Plaintiffs v Defendants

2 Counsel on behalf of the defendants submitted that the plaintiffs ought to be ordered to pay the defendants' costs on an indemnity basis. In large part his submission was based upon certain offers which had been made on behalf of the defendants. An affidavit of the defendants' solicitor, John Joseph Hanlon, sworn 30 August 2012 was relied upon in that respect.

3 Counsel for the plaintiffs submitted that there should be no order as to costs, and that, if a costs order was to be made against the plaintiffs, it should be on a party/party basis. It was not suggested that this was a case where the unsuccessful plaintiffs should recover costs from the estate.

4 There was no family relationship between the plaintiffs and the deceased. The first and second plaintiffs had been business partners and friends of the deceased. The other plaintiffs are the children of the first and second plaintiff, who had worked with the deceased and grown up in a close relationship with him. I will not repeat the facts relevant to the claims made. I have set them out in the judgment which I have published. These reasons assume knowledge of those facts and the findings which I made.

5 It is necessary to set out a brief history of the proceeding and of the offers that were made.

6 The proceeding began by an originating motion issued on 22 December 2010. The first directions hearing was held on 1 March 2011. At that hearing counsel on behalf of the plaintiffs indicated that the plaintiffs would be seeking a provision equal to two thirds of the value of the estate. By the time of trial the plaintiffs had moderated that claim. Their counsel told me that what was sought was that the six plaintiffs be treated equally with the 14 nieces and nephews who were beneficiaries, so that the plaintiffs together would recover six twentieths of the estate, a little under one third. Before taking account of the costs of this proceeding, the total value of the estate is approximately $970,000.

7 Most of the affidavits relied upon on behalf of the plaintiffs were filed in April 2011. The plaintiffs' case was largely set out in those affidavits and was not significantly added to thereafter, with the exception of a further affidavit sworn by the first plaintiff in June 2011.

8 The defendants' affidavits were substantially filed in May 2011, and, with the exception of four affidavits filed in July 2012 in relation to the financial position of certain of the beneficiaries, the defendants' material was not significantly added to thereafter.

9 The first offer made on behalf of the defendants was made by a letter between solicitors dated 5 May 2011. The letter, which was headed "Without prejudice save as to costs", offered to resolve the matter on the following basis:

... provided the Plaintiffs forthwith withdraw their claims and provide releases to the Defendants, the Defendants will bear their own costs to date.

The letter indicated that if the offer were not accepted it would be produced in support of a claim for "full indemnity costs".

10 This offer was repeated in a further solicitors' letter dated 13 May 2011.

11 On 17 June 2011 an unsuccessful mediation was conducted.

12 On 22 June 2011 the solicitors for the defendants wrote to the plaintiffs' solicitor a letter which enclosed terms of settlement. The letter indicated that all previous offers were withdrawn and advised that the defendants were willing to settle the proceeding on the basis of the enclosed terms of settlement. The letter referred to Calderbank v Calderbank[2] and to Cutts v Head[3] and said that if the matter was not resolved and the plaintiffs did not achieve an effective result better than that offered then the defendants would apply for their costs on a full indemnity basis. The terms of settlement enclosed provided for consent orders dismissing the proceeding with no order as to costs. The terms also provided for releases. Amongst other things, the terms required (in effect) the exchange of releases by and in favour of Norwebb Pty Ltd. These releases were expressed in wide terms with three particular matters specifically referred to, one of which (the insurance policies) was a significant issue in the proceeding and two of which (loans and activities of the deceased in relation to any other company) were of lesser relevance.

13 On 24 June 2011 the solicitors for the defendants served what purported to be an offer of compromise under Order 26. The covering letter required acknowledgment in accordance with Rule 26.03(3.1). The enclosed document offered to settle the proceeding on the basis that the only order in the proceeding would be that the proceeding be dismissed. The enclosed document which purported to be an offer of compromise to which Rule 26.03 applied did not comply with Rule 26.03(7) and (8).

14 On the same day a second letter was sent by facsimile from the solicitors for the defendants to the solicitor for the plaintiffs in which an offer was made to settle on the basis that the proceeding be dismissed with no order as to costs. The letter stated:

For the avoidance of doubt we wish to make it quite clear that settlement on this basis means that neither party pay to the other party anything (ie that each party bears their own costs).

