GJB Building Pty Ltd v AI&PB Property Pty Ltd [2024] VSC 790

(a) Whether the defendants should pay the costs of the First Plaintiff (GJB) and the Second Plaintiff (CornoNero) relating to proof of the insolvency of Trimont Australia (Insolvency Apportionment);

(b) The proposed costs apportionment in relation to the 'Impugned Payments' claim made by CornoNero against the Second, Third and Sixth Defendants (Ascenzo, Breckenridge and Hartwig, respectively) (Impugned Payments Apportionment);

(c) Whether Breckenridge should be granted a stay in respect of judgment to be entered against him in favour of CornoNero[2] until such time as CornoNero and GJB pay the costs to be awarded in his favour; alternatively whether Breckenridge may set off against his obligation to pay CornoNero, CornoNero's and GJB's obligations to pay his costs, and CornoNero may only enforce those orders to the extent of the net amount owing to CornoNero, if any, following quantification of those costs obligations (Stay and Set‑off).

3 All costs were sought on a standard basis. No offers of compromise had been made.

4 Pursuant to s 24(1) of the Supreme Court Act 1986 (Vic), costs are to be determined 'in the discretion of the Court', with the Court having 'full power to determine by whom and to what extent the costs are to be paid'. The discretion must be exercised judicially having regard to established principles and the facts of the case.[3] The Court's discretion is referrable to its inherent powers.[4] In addition, the Civil Procedure Act 2010 (Vic) empowers a Court to make any order in relation to costs that it considers appropriate to further the overarching purpose. Without limiting that discretion, the Court may 'make different awards of costs in relation to different parts of a proceeding or up to or from a specified stage of the proceeding' or 'order that parties bear costs as specified proportions of costs'.[5]

5 All parties accepted that as a matter of principle the Court may apportion costs on an 'issue by issue basis'. Both Breckenridge and the plaintiffs contended for different versions of an 'issue by issue apportionment'. In Chan & Ors v Chen & Ors[6] the Victorian Court of Appeal set out the following broad principles in relation to the apportionment of costs:

(1) The general rule is that costs should follow the event. Absent disqualifying conduct, the successful party should recover its costs even where it has not succeeded on all heads of claim.[7]

(2) The Rules of Court[8] permit significant flexibility in determining questions of costs. In particular, the Court is entitled to examine the realities of the case and will attempt to do 'substantial justice' as between the parties on matters of costs.[9]

(3) Where there is a multiplicity of issues and mixed success has been enjoyed by the parties,[10] a Court may take a pragmatic approach in framing the order for costs, taking into consideration the success (or lack of success) of the parties on an issues basis. Generally, if such an order is made, it is reflected in the successful party being awarded a proportion of its costs but not the full amount.[11]

(4) A Court may, when fixing costs in a claim where there has been mixed success, take into account complications which it considers will arise in the taxation of costs, as part of its consideration of the overall interests of justice.

(5) Where a Court determines to make an order apportioning costs, then it does so primarily as 'a matter of impression and evaluation,'[12] rather than with arithmetical precision, having considered the importance of the matters upon which the parties have been successful or unsuccessful, the time occupied and the ambit of the submissions made, as well as any other relevant matter.

(6) Where a number of parties have had the same representation, there is a 'rule of thumb'[13] as to the apportionment of costs, namely that, where some of those parties have been successful and others have not, each successful party is only entitled to his or her proportion of the costs incurred on behalf of all, plus the costs, if any, incurred exclusively on his or her behalf. The primary issue for determination in such a case is that of fairness as between the parties, having regard to the manner in which the trial, or appeal, has been conducted.

(7) Usually, an order for costs will be made on a party/party basis.[14] But an order for costs on a solicitor/client or indemnity basis may be made where special or unusual circumstances have been demonstrated,[15] for example, by establishing misconduct in the proceeding, that the proceeding was brought for an ulterior purpose, or that it was patently unreasonable to institute, or maintain, the proceeding. Special circumstances may also include the making of an allegation of fraud which is not proved.[16]

6 Noting the wide discretion as to costs, the 'general rule' is that a successful party should obtain all of the costs of the action even though it failed to establish some of its alternative heads of claim.[17] Courts do not then, as a general rule, attempt to differentiate between the issues on which a party was successful and those on which it failed.[18]

7 However, there may be reasons why differentiation between issues is appropriate.

8 The prima facie rule is that costs 'follow the event'. In this context, the 'event' is not confined to the final result of the proceedings, but may include the findings on individual issues litigated in the Court of the proceedings.[19] An 'issue' need not go to the entire cause of action but includes 'any issue which has a direct and definite event in defeating the claim to judgment in whole or in part.'[20] It need not be a precise issue in a technical pleading sense, but may be any disputed question of fact or law.[21]

9 In deciding whether and how to apportion cost, the following factors have, with some consistency, been accorded significance:

(a) A Court will be reluctant to apportion costs between different issues depending on success or failure on those issues where it is likely to be difficult, if not impossible, to allocate items of costs between the different issues.[22] Accordingly, the severability of the issues is an important factor.[23] The issues should be 'sufficiently distinct'[24] or 'separable'.[25]

(b) Unless the issues proposed to be apportioned are substantial, and consumed significant litigious effort, the exercise of apportionment of costs may lack real utility.[26]

(c) It is relevant to consider whether the issues on which a party failed were major issues in the action which involved substantial questions of fact and law, or substantially increased the costs of the action. It might be relevant to consider whether a party has succeeded on a 'technicality' but has not been 'generally successful'.[27]

(d) Unreasonable or inappropriate conduct of the successful litigant in relation to particular issues might present a good reason not to follow the 'usual rule.'[28]

(e) It is not necessary as a precondition to making an apportionment of costs, that the issue concerned was raised unreasonably or inappropriately by the party. But one relevant consideration is that a party should not be dissuaded from canvassing issues which might be material to the decision in the case by the risk of costs.[29]

10 In apportioning costs the most commonly employed methods are orders framed by reference to particular issues (subject matter) on which there has been success or failure, or alternatively, an order that a party recovers only a certain percentage of its costs.

11 Depending on the case, an issue by issue approach may fail to account for the varying time taken up by each issue or fail to give weight to the monetary value of each contention.[30]

12 To order a proportion of costs in favour of one or more of the parties (or if the issues are evenly balanced, make no order to costs) has been described as 'a pragmatic approach'.[31] The making of a single fractional cost order, which takes into account the relative success of both parties, avoids placing a burden on a taxing officer and the parties, and satellite litigation regarding the costs.[32] In apportioning a percentage, the Victorian Court of Appeal observed in Investec Bank (Aust) Ltd v Glodale Pty Ltd (No 2),[33] that apportionment is a matter of 'impression and evaluation, rather than arithmetic precision' and ought to have regard to the degree of success enjoyed by each party, time spent on each issue, and importance of the issue.

13 The appropriate approach will be determined by which produces a fairer result.[34]

14 If an issue by issue approach to costs is taken, the question remains whether a party who failed on an issue should be ordered to pay the costs of its opponent on that issue, or merely be deprived of its costs in respect of it (leaving the parties to bear their own costs on that issue). The Court's exercise of discretion should strike a balance between not discouraging litigants from canvassing all material issues, and not rewarding them for unreasonable conduct in pursing issues. The exercise of discretion on apportionment is an 'evaluative one', 'based largely on impression'.[35]

15 There are also many ways in which a successful party's conduct of a proceeding can provide a proper basis to deprive that party of its costs.[36] If the successful party has 'done something connected with the institution or the conduct of the suit calculated to occasion unnecessary litigation or expense',[37] or has placed the unsuccessful party at an unjustifiable costs burden they may be deprived of their costs.[38]

16 A party who is ultimately successful is more likely to be ordered to pay costs on issues which it failed on, if the issues were improperly or unreasonably raised, or if the successful party's conduct of the litigation unnecessarily increases the opponent's costs. A Court is not required to find high‑handed or improper conduct in order to warrant a reduction in a winner party's costs. Indeed, 'the test stated in the authorities is whether the successful party has so conducted itself as to result in an unnecessarily protracted trial.'[39]

17 A Court may order a successful party, even a wholly successful party whether a plaintiff or defendant, to pay its opponent's costs in part or in whole.[40] However, there must be some reason for departing from the settled practice that costs follow the event.[41] A departure from the general rule in this respect has been described as 'rare' and 'exceptional'.[42] In cases where the respondent has assumed the role of contradictor or representative, and which have a public interest character, Courts have occasionally found that it is appropriate for the unsuccessful respondent to have a percentage of its costs or for the Court to make no order as to costs.[43]

18 GJB alleged that Trimont was insolvent 'from about July 2014'. I made the factual finding that Trimont was insolvent as at 30 June, 1 August and 11 September 2015. GJB and CornoNero seek an order that the defendants pay GJB's and CornoNero's costs relating to the insolvency of Trimont. Breckenridge, Hartwig and Ascenzo each contend that the Court should make no specific order in relation to the costs of and incidental to the issue of Trimont's insolvency.

19 CornoNero and GJB jointly submitted that each of them should be paid their costs of 'the factual dispute surrounding the insolvency of Trimont'. They said that, 'while the insolvency issue also related to claims in which the CornoNero parties were ultimately unsuccessful, that circumstance does not detract from CornoNero's success on this issue'. They submitted that it was necessary to prove Trimont's insolvency for a number of reasons, including to rebut Breckenridge's contentions concerning the 'Trimont Loan Account' which featured prominently in his defence of the claims that he had breached his director's duties to CornoNero in relation to the Impugned Payments. Breckenridge's contentions were substantially adopted by the other defendants.

