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[2019] VSC 14
Supreme Court of Victoria
2019-01-31
ROBSON J
Original judgment source is linked above.
INTEREST - Whether s 60(1) of the Supreme Court Act 1986 enlivened - Claim sought declarations as to amount payable under an agreement for the sharing of profits from the conduct of a property-development business - No order was sought for the payment of moneys - The claim for damages was not made out - No interest awarded.
COSTS - Many issues litigated - Plaintiff successful on initial claim - Defendant found to be entitled to a significant sum more than that conceded by the plaintiff - Order that each party pay their own costs.
1 The background to the dispute between the parties has been set out in Re Adaz Nominees Pty Ltd (No 2).[1] It is sufficient to say that the plaintiffs (whom I call the 'TPC Group')[2] and the defendants (whom I call 'Castleway')[3] entered into a profit-sharing agreement which they called the Property Development Services Agreement ('PDSA'). Under the PDSA, Castleway was to manage and conduct the property-development business of the TPC Group in return, inter alia, for receiving 40 per cent of the profit of the business as calculated under the PDSA.
2 In 2015, disputes arose between the parties as to the interpretation of the PDSA. On 30 October 2015, the TPC Group instituted these proceedings seeking declarations as to the proper construction of the PDSA. Under the PDSA, for each financial year, the TPC Group was to have prepared a calculation of the profit of the business. From that, the TPC Group was to calculate Castleway's entitlement to 40 per cent of the profit. Castleway was entitled to dispute that calculation, if it chose. If Castleway disputed it, then an independent expert was to be appointed to resolve the dispute. Once the dispute was resolved, Castleway could issue to the TPC Representative a fresh 'compliant Tax invoice' for the resolved amount that the TPC Group was obliged to pay.[4] The TPC Group was obliged to pay 'all correctly rendered invoices within thirty (30) days after receipt of the invoice,' subject to a provision for extension of the time for payment, depending on the cash flow position of the TPC Group.[5]
3 Unfortunately, the parties could not use the dispute resolution procedure provided under cl 9 of the PDSA. The PDSA identified the President of the Institute of Chartered Accountants in Australia (Victorian Division) as the person who would nominate the independent expert. However, in December 2015, the President informed the parties of the intention of the President no longer to appoint independent experts on or after 30 June 2015. The parties then agreed that cl 9 of the PDSA, the dispute resolution clause, did not deprive the Court of jurisdiction with respect to the disputes between the parties.[6] As discussed in Re Adaz (No 5),[7] the TPC Group submitted, and I accepted, that there had been no agreement between the parties to amend the process by which the TPC Group pays Castleway.
4 In my previous judgments, I have resolved the issues between the parties. In my fifth judgment, I directed that Castleway bring in minutes of orders on both the claims and counterclaims reflecting my reasons in the fifth and earlier judgments. I adjourned the question of costs and any other issues to be resolved until after the TPC Group had paid Castleway the moneys due under the tax invoices to which I had referred.
5 The parties have informed me that the TPC Group has paid Castleway the sums due under the tax invoices for the financial years 2013-2014, 2014-2015, and 2015-2016.
6 As directed, Castleway brought in minutes of orders. The TPC Group also submitted minutes of orders with supporting submissions. I heard the parties on the competing forms of orders. As a result of these submissions I have four issues to resolve.
7 First, Castleway brought in a 'rolled up' declaration with respect to the amounts outstanding for the three financial years. The TPC Group submitted that the Court should make a separate declaration for each of the three financial years.
8 Secondly, Castleway again pressed its case for interest. Castleway referred to my observation in Re Adaz (No 5) that 'the Court will not award interest at this stage of the proceeding.'[8] I made this observation after having considered the arguments that the parties put to me.
9 Thirdly, the parties made further submissions on costs, which took into account my decisions in Re Adaz (No 5), as well as the earlier judgments.
10 Fourthly, Castleway sought declarations as to how the TPC Group profit for the 2016-2017 financial year should be calculated. That is the last relevant financial year, as Castleway ceased its services at the conclusion of that year. The cessation by Castleway of its services to the TPC Group, however, does not prevent Castleway receiving other continuing benefits under the PDSA.
