In the matter of Metal Storm Ltd (subject to Deed of Company Arrangement) [2014] NSWSC 1170

Judgment 1On 19 June 2014, I delivered judgment in these proceedings ([2014] NSWSC 813) ("Judgment") and directed the parties to bring in agreed short minutes of order to give effect to judgment within 14 days or, if there was no agreement between them, their respective draft orders and short submissions as to the differences between them. I also indicated that I would hear the parties as to costs. 2The parties did not reach agreement as to the orders to be made. The Plaintiffs, Adam Shepard (in his capacity as deed administrator of Metal Storm Ltd) (First Plaintiff) ("Deed Administrator") and Metal Storm Ltd (subject to a deed of company arrangement) ("Company"), and the Second Defendant, The Australian Special Opportunity Fund, LP ("ASOF"), submitted orders in substantially the same form, except as to costs. The First Defendant, ANZ Trustees Ltd (formerly ANZ Executors & Trustee Company Ltd) ("ANZ Trustees"), submitted orders in a significantly different form. The differences between the parties narrowed significantly in the course of oral submissions on 23 July 2014 and it was ultimately possible to make several orders by consent. I set out those orders below and, to the extent they involve the exercise of the Court's discretion, indicate the reason that they were appropriate to give effect to the Judgment. I then address the substantive issues that remained in dispute before me and the question of costs. Orders made by consent 3I ordered that, pursuant to s 445D of the Corporations Act 2001(Cth), the Deed of Company Arrangement between the Deed Administrator, the Company and ASOF dated 22 November 2012 ("DOCA") be terminated. This order reflects the issues addressed in paragraphs 101-104 of the Judgment, where I noted ANZ Trustees' submission that, if the Court appointed receivers to implement the sale of the Company's remaining assets, the DOCA should be terminated under s 445D of the Corporations Act. I noted (at Judgment [104]) that: "There is substantial force in these submissions, if the premise that a winding up of Metal Storm would avoid imposing an obligation to prepare outstanding financial reports on receivers appointed over the assets of Metal Storm is correct. However, it seems preferable to defer dealing with this matter until after the Court has delivered judgment and address it in the context of final orders appointing receivers. Both the receivers to be appointed by the Court and the Australian Securities & Investments Commission should be given an opportunity to be heard at that point." 4In its submissions as to orders, ASOF consented to an order terminating the DOCA with the effect that the Company immediately be wound up. It was common ground that, as contemplated by the Judgment, that order ought not be made without hearing from the proposed receivers and the Australian Securities & Investments Commission ("ASIC"), if they sought to be heard. ASIC did not seek to be heard and the proposed receivers did not oppose the proposed order. I made that order on the basis that the appointment of receivers who would attend to the sale of the Company's remaining assets displaced the need for the DOCA and that it would be preferable that the Company now be placed in liquidation. 5The proposed receivers also raised an issue as to the application of reg 5.3A.07 of the Corporations Regulations 2001 (Cth), which deals with the circumstances in which the administrator of a company becomes its liquidator on a winding up. The consequence of an order for termination of a deed of company arrangement made under s 445D of the Corporations Act is that a company is taken to have passed a special resolution for its winding up under s 446B of the Corporations Act and reg 5.3A.07(1)(a) of the Corporations Regulations. However, neither the Corporations Act nor the Corporations Regulations specifies who is taken to have been appointed as liquidator in that situation: Re Jick Holdings Pty Ltd [2009] NSWSC 574; (2002) 72 ACSR 387 at [28]; Re Telemedcare Holdings Pty Ltd (subject to Deed of Company Arrangement) [2011] NSWSC 853 at [37]. The Court has power, under s 447A of the Corporations Act, to order that a deed administrator prior to termination of the deed administration be appointed as liquidator: Re Telemedcare Holdings Pty Ltd (subject to Deed of Company Arrangement) above at [37]. By consent, I made an order under s 447A of the Corporations Act that Pt 5.3A of the Corporations Act was to operate in relation to the Company such that the Company was taken to have appointed the Deed Administrator to be its liquidator. 6I also granted leave under s 532(2) of the Corporations Act for the Deed Administrator to seek to be appointed as liquidator of the Company and to act as liquidator. That section disqualifies a person from acting as liquidator in specified circumstances. However, the Court may grant leave for a person to be appointed as liquidator although he or she is a creditor for work previously done in relation to its administration, if the saving to the creditors from his or her familiarity with the company's affairs would outweigh any detriment arising from any possible conflict: Deputy Commissioner of Taxation v Barroleg Pty Ltd (1997) 25 ACSR 167 at 174; Telemedcare above at [38]-[39]. This was a proper case for such leave given the complexity of the matter, the fact that receivers appointed by the Court would attend to the sale of the Company's assets and that the Court will determine any dispute as to the exercise of liens or indemnities by the parties in respect of costs. 7I also noted the undertaking to the Court of all parties not to assert any lien over any asset of the Company to which the receivers were appointed by the Court in priority to or in competition with any lien asserted by the receivers. This reflects the position noted in paragraph 96 of the Judgment that: "Each of the Deed Administrator, ASOF and ANZ Trustees asserts a lien in respect of expenditure made on behalf of Metal Storm or amounts otherwise payable to them. However, all parties helpfully indicated that they were prepared to undertake that they would not seek to assert any such lien in priority to or in competition with a lien claimed by receivers appointed by the Court in respect of their costs and remuneration. It is difficult to see how such receivers could have been appointed by the Court, absent such a confirmation, given the uncertainty as to the value of the assets of Metal Storm, the extent of existing claims against those assets, and the fact that neither ASOF nor ANZ Trustees is prepared to indemnify a receiver in respect of its remuneration and costs." 8I ordered that, pursuant to s 283HB(1)(d) and (g) of the Corporations Act, upon the commencement of the winding up of the Company: "(a) Messrs Christopher Darin and Aaron Lucan are appointed as joint and several receivers ("Receivers") of the property of the Second Plaintiff secured by the Fixed and Floating Charge dated 31 July 2009 ("Charge"); (b) subject to these orders, the Receivers have all the powers conferred by and the duties and obligations (other than any duty, obligation, entitlement or limit to entitlement that would be inconsistent with or in conflict with the position of Court-appointed receiver) prescribed by: (i) the Charge and the Metal Storm Security Trust Deed Secured Notes dated 31 July 2009 ("Security Trust Deed") and shall be treated, and shall act, in all respects as if they had been appointed under that Charge and Security Trust Deed; and (ii) section 420(2) of the Corporations Act 2001 (Cth)." These orders reflect the conclusion expressed in paragraph 95 of the Judgment, that, subject to addressing any issues as to the termination of the administration in final orders, I proposed to appoint receivers under s 283HB of the Corporations Act. I also ordered that, pursuant to s 283HB(1)(g) of the Corporations Act 2001 (Cth), if and when the receivers were appointed pursuant to that order, ANZ Trustees was entitled to release its charge over the Company's assets notwithstanding cl 6.1(c) of the Security Trust Deed to permit the sale of those assets pursuant to a sale transaction entered into by the receivers and the subject of directions from the Court in accordance with the order made below. That order reflects the finding in paragraph 98 of the Judgment that such an order was justified, so as to facilitate the sale of the Company's assets and minimise the potential loss to creditors associated with further delay, so far as it is possible to do so. 9I ordered that, pursuant to s 283HB(1)(g) the Corporations Act, the receivers are to apply to the Court for directions in relation to any proposed sale or disposition of the Company's assets of which they are appointed receivers, provided that they may enter any arrangement or agreement that is subject to a condition precedent to performance that such directions be obtained. This order is consistent with the further observation in paragraph 95 of the Judgment that: "It was common ground between ANZ Trustees and the Deed Administrator that, whoever was appointed receiver, there should be a requirement that the receiver seek directions before completing the sale, so that any residual concerns by ANZ Trustees or other note holders could be raised at that point. The Court can make orders on terms that contemplate that the receiver would seek further directions in respect of a sale under s 424 of the Corporations Act." 10I ordered that, pursuant to s 447E(1) of the Corporations Act, the Administrator pay to the Company the amount of $92,584.53, on condition that those monies may not be disbursed by the Company without leave of the Court. That order reflects the finding in paragraph 126 of the Judgment. Orders in relation to conduct of proceedings 11I adjourned the determination of paragraph 7 of the Originating Process dated 16 December 2013 to a specified date with a view to hearing on that date. That paragraph relates to a declaration as to the administrators' or deed administrators' entitlement to be paid certain amounts in the exercise of a lien. The deferral of that issue is consistent with the approach indicated in paragraph 108 of the Judgment. Subject to that order, the balance of the Originating Process dated 16 December 2013 was otherwise dismissed. 