New Galaxy Investments Pty Ltd v Thomson & Ors

The issue of reasonable grounds for belief

1. The primary Judge found that NGI neither had a reasonable basis for lodging the caveats nor an honest belief that it had a caveatable interest in the Properties. It is convenient to begin with the first of these findings.
2. The fact that NGI did not have a caveatable interest in the Properties when it lodged the caveats on 21 July 2014 does not establish that it did not have a reasonable basis for a belief that it was entitled to lodge a caveat. The question is whether there was sufficient evidence to justify the primary Judge's finding, bearing in mind that the Vendors and GDI bore the burden of proving the absence of a reasonable basis for any belief held by Ms Gai and Mr Geering on behalf of NGI.
3. It is important to appreciate that the caveats claimed an interest in the Properties by virtue of the payment of part of the purchase price payable under the Second Contracts. The interest, variously described as an equitable charge, lien and a resulting trust, was said to arise pursuant to the Short Form Deed. The caveats also stated that the sum of $6 million was paid in part performance of the Short Form Deed. The caveats purported to prohibit any dealing affecting the estate or interest claimed by the caveator, including any dealings by the Vendors.
4. Ms Gai's affidavit [186] indicates that by the second week of July 2014, in consequence of correspondence that had taken place, she formed the view that GDI had "no intention whatsoever" of honouring the Short Form Deed which was the basis on which NGI had "advanced" $6 million to the Vendors. Accordingly, so Ms Gai stated, she instructed her solicitors to take steps to ensure that NGI's interest was protected. Ms Gai's affidavit does not say whether she specifically instructed Mr Gutierrez to lodge a caveat as the means of protecting NGI's "interest". Mr Gutierrez did not give evidence as to why he considered it appropriate to lodge a caveat on NGI's behalf and what steps, if any, he took to satisfy himself that there was a reasonable basis for NGI claiming a caveatable interest in the Properties on 23 July 2014. Thus there was no evidence as to whether Mr Gutierrez formed the opinion that the payment by NGI gave it an interest in the Properties enforceable against the Vendors and, if so, whether he communicated that opinion to NGI. Similarly, there is no evidence as to whether Mr Gutierrez took any steps to ascertain whether the $6 million was paid pursuant to the Short Form Deed and whether the circumstances in which the payment was made gave NGI an interest in the Properties enforceable against GDI.
5. Ms Gai did not give evidence that she sought or received legal advice from Minter Ellison, Mr Gutierrez of Avondale or even Mr Geering before instructing Mr Gutierrez to protect NGI's "interest". Indeed her affidavit evidence rather suggests, if anything, that she gave those instructions without receiving any advice that there were grounds for NGI to lodge caveats. Mr Gutierrez did not give evidence as to the legal advice, if any, that he gave or the basis for any such advice.
6. There is nothing in the correspondence to suggest otherwise. The letters in evidence from Minter Ellison do not suggest that the firm was asked to advise as to whether NGI had interests in the Properties that would support the lodgement of caveats. Avondale's letter of 18 July 2014 informed GDI's solicitors that caveats had been (or were about to be) lodged. [187] The letter asserted that by virtue of the Short Form Deed, GDI held the Second Contracts on trust for NGI and claimed that the sum of $6 million was held in trust for NGI or, alternatively, that NGI held a first ranking charge over the Properties. But the letter did not state that Mr Gutierrez had given advice that NGI was entitled to the interests it claimed in the Properties.
7. In my view, the primary Judge was correct to conclude that NGI had no reasonable basis for any belief it may have had that it was entitled to lodge caveats prohibiting dealings by the Vendors. Ms Gai never claimed in her evidence that the Vendors knew that NGI was contributing $6 million (or any other sum) to the payment made on exchange of the Second Contracts. Nor is there evidence that NGI received advice that it was entitled to claim an interest in the Properties enforceable against the Vendors. In these circumstances, the primary Judge was right to be satisfied, on the balance of probabilities, that NGI did not have a reasonable basis for any belief that it was entitled to lodge a caveat claiming an interest over the Properties enforceable against the Vendors.
8. GDI's position in relation to the caveats is not identical with that of the Vendors. The primary Judge found that NGI did not pay the $6 million to the Vendors pursuant to the Short Form Deed but did so voluntarily in an attempt to preserve NGI's commercial involvement in what Ms Gai and Mr Geering still thought was a promising commercial project. The voluntary payment, from NGI's perspective, left open the possibility of the Second Contracts being novated to it by GDI. However at the time novation of the Second Contracts was not the only commercial possibility NGI had under consideration.
9. Ms Gai's evidence was that she instructed Mr Gutierrez to protect NGI's interest on the basis that NGI made the payment pursuant to the Short Form Deed. By the time the caveats were lodged, on the primary Judge's findings GDI had accepted NGI's repudiation of the Short Form Deed on 23 May 2014 and, in any event, neither NGI nor GDI wished to be bound by their contractual arrangements after that date. These findings would not necessarily prevent NGI's payment of $6 million to the Vendors in April 2014 having been made pursuant to the Short Form Deed (as the caveats claimed). Nor would they necessarily preclude a finding that Ms Gai, at the time the caveats were lodged, honestly believed on reasonable grounds that NGI was entitled to lodge the caveats. But it is not clear how NGI's claim to have reasonable grounds for believing that it had an interest in the Properties enforceable against GDI can be reconciled with the primary Judge's finding that by the time the caveats were lodged NGI had repudiated the Short Form Deed and that it no longer wished to be bound by the contractual arrangements. There was no evidence that either Ms Gai or Mr Gutierrez considered these questions.
10. The primary Judge found, without referring to Avondale's letter of 18 July 2014, that NGI lodged the caveats "without giving any thought at all to their validity". [188] This finding may have reflected his Honour's rejection of evidence given by Ms Gai and Mr Geering. However, Avondale's letter (upon which NGI's submissions placed no reliance) permits an inference to be drawn that Mr Gutierrez at least directed attention to whether NGI could lodge caveats and, if so, to the form the caveats should take. But in the absence of evidence from Ms Gai or Mr Gutierrez on the point, no inference can be drawn as to the content of any advice that may have been given. [189]
11. There is a more fundamental difficulty confronting NGI. The most that can be inferred from Ms Gai's affidavit and the terms of Avondale's letter is that she instructed Mr Gutierrez that NGI paid $6 million to the Vendors pursuant to the terms of the Short Form Deed. In fact, as the primary Judge found, the payment was not made pursuant to the Short Form Deed. As Ms Gai must have known, NGI made the payment voluntarily in order to avoid the Vendors terminating the Initial Contracts and to preserve NGI's commercial options with respect to the Turramurra Project.
12. As the decided cases show, the fact that a solicitor has given advice to a caveator does not necessarily absolve the caveator from responsibility or rebut an inference that the caveat was lodged without reasonable cause. In the present case the evidence supports a finding that Ms Gai did not give Mr Gutierrez full or accurate instructions as to the reasons NGI paid $6 million to the Vendors. Accordingly, even if Mr Gutierrez gave advice about NGI'S entitlement to lodge caveats forbidding dealings by GDI, he could not have done so on the basis of accurate instructions as to the circumstances in which the payment was made. Accordingly, the evidence establishes that NGI had no reasonable basis for any belief that it was entitled to lodge caveats claiming an interest in the Properties enforceable against GDI.
13. I should record that Mr Einfeld relied on the fact that on 12 March 2014 NGI's then solicitor, Mr Geering, advised both Ms Gai and Ms Lin that caveats should be lodged over the titles to the Properties. [190] The basis for Mr Geering's suggestion was not explained in the evidence. While the suggestion may, perhaps, have some bearing on whether Ms Gai believed several months later that NGI was entitled to lodge a caveat, it can have no bearing on whether NGI had reasonable grounds for lodging the caveats in July 2014.
14. The interests claimed in the caveats arose by reason of events occurring after March 2014, notably the rescission of the Initial Contracts, the entry into the Second Contracts and NGI's payment of $6 million to the Vendors. Whatever motivated Mr Geering to make his suggestion, it could not have been an analysis of NGI's rights in consequence of its payment of $6 million to the Vendors.

