Plaintiffs v First Defendant

2 The Costs Applications have their genesis in an originating motion and summons dated 4 December 2012, whereby the plaintiffs sought orders for the sale of a property in Rye and a Porsche Boxster motor vehicle, both of which formed part of the assets of the deceased's estate.

3 Prior to the application, the plaintiffs' solicitors sought the consent of the first defendant to the sale of the abovementioned assets by way of a letter dated 9 October 2012.[1] In reply, the solicitors for the first defendant informed the plaintiffs' solicitors that their client would not consent to the sale of the assets.[2] In particular, they stated:

It is uncontroversial that depending on the outcome of the special referee's decisions, the Family Trust might become indebted to the Estate for a sum of money well in excess of the alleged 'unpaid liabilities' of the Estate ... We understand that the Family Trust is liquid, and it would not take long for the Family Trust to pay the Estate whatever amount it is properly liable to pay. Accordingly, on any view, the suggestion of selling one or more of the Estate real properties is premature ... It is nonsensical not to wait until the special referee's decision is received before looking to sell Estate property ... [the plaintiffs'] threat to take steps to sell Estate real property is premature, improper and unnecessary. Any application will be vigorously defended.[3]

4 The second defendant, who is the adult son of the deceased and a plaintiff in a proceeding against the estate seeking further provision pursuant to pt IV of the Administration and Probate Act 1958,[4] was served with the application, appeared and did not resist the application for the sale of the two estate assets.

5 The plaintiffs' application was heard on 14 and 21 December 2012. At these hearings, the plaintiffs raised their concerns with the Court that the estate would not be repaid by the Family Trust. At that time, the first defendant resisted that proposition and argued that the orders for sale should not be made because it would be determined whether the estate was owed money by the Family Trust within a short period of time and the application for the sale of the assets should be adjourned until that determination was made.[5]

6 Orders were made on 21 December 2012 whereby it was ordered that the Rye property and the Porsche motor vehicle be sold to meet estate liabilities. The costs of the application were reserved.

7 The first defendant appealed the decision. On 15 January 2013, the Court of Appeal dismissed the appeal and the first defendant was ordered to pay the plaintiffs' costs of the appeal. Those costs are currently the subject of a taxation.

8 On 7 March 2013, the plaintiffs' solicitors wrote to the solicitors for the first defendant, informing them that the plaintiffs' estimated costs of and incidental to the proceeding were $28 700.63 on a party party basis.[6] The plaintiffs' solicitors offered to accept the sum of $22 000 in full and final settlement of their costs. The first defendant did not respond to this offer.

9 In support of the plaintiffs' costs application, in her affidavit sworn 8 May 2013, Ms Rachel Lee Hocking exhibited an assessment of the plaintiffs' solicitor client legal costs of the proceeding, amounting to a total of $36 016.62, being costs of $22 611 and disbursements of $13 405.62.[7] These costs are certified by Ms Helen Bell, costs consultant, in accordance with the various applicable scales of costs.

10 Ms Hocking also referred to the draft financial accounts of the Morris Family Trust for the year ended 30 June 2012 and the period ended 31 March 2013.[8] These accounts show that, on 26 March 2013, the Family Trust was insolvent to the extent of $907 043.

11 The plaintiffs submitted that, as the first defendant was the sole director and shareholder of the corporate trustee of the Family Trust, in December 2012, when the plaintiffs' application was made for the sale of the Rye property, she should have known or, in fact, did know that the Family Trust was unlikely to be able to discharge any liabilities owing to the deceased's estate. The plaintiffs contended that, had proper enquiry been made, the Court should or would have been informed, at the hearings on 14 and 21 December 2012, that it was, in fact, unlikely that the estate would be repaid by the Family Trust. Accordingly, the application made to the Court for the order of the sale of estate assets was unnecessary because the sale of the assets was clearly required for the payment of the liabilities of the estate.