11 In my opinion, it is appropriate to make separate declarations for the three disputed calendar years that I have addressed in my judgments. The PDSA provides a mechanism for the calculation of profit of the TPC Group for each calendar year's profit. The parties have informed the Court that leave to appeal from my decisions will be sought. If the Court of Appeal grants leave, then it may be convenient to have a separate declaration for each of the calendar years. In any event, I consider that the making of separate declarations is consistent with the PDSA. The PDSA does allow for each party to seek from the Court 'injunctive, declaratory or other interlocutory relief (including specific performance) against other parties in order to protect or preserve its rights' under the PDSA.[9]
12 In Re Adaz (No 5), I ruled on arguments that I had heard at that stage on interest under s 60(1) of the Supreme Court Act 1986 ('SCA') and under the PDSA. After considering the history of Castleway's counterclaim, I concluded that Castleway was not entitled to judgment for a money sum. I also found that the TPC Group had not breached the PDSA by seeking declarations as to the proper construction of the PDSA, nor by disputing the quantum of Castleway's entitlements for the three calendar years in dispute.
13 On the hearing on the form of the orders, Castleway made further submissions that my decisions enlivened s 60(1) of the SCA. The interest claimed is in excess of $6 million. Castleway referred me to several authorities on the issue, which I had not previously considered.
14 The TPC Group objected to my reconsideration of the issue. It objected on the basis that I had already ruled on the issue and found no interest was due. I find, however, that I am not prevented from revisiting the issue, as I had not finished hearing the case, and I did qualify my decision by the words 'at this stage'. Also, at this stage of the trial, I have made no orders in the case, other than procedural.[10]
15 In view of the importance of the issue, and the fact that I have had my attention drawn to High Court authority on the matter, I will revisit the issue of interest.
Was s 60(1) of the Supreme Court Act engaged?
16 Section 60 of the SCA provides:
60 Interest in proceedings for debt or damages
(1) The Court, on application in any proceeding for the recovery of debt or damages, must, unless good cause is shown to the contrary, give damages in the nature of interest at such rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 as it thinks fit from the commencement of the proceeding to the date of the judgment over and above the debt or damages awarded.
(2) Nothing in this section -
(a) authorises the granting of interest on interest;
(b) applies in relation to any sum on which interest is recoverable as of right by virtue of any agreement or otherwise;
(c) affects the damages recoverable for the dishonour of a negotiable instrument;
(d) authorises the allowance of any interest otherwise than by consent on any sum for which judgment is entered or given by consent;
(e) applies in relation to any sum on which interest might be awarded by virtue of section 58 or 59; or
(f) limits the operation of any enactment or rule of law which, apart from this section, provides for the award of interest.
(3) If the damages awarded by the Court or jury include or if the Court in its absolute discretion determines that the damages awarded include any amount for -
(a) compensation in respect of liabilities incurred which do not carry interest as against the person claiming interest;
(b) compensation for loss or damage to be incurred or suffered after the date of the award; or
(c) exemplary or punitive damages -
the Court must not allow interest in respect of any amount so included or in respect of so much of the award as in its opinion represents any such damages.
17 It is also useful to set out the other provisions of div 7 of the SCA, which deal with interest.
57 Any interest may be contracted to be paid
(1) Subject to the Consumer Credit (Victoria) Act 1995 and the National Credit Code within the meaning of the National Consumer Credit Protection Act 2009 of the Commonwealth, there is no limit to the interest which a person may lawfully contract to pay.
(2) If interest for the loan of money or on any other contract may be lawfully recovered or allowed in any proceeding in any court but the rate of interest has not been previously agreed between the parties, the party entitled to interest may not recover or be allowed in the proceeding interest above the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983.
58 Interest to be allowed when debts or sums certain recovered
(1) If in a proceeding a debt or sum certain is recovered, the Court must on application, unless good cause is shown to the contrary, allow interest to the creditor on the debt or sum at a rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 or, in respect of any bill of exchange or promissory note, at 2% per annum more than that rate from the time when the debt or sum was payable (if payable by virtue of some written instrument and at a date or time certain) or, if payable otherwise, then from the time when demand of payment was made.
(2) Subsection (1) does not authorise the computation of interest on any bill of exchange or promissory note at a higher rate than the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 if there has been no defence pleaded.
(3) A debt or sum payable or a date or time is to be taken to be certain if it has become certain.
(1) The Court, on application in all proceedings for trover or trespass concerning goods, must, unless good cause is shown to the contrary, give damages in the nature of interest over and above the value of the goods at the time of the conversion.
(2) The Court, on application in all proceedings on any policies of insurance, must, unless good cause is shown to the contrary, give damages in the nature of interest over and above the money receivable.
