Plaintiff v Defendant

2 Prior to the hearing of the summons on 20 July 2015, the parties were able to narrow the issues in dispute between them. It was agreed that the plaintiff would provide security for costs in the amount of $109,295. At the hearing the defendant raised the issue of further costs due to this application and anticipated that they were approximately $30,000.

3 The plaintiff is an Australian company in liquidation. Its collapse has resulted in this proceeding and others. The central issue in dispute at the hearing was the form that the security ought to take. The defendant sought security by way of bank guarantee or payment into Court.

4 The plaintiff offered to provide security by way of the following:

(a) a deed of indemnity from AmTrust Europe Limited ('AmTrust') (an insurer based in the United Kingdom) in favour of the defendant ('the Deed');[1] and

(b) payment of an amount of $20,000 into Court or by bank guarantee, that would cover costs if the defendant needed to enforce the deed against AmTrust in the United Kingdom;

collectively referred to as the 'proposed security'.

5 The parties were in agreement about the terms and form of the indemnity itself.

6 Both parties agreed that this security is the first tranche of security for very expensive litigation. During the course of the hearing, the defendant's counsel suggested that the further tranches of security going forward could reach approximately $1 million.

7 The defendant provided written submissions dated 16 July 2015. It submitted that the proposed security was inadequate. The defendant submitted that the appropriate form of security was a bank guarantee or payment into Court.

8 The defendant submitted that there were difficulties and uncertainties with the proposed security. It was concerned, in particular, that AmTrust was based overseas, and consequentially enforcement would need to occur in the United Kingdom because that is where AmTrust's assets are likely to be. It submitted that although AmTrust is in the business of insurance, it does not mean there is no risk.

9 The defendant referred to the collapse of HIH as an example, and also the example in the affidavit of Mr Yeo sworn 20 July 2015. Mr Yeo, an accountant and liquidator, deposed that he had spent considerable time and effort to try and recover funds in respect of an adverse costs insurance policy in circumstances where an entity offering insurance had gone into liquidation. The entity offering the insurance was not AmTrust. There was no evidence that AmTrust had any assets within Australia to satisfy the proposed indemnity.

10 The defendant submitted that the onus was on the plaintiff to show that the proposed security will not unreasonably disadvantage the plaintiff. There was no evidence that the plaintiff would be prejudiced in obtaining a bank guarantee or paying security into court. On the other hand, payment into Court was better than the Deed because the money was available, there is no cost of execution and it is 100% certain. Further, a bank guarantee from an Australian bank was preferable to the Deed.

11 The defendant noted that, in this case, the plaintiff accepts that there would be a disadvantage if a foreign corporation indemnity was allowed. The question is whether it is unreasonable. It submitted that if there is no difficulty in providing a bank guarantee, the disadvantage associated with a foreign corporation indemnity is unreasonable.

12 The defendant submitted that the Court ought take into account the plaintiff's delays in the exercise of its substantive discretion regarding costs.

13 It referred to the Civil Procedure Act 2010 (Vic) ('the Act'). It argued that the plaintiff had breached section 25 by failing to use reasonable endeavours to act promptly and minimise delay with respect to the application. Mr King's affidavits depose to the plaintiff's delays in responding to the defendant regarding security for costs.[2] Further, there was a delay in the provision of the three affidavits relied upon by the plaintiff. It was submitted that they were received very late, including at least one on the Saturday before the Monday hearing, in circumstances where there had been correspondence between the parties on the security question since

14 The defendant argued that the plaintiff had breached s 24 of the Act by failing to use reasonable endeavours to ensure that the costs are reasonable and proportionate to the complexity and amount in dispute. It submitted that the bank fees associated with obtaining a bank guarantee for $109,000 are unlikely to be proportionate to what is in the plaintiff's three affidavits, which contain voluminous material regarding the setting up of a complex arrangement regarding the proposed indemnity.

15 The defendant submitted that the decision of Versloot Dredging BV v HDI Gerling Industrie Vesicherung AG,[3] (discussed further below) was distinguishable because it was an indemnity offered by a company in the jurisdiction (in comparison to this proceeding where AmTrust is based outside the jurisdiction) and because of the plaintiff's delaying conduct in the application.

