Plaintiffs v Defendants

(a) is each entitled to an order vesting trust property currently in the possession of the defendants; or

(b) are the defendants, as the former trustees of the Pitard Trusts, entitled to retain possession of the trust property pending satisfaction of their accrued right of indemnity in respect of liabilities incurred by them in their capacity as trustee?

2 I have concluded that each of the plaintiffs was validly appointed as a trustee and is entitled to an order vesting trust property, subject to the defendants' equitable liens in respect of liabilities for which they are entitled to be indemnified. I have rejected the defendants' contention that they are entitled to retain possession of trust property pending satisfaction of their right of indemnity.

3 The Steller Group is a Melbourne based property development and construction business. In April 2016, One Managed Investment Funds Limited ('OMIF') was appointed as security trustee as a consequence of the provision of finance to Steller Group, through Steller Projects Pty Ltd, by OL Master (Singapore) Pte Limited and Orchard Landmark II Master Limited.[1]

4 Ms Skye Pitard is the sole shareholder of each of the six defendant companies.[2] Until early July 2019, these companies were, respectively, trustees of each of the Pitard Trusts.[3] Until 1 July 2019, Ms Pitard was the sole director of each of the six defendants.[4] On 1 July 2019, OMIF appointed receivers to each of the six defendants following alleged events of default under various finance facilities.[5] On 1 July 2019, the receivers appointed Mr John Georgakis as director of each of the six defendants in lieu of Ms Pitard.[6] The validity of Mr Georgakis' appointment is not in issue in the current proceeding.

5 On 3 July 2019, the first defendant was removed as trustee of the Pitard Trust and the first plaintiff was appointed as trustee.[7] On 8 July 2019:

(a) the second defendant was removed as trustee of the Pitard Knowles No 2 Trust and the second plaintiff was appointed as trustee;[8]

(b) the third defendant was removed as trustee of the Pitard Knowles No 3 Trust and the third plaintiff was appointed as trustee;[9]

(c) the fourth defendant was removed as trustee of the Pitard Knowles No 4 Trust and the fourth plaintiff was appointed as trustee;[10]

(d) the fifth defendant was removed as trustee of the Pitard Knowles No 5 Trust and the fifth plaintiff was appointed as trustee;[11] and

(e) the sixth defendant was removed as trustee of the Mary Pitard Trust and the sixth plaintiff was appointed as trustee.[12]

6 It has been agreed between the parties that the Court should rule on the validity of the appointment of each of the plaintiffs as trustee.[13] The defendants did not advance any submissions challenging the validity of the appointment of the plaintiffs. Annexed to this judgment and marked 'A' is a table which, in respect of each of the trust deeds for the Pitard Trusts, identifies:

(a) the power of removal/appointment;

(b) the identity of the appointor; and

(c) the notice of removal and deed of appointment for the new trustee.[14]

7 I am satisfied on the basis of the material set out in annexure A that each of the plaintiffs was validly appointed as a trustee in accordance with the express powers conferred by the relevant trust deed.

Do the defendants have the right to retain possession of trust property notwithstanding the valid appointment of each of the plaintiffs as a trustee?

8 It is not in issue that, prior to their replacement by the plaintiffs, each of the defendants incurred liabilities on behalf of the trust of which it was a trustee. At issue in the current proceeding is the right of possession and control of trust assets worth many millions of dollars. The plaintiffs contend that, as validly appointed trustees, they have a right of possession of trust assets. The defendants contend, on the other hand, that they are entitled to retain possession of the trust property as against the plaintiffs until their right of indemnity has been satisfied.