18 In Victorian WorkCover Authority v Esso Australia Ltd,[11] the High Court of Australia addressed the meaning of the phrase 'any proceeding for the recovery of debt or damages' as appearing in s 60(1) of the SCA. Under the Accident Compensation Act 1985 ('Compensation Act'), a third party who was liable to pay damages to an injured employee was obliged to indemnify the Victorian WorkCover Authority ('VWA'), established under the Compensation Act, and to an insurer FAI, for payments they had made to the injured employee.
19 At the trial, Cummins J made orders that Esso pay particular sums to the VWA and FAI, with a specified amount of interest. His Honour also made a declaration as to FAI's entitlement to indemnification by Esso in respect of further payments of compensation.[12] On appeal, the Court of Appeal (comprising Winneke P, Tadgell, and Chernov JJA) set aside the orders and declarations made by the primary judge and in place substituted an order that Esso pay certain sums to the VWA and FAI, and that FAI was entitled to be indemnified by Esso in respect of further payments up to a maximum sum.
20 The Court of Appeal held that the trial judge should not have allowed interest upon the sums that Esso was ordered to pay. The Court of Appeal accepted Esso's submissions that the action tried by Cummins J had been a claim to enforce an entitlement to indemnity created by statute which could not be comprehended by the words 'proceeding for the recovery of debt or damages' as contained in s 60(1) of the SCA. The Court of Appeal accepted that the orders for payment of the sums to each of the VWA and FAI were 'a necessary incident' of the entitlement to indemnity which was established, and that the sums were neither a debt nor damages.
21 The High Court in VWA v Esso observed that s 60 could be traced back to s 422 of the Supreme Court (Common Law Procedure) Act 1865 (Vic) (the '1865 Act'), which in turn was derived from s 29 of the Civil Procedure Act 1833 (UK). After thoroughly canvassing the history of s 60(1) and its predecessors in the United Kingdom, the plurality, Gleeson CJ, Gummow, Hayne, and Callinan JJ, held that the phrase 'any proceeding for the recovery of debt or damages' in s 60 should be understood:[13]
.... as a composite expression. It embraces any proceeding in which a claim for money is made, in contrast to declaratory relief and claims for specific forms of relief such as mandatory injunctions, charging orders and orders for specific performance. The circumstance that relief of that description is sought in addition to a money claim does not deny the application of s 60 in respect of that money claim. The phrase in s 60 is not 'in any proceeding only for the recovery of debt or damages'. Thus, the claim in this litigation for declaratory relief to determine the 'ceiling' did not take the case outside s 60 with respect to the money claims which were made.
22 Thus the High Court held that the claim to be indemnified fell within s 60(1), as it was a claim for a money sum.
23 Castleway also referred to the judgment of Kirby J, where he said:[14]
In considering whether a narrow construction should be given to that phrase, it would be relevant to take into account at least three considerations. First is the obligatory language ('must') in which the entitlement to interest is expressed. Secondly, the beneficial purpose of providing, with particularity (ss 58 and 59) and then more generally (s 60), for the award of interest to compensate parties who have been obliged to take 'proceedings' to recover a money sum and who in the meantime have been kept out of moneys which they could otherwise have used or upon which they could otherwise have earned interest. Thirdly, on its face, s 60 is one to be given a broad construction because it appears as a general part of the applicable legislation enacted for the award of interest in Supreme Court proceedings. Of their nature, such proceedings will cover an extremely wide variety of types and subject matters. Especially by juxtaposition with the particularity of ss 58 and 59 of the Supreme Court Act, the general provisions of s 60 are obviously intended to have a broad application. All of these are reasons why, applying orthodox canons of statutory construction, the phrase 'proceeding for the recovery of debt or damages' would not be given a narrow meaning.
To this reasoning, particular to the language of the legislation in question, might be added considerations of a more general kind concerning the interpretation of statutory provisions affording entitlements to interest. Long before the statutory indemnity provided by the Accident Compensation Act was enacted, questions arose in the United Kingdom about the application of statutory entitlements to interest upon sums recovered under express or implied contracts of indemnity. The Court of Appeal of Ireland, for example, allowed interest in such a case. In Ex parte Bishop; In re Fox, Walker & Co it was held that the very purpose of an 'indemnity' was to put the person who is to be indemnified in the same position 'as if the act against which he is to be indemnified had been done by the person who is to indemnify him at the time when it ought to have been done'. In other words, there was nothing antithetical in an indemnity to the notion of the recovery of interest. On the contrary, the provision of interest tends to further the purpose of such an indemnity.