12 The plaintiffs submitted that their application for the sale of the estate assets was wholly successful and it was successful in circumstances where, had the necessary financial information concerning the Family Trust been brought to the attention of the Court, it would not have been necessary to make the application at all.

13 In such circumstances, the plaintiffs seek indemnity costs fixed by reference to the certified costs certificates exhibited to Ms Hocking's affidavit sworn 8 May 2013, being the sum of $36 016.62, alternatively, costs to be fixed as a gross sum pursuant to r 63.07(2)(c) of the Supreme Court (General Civil Procedure) Rules 2005 ('the Rules').

14 The second defendant sought his costs of the proceeding on an indemnity basis from the first defendant and adopts the submissions of the plaintiffs.

15 The second defendant says that, because he was served with the application seeking the sale of the estate assets, he appeared on 14 and 21 December 2012 and made submissions on both occasions.

16 The second defendant also submitted that the Court should have regard to ss 28 and 29 of the Civil Procedure Act 2010, which gives the Court considerable latitude and discretion in determining costs.

17 In respect of his quantum of costs, the second defendant relied on a tax invoice exhibited to the affidavit of Angela Natoli sworn 9 May 2013. This invoice claims professional fees of $7 436 and disbursements of $8 575, in all, a total of $16 315.59 inclusive of GST. This invoice gives a detailed description of the work undertaken by the solicitor for the second defendant. The invoice is not, however, certified by a costs consultant and it does not show the calculation of the amount. Nor does this invoice identify whether the work done is charged on scale or otherwise.

18 The first defendant opposed the applications for costs made by the plaintiffs and the second defendant and submitted that there should be no order as to costs.

19 Alternatively, the first defendant submitted that the costs of the proceeding should be reserved until the plaintiffs have complied with other orders made on 21 December 2012 and 19 March 2013.

20 Further, and alternatively, the first defendant submitted that, if any costs orders are made against her, they should be taxed on a standard basis, not as certified by the plaintiffs' costs consultant.

21 The first defendant relied on an affidavit by Mr Andrew Stops sworn 9 May 2013. This affidavit was sworn on the day of the hearing of the Costs Application and comprises 92 pages. Although the plaintiffs objected to the affidavit on the grounds of relevance and its late delivery, it is necessary to refer to the affidavit in the context of the Costs Applications.

22 In his affidavit, Mr Stops deposed that he is 'or was the lawyer responsible' for the conduct of a number of proceedings concerning the deceased's estate, namely the Superannuation proceeding;[9] the Family Trust Claim;[10] the first defendant's pt IV proceeding;[11] the defence of the plaintiffs' pt IV proceeding;[12] and this proceeding, being the proceeding for the sale of the Rye property and the Porsche motor vehicle.[13]

23 The first defendant submitted that the plaintiffs were not wholly successful in their application for the sale of the estate assets because Order 6 of the orders made in this proceeding on 21 December 2012 limited the manner in which the proceeds from the sale of the Rye property could be disbursed. Order 6 provides, amongst other things, that, from the sale proceeds of the Rye property, the plaintiffs must pay the deceased's debts and liabilities of the estate save 'for such amount of the costs and disbursements of [the solicitors for the plaintiffs] ... for the period up to and including 30 June 2012 as are disputed, on reasonable grounds, by the defendants or such one or other of them'. It was submitted that this Order reflected the 'live issue' that was ventilated by the first defendant on the application as to the level of fees that were said to be due and payable by the estate to the plaintiffs' solicitors.

24 Accordingly, because this issue remained a 'live issue', it would be premature to make a decision on the costs of this proceeding. This was because all of the costs issues between the parties in the numerous proceedings should be determined later.

25 In addition, the live issue of costs was referred to in the affidavit of Mr Stops where he deposed of his concerns about the costs incurred by the plaintiffs. He stated that he had written to the plaintiffs' solicitors seeking the basis of their claims for costs. He also referred to the response from the plaintiffs' solicitors and exhibited a report dated 9 May 2013 from Ms Penelope Van den Berg of Mahlab Costing, which commented on the bills that had been provided by the plaintiffs' solicitors.