9 A trustee has a right of indemnity out of trust assets for expenses or liabilities incurred by the trustee by recoupment of expenditure and exoneration from liability.[15] The trustee's right of indemnity is secured by an equitable lien over trust assets which arises by operation of law and confers a proprietary interest, in the nature of a security interest, in the trust assets. This security interest takes priority over the claims of beneficiaries.[16] Where trust property is transferred to a new trustee, the former trustee's lien survives. The new trustee takes trust property subject to the lien.[17]

10 A trustee is entitled to retain possession of trust property as against a beneficiary until its right of indemnity is exercised.[18] There is conflicting authority as to whether a former trustee is entitled to retain possession of trust property as against a new trustee until the former trustee's right of indemnity has been exercised. In Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd,[19] having undertaken a careful review of relevant case law, Brereton J correctly observed that the authorities were 'in a state of some disarray.'[20] Ultimately, Brereton J concluded that:

[A] former trustee does not have a right to retain, as against a new trustee, the trust assets as security for an accrued right of indemnity, though the former trustee is entitled to ensure the new trustee does not take steps which will destroy, diminish or jeopardise the old trustee's right of security, which subsists in the trust assets after their transfer to the new trustee.[21]

11 I agree with Brereton J's conclusion as set out above. This conclusion rests upon Brereton J's finding that a trustee's right of indemnity is an equitable lien which does not confer a right of possession, but rather is 'enforceable by the trustee only by judicial sale or appointment of a receiver, and not by foreclosure or by sale out of Court'.[22] One of the authorities cited by Brereton J in support of this proposition is the judgment of the High Court in Hewett v Court.[23] As to the nature of an equitable lien, Deane J stated:

An equitable lien is a right against property which arises automatically by implication of equity to secure the discharge of an actual or potential indebtedness. Though called a lien, it is, in truth, a form of equitable charge over the subject property in that it does not depend upon possession and may, in general, be enforced in the same way as any other equitable charge, namely, by sale in pursuance of court order or, where the lien is over a fund, by an order for payment thereout.[24]

This passage has been cited with approval by the Victorian Court of Appeal in McDonalds Australia Ltd v Bendigo and Adelaide Bank Ltd,[25] and the Western Australian Court of Appeal in Coad v Wellness Pursuit Pty Ltd (In liq).[26]

12 In The Law of Securities,[27] the authors describe the nature of an equitable lien as follows:

The equitable lien differs from the equitable charge mainly in mode of creation. It arises by implication of law in certain circumstances. Once in existence, it basically confers the same remedies, viz. the powers of sale and appointment of a receiver but only of course through the court ... The equitable lien arises purely from implication of law ... The equitable lien, like the equitable charge, is a pure hypothecation; it involves no transfer of actual or potential ownership, it does not depend on possession and it rests only on equity, with the result that it is unenforceable against the bona fide purchaser for value without notice of the legal estate. Nevertheless, it is an 'interest' in land; it is of a proprietary character.[28]

13 The characterisation of an equitable lien as conferring a beneficial interest in property, but not in the nature of a possessory security, underpins the statement in Jacobs' Law of Trusts in Australia:[29]

The better view is that the former trustee does not have the right to retain, as against the new trustee, possession of trust assets as security for an accrued right of indemnity, although the former trustee is entitled to ensure that the new trustee does not take steps which will destroy, diminish or jeopardise the former trustee's right of security.[30]

14 In Hewett, Deane J described an equitable lien as 'a form of equitable charge'.[31] An equitable charge does not confer a right of possession of property which is subject to the charge.[32]

15 The judgment of the High Court in Octavo supports the proposition that a trustee is entitled to retain possession of trust property as against a beneficiary in aid of the trustee's right of indemnity. However, Octavo does not mandate the conclusion that a former trustee retains a right of possession as against a new trustee. I agree with Brereton J in Lemery that a trustee's retention of trust property as against a beneficiary is consistent with equitable concepts of set-off, and with the rule that a trustee is not required to make a distribution to a beneficiary to the extent that a beneficiary has outstanding obligations to the trust.[33] There is no scope for the application of this principle as between a former and new trustee. The former trustee's equitable lien is not a right of possession.[34] It is a security which survives the transfer of trust property to a new trustee. Further, it can be enforced against trust property in the hands of the new trustee. The new trustee receives the trust property subject to the former trustee's equitable lien.