12I also ordered that the determination of paragraphs 12, 13 and 14 of ANZ Trustees' Second Further Amended Interlocutory Process dated 14 April 2014 be adjourned to the same date with a view to a hearing on that date. I have given reasons for extending that order to paragraphs 13-14 as well as paragraph 12 of that interlocutory process in a separate judgment. I ordered that ANZ Trustees' Second Further Amended Interlocutory Process dated 14 April 2014 is otherwise dismissed. ASOF's Interlocutory Process dated 7 March 2014 and ASOF's Interlocutory Process dated 9 April 2014, to the extent it remains extant, are also dismissed. Whether declarations should be made as to ANZ Trustees' obligation to comply with directions given by ASOF 13I turn now to matters that were not the subject of consent orders. ANZ Trustees' proposed order 5 provides for declarations under s 283HA of the Corporations Act that it was not and is not required to comply with the August 2013 Direction, the December 2013 Direction and the February 2014 Direction (as defined in the Judgment). The order in respect of the August 2013 Direction relies on paragraph 61 of the Judgment, the order in respect of the December 2013 direction relies on paragraph 58 of the Judgment and the order in respect of the February 2014 direction relies on paragraph 70 of the Judgment. 14ASOF submits that the declarations proposed by ANZ Trustees are not required or appropriate and that ANZ Trustees merely seeks to obtain the negative corollary of each of the declarations sought by the Deed Administrator and the Company at the hearing, and that: "The same effect is achieved, efficiently and without the danger of making declarations which had not been the subject of detailed submissions, simply by dismissing the paragraphs of the Application and interlocutory process by which those positive declarations were sought." These matters were plainly in issue and ASOF did not abandon the position that ANZ Trustees was obliged to comply with those directions. It seems to me that those declarations are a proper means of resolving the dispute as to that matter and they should be made. Entitlement to vote at creditors' meetings 15ANZ Trustees' proposed order 6 provides for a declaration under s 283HA of the Corporations Act as to its entitlement to vote at creditors' meetings of the Company in respect of debts owed in respect of the Convertible Notes Trust Deed and the Security Trust Deed. Paragraph 6 of the draft orders proposed by the Deed Administrator and ASOF instead provides that: "Pursuant to section 283HA of the Corporations Act 2001 (Cth), the Court hereby declares that [ANZ Trustees] is the creditor entitled to vote at meetings of creditors of the [Company] in respect of debts arising from the secured notes issued by the [Company] held by, amongst others, [ASOF], in the course of the administration or winding up of the [Company]." ANZ Trustees refers to paragraphs 77-78 of the Judgment to support the wider order it seeks. Those paragraphs only determined that question in respect of the secured notes, although I had had to refer to the relevant terms of the Convertible Notes Trust Deed in order to reach that determination. ASOF submits, and I accept, that that declaration should be limited to the position in relation to the secured notes and should not extend to convertible notes issued under the Convertible Notes Trust Deed, since no party who held any significant number of convertible notes under that deed was party to the proceedings before me so as to be a proper contradictor in respect of any issue concerning the convertible notes, as distinct from the secured notes. ANZ Trustees' failure to appoint controller 16Paragraph 7 of the draft orders proposed by the Deed Administrator and ASOF provides that: "The Court hereby declares that [ANZ Trustees] breached clause 6.1(b) of the Security Trust Deed by failing to appoint a Controller within the "decision period" (as defined in the Corporations Act 2001 (Cth))." That declaration is based on the finding in paragraph 140 of the Judgment that ANZ Trustees was obliged to appoint a controller in the decision period, although it was not protected against liability under any indemnity that would have had to be given to the receiver to make such an appointment. 17The making of such a declaration was opposed by ANZ Trustees on the basis that it was not sought in ASOF's Cross-Claim, or the relevant interlocutory process, which sought damages for the relevant breach. ASOF indicated that, to the extent necessary, it would seek to apply to amend its Cross-Claim to seek an order in that form. I do not propose to make that declaration, first because it was not sought; second, because it does not seem to me appropriate to grant leave to amend the interlocutory process to introduce a claim for that declaration at this late stage; and, third, because the declaration is in any event only an intermediate step in respect of a claim for damages in the Cross-Claim, which cannot succeed for the reasons I set out below. The making of the declaration would therefore have no practical consequence. ASOF's Cross-Claim 18ANZ Trustees' proposed order 19 provides that ASOF's Cross-Claim be dismissed. By contrast, order 12 of the draft orders proposed by the Deed Administrator and ASOF provides that the hearing of all remaining issues raised by ASOF's Cross-claim, namely, the quantum of any loss suffered by ASOF as a result of the conduct of ANZ Trustees found to have been in breach of trust, be adjourned to a date to be fixed. 19ASOF contended in its Cross-Claim, inter alia, that ANZ Trustees had breached cl 6.1(b) of the Security Trust Deed or alternatively several pleaded duties by failing to appoint a controller to the Company following the appointment of administrators. Conversely, ANZ Trustees sought a declaration that it did not breach cl 6.1(b) of the Security Trust Deed by failing to appoint a controller within the applicable decision period or, alternatively, a direction under s 283HA of the Corporations Act that it was justified in not appointing a controller within that period and/or an order under s 85 of the Trustee Act 1925 (NSW) that it should be relieved from liability in that regard (ANZ Trustees' Second Further Amended Interlocutory Process [16]-[17].) 20On 17 April 2014, I ordered that the parties file and serve evidence-in-chief (other than evidence with respect to quantum of damages) by specified dates. I amended those orders from those proposed by ANZ Trustees so as to require that evidence as to causation of loss be filed by that time. I also made a further order that: "For the purposes of Part 28 of the Civil Procedure Rules, all issues other than the quantum of any loss suffered or claimed by [ASOF] be determined separately and before any determination of the quantum of that loss." 21At the hearing of issues other than quantification, on 27-29 March 2014, ASOF was successful in establishing that ANZ Trustees' failure to appoint a controller to the Company breached cl 6.1(b) of the Security Trust Deed but I held that a limitation to ANZ Trustees' liability under cl 2.1 of the Security Trust Deed applied so that ANZ Trustees was not liable in respect of that breach and that ASOF had also failed to establish that the breach (if liability had otherwise been established) had caused it any loss. In particular, I observed (at Judgment [156]-[157]): that: "ANZ Trustees' written submissions in respect of the limitations to its liability under the trust deeds focused on the limitation of liability under cl 2.1 of the Security Trust Deed. It is not necessary to address the other provisions of the Security trust Deed which ANZ Trustees pleaded, but did not address in submissions, given the finding that I reach in respect of the application of cl 2.1 below. Clause 2.1(a) of the Security Trust Deed provides that, subject to cl 2.2, ANZ Trustees is not liable to "any party" for, among other things, any loss or damage occurring as a result of it exercising any Power (as defined) under the Security Trust Deed or in relation to any Security Document, which includes the Charge. Clause 2.1(d) in turn provides that ANZ Trustees shall not be liable to any party for any other matter or thing done, or not done, in relation to the "Security Document", relevantly the Charge. I have addressed that clause above and held, on balance, that the word "party" in cl 2.1 extends beyond the named parties to the Security Trust Deed to secured note holders and that clause potentially applies to limit ANZ Trustees' liability to secured note holders. Clause 2.2 provides that the exclusion of liability is not available where ANZ Trustees or its employees, agents or officers has been guilty of fraud, negligence or breach of trust or wilful act, omission or default. I also accepted the common submission of ANZ Trustees