Plaintiff by counterclaim v Defendants to counterclaim

1 This is an application by the Defendants by Counterclaim following publication of reasons in this proceeding on 20 July 2018 in which they were successful on all issues.[1] They now seek their costs. In this respect, there are two issues to be determined by the Court. They are:

(a) What orders should be made in respect of the proceeding.

(b) The orders sought by (amended) summons dated 17 September 2018 in aid of an application for the making of a non-party costs order.

2 The HGR parties (Defendants by Counterclaim) seek an order that Wilson (Plaintiff by Counterclaim) pay their costs of and incidental to the proceeding on an indemnity basis or alternatively on a standard basis to 3 May 2017 and on an indemnity basis thereafter, and the making of the orders sought by amended summons in connection with an application for a non-party costs order. The significance of 3 May 2017 is that it was the date until which a Calderbank offer made by the HGR parties by letter from their solicitors dated 19 April 2017 ("the Calderbank offer") was open for acceptance.[2]

3 Although the question of whether a non-party costs order should be made can be determined in the proceeding after the making of a costs order as between the parties to the proceeding,[3] I will, as indicated in the reasons which follow, make final orders when both of these two outstanding costs issues are determined.

4 The starting point is, of course, the provisions of s 24(1) of the Supreme Court Act 1986, which confers a very broad and general discretion on the Court, in the following terms:

Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of an incidental to all matters in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid.

5 This very broad and general discretion must be exercised in accordance with Order 63 of the Supreme Court (General Civil Procedure) Rules 2015. Under r 63.31, the usual order as to costs is an award of costs to the successful party on a standard basis. It is, therefore, incumbent on the HGR parties to demonstrate a basis for the exercise of the Court's discretion to make special costs orders in this case.

6 One of the classic statements with respect to factors which may enliven the exercise of this discretion as sought by the HGR parties is contained in the judgment of Sheppard J in Colgate Palmolive Company v Cussons Pty Ltd, where his Honour said:[4]

[I]t is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes [1989] FCA 540; (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp (supra)); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Keng (unreported, Court of Appeal, NSW, Kirby P, Priestly JA, Cripps JA, No 40744/1992, 27 September 1993) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records (supra)). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.

7 More particularly, in Ugly Tribe Co Pty Ltd v Sikola, Harper J said:[5]

In seeking costs on an indemnity basis, the first defendant is asking the Court to depart from its usual course: Spencer v Dowling.[6] Special circumstances must be present to justify such a departure: Australian Electoral Commission v Towney (No. 2).[7] These include:

(i) The making of an allegation, known to be false, that the opposite party is guilty of fraud: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202; (1988) 81 ALR 397.

(ii) The making of an irrelevant allegation of fraud: Thors v Weekes [1989] FCA 540; (1989) 92 ALR 131.

(iii) Conduct which causes loss of time to the Court and to other parties: Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, Federal Court, French J, 3 May 1991).

(iv) The commencement or continuation of proceedings for an ulterior motive: Ragata Developments Pty Ltd v Westpac Banking Corporation (unreported, Federal Court, Davies J, 5 March 1993).

(v) Conduct which amounts to a contempt of court: EMI Records Ltd v Ian Cameron Wallace Ltd [1983] Ch 59.

(vi) The commencement or continuation of proceedings in wilful disregard of known facts or clearly established law: J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers (WA) Branch (No 2) [1993] FCA 70; (1993) 46 IR 301.

(vii) The failure until after the commencement of the trial, and without explanation, to discover documents the timely discovery of which would have considerably shortened, and very possibly avoided, the trial: National Australia Bank v Petit-Breuilh (No 2) (unreported, [1990] VSC 395, 18 October 1999).

The categories of special circumstances are not closed: Tetijo Holdings, supra. The cases must not, therefore, be read "in an endeavour to establish a set of inflexible guidelines which should thereafter be determinative of the manner in which the Court's discretion is to be exercised [for this] would be to fetter the Court's discretion": National Australia Bank v Petit-Breuilh, supra.