16 Lemery has been cited with approval by the Western Australian Court of Appeal in Franknelly Nominees Pty Ltd v Abrugiato.[35]

17 I shall now consider authorities which have concluded, contrary to Lemery, that a former trustee does have a right to retain possession of trust property as against a new trustee as security for an accrued right of indemnity.

18 The leading authority is the judgment of the Full Court of the South Australian Supreme Court in Re Suco Gold Pty Ltd (In Liquidation).[36] King CJ (Jacobs and Matheson JJ agreeing) expressly addressed the right of a trustee to retain possession of trust property as against a new trustee:

The trustee's lien is an equitable lien which confers on him a charge over the trust property, whether in his possession or not, for the purpose of protecting and enforcing the right of indemnity. It also confers on the trustee a right to possession of the trust property for the purpose of protecting and enforcing the right of indemnity. The right of possession of the trustee, until his right of indemnity is exercised, is superior to those of a new trustee or the cestuis que trust.[37]

19 Mr Craig, who appeared with Ms Bell for the defendants, submitted that this statement forms part of the ratio in Re Suco. He submitted that as the judgment is that of an intermediate appellate court, it is binding upon me sitting as a judge at first instance.

20 I reject Mr Craig's submission that the above passage from the judgment of King CJ forms part of the ratio of Re Suco. King CJ's observations regarding a former trustee's right of possession of trust property as against a new trustee are obiter. No question of the right of possession of trust property of a new trustee arose for determination in Re Suco because no new trustee had been appointed.

21 I accept that the observations of King CJ are seriously considered dicta. However, as a trial division judge of the Supreme Court of Victoria I am not bound to follow seriously considered dicta in a judgment of an intermediate appellate court.[38] I do not agree with King CJ's conclusion that a former trustee's right of indemnity confers a right of possession of trust assets as against a new trustee. As discussed above, I agree with Brereton J's conclusion in Lemery that a former trustee's equitable lien is not a possessory right vis-à-vis a new trustee.

22 There are two judgments of the Victorian Supreme Court which are consistent with King CJ's judgment in Re Suco: Tolhurst Druce & Emmerson v Maryvell Investments Pty Ltd[39] and Rosenberg v Fifteenth Eestin Nominees Pty Ltd (No 2).[40]

23 In Tolhurst, an application was made by a liquidator for possession of property owned by the defendant company. The sole director and shareholder of the defendant contended that the liquidator was not entitled to possession because the defendant had initially held title to the property as trustee of the family trust.

24 Dodds-Streeton J rejected the defendant's contention that it owned the property in its capacity as trustee. Nevertheless, her Honour did consider the defendant's right of possession of the property, on the assumption that it was the trustee. Her Honour stated that a trustee's right of indemnity is a lien which has priority over the claims of beneficiaries and successive trustees.[41]

25 In support of this conclusion her Honour extracted a passage from the judgment in Octavo in which the plurality stated that a trustee's right of indemnity confers a right to retain possession of trust property as against beneficiaries.[42] Her Honour also cited the passage from the judgment of King CJ in Re Suco referred to earlier in this judgment.[43]

26 Dodds-Streeton J's observations regarding the right of possession of trust property of a former trustee are obiter. Her Honour rejected the defendant's contention that it held the relevant property as a trustee. Dodds-Streeton J's judgment in Tolhurst was delivered approximately 14 months prior to the judgment of Brereton J in Lemery. I consider the reasoning of Brereton J to be more persuasive. His Honour's conclusion that a former trustee's equitable lien does not confer a right of possession of trust property as against a new trustee is based upon a careful consideration of the nature of an equitable lien as a non-possessory right.