Honest belief

1. Since I have concluded that the primary Judge was correct to find that NGI did not have reasonable grounds for lodging the caveats, it is not necessary to consider his Honour's finding that NGI, through Ms Gai and Mr Geering, did not have an honest belief that it was entitled to lodge a caveat. Had it been necessary to address the issue, I would have rejected NGI's argument that the primary Judge denied it procedural fairness in making the finding and I would have been inclined to uphold the primary Judge's finding that the Vendors and GDI had established on the balance of probabilities that NGI did not have an honest belief that it was entitled to lodge a caveat.
2. The Vendors' pleadings, although incomplete, put in issue whether NGI had lodged the caveats without reasonable cause within the meaning of s 74P(1) of the RP Act. The meaning of the expression "without reasonable cause" is (and at the time of the pleading was) well understood to incorporate both subjective and objective elements. It would be an optimistic reading of the pleading, without the benefit of particulars, to confine it to an allegation that NGI lacked an objectively reasonable basis for lodging the caveats.
3. It is fair to say that the Vendors' final written submissions (which were adopted by GDI) lacked clarity on the issue of honest belief. Nonetheless, NGI's written submissions, although very brief, demonstrate that it understood it had to meet an argument that neither Ms Gai nor Mr Geering had an honest belief that NGI was entitled to lodge the caveats. In these circumstances, I think it was open to the primary Judge to consider and make findings on the issue of honest belief.
4. The intervention of Mr Gutierrez, whose independence was not in doubt, makes rather problematic the primary Judge's finding that the caveats were lodged without NGI "giving any thought at all to their validity". While there is no evidence as to the advice given by Mr Gutierrez, it perhaps overstates the position to conclude that NGI gave no thought at all to the validity of the caveats. However, in the absence of evidence from Ms Gai as to the basis of any belief she may have had, or from Mr Gutierrez as to the basis of any advice he may have given, I think the primary Judge's finding was right. Mr Einfeld did not submit that Ms Gai mistakenly believed, contrary to the facts, that NGI paid the $6 million pursuant to the terms of the Short Form Deed or that GDI authorised NGI to make the payment on its behalf. The primary Judge made no such finding. On his Honour's findings, there were discussions at various times between NGI and GDI as to whether the payment should be made to the Vendors as they were demanding. But at the conclusion of the critical meeting on 22 April 2014, Ms Lin told Ms Gai and Mr Geering to go away and if the Vendors wished to terminate the Initial Contracts "let them do it".

The Primary Judgment

1. NGI submitted to the primary Judge that even if NGI had no caveatable interest in the Properties, GDI was unable to complete the sale to MVGDD unless and until it discharged NGI's charge over GDI's equitable interest in the Properties. Thus, so NGI argued, the time impediment to the settlement taking place on 22 July 2014 was not the caveats lodged by NGI, but GDI's failure to discharge NGI's equitable charge.
2. The primary Judge pointed out that if the true impediment to the settlement of the sale of the Properties to MVGDD was NGI's equitable charge over GDI's interest (rather than the caveats), no-one appreciated the fact at the time. [191] His Honour found that as a "matter of practical reality" it was NGI's caveats which, at all relevant times, prevented completion of the sale taking place. Indeed, the "moment the caveats were withdrawn, immediate steps were taken to organise a settlement". [192] In any event, upon completion, the Vendors would have repaid the $6 million and any charge in favour of NGI would have been discharged. [193]

Reasoning

1. Mr Einfeld repeated in this Court the submissions put to the primary Judge. In the course of submissions, he accepted that the Vendors and GDI would establish causation for the purposes of s 74P(1) of the RP Act if the lodgement of the caveats was a cause of the losses they sustained, as distinct from the only cause.
2. As GDI's written submissions succinctly contended, there are two answers to NGI's submissions. First, NGI did not in fact have a charge or lien over GDI's interest by reason of the payment of $6 million to the Vendors. Secondly, even if NGI had such a charge and asserted it prior to completion of the sale to MVGDD, completion in all likelihood would still have taken place. On completion, the Vendors would have repaid the $6 million (there is nothing to suggest that they would have sought to retain that sum on rescission of the Second Contracts). If NGI had a charge over GDI's interest, the moneys would have been paid to GDI. Even in the absence of a charge, GDI has made no claim to retain the $6 million (except by way of set off).

