Select Harvests Pty Ltd v Jose Borrell S.A. [2025] VSC 839

1. The plaintiff, Select Harvests Pty Ltd ('Select'), and the defendant, Jose Borrell S.A. ('Borrell'), were parties to a 2015 agreement pursuant to which Borrell was to supply, commission and install an industrial almond roaster for Select. Borrell is a company registered under Spanish law.
2. Clause 15 of the agreement provided:

15. GOVERNING LAW AND JURISDICTION

The processing of any order and completed purchase implies acceptance by Buyer of these terms in each and every clause. In the event of any dispute that may arise from the contracted operation, the parties submit to Spanish Law and the jurisdiction of the Courts of Dénia (Alicante), having waived their own jurisdiction.

1. In a writ and statement of claim filed in this Court,[1] Select alleged that in April 2019 a fire originated in the almond roaster supplied by Borrell which damaged the roaster and Select's Australian premises, resulting in business interruption losses. Select alleged the fire was caused by Borrell's negligence, or alternatively, by its breaches of the agreement.
2. After being served with the proceedings, Borrell applied under r 8.08 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules') for orders that service of the writ and the statement of claim on it be set aside and that the substantive proceeding be dismissed or permanently stayed, on the basis that the Courts of Dénia had exclusive jurisdiction pursuant to cl 15 of the agreement to hear and determine any dispute between the parties.
3. On 30 October 2025, an Associate Justice made the orders sought by Borrell, including permanently staying the proceeding, accepting that cl 15 was an exclusive jurisdiction clause. His Honour published his reasons ('Reasons').[2]
4. On 13 November 2025, Select appealed against the orders made by the Associate Justice pursuant to Order 77 of the Rules, contending that his Honour erred by:

(a) misdirecting himself as to the correct legal principle to be applied in construing whether cl 15 was an exclusive jurisdiction clause or a non-exclusive jurisdiction clause (Ground 1); and

(b) failing to properly construe that part of cl 15 which provided that the parties 'waived their own jurisdiction' (Ground 2).

1. The appeal was heard on 17 December 2025. It was well and economically argued by counsel for both parties.
2. These reasons assume a familiarity with, and should be read in light of, the Reasons. For the reasons that follow I have determined that the appeal must be dismissed.

1. An appeal by notice under r 77.06 of the Rules from a decision of an Associate Justice is by way of rehearing. To succeed, the appellant must establish the orders made by the Associate Justice were the result of some error.[3]
2. The errors that require consideration are those specified in the Notice of Appeal.

1. The Associate Justice identified three questions for consideration in resolving the application. The first was whether the pleaded claims in contract and negligence were disputes which arose from the contracted operation, within the ambit of cl 15. His Honour held that they were.[4]
2. The second was whether cl 15 operated as an exclusive or non-exclusive jurisdiction clause. As mentioned, his Honour held cl 15 should be construed to operate as an exclusive jurisdiction clause.[5] His Honour did not accept Select's contention that the use of the word 'submit' in cl 15 - as distinct from 'referred to' - when identifying the court of a particular jurisdiction, gives rise to a construction that the clause was intended to be non-exclusive.[6] It is this second question which is the subject of this appeal, and it is useful to set out his Honour's finding in full:

[104] In my opinion, Clause 15 should be construed to operate as an exclusive jurisdiction clause as Borrell contends. The contract for the roaster was drafted specifically for the design and manufacture of the roaster by representatives of the parties, who are both commercially sophisticated entities. The contract contained elaborate and detailed terms, including a very specific and precise identification as to the court to which the parties agreed that they would submit to the jurisdiction of in the event 'any dispute that may arise from the contracted operation'. One can perhaps understand why this was agreed. The evidence is that the roaster was designed, manufactured and tested by Borrell in Spain and the identified court is an understandable choice of venue (as is the choice of Spanish law, but that as has been said is not determinative of the issue under consideration here). Applying the test of what a reasonable business person would have understood the significance of the reference to the Spanish court to be, in my view it is clear and unambiguous that they agreed to take any disputes to the identified court to the exclusion of any other.

[105] I do not accept Select's contention that the use of the word 'submit' in Clause 15 as against 'referred to' when identifying the court of a particular jurisdiction gives rise to a construction that the clause was intended to be non-exclusive. In this regard, I consider that the clause, viewed as a whole, with its very specific identification of a particular Spanish court to which the parties agreed to 'submit', is evincing a clear and unambiguous intention by the parties that in the event of a dispute, they were each obliged to bring any claims in that Court. The question is not whether Select's claims can be heard in Spain without it being disadvantaged; the parties agreed to the choice of venue being the Spanish court and no doubt that will not be as convenient to Select as litigating its claim in this jurisdiction.