16 The defendant referred to Nylex Corporation Pty Ltd v Basell Australia Pty Ltd,[4] where Mandie J commented on the 'uncertainties and complexities' presented by the proffered security from an insolvent plaintiff, being an insurance policy.[5] Mandie J held it was an inappropriate mode of providing security. His Honour also noted that there was no evidence the insurers would have difficulty in obtaining a guarantee from an Australian bank, and that there was no prejudice identified (save for bank charges).[6]

17 The defendant argued that Mandie J's decision was not dependent on some shortcomings in the financial information or disclosure. It was directed towards whether or not the practical onus of the plaintiff had been satisfied in demonstrating that the defendant would not be unreasonably disadvantaged. The defendant also disagreed with the plaintiff's contention (discussed below) regarding the insurer's proportionate liability being an issue in that case, noting it is simply the way the Lloyds' syndicates are structured and argued that the judgment should not be read as conveying a problem with that.

18 The defendant submitted that the decision in the Federal Court of Berry v Innovia Security Pty Ltd,[7] was analogous. In that decision, Buchanan J stated:

A foreign applicant bears a practical onus of showing that the party seeking security will not be unreasonably disadvantaged if a costs order is made against the foreign applicant.[8]

19 The defendant was invited to file any further affidavit material by 4.00pm on 27 July 2015. This invitation was specifically extended in the event that the defendant wished to provide evidence that the enforcement costs in the United Kingdom would exceed $20,000. No affidavit was filed.

20 After the hearing, on 29 July 2015, a further affidavit was filed by the defendant's solicitor, Mr King. It relates to the legal costs incurred by the defendant in relation to this application since 20 May 2015. The defendant clarified that it seeks to increase the limit of the deed by an amount of approximately $30,000 (specifically between $28,330.91 and $31,930.91).

21 After the hearing, the Court invited both parties to make submissions on whether the Court's recent decision in DIF III Global Co-Investment LP and Anor v BBLP LLC and Ors,[9] should be followed. That decision concerned a proposed deed of indemnity from AmTrust in a security for costs application in an unrelated proceeding. In that decision, the Court held that the proposed deed of indemnity would not be adequate security. The defendant's written submissions dated 18 September 2015 submitted that the decision is 'on all fours' with this case and should be followed.

22 The plaintiff provided written submissions dated 17 July 2015.

23 The plaintiff submitted it would be incorrect to begin from the starting point of whether the security being offered was orthodox or not.

The form of a fund or asset will be immaterial so long as it is adequate to achieve its object as a security. The court has an unfettered discretion under r 62.03(1) as to what form of security may be acceptable. The degree of likelihood of the respondent being unable to pay the costs, along with all the circumstances, actual and possible, may be taken into account in the exercise of discretion.[10]

24 The plaintiff referred to Buchanan J's decision in Berry regarding the relevance of arrangements for enforcement of Australian judgments in the jurisdiction of the foreign applicant (or in this case, the foreign insurer):

A foreign applicant bears a practical onus of showing that the party seeking security will not be unreasonably disadvantaged if a costs order is made against the foreign applicant. It will be relevant, in that regard, that there are arrangements for the enforcement of Australian judgments in the jurisdiction of the foreign applicant and that, in that jurisdiction, the foreign applicant has adequate assets to satisfy a costs order in the proceedings.[11]

25 Evidence was provided of the ability to register and enforce a Victorian judgment in the United Kingdom.[12]

26 The plaintiff submitted that the question was whether the proposed security was adequate or sufficient. Is it adequate or sufficient to achieve its object as security? Will the defendant be properly protected by what is offered?

27 Counsel submitted the Deed is 'a direct obligation by the insurer to pay the defendant, which is why I say it is important to consider that what is happening is the insurer is stepping into the shoes of the plaintiff'.[13] The deed is irrevocable, directly enforceable and unconditional. It is enforceable in Victoria. The plaintiff argued that the deed is, in substance, the same as a bank guarantee and referred to Versloot as authority.

28 The plaintiff submitted that the appropriate question to ask was whether the form of security effectively put the defendant in the same position they would have been if the person was providing security in this jurisdiction.