Second Judgment

1. The primary Judge was faced with a series of claims to the Court Fund. His Honour addressed these claims in the Second Judgment. The Vendors claimed to have an equitable charge over the Court Fund enabling them to enforce a judgment or order in their favour. [194] Accordingly, they sought payment from the Court Fund for the damages awarded in their favour against NGI.
2. GDI accepted that it was bound to pay $6 million to NGI, but maintained that it was entitled to set off against that liability its claims against NGI. [195] These claims included the damages and costs awarded against NGI. GDI also submitted that it was necessary to take into account MVGDD's unresolved Cross-Claim against NGI. If MVGDD's Cross-Claim succeeded, NGI might be liable to MVGDD for more than $9 million. [196] In that situation, GDI would be liable to indemnify MVGDD pursuant to cl 2(e) of the Novation Deed. [197]
3. NGI submitted that it was entitled to the whole of the Court Fund because it had paid $6 million to secure the Properties. Since that purpose had failed, it was entitled to be repaid that amount as moneys had and received. [198] Alternatively, NGI contended that it was entitled to a right of indemnity enforceable as a charge over the Court Fund. However, at the hearing on 22 May 2015, NGI did not object to the primary Judge making the order that the Court Fund be frozen pending further order of the Court.
4. Avondale filed a motion on 4 November 2015 seeking orders for payment out of the Court Fund, in priority to any other party to the proceedings of various amounts said to be due to Avondale by NGI on account of costs. This claim was based on a Deed of Charge between NGI as Chargor and Avondale as Chargee dated 6 February 2015 (Deed of Charge).
5. The primary Judge held that it was premature to order the disbursement of the moneys paid into the Court Fund. [199] His Honour accepted that the Vendors had succeeded in their claims, as had GDI and MVGDD. But success in the litigation did not convert them into secured creditors having a charge over the Fund. They were, therefore, unsecured creditors. [200]
6. The primary Judge considered that since the sum of $6 million paid by NGI to the Vendors had come from the Property Fund of which NGI was the trustee, that sum was trust property. However, that conclusion did not assist Avondale. The Deed of Charge between NGI and Avondale made it tolerably clear that any charge in favour of Avondale applied only to assets held by NGI in its own right and did not extend to trust assets. [201] Thus Avondale had a charge over NGI's own assets, but not over the Property Fund. Even if the $6 million had been impressed with a trust, Avondale's charge did not apply to the moneys.
7. In the alternative, Avondale's recourse to the assets of the trust was merely by way of subrogation to the trustee's right of indemnity and of exoneration from liability. It was arguable that Avondale, as a sub-chargee, had priority over other unsecured creditors of NGI such as the Vendors, but it was not necessary to decide that issue. [202]
8. In his Honour's view, the critical issue was what constituted the assets of the Property Fund at the date of the hearing. When NGI paid the $6 million to the Vendors, there was no mutual intention that the Vendors should become trustees of the moneys so paid. Nor did the Vendors ever constitute themselves trustees of those moneys. [203] Equally, GDI could not be regarded as a trustee of the moneys as it had never owed fiduciary duties to NGI and, even if such duties existed, GDI had not breached them. [204]
9. The primary Judge reached the following conclusions: [205] "[148] Once the monies were paid away to the [Vendors], without it [sic] being impressed with a trust, it became the [Vendors']. It was no longer NGI's money or the beneficiaries'. Upon rescission of the original contracts, of course, the [Vendors] were obliged to repay the $6 million to GDI. At this point there existed a chose in action. GDI was indebted to NGI, subject to its right of set-off. [149] GDI accepts that but for the order directing the monies be paid into Court it would otherwise have had an obligation to pay the monies to NGI. It may also be accepted that had that repayment occurred NGI would hold those monies afresh on trust for the beneficiaries subject to its right of indemnity under the terms of the deed. The monies in Court, however, cannot be characterised as an asset of NGI, nor are they any longer impressed with a trust. Avondale is left to enforce its charge according to its terms against other assets etc of NGI. On the other hand, once repatriated to NGI, had that occurred, the monies would, in my view, have in any event been beyond the reach of Avondale for the reasons stated. … [151] In my view the Court as custodian of the funds has a very wide discretion ultimately as to how the funds should be dealt with. It will no doubt take into account a number of factors so as to ensure the funds are properly administered. [152] Those factors include, but are not limited to: the extent to which NGI has a right to indemnity under the deed and/or the general law; whether NGI has any other assets; whether for any reason Avondale should rank ahead of other parties; and whether, if not, all claimants should be dealt with pari passu or on some other basis, to identify just a few. … [155] [B]ecause of the outstanding claims (in particular the cross claim), and set-off yet to be determined, it is clear that the time for payment out has not yet arrived. There are a number of steps to be taken including the appeal in the main proceedings which will or may have an impact on the potential demands on the funds. The competing claims have not yet fully crystallised and hence quantified. [156] The funds in Court should not, indeed cannot, be paid to anyone at present given the various extant issues. When all issues are determined the Court as custodian of the funds will be in a position to ensure they are properly administered, and all issues can be fully and finally determined. [157] For the time being, then, I am of the view no order can or should be made for the payment out of any funds to any party before the Court."
10. His Honour considered that a further reason for not ordering disbursement of the Court Fund was that any order should be stayed pending determination of the appeals.
11. Orders were made by the primary Judge on 21 April 2016. One of the orders made on that date dismissed Avondale's motion.

NGI

1. NGI submitted that the primary Judge should not have ordered the Vendors to pay $6 million into Court. Instead, his Honour should have given effect to NGI's charge or lien by directing the Vendors to pay that sum directly to it. Alternatively, given that NGI paid the sum to the Vendors "upon the premise that NGI would become the purchaser of the Properties", once that purpose failed, the $6 million should have been repaid to NGI on restitutionary principles.
2. NGI, in its written submissions, advanced a further argument based on its claim to have an equitable charge over trust assets to secure its right to be indemnified against expenses incurred in its capacity as trustee of the Property Fund. NGI said that the right of indemnity and the equitable charge that secured it arose as an incident of NGI's role as trustee, by virtue of s 59(4) of the Trustee Act 1925 (NSW) (Trustee Act), [206] equitable principles and the constitution of the Property Fund. NGI contended that while the assets of the Property Fund were diminished by the sum of $6 million paid to the Vendors, the Property Fund has the benefit of a chose in action, being the claim against the Vendors to recover that sum. NGI submits that the Court Fund remains subject to the charge.

