 WLR 1216, 1225 (Leggatt LJ, Morritt LJ agreeing at 1229, Phillips LJ agreeing at 1231).

[17] Such evidence is admissible under s 63(2) of the Evidence Act 2008.

[18] Reasons [10], citing Watson v Foxman [1995] NSWCA 497; (1995) 49 NSWLR 315, 319 (McLelland CJ in Eq); Roberts-Smith v Fairfax Media Pty Ltd [No 41] (2023) 417 ALR 320-1 [162]-[166] (Besanko J); [2023] FCA 555.

[19] Reasons [11], citing Osborne [2001] VSCA 228 [29] (Buchanan JA, Vincent JA agreeing at [30]).

[20] Ibid [16]-[19], [116]-[117](a).

[29] Ibid [117](e). As set out below, the parties are in dispute as to whether this conclusion was an inference drawn from the evidence as a whole, of a finding of primary fact.

[32] Gray v The Perpetual Trustee Company Co Ltd [1928] UKPCHCA 1; (1928) 40 CLR 558, 565 (Viscount Haldane for the Privy Council); Baird [2000] NSWCA 253, [25]-[26] (Handley JA).

[33] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362 (Dixon J); Osborne [2001] VSCA 228 [27] (Buchanan JA, Vincent JA agreeing at [30]).

[34] Birmingham v Renfrew [1937] HCA 52; (1937) 57 CLR 666, 674 (Latham CJ).

[35] Re Goodchild [1997] EWCA Civ 1611; [1997] 1 WLR 1216, 1225 (Leggatt LJ, Morritt LJ agreeing at 1229, Phillips LJ agreeing at 1231). The relevant passage in Leggat LJ's reasons is set out and discussed at [29] and following above.

[37] As argued by the respondents below at [57].

[38] See below at [56].

[39] Legg v Burton [2017] EWHC 2088; [2017] 4 WLR 186 [61]-[63] (Matthews J).

[40] Baird [2000] NSWCA 253 [71] (Giles JA, Mason P agreeing at [1]).

[41] Renfrew v Birmingham [1937] VicLawRp 21; [1937] VLR 180; Low v Perpetual Trustees WA Ltd (1995) 14 WAR 35 ('Low').

[42] Birmingham v Renfrew [1937] HCA 52; (1937) 57 CLR 666, 682 (Dixon J). See also Low (1995) 14 WAR 35, 42 (Master Adams)

[43] The respondents supported this claim with reference to Renfrew v Birmingham [1937] VicLawRp 21; [1937] VLR 180.

[44] The judge did not make any findings on this point, but it appeared to be common ground amongst the parties that Marilyn consumed a lot of alcohol. At trial, senior counsel for the appellants accepted that she was 'a drinker', but sought to downplay the extent and impact of her drinking.

[45] See Reasons [117](e) and cf [50] above.

[47] Perronnet v Goedemans [2025] VSCA 28 [139]-[143] (Niall CJ, McLeish and Kennedy JJA).

[48] (2003) 214 CLR 118.

[49] Ibid 125-6 [22]-[23] (citations omitted).

[50] [2016] HCA 22; (2016) 90 ALJR 679, 686-7 [43] (French CJ, Bell, Keane, Nettle and Gordon JJ) (citations omitted).

[51] [2019] HCA 28; (2019) 266 CLR 129, 148-9 [55] (Kiefel CJ agreeing at 134 [1]) (citations omitted).

[53] Reasons [117(e)] (emphases added).

[54] Roberts-Smith v Fairfax Media Publications Pty Ltd [2025] FCAFC 67 (Perram, Katzmann and Kennett JJ)): 'In deciding whether a trial judge erred, a court is not entitled to disregard parts of the evidence'.

[55] See [79] above.

[62] Re Pauling's Settlement Trusts [No 2] [1963] 1 Ch 576, 585-6 (Wilberforce J).

[63] Nocton v Lord Ashburton [1914] UKLawRpAC 31; [1914] AC 932, 952 (Viscount Haldane LC); O'Halloran v R T Thomas & Family Pty Ltd (1998) 45 NSWLR 262, 272 (Spigelman CJ, Priestley JA agreeing at 280, Meagher JA agreeing at 281).

[64] GM & AM Pearce & Co Pty Ltd v Australian Tallow Producers [2005] VSCA 113 [71] (Warren CJ, Chernov JA agreeing at [87], Dodds-Streeton AJA agreeing at [95]).

[66] Re Hallett's Estate [1880] UKLawRpCh 38; (1879) 13 Ch D 696 (Jessel MR).

[67] Re Oatway [1903] UKLawRpCh 79; [1903] 2 Ch 356.

