Dimitrov & Ors v Bendigo and Adelaide Bank Ltd & Ors [No 2] [2019] VSCA 51

2 The applicants filed a written submission resisting the costs order sought on behalf of the directors. They resisted the order on the following basis:

(1) The applicants had only ever sought orders affecting their own particular situation in relation to the first respondent, Bendigo and Adelaide Bank Limited ('BABL'). The applicants had never sought orders that would 'change the rights of the directors'. They were only concerned to preserve their ability to pursue defences and cross-claims against BABL. In the circumstances, the directors had been acting much like an 'intervener' and the principles which apply to interveners should be applied to them. The directors had no interest which was not in common with BABL.

(2) The application made was a 'test case' which was focused on significant legal issues and was of likely benefit to a considerable number of people otherwise left in doubt as to their legal position. In such test cases the general approach to costs is not, and should not, be followed.

3 In the alternative, the applicants sought an order staying any order as to costs until certain related matters concerning two of the applicants (Cairncross and Laszczuk) were determined.

(1) The directors were not 'interveners'. They were joined as respondents by the applicants. The relief sought by the applicants included an order vacating the orders approving a deed of settlement to which the directors were parties. Whilst the order the applicants sought in substitution for the order vacated was purportedly confined to their own position, it would have affected the rights of others by overturning a commercial arrangement to which the directors were parties, and on the basis of which many commercial decisions had been made, as the Court had recognised in the Reasons.

(2) The directors had participated in the hearing and advanced submissions which were not identical to those of the other respondents, as the Court had recognised in the Reasons.

(3) The application for an extension of time was not a test case. It was not established that the application was likely to benefit a considerable number of others.

5 The directors sought an order that costs be paid in accordance with the ordinary rule that costs should follow the event, and that there should be no stay.

6 In our opinion the submissions of the directors should be accepted.

7 The directors are not to be treated as 'interveners'. They were joined as respondents by the applicants. They had a real interest in the outcome of the application as parties to the deed of settlement. The submissions they made did not simply replicate those of other respondents.

8 The application for extension of time was not a test case, nor was it sufficiently analogous to a test case to warrant the application of the principles which are applicable to such cases. Whilst legal issues of significance were raised, the factors which were determinative of the application, being delay and prejudice, did not concern those issues.

9 This is a matter where the ordinary cost consequences of an unsuccessful application should follow.

10 Further, we consider that there is no ground for a stay. The directors are not parties to the related applications, and the outcome on those applications cannot affect the assessment of the directors' position in relation to the application for an extension of time.

11 There will be an order that the applicants pay the costs of the eleventh to thirteenth respondents of the application for extension of time.

BENDIGO AND ADELAIDE BANK LIMITED (ACN 068 049 178)

ABL CUSTODIAN SERVICES PTY LTD IN ITS CAPACITY AS TRUSTEE OF THE ABL PORTFOLIO FUNDING TRUST 2007-1 (ACN 097 889 720)

ABL NOMINEES PTY LTD (ACN 106 756 521) IN ITS CAPACITY AS TRUSTEE OF THE LIGHTHOUSE TRUST NO 12

PIRIE STREET HOLDINGS LIMITED (ACN 061 461 550) (FORMERLY ADELAIDE BANK LIMITED)

GREAT SOUTHERN FINANCE PTY LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 009 235 143)

GREAT SOUTHERN MANAGERS AUSTRALIA LIMITED (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 083 825 405)

[1] [2019] VSCA 41 ('the Reasons'). These reasons assume knowledge of the contents of the Reasons.