GDI

1. GDI submitted that the primary Judge's decision not to order any payment out of the Fund was a discretionary decision and that NGI had shown no basis for interfering with it. More fundamentally, GDI submitted that it is premature for this Court to order any part of the Fund to be paid out. It relied on the primary Judge's finding that NGI is liable to GDI on the latter's claim of misleading and deceptive conduct (not challenged on appeal), and for damages under s 74P(1) of the RP Act. [207] GDI also relied on the primary Judge's order requiring NGI to pay GDI's costs of the proceedings on an indemnity basis. GDI contended that it can set off its entitlement to damages and costs against its (conceded) obligation to repay $6 million to NGI.
2. In any event, so GDI argued, it is premature to order payment out of the Fund because NGI's liability to GDI has not yet been fully quantified. In particular, NGI is liable to GDI for any liability GDI has incurred to MVGDD by reason of the latter's Cross-Claim against GDI. As the primary Judge noted, MVGDD's claim for indemnity against GDI could be for as much as $9.3 million. [208] The quantum of the claim for indemnity therefore depends upon the outcome of MVGDD's unresolved Cross-Claim against NGI.
3. GDI further submitted that Avondale's claim to part of the Fund can only be maintained if NGI is entitled to some part of the Fund. Since it is not possible to determine whether NGI will have any entitlement to the Fund, no part of the Fund can as yet be paid out to Avondale.

Avondale

1. Avondale, NGI's former solicitors, claimed to have a security interest in the Court Fund. Its claim was not precisely quantified, but the Court was told by Mr Corsaro SC, who appeared with Mr Auld for Avondale, that NGI now owed approximately $300,000 in respect of unpaid professional costs (some $700,000 having already been paid).
2. Mr Corsaro described Avondale's claims as depending entirely on whether NGI had a security interest in the Court Fund. For that reason, Mr Corsaro adopted NGI's submissions insofar as they related to NGI's claim to a lien or charge over the Court Fund.
3. On the assumption that NGI can establish such a lien or charge, Avondale challenged the primary Judge's holding that a Deed of Charge, entered into by NGI and Avondale, grants Avondale security only over assets held by NGI in its own right and not in its capacity as trustee. [209] Mr Corsaro submitted that the Deed of Charge, on its proper construction, conferred a charge over assets held by NGI in its own right and in its capacity as trustee of the Property Fund.
4. Mr Corsaro further submitted that Avondale was entitled to priority over any secured interest NGI had in the Court Fund. This was because the Deed of Charge bound NGI and necessarily postponed any interest it has in the Court Fund to Avondale's charge.

MVGDD

1. MVGDD's counsel, Mr Allen, disclaimed any suggestion that MVGDD had a security interest in the Court Fund. He said that MVGDD wished to be heard on the appeals because NGI's Amended Notice of Appeal sought an order that MVGDD's Cross-Claim be dismissed. However, as was pointed out in argument, no submissions were advanced in support of that relief.
2. Mr Allen submitted that, assuming MVGDD's Cross-Claim remained on foot, MVGDD had an interest in supporting the primary Judge's order that the Court Fund should remain in Court because MVGDD had an order for indemnity costs in its favour.

Reasoning

1. For the reasons I have given:

• NGI's payment of $6 million to the Vendors discharged GDI's obligation to pay that amount to the Vendors on exchange of the Second Contracts;
• the payment by NGI did not create an interest in it by way of a lien or charge over the interests of the Vendors or GDI in the Properties;
• upon rescission of the Second Contracts, the Vendors were bound to repay the $6 million to GDI; and
• upon receipt of the sum of $6 million from the Vendors, GDI came under a personal obligation to repay that amount to NGI.

NGI's interest in the Court Fund

1. It follows from these conclusions that, in the absence of any other contention, NGI does not have a lien or charge over the Court Fund (comprising the $6 million paid into Court by the Vendors). NGI's written submissions contended that NGI had a lien or charge over the Court Fund by reason of its right of indemnity against liabilities incurred in the discharge of its functions as a trustee. Mr Einfeld did not develop the argument in oral submissions and, in any event, I do not think that it advances NGI's case.
2. It is well established that a trustee who in discharge of the trust duties incurs liabilities is entitled to be indemnified against those liabilities from trust assets. [210] For the purpose of enforcing the indemnity, the trustee has a charge or lien over the trust assets. The charge or lien amounts to a proprietary interest in the trust property [211] and, in the case of land, will support a caveat. [212] However, as the primary Judge pointed out, NGI's right of indemnity is enforceable only against the assets of the trust. [213] NGI did not have a lien or charge over the Properties and would not have had a charge over the $6 million had that sum been paid by the Vendors to GDI upon rescission of the Second Contracts. There is no basis for concluding that the Court Fund constitutes an asset of the trust of which NGI is the trustee. Thus NGI's right of indemnity is not secured by a charge or lien over the Court Fund.
3. As between NGI and GDI, the former may have the better claim to receive a payment out of the Court Fund. But this will depend on the extent of NGI's liabilities to GDI and whether they should be set off against GDI's liability to NGI to repay the $6 million. These matters have not yet been resolved because they require determination of MVGDD's claim against NGI (in respect of which GDI has provided the indemnity to MVGDD).