20 The plaintiffs relied on authorities that establish the effect that a successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered to pay the other party's costs of them.[44] The plaintiffs further submitted that the dispute surrounding Trimont's insolvency '_was a central and significant issue that consumed a considerable part of the trial by way of evidence and argument, and which also contributed to the length of the tria_l.' They attributed the intensity of the dispute and its contribution to the length of the trial to the defendants, who, they said, 'strongly contested' the issue, failing to make concessions, putting the plaintiffs to proof. In response to the defendants' submissions that the plaintiffs themselves approached the proof of insolvency in a way that contributed to unnecessary time spent at trial, the plaintiffs said that they were put to proof and were 'at liberty to prove the question as they chose', accepting that they did so on a 'document by document basis'.

21 Ascenzo submitted that no separate order ought be made in respect of the insolvency question because when properly considered it falls within the scope of GJB's claim concerning the acquisition of its shares in CornoNero (in respect of which it is agreed that GJB should pay the defendants' costs). The fact of Trimont's insolvency was, on the pleaded case, an element of GJB's claim concerning the 'Trimont Sales Representations' (against Ascenzo) and the 'Trimont Earnings Representations' (against Breckenridge and Hartwig), which representations were alleged to have induced GJB to acquire shares in CornoNero. Those claims failed. Ascenzo was, in this respect, the successful party. GJB proved the fact of insolvency but its claim to damages was rejected. GJB is in essence seeking an order that as an unsuccessful plaintiff, it should be entitled to its costs on a single factual issue relevant to a claim on which it failed. The authorities hold that an order that a successful party pay an unsuccessful party's costs can rarely, if ever, be justified.

22 CornoNero, a separate party, ran a distinct case and should be treated as such for the purpose of costs. The only claim on which CornoNero did succeed (the Impugned Payments claims, in part) did not rely on the fact of Trimont's insolvency. That is to say, whether Trimont was or was not solvent, had no impact on the success of CornoNero's case. Trimont's financial position was a contextual feature of the case but its insolvency was neither directly relevant to, nor necessary for, any other part of the case beyond the share acquisition claims by GJB.

23 Furthermore, GJB sought to prove insolvency in an unorthodox manner that added significant and unnecessary time and expense to the trial. Rather than referring the question to an expert, it sought to prove Trimont's insolvency through documents. That involved taking Ascenzo and Breckenridge in cross‑examination to every invoice, letter of demand and other document which bore on Trimont's financial position over an extended period of time, substantially exceeding the estimates of time for cross‑examination and the trial. GJB could have readily provided those materials to an expert from whom an opinion on solvency could have been elicited. The plaintiffs could have compiled the evidence and served notices to admit facts and documents, with attendant costs consequences for non‑admission. They took neither course. The plaintiffs' conduct of the issue was such that Ascenzo should not be liable for costs in respect of it. While Ascenzo's primary position is that no specific costs order is necessary, if the Court considers that a specific order is appropriate, such an order should favour Ascenzo, and not the plaintiffs.

24 Hartwig submitted that the determination of the factual question of the insolvency of Trimont was not an issue that could give rise to a right to relief.[45] It was not determinative of any issue and was not necessary for the resolution of the case. The plaintiffs' 'success' on the question of insolvency did not alter the outcome with respect to any cause of action. Even on the claim against Hartwig in respect of which Trimont's insolvency was alleged to have been relevant, proof of insolvency was strictly unnecessary. The pleaded representation was that for the financial year ended 30 June 2015, Trimont's profit and EBITDA would be in the amounts alleged. To prove the falsity of those representations it was not necessary to show that Trimont was insolvent.

25 The Court rejected GJB's submission that Trimont's insolvency 'supported' its case that the shares it acquired in CornoNero were 'worthless' (Judgment (J), [531]); accepted that GJB had not discharged its onus of proving loss (J[534]); noted the concessions of the plaintiffs as to the limited utility of a finding that Trimont was insolvent as opposed to merely struggling financially (J[538]). The Court was critical of the manner in which the plaintiffs sought to prove insolvency (J[541], [544], [715]).

26 The mode of proof adopted by the plaintiffs was inappropriate. It was unnecessary and protracted and not the conventional way that one would approach that question, through expert evidence. Further, the plaintiffs' submission that the time spent on the insolvency question could be easily determined and realistically estimated for the purposes of an apportionment of costs, should be rejected. The question of insolvency arose in the course of a three month long trial, sporadically, and would not permit a clear demarcation in terms of time or work product.

27 Breckenridge submitted that GJB having failed on the claim in respect of which Trimont's insolvency was relevant (on the plaintiffs' own pleadings), there is no basis on which to award costs on this 'issue' against Breckenridge. The plaintiffs sought to make the insolvency of Trimont central to the entire case but that characterisation and the submission now made, should be rejected. GJB could have established that there was no reasonable basis for the Trimont earnings representations without proving the insolvency of Trimont. Furthermore, GJB alleged that Trimont was insolvent 'from July 2014 and throughout the 2016 financial year.' Those matters were not necessary to establish the statutory cause of action against Breckenridge, as was conceded in final submissions.

28 GJB made a forensic decision to prosecute the claim in the way it did, with the risk that if it was ultimately unsuccessful in its claim for misleading conduct it would likely receive a costs order against it. The mode in which the insolvency question was addressed made the trial extremely complex for everyone, including the Court. That factor ought be an important element in the exercise of the Court's costs discretion. It is recognised that the Court's resources are limited and parties have obligations to fashion their cases in a way to focus on the real issues and be as efficient as possible. In this case there was a wholly unexplained attempt to prove facts, that at the very death knell were conceded not to be relevant to any issue before the Court except in a very narrow scope, in an unorthodox way that massively increased the burden for everyone and required lengthy cross‑examination, where the orthodox approach would have been to appoint an expert.

29 It is not correct that insolvency was strongly defended by Breckenridge. It was not an issue about which Breckenridge called any evidence. It was unnecessary for Breckenridge to make submissions about a false issue.

30 For the reasons that follow, I consider that the proper exercise of the Court's discretion is to refuse the order sought by GJB and CornoNero in respect of the issue of Trimont's insolvency. No specific order concerning proof of that factual issue is required. The issue is properly understood as relevant to GJB's claims concerning the acquisition of shares in CornoNero, on which GJB has failed.

31 GJB alleged that it acquired shares in CornoNero in reliance on two sets of representations, said to have been misleading or deceptive, contrary to s 18 of the Australian Consumer Law. Breckenridge and Hartwig were said to have represented to GJB that Trimont's Gross Profit for the financial year ending 30 June 2015 would be $5,179,008 and that its EBITDA for the same year would be $2,461,542 (the 'Trimont Earnings Representations'). It was alleged that there was in fact no reasonable basis, as at February and March 2015, for projecting that Trimont's profit or earnings would be in the amounts projected. By way of particulars in support of the 'no reasonable basis' allegation, GJB set out numerous matters concerning Trimont's financial position, said to support the conclusion that 'Trimont was insolvent from about July 2014'. The particulars stated that in the financial years ended 30 June 2013 and 30 June 2014 Trimont did not have sufficient current assets to meet its then current liabilities. The particulars specified that in the financial year ended 30 June 2015 Trimont had various unpaid liabilities and that in 2014, 2015, 2016 and 2017 various creditors made claims against it. GJB also relied on 'the results of the investigations of the liquidators of Trimont in their report to creditors dated June 2017.' Separately, GJB alleged that by propounding the transactions in the proposed Business Sale Agreement (BSA) and Share Sale Agreement (SSA), Ascenzo represented to CornoNero and GJB that (among other things) Trimont was not insolvent (the 'Trimont Sales Representations'). The effective date of the BSA was 1 August 2015. GJB's case was that the parties entered the BSA and the SSA on 7 August 2015 or 11 September 2015 and that both agreements were completed in or about September 2015.[46]

32 Whether Trimont was insolvent was directly relevant to the Trimont Sales Representations claim against Ascenzo. The representation as to solvency was not said to have been made in relation to any period of time other than as at the date of making of the agreements (i.e. August or September 2015). The plaintiffs conceded in closing submissions that the relevant dates should be narrowed to 30 June 2015, 1 August and 15 September 2015.[47]

33 Trimont's insolvency was also expressly relied upon in GJB's claim against Hartwig and Breckenridge in respect of the Trimont Earnings Representations. In the context of that claim there was no direct correspondence between projected earnings and profit amounts, and the insolvency of Trimont.[48] GJB sought to prove that part of its claim indirectly.

34 GJB and CornoNero were jointly represented and for most purposes did not distinguish between themselves, including in large part, in their submissions as to the costs of the proceeding. Properly understood, their submissions advanced two contentions.

35 First, they characterised themselves as having succeeded on the insolvency factual issue which, they said, was relevant to both the mis‑representation claims (on which they failed) and the Impugned Payment claims (on which they succeeded, in part). They said that their failure on the misrepresentation claims did not 'detract' from the significance of their success on what was an issue of central importance in the proceeding.

36 They also contended that insofar as the defendants were successful in defending the claims under the Australian Consumer Law, the award of costs in their favour should not include costs in respect of the insolvency question, and that costs should instead be awarded to the plaintiffs who were the unsuccessful parties on those claims.[49] Properly understood, that was the point that GJB sought to draw from the authorities establishing that in some circumstances it may be proper to excise from an award of costs in favour of a successful party, the costs relating to a particular issue. That submission was founded on the contention that the defendants had caused the expenditure of a substantial amount of time at trial in contesting a factual issue on which they failed.

