Plaintiff v Defendants

2 The proceeding was set down for trial on 1 May 2018 on an estimate of eight to ten days. Following a Court-ordered mediation, heads of agreement were signed by Gregory, Thomas, Robert Hall and Mr Morrison. Mr Morrison agreed to accept appointment as trustee of the trusts, to seek a grant of representation in relation to the late Thomas William Hall's estate, and to establish a framework for narrowing issues in dispute between Gregory and Thomas. Robert was not a party to the 2016 proceeding. Forensic accounting investigations were undertaken by Mr Phillip Herbert on Mr Morrison's behalf.

3 An order was made on 1 May 2018 giving effect to the heads of agreement. Paragraph 5 of that order precluded Mr Morrison from disposing of, distributing, encumbering or otherwise dealing with the assets of the trusts and companies, except in accordance with an order of the Court.

4 On 13 September 2018, Mr Morrison applied to the Court for directions pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015. He sought directions as to whether it was appropriate for him to commence a proceeding against Thomas seeking recovery of $428,408, which had been advanced to Thomas in 2004 ('Black Rock loan'), and interest on that sum of approximately $600,000.[2] The basis of the foreshadowed application was that the $428,408 was advanced by way of loan. Thomas denied this, contending that the funds were advanced by way of a gift.[3]

5 The r 54.02 application was not pressed. Rather, on 9 November 2018, Mr Morrison sought approval of a compromise embodied in a deed of settlement which had been executed by the parties on 7 November 2018 ('deed').

6 The 'Background' section of the deed records the outcome of a meeting between Mr Morrison and Greg, Robert and Thomas on 10 October 2018:

At the 10 October 2018 meeting:

(a) Gregory agreed that, for the purposes of cl. 7 of the Mother's will, he had received distributions of $3,833,633 (Section 6.0 of Mr Herbert's 11 September 2018 report). He agreed that he owes $32,406 to RSUT under the RSUT Loan.

(b) Robert agreed that, for the purposes of cl. 7 of the Mother's will, he had received distributions of $3,111,807. He agreed that, for the purposes of cl. 9 of the Mother's will, $700,000 remained unpaid under the Lysterfield loan and $148,293 remained unpaid under the HJ Hampton loan. He further agreed that $252,000 together with interest of $72,293 (as at 30 June 2018) remained unpaid on the Worldpoly loan. He agreed that interest of $46.60 was accruing daily on the Worldpoly loan.

(c) Thomas agreed that, [for] the purposes of cl. 7 of the Mother's will, he had received distributions of $4,642,034. He agreed that, for the purposes of cl. 9 of the Mother's will, $428,408 remained unpaid under the Black Rock Loan and $181,700 remained unpaid under the GUT Loan.[4]

7 The record of the meeting on 10 October 2018 includes a reference to cls 7 and 9 of the Mother's will. These clauses were described in paragraphs J and K of the Background to the deed as follows:

Clause 7 of the Mother's will directed that an account be taken of distributions received by the Sons and amounts owing to the Sons from the Family Trusts at the date of her death. For this purpose, clause 7.2 empowered her trustee in his sole and absolute discretion to adjust the share of each Son in her Estate, to achieve an equal distribution of her residuary estate between them.

Clause 9 of the Mother's will directed that any loans made by the Family Trusts and Companies to each of her Sons or any associated entity of a son and unpaid at the date of her death be brought into account with accrued interest and be deducted from the entitlement of that Son.[5]

8 Clause 3 of the deed prescribes a scheme of family arrangement. Clause 3.5 provides:

Within 14 days of the Condition being satisfied, the Parties agree that Morrison will:

1. From the NAB term deposit of $4,182,892 he holds for the benefit of the Mother's Estate:

(a) pay to or at the direction of Gregory $1,423,155.67 (being $808,401 equalisation + $614,754.67 being the one third notional share of the remaining NAB Term Deposit). For the purposes of this subclause Gregory authorises and directs Morrison to pay from the funds received on his behalf $32,406 to the RSUT from Gregory's entitlements in full and final discharge (including interest) of the RSUT Loan.