Avondale's interest in the Court Fund

1. Since NGI does not have a charge or lien over the Court Fund, Avondale (as it conceded) has no claim to priority over other claimants to the Fund based on the Deed of Charge. This is subject to the qualification that, as between NGI and Avondale, the latter claims priority over any entitlement NGI may have to be paid moneys from the Court Fund. At this stage, it is unclear whether NGI, whether in its capacity as trustee of the Property Fund or otherwise, will be able to claim any moneys from the Court Fund. If, for example, GDI is entitled to offset claims worth more than $6 million against NGI's entitlement to be paid that sum by GDI, any claim that NGI has to moneys in the Court Fund will be of no practical value.
2. As has been seen, the primary Judge dismissed Avondale's motion seeking an order for immediate payment of costs due to it by NGI out of the Court Fund. His Honour did so on the ground that Avondale could not establish that it had any interest in the sum of $6 million, even assuming it was trust property of which NGI was the trustee. That conclusion followed from his Honour's construction of the Deed of Charge between NGI and Avondale, which limited the charge to property held by NGI in its own right.
3. The primary Judge does not seem to have given consideration to whether the assets held by NGI "in its own right" included NGI's right of indemnity against the Property Fund in respect of liabilities incurred in its capacity as trustee. In my view, the primary Judge was correct to construe the Deed of Charge as applying only to interests held by NGI "in its own right". However, those interests include its right of indemnity.
4. The Deed of Charge defines the "Chargor" as NGI both in its capacity as trustee and in its own capacity. Recital C to the Deed of Charge records that the Chargor has agreed to grant to the Chargee (Avondale) the charge for the purpose of securing to the Chargee any moneys owing or payable to the Chargee on any account whatsoever.
5. Clause 4 of the Deed of Charge obliges the Chargor to pay in full the "Moneys Secured". This expression is defined to mean all money for which the Chargor may become indebted on any account whatsoever. Since the "Chargor" is defined to include NGI in its capacity as trustee of the Property Fund, it is clear enough that the Deed contemplates that NGI will incur indebtedness to Avondale in NGI's capacity as trustee of the Property Fund. This is hardly surprising, given (as I infer) that both Avondale and NGI were aware when the Deed of Charge was executed that Avondale was providing legal services to NGI in its capacity as trustee of the Property Fund.
6. This conclusion does not mean, however, that if NGI incurs legal fees in its capacity as trustee of the Property Fund, Avondale can enforce its charge directly against the assets of the trust. Clause 2.1 of the Deed of Charge creates a fixed charge in Avondale's favour over "all of the Assets and Undertaking of the Chargor". The expression "Assets and Undertaking" is defined to mean "all assets and undertaking of the Chargor whatsoever". This language is apt to include NGI's right of indemnity from the Property Fund which arises by virtue of its role as trustee. I do not think, however, that the language extends to the trust assets. NGI holds the legal title to these assets, but they are beneficially held by third parties. Clearer language would be required if the Deed of Charge is to be read as entitling Avondale to a security interest directly enforceable against the assets of the trust.
7. For present purposes, I do not think that the correct construction of the Deed of Charge matters. The relief sought by Avondale in the notice of motion dismissed by the primary Judge was the immediate payment out of moneys from the Court Fund. As the primary Judge concluded, the Court Fund does not comprise moneys held in trust for the Property Fund. NGI may ultimately be entitled to claim moneys held in the Court Fund but, if so, its entitlement will rest on its personal claim against GDI. It is unclear as yet whether NGI will be able to obtain any moneys from the Court Fund, if only because of the set offs claimed by GDI. Even if Avondale's charge applies to any portion of the Court Fund ultimately found to be payable to NGI, the Deed of Charge does not entitle Avondale to an immediate payment out of the Court Fund.
8. Avondale's Notice of Appeal seeks, among other orders, what amounts to a declaration that if the Court orders moneys to be paid out of the Court Fund to NGI, those moneys are subject to Avondale's charge. This order was not sought in Avondale's motion and was not the subject of submissions. The order should not be made.
9. Avondale's appeal should therefore be dismissed.

Conclusion

1. None of the claimants to the Court Fund has established that it or they are entitled to an order for the payment of moneys from that Fund. Nor has any party demonstrated any appellable error in his Honour's decision to order the sum of $6 million comprising the Court Fund to be frozen until further order.
2. There are a number of issues that remain to be resolved in the proceedings. In particular, MVGDD's Cross-Claim against NGI has not been determined. As has been noted, the outcome of MVGDD's Cross-Claim may have significant consequences for GDI because of the indemnity it provided to MVGDD.
3. Issues also arise as to the extent to which GDI is entitled against NGI to set off any entitlements it has under judgments in its favour and claims not yet determined. At present, it is not clear how these competing claims will be affected by the unresolved Cross-Claim and the quantification of costs orders made in the proceedings. These matters should be remitted to the primary Judge for determination in the light of this judgment and the outcome of the pending Cross-Claims.

Second Judgment

1. The primary Judge described his findings on NGI's claim to a caveatable interest and the abandonment of the Short Form Deed as "stringent". [214] The reference to the findings concerning the Short Form Deed is to his Honour's conclusions (not challenged on appeal) that NGI's contentions were "implausibl[e]", "farfetched" and "speculative". [215] His Honour further stated that these findings "were provoked by what [he] saw to be a detailed appreciation of the facts". [216]
2. The primary Judge continued as follows: [217] "[39] In my view, NGI did not have a reasonable basis for lodging and maintaining those caveats on the facts and the law as I saw it. Likewise, I do not consider, given my findings, that there was any reasonable argument available to NGI in relation to the Short Form Deed. NGI knew much more about its own case than its opponents and, for that matter, the Court. Any interlocutory process to have the caveats removed, although one was mooted by MVGDD, was in my view not a satisfactory way to proceed. That is why, in all the circumstances, given the plight of the [Vendors], I regarded an expedited final hearing as essential. That was not capable of being achieved in its most desirable form because the evidence took longer than expected and the court had to adjourn for submissions. Common sense generally in circumstances such as these points to a quick final hearing. Hence I was disinclined to encourage an interlocutory application. [40] There was in my view plenty of time for NGI to carefully and reasonably consider its position. Apart from the proceedings there were at least two mediations, and yet NGI steadfastly clung to its contractual arguments, its caveats, and its demand for specific performance. [41] In all the circumstances I am of the view that NGI unreasonably lodged and persisted in asserting it had a tenable argument concerning the caveats. In addition, its contractual claim was hopeless bearing in mind the express terms of Ms Gai's email of 23 May 2014. In addition, it never did provide in any form a reasonable argument in response to MVGDD's argument on special condition 48. In each of those respects it persisted in arguments which were without merit and in that sense behaved unreasonably. [42] To the extent it is necessary to do, I agree with Brereton J in Arkbay Investments at [32] that a party found to have breached s 74P of the Real Property Act would, perhaps, for the reasons above, attract an order against it for indemnity costs. [43] It follows that the [Vendors], GDI and MVGDD are, in my view, entitled to their costs of the entire proceedings on an indemnity basis."

NGI's submissions

1. NGI challenged the primary Judge's indemnity costs order. Mr Einfeld submitted that his Honour should not have followed the decision of Brereton J in Arkbay Investments Pty Ltd (In Liq) v Echelon Property Management Pty Ltd (No 2) (Arkbay Investments). [218] In addition, Mr Einfeld challenged the primary Judge's assessment of the arguments advanced by NGI.

Reasoning

1. Mr Einfeld interpreted Arkbay Investments as standing for the proposition that a caveator who lodges a caveat without reasonable cause inevitably will be required to pay costs on an indemnity basis. It is clear, however, that Brereton J did not apply any such principle. His Honour took into account the unusual circumstances in which the caveator took the "bold step" of lodging a caveat, including the failure of the caveator to take reasonable steps to ascertain that the critical document was a forgery. [219] In any event, the primary Judge's decision on costs was not dependent on Arkbay Investments, but rested on other grounds.
2. Mr Einfeld's challenge to the primary Judge's critique of NGI's conduct of the case is difficult if not impossible to evaluate because it relates primarily to findings that have not been the subject of NGI's appeal. His Honour's award of indemnity costs was based on his overall assessment of the conduct of NGI's case. There is no basis for this Court to overturn his Honour's assessment.