Civil Procedure Act

8 Under s 10 of the Civil Procedure Act 2010, the overarching obligations apply, inter alios, to any person who is a party to litigation (s 10(1)(a)); and under s 10(1)(d)) to -

(d) any person who provides financial assistance or other assistance to any party in so far as that person exercises any direct control, indirect control or any influence over the conduct of the civil proceeding or of a party in respect of that civil proceeding, including, but not limited to -

(i) an insurer;

(ii) a provider of funding or financial support, including any litigation funder.

The overarching obligations[8] relevantly include the following:

(1) under s 16, the paramount duty is to the Court to further the administration of justice in relation to any civil proceeding in which the person is involved, including any interlocutory application or proceeding;

(2) under s 18, an obligation not to make any claim that is frivolous, vexatious, an abuse of process, or does not, on the factual and legal material available at the time of making the claim, have a proper basis;

(3) under s 24, an obligation to use reasonable endeavours to ensure that legal costs and other costs incurred in connection with the civil proceeding are reasonable and proportionate to the complexity or importance of the issues in dispute and the amount in dispute;

(4) under s 25, an obligation to use reasonable endeavours in connection with the civil proceeding to act promptly and minimise delay for the purpose of ensuring the prompt conduct of the civil proceeding; and

(5) under s 26, an obligation to disclose to each party the existence of all documents that are or have been in the person's possession custody or control of which that person is aware and considers, or ought reasonably consider, are critical to the resolution of the dispute.

9 Under s 29 of the Civil Procedure Act, if a court is satisfied that, on the balance of probabilities, a person has contravened any overarching obligation, the court may make any order it considers appropriate in the interests of justice, including relevantly in the present context:

(1) an order that the person pay some or all of the legal costs or other costs or expenses of any person arising from the contravention of the overarching obligation;

(2) an order that the legal costs or other costs or expenses of any person be payable immediately and be enforceable immediately; and (or alternatively)

...

(3) any other order that the court considers to be in the interests of any person who has been prejudicially affected by the contravention of the overarching obligations.

10 Section 29 of the Civil Procedure Act is a provision of considerable importance, as was made clear by the Court of Appeal in Yara Australia Pty Ltd v Oswal,[9] where Redlich and Priest JJA and Macaulay AJA described the significance of its provisions as follows:[10]

1. Section 29 in particular is a unique provision, conferring powers broader than those in any other jurisdiction in Australia, to sanction legal practitioners and parties who fail to meet their overarching obligations. For example, the Civil Procedure Act 2005 (NSW) provides that the overriding purpose of the Act 'is to facilitate the just, quick and cheap resolution of the real issues in the proceedings'. Although there are also provisions relating to more specific obligations such as effective case management, delay and proportionality of costs, the NSW provisions remain more aspirational than obligatory. The court's powers as to costs are still governed by the rules of the court. There are no broad powers to issue sanctions for contravention of the obligations. Similarly, the Federal Court provisions merely empower the Court to take into account a failure to comply with the duty to act consistently with the overarching purpose when exercising the discretion as to costs.
2. Section 29 of the Act provides the Court with broader and more flexible powers than under the Supreme Court (General Civil Procedure) Rules 2005 ('the Rules') or under its inherent jurisdiction.

1. The court's powers under s 29 of the Act include the power to sanction legal practitioners and parties for a contravention of their obligations as the heading to Part 2.4 indicates. In our view, these powers are intended to make all those involved in the conduct of litigation - parties and practitioners - accountable for the just, efficient, timely and cost effective resolution of disputes. Through them, Parliament has given the courts flexible means of distributing the cost burden upon and across those who fail to comply with their overarching obligations. A sanction which redistributes that burden may have the effect of compensating a party. It may take the form of a costs order against a practitioner, an order that requires the practitioner to share the burden of a costs order made against their client or an order which deprives the practitioner of costs to which they would otherwise be entitled. The Act is clearly designed to influence the culture of litigation through the imposition of sanctions on those who do not observe their obligations.