29 The plaintiff submitted that the real issue was the extent to which a costs order against AmTrust is enforceable in the United Kingdom and if so, the reasonable estimate of the costs of that enforcement.[14]

30 The plaintiff submitted that an issue to consider was whether there would be 'unacceptable disadvantage'. It referred to Jagot J in Maxim's Caterers Ltd v Magnona Pty Ltd (No 1),[15] and his Honour's consideration of the Federal Court Rules:

...the principal purpose of the power is protective; to ensure that there is no 'unacceptable disadvantage' to the respondent by reason of the applicant's foreign residence.[16]

31 The plaintiff urged the Court to have regard to the justice underlying the discretion to order security for costs.[17] It submitted that in determining the appropriate form of security, the guiding rule is that so long as the opposite party can be adequately protected, it is right and proper that security should be given in a way that is the least disadvantageous to the party giving security. It was submitted that the proposed security was the least disadvantageous to the plaintiff. The defendant's counsel stated that 'the fact that it is being proffered, it must be a more efficient and cost effective form of providing the security than the provisions of a bank security'.[18]

32 The plaintiff provided affidavit evidence that AmTrust's principal activity is the underwriting of general insurance business and a significant portion of that business is in the underwriting of legal expenses risks.[19] The plaintiff provided affidavit evidence of the strong financial position of AmTrust including its A rating and very substantial assets, including approximately $76 million cash at bank and in hand.[20] The plaintiff argued that it was unlikely that AmTrust would default on the deed and that it had a commercial imperative to pay as it is part of their business model. The evidence is that AmTrust has never failed to honour a deed of indemnity in favour of a defendant.[21]

33 The plaintiff submitted that deeds of indemnity from ATE insurers were used in the United Kingdom.[22] It referred to Versloot in which such a deed was accepted as security by the High Court of England and Wales. In that case, though, the insurer was within jurisdiction:

I am satisfied on the evidence presently before me that QBE is a reputable and creditworthy insurance company, present in London, and that the security constituted by the deed is equal to or better than many first-class London banks.[23]

34 The plaintiff rejected the defendant's submissions that the proposed security offers uncertainties and complexities. It distinguished the Nylex decision on the basis that it concerned liability under an insurance policy. Nylex concerned an insurer who purported to give an undertaking on behalf of a group of insurers. In terms of recovery, it would have to be from each insurer in relation to their proportionate liability. The Court was not satisfied that the insurance undertaking was appropriate security. In comparison, AmTrust is offering an obligation to pay that is direct and irrevocable. Further, in this proceeding, there has been direct evidence about AmTrust's financial position.

35 The plaintiff rightly conceded delay in respect of certain steps in the security application. However, it rejected the defendant's submissions about delay in the broader conduct of the proceeding. It submitted that the delay ought not to influence the substantive exercise of the Court's discretion in respect of the security application. Rather, it was a factor that the Court could take into account in respect of the costs of the application.

36 The plaintiff submitted that the costs of the application relative to the amount of security were proportionate because this was the first tranche of what will be very expensive litigation.

37 In its written submissions dated 18 September 2015, the plaintiff urged the Court not to follow Babcock & Brown.[24] It submitted that the case should be distinguished on the basis that the evidence before the Court was different to the evidence in this proceeding.[25] As discussed below, this submission is accepted.

38 The hearing proceeded on the basis that the applicable law for the costs application was O62 of the Rules, s 1335(1) of the Corporations Act and the inherent jurisdiction of the Court.

39 Order 62.03 provides that 'where an order is made requiring the plaintiff to give security for costs, security shall be given in the manner and at the time the Court directs.'

Where a corporation is plaintiff in any action or other legal proceeding, the court having jurisdiction in the matter may, if it appears by credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence, require sufficient security to be given for those costs and stay all proceedings until the security is given.

(b) a foreign applicant bears the practical onus of showing that the party seeking security will not be unreasonably disadvantaged if a costs order is made against the foreign applicant;[26]

(c) so long as the opposite party can be adequately protected, it is right and proper that the security should be given in a way which is the least disadvantageous to the party giving security.[27]

42 In Oswal, Priest JA outlined relevant principles:

In Energy Drilling Inc v Petroz NL & Ors ('Energy Drilling') Gummow J said:

The purpose of ordering security for costs against an applicant ordinarily resident outside the jurisdiction is to ensure that a successful respondent will have a fund available within the jurisdiction of this Court against which it can enforce the judgment for costs, so that the respondent does not bear the risk as to the certainty of enforcement in the foreign country and as to the time and complexity of the action there which might be necessary to effect enforcement: Kent Heating Ltd v Cook on Gas Products Pty Ltd & Anor (1984) 59 ALR 277 at p 279. On the other hand, the mere circumstance that an applicant is resident outside the jurisdiction does not necessarily invite an exercise of discretion in favour of ordering security, the question being how justice will be best served in the particular case: Barton v Minister for Foreign Affairs [1984] FCA 89; (1984) 2 FCR 463, CBS Records Australia Ltd & Ors v Telmak Teleproducts (Aust) Pty Ltd (1987) ATPR 40-783 at pp 48,554-48,555; (1978) 72 ALR 270 at pp 284-285.