[68] Foskett v McKeown [2000] UKHL 29; [2001] 1 AC 102, 133 (Lord Millett, Lord Browne-Wilkinson agreeing at 111, Lord Hoffmann agreeing at 115) ('Foskett').

[69] Toksoz v Westpac Banking Corporation [2012] NSWCA 199; (2012) 289 ALR 577, 579 [8]-[10] (Allsop ACJ, Hoeben JA agreeing at 584 [32], Sackville AJA agreeing at 584 [33]); [2012] NSWCA 199 ('Toksoz').

[70] The appellants accepted that these assets could not be traced to the inheritance under Gertrude's will.

[71] See [90]-[91] above.

[74] The respondents did not, however, concede that there was intermingling of assets. On this point, they said there was no way to know, and noted the possibility that the amount was preserved in one of Marilyn's term deposits.

[75] See [90] above.

[77] The respondents said that Nestle v National Westminster Bank plc [1994] 1 All ER 118 ('Nestle') is illustrative of the type of evidence that would have been led had an equitable compensation claim been advanced. They focused, in particular, on competing expert evidence and attention to the personal circumstances of life tenants and remaindermen, as reflected at 136-7.

[78] Taylor v Plumer [1815] EngR 551; (1815) 3 M & S 562; 105 ER 721, 726 (Lord Ellenborough CJ); Re Diplock [1948] 1 Ch 465, 536-7 (Lord Greene MR, Wrottesley and Evershed LJJ).

[79] Re Hallett's Estate [1880] UKLawRpCh 38; (1879) 13 Ch D 696 (Jessel MR).

[83] The amount of $4.25 million was based on a calculation by Mr Plover which assumed that income would be reinvested.

[84] In the appeal, but it seems not at trial, reference was made in this context to Toksoz.

[85] [2000] UKHL 29; [2001] 1 AC 102, 133 (Lord Millett, Lord Browne-Wilkinson agreeing at 111, Lord Hoffmann agreeing at 115).

[87] Foskett [2000] UKHL 29; [2001] 1 AC 102, 127 (Lord Millett, Lord Browne-Wilkinson agreeing at 111, Lord Hoffmann agreeing at 115).

[89] Ibid 127 (Lord Millett, Lord Browne-Wilkinson agreeing at 111, Lord Hoffmann agreeing at 115).

[91] Ibid 130, citing James Barr Ames, 'Following Misappropriated Property into its Product' (1906) 19(7) Harvard Law Review 511.

[92] Foskett [2000] UKHL 29; [2001] 1 AC 102, 128 (Lord Millett, Lord Browne-Wilkinson agreeing at 111, Lord Hoffmann agreeing at 115).

[95] Ibid 128 (Lord Browne-Wilkinson agreeing at 111, Lord Hoffmann agreeing at 115).

[96] [2012] NSWCA 199; (2012) 289 ALR 577, 579 [8] (Allsop ACJ, Hoeben JA agreeing at 584 [32], Sackville AJA agreeing at 584 [33]); [2012] NSWCA 199.

[97] See, eg, Nestle [1994] 1 All ER 118.

[98] See, eg, Sambucco v Sambucco (2023) 72 VR 121, 127-8 [29]-[30] (McLeish and Walker JJA and Gorton AJA), citing Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 7-8 (Gibbs CJ, Wilson, Brennan and Dawson JJ); Water Board v Moustakas (1988) 180 CLR 491, 497 (Mason CJ, Wilson, Brennan and Dawson JJ).

[99] See, eg, Trustee Act 1958 s 8(1)(d).

[100] The judge gave his reasons for his costs orders in two separate rulings, both delivered on the same day. For present purposes, there is no need to distinguish between them.

[101] Davies v Gregory (1873) LR 3 P&D 28; Re Tsaousis [2019] VSC 511 [32]-[33] (McMillan J).

[102] Shovelar v Lane [2011] EWCA Civ 802; [2012] 1 WLR 637, 652 [44] (Ward LJ, Arden LJ agreeing 656 [62], Moore-Bick LJ agreeing at 656 [63]) ('Shovelar'); Fielder v Burgess [2014] SASC 98; De Bruyne v Welstead [2022] NSWSC 886.

[103] Shovelar [2011] EWCA Civ 802; [2012] 1 WLR 637, 652 [44] (Ward LJ, Arden LJ agreeing 656 [62], Moore-Bick LJ agreeing at 656 [63]).

[104] House v The King (1936) 55 CLR 499.

[105] Alsop Wilkinson v Neary [1996] 1 WLR 1220, 1224 (Lightman J), citing McDonald v Horn [1995] ICR 685, 696 (Hoffmann LJ).

[106] Re Frosthollow Pty Ltd [2015] VSC 512 [11] (McDonald J).

[107] Re Evans [1986] 1 WLR 101, 107 (Nourse LJ, Robert Goff LJ agreeing at 108, O'Connor LJ agreeing at 108).