Orders

1. It is not clear that NGI is entitled to appeal as of right against the orders made by the primary Judge. While his Honour entered judgment in favour of the Vendors against NGI in the sum of $796,026.41, the various claims (including NGI's) to the Court Fund have not been resolved.
2. The primary Judge dismissed NGI's Cross-Claim, but did so without prejudice to the claim of any party to the Court Fund. There are also unresolved issues to the extent that any claim that NGI may have to the Court Fund is offset by claims that other parties have against it.
3. In these circumstances, the appropriate orders on NGI's appeal are as follows:
4. To the extent that NGI requires leave to appeal from the decision of the primary Judge, grant such leave.
5. Dismiss the appeal.
6. Order NGI to pay the costs of the appeal of the First to Tenth Respondents (the Vendors), the Eleventh Respondent (GDI) and the Twelfth Respondent (MVGDD).
7. It is difficult to see how Avondale could have succeeded in its claim before the primary Judge to be entitled to an immediate payment from the Court Fund, even if its construction of the Deed of Charge was correct. Accordingly, I propose the following orders on Avondale's application for leave to appeal:
8. Application for leave to appeal dismissed.
9. The applicant (Avondale) to pay the costs of the application of the First to Tenth Respondents (the Vendors), the Eleventh Respondent (GDI), the Twelfth Respondent (MVGDD) and the Thirteenth Respondent (NGI).
10. As I have noted, there are issues concerning MVGDD's Cross-Claim, the competing claims to the Court Fund and set-offs that remain to be resolved. These issues will need to be disposed of in the Equity Division proceedings, no doubt in conformity with these reasons for judgment. The question of whether the stay orders currently in place should be lifted should also be a matter for the Equity Division.