(b) pay to or at the direction of Robert $2,144,981.67 (being $1,530,227 equalisation plus $614,754.67 being the one third notional share of remainder). For the purposes of this subclause Robert authorises and directs Morrison to pay from the funds received on his behalf $700,000 to the SFT from Robert's entitlements in full and final discharge (including interest) of the Lysterfield Loan; $148,293 to HJ Hampton in full and final discharge (including interest) of the HJ Hampton Loan and $252,000 (principal), $72,293 (unpaid interest as at 30 June 2018) and unpaid interest at a daily rate of $46.60 from 1 July 2018 to the date of repayment to the SFT in full and final discharge of the Worldpoly Loan.

(c) pay to or at the direction of Thomas $614,754.67. For the purposes of this subclause Thomas authorises and directs Morrison to pay from the funds received on his behalf $428,408 to the SFT in full and final discharge (including interest) of the Black Rock Loan and $181,700 to GUT in full and final discharge (including interest) of the GUT loan.

9 The 'equalisation' payments of $808,401 to Gregory and $1,530,227 to Robert in cls 3.5A(a) and (b) were designed to give effect to cl 7 of their mother's will, that is, to achieve an equal distribution of her residuary estate between her three sons. The equalisation payments to Gregory and Robert resulted in the distributions which they received from their mother's estate equating with the $4,642,034, which had been received by Thomas prior to the execution of the deed on 7 November 2018. Further, the provision for the repayment of various loans by each of the sons was in accordance with cl 9 of their mother's will. This resulted in the repayment of substantial loans. Pursuant to cl 3.5A(b), Robert agreed to repay loans and interest totalling $1,172,586. Pursuant to cl 3.5A(c), Thomas agreed to repay loans and interest totalling $610,108. However, as noted above, as part of the agreement recorded in the deed, Mr Morrison did not pursue a claim against Thomas for approximately $600,000 interest in respect of the Black Rock loan.

10 The deed reserved the right of Gregory and Thomas to make an application for their costs of the 2016 proceeding. On 16 November 2018, Gregory filed a summons seeking the following orders:

1. The first defendant pay the plaintiff's costs of and incidental to the proceeding up to and including 1 May 2018 (including reserved costs) and the costs of this application, to be taxed on the standard basis in default of agreement.
2. The plaintiff be indemnified on a full reimbursement basis by the estate of Thomas William Hall (deceased), alternatively, by the Scott Forest Trust and the Reid Street Unit Trust, to the extent of any shortfall between:

(a) the plaintiff's actual costs of and incidental to the proceeding up to and including 1 May 2018 (including reserved costs) and this application; and

(b) the costs recovered by the plaintiff pursuant to paragraph 1 above.

1. Alternatively to paragraphs 1 and 2 above, the plaintiff be indemnified on a full reimbursement basis by the estate of Thomas William Hall (deceased), alternatively, by the Scott Forest Trust and the Reid Street Unit Trust, for the plaintiff's actual costs of and incidental to the proceeding up to and including 1 May 2018 (including reserved costs) and this application.

4. Such further or other orders as the Court deems appropriate.

11 During the hearing on 18 December 2018, Mr Harris QC, who appeared with Mr McAloon for Gregory, amended the form of relief sought. In a proposed form of order handed to the Court on 18 December 2018 (as further modified during the course of submissions), Gregory sought the following orders ('draft order'):

1. The plaintiff's costs of and incidental to:

(a) the proceeding up to and including 1 May 2018 (calculated on an indemnity basis in accordance with the plaintiff's costs agreement with his lawyers and including all reserved costs, subject to r 63.30 of the Supreme Court (General Civil Procedure) Rules 2015); and

(b) this application (calculated on a standard basis),

are to be paid by Mr Morrison (in his capacity as executor of the estate of Thomas William Hall (Father's Estate), trustee of the Scott Forrest Trust, the Reid Street Unit Trust and the T.S. Hore Settlement Trust (together, the Family Trusts) and director of the second, third and fourth defendants (the Companies)), with Mr Morrison having a full right of indemnity from the assets of the Father's Estate, the Family Trusts and the Companies (Family Assets).