and ASOF above that the fact that an act was intentional did not, without more, trigger the application of cl 2.1 so as to deprive ANZ Trustees of that exclusion of liability. Neither party made submissions as to who had the onus of establishing that the limitations in cl 2.2 of the Convertible Notes Trust Deed were or were not applicable. In the present case, the question of onus does not seem to me to be decisive. The limitation on liability under cl 2.1 of the Security Trust Deed is prima facie available to ANZ Trustees and would only be lost where there was some element of fault on its part, including negligence. ASOF's case, so far as ANZ Trustee's failure to appoint a controller in the decision period was concerned, was ultimately no more than that failure was self-evidently negligent. I do not accept that submission, since the complexity of the clauses is such that a party exercising reasonable care and acting with professional advice might well have misunderstood them and failed to comply with them, although I add there is no evidence that in fact occurred in this case. The other matters on which ASOF relies did not occur during the decision period; even assuming there was fault on the part of ANZ Trustees in respect of those matters, that does not seem to me to establish fault on its part of the failure to appoint a controller in the decision period which was completed before they occurred or deprive ANZ Trustees of the benefit of an exemption from liability in respect of the earlier act. This finding has the result that ASOF's claim in respect of the failure to appoint a controller in the decision period must fail." 22I also noted that (as I have pointed out above) the Court had made an order for the purposes of Pt 28 of the Uniform Civil Procedure Rules 2005 (NSW) that all issues other than the quantum of any loss suffered or claimed by ASOF be determined separately and before any determination of the quantum of that loss. It was common ground between the parties that ASOF needed, in that hearing, to demonstrate causation and the existence of loss that would warrant a later hearing as to quantification. ASOF contended that it has suffered loss and damage by reason of, relevantly, ANZ Trustees' failure to appoint a controller in the decision period. On the other hand, ANZ Trustees affirmatively contended that any act or omission on its part had not caused any loss or damage to be suffered by ASOF and pointed to ASOF's active pursuit of proposals for a deed of company arrangement for the Company since the point at which it was placed in administration. I observed (at [162]-[164]) that: "ASOF contends that, had a controller been appointed as required by cl 6.1(b) of the Security Trust Deed, then there would be no room for dispute as to whether there was an "enforcement in accordance with this [deed]" taking place, and it would have been open to ASOF to direct the release of the security in accordance with cl 6.1(c). That proposition is correct so far as it goes, but it does not establish that ANZ Trustees' failure to appoint a controller ultimately gave rise to any loss to ASOF, which must depend upon a comparison of the hypothetical position where a controller had been appointed and the actual position where a controller was not appointed and where ASOF sought to achieve its commercial objectives in the administration and through successive versions of a deed of company arrangement. Mr Hall [who appeared for ASOF] also put in closing submissions that the Court could not be satisfied on the evidence that there was no item of damage or no item of expense incurred by ASOF, and no decay in the value of the assets that might be achieved that could be said to arise from the breach. It seems to me, however, that the question of causation is not to be addressed by asking whether there is any evidence that no damage was caused, but instead by asking whether there is any evidence which would support a finding that damage was in fact caused by ANZ Trustees' conduct. It seems to me that the fundamental difficulty with ASOF's claim in this regard is that it made no substantive attempt to establish that it would have been in a better position had ANZ Trustees complied with cl 6.1(b) of the Security Trust Deed by appointing a controller in August 2012, than the position in which it is now in. As ANZ Trustees points out, Mr Easton's affidavit evidence [on which ASOF relied] does not suggest that ASOF would in fact have acted differently, in any respect, had a controller been appointed as it contends should have occurred and, so far as the evidence goes, it appears that ASOF was committed to the pursuit of a restructuring utilising a deed of company arrangement throughout the relevant period, which delivered the advantages of a moratorium in respect of claims of creditors and also allowed Metal Storm to receive a substantial research and development rebate which would otherwise not have been available to it. As ANZ Trustees also points out, ASOF had nominated the directors that sit on the Metal Storm board pursuant to the Initial DOCA and has had, since 22 November 2012, full management and operational control of Metal Storm to pursue business opportunities, and also had the benefit of the recovery of amounts from the $562,375 research and development tax refund amount received by Metal Storm on 28 December 2012 and a further $30,000 in GST refunds (CB 6/1326). It seems to me that this is not merely a matter of quantification of loss and involves a more fundamental failure by ASOF to establish that the suggested breaches have in fact been causative of any loss. For these reasons, ASOF's Cross-Claim should therefore be dismissed." 23In its submissions as to orders, ASOF submitted that: "[ASOF] submits that, notwithstanding indications given in the reasons for judgment, the question of the quantum of its loss caused by [ANZ Trustees'] breach of the Security Trust Deed, the subject of the Cross-Claim, should also be adjourned for further hearing. Those issues - the quantum of the loss sustained by the Second Defendant - were specifically excluded from the May hearing. The reason why the Court has indicated an inclination not to hear that cross-claim further is because of the view expressed at [157] that any loss would fall within the exclusions in clauses 2.1 and 2.2 of the Security Trust Deed and the view that there was insufficient evidence of causation at [164]. With respect, the first is not a matter that fell to the Court to determine on this occasion and neither was capable of being fairly determined on the evidence led at trial. [ASOF] will submit that: (1) There was clear evidence of costs incurred by [ASOF] in supporting the administration, which would not have been incurred had a controller been appointed. It was contended that each was an item of loss caused by the failure to appoint a controller. (2) The question whether each of those items of loss was or was not attributable to the breach of trust was a matter reserved for the further hearing. That was inevitable, as it could not be known on which, if any, of the alleged breaches ASOF would succeed. The only matter for determination at this round of litigation was whether it was shown that there was no loss attributable to that breach. (3) The question of whether the Trustee is entitled to rely upon a limitation of liability clause is anterior to the determination of what liability it (potentially) has, and cannot be determined until it is known what loss is said to be subject to that clause. It follows that notwithstanding the Court's findings the order proposed by [ANZ Trustees] (and, it is acknowledged, foreshadowed by the Court at [164]) does not follow from the matters which have been determined or were available to be determined at the hearing and should not be made. There must be a further hearing." 24The reference to "indications" in the Judgment might be thought to understate the effect of my observation that ASOF's Cross-Claim should be dismissed for the specified reasons. I would not accept these submissions, so far as they are addressed to the questions as to the orders that follow from the Judgment, although I will address the wider question as to whether the issues in respect of the Cross-Claim should be reopened below. In particular, I would not accept ASOF's submission that the effect of cl 2.1 of the Security Trust Deed was not a matter to be determined at the trial as to liability. A limitation on liability clause that potentially excludes liability is a matter that goes to the existence of liability, not the quantum of damages (if liability were established) and only the latter had been reserved for separate determination. ANZ Trustees squarely raised the operation of the limitation on liability clauses in submissions and ASOF had the opportunity to lead evidence and make submissions at the hearing, albeit within the constraints of an expedited timetable driven by the commercial urgencies of the matter that all parties had emphasised. 