27 In Rosenberg, Habersberger J expressly considered whether a former trustee had a right to retain possession of trust property as against a new trustee, pending satisfaction of its right of indemnity. Glen Oak Pty Ltd was appointed trustee of the E Rosenberg Investment Trust. The former trustee, Fifteenth Eestin, made a claim against the trust to be indemnified out of trust assets in respect of liability it incurred whilst trustee. Fifteenth Eestin opposed an order for vesting of the real property of the investment trust with Glen Oak Pty Ltd pending satisfaction of its right of indemnity. Habersberger J concluded that Fifteenth Eestin had a right to retain possession of trust property until its right of indemnity was satisfied:

The parties were agreed that there should be a declaration that the execution by Emanuel Rosenberg of the Deed of Removal and Appointment made 15 July 2004 operated to vest the property of the Investment Trust, other than real property subject to the Transfer of Land Act 1958 ('the TLA'), in Glen Oak as trustee, subject to the lien or charge of Fifteenth Eestin to secure its right of indemnity in respect of the liabilities of the Investment Trust. That is the effect of the provisions of the Trustee Act 1958, in particular s 45(1). What is vested by that sub-section is title to the trust property, other than real property subject to the TLA. However, the vesting of title does not carry with it a right to possession where the former trustee has a charge or lien securing its right of indemnity.[44]

28 In support of the final sentence set out above, Habersberger J cited the page in Kennedy J's judgment in Jennings v Mather[45] which contains the following passage:

Of course, when the accounts come to be made up, if it should appear that nothing is due to the trustee on the trading, there is nothing in respect of which he needs to be indemnified, and his lien over the goods is gone; but until the accounts are made up he is entitled to a lien over all the assets of the estate. A lien (putting aside the question of bankruptcy, with which I will deal directly) has always been held to be sufficient title as against the world to hold the goods until that lien is satisfied, or is proved not to exist.[46]

29 Habersberger J delivered judgment in Rosenberg approximately 15 months after Brereton J's judgment in Lemery. There is no reference in Habersberger J's judgment, and its extensive footnotes, to the judgment of Brereton J. It would appear that his Honour was not referred to the judgment. In Lemery, Brereton J dealt specifically with the passage from Kennedy J's judgment in Jennings v Mather cited by Habersberger J in support of the proposition that the vesting of title does not carry with it a right to possession where the former trustee has a charge or lien securing its right of indemnity.[47]

30 In respect of the judgment of Kennedy J in Jennings v Mather, Brereton J stated:

A number of observations may be made about that judgment. The first is, as Mr A Ashhurst SC for the applicant points out, allowing the execution creditor to take the property in question would have destroyed the right of indemnity in respect of it. Second, the case deals with competing claims to trust assets, between the trustee's execution creditor and the trustee's trustee-in-bankruptcy; it is silent on the position of a replacement trustee. Third, the observation of Kennedy J, to the effect that a lien is sufficient title as against the world to withhold goods until the lien is satisfied or proved not to exist, is true of a common law possessory lien, but it is far from clear that it is an accurate statement of a characteristic of an equitable lien.[48]

31 I respectfully decline to follow Habersberger J's judgment in Rosenberg. The judgment does not address the non-possessory nature of an equitable lien.

32 In Apostolou v VA Corporation Aust Pty Ltd,[49] the applicants claimed that liquidators of a corporate trustee had acted unreasonably or illegally in winding up the company and were not entitled to their fees. The applicants submitted that the corporate trustee may have been replaced as trustee by the applicant himself, thereby requiring the liquidators to obtain a judicial sale order in respect of assets of corporation. Finkelstein J rejected this contention on several bases, including the right of a former trustee to retain possession of trust property until its right of indemnity is satisfied:

Third, even if trust property includes property in which the former trustee retains an equitable interest, the retiring trustee is entitled to retain possession of the trust property, subject to a court order to the contrary, until it is paid what it is due or until it sells the property. I acknowledge that Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd [2008] NSWSC 1344 (Lemery Holdings) holds that a retiring trustee cannot retain possession of trust property as against a new trustee. With respect, in my opinion there is no doubt that a retiring trustee can hold trust property to secure his right of reimbursement against both the beneficiaries and a new trustee. Stott v Milne (1884) 25 Ch D 710, a decision of a powerful Court of Appeal presided over by the Lord Chancellor, states the rule in unqualified terms. So also does G Bogert, Trust and Trustees (2nd ed, rev 1982) s 718 in the following passage:

If a successor trustee has been appointed, he cannot recover possession of the trust property from the retiring trustee until the latter is paid from the trust property for all advances from his own funds properly made for the benefit of the trust. If there is a duty on the part of the trustee to convey the property to a beneficiary at the termination of the trust, the trustee can insist on reimbursement for expenses incurred by him for the benefit of the trust before he is obliged to execute a conveyance. The trustee may assert this right of retention against principal or income of the trust.

That the right of indemnity is not lost if possession is given up is not, contrary to what is said in Lemery Holdings, to the point. Nor, also contrary to what is said in Lemery Holdings, is there a principled distinction between a claim for possession by a beneficiary (whose claim is said to be defeated by the lien) and a claim for possession by a new trustee (whose claim is said to defeat the lien). Lemery Holdings bases the distinction on the potential for the destruction of the security interest, considering it less likely if the property passes to a new trustee. In the end, the risk depends upon the honesty of the individual, not the legal capacity in which the individual holds the property. This is not to suggest that in an appropriate case, a court does not have power to order that trust property be delivered into the hands of the new trustee on terms by which the old trustee's indemnity is fully protected: see for example Global Funds Management v Burns Philp Trustee Co Ltd (1990) 3 ACSR 183.[50]

33 Stott v Milne[51] is cited by Finkelstein J as authority for the proposition that 'there is no doubt that a retiring trustee can hold property to secure his right of reimbursement against both the beneficiary and a new trustee.'[52]

34 At issue in Stott was the trustee's right of indemnity, as against a beneficiary, to be reimbursed legal expenses in respect of proceedings brought on behalf of the trust. The judgment is silent as to a former trustee's right of indemnity as against a new trustee. The passage from the 1982 edition of Trusts and Trustees quoted by Finkelstein J above is inconsistent with the passage from the 2016 edition of Jacobs' Law of Trusts in Australia set out in this judgment.[53] I do not accept Finkelstein J's conclusion that there is no principled distinction between a trustee's right to retain possession of trust property as against a beneficiary compared to the absence of the right of a former trustee to retain possession as against a new trustee. I agree with Brereton J that a trustee's right to retain that trust property is consistent with equitable concepts of set off, and the rule that a trustee is not required to make a distribution to a beneficiary to the extent that a beneficiary has outstanding obligations to the trust. Further, Finkelstein J does not address the non-possessory nature of an equitable lien. With respect, I do not consider the basis upon which Finkelstein J declined to follow Lemery to be persuasive.

35 In Prior v Simeon (No 2),[54] the plaintiff was the registered proprietor of land held on trust for the defendants. Corboy J had previously made an order for the sale of the land to give effect to the plaintiff's right of indemnity in respect of liabilities incurred on behalf of the trust.[55] The plaintiff applied to vary the orders for the sale of the land to allow him to lease the property for a short term pending its sale.

36 Corboy J considered the question of whether the trustee's equitable lien is a possessory security. His Honour noted that Brereton J in Lemery had declined to follow King CJ in Re Suco.[56] Corboy J concluded that the plaintiff was entitled to an order for possession of the land in aid of his accrued right of indemnity, and not merely pursuant to a direction of the court made ancillary to an order for judicial sale.[57] Corboy J considered himself bound to follow Re Suco unless he concluded that the judgment was plainly wrong.[58]

37 Unlike Corboy J, I do not consider myself bound to follow Re Suco. Further, Corboy J's judgment does not address the non-possessory nature of an equitable lien.