37 As to the relevance of the insolvency question to the issues in dispute, I rejected the contention at trial that Trimont's insolvency 'supported' its case that the shares it acquired in CornoNero were worthless. CornoNero advanced two additional sets of claims - those concerning the Impugned Payments and those concerning the Mernda Development. The issue of insolvency was not said to have been relevant to the Mernda claims.

38 The plaintiffs submitted that the question of Trimont's solvency was relevant to the Impugned Payments claims. Those claims and the issues they concerned, are discussed further below.

39 On the question of costs, the plaintiffs submitted that Trimont's solvency was specifically relevant to the issues surrounding the 'Trimont Loan Account'.

40 Among other things, Breckenridge contended (by way of defence and at trial) that the Impugned Payments were made pursuant to an ad hoc system of financing between Trimont and CornoNero (described as the 'Trimont Loan' or the 'Trimont Loan Account').[50] The arrangement was said to involve the payment of expenses by Trimont or Ascenzo for CornoNero, and payments by CornoNero to Trimont, which included the extension of credit to Trimont (see, e.g. J[1153]). In response to CornoNero's claim that it suffered loss in the amount of the Impugned Payments plus interest, Breckenridge alleged that in respect of 99% of the Impugned Payments by value, as at the date each payment was made, CornoNero received a 'corresponding benefit' to reflect the payment, in the form of an adjustment to the Trimont Loan Account to increase the amount owed by Trimont to CornoNero or to reduce the amount owed by CornoNero to Trimont, and consequently, no loss was caused by the making of the Impugned Payments. CornoNero replied to the defence saying, among other things, that CornoNero received no corresponding benefit in a payment away of its money to Trimont, which was not entitled to that money and 'which had a net asset deficiency and was in fact insolvent.'[51] That was the only reference in CornoNero's pleading to the fact of Trimont's insolvency, in the context of the Impugned Payments claims. The significance of the allegation was that there could be no 'benefit' accruing to CornoNero by receiving in effect a promise to repay moneys lent, from an entity that was not in a position to repay. On the question of loss it was also said that the payments were made without provision of security, documentation or any obligation to pay interest, and that the balance of the loan account was adjusted to zero by month end entries that did not reflect actual payment of pre‑indebtedness. Those matters did not depend on Trimont's solvency. The question whether Trimont was in a position to repay the moneys 'lent' to it was one fact among a very considerable number of disputed questions of fact and law that arose in relation to the Impugned Payments claims and the defences thereto, which were not concerned with whether or not Trimont was solvent.

41 The issue of the Trimont Loan Account was a central element of Breckenridge's defence to his liability for breach of director's duties; it was not just relevant to the question of loss. The key parts of the defendants' case in relation to the Trimont Loan Account are summarised at J[728], [729]-[736],[1153] and otherwise dealt with at length in the Reasons for Judgment. The core contentions in CornoNero's case regarding the Trimont Loan Account are summarised at J[738]-[742],[745], [1192]. The analysis at J[1179]-[1197] is consistent with CornoNero's case and the submissions it made. As set out at J[2211]-[2248], the defendants' contentions regarding loss were rejected on numerous grounds. As the Reasons (and the pleadings) demonstrate, Trimont's financial position was not a central or necessary question raised by the overwhelming preponderance of issues for decision in connection with the Trimont Loan Account (and the Impugned Payments claims more generally), a fortiori the question of Trimont's solvency, which must be determined by application of the established tests and principles of law, and addressed at specific points in time.

42 It may be accepted that the fact that Trimont was under real financial pressure was relevant as a contextual fact, as one of the circumstances in which successive payments were made to Trimont within a three month window. Insofar as that fact was contextually relevant, it did not require proof of technical insolvency. In any event, that fact did not account for and was not an essential fact necessary to explain or answer many of the complex issues relevant to the Impugned Payments claims, including the fact that the payments were made (which was not in any substantive sense, disputed) and the issues relating to the Trimont Loan Account. That conclusion is supported by the pleadings and the description of the issues contested at trial, in the Reasons for Judgment.

43 Quite apart from relationship between Trimont's solvency and the issues raised for determination, the plaintiffs pursued the factual question of Trimont's insolvency in a manner that significantly contributed to the length of the trial. That they succeeded in establishing Trimont's insolvency does not detract from that conclusion. In particular:

(a) They took Ascenzo and Breckenridge in cross‑examination to countless invoices, letters of demand and other documents[52] which bore on Trimont's financial position over an extended period of time, substantially extending the time‑estimates given.

(b) They did not present an analysis of the documentary material through an independent expert's report. As observed in the Reasons for Judgment, an accounting analysis and opinion addressed to a properly framed question would likely have curtailed the consumption of considerable Court time and resources in dealing with this issue of fact.[53]

(c) Instead, the plaintiffs chose, bewilderingly, to rely on the reports of Trimont's liquidator who was appointed in May 2017, some years after the relevant events. That report expressed a very qualified opinion as to solvency, for the purposes of a report to creditors in 2017, as the plaintiffs conceded in final submissions.[54]

(d) The plaintiffs ultimately conceded that it was only necessary for the Court to make a finding of insolvency in respect of the financial year relevant to the making of the Trimont Sales Representations, narrowing the question for that purpose to whether Trimont was insolvent as at 30 June 2015, in final submissions. They conceded in final submissions that it was otherwise sufficient to demonstrate that Trimont had struggled financially prior that date, in order to support their other claims.[55] I infer that that conclusion ought to have been apparent to the plaintiffs' advisers at the outset of the trial and when deciding to frame the evidence as they did. That notwithstanding, the question of insolvency was pursued, on a document by document basis, for periods preceding and post‑dating the real period to which it was relevant.

44 The plaintiffs themselves submitted that 'the question of Trimont's insolvency consumed a considerable part of the trial by way of evidence and argument, which ... contributed to the length of the trial.' They sought to attribute that result to the defendants. I do not consider that to be a fair or accurate characterisation of events. The defendants did not call their own evidence. They did not affirmatively contest the question of insolvency, but did not admit it. There may be circumstances in which the proper costs disposition is determined by the fact that a party ought to have admitted a question of fact that is subsequently proved. This case raises other considerations, however. Considered in the abstract, Ascenzo in particular (Trimont's director) might be criticised for not having admitted that Trimont was insolvent as at the date of the making of the Sale Representations. However, the plaintiffs did not assist the making of admissions by the way that they conducted the case before and during the trial. There was no evidence that they compiled and presented the documents to the defendants in a way that facilitated admissions (they did not say that they did), and they did not confine their pleaded case (or the case as conducted at trial) to a strictly relevant timeframe.

45 Significantly, the fact that the defendants put the plaintiffs to proof did not determine how the plaintiffs then went about proving their case. That the plaintiffs took the course they did was a matter of forensic choice. They chose to pursue Trimont's insolvency without limiting the contest to the facts truly in issue, and without due regard to the consequences of their forensic choices in the taxing of the resources of the parties and the Court.

46 CornoNero contends that Ascenzo and Breckenridge should pay CornoNero's costs of and incidental to the Impugned Payments claim.[56] It accepts that it should pay Hartwig's costs of and incidental to the Impugned Payments claim.

47 Ascenzo did not contest CornoNero's proposed orders. CornoNero succeeded in establishing liability against Ascenzo in respect of some but not all of the Impugned Payments. Ascenzo accepted that he had approached the defence to the Impugned Payments at a 'global' level and said that he did not incur specific costs in relation to individual payments.

48 Breckenridge contends that CornoNero should pay his costs (and Ascenzo's costs) of and incidental to the Impugned Payments claim in respect of certain individual impugned payments[57] and that he (and, separately, Ascenzo)[58] should pay CornoNero's costs in respect of other individual Impugned Payments.

49 The only questions for resolution concern the costs as between CornoNero and Breckenridge.

50 CornoNero initially submitted that its claim for costs was straightforward because CornoNero was 'more successful than Ascenzo and Breckenridge with respect to this claim'. In the course of oral submissions CornoNero's counsel accepted that, on a payment by payment basis, the balance was weighted slightly in favour of the defendants (see further below). CornoNero said that in any event, it should have its costs for the whole of the Impugned Payments claim considered globally, because a significant proportion of the costs relating to this part of the proceeding was incurred in dealing with the complex and shifting defences of the defendants, in particular Breckenridge. Those defences were in large part conducted on a 'global' basis rather than on a payment‑by‑payment basis. They included Breckenridge's contentions that he had a reasonable belief that it was necessary to make the impugned payments in order to discharge CornoNero's indebtedness to Trimont and Ascenzo, that the payments to Trimont and Ascenzo were justified by reference to the ad‑hoc financing arrangement between Trimont and CornoNero that became known as the Trimont Loan or Trimont Loan Account, and that despite the payments having been made, CornoNero suffered no loss. Those defences were in whole, rejected. It was necessary in order for CornoNero to succeed in respect of the payments on which it did, to respond to and rebut, those 'global' defences.

51 That general proposition was also true of the costs incurred in relation to the Special Referee, who was appointed to inquire (among other things) into the existence of the alleged Trimont Loan Account and 'month‑end WIP reversals'. Those matters were raised by defences that were rejected by the Court. CornoNero did not seek a specific costs order in relation to the proceedings before the Special Referee for the purposes of the product of his report. It did seek an order that the defendants should jointly pay CornoNero's costs in respect of the adoption hearing, in respect of which CornoNero's position was that the report should be adopted in full, the defendants each objected to 25 paragraphs of the report, and the Court adopted the report in full.