25I also would not accept the proposition advanced by ASOF in the first numbered point noted above, since it does not seem to me to be sufficient for ASOF to establish that any loss was incurred by reason of ANZ Trustees' conduct by pointing to expenses that it had incurred without reference to benefits that it had received by reason of the alleged failure to appoint a controller by ANZ Trustees. The first sentence of the second numbered point does not seem to me to be correct as a matter of fact, since the only matter that was reserved for a further hearing was the quantum of loss. The second sentence of the second numbered point also does not seem to me to be correct, since it is a common incident of a trial, including a trial where quantum is to be heard as a separate issue, that a plaintiff will need to establish causation without knowing which aspects of its claim for breach will succeed. That is the inevitable result of the fact that trials are not conducted in multiple steps, narrowing the issues by interim findings. I will address further submissions put by ASOF as to the structure of cl 2.1 of the Security Trust Deed, which add a further basis for that submission, below. The third sentence of the second numbered point seems to me to seek to reverse the onus of proof, as I had noted in my Judgment that ASOF had also sought to do in submissions at the prior hearing. The third numbered point also does not seem to me to be correct, because it was open to ASOF to, and necessary for it to, lead evidence and make submissions as to the application of cll 2.1 and 2.2 of the Security Trust Deed (which, as I noted above, ANZ Trustees had squarely raised) in respect of that liability which it sought to establish. 26Mr Hall, who appeared for ASOF, put ASOF's primary position at the commencement of oral submissions as that the conclusion that the Cross-Claim should be dismissed did not follow from the reasoning in the Judgment. That submission could properly be put, without leave to reopen, in submissions as to the form of orders to be made, although I do not think it is correct for the reasons noted above. As Mr Hall's oral submissions developed, he properly recognised that ASOF's application might more appropriately be approached as an application for leave to reopen, although ASOF maintained the submission that the dismissal of the Cross-Claim did not follow from the Judgment as an alternative submission if leave to reopen was not granted. It seems to me that, so far as the Judgment reached the conclusion that the Cross-Claim should be dismissed, for the reasons there indicated, I could only now reach a different conclusion and make different orders by a reopening of the argument that was put before me. It also seems to me that it is not open to ASOF to put that the conclusion that the Cross-Claim should be dismissed does not follow from the Judgment, because the findings that I reached that cl 2.1 of the Security Trust Deed applied and (although it was not strictly necessary to determine) that ASOF had not established that it had suffered any loss by reason of ANZ Trustees' conduct required the dismissal of the Cross- Claim, and the points that Mr Hall seeks to make are, in substance, that I should not have reached the conclusions that lead to that result. An argument of that character either requires leave to reopen, or is a matter for appeal. 27I should nonetheless address in greater detail the arguments that Mr Hall put in oral submissions as to why the conclusion that the Cross-Claim should be dismissed did not follow from the Judgment. Mr Hall submitted that the conclusion that the Cross-Claim should be dismissed did not follow from my conclusions as to the limitation of liability under cl 2.1 of the Security Trust Deed, because the application of such an exclusion could only be determined by reference to a particular head of damage, by identifying whether that particular damage was caused negligently or was caused by an inadvertent breach which would therefore fall within the exclusion. Mr Austin, who appeared with Mr Krochmalik for ANZ Trustees, responded to Mr Hall's argument based on the nature of the loss suffered by pointing out that ASOF had, relevantly, identified a single act of negligence, namely, the failure to appoint a controller in the decision period, and the question whether that failure was negligent or willfully negligent for the purposes of cl 2.1 did not then depend upon identifying the particular forms of loss that might have followed from it. 28It seems to me that the conclusion that I reached that the Cross-Claim should be dismissed does follow from the analysis of cll 2.1 and 2.2 of the Security Trust Deed in the Judgment. I referred to those clauses in paragraph 34 of the Judgment and noted that: "Clause 2.1(a) of the Security Trust Deed provides that, subject to cl 2.2, ANZ Trustees is not liable to "any party" for, among other things, any loss or damage occurring as a result of it exercising any Power (as defined) under the Security Trust Deed or in relation to any Security Document, which includes the Charge. Clause 2.1(d) in turn provides that ANZ Trustees shall not be liable to any party for any other matter or thing done, or not done, in relation to the "Security Document", relevantly the Charge. Clause 2.2 provides that the exclusion of liability is not available where ANZ Trustees or its employees, agents or officers has been guilty of fraud, negligence or breach of trust or wilful act, omission or default." The reference to "any loss or damage" in that clause refers, in my view, to all loss or damage that follows from the relevant act and, contrary to Mr Hall's submission, that clause does not identify the loss and damage as a matter which must be identified, before determining whether the exclusion is established, and instead simply indicates that ANZ Trustees is not liable for loss and damage (whatever its nature) unless the relevant matters are satisfied so as to deprive it of the operation of the exclusion from liability. I would add that cl 2.1(d) of the Security Trust Deed does not use the phrase "loss or damage" and is not limited by that concept, at least by reference to specific loss or damage, in any event. 29Even if I were to accept ASOF's submission as to this matter, it does not assist ASOF in the particular circumstances, because once ANZ Trustees had relied on the limitation of its liability under cl 2.1 of the Security Trust Deed by way of defence, it would still have been necessary for ASOF to identify the nature of the relevant damage (albeit not to quantify it) and to address the question whether the limitation of liability was applicable in order to answer ANZ Trustees' reliance on that limitation to avoid such liability. 30Mr Hall also submits that the Court should not find that there was no possibility of a finding that harm was caused by negligent conduct on the part of ANZ Trustees in circumstances where the Court did not address the evidence of particular loss (which, I interpolate, had not been led by ASOF) in detail (T33). Mr Hall acknowledged that that argument could not succeed if its first step, that the application of the limitation on liability clause depended on the nature of the particular loss suffered, was not accepted (T33). I do not accept that first step for the reasons noted above. 31A question also arises whether ASOF would need to contend that there was sufficient evidence before the Court at the hearing in May 2014, which had not been fully addressed in submissions or in judgment, to have the result that the limitation on liability clause in cl 2.1 of the Security Trust Deed would not apply. Mr Hall noted that ASOF would then face a dilemma, because its primary position was that that could not be established without identification of the particular loss or damage. However, Mr Hall alternatively submitted that there was sufficient evidence to find that the failure to appoint an administrator by ANZ Trustees during the decision period was negligent, so that the exclusion from liability under cl 2.2 of the Security Trust Deed was not available to ANZ Trustees. Mr Hall submits that the conclusion should be drawn, from the evidence that ANZ Trustees had referred the issue of appointment of a controller to an officer for advice and the absence of evidence as to what was done in the balance of the decision period, that ANZ Trustees had not acted reasonably and that it also did not act with reasonable care. Mr Hall drew attention to paragraphs 55-57 of ASOF's submissions at the earlier hearing, as follows: "ASOF submits that honesty and reasonableness have not been demonstrated. In putting honesty in issue, it is not alleged that the initial actions of [ANZ Trustees] were colored by moral turpitude. But they do demonstrate such carelessness or inaction that no proper attempt was made to comply with the obligations of the trust. So far as the evidence discloses [ANZ Trustees] did nothing between 1 August 2012, when it was, as it now admits, fully aware of the appointment of the Administrator and requested internal advice as to the extent of its obligations, and 16 August, by which time the decision period had already expired. So far as one can tell from the evidence which [ANZ Trustees] chooses to lead, Ms Jackson and Mr Latham (Officers of ANZ Trustees) did nothing during that period, including nothing to address themselves to the question of whether they ought to appoint a controller in accordance with [cl] 6.1(b) [of the Security Trust Deed]. Certainly there is no shred of evidence to suggest that they turned their minds to that clause and determine that it did not apply to them because of the absence of any form of indemnity. Such conduct evidences a clear breach by [ANZ Trustees] of the bare minimum duty required of the Trustee; that is, to act honestly and in good faith for the benefit of the beneficiaries: Armitage v Nurse [1988] Ch 241, 253 - 254." 