Endnotes

1. [2015] NSWSC 1176 ("Thomson").
2. (2007) 35 WAR 27; [2007] WASCA 179 at [69], discussing s 137(1) of the Transfer of Land Act 1893 (WA).
3. The provisions are set out by Sackville AJA at [146].
4. Real Property (Caveats) Amendment Act 1986 (NSW), which commenced in 1988.
5. (1990) 21 NSWLR 459 (Kirby P, Clarke JA and Waddell AJA).
6. (1963) 80 WN (NSW) 1463.
7. Being the language of Clarke JA in Beca Developments at 470C-D.
8. [1981] 1 NSWLR 106.
9. Bedford Properties at 108C-D.
10. Beca Developments at 475A-B.
11. Brogue Tableau at [82]-[84].
12. (1971) 125 CLR 546 at 552.
13. Real Property Amendment Act 1996 (NSW), Sch 1[19], commencing on 1 February 1997.
14. (2001) 204 CLR 461; [2001] HCA 15 at [99].
15. [2013] NSWCA 280; 17 BPR 32,733 at [52] (Barrett JA, Emmett and Gleeson JJA agreeing).
16. [2007] NSWSC 121 at [195].
17. See Morgan v John Fairfax & Sons Ltd (1991) 23 NSWLR 374 at 382G (Hunt AJA).
18. Thomson at [8].
19. Thomson at [7].
20. Thomson at [20].
21. Thomson at [27].
22. Thomson at [28].
23. The deed refers to 17 March 2013, but this is clearly an error.
24. Thomson at [42].
25. Thomson at [46].
26. Thomson at [300]-[301].
27. Thomson at [299] and [302].
28. Thomson at [276].
29. Thomson at [281].
30. Thomson at [378]-[380].
31. Thomson at [386].
32. (1959) 101 CLR 298.
33. Thomson at [370].
34. Thomson at [385].
35. Thomson at [385].
36. Thomson at [391].
37. Thomson at [394].
38. See [48] above.
39. The terms are set out at [200] and [201] below.
40. Mahendran at [54].
41. (1868) LR 4 Ch App 101.
42. Aberaman at 109-110.
43. Aberaman at 110.
44. Wythes v Lee (1855) 3 Drew 396; 61 ER 954; Rose v Watson (1864) 10 HLC 672; 11 ER 1187.
45. Thomson at [349].
46. [1902] 1 Ch 835 at 838 (Vaughan Williams LJ).
47. (1872) LR 5 HL 321.
48. Shaw at 338.
49. Shaw at 357-358.
50. (1864) 10 HLC 672; 11 ER 1187.
51. Thomson at [366] and [361] respectively.
52. Thomson at [236].
53. The circumstances in which NGI paid the $6 million to the Vendors' agent are detailed in the judgment of Sackville AJA at [179].
54. The full particulars of the estate or interest in the land claimed by the caveator, and the facts by which the caveator claimed its estate or interest in the land, are set out in the judgment of Sackville AJA at [200]-[201].
55. Sackville AJA at [257].
56. Meagher, Gummow & Lehane, Equity Doctrines & Remedies, 5th Ed, (2015), LexisNexis Butterworths, at [9-045]-[9-070].
57. Thurstan v Nottingham Permanent Benefit Building Society [1902] 1 Ch 1 at 9-10 (Vaughan Williams LJ) and at 13 (Romer LJ): affirmed on appeal: Nottingham Permanent Benefit Building Society v Thurstan [1903] AC 6 at 10 (Earl of Halsbury and Lord Shand).
58. Thurstan v Nottingham Permanent Benefit Building Society [1902] 1 Ch 1 at 10 (Vaughan Williams LJ)
59. Evandale Estates Pty Ltd v Keck [1963] VR 647 at 652.
60. Banque Financiere de la Cite v Parc (Battersea) Ltd [1999] 1 AC 221 at 236F (Lord Hoffmann); Halifax plc v Omar [2002] EWCA Civ 121; [2002] P. & C. R. 26,377 at [84] (Jonathan Parker LJ).
61. Halifax plc v Omar [2002] EWCA Civ 121; [2002] P. & C. R. 26,377 at [84] (Jonathan Parker LJ); Evandale Estates Pty Ltd v Keck [1963] VR 647 at 652 (Hudson J).
62. Paul v Speirway Ltd [1976] Ch 220 (Oliver LJ).
63. Boodle Hatfield & Co v British Films Ltd (1986) NLJ 117; [1986] PCC 176 (Nicholls J).
64. Cid v Cortes (1987) 4 BPR 97,276 (Young J).
65. [2015] NSWSC 1176 at [390].
66. NGI has not applied for leave to appeal. On one view, it requires leave because the decision of the primary Judge was interlocutory: see at [395] below.
67. Thomson v Golden Destiny Investments Pty Ltd [2015] NSWSC 1176 (Primary Judgment) at [394], [644]-[649]. As will be seen, the Vendors were the Plaintiffs in the Equity Division proceedings, while GDI filed a cross-claim seeking compensation orders against NGI.
68. Thomson v Golden Destiny Investments Pty Ltd (No 2) [2015] NSWSC 1929 (Second Judgment) at [43]. The Second Judgment also dealt with various claims to the Court Fund.
69. Neither the Appeal Books nor the Court file record that Avondale formally filed a notice of motion in the Equity Division proceedings. However, an affidavit read in support of Avondale's claim for relief set out the orders it sought in the proceedings. (The Court file includes an unstamped notice of motion to the same effect.)
70. Avondale does not appear to have filed an application for leave to appeal. However, the document styled "Amended Notice of Appeal" seeks an order that leave to appeal be granted.
71. Olsson v Dyson (1969) 120 CLR 365; [1969] HCA 3 at 388 (Windeyer J); ALH Group Property Holdings Pty Ltd v Chief Commissioner of State Revenue (NSW) (2012) 245 CLR 338; [2012] HCA 6 (ALH Group) at [12]-[13] (French CJ, Crennan, Kiefel and Bell JJ); Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473; [1999] NSWCA 323 at [78] per curiam; Leveraged Equities Ltd v Goodridge (2011) 191 FCR 71; [2011] FCAFC 3 at [300]-[301] (Jacobson J, Finkelstein and Stone JJ agreeing).
72. ALH Group at [27]-[29]. The rescission or discharge of obligations may be express or implied: ALH Group at [31]-[32].
73. Hence the reference by Dixon J in Vickery v Woods (1952) 85 CLR 336; [1952] HCA 7 at 345 to novation requiring a "tripartite agreement involving a rescission of the [existing] contract".
74. Olsson v Dyson at 338.
75. Pacific Brands Sport and Leisure Pty Ltd v Underworks Pty Ltd (2006) 149 FCR 395; [2006] FCAFC 40 at [32] (Finn and Sundberg JJ), approved in Leveraged Equities Ltd v Goodridge at [303]-[312].
76. Primary Judgment at [488]-[489].
77. Primary Judgment at [133].
78. Primary Judgment at [136].
79. Primary Judgment at [34].
80. Primary Judgment at [169].
81. Primary Judgment at [199].
82. Primary Judgment at [200].
83. Primary Judgment at [206].
84. Primary Judgment at [233].
85. Primary Judgment at [238].
86. Reproduced at [177] above.
87. Second Judgment at [5].
88. Primary Judgment at [273].
89. Primary Judgment at [294]-[295].
90. Primary Judgment at [418], [436].
91. Primary Judgment at [424].
92. Primary Judgment at [304].
93. Primary Judgment at [10]-[13].
94. Primary Judgment at [336].
95. Primary Judgment at [394].
96. Primary Judgment at [409].
97. Primary Judgment at [652].
98. Second Judgment at [124].
99. Second Judgment at [148]-[149].
100. Second Judgment at [132].
101. Second Judgment at [41]-[43].
102. Second Judgment at [160]-[162].
103. Primary Judgment at [103]-[104].
104. Primary Judgment at [23], [108].
105. Primary Judgment at [109].
106. Primary Judgment at [112].
107. Primary Judgment at [234]-[237].
108. Primary Judgment at [323].
109. Primary Judgment at [324].
110. Primary Judgment at [351].
111. Primary Judgment at [359].
112. Primary Judgment at [360].
113. Primary Judgment at [365]-[366].
114. Primary Judgment at [367].
115. Primary Judgment at [368].
116. Primary Judgment at [304].
117. See at [212] above.
118. Second Judgment at [6].
119. See Short Form Deed cl 1.2(g), reproduced at [160] above.
120. Short Form Deed cl 2.1.
121. Primary Judgment at [236].
122. Primary Judgment at [237].
123. See at [175] above.
124. [1990] FCA 54 at [13]-[14].
125. [1990] FCA 54 at [19], citing Ex parte Lord [1985] 2 Qd R 198 at 202 (Williams J). See also Woodman & Nettle: The Torrens System in New South Wales (Loose Leaf) at [74F 100 (26), (27)].