26 Counsel for the first defendant stated that the first defendant may bring an application that disputed the quantum of the plaintiffs' costs or perhaps challenge the conduct of the plaintiffs' solicitors, but it was not clear what would be the basis of the claims or when it would be made.

27 Mr Stops also deposed that, pursuant to orders made on 19 March 2013, the plaintiffs were required to provide a statement of legal fees incurred by them in each of the proceedings relating to the estate, as well as the appeal in this proceeding, and that certain detailed bills had or have not been provided by the plaintiffs and a number of certificates that had been provided were or have not been signed.

28 It was submitted that the plaintiffs' should not have the benefit of a costs order in this proceeding when they had not provided the documentation that was ordered to be provided by them pursuant to the orders made on 21 December 2012 and 19 March 2013.

29 To the plaintiffs' submission regarding the insolvency of the Family Trust, the first defendant submitted orally that the first defendant did not know this to be the case in December 2012.

30 Finally, it was then submitted that, if any orders for costs were made against the first defendant, the effect of those orders would come 'down like a guillotine' on the first defendant as she could not afford to pay any costs. In these circumstances, it was submitted that the question of costs should be reserved.

31 In response to this final point, the plaintiffs submitted that, if the effect of any orders made against the first defendant might impose undue obligations on her whilst there are still matters to be decided, then it is open to the first defendant to seek a stay pending the finalisation of the other matters relating to the estate of the deceased.

32 The reference to the finalisation of other matters is a reference to ongoing issues raised in the Superannuation proceeding, possibly the Family Trust proceeding, the first defendant's pt IV proceeding and the second defendant's pt IV proceeding.

33 The two pt IV proceedings have now been heard but judgment cannot be delivered until the assets and liabilities of the estate are determined.

34 In the Superannuation proceeding, the special referee's report has been accepted and an interim judgment has been granted; however, there are outstanding issues that will be heard on 19 July 2013. After the determination of those issues, final judgment in that proceeding can be given.

35 The plaintiffs also submitted that there is no application currently before the Court in respect of any challenge to costs, notwithstanding that this issue was raised in December 2012. In any event, if the issue of costs were to be ventilated on the hearing of this application, the plaintiffs maintained that not all of the relevant material was before the Court.

36 The Court has a discretionary power with respect to costs, pursuant to s 24 of the Supreme Court Act 1986, which states that 'the Court has full power to determine by whom and to what extent the costs are to be paid'.

37 Order 63 of the Rules provides that the power and discretion of the Court shall be exercised subject to, and in accordance with that Order.[14]

38 This proceeding was heard and determined when the usual order as to costs was an award of costs to the successful party on a party party basis.[15]

39 In Oshlack v Richmond River Council McHugh J said:

Although the statutory discretion is broadly stated, it is not unqualified. It clearly cannot be exercised capriciously. Importantly, the discretion must be exercised judicially in accordance with established principle and factors directly connected with the litigation. In this manner, the law has gradually developed principles to guide the proper exercise of the discretion and, in some cases, to highlight extraneous considerations which, if taken into account, will cause the exercise of the discretion to miscarry. Consistent with the aim of justice, the law could not have developed otherwise.

... By far the most important factor which courts have viewed as guiding the exercise of the costs discretion is the result of the litigation. A successful litigant is generally entitled to an award of costs.[16]

40 There is no rule that a party may only recover indemnity costs where the other party should have known it had no chance of success. Principles guiding the proper exercise of the Court's power to award indemnity costs and categories of circumstances that warrant a special costs order are set out in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd ('Fountain Selected Meats').[17] In that case, Woodward J stated that indemnity costs may be appropriate:

whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law. Such cases are, fortunately, rare. But when they occur, the court will need to consider how it should exercise its unfettered discretion.[18]