32As I noted in the Judgment, there remains a fundamental problem with that submission. A failure to appoint a controller would not involve a breach of any duty of care in the relevant circumstances, unless the exercise of a care and diligence required the appointment of a controller. It seems to me that it has not been established that, given the complexity of the relevant circumstances and given the complexity of the relevant documentation, the failure to appoint a controller involved a breach of a duty of care, because there is no reason to think that a careful and diligent security trustee would in fact have appointed a controller, rather than not done so, in the relevant circumstances. Those circumstances, including ASOF's then commitment to an administration process and the availability of research and development rebates to the Company (to which I referred in the Judgment) that would be lost on the appointment of a controller, suggest that, all else being equal, a security trustee acting with care and skill need not have appointed a controller. In that situation, negligence in the failure to appoint a controller has not been established, irrespective of the fact that there is no evidence as to the process of analysis by which ANZ Trustees reached the position that it did not appoint a controller. 33So far as causation of loss is concerned, Mr Hall emphasises that the submission he makes, or seeks to make, is that the whole of the amount expended, in support of the Deed Administrator or in support of the administration of the DOCA, would not have been incurred had there not been a DOCA but instead a receivership. The issue is crystallised by Mr Hall's succinct summary of ASOF's position, in oral submissions, as follows: "... [ASOF] was not required to show, for the purpose of keeping the Cross-Claim on foot to get to the damages hearing, that [ASOF] was net worse off as a result of the failure to appoint a receiver. [ASOF] was only required, I submitted, and submit, to show that there were items of loss or damage that had been caused by that failure." (T51) 34Mr Hall accepted, in further oral submissions, that he did not have any alternative to advancing the proposition that, in order to establish loss and damage, ASOF needed only to show one side of the ledger, which were the costs that it incurred by reason of any failure to appoint a controller. He accepted that ASOF was not in a position to point to any evidence that it had adduced as to what costs would have been incurred had a controller been appointed. I would add that, although there was evidence led as to the benefits which ASOF obtained by the appointment of a controller, ASOF had also not led evidence as to the extent of any benefits which it would have obtained from the appointment of a controller, to allow any determination whether it was in fact worse off by reason of the continuance of the administration and the entry into a DOCA than if a controller had been appointed. Mr Hall ultimately accepted that his submission was that, in order to establish causation, ASOF only had to show that a cost was incurred referable to the fact that a controller was not appointed, and not that it was "net worse off" because a controller was not appointed (T54). Mr Hall also submits that it would be necessary for ASOF, at a future hearing as to quantum, to give credit for the costs that would have been incurred in support of a receivership but contends that this is a question of quantum, not a matter of establishing that some loss has been suffered. 35I do not accept these submissions, since it seems to me that proof of any loss or damage does require that ASOF be "net worse off" as a result of the failure. For ASOF to establish that ANZ Trustees' conduct caused any loss, it must show that the amount of any costs or detriment that it incurred from the failure to appoint a controller exceeded the benefits or advantages which it obtained from that failure. The existence of any loss cannot be established by simply pointing to a cost or costs incurred in that situation without having regard to the amount of the corresponding benefits obtained in that situation. To point to the costs incurred is to do no more than point to an element in establishing the existence of any loss (as distinct from its quantum) which may or may not ultimately lead to establishing any such loss. ASOF's application for leave to reopen 36Mr Hall indicated in oral submissions that ASOF sought to reopen argument, if his primary position was not accepted, to contend that any loss or damage suffered by ASOF fell outside the operation of clauses 2.1 and 2.2 of the Security Trust Deed and as to causation. In Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1992) 176 CLR 300 at 302-303, Mason CJ summarised the applicable principles as follows: "These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasised that the jurisdiction is not to be exercised for the purpose of reagitating arguments already considered by the court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases." 37In Wentworth v Wentworth [1999] NSWSC 638 at [13]-[18], Santow J (as his Honour then was) summarised the relevant principles, in a passage subsequently approved by Barrett J (as his Honour then was) in Wentworth v Rogers [2002] NSWSC 921 at [8], as follows: "While appellate courts must have regard to whether and to what extent there is any prospect of any final appellate review and which in the case of the Australian courts of appeal depends upon special High Court leave, the principles for exercise of the discretion as laid down in Smith v NSW Bar Association (No 2) (supra) at 265 embrace all courts: 'The power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation (Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684)). Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review (Marinoff v Bailey (1970) 92 WN(NSW) 280 at 284; National Benzole Co Ltd v Gooch [1961] 1 WLR 1489 at 1492-1494). And there may be more or less reluctance to exercise the power depending on whether there is an avenue of appeal (State Rail Authority of NSW v Codelfa Constructions Pty Ltd (1982) 150 CLR 29 at 38-39, 45-46; Wentworth v Rogers [No 9] (1987) 8 NSWLR 388 at 394-395).' Per Brennan, Dawson, Toohey and Gaudron JJ in Smith v NSW Bar Association (No 2) at 265. Their Honours went on to say (at 265) 'the power to review a judgment in a case where the order has not been entered will not ordinarily be exercised to permit a general re-opening'. Speaking in broad terms, the basis for review has been expressed thus (in Yenald (supra) at 42,362): 'An order varying the terms of a judgment that has not been entered will be made to correct error or oversight or to effect a review of the contemplated order so that the orders may be able to deal more adequately with the matter as litigated by the parties before the Court. (See: The Texas Company (Australasia) Ltd v FCT (1940) 63 CLR 382 per Starke J at 457).' In appellate courts particularly, there is to be weighed the public interest in the finality of litigation against what would otherwise be irremediable injustice; State Rail Authority of New South Wales v Codelfa Construction Pty Ltd at 38 per Mason and Wilson JJ. But that latter factor does not have the same weight where, as here, appeal is allowed as of right or as a matter of usual course. The discretion to re-open or vary a judgment is thus significantly qualified. As is so often said, the power should 'be exercised with great caution'; Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684. Examples where re-opening was denied serve to illustrate the constraint observed by the courts in exercise of the discretion: (i) Where the ground was that the Court misconstrued a section of legislation this was said to be 'an attempt to re-argue the substantial question decided in the appeal after hearing full argument from counsel for the parties'; Wentworth v Woollahra Municipal Council (supra) at 685. (ii) Where the grounds are an allegation of bias against the Court or allegations of mistaken findings of fact, the proper procedure is to seek special leave to appeal from the High Court. Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 at 395. (iii) Where what is occurring is in truth the re-agitation of arguments already considered by the Court; as was said by Mason CJ in Autodesk (at 302): 'It must be emphasised that the jurisdiction [to review or re-hear an issue] is not to be exercised for the purposes of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a re-hearing has failed to present the argument in all its aspects or as well as it might have been put'. (iv) Where the parties have been sufficiently heard on the impugned issue; Autodesk Inc v Dyason (No 2). (v) Where even if there be the possibility of some misapprehension on the Court's part as to the facts or relevant law, this misapprehension can be attributed solely to the neglect or default of the party seeking the re-hearing; for 'the purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases'; per Mason CJ in Autodesk at 303. Examples on the other hand where review has been allowed in the case of a judgment or order of a court of first instance include the following: (i) Where the court's reasons for judgment inadvertently did not deal with important matters argued by counsel at the hearing where an appeal to correct this would involve inevitable delay; Twenty-First Australia Inc v Shade (NSWSC, Young J, 31 July 1998, unreported) in Butterworths Unreported Judgments at 18. (ii) Where the court's reasons involve 'infelicity of expression and ambiguous statements' which may be corrected by the trial judge upon the bringing in of short minutes; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 2) (1998) 29 ACSR 290. (iii) Where re-opening in respect of an order which was consequential upon a finding of error of law and the trial judge had no