Inflation erodes the value to parties kept out of their moneys of the sum ultimately recovered in proceedings in a court. This is why Lord Wilberforce explained that statutory interest on judgments was intended to do no more than to 'compensate [the party successful in litigation] for being kept out of [the] "real" value' of money. Especially in commercial transactions, between parties well able to use funds found to be owing to their financial advantage, the provision of interest pursuant to statute is the fulfillment of the general legislative purpose to provide the power and duty to courts to award such interest. Therefore, on the face of things, the provision to the appellants of interest upon the sum recovered by them in the present proceedings in the Supreme Court would represent no more than the fulfillment of the general objective of enacting the provisions of s 60 as part of the Supreme Court Act.
It follows then that the preferable construction of the words 'proceeding for the recovery of debt or damages' is one that would include a proceeding to recover the statutory indemnity for which s 138 of the Accident Compensation Act provides. Any other view of s 60 of the Supreme Court Act would needlessly confine its operation and frustrate the achievement of the purpose exhibited by its language. Unless a closer examination of s 138 of the Accident Compensation Act required the conclusion that that section was an exhaustive statement of the recovery to which the statutory authority and the insurer were entitled under that Act against a third party, it would follow that the ordinary meaning of the words used in s 60 would apply. The appellants would be entitled to interest. The appeal would have to be allowed.
24 The High Court cited with approval the House of Lord's decision in BP Exploration Co (Libya) Ltd v Hunt (No 2).[15] In that case, the plaintiffs and the defendant entered into a contract to explore, develop, and produce oil. The Libyan government expropriated the concession. The plaintiff claimed compensation from the defendant under the Law Reform (Frustrated Contracts) Act 1943. The trial judge awarded a dollar sum and ordered interest under s 3(1) of the Law Reform (Miscellaneous Provisions) Act 1934, which was equivalent to s 60(1) of the SCA, being enlivened 'in any proceedings ... for the recovery of any debt or damages.'
25 Lord Brandon of Oakbrook, with whom Lord Wilberforce, Lord Diplock, Lord Keith of Kinkel, and Lord Scarman agreed, rejected the submission that the sums recoverable under the Law Reform (Frustrated Contracts) Act 1943 were of a special character and did not come within the expression 'any debt of damages.'
In my opinion the words 'any debt or damages,' in the context in which they occur, are very wide, so that they cover any sum of money which is recoverable by one party from another, either at common law or in equity or under a statute of the kind here concerned.
27 The point of relevance to this case is that the right to interest is attracted where in the proceedings any sum of money is recoverable by one party from another. It is implicit that the recovery of the sum of money in the proceeding is achieved by an order of the Court.
29 It is clear from the High Court's decision in VWA v Esso that a claim for money is a claim which, if successful, will give rise to an order for the payment of a money sum.
Was a claim for money made in the proceeding?
30 The TPC Group had calculated what it claimed it owed Castleway for the three financial years. Before me, Castleway disputed the calculation. Castleway claimed that the TPC Group owed it more, and quantified the amount. As it was, I decided that several of Castleway's monetary claims were made out and several were not.
31 In Re Adaz (No 5), I traced the various amended defences and counterclaims.[20] In the second further amended defence and counterclaim dated 19 July 2017 ('SFADCC'), Castleway sought, amongst many other claims, damages representing the full amount of the service fee which remained outstanding, and which Castleway was, and would be, entitled to be paid under the PDSA. The amount was said to include disputed expenses and other disputed items.
32 I have not found that the TPC Group breached any aspect of the PDSA by not paying the moneys claimed by Castleway. Further, I have not found, however, that any amount was owing as a debt or otherwise. I have not made any order that the TPC Group pay any sum to Castleway. The amounts that I have found payable under the PDSA do not become due and owing as a debt until an invoice is raised for the undisputed amount. It is at that stage that a debt arises. On the other hand, I have found a sum will be due, subject to the issuing of an invoice.
33 In summary, I have not ordered that the TPC Group pay any amount to Castleway. What I have found is that Castleway is entitled under the PDSA to issue an invoice for a certain sum. I have found that, once Castleway has presented the TPC Group with the invoice, the TPC Group must then pay the moneys to Castleway in 30 days.
34 Castleway did claim damages. I did not find, however, that the TPC Group was in breach of the PDSA. Accordingly, I have not found that any damages were payable.