126. [1990] FCA 54 at [17].
127. (1983) 149 CLR 639; [1983] HCA 7.
128. Hewett v Court at 647 (Gibbs CJ).
129. Hewett v Court at 645-646.
130. (1923) 34 CLR 174; [1923] HCA 64 at 185.
131. (1808) 15 Ves 329 at 340; 33 ER 778 at 782.
132. (1864) 10 HLC 672 at 684; 11 ER 1187 at 1192.
133. Hewett v Court at 649.
134. Hewett v Court at 650. Deane J rejected the suggestion that an equitable lien can only arise under a contract of which specific performance would be granted: Hewett v Court at 664. Murphy J agreed: at 651.
135. Hewett v Court at 663.
136. Hewett v Court at 663.
137. Hewett v Court at 688.
138. Hewett v Court at 668.
139. (2014) 252 CLR 307; [2014] HCA 15.
140. Atco Controls at [22].
141. Atco Controls at [13]. One difference between an equitable lien over land and a mortgage is that a mortgage is created by contract, whereas an equitable lien arises by operation of law: Re Bond Worth Ltd [1980] Ch 228 at 251 (Slade J).
142. Atco Controls at [14].
143. Atco Controls at [31].
144. Atco Controls at [32], referring to Comcare v PVYW (2013) 250 CLR 246; [2013] HCA 41 at [15]-[16] (French CJ, Hayne, Crennan and Kiefel JJ).
145. See Quinn v Leathem [1901] AC 495 at 506 (Earl of Halsbury LC); Arinson Pty Ltd v City of Canada Bay Council [2015] NSWCA 199; 208 LGERA 418 at [65] (Campbell AJA, Basten and Meagher JJA agreeing).
146. Mr Geering had sent novation notices to the Vendors' solicitors in March 2014, purportedly pursuant to the terms of the Initial Contracts. The Vendors disputed the validity of the notices and no novation of the Initial Contracts to NGI ever occurred.
147. Rose v Watson at 1192, cited by Gibbs CJ in Hewett v Court at 645.
148. (1886) 34 Ch D 234 (Falcke). See K Mason, JW Carter and GJ Tolhurst, Mason & Carter's Restitution Law in Australia, (3rd ed 2016, LexisNexis Butterworths) at 835-840; J Edelman and E Bant, Unjust Enrichment, (2nd ed 2016, Hart Publishing) at 72-73.
149. Falcke at 241.
150. Falcke at 248. See also at 253 (Fry LJ).
151. (1908) 7 CLR 352; [1908] HCA 13 at 364 (Barton and Isaacs JJ agreeing).
152. [1995] WASC 484 (Lavery).
153. (2008) 232 CLR 635; [2008] HCA 27.
154. Lumbers at [80] (Gummow, Hayne, Crennan and Kiefel JJ). The exceptions include salvage in maritime law and some cases of necessitous intervention.
155. (1987) 162 CLR 221; [1987] HCA 5; see Lumbers at [86], [91]. As to the need for a request, express or implied, see O3 Capital Pty Ltd v WY Properties Pty Ltd (2016) 49 WAR 517; [2016] WASCA 82 at [71]-[78] per curiam.
156. Atco Controls at [48].
157. Chattey v Farndale Holdings Inc (1998) 75 P & CR 298.
158. Chattey v Farndale Holdings Inc at 304 (Morritt LJ, Kennedy and Potter LJJ agreeing).
159. Chattey v Farndale Holdings Inc at 305. For a similar case referred to by Mr Einfeld, see Middleton v Magnay (1864) 2 Hem & M 233; 71 ER 452 (Wood V-C); see also Levy v Stogdon [1898] 1 Ch 478 (Stirling J), affirmed [1899] 1 Ch 5 (CA), also relied on by Mr Einfeld, involved a lien created by the payment of a deposit in respect of the purchase of personalty. The party seeking to enforce the lien was the ultimate assignee of the purchaser's interest.
160. (1872) LR 5 HL 321 at 349-350.
161. [1954] VLR 567.
162. [1954] VLR 567 at 574-575.
163. McDonald v Isaac Construction Co Ltd [1995] 3 NZLR 612 at 616-618, citing ICF Spry, The Principles of Equitable Remedies, (3rd ed 1984, Lawbook Co,) at 80 (see now ICF Spry, Principles of Equitable Remedies, (9th ed 2014, Lawbook Co) at 89). See also Wilkinson v Clements (1872) LR 8 Ch App 96.
164. (1868) LR 4 Ch App 101.
165. Aberaman Ironworks v Wickens at 110.
166. Primary Judgment at [367].
167. For example, the equitable lien claimed by the assignee of a lease, where the assignee pays a deposit and subsequently rescinds the assignment by reason of the assignor's misrepresentations: Ryu v Lee (1996) 7 BPR 97,588.
168. Second Judgment at [6].
169. Clause 19.2.1 was subject to SC 48(vii), which stated that if the Second Contracts were novated, GDI agreed that the deposit of $1.51 million paid pursuant to the Second Contracts would become part of the purchase price under the novated contracts. The Second Contracts gave GDI as the purchaser the right to require the Vendors to novate the Contracts by new contracts with a "New Purchaser" and to rescind the Second Contracts (SC 48(i)).
170. Primary Judgment at [370].
171. Primary Judgment at [389], [391].
172. Primary Judgment at [392].
173. Primary Judgment at [393]-[394].
174. Primary Judgment at [394].
175. See Beca Developments Pty Ltd v Idameneo (No 92) Pty Ltd (1990) 21 NSWLR 459 at 462-463 (Kirby P), at 474 (Clarke JA).
176. [2013] NSWCA 280; 17 BPR 32,733 at [52].
177. [2007] NSWSC 121 at [195].
178. [1993] 1 VR 589.
179. [1993] 1 VR 589 at 600-601, referring to s 118 of the Transfer of Land Act 1958 (Vic).
180. See Bedford Properties Pty Ltd v Surgo Pty Ltd [1981] 1 NSWLR 106 at 107 (Wootten J).
181. Bolton v Excell (Supreme Court (WA), 22 February 1993, unrep) at 12-13 (Owen J, Ipp J agreeing), cited in Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd (2007) 35 WAR 27; [2007] WASCA 179 (Brogue Tableau) at [92] (Buss JA).
182. Bolton v Excell at 14 (Owen J).
183. Lee v Ross (No 2) [2003] NSWSC 507; 11 BPR 20,991 at [33]-[38] (Palmer J).
184. Brogue Tableau at [98].
185. Brogue Tableau at [100].
186. Extracted at [322] above.
187. See at [198] above.
188. Primary Judgment at [394].
189. Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419 (Handley JA).
190. See at [164] above.
191. Primary Judgment at [377].
192. Primary Judgment at [379].
193. Primary Judgment at [381].
194. Second Judgment at [47].
195. Second Judgment at [118].
196. Second Judgment at [55]-[56].
197. Reproduced at [193].
198. Second Judgment at [63].
199. Second Judgment at [123].
200. Second Judgment at [124]-[126].
201. Second Judgment at [129]-[132].
202. Second Judgment at [133].
203. Second Judgment at [147].
204. Second Judgment at [147]; Primary Judgment at [529].
205. Second Judgment at [148]-[149], [155]-[157].
206. Section 59(4) of the Trustee Act provides as follows: "A trustee may reimburse himself or herself, or pay or discharge out of the trust property all expenses incurred in or about execution of the trustee's trusts or powers."
207. Primary Judgment at [503]-[504]. The primary Judge said that on his understanding the damages in respect of each cause of action would be identical.
208. Second Judgment at [9].
209. Second Judgment at [132].
210. Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360; [1979] HCA 61 at 367 (Stephen, Mason, Aickin, Williams JJ).
211. Octavo Investments Pty Ltd v Knight at 367, 369-370; Chief Commissioner of Stamp Duties for New South Wales v Buckle (1998) 192 CLR 226; [1998] HCA 4 at 245-246 per curiam.
212. Agusta Pty Ltd v Provident Capital Ltd [2012] NSWCA 26; 16 BPR 30,397 at [101] (Sackville AJA, Campbell JA agreeing).
213. Second Judgment at [134]-[136].
214. Second Judgment at [37].
215. Primary Judgment at [427], [435].
216. Second Judgment at [38].
217. Second Judgment at [39]-[43].
218. [2014] NSWSC 572.
219. Arkbay Investments at [16]-[17]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 June 2017