38 Each defendant's right of indemnity against the Pitard Trusts' assets in respect of their accrued liability, is an equitable lien. The equitable lien is a security which is enforceable against trust property in the hands of the plaintiffs who are the new trustees of the Pitard Trusts. The defendants do not have the right to retain possession of the assets of the Pitard Trusts pending satisfaction of their right of indemnity.

39 The plaintiffs have proffered undertakings to the Court which ensure that, until further order, they will not dispose of, deal with, encumber or diminish the value of the trust property. I am satisfied that the undertakings which have been proffered will ensure that the value of the defendants' security will not be diminished. The plaintiffs are entitled to an order vesting in them the assets of the Pitard Trusts.

40 I will provide the parties with an opportunity to make submissions as to the appropriate form of orders to give effect to this judgment.

Page of Affidavit [of Skye Pitard sworn 23 July 2019 (exhibit JGJ-7 to the affidavit of Jonathan Joseph sworn 26 July 2019)]

Notice of removal and deed of appointment new trustee. 8 July 2019

Notice of removal and deed of appointment new trustee. 8 July 2019

Notice of removal and deed of appointment new trustee. 8 July 2019

Notice of removal and deed of appointment new trustee. 8 July 2019

Notice of removal and deed of appointment new trustee. 8 July 2019

PK NO 7 PTY LTD (ACN 617 437 340) AS TRUSTEE FOR THE PITARD KNOWLES NO 2 TRUST

PK NO 8 PTY LTD (ACN 617 439 175) AS TRUSTEE FOR THE PITARD KNOWLES NO 3 TRUST

PK NO 9 PTY LTD (ACN 618 875 620) AS TRUSTEE FOR THE PITARD KNOWLES NO 4 TRUST

PK NO 10 PTY LTD (ACN 618 877 508) AS TRUSTEE FOR THE PITARD KNOWLES NO 5 TRUST

PITARD 3 PTY LTD (ACN 618 907 234) AS TRUSTEE FOR THE MARY PITARD TRUST

[1] Plaintiffs, 'Agreed Statement of Facts', 14 August 2019, [41]-[42].

[2] Ibid [8], [14], [20], [26], [32] and [38].

[3] Ibid [4], [11], [17], [23], [29] and [35].

[4] Ibid [9], [15], [21], [27], [33] and [39].

[13] Plaintiffs, 'Agreed List of Issues', 7 August 2019, [1].

[14] Extracted from a document handed up by senior counsel for the plaintiffs at the hearing on 22 August 2019.

[15] Octavo Investments Pty Ltd v Knight [1979] HCA 61; (1979) 144 CLR 360, 367 (Stephen, Mason, Aickin and Wilson JJ, Murphy J agreeing) ('Octavo'); Chief Commissioner of Stamp Duties (NSW) v Buckle [1998] HCA 4; (1998) 192 CLR 226, 245 [47] (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ) ('Buckle'), quoting Austin W Scott and William F Fratcher, Scott on Trusts (Little, Brown and Company, 4th ed, 1988) vol 3A, 345.

[16] Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 93 ALJR 807, 829-830 [83]-[84] (Bell, Gageler and Nettle JJ); Octavo [1979] HCA 61; (1979) 144 CLR 360, 367, 369-370 (Stephen, Mason, Aickin and Wilson JJ, Murphy J agreeing); Buckle [1998] HCA 4; (1998) 192 CLR 226, 246 [47] (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ); Trim Perfect Australia v Albrook Constructions [2006] NSWSC 153, [20] (Austin J).

[17] Octavo [1979] HCA 61; (1979) 144 CLR 360, 370 (Stephen, Mason, Aickin and Wilson JJ, Murphy J agreeing); Buckle [1998] HCA 4; (1998) 192 CLR 226, 246 [48] (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).

[18] Octavo [1979] HCA 61; (1979) 144 CLR 360, 369-70 (Stephen, Mason, Aickin and Wilson JJ, Murphy J agreeing); Buckle [1998] HCA 4; (1998) 192 CLR 226, 246 [47]-[48] (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).