41 In the case of Spencer v Dowling, Winneke P relevantly stated:

There can be no doubt that, in litigation in superior courts, the usual measure of costs awarded is on a party/party basis. There is, likewise, no doubt that a court does have the power to award costs on a higher measure if the circumstances require it. This practice in the superior courts is, in my experience, universal although it is well recognised that there is occurring an ever increasing gap between party/party costs and those actually incurred.[19]

42 In the case of King v The President, Councillors and Ratepayers of The Shire of Phillip Island, Nathan J expressed the practice in the following terms:

It is undoubtedly a principle of law that costs follow the event on a party and party basis, but that the courts are free to depart from that principle if confronted with circumstances where the conduct of one or other of the parties, in the given circumstances, would warrant the order of costs on an indemnity basis. There must be special circumstances which lift the case out of the ordinary.[20]

43 In Bass Coast Shire Council v King, Winneke P said:

The discretion to award costs on a solicitor and client basis is, thus, an unlimited one although it must be exercised judicially and not unreasonably. The circumstances in which a court might be moved to award costs on the solicitor and client scale should be described as 'special' if only to set them apart from the usual basis upon which costs are awarded.[21]

44 In relation to the Court's discretion to order a gross sum for costs instead of taxed costs, the principles applicable to the Court's exercise of the discretion have been succinctly set out by Croft J in Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 3)[22] and by Wood AsJ in ACN 074 971 109 (as trustee of the Argo Unit Trust) v National Mutual Life Association of Australasia Ltd.[23]

45 The purpose of making a gross sum costs order is to avoid the expense, delay and aggravation of protracted litigation arising from a taxation.[24] Although the power to assess a gross sum for costs is discretionary, the Court must still bear in mind the principles involved in an assessment of costs.[25] Where liability for costs is expected to be large and a taxation protracted and expensive, the financial position of the party liable to pay should be taken into account in exercising the discretion.[26]

Whether Costs Should Be Awarded on an Indemnity Basis

46 In my view, it is not appropriate that costs should be reserved or that no orders be made pending the outcome of any application that the first defendant may make against the plaintiffs in relation to her assessment of the quantum of costs.

47 The issues in dispute in this proceeding have concluded. The costs need to be determined, not only for the finalisation of this proceeding, but also for the finalisation of the outstanding issues in the other proceedings.

48 A successful litigant is usually entitled to their costs. The first defendant has been unsuccessful in the proceeding and, in my view, this is a proceeding where she should be ordered to pay the costs of the plaintiffs and the second defendant and those costs should be assessed on an indemnity basis.

49 In my view, this case falls within the category of special circumstances outlined in the authorities above, so as to justify a departure from the usual costs orders. As stated in Macedon Ranges Shire Council v Thompson, the position taken by the first defendant must be measured 'against the facts then known or which ought to have been known, the inquiries that the [first defendant] ought reasonably to have made and the legal advice which the [first defendant] ought reasonably to have obtained'.[27]

50 The purpose of the plaintiffs' letter dated 9 October 2012 was to avoid the costs and inconvenience of the proceeding. The first defendant's resistance to the application for the sale of the Rye property was misconceived and disregarded the facts and the law in respect of the application.

51 The first defendant disregarded the obligations of the plaintiffs to pay the creditors of the estate under s 37 of the Administration and Probate Act 1958. Without the orders for sale being made, those creditors could not be paid.

52 The first defendant also resisted the sale on a false premise, that is, that the Family Trust was liquid. That premise has now been demonstrated to be false and patently so. In my view, where the first defendant is the sole director and shareholder of the corporate trustee of the Family Trust, she ought to have known the true financial position of the Family Trust at the time the application was made in December 2012. Had proper enquiry been made and proper thought been given by the first defendant concerning the financial information of the Family Trust, the application for the sale of the Rye property and Porsche Boxster motor vehicle would never have been made because, with that information, it would have been, or should have been, clear to her that the sale of the assets was required for the payment of estate liabilities. The first defendant's reliance on a sentimental attachment to the Rye property to resist its sale, whilst understandable, could not be maintained in circumstances where no other funds existed in order to pay the debts of the estate.