11 The Plaintiff by Counterclaim, Wilson, was unsuccessful on every issue in the proceeding; and comprehensively, as is made clear in the Reasons. Moreover, consistent with the HGR parties' submissions,[11] the case that Wilson put was in essence that the HGR parties had cheated him out of many millions of dollars, had induced him to accept an unfavourable settlement of his interest in the trusts and land by false representations and manipulated the affairs of the trusts to their personal benefit and Wilson's detriment. It is clear, in my view, that the case put by Wilson was, in substance, one of fraud and misappropriation of property, labelled largely as misrepresentation. Indeed, given the limitations, laches and acquiescence problems besetting his case, I accept that Wilson appears to have chosen the attempt to defeat those defences by, in substance, running a fraud and misappropriation case. This case was persisted with, despite numerous admissions which undermined Wilson's case and supported the case of the HGR parties being made in the course of his evidence.[12] In a further attempt to support his case, Wilson gave evidence with respect to a very significantly claimed representation - the 18 April 2007 representation - evidence which was found by the Court to be a fabrication.[13]

12 The case, in substance, turned on the following issues:

(a) Whether the 18 April 2007 representation and 2006 accounts were false, misleading and deceptive?

(b) Whether Waigani and Oupan acted in breach of trust?

(c) Whether Wilson was entitled to avoid the May and July settlement agreements?

(d) Whether Wilson had an interest in the Manning land?

13 Not only did Wilson fail to prove his case in relation to any of these matters, but the Court found that there was no proper or reasonable basis for these claims and, in any event, they were statute-barred and barred by his own laches and acquiescence in most cases. Moreover, having regard to the nature of the claims made and the manner in which Wilson put his case the position is, in my view, that his case was, in substance, one based on fraud for which there was no reasonable basis. In addition, Wilson commenced and continued the proceedings in wilful disregard of known facts, most of which he admitted under cross-examination.[14] Further clear examples of the conduct of this proceeding by Wilson in defiance of objectively known facts are to be found in the Court's analysis of why not only was Wilson not misled in any way in entering into the 2007 settlement,[15] but also that even if his claims had been made out, rather than failed in total, he suffered no loss and damage in that he was paid far more than his units in the Deer Park Trust were worth[16] (and his units in Oupan had no value).[17]

14 In my view, it is clear that the Plaintiff by Counterclaim, Wilson, failed to properly or adequately evaluate the evidence available to him. Indeed, despite the fact that it was Wilson who, for a considerable period, was responsible for the accounting records of the trusts, it was Angela Palermo, an employee of the HGR parties (or some of them), who meticulously analysed all of the available records to map the financial history of the trusts, including over this considerable period. Had Wilson and his legal advisers conducted the appropriate assessment of the witnesses, evidence and strength of Wilson's claims in the context of the 2007 settlement, it would, in my view, have been readily identified that the commencement and continuation of the proceeding would be in wilful disregard of known facts and law, and without any proper basis. The extent of the apparent deficiencies in this respect are, in my opinion, made very clear in the Reasons. Consequently, submissions now made by Wilson that there was some proper basis for bringing and maintaining these proceedings must be rejected.

15 In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd,[18] Woodward J said:[19]

I believe that it is appropriate to consider awarding "solicitor and client" or "indemnity" costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law.

16 Similarly, in J Corp Pty Ltd v Australian Building Labourers Federation Union of Workers (WA Branch) (No 2),[20] French J (as his Honour then was) said:[21]

Although there is said to be a presumption in such cases that the action was commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law, it is not a necessary condition of the power to award such costs that a collateral purpose or some species of fraud be established. It is sufficient, in my opinion, to enliven the discretion to award such costs that, for whatever reason, a party persists in what should on proper consideration be seen to be a hopeless case...

17 In Macedon Ranges Shire Council v Thompson,[22] the Court of Appeal confirmed the application of these principles in this Court and said:[23]

Costs may be ordered whenever it appears that an action has been commenced in circumstances where the applicant properly advised should have known it had no chance of success. When a litigant presses on where on proper consideration their case should have been seen to be hopeless, the discretion to make a special costs order may be enlivened. French J (as he then was) in J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers Western Australia & Anor considered that the discretion to award such costs would be enlivened when a party persisted, for whatever reason, in what should on proper consideration have been seen to be a hopeless case, and alluding to the presumption referred to by Woodward J in Fountain Selected Meats said that it was an unnecessary condition of the power to award such costs that a collateral purpose or some species of fraud be established. But where the litigant did not recognise that its case was without merit a court may be disinclined to make a special costs order. The Court must measure the litigant's conduct against the facts then known or which ought to have been known, the inquiries that the litigant ought reasonably to have made and the legal advice which the litigant ought reasonably to have obtained. This exercise may be subject to some qualification in respect of a self-represented litigant.