intention that the order have the effect that further evidence could be called on in the remittal to the tribunal below, and where the possible effect of the order had not been the subject of argument at hearing; AB v Federal Commissioner of Taxation (1998) 157 ALR 510. (While the order arising out of this decision to re-open the matter and the previous decision which found an error of law were overturned on appeal in Glennan v Commissioner of Taxation [1999] FCA 297, the decision to re-open was not itself canvassed in the appeal.) (iv) Where what was sought was further consideration of orders in respect of the nature and extent of equitable relief which had been earlier sought at trial (in the context of a complex litigation); Farrow Finance Company Ltd (in liquidation) v Farrow Properties Pty Ltd (in liquidation) and Ors (SC(Vic), Hansen J, 16 April 1998, unreported). (v) Where a party had misunderstood the basis of a pleading and failed to address the issue in its strike-out application; Hoad v Nationwide News (1996-1997) 37 IPR 407 [Anderson J SC(WA)] (vi) Where excision of a paragraph from a judgment was sought where the trial judge had mistakenly referred in his reasons to a situation which did not exist; Smits v Buckworth (No 2) (NSWSC, Young J, 14 November 1997, unreported). (vii) Where the trial judge recalled his order after deciding it was wrong immediately after making it; Pittalis v Sherefettin [1986] 1 QB 868. In the Court of Appeal, where further appeal would have depended on discretionary special leave from the High Court, the Court agreed to re-open its decision in order to permit a reconsideration of a particular issue, because the court had not originally been made aware of authority directly in point and which was to the contrary to that earlier decision; Wentworth v Wentworth (NSWCA, 30 November 1998, unreported). While illustrations of where the courts have or have not re-opened a judgment not yet entered are of value, they can be subsumed more generally in what Mason CJ said in Autodesk (at 301-302). He delimited the scope of the discretion by explaining that "the exceptional step" of reviewing an issue might occur where a court has good reason to consider that it had proceeded on a misapprehension as to the facts or the law and where the misapprehension cannot be attributed solely to the applicant's neglect or default." 38In Kernaghan v Corrections Corporation of Australia Staff Superannuation Pty Ltd (No 2) [2007] FCA 1040 at [13], North J observed, in applying those principles in a hearing at first instance, that: "The Court has discretion whether to allow the case to be reopened or not. That discretion must be exercised in the interests of justice. An important consideration against allowing an application to reopen is the need to bring finality to litigation. It is also relevant to examine the circumstances in which the need to reopen arose and in particular whether the cross-claimants deliberately chose not to call evidence at the first instance which it wished to call in the reopened case: see Smith v New South Wales Bar Assn (1992) 176 CLR 256. ..." 39I summarised the relevant principles in Barescape Pty Ltd as trustee for the V's Family Trust v Bacchus Holdings Pty Ltd as trustee for The Bacchus Holdings Trust (No 10) [2012] NSWSC 1275 at [22] as follows: "It is well-established that, except in exceptional circumstances, a party should not be permitted, after a case had been decided, to raise a new argument which it failed to put during the hearing when it had an opportunity to do so: Metwally v University of Wollongong (No 2) [1985] HCA 28; (1985) 60 ALR 68 at [71]. At the same time, there are circumstances in which allowing reopening is appropriate to allow a matter to be addressed by a trial judge which would otherwise be open on appeal, and the Court's discretion whether to permit that course must be exercised in the interests of justice: Twenty-First Australia Inc v Shade [1998] NSWSC 325; Wentworth v Wentworth [1999] NSWSC 638 at [8]; Wentworth v Rogers [2002] NSWSC 921 at [5]; MK and JA Roche Pty Ltd v Metro Edgley Pty Ltd [2004] NSWSC 780; Kernaghan v Corrections Corporation of Australia Staff Superannuation Pty Ltd (No 2) [2007] FCA 1040 at [13]." 40Mr Hall accepted in oral submissions that the decision in Autodesk provided a narrow basis for reopening, but submitted that the Court could, in appropriate circumstances, hear further argument before affirming an indication that was given in published reasons for judgment and submitted that the Court ought to hear further submissions as to the relevant matters (T37). 41Mr Austin referred to Autodesk as authority that reopening should only be permitted if the Court were persuaded that it had proceeded on the basis of a misapprehension of the facts or the law that was not solely attributable to the conduct of ASOF's case. Mr Austin pointed out that cl 2.1 of the Security Trust Deed was pleaded in paragraph 17A of ANZ Trustees' Defence; was addressed in ANZ Trustees' written opening served a week before the hearing in May 2014; and was relied on in those submissions as a full answer to the claim brought against ANZ Trustees in the Cross-Claim. Mr Austin also drew attention to the fact that the scope of cll 2.1 and 2.2 of the Security Trust Deed was the subject of substantive oral argument, including by Mr Hall, in the course of submissions before me at the earlier hearing and was dealt with in paragraphs 156 - 157 of the Judgment which I set out above. 42Mr Austin also pointed out that, in order to avoid the result that the Cross-Claim should be dismissed, ASOF needed to establish not only that its argument as to cll 2.1 and 2.2 of the Security Trust Deed was correct, but also that its argument as to causation was correct, because otherwise the failure to establish causation was sufficient to require that the Cross-Claim be dismissed. Mr Austin also pointed out that the absence of causation was specifically raised by paragraph 16C of ANZ Trustees' Defence and in ANZ Trustees' opening submissions served prior to the hearing and that both the Deed Administrator, Mr Shepherd, and the relevant officer of ASOF, Mr Easton, were cross-examined as to matters relating to causation and as to ASOF's commitment to the pursuit of the DOCA rather than receivership, and that that matter was again addressed in ANZ Trustees' written closing submissions and in ANZ Trustees' oral submissions on the last day of the trial, to which Mr Hall in turn responded in oral submissions. Mr Austin also pointed to Mr Hall's submission at the earlier hearing that ANZ Trustees must satisfy the Court that there was no item of damage, or expense incurred by ASOF or no loss of value of assets that might have been achieved on a sale and arose from the breach, and that could not be done (implicitly, by ANZ Trustees) on the then evidence. Mr Austin pointed out that I had noted that submission in the Judgment and characterised it as inverting the onus of proof, and not accepted it on that basis. 43I am also not satisfied that leave to reopen should be granted. It seems to me that there would be no utility in reargument on the basis of the existing evidence, since the relevant issues were fully canvassed in argument before me and I did not misapprehend the arguments put before me. If I erred in determining those arguments, that is properly a matter to be addressed on appeal. It also does not seem to me that reopening should be permitted in a manner that would permit ASOF now to lead further evidence in respect of its Cross-Claim, since that would undo the effect of the order for separate hearing of all issues made prior to the trial and, in effect, restore the position that ANZ Trustees had unsuccessfully sought at that time, namely, that issues other than causation and quantification be determined. It seems to me that it would be profoundly unfair to have required ANZ Trustees to go to trial on issues of causation, over its objection, and then deprive it of its success on those issues once it had done so. The issues as to the scope of cl 2.1 and as to the causation of loss had been squarely raised by ANZ Trustees and were addressed in submissions of both parties and in the Judgment. Mr Hall accepted in oral submissions that order 13 made by the Court on 17 April 2014 deferred only the question of the quantum of any loss which was suffered (T35); that ANZ Trustees had made both written and oral submissions as to the operation of the limitation on liability clause at the hearing before me (T35); and that the matters as to which ASOF now seeks to make further submissions were not deferred by the orders made on 17 April 2014 and were relevant to respond to the submissions put by ANZ Trustees at the earlier hearing. 44Mr Hall advanced, or at least foreshadowed, an alternative submission, by way of fallback, that there was an implied additional deferral in order 13 made by the Court on 17 April 2014, deferring the question of liability, although it was not entirely clear what was the subject of that implied deferral. I do not accept that submission, since the separation of issues of liability and quantum was made in conventional terms, after a contested interlocutory hearing, and I can see no basis for an implied qualification that had not been raised by the parties or accepted by the Court in the course of making that order. 