1. Further, his Honour rejected Select's contention that the inclusion of the words 'having waived their own jurisdiction' rendered cl 15 a nonsense.[7]
2. Third, if cl 15 was considered an exclusive jurisdiction clause, his Honour held it must be considered whether there were any features of the matter which would displace the prima facie position that the parties should be held to their bargain in this respect. His Honour concluded there were no such features.

D Ground 1: alleged misdirection as to the principle to be applied

1. Select took issue with what it said was the Associate Justice's reliance on the decision in Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) ('Global Partners'),[8] in determining whether cl 15 was an exclusive jurisdiction clause. Select said his Honour relied on Global Partners for the following propositions:

(a) there was a 'strong disposition towards a broad and generous interpretation' in favour of a finding that cl 15 was an exclusive jurisdiction clause;

(b) whether a clause is an exclusive jurisdiction clause ought be construed and interpreted in a 'liberal manner'; and

(c) in the context of construing such a clause, it is not appropriate to give general words in a commercial context a narrow interpretation.[9]

1. However, as Select identified, there was no dispute in Global Partners that the relevant clause was an exclusive jurisdiction clause; the issues to be determined by the New South Wales Court of Appeal were whether the dispute fell within the scope of the exclusive jurisdiction clause, and whether, notwithstanding the exclusive jurisdiction clause, the proceeding commenced in New South Wales ought to be stayed.[10] As the construction question which required determination in this case did not arise in Global Partners, the findings of the Court of Appeal were not applicable. By applying Global Partners, Select submitted his Honour misdirected himself as to the correct legal principles and approach to be taken, leading his Honour into error.
2. Select's main argument in support of this ground of appeal was that, in light of the wording of cl 15 - which employs language of submission and includes no mandatory terms such as 'exclusive' or 'required' or 'shall' - and adopting the proper construction approach set out in relevant authorities, it was not open to his Honour to find that cl 15 evinced 'a clear and unambiguous intention by the parties that in the event of a dispute, they were each obliged to bring any claims in [Dénia]'.[11]
3. Select drew attention to the High Court of Australia's decision in Akai Pty Ltd v People's Insurance Co Ltd ('Akai'),[12] where Dawson and McHugh JJ observed that:

An exclusive jurisdiction clause is one which imposes a contractual obligation on one or more parties to litigate in the stated jurisdiction." The question is whether on its true construction the clause obliges the parties to resort to the relevant jurisdiction irrespective of whether the word exclusive is used.[13]

1. Select placed significant reliance on the decisions of M Osborne J of this Court in Need Pty Ltd v Need Essentials USA LLC ('Need')[14] and the New South Wales Court of Appeal in Joshan v Pizza Pan Group Pty Ltd ('Joshan')[15] to argue that the use of 'language of submission', as distinct from 'language of reference', was a strong indicator that a clause was not intended to be an exclusive jurisdiction clause.
2. In Need, M Osborne J noted that determining whether a clause is an exclusive jurisdiction clause requires construing the particular contract having regard to the circumstances surrounding the entry into the contract so far as is permissible in the case of any other commercial contract.[16] The question for determination is whether the words of the clause permit a construction which carries with it an implied prohibition to litigate in a jurisdiction other than that nominated in the clause.[17]
3. In the case before his Honour, there were no surrounding circumstances which assisted in the relevant analysis, and authorities to which his Honour was referred were distinguishable. His Honour concluded that the question of construction had to be carried out essentially by reference to the words of the clause alone.[18] His Honour held that '[t]he language of the clause is consistent with words of submission, not reference', and that parties to an agreement may submit themselves to a jurisdiction, but no more.[19] Submission to a jurisdiction, Select contended relying on Need, is therefore permissive, but not mandatory.
4. Select also relied on the following passage of Bell P in Joshan:[20]

Generally speaking (although the true nature of such clauses is driven by their precise wording), a non-exclusive jurisdiction clause entails no more than a submission to the nominated jurisdiction. It neither requires litigation to proceed in that forum nor precludes either party from suing in another forum which has jurisdiction to resolve the dispute between the parties.[21]

1. This, Select said, was the New South Wales Court of Appeal observing that the language of submission is indicative of a non-exclusive jurisdiction clause (or is otherwise neutral).
2. Select submitted that cl 15 does not use such language of reference. Further, while mandatory language such as 'exclusive', 'shall' and 'required' is used elsewhere in the agreement, none of those words appear in cl 15.
3. Select also referred to Ace Insurance Ltd v Moose Enterprise Pty Ltd ('Ace Insurance')[22] where Brereton J in the Supreme Court of New South Wales observed that given it is 'so straightforward' to draft a clause that is manifestly an exclusive jurisdiction clause, the absence of the word 'exclusive' tends against a clause being interpreted as an exclusive jurisdiction clause.[23]
4. On these bases, Select submitted it was not open to his Honour to find that the language of submission, and absent any mandatory language, evinced 'a clear and unambiguous intention by the parties that in the event of a dispute, they were each obliged to bring any claims in [Dénia]'.[24] In doing so, his Honour impermissibly departed from the correct principles and approach identified in Need and in Joshan.