15 The letter again referred to Calderbank and to Cutts v Head and advised that if the plaintiffs did not achieve an effective result better than the offer then an application would be made for costs on a full indemnity basis.

16 Thereafter, the solicitors for the defendants sought acknowledgment of the offer of compromise as required by Rule 26.03(3.1), in response to which the solicitor for the plaintiffs eventually wrote stating that the offer made did not comply with Order 26. At that point the plaintiffs made their own Calderbank offer. The terms of that offer were not put before me. A brief extract from the letter containing the offer was tendered by the defendants.

17 On 18 July 2011 the defendants issued a summons seeking, amongst other things, summary dismissal of the plaintiffs' claims. The summons was initially returnable on 4 August 2011. On that date it was adjourned to a special fixture on 6 September 2011. The summons was heard by Zammit AsJ on 6 September. She delivered judgment on 19 September 2011.[4] She dismissed the defendants' application for summary judgment. After hearing submissions on costs, she ordered that the costs of the application be costs in the cause. Whilst Zammit AsJ dismissed the summary judgment application, she observed in the course of her reasons that there was "force" in the defendants' submissions that the relationship between the plaintiffs and the deceased "does not sit comfortably" with relevant authorities,[5] and she referred to potential cost consequences for the plaintiffs if they were to fail at trial.[6]

18 On 24 November 2011 the defendants adopted a new position. By a letter dated 24 November 2011 the defendants offered to settle the proceeding on the basis that the plaintiffs' claim be dismissed and that the plaintiffs pay the defendants' costs on a party/party basis. The letter was again headed "Without prejudice save as to costs", it again referred to Calderbank and to Cutts v Head, and it again indicated that if the plaintiffs did not achieve an effective result better than the offer an application would be made for indemnity costs.

19 On 7 December 2011 the proceeding was fixed for trial on 6 August 2012 with an estimated duration of ten days.

20 The trial began on 6 August 2012. It ran for five days.

21 On the third day of the trial, Wednesday 8 August 2012, the solicitors for the defendants served on the solicitor for the plaintiffs what purported to be an offer of compromise under Order 26 and again sought acknowledgment under Rule 26.03(3.1). The offer was expressed to be open until 12 noon on Monday 13 August 2012. The offer was that the proceeding be dismissed and that the plaintiffs pay the defendants' costs on a party/party basis. As was the case with the previous document purporting to be an offer of compromise, this offer failed to comply with Rule 26.03(7) and (8). It also failed to comply with Rule 26.03(3).

22 By a letter from the solicitors for the defendants to the solicitor for the plaintiffs dated Thursday 9 August 2012 the same offer as that contained in the purported offer of compromise of the previous day was made, which was also open for acceptance until 12 noon on Monday 13 August 2012. As had been the case previously, the letter was headed "Without prejudice save as to costs", it made reference to Calderbank and to Cutts v Head, and it advised that if an effective result better than that offer was not achieved an application would be made for costs on a full indemnity basis.

23 As had previously been the case, the solicitor for the plaintiffs refused to acknowledge receipt of the purported offer of compromise and asserted that that document was not an offer under Order 26.

(1) On 5 May 2011, 13 May 2011 and 22 June 2011 the defendants' offered to settle the matter on the basis of the plaintiffs' claims being withdrawn, each party bearing their own costs, and releases being exchanged. The releases sought on 22 June 2011 included releases by and in favour of a non-party in wide terms.

(2) On 24 June 2011 the defendants offered to settle on the basis that the proceeding be dismissed with no order as to costs, without requiring releases of the kind earlier sought.

(3) On 24 November 2011 and during the trial the defendants offered to settle on the basis that the proceeding was dismissed and that the plaintiffs pay their costs on a party/party basis.

25 The Court has a broad discretion in relation to costs, as provided for in s 24 of the Supreme Court Act 1986. Rule 63.02 provides that the power and discretion of the Court under that section is to be exercised subject to and in accordance with Order 63. Rule 63.28 provides that costs in a proceeding which are to be taxed shall be taxed on a party/party basis, a solicitor and client basis, an indemnity basis, or such other basis as the court may direct. Rules 63.29 - 63.30.1 define the three specified bases. The practical differences between the solicitor and client basis and the indemnity basis are that on the solicitor and client basis costs reasonably incurred are allowed whereas on an indemnity basis all costs are allowed except those which are unreasonable, and that any doubt as to reasonableness is to be resolved in favour of the taxing party where costs are ordered on the indemnity basis. Rule 63.31 provides that the general basis for taxation is party/party. Rule 63.32 provides for specific circumstances where the solicitor and client basis may be ordered, one of which being where a party is sued as a trustee. Rule 63.33 provides that a trustee entitled to be paid costs out of a fund shall, except where otherwise ordered, have the costs taxed on a solicitor and client basis.