1. Mr Morrison is entitled to, and is to, recover from the first defendant, the plaintiff's costs of the proceeding up to 1 May 2018 and the plaintiff's costs of this application (each to be taxed on the standard basis in default of agreement as to quantum).
2. Until Mr Morrison recovers payment of the costs referred to in paragraph 2 above from the first defendant, Mr Morrison is entitled to exercise a lien over the first defendant's entitlements to the assets of the Family Assets to the extent of any unrecovered costs.
3. The first defendant is not entitled to exercise any right of indemnity for his costs that he would otherwise have against the Family Assets.
4. The proceeding is otherwise dismissed with no further order as to costs (including reserved costs).

12 Mr Wotherspoon, who appeared for Mr Morrison, did not oppose an order in the terms of paragraph 1 set out above. He accepted that Gregory, in commencing the 2016 proceeding, stood in the shoes of the trustee and pursued the litigation for the benefit of the various estates and trusts.[6] Mr Wotherspoon accepted that the proceeding was properly instituted by Gregory and had resulted in a benefit to the beneficiaries of his mother's estate. He accepted that an order in the terms of paragraph 1 of the draft order was appropriate, particularly as Gregory no longer sought costs on a full indemnity basis. Rather, the draft order, as modified during the course of Mr Harris' submissions, included an express reference to judicial supervision via r 63.30 of the Supreme Court (General Civil Procedure) Rules 2015. However, Mr Wotherspoon advanced a number of submissions in opposition to an order being made in the terms of paragraphs 2 to 4 of the draft order.

13 Mr Wotherspoon's primary submission was that the connection between the scheme of family arrangement prescribed by cl 3.5 of the deed and the relief sought in the 2016 proceeding was too remote. He submitted that the matters covered by the deed extend well beyond the claims in the 2016 proceeding. This submission is consistent with paragraph X of the 'Background' section of the deed, which records:

This Deed records the Parties' agreement to compromise the Commercial Proceedings, to acknowledge, agree and authorise Morrison to implement his proposals to administer the Estates, the Family Trusts and the Companies in accordance with a scheme of family arrangement dated 10 October 2018, and related matters.

14 As noted earlier in this ruling, the scheme of family arrangement provided for payment to Robert of $2,144,981.67, comprising $1,530,227 equalisation plus $614,754.67, being one third of the notional share of remainder of his mother's estate. In addition, Robert was required to repay loans and interest totalling $1,172,586. Robert is not a party to the 2016 proceeding. Further, the deed conferred a substantial benefit upon Thomas by releasing him from Mr Morrison's foreshadowed claim for approximately $600,000 interest on the Black Rock loan. No claim for interest was included in the 2016 proceeding. I accept Mr Wotherspoon's submission that the matters covered by the deed extend well beyond the claims in the 2016 proceeding.

15 Mr Wotherspoon submitted that the scheme of family arrangement was the product of work undertaken between May and November 2018. He accepted that Gregory's claim for the appointment of an independent trustee had succeeded. In effect, Mr Wotherspoon submitted that Mr Morrison's appointment facilitated work subsequently undertaken by Mr Morrison in conjunction with Gregory, Robert and Thomas, which resulted in the deed executed on 7 November 2018.

16 Mr Harris informed the Court that Gregory had incurred legal costs of $800,000 up to 1 May 2018. He submitted that Gregory and Robert would be prejudiced if Mr Morrison was not directed to recover from Thomas any costs paid to Gregory by Mr Morrison in accordance with paragraph 1 of the draft order. He submitted that, if Mr Morrison recovered these costs from Thomas, the assets of the family trusts would be significantly increased for the benefit of the three brothers.