53 In these circumstances, in my view, there has been a 'wilful disregard of known facts or clearly established law' on the part of the first defendant.

54 The first defendant's submission that the plaintiffs were not wholly successful is misconceived. The plaintiffs sought orders for the sale of the Rye property and Porsche Boxster motor vehicle and those orders were made. The restriction on the disbursement of the sale proceeds pursuant to Order 6(c) of the orders made on 21 December 2012 was a product of unspecified complaints made by the first defendant concerning the quantum of costs. Order 6(c) was a 'holding pattern' allowing the first defendant to clarify her stance on the costs. As stated, to date no application has been issued by the first defendant in relation to the 'live issue' of costs.

55 The orders made on 19 March 2013 that required the plaintiffs to provide a statement of legal fees incurred by them in each of the proceedings are a reflection of the Court's powers under the Civil Procedure Act 2010, one of which is to bring the costs of the extant litigation between the parties to the forefront of their minds and to assess whether, in this particular group of cases, there will be any assets left in the estate to distribute if the parties continue the litigation.[28] The proceedings that have resulted from the death of the deceased raise a real question as to whether the costs of the collective pieces of litigation will exhaust the assets of the estate.

56 For the abovementioned reasons, it is appropriate that the first defendant be ordered to pay the costs of the plaintiffs and the second defendant on an indemnity basis.

57 In my view, the first defendant should also pay the costs of the Costs Applications by the plaintiffs and second defendant, and, in respect of the plaintiffs' costs, on an indemnity basis. As stated, by their Calderbank letter dated 7 March 2013, the plaintiffs informed the first defendant that their party party costs were $28 700.63 and offered to accept the sum of $22 000 in full and final settlement of their costs. The first defendant did not respond to this offer.

58 The relevance of the rejection of a Calderbank offer in assessing costs is set out succinctly by the Court of Appeal in Hazeldene's Chicken Farm v Victorian Workcover Authority (No 2).[29] There is no presumption that the party rejecting a Calderbank offer should pay the offeror's costs on an indemnity basis if the offeree received a less favourable result. The correct approach is to treat the rejection of a Calderbank offer as a matter to which the Court should have regard when considering whether to order indemnity costs. Having regard to the underlying competing policy objectives, the critical question is whether the rejection of the offer was unreasonable in the circumstances. At the same time, the unreasonable refusal of a Calderbank offer is, by itself, a proper ground for an award of indemnity costs. While the Court of Appeal emphasised that it is neither possible nor desirable to give an exhaustive list of circumstances relevant to the exercise of the discretion, a court considering a submission that the rejection of a Calderbank offer was unreasonable should ordinarily have regard at least to the following matters:

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

(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.[30]

It is not necessary to establish misconduct by the offeree before the rejection of the offer can be viewed as unreasonable. Lack of merit in the way a party has conducted its case is not a prerequisite for the making of an indemnity costs order [on this ground].[31]

60 Finally, in Hazeldene's Chicken Farm v Victorian Workcover Authority (No 2),[32] the Court of Appeal cited with approval the policy objectives laid out by Hayne JA in Grbavac v Hart in respect of the rejection of an offer of compromise.[33] The Court of Appeal stated that those policy objectives are relevant to the exercise of a costs discretion where a Calderbank offer has been made. Those policy objectives are as follows:

(1) To encourage the saving of private costs and the avoidance of the inherent risks, delays and uncertainties of litigation by promoting early offers of compromise by defendants which amount to a realistic assessment of the plaintiff's real claim which can be placed before its opponent without risk that its 'bottom line' will be revealed to the court;

(2) To save the public costs which are necessarily incurred in litigation which events demonstrate to have been unnecessary, having regard to an earlier (and, as found, reasonable) offer of compromise made by a plaintiff to a defendant; and