26 Part IV of the Act makes specific provision in relation to costs. Section 97 relevantly provides as follows:

(6) Subject to subsection (7), the Court may make any order as to costs of an application under section 91 that is, in the Court's opinion, just.

(7) If the Court is satisfied that an application for an order under section 91 has been made frivolously, vexatiously or with no reasonable prospect of success, the Court may order the costs of the application to be made against the applicant.

27 Sections 97(6) and (7) of the Act could be seen as potentially limiting the Court's power to order costs against an unsuccessful claimant to those cases where the Court is satisfied that the application was made frivolously, vexatiously or with no reasonable prospect of success. That has not been the approach taken in this Court. In Coombes v Ward (No 2)[7] McDonald J held that notwithstanding his conclusion that he was not satisfied that the circumstances provided for in s 97(7) existed, he still had power to make any order that was, in the Court's opinion, just. In that particular case he decided to make no order as to costs. In In the Matter of Moerth (No 2)[8] Gardiner AsJ, after reviewing a number of relevant authorities from different states, similarly determined that s 97(7) does not have the effect of confining the Court's powers, observing that there will be cases where a claim will not meet the characterisation provided for in s 97(7) but where it will be "just" that the unsuccessful claimant pay the costs of the estate.[9]

28 Section 97(7) was introduced into Part IV by the Wills Act 1997. It was that Act which amended Part IV so as to expand the category of claimant from the "testator's widow widower or children" to any person "for whom the deceased had responsibility to make provision". Like McDonald J and Gardiner AsJ, I do not think that the effect of s 97(7) is to confine the Court's power to award costs against an applicant to the specific circumstances provided for in that subsection. No submission was made to me that it did have that effect. The Court must address s 97(7), but, where it does not apply, the Court must still exercise its discretion under s 24 of the Supreme Court Act in the light of the facts in the case, and must, under s 97(6) of the Act, determine what order is just.

29 In 1993, Gaudron J observed in Singer v Berghouse:[10]

In most cases, costs follow the event in the sense that, save in special or extraordinary circumstances, costs are awarded in favour of the successful party and against the unsuccessful one. ... Family provision cases stand apart from cases in which costs follow the event ... costs in family provision cases generally depend on the overall justice of the case. It is not uncommon, in the case of unsuccessful applications, for no order to be made as to costs, particularly if it would have a detrimental effect on the applicant's financial position. And there may even be circumstances in which it is appropriate for an unsuccessful party to have his or her costs paid out of the estate.

30 Claims under Part IV of the Act are not accurately described as "family" provision cases anymore, but the heading to Part IV itself continues to use that description, and I will do so also for ease of reference.

31 It is necessary to review some of the authorities, the effect of which Gaudron J summarised in 1993, and to consider the 1997 amendments and some more recent authorities. Gardiner AsJ undertook a similar exercise in Moerth, which is helpful.

32 Unsuccessful claimants have, on occasions, recovered their costs from the estate. In In the Matter of the Will of GG Sitch (deceased) (No 2),[11] Gillard J observed that he could recall appearing in cases in the 1960s and 1970s where such orders had been made.[12] Examples of reported cases in which such orders were made include Fox v Burvill,[13] Re Bodman[14] and Re Klease.[15] In Fox, such an order was made in favour of a former wife who had failed to bring herself within the statutory definition of a "widow" because of the absence of a pre-existing maintenance entitlement. In Bodman, such an order was made in favour of a son who had established a "very clear moral obligation" owed to him by his testator father, but who had failed to establish the requisite need. In Klease, such an order was made in favour of children of the testator who had failed, although, again, they had established a moral obligation. More recently in Morse v Morse,[16] adult sons of the testator obtained such an order up to the point at which the judge considered that they had been in a position to adequately assess their case and the case put against them.

33 There are many instances which can be found of courts making no order as to costs after family provision claims had failed. Gillard J, in Sitch, recorded that as having been the general practice in the past. Examples of such orders in Victoria are Re De Feu,[17] Krause v Sinclair & Anor,[18] Re Bull, deceased (No 2)[19] and Coombes.