17 Mr Wotherspoon accepted that, if there was a proper basis for Mr Morrison to recover costs from Thomas, he would be subject to a fiduciary obligation to do so because significant funds would flow into the family trusts for the benefit of the three brothers.[7] However, he submitted that Mr Morrison does not consider there to be a proper basis for seeking to recover from Thomas any costs paid to Gregory out of the family assets. Mr Wotherspoon submitted that there was a real risk that an order in the terms of paragraphs 2 to 4 of the draft order would result in unfair prejudice to Thomas. I accept this submission.

18 Absent a trial in respect of the allegations pleaded in the SFASOC, it is not possible to conclude that the differential in the distributions made to Thomas prior to November 2018 ($4,642,034 compared to $3,111,807 (Robert) and $3,833,633 (Gregory)) were in breach of any legal obligation by Thomas or a third party.

19 The fact that Thomas received distributions in excess of those received by Gregory and Robert does not of itself support a conclusion that the distributions were tainted. Prior to November 2018, Gregory had received $721,826 more by way of distributions than Robert. On the material presently before the Court, I am unable to express any concluded view as to why Gregory received substantially greater distributions than Robert. Although the matter was not canvassed on 18 December 2018, I infer that Gregory would, if called upon to do so, contend that the fact that he received $721,826 more than Robert does not evidence any wrongdoing on his part or that of a third party.

20 Absent a trial, it is not possible to express a concluded view as to whether the significantly greater distributions received by Thomas prior to November 2018, compared to Robert and Gregory, evidences any wrongdoing on the part of Thomas or a third party. I accept Mr Wotherspoon's submission that the differential in the distributions received by Thomas compared to Robert and Gregory is explicable by two matters. First, the fact that, between 2002 and December 2014, Thomas had been appointed by his father and mother, and subsequently his mother alone, to act on their behalf in managing their financial and business affairs, and instructing solicitors and accountants in respect of the management of their financial and business affairs. An allegation to this effect was pleaded in paragraph 10 of the SFASOC. It is not disputed that Thomas received payment from his parents for the services which he undertook. These payments were in the form of salary payments and superannuation contributions.

21 Mr Harris pointed to the fact that, for the purposes of the scheme of family arrangement, Thomas accepted that the distribution of $4,642,034 which he received prior to November 2018 included $270,000 by way of superannuation payments. Mr Wotherspoon submitted that, notwithstanding this concession, if the matter had proceeded to trial, it would have been open for Thomas to contend that these payments were legitimately received by him as part of the remuneration which he received for undertaking the management of the family's assets.

22 The notes which form part of the financial statements for the Scott Forrest Trust for the year ending 30 June 2009 record an unsecured loan to Heather Hall of $5,256,979. I accept Mr Wotherspoon's submission that the difference in the distributions made to Gregory, Robert and Thomas was 'in part explicable by this strange loan account that was run for Mother's benefit, with Mother giving gifts to her sons from loans she had received from principally the Scott Forrest Trust.'[8] As Heather Hall has died, she is not available to give any evidence explaining the operation of her loan account, the circumstances in which she advanced loans to each of her three sons, and the reasons why she advanced differing amounts to her sons.

The exercise of the power to award costs where a claim is settled

23 Where, as in the present case, there has been no hearing on the merits, 'a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order.'[9] The 'factor' that usually controls the exercise of a court's discretion is a party's success or failure in the action or in respect of a particular issue.[10]

24 In Australian Securities Commission v Aust-Home Investments Ltd,[11] Hill J summarised the following principles governing the exercise of the court's discretion to order costs where the parties to a proceeding no longer wish to continue:

(1) Where neither party desires to proceed with litigation the Court should be ready to facilitate the conclusion of the proceedings by making a costs order.

(2) It will rarely, if ever, be appropriate, where there has been no trial on the merits, for a Court determining how the costs of the proceeding should be borne to endeavour to determine for itself the case on the merits or, as it might be put, to determine the outcome of a hypothetical trial. This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue.