52 In response to the Court's question posed in argument as to whether an appropriate disposition might be to allow the CornoNero a portion of its total costs, CornoNero's counsel accepted that it would be open to make an overall apportionment, and said that the simplest way to approach any apportionment would be to adopt a percentage. It was submitted that if costs were determined in that way, on the basis that it was accepted that some allowance had to be made for individual issues, CornoNero should have somewhere near 70 to 75% of its costs. The starting point should be that the allowance should be not less than 50% given that the CornoNero had succeeded on about 50% of the value of its claimed loss, and that there was significant effort expended in dealing with 'global' defences on which CornoNero succeeded. CornoNero's primary position was that it should have all of its costs of the Impugned Payments claims.

53 Breckenridge submitted that costs should be dealt with 'in the same way as the issues were dealt with in the Judgment', meaning that the Impugned Payments claims were a series of individual claims. Ultimately some succeeded and some failed. Each payment had to be dealt with as an individual claim, and the costs apportionment should be made on the basis of whether the individual claim in respect of a payment was successful, or whether it failed. CornoNero succeeded on establishing liability against Breckenridge for 38 of the impugned payments for $1,238,520.09 and failed on 41 of the payments in the sum of $1,259,257.87. The numbers are very close but as it happens they go Breckenridge's way. CornoNero succeeded on slightly less than half of its claims, by number and by value.

54 Breckenridge accepted that CornoNero put its claim on a 'global' basis that did not in any substantive way, engage with the individualised nature of each payment. Breckenridge in response, had to deal with the claims globally but then went on to deal with each individualised payment.

55 As to the proposition that Breckenridge advanced 'global' defences, it was submitted that it was not surprising given what was alleged against him, that he sought to explain what had happened and developed arguable defences that went to why he made the payments. That does not detract from the fact that the proper way to deal with costs is according to which claims succeeded and which failed.

56 As to the Special Referee, the appointment was made by Court, with the Referee undertaking work that was ultimately of assistance to the Court and the parties. Although much of what Breckenridge advanced by way of defence in relation to the Trimont Loan Account failed, the work of the Special Referee was necessary to understand the context of the payments, having regard to the way that the claim was advanced, by reference only to withdrawals from the CornoNero bank account. It was necessary for the Court to understand how the payments were dealt with in the accounts. That the referee undertook that work was a convenient and helpful mechanism to expose the issues, which were exposed largely by agreement when it came to what the accounts recorded.

57 Those claims, the defences thereto and CornoNero's response to those defences involved a multiplicity of factually complex issues, as the Reasons for Judgment at J[716]-[2248] demonstrate.

58 It is necessary to consider the significance of individual and 'globally' relevant issues in respect of this aspect of the proceeding.

59 CornoNero's claim as pleaded was simply that Ascenzo, Breckenridge and Hartwig (or a combination thereof) caused CornoNero to make payments from its bank account other than in discharge of or on account of debts or liabilities of CornoNero, and without disclosing the fact that the payments had been made, to the CornoNero board. It was said that the payments were not made for company purposes and were made in breach of each director's obligations as a director of CornoNero. Eighty payments were identified. The particulars to the claim identified the date, amount and recipient of each payment and the person for whose benefit the payment was made. They did not otherwise address the individual payments.

60 Breckenridge's defence included in substance, allegations that:

(a) He did not admit that he caused or authorised any of the Impugned Payments and otherwise denied the allegations;

(b) During August and September 2015 entities associated with Trimont and Ascenzo funded CornoNero's operations, and those payments were recorded in an accounting ledger (the 'Trimont Loan Account');

(c) Under the terms of the Business Sale Agreement, Trimont and CornoNero bore responsibility for costs incurred and revenue accrued pre and post 1 August 2015, respectively, and it was necessary to make adjustments in the books of CornoNero to account for revenue and costs received or incurred by each entity. Further adjustments were needed to account for certain invoices issued by suppliers, including on projects that were transferred to CornoNero and projects that were not transferred;

(d) When the BSA settled Trimont was entitled to certain sums held by counterparties to building contracts on three projects (Retention Amounts) and those amounts became a liability of CornoNero to Trimont;

(e) If Breckenridge caused or authorised any of the Impugned Payments, he did so for one of serval reasons, namely that:

(i) Some suppliers working on transfer projects had threatened to stop work unless they were paid moneys owed to them by Trimont, and CornoNero paid them in order to prevent work stopping;

(ii) Certain creditors were threatening to commence enforcement action against Trimont and that action had the potential to affect the business of CornoNero if it affected Ascenzo's building licence which CornoNero used, by agreement with Ascenzo. In order to prevent enforcement action CornoNero paid some of the creditors;

(iii) CornoNero was obliged to pay Ascenzo a fee for using his commercial builders' licence, by way of a 'salary'. Instead of paying the salary, the amount was debited to the Trimont Loan Account (in Trimont's favour) and paid down by making payments directed by Ascenzo or Trimont, for their benefit;

(iv) Some payments were otherwise made at the request of Ascenzo, said to have been made or requested in recognition of the financial support that he or his entities had afforded CornoNero;

(f) The payments made by or to CornoNero were recorded in the Trimont Loan Account;

(g) As set out earlier, CornoNero did not suffer any loss as a result of the Impugned Payments because they resulted in an adjustment in CornoNero's favour in the Trimont Loan Account.

(a) Relied on the terms of the BSA governing the treatment of expense and revenue of CornoNero and Trimont (contesting that the payments were made pursuant to the terms of or consistently with the BSA) and denied that it was necessary to make adjustments in the books of CornoNero as alleged;

(b) Alleged that at the instigation of the defendant directors, an amount of $1,000,000 was paid to CornoNero by way of a loan from an entity associated with Hartwig, and those moneys were largely paid out immediately to creditors of Trimont;

(c) Contested Breckenridge's claim in respect of the 'retention amounts';

(d) Disputed on several basis, the contention that CornoNero received a 'corresponding benefit' for the payment away of its money, by the recording of entries in the Trimont Loan Account (as set out earlier).

62 The matters alleged in pleadings were contested at trial, as summarised at J[719]-[746].

63 Relevantly, Breckenridge gave very lengthy evidence about his account of the circumstances relevant to the Impugned Payments. He also addressed in his evidence in chief, the circumstances of each payment, as and if he could recall the circumstances.[59] Ascenzo gave evidence about the Impugned Payments. As he put it, he defended the claims at a 'global' level. Hartwig also gave evidence on the subject. Geoff and Rachel Brady gave evidence for CornoNero about the funding of CornoNero. Rachel Brady gave evidence about her discovery of payments out of the bank account and her investigation of them, and the disclosures made to her.

64 The Special Referee was appointed (by agreement between the parties, as ordered) to consider (in summary):

(a) Whether there was evidence that the Impugned Payments had in fact been made and if so, whether or not the payees were creditors of CornoNero. That issue arose on CornoNero's case;

(b) Whether the payments as alleged were recorded in CornoNero's accounts and if so, whether they were recorded as meeting a debt or liability or CornoNero. That issue arose on CornoNero's case;

(c) Whether there was evidence of the alleged 'Trimont Loan Account'; whether documentary evidence verified the entries in the Account; whether the Impugned Transactions or any of them were reflected in the Trimont Loan Account; and whether having regard to that analysis and on the assumptions given, the Impugned Transactions diminished the assets of CornoNero. Those questions arose on Breckenridge's defence.

65 In order to establish its claims in respect of the Impugned Payments, CornoNero was required to show, in respect of each payment:

(a) First, that the payment was made from CornoNero's bank account and that it was made other than in discharge of a debt or liability of CornoNero;

(b) Second, that it occurred by reason of the conduct of the defendants (relevantly for present purposes, Breckenridge), in causing, authorising or (as CornoNero put it, acquiescing in) (causing) the making of the payment;

(c) Third, Breckenridge's conduct involved a breach of directors' duty. CornoNero alleged that in causing the Impugned Payments, Breckenridge acted in breach of his duty as a director of CornoNero to act with due care and diligence, to act in good faith and in its interests for a proper purpose, and not to use his position to cause detriment to CornoNero;

(d) Fourth, as a result of Breckenridge causing the payments in breach of his duties, CornoNero suffered loss, which was alleged to have been the amount of the payment plus interest.

66 As to the first element, the question whether the payments were made from CornoNero's account, was readily proved by bank records and not contested. The question whether the payments were made other than to discharge CornoNero's liabilities was not admitted, and was established by the work undertaken by the Special Referee. He concluded that 79 payments totalling $2,497,778 were paid out of CornoNero's bank account and recorded in CornoNero's accounts. Only 6 payments totalling $8,572 were paid to trade creditors of CornoNero. The remaining Impugned Payments were found by the Referee not to have been made in order to meet a debt or liability of CornoNero, other than by reference to the Referee's analysis of the balance of the Trimont Loan Account ledger. Sixty‑eight of the Impugned Payments were recorded in the Trimont Loan Account, which also contained entries for many other transactions not associated with the Impugned Payments. The Special Referee considered the running balance of the Trimont Loan Account ledger and how it fluctuated between debit and credit in favour of one party or the other. The analysis showed that 14 entries for Impugned Payments had the effect of switching the balance of the account from a payable by CornoNero to a receivable by CornoNero. As such, the ledger could be read as recording those entries as meeting a liability of CornoNero. The Special Referee recorded that there was no evidence establishing the terms of any loan agreement. He was not appointed to look behind the materials before him and his analysis resulted in a conclusion concerning what the accounting and related records showed. The defendants relied upon the analysis of the Trimont Loan Account balance to submit that CornoNero suffered no loss in respect of the Impugned Payments. I rejected that submission.[60]

67 As to the second element (whether Breckenridge caused the Impugned Payments), CornoNero's case was essentially put in a 'global' fashion. Its submissions were for the most part, rolled‑up. It addressed the involvement and knowledge of the directors concerning each payment by submitting a table comprising a few pages containing document references and broad conclusions.[61] CornoNero's case was that the circumstances that were relevant to all of the Impugned Payments were a sufficient basis on which to conclude that the directors had caused the payments. CornoNero relied upon Breckenridge's position as executive director and CEO and his involvement in the systems for managing money and making payments within CornoNero.[62] It addressed some payments with specificity, including in cross‑examination.