34 The amendments made in 1997 are important in this context, as Gillard J observed in Sitch. Those amendments significantly enlarged the class of potential claimants. Whereas previously only widows, widowers and children of a testator could apply, thenceforth any person could attempt to establish that a testator had a responsibility to him or her of the requisite kind. It seems to me that, prompted by this expansion, s 97(7) represents a deliberate departure from the prior practice in relation to costs, although it is confined to the particular circumstances provided for in that sub-section.[20]

35 As Gardiner AsJ pointed out in Moerth, the courts in New South Wales (where there is no equivalent of s 97(7)) have displayed a tendency to move towards treating family provision cases in accordance with general costs principles, and in particular with the principle that costs usually follow the event. In this respect, I refer to Jvancich v Kennedy (No 2),[21] Sherborne Estate (No 2): Vanvalen v Neaves,[22] Moussa v Moussa,[23] Nicholls v Hall[24] and Carey v Robson.[25]

36 This was not the approach taken in South Australia in Bowyer v Wood.[26] In that case, Debelle J, with whom Neyland and Anderson JJ agreed, reviewed the authorities and found there to be a substantial body of consistent opinion to the effect that, generally speaking, there will be no order as to costs on an unsuccessful application and that the court may, in its discretion, make an order in favour of an unsuccessful applicant who makes a reasonable application founded on a moral claim or obligation. It was said further that, whilst it was unnecessary to decide the matter in that case, the authorities also suggested that the court could order an unsuccessful applicant to pay costs where the claim was frivolous or vexatious or made with no reasonable prospects of success or where the applicant had been guilty of some improper conduct in the course of the proceedings.[27]

37 Family provision cases are different to other civil cases in some respects. By their nature, they can be more difficult to predict. There can be wide divergence between different judges as to the appropriate outcome. Claimants often establish a moral obligation, even if they fail. Quantification is inherently uncertain. A claimant might fail because, although a responsibility was owed to him or her, investigation reveals that a greater responsibility was owed to others or that there simply is "not enough to go around". Unlike other civil cases, the financial circumstances of the unsuccessful claimant may be an important factor in relation to costs, as they were in Coombes and in Sherborne (insofar as it concerned the unsuccessful claim by Julia Gilroy).

38 Having said that, it seems to me that the tendency to move towards the application of general costs principles, whilst recognising the special characteristics of family provision cases where they are relevant, is a sound and sensible approach. It reflects the changes made in 1997 which significantly broaden the range of potential claimants, it recognises the pressures to settle placed on executors if claimants do not see themselves as at risk on costs if they fail, and it recognises that when costs on unsuccessful claims do not follow the event they are in effect borne by the beneficiaries. It is always necessary to take account of all of the relevant circumstances, including the special features of family provision cases where those features are relevant, and to determine what is just in each case. But it is also important, particularly when one is dealing with claims by non-family members, to bear in mind the observation of Giles JA in Jvancich that often the justice of the case "is not remote from costs following the event".[28]

40 As to s 97(7) of the Act, I do not think that the claims in this proceeding can be described as frivolous or vexatious. The issue of whether the claims were made with no reasonable prospect of success is not as clear. It seems to me that the reference in s 97(7) to the claim being "made" must involve an assessment of the position as known to the plaintiffs at the time when the proceeding was issued. It is also significant that at that point, there must be "no" reasonable prospect of success. I am not satisfied that the plaintiffs had no reasonable prospect of success at that time.

41 As to what is just in this case, in my view this is a case where costs should follow the event, as is the usual rule in civil litigation. The claimants are adults who are unrelated to the deceased. They have brought a proceeding to recover money for themselves, and to take it away from the deceased's relatives. They have not succeeded. The kinds of considerations which often arise in family provision cases, and which have led to the adoption of a different approach to that usually taken in civil litigation, are not significant here, in my view.

42 There are other considerations which I have taken into account. They are:

(a) This always was, and was recognised by the plaintiffs to be, a novel and unusual claim. There was no family relationship between the plaintiffs and the deceased. There were never any shared domestic arrangements. It was not one of those cases where a non-family member had undertaken an extraordinary burden of care in relation to the deceased. The deceased made dispositions during his lifetime which, in my view, benefited the plaintiffs. Apart from their mutual involvement in a business, there was no financial dependency at any time between any of the plaintiffs and the deceased. On any view, these claims were always at the very margins of what Part IV provides for. When investigated fully, the claimants fell well short of establishing the first matter they had to establish, namely that the deceased had a responsibility to make provision for their proper maintenance and support.