The principles that may be derived from these cases seem to me to be:

• first, the purpose of ordering security against a plaintiff ordinarily resident out of Victoria - and with no assets within it - is so that a successful defendant will have a fund in Victoria against which it can readily enforce an order for costs;
• secondly, to make or refuse an order for security is a discretionary judgment;
• thirdly, since such a judgment is discretionary, the court must weigh all relevant circumstances;
• fourthly, the weight of any one circumstance must depend not only on its own persuasiveness, but must be considered against the impact other circumstances might have against it;
• fifthly, a circumstance of great weight, but not necessarily decisive, is that the plaintiff is resident out of Victoria and has no assets within it;
• sixthly, the weight of that circumstance may be outweighed by the plaintiff being able to point to other countervailing circumstances; and
• seventhly, the ultimate question must always be - how is justice best served in the particular circumstances of the case?[28]

43 In addition to the principles outlined by Priest JA, there are two further principles relevant to this particular matter:

(a) The form of the asset or fund being proffered for security is immaterial so long as it can achieve its object as security.[29]

(b) A relevant factor is whether any costs order would be enforceable in the relevant foreign jurisdiction.[30]

44 In Maxim's Caterers, the plaintiff had substantial assets in Hong Kong. The Court held that:

... the fact that Maxim's is ordinarily resident outside of Australia does not place Magnona [the defendant] at any greater risk in terms of its capacity to enforce a costs order than would be the case if Maxim's were ordinarily resident inside Australia. In this case, accordingly, the weight which foreign residency and lack of assets within Australia would ordinarily attract is largely, if not wholly, offset by the evidence that enforcement of any costs order in favour of Magnona will be able to be enforced in Hong Kong against Maxim's substantial assets in that jurisdiction with relative ease pursuant to procedures which are well defined and known. Using the words of McHugh J this is a case where, on the evidence, Maxim's 'can point to other circumstances which overcome the weight of the circumstance that that person is resident out of and has not assets within the jurisdiction' (P S Chellaram & Co at 323).[31]

45 In Berry, the applicants were a person and a company based outside Australia and without assets in Australia. As security, the applicants offered an undertaking regarding a property in the United Kingdom. Justice Buchanan observed:

The mere fact that Australia has a reciprocal arrangement for the enforcement of judgments is not sufficient to displace the circumstance that an applicant is not resident in Australia and has no assets in Australia (see L_ogue v Hansen Technologies Ltd_ [2003] FCA 81; (2003) 125 FCR 590 ('Logue') at [40]).

However, those basic principles do not, in my view, have the consequences that there is a rule or practice that foreign litigants with no assets in Australia should automatically provide security for the costs of the proceedings, or that the arrangements for enforcement of Australian judgments elsewhere are irrelevant, unimportant or of little weight.[32]

46 Where the judgment can be enforced in the relevant foreign jurisdiction, it is appropriate to make an order for security to the extent of additional costs of enforcement.[33]

47 A deed of indemnity (from the same jurisdiction) may be adequate security providing it is real security.

The essential question for the court in deciding on what form of security is acceptable is whether what is proposed does indeed provide real security. This it may do if it amounts to a promise which would in all likelihood be honoured, given by an entity with the wherewithal to pay and against whom enforcement can readily be obtained; in short, if given by a truly creditworthy entity.

48 The usual form of security is payment into Court,[34] although other types of security have been accepted. This has included insurance policies.[35] It has also included bonds. 'There is no general rule to the effect that the bond of a foreign company will never be regarded as sufficient security.'[36]

49 Babcock & Brown is not authority for the proposition that a deed of indemnity from a third party insurer will never be appropriate.

I do not hold that security by way of a deed of indemnity from a third party insurer can never be appropriate.[37]

50 There is different evidence before the Court in this matter. In Babcock & Brown there was no direct evidence from AmTrust that it would provide the deed of indemnity and agree to pay the amount of the indemnity, the proposed deed was not executed, and the proposed deed was expressed as confined to a specific amount in circumstances where the defendants sought, and the Court ordered, considerably more. In this proceeding, there is direct evidence from AmTrust, the proposed deed was executed and there was agreement on its terms.