68 In addressing his role in the making of the Impugned Payments individually, Breckenridge gave evidence from his recollection where he recalled particular circumstances. Some (but not all) of his evidence was in the form of his opinion about what he considered must have happened having regard to the documents that he had read for the purposes of the proceeding.

69 I considered the evidence in respect of each payment and made findings about the involvement of each director and the purpose of each payment.[63] Purpose in that sense was concerned with objectively ascertainable facts, for example, whether a payment was made, as Breckenridge contended, to meet a claimed liability of Trimont in order to prevent work stopping on a CornoNero project. The relevant evidence regarding each payment was documentary, and also as given by Breckenridge. That evidence was weighed in light of the evidence about the payment of moneys from CornoNero's bank account to meet Trimont or Ascenzo debts and the roles of each director in the business of CornoNero, which concerned the conduct of the CornoNero business generally.[64]

70 Conclusions in respect of each payment were as summarised in Annexure B to the Reasons. I found that Breckenridge caused or authorised 65 payments, and that it was not proved that he caused or authorised 14 payments. In doing so, I had regard to the evidence that Breckenridge established a system for the making of payments requested by Trimont or Ascenzo, and to the evidence concerning the payments individually.[65]

71 As to the third element (whether the Impugned Payments involved breaches of directors duties), CornoNero's case against Breckenridge was put on a 'global' basis in the sense that with some exceptions CornoNero did not address individual payments and said that it was unnecessary to do so. CornoNero's case is summarised at J[2024] and [2067]-[2079]. Much of it was responsive to (i.e. a rebuttal of) Breckenridge's defence case.

72 The justification for some payments (on Breckenridge's case) rested on the propositions he sought to draw from the evidence generally, and the justifications for others rested on the particular purpose for which the payment was said to have been made (to prevent work stopping, and so on).[66]

73 Breckenridge defended his liability in relation to the Impugned Payments generally, by contending that:

(a) He had a reasonable belief that it was necessary to make the Impugned Payments in order to discharge CornoNero's indebtedness to Trimont that had occurred during the early phase of CornoNero's operation;

(b) The arrangement between CornoNero and Trimont that the process of recording payments between them in a ledger that commenced for the purposes of the anticipated settlement of the BSA, amounted to a consensual arrangement between CornoNero and Trimont, for CornoNero to lend money to Trimont.

(c) He believed that Trimont could service its debt owed to CornoNero.

(d) Trimont was entitled to retention moneys in respect of three transfer projects, and that he had a proper basis for thinking that amounts in respect of retention sums were owed to Trimont;

(e) His characterisation of the arrangements between Trimont and CornoNero was confirmed by, and consistent with so‑called 'Letters of Authority' (as discussed at (J[957]‑[980]);

(f) The CornoNero board was informed that CornoNero was paying debts for Trimont, Ascenzo or related entities, and that the board approved that occurring and approved CornoNero extending credit to Trimont, Ascenzo or related entities.

74 I rejected those contentions.[67] Although there were some specific references in some board minutes to payment of Trimont debts, they did not reflect what in fact occurred, in circumstances in which Breckenridge knew the extent of payments by CornoNero to Trimont and did not tell the board, and did not seek the boards' authority to extend credit to CornoNero.[68]

75 In his evidence in chief and his closing submissions, Breckenridge classified the Impugned Payments into several categories organised by reference to the purpose for which he said each of the payments had been made, as follows:

(a) Contractors threatening to cease work;

(b) Contractors or creditors threatening enforcement action;

(c) Payment made on behalf of Trimont at the direction of Ascenzo;

(d) Allocation between Trimont and CornoNero required;

(e) No particulars provided in support of payment; and

(f) Post 1 August 2015 expenses.

76 As to the circumstances relevant to the payments individually:[69]

(a) Some payments were made at the request of Ascenzo, and Breckenridge did not seek to justify them on any other basis, or failed in seeking to advance a different justification. CornoNero succeeded in establishing liability for breach of duty against Breckenridge in respect of those payments.[70]

(b) I rejected Breckenridge's attempted justification of payments said to have been made in order to avoid enforcement action against Ascenzo. CornoNero succeeded in establishing liability for breach of duty against Breckenridge in respect of those payments.[71]

(c) I accepted that some payments were made in order to avoid contractors ceasing work on CornoNero building sites and did not find that Breckenridge breached his duties to CornoNero in respect of those payments. CornoNero failed on those payments.[72]

(d) I accepted that some payments were made in order to manage supplier invoicing and CornoNero failed on those payments (mostly for lack of evidence sufficient to establish the circumstances of those payments).[73]

(e) Other payments did not fit in the above‑mentioned categories. In some cases I found that liability was not established because of a lack of evidence.[74]

(f) The Special Referee found that four payments were made to discharge liabilities of CornoNero, and in respect of two further payments, whether they related to CornoNero liabilities could not be determined. CornoNero failed on those payments.

77 To summarise, by and large, I accepted CornoNero's 'global' case and rejected Breckenridge's 'global' defences. The specific justifications advanced by Breckenridge in respect of individual payments demonstrated, however, that despite there being no systemic justification for the payment of CornoNero's moneys to Trimont (including on the basis of the indebtedness of CornoNero to Trimont or the Trimont Loan Account arrangement), in some instances the particular circumstances of the payment showed that it was effected without any breach of duty. That that could be so meant that it was necessary to consider the circumstances of each payment. Where I found against CornoNero, I did so because I accepted that the particular circumstances of the payment positively justified it, and there was an absence of evidence concerning the circumstances relevant to the making of the payment.

78 Breckenridge contended that CornoNero did not suffer any loss as a result of the making of the Impugned Payments. I accepted CornoNero's case on causation and loss, and rejected Breckenridge's case.[75] The case was conducted by each party substantially on a 'global' basis. In respect of 14 of the Impugned Payments, the Special Referee observed that they could be characterised as having been recorded in the accounts as meeting a debt or liability of CornoNero, and I rejected Breckenridge's contention that the analysis of the running balance of the Trimont Loan Account ledger demonstrated that CornoNero had not suffered loss.[76]

79 The Impugned Payments claims were not properly characterised as a single cause of action. Each payment was a separate transaction. Each was said to have involved a breach of Breckenridge's director's duties. The individual circumstances concerning each payment were relevant to the determination of whether or not each payment was caused by Breckenridge and whether each involved a breach of duty. However, as the preceding discussion shows, much of the proceeding as it concerned the Impugned Payments was conducted by the parties on a 'global' basis, meaning that the evidence and the contentions advanced were relevant and said to be relevant to the Impugned Payments generally. The prosecution and determination of the claims and the defences of them, rested on much evidence that was common to the claims. The issues that were raised 'globally', were substantive and vigorously contested. Those issues received considerably greater attention at trial, including in the evidence of Breckenridge, than did the issues concerned with individual payments.

80 On a payment by payment basis, each party has had a measure of success.

81 CornoNero's contention that it should have all of its costs concerning the entirety of the Impugned Payments claims does not account for its failure on approximately half of the payments. In those cases I either accepted Breckenridge's specific defence of the circumstances (where Breckenridge contended that the payment was made in order to facilitate the continuation of work by third parties for the benefit of CornoNero) or found that there was no specific involvement in the payment by Breckenridge. I did not accept all of the Breckenridge's payment‑specific defences.

82 Breckenridge's contention that the parties' costs should be determined on a payment by payment does not reflect the manner in which the proceedings and the trial were conducted.

83 The parties did not put before me on their costs applications, their assessments of the proportion of time that was devoted to the 'global' contentions as opposed to the individual circumstances of each payment. However, it is fair to say that much of the trial, insofar as it concerned the Impugned Payments, was consumed with 'global' claims, defences and rebuttals, said to be relevant to the Impugned Payments as a whole. Both parties accepted that I could make a global apportionment of costs between them. They did not say that I could not do that without a further, more granular analysis.

84 I have considered whether the appropriate disposition would be to allow each party to have its costs of the Impugned Payments claims for the particular payments on which it succeeded. If I were to adopt that course, a just resolution would require that it be subject to specific inclusions and exclusions which would reflect the fact the much of the contest concerning the Impugned Payments was concerned with contentions relevant to the Impugned Payments generally, and on which I accepted CornoNero and rejected Breckenridge. Those matters included:

(a) Breckenridge's contention that he had a reasonable belief that it was necessary to make the Impugned Payments in order to discharge CornoNero's indebtedness to Trimont that had occurred during the early phase of CornoNero's operation;

(b) Breckenridge's contention that the arrangement between CornoNero and Trimont that the process of recording payments between them in a ledger that commenced for the purposes of the anticipated settlement of the BSA, amounted to a consensual arrangement between CornoNero and Trimont, for CornoNero to lend money to Trimont;

(c) Breckenridge's contention that he believed that Trimont could service its debt owed to CornoNero;

(d) Breckenridge's contention that Trimont was entitled to retention moneys in respect of three transfer projects, and that he had a proper basis for thinking that amounts in respect of retention sums were owed to Trimont;

(e) Breckenridge's contention that his characterisation of the arrangements between Trimont and CornoNero was confirmed by, and consistent with so‑called 'Letters of Authority';

(f) Breckenridge's contention that the CornoNero board was informed that CornoNero was paying debts for Trimont, Ascenzo or related entities, that the board approved that occurring and approved CornoNero extending credit to Trimont, Ascenzo or related entities;

(g) Breckenridge's contention that CornoNero did not suffer any loss as a result of the making of the Impugned payments, or did not suffer loss in the amount claimed by CornoNero.