[citations omitted]

18 The HGR parties also submitted that Wilson had maintained the proceeding for the collateral purpose of seeking to set aside the 2007 settlement because he now wanted more money, having seen how well land sales were progressing in the Bacchus Marsh area in more recent years - producing, as he thought, profits which would have benefited him but for the settlement. Wilson submitted that there is no evidence to support such a submission and to my questioning of its evidentiary basis the HGR parties submitted that it was a reasonable inference to draw from the evidence and findings at trial. In my view there is some basis for thinking that there is substance in the HGR submissions, having regard both to evidence and findings and the manner in which Wilson's case was conducted. However, I do not think it is a sufficient basis for making such a finding in the present context. In any event, as indicated in these reasons, it is not a necessary finding to the position I have now reached with respect to costs.

19 For the preceding reasons, it follows that in the circumstances of this case it is appropriate to award indemnity costs in respect of the entire proceeding against Wilson on the basis of these authorities and under s 29 of the Civil Procedure Act.

20 Mention should also be made of an application for costs thrown away as a result of the adjournment of the trial of the matter in late 2017 as a result of the very serious illness of David Geer, one of the HGR parties. David Geer was an essential witness, as the trial demonstrated. It could not have proceeded in his absence. There was, obviously, no fault on anyone's part leading to the adjournment. In all the circumstances, these costs should be treated as costs in the cause.

21 The Calderbank offer was to pay Wilson $800,000 plus costs on a standard basis to the date of the letter in full and final settlement of his claims. The offer put the following propositions in detail:

(1) the settlement agreements were a complete answer to Wilson's claims and there was no reasonable prospect of the Court setting them aside;

(2) Wilson's claims were time-barred or barred by virtue of his laches and/or acquiescence;

(3) even if the settlement agreements were to be set aside, Wilson had not suffered any loss or damage and had no entitlement to any other monetary relief which would exceed the offer. In addition, the relief claimed was not available because restitution of the parties to the pre-settlement position could not occur; and

(4) Wilson's claim in respect of the Manning land was hopeless and inconsistent with clear documentary evidence, including in the form of a statutory declaration made by Wilson.

As the Reasons indicate, the HGR parties established these matters in the proceedings.

22 In Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority,[24] the Court of Appeal said:[25]

1. In our view, these competing considerations can be sufficiently accommodated by applying a test of (un)reasonableness. The critical question is whether the rejection of the offer was unreasonable in the circumstances. We see no justification for a more stringent test such as "manifestly" or "plainly" unreasonable.

1. The discretion with respect to costs must, like every other discretion, be exercised taking into account all relevant considerations and ignoring all irrelevant considerations. It is neither possible nor desirable to give an exhaustive list of relevant circumstances. At the same time, a court considering a submission that the rejection of a Calderbank offer was unreasonable should ordinarily have regard at least to the following matters:

(a) the stage of the proceeding at which the offer was received;

(b) the time allowed to the offeree to consider the offer;

(c) the extent of the compromise offered;

(d) the offeree's prospects of success, assessed as at the date of the offer;

(e) the clarity with which the terms of the offer were expressed;

(f) whether the offer foreshadowed an application for indemnity costs in the event of the offeree's rejecting it.

1. It has been argued on occasion that the maker of a Calderbank offer should not be entitled to costs unless the offer sets out, with some reasonable specificity, the basis for the offeror's contention that the offeree should accept the compromise - for example, because the offeree's case was hopeless or because the offeree had no reasonable prospects of doing better in the proceeding than was being offered in advance.
2. Once again, we think it neither necessary nor desirable to lay down any general rule in this regard.

23 In Mischel v Mischel Holdings Pty Ltd (In liq),[26] I considered an offer that was served approximately three days before trial, and was open for acceptance for between approximately two to three business days; and said:[27]

1. There is no requirement that a Calderbank offer must be open for the same amount of time as a formal offer of compromise under Order 26 of the Rules. Moreover, a Calderbank offer is not constrained to the formal requirements of the Rules, so what constitutes a reasonable period for the offer to be accepted is more flexible than a formal offer of compromise in that it will vary depending upon particular circumstances. Consequently, the period of time during which a Calderbank offer should remain open depends on the stage of the proceedings at which it is made and the duration of the proceedings to the time the offer is made.