(3) To indemnify the plaintiff who has made the offer of compromise, later found to have been reasonable, against the costs thereafter incurred. This is deemed appropriate because, from the time of the rejection or deemed rejection of the compromise offer, notionally the real cause and occasion of the litigation is the attitude adopted by the defendant which has rejected the compromise. In such circumstances that party should ordinarily bear the costs of litigation.[34]

61 In my view, having regard to the matters referred to by the Court of Appeal in Hazeldene's Chicken Farm v Victorian Workcover Authority (No 2),[35] the first defendant should pay the plaintiffs' costs of the Costs Application on an indemnity basis because:

(a) the plaintiffs' Calderbank offer was made by them after the plaintiffs had been wholly successful in their application to sell the deceased's property;

(b) the offer was open to the first defendant to accept for seven days;

(c) there was a real element of compromise represented by the terms of the plaintiffs' offer to the first defendant, given the plaintiffs were prepared to accept a lesser sum than that which would have been awarded to them on a party party basis;

(d) as at the date of the offer, the plaintiffs had a good prospect of recovering their costs on a party party basis upon application to this Court;

(e) the plaintiffs made clear their views that they were entirely successful in their application for the sale of the deceased's property and that the first defendant's opposition to that application was unreasonable; and

(f) the plaintiffs stated explicitly that the offer was a Calderbank offer and that, if the first defendant did not accept the offer, the plaintiffs would apply to this Court seeking an order for costs against the first defendant.

62 Further, I consider that the policy objectives outlined in Hazeldene's Chicken Farm v Victorian Workcover Authority (No 2)[36] favour an award of costs against the first defendant on an indemnity basis in respect of the plaintiffs' Costs Application. Multiple proceedings are before the Court in respect of this estate. The ever-increasing private costs of litigation, which will be to the detriment of all of the beneficiaries of the deceased's estate, and the necessary public costs in hearing applications, are of real concern to this Court. The hearing of the plaintiffs' Costs Application is occasioned by the first defendant's decision, in effect, to reject the Calderbank offer. While potential litigants should not be discouraged from bringing their dispute to the courts,[37] the first defendant's rejection of the Calderbank offer was unreasonable in all the circumstances and so justifies an award of indemnity costs.

63 In view of the protracted litigation between the parties in the past, I consider that the parties should be given some further time to attempt to agree on the quantum of the costs to be paid by the first defendant. The determination of the quantum of the costs in this proceeding will have an effect on not only the two pt IV proceedings before the Court but also any application for a stay that may be made by the first defendant.

64 The process for an attempt to agree will be assisted by the provision of the certified costs certificates provided by the plaintiffs. Although the second defendant has not certified its quantum of costs, the second defendant should be able to provide further information concerning the calculation of his quantum of costs reasonably quickly.

65 In the event that the parties are unable to agree on the quantum of the costs, I consider this to be an appropriate case to order costs to be assessed on a gross sum basis, pursuant to r 63.07 of the Rules and having regard to the legal principles outlined by Croft J in Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 3)[38] and by Wood AsJ in ACN 074 971 109 (as trustee of the Argo Unit Trust) v National Mutual Life Association of Australasia Ltd.[39]

66 In order for the parties to discuss the quantum of the costs, I shall adjourn the further hearing of this proceeding to 19 July 2013, when the Superannuation proceeding is to be heard.[40] I shall hear the parties on 19 July 2013 on the orders for costs and a stay.

[1] Letter from Aitken Partners Pty Ltd to Middletons dated 9 October 2012, Exhibit RLH1 to the Affidavit of Rachel Lee Hocking sworn 28 March 2013.

[2] Letter from Middletons to Aitken Partners dated 17 October 2012, Exhibit RLH2 to the Affidavit of Rachel Lee Hocking sworn 28 March 2013.

[5] Note: this is a reference to the foreshadowed finding made by the special referee in Wooster v Morris, S CI 2012 03693 ('the Superannuation proceeding').