1. Borrell contended that Select mischaracterised the Associate Justice's treatment of the decision in Global Partners. His Honour referred to the decision in a summary of principles governing the construction and enforcement of exclusive jurisdiction clauses. Accepting that the principles may have extended beyond the subject matter of the second question, a fair reading of the Reasons makes clear that his Honour did not err in construing cl 15 by relying on Global Partners. His Honour did not characterise cl 15 as an exclusive jurisdiction clause by adopting a 'broad and generous' or 'liberal' approach, nor by rejecting a narrow construction. Rather, his Honour correctly identified and applied orthodox and well-established legal principles of contractual construction in determining the proper character of the clause.
2. Specifically, Borrell noted that the Associate Justice:

(a) identified that resolution of the second question involved an application of the principles applicable to the construction of a commercial agreement generally, as summarised by the Victorian Court of Appeal in VS Property & Holding Pty Ltd v Zurzolo ('VS Property');[25]

(b) acknowledged Select's submissions as to the principles relevant to determining whether or not a jurisdiction clause is exclusive, including citing Need, Joshan and Akai; and

(c) applied those legal principles to hold that cl 15 operates as an exclusive jurisdiction clause, reasoning that:

(i) the contract was drafted specifically for the design and manufacture of the almond roaster by representatives of the parties who are both commercially sophisticated entities;

(ii) the contract contained a 'very specific and precise identification as to the court'; and

(iii) Spain was an understandable choice of venue given the roaster was designed, manufactured and tested there by Borrell.

Applying the test of what a reasonable business person would have understood the significance of the reference to the Spanish court to be, in my view it is clear and unambiguous that they agreed to take any disputes to the identified court to the exclusion of any other.[26]

1. The Associate Justice considered, and rejected, Select's main argument that the use of language of submission rather than language of reference supported a construction that the clause is non-exclusive.[27] His Honour observed:

[T]he clause, viewed as a whole, with its very specific identification of a particular Spanish court to which the parties agreed to 'submit', is evincing a clear and unambiguous intention by the parties that in the event of a dispute, they were each obliged to bring any claims in that Court.

1. Borrell submitted there was no error in the Associate Justice's approach. A plain reading of the clause does not suggest that the parties have the option of suing in the Courts of Dénia; the natural meaning of the clause is that both parties are obliged to submit 'any dispute that may arise from the contracted operation' to that court. This implies a stipulation not to sue other than in the Courts of Dénia.
2. A closer review of the decisions on which Select relied in attempting to persuade the Court that dispositive weight should be accorded to the language of submission - such as Need and Joshan - demonstrates the error of Select's position. Need does not stand for the broad proposition that the language of submission in a jurisdiction clause is invariably permissive rather than mandatory. As M Osborne J observed, '[t]he question of whether a jurisdiction clause is an exclusive jurisdiction clause is a question of the construction of the particular contract'.[28] The observations of M Osborne J in Need relied on by Select were directed to the specific terms of the clause in that case - a clause which was materially different from cl 15.
3. Similarly, Borrell submitted the Court in Joshan did not in fact observe that the language of submission is indicative of a non-exclusive jurisdiction clause. The point made by Bell P was that, generally speaking, a non-exclusive jurisdiction clause entails no more than a submission to the nominated jurisdiction - it does not oblige either party to proceed in that forum nor preclude either party from suing in another forum.[29] That observation provides no assistance in demonstrating error on the part of the Associate Justice in construing cl 15.
4. The absence of the word 'exclusive' in cl 15 is not determinative.[30] In FAI General Insurance Co Ltd v Ocean Marine Mutual Protection & Indemnity Association Ltd,[31] Giles CJ stated:

The word "exclusive" is not determinative, and a clause may be held to be an exclusive jurisdiction clause notwithstanding the absence of that or a similar word or phrase ... it would be a surrender to formalism to require a jurisdiction clause to provide in express terms that the chosen court is to be the exclusive forum.[32]