51 The circumstances of this application are unique. The plaintiff is resident in the jurisdiction, however it seeks to provide security by way of an indemnity from an insurer outside the jurisdiction. At the time of the hearing, the parties were not able to locate any authorities that had dealt with the same issue. The cases concerning foreign plaintiffs, or plaintiffs with assets outside of the jurisdiction, were relied upon as useful authorities. As discussed above, there was a similar case decided after the hearing, however it is distinguished on the basis of the different evidence before the Court.

52 In this matter, the parties were in agreement as to the term and form of the deed of indemnity, and that it was irrevocable and unconditional.

53 Clause 2 of the deed states that AmTrust hereby unconditionally and irrevocably undertakes to pay to the defendant any sum or sums which the Claimant is liable to pay in respect of the defendant's costs." The Claimant is identified as the plaintiff and accordingly the plaintiff is directly indemnified by AmTrust. The sum will be paid within 7 days of receipt of the defendant's written demand or within 10 business days of the issue of the relevant court order, whichever is later. The indemnity is not contingent upon an insurance policy or any other conditions. Clause 3 provides that a certified copy of the relevant Court order, or a signed agreement about the amount of costs, will be conclusive evidence of the liability of AmTrust, and binding upon it without further inquiry. Clause 4 provides that AmTrust will be the principal debtor and not merely a surety. It is directly enforceable by the defendant against AmTrust. Clauses 4 and 5 of the deed clarify that AmTrust does not have a defence if costs are payable. Clause 10 of the deed states it is governed by Victorian law and is subject to the exclusive jurisdiction of the Supreme Court of Victoria.

54 Although the plaintiff is not outside the jurisdiction, the proposed security will be, and accordingly, analogously with cases concerning foreign plaintiffs resident outside of Victoria and with no assets in Victoria, great weight should be given to this factor. The question then is whether there are any countervailing circumstances.

55 The countervailing factors in this proceeding that, in my view, make the proposed security appropriate are as follows:

(a) The deed is to be construed and is governed by the laws of Victoria and is subject to the exclusive jurisdiction of the Supreme Court of Victoria. That is, it is directly enforceable in Victoria.

(b) The deed is directly enforceable against AmTrust.

(c) The evidence that AmTrust had sufficient assets in its resident jurisdiction to satisfy a costs order is accepted. This evidence on AmTrust's financial standing was not challenged by the defendant.

(d) The deed of indemnity is irrevocable and unconditional.

(e) The plaintiff offered to pay the enforcement costs of the deed in the United Kingdom into Court.

(f) AmTrust is based in the United Kingdom, a jurisdiction with which there are arrangements for the enforcement of Australian judgments.

(g) The evidence that it is unlikely that AmTrust would default on the deed is accepted. It is an insurer with very substantial assets and is in the business of underwriting legal expense risks.

(h) The terms and form of the deed of indemnity are acceptable to the defendant.

56 The form of the security is immaterial, so long as it can achieve its object as security. Courts have long recognised, for example, that insurance may be adequate security. In weighing up all the circumstances in this case, justice is served by the proposed security. The defendant will not be 'unreasonably disadvantaged' by the proposed security. The proposed security is disadvantageous in comparison to payment into Court or an Australian bank guarantee, however it is not unreasonably so given the countervailing factors above. Crucially, the proposed security will adequately protect the defendant.

57 Given that the defendant will be adequately protected by the proposed security, it is right and proper that it be given in a way which is least disadvantageous to the plaintiff. Clearly, by offering security in the manner it has, the defendant has identified that the proposed security is the manner of security least disadvantageous to it. This is unsurprising given that it is the first tranche of what will be very expensive litigation and that it is in liquidation.

58 The defendant has not provided any evidence regarding the amount of enforcement costs in the United Kingdom, and no evidence to contradict the amount of $20,000 offered by the plaintiff. Accordingly, the amount of $20,000 stands as an appropriate amount for enforcement costs. The plaintiff offered to deposit the $20,000. Given that the security will be by way of deed of indemnity and that AmTrust is based overseas, it is appropriate that the enforcement costs of $20,000 be paid into Court.

59 The plaintiff conceded there had been delays in its communications regarding the security for costs application. There was no evidence provided regarded delays generally in the matter and accordingly they are not further considered. In relation to the plaintiff's delays concerning the security for costs application, they are a relevant factor to consider. However, they do not outweigh the countervailing factors. They will, however, be relevant as to the costs of this application.