85 I consider that that approach, despite its conceptual appeal, would be very likely to lead to substantial disputes on taxation and the need for the expenditure of further resources, in circumstances where these parties have (they accept) an acrimonious relationship and have not demonstrated the wherewithal to agree upon much at all.

86 I am mindful that if costs orders are made in favour of each party, they will at least notionally be set off, with costs eventually flowing one way (subject to the costs outcome of the other parts of the proceeding).

87 I have considered whether, in view of CornoNero's partial success, it should be required to pay some of Breckenridge's costs of the proceeding. CornoNero did not descend to a payment by payment analysis of the Impugned Payments. As I observed at J[1199], CornoNero's approach added considerably to the time required to deal with the issues, meaning in that context, the work was left to the Court to deal with in the reasons for Judgment. CornoNero's submissions were in this respect, not as helpful to the Court as they might have been. However, I do not consider in respect of the Impugned Payment claims, that CornoNero raised issues unreasonably or improperly or that its conduct of the litigation increased its opponent's costs or caused an unnecessarily protracted trial. Other parts of the conduct of its case could be described in that way, but not its conduct in relation to the Impugned Payments.

88 Making an evaluative assessment, I consider that the disposition that reflects the conduct of the trial and the outcome of the case, is to allow CornoNero 70 percent of its costs of the Impugned Payment claims.

89 It is appropriate the Breckenridge and Ascenzo be jointly liable for those costs, notwithstanding that they are liable in damages on a payment by payment basis. Requiring the parties to ascertain which costs, of the costs attributable to the Impugned Payments Claims, were attributable to which Impugned Payments would be an impossible task.

90 There was a limited dispute in respect of the adoption of the Special Referee's report. The work of the Special Referee addressed matters arising on CornoNero's claims and the defendants' defences. It was appropriate that I have the benefit of the parties' positions in respect of the adoption of the report. However, the short adoption hearing was concerned only with the issue in dispute, on which I accepted CornoNero's submissions and rejected the defendants' contentions. In the circumstances, Breckenridge and Ascenzo should pay CornoNero's costs of the adoption hearing. The costs in respect of the Special Referee should otherwise fall within the general order for costs.

91 The parties (other than Hartwig, BCP and BCD) proposed that costs be dealt with on an issue by issue basis, addressing the three groups of claims brought by GJB on the one hand and CornoNero on the other. It was sensible then, that for the most part (as observed below) the orders for costs be directed to GJB and CornoNero individually. However, Hartwig, BCP and BCD have succeeded in defending all of the claims brought against them. It would be unfair to require BCP to tax its costs on an issue by issue basis when it is not otherwise required to do so because of the outcome of the proceedings. Having regard also to the fact that GJB and CornoNero conducted the case together, jointly instructing the same representatives, it is appropriate to make GJB and CornoNero jointly and severally liable for Hartwig's costs.

92 The Rules of Court expressly provide for the set‑off of costs orders.[77] The general rule is that all costs in the same proceeding and between the same parties can be set off against each other.[78] The modern view is that there is no bar to set‑off as between different proceedings or parties.[79] The parties were agreed that their respective liabilities for costs should be mutually set‑off.

93 Breckenridge, however, seeks a stay of judgment against him in favour of CornoNero,[80] until such time as the payment of his costs by CornoNero and GJB (as contemplated by the balance of the orders in contention[81]) have been made, so that costs and damages liabilities can be set‑off. Alternatively, he seeks an order that he may set off against his obligation to pay CornoNero, CornoNero's and GJB's obligations to pay his costs, and that CornoNero may only enforce the judgment in its favour to the extent the net amount owing to it (if any) following a quantification of the costs of obligations of CornoNero and GJB. Each form of order seeks to achieve the same outcome. Each would require a stay of judgment.

94 It was not contested that the Court may exercise power to set off liability in costs against liability in debt or damages.[82] In Sivritas v Sivritas (No 2),[83] the Court had determined the parties' respective interests in a parcel of land which was subsequently sold. The plaintiff (who was held to be entitled to the largest share of the property) sought an order that his costs of the proceeding be set off against any funds flowing to the defendants from the sale of the land. Kyrou J made that order. His Honour surveyed the authorities, some of which conclude that the source of the power to order that a judgment debt for damages be set off against an unascertained costs award to the opposing party, is the Court's equitable jurisdiction.[84] For the purposes of equitable set‑off an 'impeachment test' is applied, meaning that the party seeking the benefit of an order must 'show some equitable ground against his adversary's demand.'[85] In Elphick v Elliott, the test was said to be satisfied on the basis that it was possible for equity to require that the cost of ascertaining the amount payable by way of damages be met from the damages themselves by way of set‑off, but the order was denied because of the applicant's delay in having its costs assessed.[86] In James v Commonwealth Bank, Gummow J observed that the requirement of 'impeachment' is not narrowly construed.[87] Other authorities have held that the source of the Court's power to order a set‑off in this context is properly understood as an aspect of the Court's inherent power in relation to costs and the control over its proceedings, which is general and discretionary.[88] Kyrou J said in Sivritis, that that was the preferable view.[89]

95 Breckenridge submitted that the power to set off damages and costs liabilities should be understood as falling within the Court's inherent power in respect of costs. Breckenridge accepted that were the power limited strictly to equitable set‑off, there would be difficulty (as he put it) in setting off his liability in damages to CornoNero, against GJB's liability to pay his costs. CornoNero submitted that GJB's liability to pay Breckenridge's costs[90] could not be brought into the equation for the purposes of set‑off, and that the amount relevantly expected to flow to Breckenridge was comprised of those costs to be paid by GJB only. It did not go so far as to say that that result must follow because the jurisdiction to order set‑off was strictly equitable. The parties did not address the source of the power in any detail.

96 Breckenridge said that this case was on all fours with Danidale v Abigroup.[91] In that case the plaintiff had recovered a modest amount in damages ($94,529 plus interest of $33,332). The defendant contended that the costs payable to it, even after a set‑off of costs payable to the plaintiff by the taxing master, were likely to exceed the amount of the plaintiff's judgment and that in those circumstances an order setting off costs and damages should be made. Habersberger J held that whilst a party is normally entitled to receive the fruits of victory by being paid the judgment sum without any stay, in the 'special circumstances' of the case the plaintiff was in reality, an unsuccessful party. It would not then be just to expose the defendant to the risk that it would not recover the 'undoubtedly large' sum of costs against it.[92] It does not appear from the judgment that there was any dispute about whether the likely quantum of the defendant's costs would exceed the judgment sum. His Honour considered that a just result could be achieved by granting a stay of execution of judgment under rule 66.16 pending taxation and the ascertainment of the net amount owed by each party for costs, 'rather than becoming embroiled in the complicated issue of equitable set‑offs.'[93] The grant of a stay was conditional on the defendant undertaking to promptly take the necessary steps for a taxation of costs in its favour.

97 More generally, in approaching set‑off, the factors governing the proper exercise of the discretion will be case‑sensitive, but it has been held that the Court is entitled to have regard to factors including the efficient administration of justice, the conduct of the parties[94] and delay in ascertaining the amount of costs payable.[95]

98 The Court has power to stay execution of a judgment under rule 66.16, and inherently.[96] The prima facie position is that a party entitled to judgment is entitled to immediately enforce that judgment.[97] The applicant for a stay bears the onus of demonstrating the stay sought is justified.[98] The considerations relevant to the exercise of the power arise on a case‑by‑case basis.[99]

99 Breckenridge made the following submissions.

100 First, in its inherent jurisdiction the Court can fashion orders that will do justice in the case including in respect of costs in the final orders disposing of the case.

101 Second, as to the appropriateness of setting off liability of both CornoNero and GJB against Breckenridge's liability in damages to CornoNero, it is relevant that CornoNero and GJB worked hand in glove in this case including by instructing the same solicitors and were, by the time of this litigation, controlled by the same persons.

102 Third, although CornoNero had some success, it must be compared to the scale of what it has taken to defend the case. Breckenridge was subject to 'very wide ranging, poorly and inefficiently conducted and hugely expensive litigation', most of which he has won. The way the litigation was conducted and the issues that were raised has led to a situation in which his resources and the resources of the other parties and the Court had been burdened in a most extraordinary way. The resources that might have been used to pay Breckenridge's costs have been consumed in running a case causing a very substantial costs burden to come the other way. An order for a stay or set‑off and stay would do justice in the very particular and unusual circumstances of this case. The plaintiffs repeatedly sought to amend their case, as reflected in the interlocutory orders, on which the plaintiffs accept for the most part, that they should pay Breckenridge's costs.

103 Fourth, by his written submissions Breckenridge said that having regard to the fact that his total costs for the proceeding were $3,501,916, and to the issues on which he succeeded for which costs would be awarded in his favour, the ultimate result would almost certainly be an amount payable to him by the plaintiffs. In his oral submissions that position was attenuated somewhat. It was said that while the taxed costs amount (or any agreed sum for costs payable on a standard basis) is presently unknown, the Court should not have any difficulty in inferring that 'the costs will be large'. Whether or not the sum of costs payable to Breckenridge will exceed the judgment sum, it would be unjust if Breckenridge is subject to judgment immediately and forced to pay that judgment which 'will cause significant difficulties for him', while he may never have the opportunity to recover the costs that are due to him.[100] The evidence about CornoNero's financial position that was considered in the judgment indicates that obtaining any money from CornoNero is going to be extremely difficult.