(3) In determining the question of costs it would be appropriate, however, for the Court to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them.

(4) In a particular case it might be appropriate for the Court in its discretion to consider the conduct of a respondent prior to the commencement of a proceedings where such conduct may have precipitated the litigation.

(5) Where the proceedings terminate after interlocutory relief has been granted, the Court may take into account the fact that interlocutory relief has been granted.[12]

25 In Peet Ltd v Richmond,[13] Nettle JA stated:

But as the judge went on to reason, in effect by analogy with cases in which one party has effectively surrendered to the other prior to trial, and the court is prepared to order that the surrendering party pay the other party's costs even though the court has not heard evidence in relation to the proceeding, there is no reason in principle why a judge ought not determine an application for indemnity costs based on an effective surrender.

No doubt, to inquire into costs when parties have settled a proceeding or avoided trial by extra-curial action could in some cases impose such a burden on the parties that the exercise should be avoided. It is also fair to say that in many instances a court will simply not have available to it the information necessary to determine an indemnity costs application without undertaking the sort of enquiry which would be just too burdensome and expensive an exercise for all concerned.[14]

26 In Edwards Madigan Torzillo Briggs Pty Ltd v Stack,[15] Davies AJA stated:

When proceedings are brought to an end without a determination after a trial, the judge may find it difficult, even impossible, to make an award of costs. If the judge does make an award, it will generally be because the judge is satisfied that one party has had a substantial victory and the other a substantial loss, or that there has been a marked difference in the reasonableness of the actions taken by the parties, so that one party should be rewarded for its reasonable actions and the other party should suffer a detriment in costs.[16]

27 Mr Harris submitted that the Court should make an order in the terms of paragraphs 2 to 4 of the draft order because Gregory had secured a 'substantial victory' by the terms of the deed. He submitted that, 'confronted with the reality of having to deal with the trial, he relinquished control and then, as a result of the investigative process that happened over the next few months, he agreed to give up $2.33 million.'[17]

28 In order to make an assessment of the nexus between the claims pleaded in the SFASOC and the terms of the deed, I granted Mr Harris leave to file a 'note' identifying the causes of action pleaded in the SFASOC which were said to underpin the $2.33 million which the plaintiff contended Thomas had 'agreed to give up'.

29 The note which was filed on behalf of the plaintiff identified two categories of payments said to underpin the $2.33 million equalisation payments. First, superannuation payments of $270,000 included in Thomas' distribution of $4,642,034. I do not consider the inclusion of these payments in the distributions received by Thomas prior to November 2018 constitutes a 'substantial victory' for Gregory. I accept Mr Wotherspoon's submission that Thomas may have had an entitlement to these sums by reason of the duties which he performed in respect of the family assets during the period 2002 and December 2014. Further, having regard to the significant benefit conferred upon Thomas by reason of Mr Morrison abandoning the claim for $600,000 interest in respect of the Black Rock loan, Thomas' agreement to include $270,000 superannuation in the distributions which he received prior to November 2018 may have been a compromise in return for the abandonment of the claim foreshadowed by Mr Morrison.

30 The second matter identified in the 'note' relates to 'general misuse of trust funds by Thomas Hall'. The relevant allegations in the SFASOC were pleaded at paragraphs 20 to 22. These were summarised in the note as follows:

Between approximately 2004 and 2011, Thomas Hall wrongfully paid or procured the payment of amounts out of the funds of the SF Trust and the RS Unit Trust for his and his immediate family's personal expenses unrelated to the operation of the relevant trust or trusts.[18]

31 The note identifies the relief sought by the SFASOC in respect of the allegations in paragraphs 20 to 22 as follows:

Declaration that Thomas Hall is liable to account, or pay equitable compensation, to the trustees of the relevant trust for the 'General Misuses' totalling $3,772,221 from the funds of the FS Trust and $6,726.55 from the funds of the RS Unit Trust.[19]

As with the superannuation payments, the 'General Misuses' form part of the total 'distributions' acknowledged by Thomas Hall in the November Deed (having been quantified in the 'drawings' of Thomas Hall in the Herbert Report). It follows that the corresponding 'equalisation' to take account of Thomas Hall's receipt of these amounts reflects the relief sought by the plaintiff in the proceeding (for an accounting in respect of these transactions) that was resisted by Thomas Hall until 1 May 2018.