60 It is appropriate that security for costs be given in the form proposed by the plaintiff, namely the deed of indemnity from AmTrust, plus $20,000 paid into Court (or by bank guarantee) for any potential enforcement costs in the United Kingdom.

61 The defendant has sought a further amount of approximately $30,000 to be added to the limit of the indemnity in respect of its costs to date. The plaintiff has not had the opportunity to make submissions on this issue. The parties are requested to confer on this issue.

62 The parties are requested to confer on the appropriate form of order, including the limit of the indemnity and costs. If necessary, further submissions on those issues will be heard.

AUSTRALIAN PROPERTY CUSTODIAN HOLDINGS LTD (ACN 095 474 436) (in liquidation) (receivers and managers appointed) (controllers appointed)

AUSTRALIAN PROPERTY ADMINISTRATORS PTY LTD (ACN 125 430 917)

KIDDER COMMUNITIES PTY LTD (Receiver and Manager Appointed) (ACN 130 631 891)

BUDERIM GARDENS VILLAGE MANAGEMENT PTY LTD (ACN 108 443 474)

ASHTON GARDNERS VILLAGE MANAGEMENT PTY LTD (ACN 120 069 650)

BELLFLOWER VILLAGE MANAGEMENT PTY LTD (ACN 123 008 631)

LINFIELD VILLAGE MANAGEMENT PTY LTD (ACN 124 289 377)

BRENTWOOD VILLAGE MANAGEMENT PTY LTD (ACN 125 660 540)

[1] Exhibit 'MHP-6' to Michael Pinner's affidavit sworn 16 July 2015. The deed is dated 17 July 2015 and signed by Jeremy Cadle on behalf of AmTrust.

[2] Affidavits of Alexander King affirmed on 29 May and 16 July 2015.

[3] [2013] 2 All ER (Comm) 465 ('Versloot').

[4] [2009] VSC 97 ('Nylex').

[7] [2014] FCA 357 ('Berry').

[9] [2015] VSC 484 ('Babcock & Brown')

[10] Yara Australia Pty Ltd v Oswal [2013] VSCA 156, [10] (Redlich JA) ('Yara').

[11] Berry [2014] FCA 357, [34].

[12] Affidavit of Paul Brehony sworn 17 July 2015.

[14] See, eg, Maxim's Caterers Ltd v Magnona Pty Ltd (No 1) [2010] FCA 450, [3].

[15] [2010] FCA 450 ('Maxim's Caterers').

[17] See, eg, Yara [2013] VSCA 156, [115].

[19] Affidavit of Paul Buitendag sworn 16 July 2015, paragraph 16(e) which is based on information provided by Mr Simon Warr, underwriting manager of AmTrust.

[20] Affidavit of Michael Pinner sworn 16 July 2015; affidavit and exhibits of affidavit of Paul Buitendag sworn 16 July 2015.

[21] Affidavit of Paul Buitendag sworn 16 July 2015, paragraph 24(d), which is based on information provided by Mr Simon Warr, underwriting manager of AmTrust.

[22] Versloot [2013] 2 All ER (Comm) 465, [13].

[24] Plaintiff's submissions on DIF III Global Co-Investment Fund L.P. v BBLP LLC [2015] VSC 484 dated 18 September 2015.

[26] Berry [2014] FCA 357, [34].

[27] Rosengrens Ltd v Safe Deposit Centres Ltd [1984] 1 WLR 1334, 1337.

[28] Yara [2013] VSCA 156, [114]-[115] [Citations omitted].

[30] Berry [2014] FCA 357, [34].

[31] [2010] FCA 450, [13].

[32] Berry [2014] FCA 357, [16]-[17].

[33] Mothership Music Pty Ltd v Flo Rida (aka Tramar Dillard) [2012] NSWCA 344, [15]; Maxim's Caterers [2010] FCA 450, [13]; Dense Medium Separation Powders Pty Limited v Gondwana Chemicals Pty Limited [2011] NSWCA 84, [32].

[34] Versloot [2013] 2 All ER (Comm) 465, [11].

[35] See commentary in Willams 'Civil Procedure Victoria' 62.03.20.

[36] Neil Williams, Civil Procedure Victoria (at 62.03.20) citing: Aldrich v British Griffin Chilled Iron & Steel Co Ltd [1904] 2 KB 850

[37] Babcock & Brown [2015] VSC 484, [129].