[19] [2008] NSWSC 1344; (2008) 74 NSWLR 550 ('Lemery').

[22] Ibid 553-554 [18] (citations omitted).

[23] [1983] HCA 7; (1983) 149 CLR 639 ('Hewett').

[25] [2014] VSCA 209, [103] (Hansen JA, Beach JA and Garde AJA agreeing).

[26] [2009] WASCA 68; (2009) 40 WAR 53, 66 [41], [43] (Buss JA, Wheeler and Pullin JA agreeing). See also Secretary to the Department of Economic Development, Jobs, Transport and Resources v MG Pastoral Company Pty Ltd (2016) 214 LGERA 413, 432 [96] (Emerton J); Porter v Bonarrigo [2009] VSC 500, [94] (Vickery J) ('Porter').

[27] Edward I Sykes and Sally Walker, The Law of Securities (Law Book Company, 5th ed, 1993).

[28] Ibid 199 (emphasis in original). See also Egbert A Francis and Keith J Thomas, Mortgages and Securities (Butterworths, 3rd ed, 1986) 4, 8, 88, 117-118.

[29] John D Heydon and Mark J Leeming, Jacobs' Law of Trusts in Australia (LexisNexis Butterworths, 8th ed, 2016).

[30] Ibid 513 [21-04] (citations omitted).

[31] [1983] HCA 7; (1983) 149 CLR 639, 663.

[32] Taylor v Marmaras [1954] VicLawRp 66; [1954] VLR 476, 478 (O'Bryan J); Paul & Paul Pty Ltd v Shacklock [2014] VSC 407, [83] (Dixon J); King Investment Solutions v Hussain [2005] NSWSC 1076; (2005) 1 BFRA 577, 603 [126] (Campbell J); Avco Financial Services Ltd v White [1977] VicRp 62; [1977] VR 561, 563 (Gillard J). See also Porter [2009] VSC 500, [71] (Vickery J).

[33] [2008] NSWSC 1344; (2008) 74 NSWLR 550, 557 [35], 560-561 [47]-[48].

[34] Ronori Pty Ltd v ACN 101 071 998 Pty Ltd [2008] NSWSC 246, [15] (Barrett J).

[35] [2013] WASCA 285, [210] (Buss JA, McLure P and Newnes JA agreeing).

[36] (1983) 33 SASR 99 ('Re Suco').

[38] Director of Public Prosecutions v Patrick Stevedores Holdings Pty Ltd [2012] VSCA 300; (2012) 41 VR 81, 109 [127] (Maxwell P, Weinberg JA and Ferguson AJA).

[39] [2007] VSC 271 ('Tolhurst').

[40] [2010] VSC 38 ('Rosenberg').

[41] Tolhurst [2007] VSC 271, [213].

[42] Ibid, quoting Octavo [1979] HCA 61; (1979) 144 CLR 360, 369-370 (Stephen, Mason, Aickin and Wilson JJ, Murphy J agreeing).

[43] Ibid [214], quoting Re Suco (1983) 33 SASR 99, 109 (King CJ, Jacobs and Matheson JJ agreeing).

[44] Rosenberg [2010] VSC 38, [45] (citations omitted).

[45] (1901) 1 QB 108.

[46] Ibid 114 (Lawrence J agreeing). This judgment was upheld in the Court of Appeal: Jennings v Mather [1902] 1 KB 1.

[47] [2008] NSWSC 1344; (2008) 74 NSWLR 550, 554-555 [25].

[49] [2010] FCA 64; (2010) 77 ACSR 84 ('Apostolou').

[51] (1884) 25 ChD 710 ('Stott').

[52] Apostolou [2010] FCA 64; (2010) 77 ACSR 84, 94-95 [50].

[54] [2011] WASC 61 ('Prior').

[55] See Prior v Simeon [2010] WASC 382.

[56] Prior [2011] WASC 61, [15].