35 Castleway did not claim that it was entitled to an order for the payment of money from the TPC Group. Castleway did claim that it was entitled to issue an invoice for a sum certain, and that when the invoice was issued a sum would become owing. In my opinion, despite the wide interpretation given to 'any proceeding for the recovery of debt or damages', Castleway was unable to point to any authority that supported the contention that such a claim, as it made, fell within s 60(1) of the SCA.
36 I reject the claim that s 60(1) was enlivened in this case.
37 The 2016-2017 financial year is the final year in which a service fee will be calculated under the PDSA. Mr Garratt objected to the orders that Castleway sought. Mr Garratt contended that the determination of the service fee due to Castleway has not gone through the dispute resolution process provided for under the PDSA. As discussed in my October 2018 judgment, the dispute resolution process cannot now be engaged, because an 'Independent Expert' can no longer be appointed under the PDSA. This is because the current President of the Institute of Chartered Accountants in Australia (Victoria Division) is no longer willing to appoint someone to the role.
38 Mr Garratt did not submit that the proposed orders were otherwise inappropriate. In those circumstances, as the relevant matters of construction have been argued and resolved before me, I consider it is appropriate to make the orders sought by Castleway. This approach is in accordance with the Civil Procedure Act 2010 and the Rules of the Court, to avoid a multiplicity of proceedings and to resolve finally all matters in dispute between the parties.
39 The TPC Group submitted that Castleway should bear the costs relating to the injunction application concerning the proposed donation of $20 million to the Rado Foundation (the Related Proceeding). The TPC Group submitted, however, that the costs of the trial, and of the reference to the Special Referee, should be borne by each party.
40 In support of the latter, the TPC Group contended that Castleway made many allegations that were subsequently withdrawn or not pressed. The TPC Group relies on the evidence of Ann Styles in her affidavit sworn 20 July 2018 that sets out in detail many allegations made by Castleway that were not pressed. The TPC Group also relies on allegations by Castleway of misconduct by Mrs Rado, in that the $20 million donation was made for improper purposes, and was part of a conspiracy to harm Castleway. As it was, I found that the $20 million donation was not made for any improper purpose, or as part of any conspiracy, or breach of duties by the directors. The TPC Group submits that in assessing any order for costs overall, I should bear in mind these allegations, including the allegations that were withdrawn or not pressed.
41 The TPC Group submits that it commenced the proceeding to, inter alia, dispute Castleway's claim that the TPC Group was not entitled to sell Kawana Waters but was obliged to develop it. The TPC Group says that this was a fundamental issue in dispute between the parties that extended to a great many properties. The TPC Group wished to wind up the property-development business, whereas Castleway was contending, in substance, that the TPC Group was not entitled to do so but was obliged to complete the property developments that it had on hand. I resolved this issue in favour of the TPC Group in the October 2017 judgment. This was a significant victory for the TPC Group, as it established that, rather than carry on property development, the TPC Group was entitled to wind up its business.
42 On the other hand, Castleway contended that the TPC Group was not observing the PDSA in calculating the Group profit to Castleway's detriment. Castleway says that in these proceedings it succeeded in increasing its entitlement for the three financial years (2014-2015, 2015-2016, and 2016-2017) by $426,839 over the $14,671,979.30 that the TPC Group had acknowledged it owed Castleway. This increase in profits flowed from my interpretation of the PDSA as requiring the expenses claimed to be only those incurred in the ordinary course of business in generating the income of the business. On the other hand, I held that Castleway was not entitled to re-open the previous financial years (prior to 2013-2014) where it claimed similar errors had been made.
43 In my opinion, both parties achieved major successes in the proceeding. Both parties agreed to use the proceedings to overcome the failure of the dispute resolution clause. The parties could have chosen a less expensive method, such as arbitration or mediation. But they chose court proceedings. The parties made this choice because they were already before the Court, which was hearing the TPC Group's applications for declarations that commenced in October 2015. The President of the Institute of Chartered Accountants Australia (Victorian Division) advised in December 2015 that he would not appoint an Independent Expert under the PDSA.
44 In my opinion, having regard to all the issues won and lost, and the claims withdrawn and not pressed by Castleway, each party should bear its own costs. That applies also to the application for the injunction.