(b) The offer made by the defendants to settle the proceeding on 24 June 2011 is important. I do not think the offers made before 24 June 2011 relevantly assist the defendants because releases were sought which went beyond the subject matter of the proceeding. It also seems to me that the offers made on 24 November 2011 and during the trial do not relevantly assist. It is impossible to say whether the plaintiffs have not achieved a better outcome than those offers until this application for costs is itself determined. Further, there was no real element of compromise in those offers. They were, in substance, an invitation to surrender. But the offer made on 24 June 2011 is different. The offer was to settle on the basis that the claim should be dismissed with no order as to costs. In one sense, it might be said that that offer also suffers from the defect that it is not possible to know whether an outcome no better than the offer was obtained until the costs application is itself determined, but I do not think that is a legitimate criticism of this offer. It was not suggested that this was a case where unsuccessful claimants might recover costs from the estate. The offer was a legitimate attempt to compromise and it seems to me that it can be concluded that, on any view, the plaintiffs have not achieved a better outcome. The offer was made after substantially all the affidavits had been filed and the plaintiffs were in a position to adequately assess the case. The making of that offer by the parties who eventually succeeded and the failure to accept it by the parties who eventually failed is a factor supporting the imposition of the usual rule in civil cases that costs follow the event. I will turn to the question of whether the plaintiffs' failure to accept this offer ought to result in a costs order other than on a party/party basis in a moment.

(c) The numerous offers from an early point in the proceeding which the defendants made were in terms which must have alerted the plaintiffs to potential costs consequences in pursuing the claims. Zammit AsJ's judgment on the summary judgment application constituted a clear warning.

(d) The trial was conducted by counsel on behalf of the plaintiffs in a responsible manner. He took steps to shorten the hearing. He did not pursue matters which it was clear could not be substantiated.

(e) The plaintiffs are all people of modest means. One of them is a single parent reliant on social security. The evidence led at the trial leads me to conclude that the costs of this proceeding will represent a significant burden for them, although no evidence specifically addressing that issue was led on the costs application. There are six of them, which does potentially mitigate the burden.

43 Notwithstanding the last two factors, my conclusion is that this is a clear case where the plaintiffs ought to be ordered to pay the defendants' costs.

44 I now turn to the question of whether the plaintiffs' failure to accept the defendants' offer to settle the proceeding on 24 June 2011 ought to result in a costs order other than on a party/party basis. It is only that offer that I am considering in this context for the reasons I have already given in relation to the other offers.

45 The letter of 24 June 2011 was what is known as a Calderbank offer, in that it was an offer in writing, expressed to be without prejudice save as to the question of costs, and which indicated that the letter would be relied upon on the question of costs.[29] The object of making such an offer is to bring the litigation to an end, and to put the other side on notice that, should it refuse the offer and subsequently recover less in the proceeding, then justice and fairness will require that a special order for costs be made.[30]

46 In the context of family provision claims, Palmer J in Sherborne said:

The fact that a plaintiff has recovered judgement in an amount less than an offer of settlement contained in a Calderbank letter does not automatically warrant the making of an order that the plaintiff pay the defendant's costs as from the date of refusal of the offer on an indemnity basis. While that circumstance undoubtedly has weight, all of the facts and circumstances of the case must still be taken into account in the exercise of the court's jurisdiction as to costs.[31]

47 I must give to each such matter such weight, if any, as seems appropriate.[32] A special order should not be made for non-acceptance of a Calderbank offer unless the offeror demonstrates that the offeree's failure to accept the offer was unreasonable.[33]

48 The circumstances to which I should have regard when seeking to determine whether the plaintiffs unreasonably rejected the defendants' Calderbank offer of 24 June 2011 were outlined by the Court of Appeal in Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2). They are:

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

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

(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; and

(f) whether the offer foreshadowed an application for indemnity costs in the event of the offeree's rejecting it.[34]

49 I am required to consider the circumstances existing at the time the offer was made and, in judging the conduct of the offeree, to avoid the perils of hindsight.[35]

50 The Calderbank offer of 24 June 2011 was made after substantially all the affidavits had been filed in the proceeding. The plaintiffs were then in a position to adequately assess the strength of their case. The letter allowed the plaintiffs 15 days in which to consider and accept the offer. This was an adequate period of time.