1. The more flexible attributes of Calderbank offers mean that regard must be had to the complexity of the proceedings and the extent to which the offeree might reasonably be thought to have fully understood the claims and evidence in a proceeding and been able to assess its position in a fully informed and considered manner. It follows that, as a general proposition, a shorter time limit for acceptance of a Calderbank offer would seem to be justified in a number of instances, "especially if the offer is made at a time sufficiently advanced that the parties are positioned to assess the respective strengths and weakness of the offeror's position on the issues in dispute at trial." Nevertheless, it does depend, very much on the particular circumstances.
2. Returning to this proceeding, I am of the opinion that, although the Plaintiff's offer was only open for a short period of time, the offer was made at a stage when the Defendant ought to have known the strength of the Plaintiff's case and the weakness of its case and been able to respond promptly.

24 The Calderbank offer remained open for acceptance until 5.00pm on 3 May 2017. Wilson submitted that he was not able to properly consider whether to accept the Calderbank offer during the period it was open because he claimed that there were critical documents to which he did not have access as a result of the alleged failure by the HGR parties to discover them.[28] It was submitted by the HGR parties that to the extent it might be said documents were outstanding, they were, broadly speaking, documents over which Wilson had custody (and with which he would be sufficiently familiar) and documents irrelevant to his assessment whether or not he should accept the offer. Moreover, it was said that the proceeding had been on foot by the time of the offer since 2012, about five years, and it should not be accepted that Wilson was not sufficiently familiar with his claims in order to make an assessment. In my view, the HGR submissions encapsulate the real position - which was that Wilson was well able to properly assess the offer and had more than sufficient time and opportunity to do so.

25 For the preceding reasons, the rejection of the offer was plainly unreasonable and led to the expenditure by the parties of very significant sums on legal costs, and utilisation of a very significant quantity of the Court's resources to hear and determine the proceeding.

26 If the position had not been reached that the Court should order that Wilson pay the costs of the Defendants by Counterclaim on an indemnity basis for the entire proceeding, I would, having regard to the Calderbank offer and the findings made in this respect, have ordered Wilson to pay the costs of the Defendants by Counterclaim on an indemnity basis from 3 May 2017.

27 The Court has power under s 24(1) of the Supreme Court Act to order that a non-party to the proceeding pay the costs of the proceeding.[29] Additionally, where a person, including a non-party, has contravened an overarching obligation, the Court may make an order that the person pay some or all of the legal costs or other expenses of another person arising from that contravention under s 29 of the Civil Procedure Act.

(1) the unsuccessful party does not have the means to meet a costs order;

(2) the non-party played an active role in the conduct of the litigation; and

(3) the non-party has an interest in the litigation and its outcome.[30]

29 It is not known whether Wilson or the Wilson Family Trust of which he is trustee has sufficient assets to meet an adverse costs order. However, in the course of his evidence under cross-examination, Wilson said that his sons had been paying the legal bills for the case through companies they operate and that they stood to benefit by reason of being beneficiaries under the Wilson Family Trust in any successful outcome in the proceeding.[31]

30 It is generally accepted that a non-party costs order may be made as a supplemental order after the entry of judgment.[32] However, as it is, of course, incumbent on the Court to afford an opportunity to be heard to the non-party objects of such an application, judgment will not be entered or final orders made with respect to costs.

31 In the meantime, the orders which the HGR parties seek in the amended summons in relation to the questions of whether Wilson in his own right and in his capacity as trustee of the Wilson Family Trust is able to meet any adverse costs order, and whether a non-party costs order should be sought against any non-party who has played an active part in the conduct of the litigation and has an interest in the subject matter of the litigation, will be made to enable it to be determined whether it is in the interests of justice that a non-party costs order be made.

32 Orders will be made in conformity with these reasons with respect to costs and the disposition of the substantive aspects of the proceedings at a later date, as indicated.