45 The parties have agreed on the other orders to be made. Accordingly, I propose to make the following orders:
and further declares that the proposed invoice numbered 1801 in Annexure A to this order correctly specifies the Service Fee payable for that financial year on service of the invoice.
and further declares that the proposed invoice numbered 1802 in Annexure B to this order correctly specifies the Service Fee payable for that financial year on service of that invoice.
and further declares that the proposed invoice numbered 1803 in Annexure C to this order correctly specifies the Service Fee payable for that financial year on service of that invoice.
are not entitled to be included as an expense of the TPC Group when calculating:
(c) the Service Fee payable under the PDSA in respect of the 2016-2017 financial year;
(d) the Commission on Introduced Projects completed after the termination of the PDSA under cl 4.5 of the PDSA; or
(e) the Termination Adjustment under Item 4 of Schedule 2 to the PDSA.
Castleway's Tax Invoice 1801 in the amount of $1,214,882.46 (inclusive of GST) for the 2013-2014 financial year.
Castleway's Tax Invoice 1802 in the amount of $4,792,004.40 (inclusive of GST) for the 2014-2015 financial year.
Castleway's Tax Invoice 1803 in the amount of $9,091,928.20 (inclusive of GST) for the 2015-2016 financial year.
ADAZ NOMINEES PTY LTD (ACN 006 228 119) AS TRUSTEE FOR THE RADO NO 2 TRUST
ROADING GROUP PTY LTD (ACN 097 993 292) AS TRUSTEE FOR THE RADO INVESTMENT TRUST NO 2
ROADING INVESTMENTS PTY LTD (ACN 104 325 797) AS TRUSTEE FOR THE RADO INVESTMENT TRUST NO 3
LOOILLA PTY LTD (ACN 092 067 322) AS TRUSTEE FOR LOOILLA TRUST
BELLONIC PTY LTD (ACN 092 015 828) AS TRUSTEE FOR BELLONIC TRUST
Seventh Plaintiff/Seventh Defendant by Counterclaim
TYNONG PASTORAL CO PTY LTD (ACN 060 828 364) AS TRUSTEE FOR TYNONG PASTORAL UNIT TRUST
TYNONG PROPERTY DEVELOPMENTS PTY LTD (ACN 081 950 647) AS TRUSTEE FOR AMARCO SERVICES TRUST
CASTLEWAY PTY LTD (ACN 131 870 481) AS TRUSTEE FOR THE CASTLEWAY TRUST
[1] [2017] VSC 578 ('Re Adaz (No 2)'). Other relevant judgments are Re Adaz Nominees Pty Ltd (Ruling No 1) [2017] VSC 517; Re Adaz Nominees Pty Ltd (No 3) [2017] VSC 717; Re Adaz Nominees Pty Ltd (No 4) 2017 VSC 755; and Re Adaz Nominees Pty Ltd (No 5) [2018] VSC 624 ('Re Adaz (No 5)').
[2] Adaz Nominees Pty Ltd ('Adaz') is the firstnamed plaintiff of 10 plaintiffs, all controlled by Mrs Agnes Rado, the widow of Rinaldo Rado.
[3] The two defendants are Castleway Pty Ltd as trustee for The Castleway Trust and Gerard Damian Keeghan, the controller of Castleway Pty Ltd. In this judgment, I refer to them as Castleway.
[4] The TPC Representative was defined in the PDSA to mean Agnes Crawford Rado, or such other representative appointed by the TPC Group for the purposes of the PDSA from time to time.
[6] Re Adaz (No 5) [2018] VSC 624, [140].
[8] Re Adaz (No 5) [2018] VSC 624, [150] (emphasis added).
[10] Spotlight Pty Ltd v NCON Australia Limited (2012) 2 VR 1; Connective Services Pty Ltd v Slea Pty Ltd [2018] VSCA 229.
[11] (2001) 207 CLR 520 ('VWA v Esso').
[12] VWA v Esso (2001) 207 CLR 520, 525 [6].
[13] VWA v Esso (2001) 207 CLR 520, 538 [41] (citations omitted).
[14] VWA v Esso (2001) 207 CLR 520, 546-8 [69]-[72] (citations omitted), quoting Ex parte Bishop; In re Fox, Walker & Co (1880) 15 Ch D 400, 422 (Cotton LJ) and Pickett v British Rail Engineering [1980] AC 136, 151.
[15] [1983] 2 AC 352 ('BP v Hunt').
[16] BP v Hunt [1983] 2 AC 352, 373 (Lord Brandon of Oakbrook).
[17] [2004] VSC 343, [6] (Habersberger J).
[19] [2003] VSC 244, [61] (Gillard J).
[20] Re Adaz (No 5) [2018] VSC 624, [115]-[150].
Plaintiffs
CASTLEWAY PTY LTD
(2012) 2 VR 1
(2001) 207 CLR 520