104 Breckenridge relied on the affidavit of his solicitor Benjamin Allen of Dentons Australia, whose evidence was relevantly that:

(a) Dentons was retained by Breckenridge to act for him in this litigation in April 2019. Dentons agreed to issue invoices for legal costs on a monthly basis and Breckenridge agreed to pay those invoices within 14 days;

(b) Between March 2019 and March 2024 Dentons has issued invoices in the total sum of $3,501,916 inclusive of solicitors' fees, disbursements and GST. Allen gave similar evidence in relation to the Coonwarra proceeding (which was heard together with this proceeding), specifying a different amount for costs. I infer (and it was not contested) that the figure for costs related to legal work done for the purposes of this proceeding and not the Coonwarra proceeding.

105 In written submissions in reply, CornoNero pointed out that Allen did not depose to Breckenridge having paid any of the costs incurred, and that in email correspondence Dentons had advised that their invoices 'have either been paid or our client has a liability to pay them'. Breckenridge did not seek to contradict what was said in the plaintiff's reply submissions.

106 Breckenridge undertook to 'do all things necessary to engage Pattison Hardman Pty Ltd to commence preparation of a bill of costs within four weeks of the date of the final orders'. The undertaking was initially formulated in terms of promptly seeking to tax his costs, subject to his financial capacity to do that. It was said in the course of submissions that meeting the judgment sum against him would cause difficulty.

107 CornoNero submitted that Breckenridge had not cleared the hurdle required to establish that the plaintiff should be kept from the fruits of its judgment for an unknown period of time in respect of an unknown amount of costs that may not eventually flow in Breckenridge's favour. More particularly it submitted that:

(a) First, the starting point is that CornoNero is entitled to judgment without delay. CornoNero is owed the sum of $1,950,414.65 (inclusive of interest to date), not an insignificant sum. While the sum is unpaid, interest continues to accrue at the rate of 10%. The judgment sum will accordingly increase relative to the costs liabilities, with the effluxion of time.

(b) Second, there is no satisfactory evidence that the costs likely to be awarded will exceed the judgment amount. The evidence of Allen goes to actual costs charged, as a lump sum. The sum is not quantified by reference to scale or even an estimate of what would be recovered on a standard basis. Further, the costs are attributable to the legal work for the proceeding as a whole, not just to the claims made by CornoNero. Next, Breckenridge's quantification of costs doesn't bring into account the fact that the parties have agreed that GJB is to pay Breckenridge's costs of and incidental to the share acquisition claim. Those costs (whatever they might be) cannot fairly be put into the equation as costs ultimately likely to be recoverable against CornoNero. The orders sought by each of GJB and CornoNero, and by Breckenridge distribute cost liability separately to GJB and CornoNero. GJB is to pay costs in respect of the claims it prosecuted and lost; CornoNero is to do likewise. The parties have not agreed or contended for joint and several liability in respect of costs, and setting off GJB's liability to pay Breckenridge against CornoNero's judgment would be unfair. Given all of those considerations, ascertaining the likely flow of funds to CornoNero and Breckenridge is, at this juncture, mere guesswork. It cannot be concluded that Breckenridge will likely be entitled to a sum for costs exceeding the judgment sum.

(c) Third, the prospect of delay in having costs assessed is a strong factor against a stay and set‑off. Breckenridge has given an undertaking but beyond that there is no evidence that he can fund the continuation of the taxation process, and as to how long it will take.

(d) Fourth, no material has been put forward on the question of the dissipation of assets on the question of risk that any costs orders would not be made good. It is Breckenridge's application so it is a matter for him to put that material before the Court. There is insufficient evidence that Breckenridge will suffer prejudice.

108 I consider that the proper exercise of discretion is to refuse the orders for a stay or set‑off and stay. I accept that Breckenridge has incurred substantial costs in defending the proceedings against him, on which CornoNero has only been partially successful, and on which GJB has wholly failed. There are considerations that go both ways. However, taking into account the competing considerations and the onus on Breckenridge to justify a stay, I am not satisfied on balance, that justice lies in keeping CornoNero out of the judgment it has obtained. In particular:

(a) CornoNero has obtained a judgment of $1,950,414.65. It is not a nominal or insubstantial sum.

(b) There is sufficient doubt that the costs ultimately recoverable by Breckenridge will exceed the judgment sum. That is not to say that an exercise of power to grant a stay and set‑off order requires certainty in relation to that issue; it is rather to say that it is a relevant consideration which in this case points against a stay. It must be accepted that a number of deductions must be accounted for when contemplating the costs likely ultimately to be awarded to Breckenridge:

(i) Breckenridge will not recover all of the actual costs that he has incurred. The parties have agreed that costs should be recoverable on a standard basis. Breckenridge's evidence on this issue was limited to a statement of the actual costs invoiced to him. No estimate was given of the amount likely recoverable on a standard basis. Such an estimate might have been given on the basis of an opinion from Breckenridge's solicitor, based on experience. By way of example, solicitors commonly employ the rule of thumb (and it is only rule of thumb) that parties can expect to recover about two‑thirds of their actual costs. An experienced solicitor could be expected to give useful evidence about anticipated standard‑basis costs entitlements.

(ii) Against whatever amount the recoverable costs might be, Breckenridge's costs payable to CornoNero for those parts of the Impugned Payments claims on which he has failed, would be notionally set‑off. As discussed earlier, those costs concerned substantial parts of the trial and the dispute between Breckenridge and CornoNero. The Impugned Payments claims were one of two distinct groups of claims brought by CornoNero against Breckenridge and one of three groups of claims within the proceeding (the other being claims by GJB alone). The Impugned Payments claims consumed considerable trial time. Breckenridge's 'global' defences, in respect of which CornoNero largely succeeded, were central to that dispute.

(iii) Having regard to both of those considerations, it is not fanciful to say that Breckenridge's entitlement to costs might not exceed the judgment sum. Put another way, although it is a possible outcome, there is a sufficient doubt that costs will exceed the judgment sum. I say that applying experience and by reference to the conduct and course of the litigation.

(iv) There is a further consideration. There was force in each party's argument as to whether Breckenridge should be entitled to set off his liability in damages to CornoNero, against his entitlement to costs payable by both CornoNero and GJB. I accept that if the power is found in the Court's inherent jurisdiction in respect of costs (for which view there is well‑grounded support), it would permit such an order. Although I need not decide the point, I proceed on the view that there is no want of power to make that order, noting that CornoNero did not contend that it would be impermissible to make the order as a matter of principle. I accept, as Breckenridge submitted, that CornoNero and GJB worked hand in glove in conducting this proceeding, through jointly instructed solicitors. However, the parties themselves have agreed that costs are to be paid and received separately by CornoNero and GJB. The way that the parties have agreed to structure the orders is consistent with the fact that GJB's claim (for claimed reliance on the Trimont Earnings Representations) was discrete and separate from CornoNero's claims in respect of the Impugned Payments on the one hand, and the Mernda Development on the other. That is not to say that there was no factual overlap whatsoever, but those sets of claims were discrete. GJB sued Breckenridge for conduct said to have caused it to acquire shares in CornoNero, which occurred before CornoNero commenced operation. CornoNero sued Breckenridge for breach of his duties owed to it as its director. GJB will pay Breckenridge's costs of the Trimont Earnings Representations claim. In my view the appropriate disposition, which reflects the way the partis have approached the costs liability question, is not to allow Breckenridge to set‑off GJB's liability to him in costs, against his liability to CornoNero for damages. That being so, that portion of Breckenridge's costs attributable to defending the Trimont Earnings Representation claim should not be brought into account when considering the relationship between the judgment sum and the quantum of costs likely to flow to Breckenridge.

(c) As to delay, Breckenridge has given an undertaking to engage consultants to commence the preparation of a bill of costs within four weeks. However, there is still a sufficient basis for concern about the delay entailed in the process of taxation. There was no evidence about when the subsequent steps would occur and how long they would take. To continue the process of taxation until it has concluded, will require funds. The relationship between the parties to this litigation could be described as acrimonious. They do not readily agree upon anything. In circumstances in which it was not shown that Breckenridge has paid all of his own solicitors' costs, and where his own counsel said that meeting the judgment would cause difficulty, I cannot be satisfied that the process of taxation will be not only commended, but concluded with alacrity, despite the undertaking.

(d) As to the conduct of case, I agree with Breckenridge's submission that it was unwieldy and inefficient. CornoNero and GJB were substantial contributors to the conduct of the trial, which reflected their conduct of parts of the proceeding and in the framing of their claims and their evidence. More particularly, they conducted the factual question of the insolvency of Trimont in an extremely inefficient manner, as discussed earlier in these Reasons. They also sought to amend their pleadings and their evidence concerning GJB's loss, mid‑trial. The costs of their interlocutory applications were agreed. For reasons best known to the defendants (including Breckenridge), costs in respect of those applications were only sought on a standard basis. The plaintiffs' conduct was in my view a greater contributor to the length of the proceedings than that of the defendants. However, the length and complexity of the proceeding was not wholly attributable to the plaintiffs' changing course and forensic choices. The defences, in particular to the Impugned Payments claims, were multi‑layered and factually complex, provoking lengthy cross‑examination, much of which was directed at and succeeded in, extracting concessions from Breckenridge.

(e) At trial, GJB contended that its shares in CornoNero were 'worthless' from the date of their acquisition. I found that GJB did not prove that contention (J[517]-‍[534]). I also found that CornoNero ceased actively trading in 2017 after a number of its projects were transferred to Brady‑related entities (J[427]-[451]). In light of the findings at trial, I accept that there is a risk that Breckenridge will not recover his costs from CornoNero. That risk cannot be quantified further, in the absence of evidence about CornoNero's current position, which Breckenridge might have adduced on his costs application, but did not.