The plaintiff has undertaken a comparison of the payments identified by Mr Lom's report against those accepted by Mr Herbert and, in turn, Thomas Hall - see the affidavit sworn by the plaintiff on 19 December 2018. The result of that analysis is that, at least, $2,799,481 of the $3,772,221.37 is accepted by Mr Herbert and, in turn, Thomas Hall as being subject to equalization.[20]

33 This submission refers to an affidavit sworn by the plaintiff dated 19 December 2018. The affidavit comprised four pages together with an exhibit consisting of 188 pages. No leave was given to the plaintiff to file further evidence by way of affidavit. I have had no regard to the plaintiff's affidavit of 19 December 2018 or those parts of the plaintiff's note which rely upon it. However, the fact that the plaintiff sought to rely upon this affidavit brings sharply into focus the observations of Nettle JA in Peet Ltd v Richmond and Hill J in Australian Securities Commission v Aust-Home Investments Ltd set out above. It is inappropriate for the Court to embark upon a hypothetical trial in circumstances where the parties have previously agreed to settle litigation. This is particularly so when the litigation involves complex subject matter as in the present proceeding. Absent a trial, it is impossible to form a view as to whether Thomas 'wrongfully paid or procured' the payment of amounts out of funds of the Scott Forrest Trust and the Reid Street Unit Trust for his and his immediately family's personal expenses unrelated to the operation of the relevant trust or trusts.

34 I am not satisfied that there is sufficient nexus between the causes of action pleaded in the SFASOC and the deed to justify a finding that the agreement recorded therein constitutes a victory, let alone a 'substantial victory' for the plaintiff. I am not satisfied that there is a proper foundation for requiring Mr Morrison to recover from Thomas any costs paid to Gregory pursuant to paragraph 1 of the draft order.

35 I propose to make an order in the terms of paragraph 1(a) of the draft order submitted to the Court on 18 December 2018. The costs order in paragraph 1(a) is expressly stated to be subject to r 63.30 of the Supreme Court (General Civil Procedure) Rules 2015. As such, on a taxation of costs, any costs which are considered to be of an unreasonable amount or to have been unreasonably incurred may be disallowed. I shall provide the parties with an opportunity to make submissions in respect of the costs of the application heard on 18 December 2018.

(including in its capacity as trustee of the Scott Forrest Trust)

(including in its capacity as trustee of the Reid Street Unit Trust)

(including in its capacity as trustee of the Garth Unit Trust)

[1] The proceeding was dismissed against Mr Davis pursuant to the order of McMillan J made on 1 September 2017. Ms Katrina Cudmore, the first defendant's wife, was joined as the fifth defendant to this proceeding pursuant to the order of McDonald J made on 13 September 2018.

[2] Transcript of proceeding (13 September 2018) 5.19.

[4] Exhibit LL-3 Affidavit of Lizia Lim affirmed 8 November 2018 [W].

[6] Transcript of proceeding (18 December 2018) 35.01-35.03.

[9] Asta Developments (Australia) Pty Ltd v Amasya Enterprises Pty Ltd [2016] VSCA 186 [24] (Whelan and Ferguson JJA), quoting Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624 (McHugh J).

[11] [1993] FCA 585; (1993) 44 FCR 194.

[13] [2010] VSCA 71.

[14] Ibid [16]-[17] (Neave JA agreeing).

[15] [2003] NSWCA 302.

[16] Ibid [5] (Mason P and Meagher JA agreeing).

[17] Transcript of proceeding (18 December 2018) 36.16-36.19.

[18] Plaintiff, 'Supplementary Note Regarding Costs Application', 19 December 2018 [17].