WILLIAM ROBERT WILSON (ON HIS OWN BEHALF AND AS TRUSTEE OF THE WILSON FAMILY TRUST)

WAIGANI PTY LTD (ACN 005 481 818) (AS TRUSTEE OF THE DEER PARK TRUST)

APPLECROSS SECRETARIAL SERVICES PTY LTD (ACN 005 127 524)

DAVID MORTON GEER (IN HIS OWN RIGHT AND AS EXECUTOR OF THE WILL AND ESTATE OF CHARLES KEITH GEER)

DEBORAH MARGARET KENNEDY (AS EXECUTRIX OF THE WILL AND ESTATE OF CHARLES KEITH GEER)

[1] Wilson v Waigani Pty Ltd & ors [2018] VSC 302 ("Reasons"). The terminology and expressions appearing in these reasons are the same as those appearing in the Reasons.

[2] Exhibit JAK-2 to the Further Affidavit of Jonathan Alan Kramersh (21 September 2018).

[3] Caboolture Park Shopping Centre Pty Ltd (In Liq) v White Industries (Qld) Pty Ltd (1993) 117 ALR 253 at 265; Akedian Co Limited v Royal Insurance Australia Limited [1999] 1 VR 80 at 98-101.

[4] [1993] FCA 536; (1993) 46 FCR 225, [5]. See also United Petroleum Australia Pty Ltd v Herbert Smith Freehills (No 2) [2018] VSC 501, [17].

[5] [2001] VSC 189, [7]-[8]. See also Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 3) [2012] VSC 399, [11]-[22]; Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237, [551]-[572].

[6] [1996] VSC 51; [1997] 2 VR 127 at 147 per Winneke P and 163 per Callaway JA.

[7] [1994] FCA 1166; (1994) 54 FCR 383 at 388.

[8] Civil Procedure Act 2010, Part 2.3.

[9] [2013] VSCA 337; (2013) 41 VR 302.

[10] Yara Australia Pty Ltd v Oswal [2013] VSCA 337; (2013) 41 VR 302 at 309-10 [17]-[18], 309-10 [20].

[12] See for example Reasons, [94], [197].

[16] Reasons, [182]-[183], [197](i).

[18] [1988] FCA 202; (1988) 81 ALR 397.

[19] Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202; (1988) 81 ALR 397 at 401. See also Murdaca v Maisano [2004] VSCA 123, [40]; Macedon Ranges Shire Council v Thompson [2009] VSCA 209, [15].

[20] [1993] FCA 42.

[21] J Corp Pty Ltd v Australian Building Labourers Federation Union of Workers (WA Branch) (No 2) [1993] FCA 42, [5].

[22] [2009] VSCA 209.

[23] Macedon Ranges Shire Council v Thompson [2009] VSCA 209, [15].

[24] [2005] VSCA 298; (2005) 13 VR 435.

[25] Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority [2005] VSCA 298; (2005) 13 VR 435 at 441-2 [23], [25]-[27]. See also United Petroleum Australia Pty Ltd v Herbert Smith Freehills (No 2) [2018] VSC 501, [17]-[22].

[26] [2012] VSC 421.

[27] Mischel v Mischel Holdings Pty Ltd (In liq) [2012] VSC 421, [33]-[35]. See also Thomopolous v Faulks (No 2) [2006] VSC 286, [13].

[28] In this respect, reference was made to the Affidavit of Andrew Phillip Brown (11 August 2017), [23]-[32].

[29] Carter v Caason Investments Pty Ltd (2016) 341 ALR 154 at 156 [11]; Ballantyne Suites Pty Ltd v Ballantyne Chambers Pty Ltd (In liq) [2014] VSCA 223, [12]; Wieland v Texxcon Pty Ltd [2017] VSCA 73, [17].

[30] Knight v FP Special Assets Limited (1992) 174 CLR 178 at 192-3; Ballantyne Suites Pty Ltd v Ballantyne Chambers Pty Ltd (In liq) [2014] VSCA 223, [12]; Wieland v Texxcon Pty Ltd [2017] VSCA 73, [13].

[31] Affidavit of Jonathan Alan Kramersh (27 August 2018), [4]; Further Affidavit of Jonathan Alan Kramersh (21 September 2018), [7].

[32] Caboolture Park Shopping Centre Pty Ltd (in Liq) v White Industries (Qld) Pty Ltd (1993) 117 ALR 253 at 265; Weiland v Texxcon Pty Ltd [2017] VSCA 73, [5], [17].