GJB BUILDING PTY LTD (ACN 607 342 343) as trustee for the GJB BUILDING TRUST

[1] Unless defined in these Reasons for clarity, capitalised terms and abbreviations bear the meaning assigned to them in the Judgment. The claims, defences and their context are described in the Judgment and are only mentioned here to the extent necessary. These Reasons should be read together with the Judgment, on relevant issues.

[2] In respect of the 'Impugned Payments' claim against him.

[3] Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164, 172-173, [24].

[4] Sivritas v Sivritas [2008] VSC 580; (2008) 23 VR 349, 390 [22].

[5] Civil Procedure Act 2010 (Vic), s 65C(2)(a),(b).

[6] [2009] VSCA 233, [10].

[7] Ritter v Godfrey [1920] 2 KB 47; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 97-8 (McHugh J); 124 (Kirby J).

[8] Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 63.04 at first instance and r 64.24 on appeal.

[9] Spotless Group Limited v Premier Building and Consulting Pty Ltd and Northern Suburban Properties Pty Ltd [2008] VSCA 115 (Spotless), [14].

[10] McFadzean v Construction Mining and Energy Union [2007] VSCA 289; (2007) 20 VR 250 (McFadzean), [157]-[158].

[11] Spotless [15]; Hughes v Western Australian Cricket Association Inc (1986) 8 ATPR 40-748 (Hughes), 48; Pricom Pty Ltd v Sgarioto (Unreported, Supreme Court of Victoria, Eames J, 24 April 1995), McFadzean [2007] VSCA 289, [152].

[12] Major Engineering Pty Ltd v Helios Electroheat Pty Ltd (No 2) [2006] VSCA 114, [5].

[13] Currabubula Holdings Pty Ltd and Paola Holdings Pty Ltd v State Bank of New South Wales [2000] NSWSC 232, [90]. For a comprehensive analysis of the development of the 'rule of thumb', see [91]-[104]. See also Ellingsen v Det Skandinaviske Compani [1919] 2 KB 567, 569.

[14] PCRZ Investments Pty Ltd v National Golf Holdings Ltd [2002] VSCA 24, [34].

[15] Spencer v Dowling [1996] VSC 51; [1997] 2 VR 127; Bass Coast Shire Council v King [1997] 2 VR 5, 29.

[16] Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd [1986] FCA 85; (1986) 10 FCR 177. See also Re Talk Finance and Insurance Services Ltd [1994] 1 Qd R 558 and Niml Ltd v Man Financial Australia Ltd (No. 2) [2004] VSC 510.

[17] GT Corporation Pty Ltd v Amare Safety Pty Ltd (No 3) [2008] VSC 296, [59].

[18] Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 (Bostik), [38].

[19] Fuller v Municipal Tramways Trust [1921] SAStRp 11; [1921] SASR 109, 111.

[20] Wheeler v Riverside Coal Transport Trust [1964] Qd R 113, 117.

[21] Cretazzo v Lombardi [1975] SASC 2512; (1975) 13 SASR 4, 12; Hughes v Western Australian Cricket Association Inc & Ors [1986] FCA 382, [9].

[22] Siemens WLL v BIC Contracting LLC [2024] FCA 201, [8]. PKT Technologies Pty Ltd (formerly known as Fairlight.au Pty Ltd) v Peter Vogel Instruments Pty Ltd (No 2) [2020] FCAFC 46, [14]-[15].

[23] Cretazzo v Lombardi [1975] SASC 2512; (1975) 13 SASR 4, 16.

[24] Chevron Australia Holdings Pty Ltd v Commissioner of Taxation (No 5) [2015] FCA 1310, [15].

[26] James v Royal Bank of Scotland (No 2) [2015] NSWSC 970, [69].

[27] Wenpac Pty Ltd v Allied Western Finance Limited (1994) 123 FLR 1, 69-70.

[28] BHP Billiton Iron Ore Pty Ltd v National Competition Council (No 2) [2007] FCA 557, [23].

[29] Mickleberg v Western Australia [2007] WASC 140, [43].

[30] Abigroup Contractors Pty Ptd v Peninsula Balmain Pty Ltd (No 2) [2001] NSWSC 1016, [39]-[40].

[32] Byrns v Davie [1991] VicRp 93; [1991] 2 VR 568, 571; McFadzean, [157]-[158].

[33] [2009] VSCA 133, [7] referring to Major Engineering Pty Ltd v Helios Electroheat Pty Ltd (No 2) [2006] VSCA 114, [5].

[34] Lewis v Chief Executive Department of Justice and Community Safety (No 2) [2014] ACTSC 196, [30]-[31]; Bowen Investments Pty Ltd b Tabcorp Holding Ltd (No 2) [2008] FCAFC 107, [3]-[5].

[35] Mercanti v Mercanti [2014] WASC 64, [11]; Ajaimi v Giswick Pty Ltd (No 2) [2022] VSC 275, [27].

[36] Summers v Repatriation Commission (No 2) [2015] FCAFC 64, [29].

[37] Ritter v Godfrey [1920] 2 KB 47, 60.

[38] Huxley v West London Extension Railway Co [1889] UKLawRpAC 6; (1889) 14 App. Cas. 26, 32; Smith v Gould (No 2) [2012] VSC 541, [11].

[39] Lollis v Loulatzis & Anor (No 2) [2008] VSC 35, [28].

[40] Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213, 219.

[41] Mann v Carnell [2001] ACTSC 18; (2001) 159 FLR 466, [8]; Wojcic v Incorporated Nominal Defendant (No 2) [1968] VicRp 68; [1968] VR 533, 534.

[42] Austen v Ansett Transport Industries (Operations) Pty Ltd [1993] FCA 403, [58]; Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 201, 214.

[43] Allseas Construction S.A. v Minister for Immigration and Citizenship (No 2) [2012] FCA 747; Ngarluma Aboriginal Corporation RNTBC v Ramirez (No 2) [2018] FCA 2042.

[44] Bostik (supra), [38]; Hughes v Western Australian Cricket Association Inc (supra), [9].

[45] Koonara Management Pty Ltd v Rockliff (No 3) [2020] FCA 523, [10].

[46] The structure of the agreements is described at J[342]-[349]. The pleadings did not make clear the relationship between GJB and CornoNero in respect of the Trimont Sales Representations claims against Ascenzo, but on one reading those claims were brought by both plaintiffs.

[49] GJB was in fact the relevant party, although the submission did not distinguish between the plaintiffs.

[50] Hartwig and Ascenzo adopted those contentions but did not advance the 'loan account' defence by way of any extensive evidence.

[51] CornoNero's Amended Reply dated 8 September 2021, [14(a)]. CornoNero's Reply made no reference to a date for the purposes of Trimont's insolvency. The 'benefit' to CornoNero was said to accrue when the Impugned Payments were made. They were each made between September and November 2015.

[54] J[541]-[544], [713]-[715].

[56] As alleged at paras [47]-[51] of the plaintiffs' Third Further Amended Statement of Claim.

[57] As identified in Breckenridge's proposed orders.

[58] Breckenridge's proposed orders addressing Ascenzo's position likely reflected the fact that in respect of some of the Impugned Payments both Breckenridge and Ascenzo were found to be liable.

[59] Other witnesses were called but it is unnecessary to mention them here.

[68] J[906]-[[1037]; [2090(r)-(v)].

[70] J[2011]-[2112], [2113]-[2118].

[75] The claimed loss was not made out in respect of the four payments that the Special Referee determined had met a debt or liability of CornoNero.

[77] Supreme Court (General Civil Procedural Rules) 2015 (Vic), r 63.55.

[78] Sivritas v Sivritas (No 2) [2008] VSC 580 (Sivritas).

[79] Australian Beverage Distributors v Evans & Tate Premium Wines Pty Ltd [2006] NSWSC 560, [68]; Aristocrat Technologies Australia Pty Ltd v Allam [2017] FCA 812, [14].

[80] Judgment arising from the Impugned Payments claims.

[81] In respect of the Mernda Claims, Impugned Payments and Earnings Representations claims.

[82] Elphick v MMI General Insurance Ltd [2002] QCA 347 (Elphick), [7]; Sivritas, [14].

[83] [2008] VSC 580.

[84] Sivritas, [15]-[16]; Elphick, 364.

[85] Rawson v Samuel (1841) 41 ER 451, 459, adopted in Hill v Ziymack [1908] HCA 13; (1908) 7 CLR 352, 360-2.

[87] James v Commonwealth Bank (1992) 37 FCR 445, 448.

[88] Team Dynamik Racing Pty Ltd v Longhurst Racing Pty Ltd [2008] QSC 36.

[89] Sivritis, [22], citing Flinn v Flinn [1999] VSCA 109; [1999] 3 VR 712, 761 in support of that conclusion. The parties in Sivritis argued the case on the assumption that the jurisdiction was in equity. Kyrou J said that he would have decided the case the same way, on either basis.

[90] Arising on the Earnings Representation claim.

[91] Danidale v Abigroup Contractors Pty Ltd [2007] VSC 552 (Danidale).

[94] Miller v Department of Public Prosecutions [No 2] [2004] NSWCA 249, [13]; Slaveski v Victoria [2013] VSC 76, [23]-[27].

[96] Everest Project Developments Pty Ltd v Westpac Banking Corp [2009] VSC 563.

[97] State Bank of Victoria v Parry [1989] WAR 240, 244; Sami v Roads Corp [2009] VSCA 44, [25].

[98] Mahor v Commonwealth Bank of Australia [2008] VSCA 122, [20].

[99] ANZ Banking Group Ltd v Williamson [2019] VSC 692, [24].