45An order should therefore be made reflecting the finding in the Judgment that ASOF's Cross-Claim dated 9 April 2014 should be dismissed. Costs 46The issues in respect of costs are complex and likely to be of practical significance since the proceedings were complex and all parties are likely to have incurred substantial costs. Section 98 of the Civil Procedure Act 2005 (NSW) relevantly provides that: "Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court; and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis." Rule 42.1 of the Uniform Civil Procedure Rules in turn provides that, where the Court makes an order as to costs, the Court is to order that costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs. 47Costs are awarded to compensate the successful party for the expense of being put to the necessity of litigation; a wholly successful defendant should ordinarily receive its costs unless good reason is shown to the contrary; and the discretion to order costs must be exercised judicially and not against the successful party except for some reason connected with the proceedings: Milne v Attorney-General (Tasmania) [1956] HCA 48; (1956) 95 CLR 460 at 477; Oschlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 97-98 per McHugh J, at 119-123 per Kirby J; Ruddock v Vardalis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 at 234. In Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38], the Court of Appeal noted that, where there are multiple issues in a case, the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. However, the Court also pointed to several circumstances in which a different approach might be justified, and noted (at [38]) that: "Whether an order contrary to the general rule of costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the Court, which powers should be liberally construed." Similarly, in Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd [2008] NSWSC 1423 at [28]-[31], in a passage recently approved by McDougall J in The Owners - Strata Plan 61162 v Lipman [2014] NSWSC 622 at [241], Hammerschlag J referred to the general rule and to cases where its application may be displaced. In particular, the Court may deprive a successful party of the costs relating to an issue on which it lost when that issue is clearly dominant or separable: Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 at [64]; Doppstadt Australia Pty Ltd v Lovick & Son Development Pty Ltd (No 2) [2014] NSWCA 219 at [17]. Where there has been a mixed outcome in proceedings, and costs should be apportioned as between different issues, the Court will generally take a relatively broad brush approach, largely as a matter of impression and evaluation: Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22. Costs in respect of the Deed Administrator 48Order 15 of the orders proposed by the Deed Administrator provides that: "The costs of the Plaintiffs of and incidental to these proceedings are costs in the deed administration of the [Company]." I had expressed a preliminary view to this effect in paragraph 166 of the Judgment as follows: "In oral submissions, Mr Gray [who appeared for the deed Administrator] submitted that the institution of the proceedings was justified and probably unavoidable and that the proceedings may have narrowed the issues between the parties and contended that the Deed Administrator should have its costs of the application. My preliminary view is that the Deed Administrator should have an order that his costs of the proceedings be costs in the administration." It was common ground that such an order should be made, subject to a dispute as to whether the Deed Administrator should be required to pay ANZ Trustees' costs (as ANZ Trustees contends) or ANZ Trustees should be required to pay the Deed Administrator's costs (as ASOF contends). 49ANZ Trustees seeks an order (proposed order 3) that the Deed Administrator pay ANZ Trustees' costs, including reserved costs and the costs of the trial, referable to the determination of the Originating Process. ANZ Trustees submits that the Deed Administrator's applications were not for directions under s 447D of the Corporations Act but for final declaratory relief in inter partes litigation and that the Deed Administrator is "liable to pay the costs of ANZ Trustees of his unsuccessful proceeding". I do not consider that that characterisation properly reflects the substance of the application brought by the Deed Administrator, as I will note below. It is not necessary to determine whether, as ANZ Trustees contends, ANZ Trustees can also be characterised as a party trying to resolve the impasse, because that would not affect the characterisation of the Deed Administrator's position in that manner. Mr Hall, for ASOF, adopted a somewhat similar position, submitting that the Court should not treat the primary contest as to matters which had been raised in the Deed Administrator's Originating Process as being between ANZ Trustees and ASOF and that, if ANZ Trustees were to be ordered its costs, those costs should be apportioned between the Deed Administrator and ASOF. 50Mr Gray, who appears for the Deed Administrator, submits that the Deed Administrator had no practical alternative other than to invoke the Court's processes to resolve an impasse between the Deed Administrator, ANZ Trustees as trustee for the secured debenture holders and ASOF as a principal secured debenture holder. Mr Gray points out that there was an impasse where ANZ Trustees considered that it had no authority to release its charge without the appointment of a receiver or an order of the Court, and would not appoint a receiver without an indemnity that ASOF would not provide. In these circumstances, it seems to me that the Deed Administrator was justified in taking steps to seek to resolve the impasse and that, in substance, is what he did. The question as to who should be appointed as receiver narrowed in oral submissions before the Court, but they were in any event subordinate to the question whether and on what terms such a receiver should be appointed. The Deed Administrator also advanced some criticisms of ANZ Trustees' position in respect of the appointment of a receiver, which I do not consider it necessary to address given the views that I have reached on other grounds. The Deed Administrator also points out, and I also accept, by the time of the hearing, other issues originally raised by the Deed Administrator had been subsumed by the matters raised by ANZ Trustees' interlocutory process and ASOF's two interlocutory processes and Cross-Claim and the substance of the issues in dispute were then between ANZ Trustees on the one hand and ASOF on the other. The Deed Administrator, responsibly, took a very limited role in respect of those matters at the hearing. 51Other than for the particular issues to which I will now refer, there should be no order as to the costs of this application as between the Deed Administrator and ANZ Trustees. I should note, for completeness, that Mr Gray also submitted that any order for costs, so far as the Plaintiffs were concerned, should be made only against the Company and not against Mr Shepard in his personal capacity. Had I determined that an order for costs should be made against the Deed Administrator, I would have qualified that order so that costs were recoverable against him only so far as they could be satisfied by the exercise of his right of indemnity against the Company's assets. 52ANZ Trustees succeeded in obtaining an order that the Deed Administrator should reimburse an amount of $92,584 to the Company. Mr Gray submits that the amount recovered was significantly less than the amount originally claimed by ANZ Trustees, that the claim was within the jurisdiction of the Local Court and that there should be no order for costs as between ANZ Trustees and the Deed Administrator in respect of that claim, with the intent that each should bear its own costs. I do not accept that submission, which would not reflect the usual position that costs should follow the event. However, I accept the Deed Administrator's position that the claim was a relatively simple one, particularly after it was narrowed by ANZ Trustees in the course of the hearing; that it took up a relatively small amount of court time; and that it is necessary to give effect to s 60 of the Civil Procedure Act, so that the costs awarded should be proportionate to the amount of the claim. At least this aspect of the claim plainly did not warrant the retainer by ANZ Trustees of Senior Counsel, senior junior counsel and a third junior counsel, whether or not that course was warranted in respect of the other issues in the proceedings. I will order that the Deed Administrator pay ANZ Trustees' costs of this claim, as agreed or as assessed, capped at a maximum of $10,000. Other issues as to costs 53ANZ Trustees seeks orders that the Deed Administrator and ASOF should each pay one half of its costs, including any reserved costs and the costs of the trial, referable to the determination of its Second Further Amended Interlocutory Process (proposed orders 14 and 16). ANZ Trustees submitted that the Deed Administrator and ASOF should each pay half of ANZ Trustees' costs of its Second Further Amended Interlocutory Process. ASOF also adopted that position, as an alternative to its primary position that there should be no order as to the costs of that and other aspects of the proceedings. In support of ASOF's primary position, Mr Hall submitted that all parties had failed to obtain all the relief they sought. He accepted that ASOF had not obtained the primary relief it sought in establishing that the directions it had purported to give to ANZ Trustees were binding upon it, but also contended that ANZ Trustees had not established its entitlement to additional indemnities before taking particular actions under the Security Trust Deed. He also submitted that the effect of the determination was, in substance, to resolve issues that all parties have been unable to resolve for themselves and that the fair result was that there should be no order as to costs (T62). 