51 The defendants' offer to the plaintiffs was to settle the matter on the basis that the proceeding be dismissed with no order as to costs. To avoid any doubt, the letter stated that this meant "neither party pay to the other party anything." In my view this was a legitimate attempt to compromise on behalf of the defendants, and one which was expressed in clear terms. The extent of the compromise was not great. The defendants advised in their offer that, should the plaintiffs not achieve an effective result better than the offer being made, then an application would be made for costs on a full indemnity basis.

52 At the time of receiving the offer, the plaintiffs and their advisers were, or ought to have been, aware that their claim was unusual and was, on any view, at the very margins of what Part IV of the Act provides for. The plaintiffs' prospects could not have been realistically assessed as being good.

53 My conclusion is that the plaintiffs' rejection of the defendants' Calderbank offer of 24 June 2011 was unreasonable.

54 For these reasons, I consider that the proper outcome is that the plaintiffs pay the defendants costs of the proceeding on a basis other than party/party from 10 July 2011.

55 The appropriate basis is, in my view, the solicitor and client basis. The defendants are trustee. The rules generally contemplate costs recovery by trustees on that basis. I think they should have the burden of demonstrating reasonableness if there is a dispute or doubt. The plaintiffs' conduct of the proceeding has not been such as to warrant an indemnity costs order.

56 Accordingly, subject to any submissions as to form, the orders I will make are these:

(2) The defendants' costs of the proceeding are to be paid out of the estate on a solicitor and client basis.

(3) The plaintiffs are to reimburse the estate for the costs which are the subject of order (2) to the following extent:

(a) for an amount equal to the party/party costs of the estate up to and including 10 July 2011, and

(b) for an amount equal to the solicitor and client costs of the estate after 10 July 2011.

(Who are sued as the Executors of the Estate of DANIEL JOHN NORTH, deceased)

[1] [2012] VSC 377.

[2] [1975] 3 All ER 333 ('Calderbank').

[3] [1983] EWCA Civ 8; [1984] 1 All ER 597 ('Cutts v Head').

[4] [2011] VSC 461.

[5] [2011] VSC 461, [38].

[6] [2011] VSC 461, [33] and [47].

[7] [2002] VSC 84 ('Coombes').

[8] [2011] VSC 275 ('Moerth').

[9] Moerth [2011] VSC 275, [29].

[10] [1993] HCA 35.

[11] [2005] VSC 383 ('Sitch').

[12] [2005] VSC 383, [2].

[13] [1955] HCA 50; (1955) 92 CLR 334 ('Fox').

[14] (1972) Qd R 281 ('Bodman').

[15] [1972] QWN 44 ('Klease').

[16] [2003] TASSC 145.

[17] [1964] VicRp 54; [1964] VR 420.

[18] [1983] VicRp 7; [1983] VR 73.

[19] [2006] VSC 226.

[20] The second reading speech and the explanatory memorandum are not of assistance in this respect.

[21] [2004] NSWCA 397, [11] ('Jvancich').

[22] [2005] NSWSC 1003; (2005) 65 NSWLR 268 ('Sherborne').

[23] [2006] NSWSC 509.

[24] [2007] NSWCA 356, [57].

[25] [2009] NSWSC 1199.

[26] [2007] SASC 327.

[27] [2007] SASC 327, [68].

[28] [2004] NSWCA 397, [11].

[29] Calderbank; MT Associates Pty Ltd v Aqua-Max Pty Ltd [No 3] [2000] VSC 163, [125] ("Aqua-Max").

[30] Aqua-Max [2000] VSC 1263, [77].

[31] Sherborne [2005] NSWSC 1003; (2005) 65 NSWLR 268, [54]; Aljade and MKIC v OCBC [2004] VSC 351, [96] ('Aljade'); Underwood v Underwood [2009] QSC 107, [37].

[32] Foster v Galea [No 2] [2008] VSC 331, [9] ('Foster').

[33] Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority [No 2] [2005] VSCA 298, [19]; Aljade [2004] VSC 351, [75].

[34] [2005] VSCA 298, [25]. See also Foster [2008] VSC 331.

[35] Aljade [2004] VSC 351, [36]-[37].