Perpetual Trustee Company Ltd v Milanex Pty Ltd

Judgment 1CAMPBELL JA: I agree with Macfarlan JA. 2MACFARLAN JA: The Court gave judgment in this matter on 28 November 2011 (the "Principal Judgment"). Subsequently, the parties reached agreement upon the amount of interest to be awarded to Perpetual (see order (2) made on that day). 3Within 14 days of the date of the judgment each party filed a Notice of Motion seeking varied or supplemental orders. In conformity with directions, the parties thereafter lodged written submissions in relation to those motions. I deal with the orders sought as follows.

PERPETUAL'S NOTICE OF MOTION FILED ON 7 DECEMBER 2011 4Milanex consents to the first order that Perpetual seeks, namely, that order (1) made on 28 November 2011 be varied to add the words "and cross-appeal allowed in part" at the end. The absence of a reference to the cross-appeal in order (1) made on 28 November 2011 was an oversight which should now be corrected under the "slip rule" (r 36.17 of the Uniform Civil Procedure Rules). 5Perpetual next seeks an order that order (6) made on 28 November 2011 be varied to add the words "and the cross-appeal" at the end. Milanex accepts that such a variation would conform with paragraph [123] of the Principal Judgment but submits that if it remains open to Milanex to be heard on the issue of the costs of the cross-appeal, the appropriate order is that each party pay its own costs of the cross-appeal. For reasons to the effect of those given in paragraph [123] of the principal judgment, I consider that Milanex should pay the costs of the cross-appeal and that the order sought by Perpetual should be made. 6Perpetual next seeks an order that Milanex indemnify it in respect of Mr Kotevski's costs in the proceedings below which Perpetual was ordered to pay. Milanex accepts that subject to excluding that part of those costs that Milanex submits related to a positive case that Perpetual conducted against Mr Kotevski, such an order should be made to give effect to the reasoning in paragraphs [118] and [121] of the Principal Judgment. 7In my view the order now sought by Perpetual should be made because the Court's omission to make it was an oversight. I do not consider that it should be qualified in the manner proposed by Milanex. Milanex submits that the case conducted by Perpetual against Mr Kotevski went beyond that which was necessary to propound. Milanex instances cross-examination of Mr Kotevski to the effect that there was an arrangement between him and Mr Micic about the obtaining of the loan, and written submissions to the same effect. However, as held in the Principal Judgment at [63], Perpetual relied upon Milanex's misleading and deceptive conduct in making the subject loan to Mr Kotevski. For Perpetual to establish that it suffered loss as a result of such conduct, it needed to demonstrate that the loan it made to Mr Kotevski was largely irrecoverable. It did so by proceeding against Mr Kotevski. It was reasonable for Perpetual to propound against Mr Kotevski what Milanex describes as Perpetual's positive case. This would have enured to Milanex's advantage if it had been successful. The costs incurred by Perpetual in propounding it were a consequence of Milanex's misleading and deceptive conduct and thus should be recoverable from Milanex.