54ANZ Trustees sought to support its claim for costs in respect of its Second Further Amended Interlocutory Process by a review of the outcome of the particular issues raised by that process. Mr Hall responded that an approach of allocating costs by reference to particular processes, as adopted by ANZ Trustees, was not appropriate, because the hearing was not conducted in that way and the issues were not properly attributed to particular processes, because the respective parties sought different declarations in respect of the same topics, and two different forms of receivership were put to the Court (T61). He also pointed to the difficulty that would arise in an assessment if the Court allocated costs by reason of particular processes, given the overlap between them. It seems to me that this is a case where the complexity of the issues and the extent to which the parties had mixed success requires focus on the results of particular issues, rather than a global costs order. However, it also seems to me preferable to approach the question of costs by reference to the substantive outcome of the issues in dispute, not by reference to the particular processes, as ANZ Trustees does, since the latter approach runs the risk of fragmenting analysis particularly where there was significant duplication of the issues across those processes. 55The first substantial issue in the proceedings was whether ANZ Trustees was obliged to act in accordance with August 2013, December 2013 and February 2014 directions. That issue was raised by paragraphs 1- 2 of the Deed Administrator's Originating Process, by paragraph 2 of ASOF's Interlocutory Process and by paragraphs 1 - 1A and 2B of ANZ Trustees' Second Further Amended Interlocutory Process. ANZ Trustees was successful as to this issue since I held that it was not bound to comply with directions given by ASOF. Notwithstanding the manner in which submissions were put as to the issue of directions, it seems to me that the Deed Administrator was required to seek to have this issue resolved by virtue of the positions advanced by ASOF on the one hand and ANZ Trustees on the other, and the Deed Administrator is correct in characterising it as an issue between those parties. The Deed Administrator should not be required to pay ANZ Trustees' costs of that issue, which are properly ordered against ASOF. Mr Gray, for the Deed Administrators, made further submissions as to the extent to which the parties succeeded in their construction of the Security Trust Deed, which was a matter in issue in determining the validity of the written directions given by ASOF to ANZ Trustees. I do not consider it necessary to address the question of success on particular construction arguments in respect of that issue, given the conclusion that I have reached on other grounds. 56The next issue was whether the administration of the Company pursuant to a deed of company arrangement was an "enforcement" within the meaning of cl 6.1(c) of the Security Trust Deed, raised by paragraphs 1 -1A of ANZ Trustees Second Further Amended Interlocutory Process. ANZ Trustees was successful as to that issue. For the reasons noted above, the Deed Administrator should not be required to pay ANZ Trustees' costs of that issue, which are properly ordered against ASOF. 57The next issue was raised by ASOF's application for orders as to the admission of its proof of debt by the Deed Administrator or, in the alternative, a declaration that ANZ Trustees was obliged to attend and vote at a creditors' meeting in accordance with its instructions (ASOF Interlocutory Process 7 March 2014 [1]). ANZ Trustees conversely sought a declaration that it was and is the creditor entitled to vote at creditors meetings in respect of debts owed in respect of convertible notes issued under the Convertible Notes Trust Deed (ANZ Trustees Second Further Amended Interlocutory Process [2D]). ASOF was unsuccessful in its application and the Deed Administrator does not seek costs against it in this regard. I do not consider it necessary to make a separate order in respect of this issue which overlaps with the issues as to the directions noted above. 58Next, the Deed Administrator sought orders for the appointment of a receiver or receivers (Originating Process [3]-[6]). ANZ Trustees initially sought orders that specified persons, not the Deed Administrator, be appointed as receivers (ANZ Trustees Second Further Amended Interlocutory Process [3]-[4]). Ultimately, ANZ Trustees contended that, if receivers were to be appointed, independent insolvency practitioners who had indicated they would accept that appointment without indemnity should be appointed. The Court appointed a person other than the Deed Administrator as receiver, in circumstances where the Deed Administrator ultimately did not oppose that course and it was only possible because the Deed Administrator had identified persons who would accept that position without indemnity. Receivers proposed by ANZ Trustees could not have been appointed where they required such an indemnity. It cannot be said that any party prevailed as to this issue and there should be no specific order as to the costs of this issue. 59ANZ Trustees sought a declaration that appointment of a receiver in this manner would be an enforcement or an order under s 283HB of the Corporations Act and that ANZ Trustees was entitled to release the Charge upon the appointment of a receiver (ANZ Trustees Second Further Amended Interlocutory Process [5]-[6]). There was ultimately little contest as to this issue and there should be no order as to the costs of it. ANZ Trustees also sought directions in the alternative to the appointment of a receiver (ANZ Trustees' Second Further Amended Interlocutory Process [7]-[10]). This issue did not need to be determined and there should be no order as to the costs of it. ANZ Trustees sought an order that, if the Court made orders for the appointment of receivers, the DOCA be terminated or a corresponding direction (ANZ Trustees' Second Further Amended Interlocutory Process [11]). There was also little contest as to this issue and there should be no order as to the costs of it. 60Various parties raised issues in respect of liens and indemnities, including the Deed Administrator who sought a declaration in respect of a lien claimed by him; ASOF which claimed a lien for money that it lent to the Company; and ANZ Trustees which sought a declaration that it was entitled to indemnity secured by an equitable lien. ANZ Trustees also sought a declaration that ASOF was liable to pay it a specified amount by way of indemnity (Originating Process [7], ANZ Trustees Second Further Amended Interlocutory Process [13]-[14].) These issues have not yet been determined and the costs of them should be reserved. 61ANZ Trustees also contends that ASOF should pay its costs, including any reserved costs and the costs of the trial, referable to the determination of ASOF's Interlocutory Processes dated 7 March 2014 and 7 April 2014 (proposed orders 18 and 21). The costs of these processes are addressed within the costs of the specific issues to which I have referred above. 62Approaching the matter as a whole, it seems to me that ANZ Trustees has had a significant degree of success in respect of several significant issues and should have its costs against ASOF in respect of those issues. I do not consider that the evidence before me allows me to form a view, even as a matter of impression, as to how that success should be reflected in any order that ASOF pay a percentage of ANZ Trustees' costs. It may be that the parties can agree such an order between them, in order to avoid the costs of an assessment by reference to particular issues. If they cannot, then it seems to me that ASOF should be ordered to pay ANZ Trustees' costs of those particular issues, as agreed or as assessed. Costs of ASOF's Cross-Claim 63ANZ Trustees' proposed order 21 provides that ASOF should pay ANZ Trustees' costs, including any reserved costs and the costs of the trial, referable to the determination of ASOF's Cross-Claim dated 7 April 2014. By contrast, order 17 proposed by the Deed Administrator and order 16 proposed by ASOF provides that: "The question of the costs of the Second Defendant's Cross-claim dated 9 April 2014 be reserved, subject to the disposition in full of the Cross-claim on a date to be fixed, as contemplated by order 12 above." 64Mr Hall, for ASOF, accepted that costs of the Cross-Claim should be reserved, if it was to go forward, and that ASOF could not resist an order that it should pay some of the costs of the Cross-Claim if it did not go forward. He submitted that ASOF should only be required to pay a portion of those costs, because ANZ Trustees had not succeeded in respect of some of the defences raised on the Cross-Claim. I do not accept that submission, where it seems to me the proper course is to treat costs as following the overall result of the Cross-Claim, not the outcome of particular arguments in respect of it. An order should be made in the form sought by ANZ Trustees, since I have held above that ASOF's Cross-Claim should be dismissed and, in the ordinary course, costs should follow the event. Orders 65Accordingly, I propose to make the following further orders:

At a glance

Court

Decision date

Before

Source

Judgment (3 paragraphs)

Legislation Cited (5)

Cases Cited (32)

Cited By (9)