[108] Civil Procedure Act, ss 7-9.

[109] Northern Territory v Sangare [2019] HCA 19; (2019) 265 CLR 164, 173 [25] (Kiefel CJ, Bell, Gageler, Keane, Nettle JJ).

[110] Cargill Australia Ltd v Viterra Malt Pty Ltd [2023] VSCA 301 [63] (Sifris, Walker and Whelan JJA) ('Cargill').

[111] In the appellants' submission, this distinguished the instant case from Reed v Smith [No 2] [2022] QSC 229, where the unsuccessful party failed to establish that the testator had breached a mutual wills agreement. It was, therefore, not a case where it could be said that the testator had caused the litigation.

[112] See, eg, Gray v Perpetual Trustee Co Ltd [1928] UKPCHCA 1; (1928) 40 CLR 558, 566 (Viscount Haldane for the Privy Council).

[113] Re Tsaousis [2019] VSC 511 [32]-[33] (McMillan J); Forsyth v Sinclair [No 2] [2010] VSCA 195; (2010) 28 VR 635, 641-2 [21]-[25] (Neave and Redlich JJA and Habersberger AJA).

[114] See, eg, Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, 401 (Woodward J); [1988] FCA 364.

[115] See, similarly, In re Buckton [1907] UKLawRpCh 98; [1907] 2 Ch 406, 416-7 (Kekewich J). Cf Re Cunningham (1914) 31 WN (NSW) 44.

[116] Shovelar [2011] EWCA Civ 802; [2012] 1 WLR 637, 652 [44] (Ward LJ, Arden LJ agreeing 656 [62], Moore-Bick LJ agreeing at 656 [63]).

[117] See, eg, Cargill [2023] VSCA 301 [63] (Sifris, Walker and Whelan JJA); United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2020] VSCA 15 [124] (Whelan, McLeish and Niall JJA); Spotless Group Ltd v Premier Building and Consulting Pty Ltd [2008] VSCA 115 [10]-[11] (Redlich JA, Dodds-Streeton JA agreeing at [47]).

[118] Supreme Court Act 1986, s 14C.

[119] Kyne v Gerard Brandrick & Associates Pty Ltd [2025] VSCA 17 [66] (Niall CJ, McLeish and Kennedy JJA) ('Kyne'); Cargill [2023] VSCA 301 [64] (Sifris, Walker and Whelan JJA); PCCEF Pty Ltd v Geelong Football Club Ltd [No 2] [2019] VSCA 148 [40]-[41] (Whelan, McLeish and Emerton JJA); Bodycorp Repairers Pty Ltd v GDG Legal Pty Ltd [2018] VSCA 32 [18] (Ferguson CJ, Whelan and McLeish JJA); 24 Hour Fitness Pty Ltd v W & B Investment Group Pty Ltd [2015] VSCA 216 [53] (Hansen, Ferguson and McLeish JJA).

[120] Northern Territory v Sangare [2019] HCA 19; (2019) 265 CLR 164, 172-3 [24] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ); Kyne [2025] VSCA 17 [66] (Niall CJ, McLeish and Kennedy JJA).

[121] [1907] UKLawRpCh 98; [1907] 2 Ch 406.

[122] [2022] VSC 357 [10] (citations omitted).

[123] See, eg, Re Tsaousis [2019] VSC 511 [33] (McMillan J); Re Papavasilou; Theofanous v Aizen [No 2] [2023] VSC 118 [15] (McMillan J) ('Re Papavasilou').

[124] Re Tsaousis [2019] VSC 511 [32] (McMillan J); Re Papavasilou [2023] VSC 118 [14] (McMillan J).

[125] [2011] EWCA Civ 802; [2012] 1 WLR 637, 647 [32] (Arden LJ agreeing 656 [62], Moore-Bick LJ agreeing at 656 [63]), citing Mitchell v Gard (1863) 3 Sw & Tr 275; 164 ER 1280, 1281 (Sir James Wilde).

[126] Shovelar [2011] EWCA Civ 802; [2012] 1 WLR 637, 649 [34] (Ward LJ, Arden LJ agreeing 656 [62], Moore-Bick LJ agreeing at 656 [63]); Fielder v Burgess [2014] SASC 98 [61]-[65] (Kourakis CJ).

[127] Shovelar [2011] EWCA Civ 802; [2012] 1 WLR 637, 652 [44] (Arden LJ agreeing 656 [62], Moore-Bick LJ agreeing at 656 [63]) (citations omitted).

[128] Ibid 651 [41], citing Gray v The Perpetual Trustee Company Co Ltd [1928] UKPCHCA 1; (1928) 40 CLR 558, 565 (Viscount Haldane for the Privy Council).