[6] Letter from Aitken Partners to K & L Gates dated 7 March 2013, Exhibit RLH-6 to the Affidavit of Rachel Lee Hocking sworn 28 March 2013.

[7] Exhibit RLH-8 to the Affidavit of Rachel Lee Hocking sworn 8 May 2013.

[9] Wooster v Morris, S CI 2012 03693.

[10] Petunia Corporation Pty Ltd v Smoel, S CI 2012 03611.

[11] Morris v Smoel, S CI 2011 01113.

[12] Wooster v Morris, S CI 2011 01099. By consent, the Honorable Justice McMillan made orders on 1 May 2013 that the proceeding be discontinued.

[13] Note: until 10 April 2013, the firm, K&L Gates, (formerly Middletons) represented the first defendant in Morris v Smoel, S CI 2011 01113.

1. [14] Note: a new scale of costs and amendments to aspects of the costs rules took effect from 1 April 2013: Supreme Court (Chapter 1 New Scale of Costs and Other Costs Amendments) Rules 2012. The costs in respect of this application were incurred prior to 1 April 2013, apart from the application for costs.

[16] [1993] HCA 11; (1998) 193 CLR 72, 96 (citations omitted).

[17] [1988] FCA 202; (1988) 81 ALR 397.

[19] [1996] VSC 51; [1997] 2 VR 127, 147.

[20] (Unreported, Supreme Court of Victoria, Nathan J, 15 August 1994) [2].

[21] [1997] 2 VR 5, 29.

[22] [2012] VSC 399 (14 September 2012) [84].

[23] [2013] VSC 137 (26 March 2013) [5].

[24] Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 3) [2012] VSC 399 (14 September 2012) [84] (Croft J).

[26] Hadid v Lenfest Communications Inc [2000] FCA 628 (15 May 2000) [25] (Lehane J).

[27] Macedon Ranges Shire Council v Thompson [2009] VSCA 209 (24 September 2009) [15] (Redlich JA and Beach AJA).

[28] Civil Procedure Act 2010, ss 7 and 65C.

[29] [2005] VSCA 298; (2005) 13 VR 435, 442 (Warren CJ, Maxwell P and Harper AJA). Adopted recently in Sahin v National Australia Bank Ltd (Unreported, Court of Appeal, Supreme Court of Victoria, Warren CJ, Neave JA and Ferguson AJA, 2 May 2013) [8].

[30] [2005] VSCA 298; (2005) 13 VR 435, 436 (Warren CJ, Maxwell P and Harper AJA).

[31] [2004] VSC 351 (22 September 2004) [93].

[32] [2005] VSCA 298; (2005) 13 VR 435, 442 (Warren CJ, Maxwell P and Harper AJA).

[33] [1996] VSC 37; [1997] 1 VR 154, 164.

[34] [2005] VSCA 298; (2005) 13 VR 435, 441 (Warren CJ, Maxwell P and Harper AJA).

[35] [2005] VSCA 298; (2005) 13 VR 435, 442 (Warren CJ, Maxwell P and Harper AJA). See paragraph [58] above. Adopted recently in Sahin v National Australia Bank Ltd (Unreported, Court of Appeal, Supreme Court of Victoria, Warren CJ, Neave JA and Ferguson AJA, 2 May 2013) [8].

[36] [2005] VSCA 298; (2005) 13 VR 435, 442 (Warren CJ, Maxwell P and Harper AJA). Adopted recently in Sahin v National Australia Bank Ltd (Unreported, Court of Appeal, Supreme Court of Victoria, Warren CJ, Neave JA and Ferguson AJA, 2 May 2013) [8].

[37] Aljade v OCBC [2004] VSC 351 (22 September 2004) [60] (Redlich J).

[38] [2012] VSC 399 (14 September 2012) [84].

[39] [2013] VSC 137 (26 March 2013) [5].

[40] Wooster v Morris, S CI 2012 03693.