1. At its highest, Borrell submitted, the absence of the word 'exclusive' does no more than tend against cl 15 being an exclusive jurisdiction clause.[33] In Need, for example, the absence of the word 'exclusive' was treated as a neutral consideration in construing the relevant clause.[34]
2. Similarly, that cl 15 does not use the words 'shall' and 'required' is not determinative. A jurisdiction clause may still be exclusive even in the absence of such words.[35] As Bell P observed in Inghams Enterprises Pty Ltd v Hannigan,[36] '[d]ispute resolution clauses may be crafted and drafted in an almost infinite variety of ways and styles'.[37] Attention must be paid in every case to the precise language of the clause in the constructional task.[38]

1. It appeared to be common ground before me that Global Partners - a decision concerned not with the constructional question of whether a clause was an exclusive jurisdiction clause but whether a particular dispute fell within the scope of an exclusive jurisdiction clause - was relevant to the determination of the first and third questions identified by the Associate Justice, but not to the determination of the second question, which is the subject of this appeal.
2. It is true that the Associate Justice's discussion of the decision in Global Partners appears at paragraphs [100]-[103] of the Reasons, under the heading 'Is Clause 15 an exclusive jurisdiction clause which obliges Select to make its claims in the Spanish Court?'. Despite this, it does not appear that the discussion and analysis of Global Partners (and other authorities there cited) was relied on by his Honour to reach his conclusion in paragraphs [104] and [105], under the same heading, that cl 15 is an exclusive jurisdiction clause.
3. As submitted by Borrell, while paragraphs [100]-[105] of the Reasons purportedly address the second question, it is clear that the summary of legal principles there referred to by the Associate Justice in fact extend beyond the subject matter of the second question.
4. A fair reading demonstrates that the Associate Justice correctly identified that whether cl 15 was to be properly construed as an exclusive jurisdiction clause depended on an application of the principles relevant to the construction of a commercial contract as set out by the Court of Appeal in VS Property.[39] Particularly, the last sentence of paragraph [104] refers to the test of what a reasonable businessperson would have understood, a clear reference to the decision of the Court of Appeal in VS Property.
5. To the extent, if at all, his Honour relied on analysis in Global Partners, I do not consider that any such reliance led his Honour into error in the result.
6. Two further matters should be briefly mentioned. Select identified in oral submissions that his Honour's conclusion in paragraph [104] that the 'contract for the roaster was drafted specifically for the design and manufacture of the roaster by representatives of the parties' was inconsistent with what was common ground between the parties and what appeared earlier in the Reasons, that cl 15 appeared in a document which contained Borrell's standard terms and conditions.[40] Similarly and in the same paragraph, his Honour appears to have deployed choice of venue considerations as being supportive of his construction of cl 15 as an exclusive jurisdiction clause, though noting such considerations were not determinative. I accept these matters may be errors on the part of the Associate Justice, however, as will be shown, I am in no doubt that his Honour was correct in the result.
7. Turning to the main argument relevant to this ground of appeal, Select contended the authorities demonstrate the use of language of submission and the absence of mandatory language should persuade the Court the clause is non-exclusive as to jurisdiction. Borrell submitted that what the authorities demonstrate is that the question of whether a clause is an exclusive jurisdiction clause is a question of construction of the particular contract.
8. The construction task concerning cl 15 begins and ends with the text of the clause, taken in context and having regard to its purpose. The construction must be approached through the lens of the reasonable businessperson.
9. When construing this clause it is critical to focus on the two elements to which the word 'submit' is directed in cl 15. The parties agreed not simply to submit to the jurisdiction of the courts of Dénia, but 'to submit to Spanish Law and the jurisdiction of the Courts of Dénia (Alicante), having waived their own jurisdiction'.
10. The parties agreed before the Associate Justice and agreed before me that so far as cl 15 relates to Spanish law, the clause is an exclusive jurisdiction clause. The proposition that the parties nominated a single law to be applied, Spanish law, is significant when it comes to construing cl 15 and that part of the clause which refers to the Courts of Dénia. It would be an odd result if the word 'submit' had a different meaning as it relates to Spanish law than it has in the same clause, separated only by the conjunction 'and', when it comes to the question of the jurisdiction of the Courts of Dénia.
11. The desirability of adopting a consistent approach - giving the same meaning to a single word within the clause, 'submit' - needs to be balanced against the fact that other parts of this standard form terms and conditions, for example cls 4.2, 9.5 and 11.1, deliberately use the word 'exclusive'. Why not use the word 'exclusive' in cl 15 if that is the intention both regarding the governing law and the choice of jurisdiction?
12. Select is correct that, by way of example, an Australian court in an appropriate case could apply Spanish law. However, the specification of Spanish law in cl 15 is intended to be and is recognised and agreed by the parties to be an exclusive reference to the law which is to govern any disputes between them. It is not a reference to an option or a choice. That is notwithstanding that cl 15 does not say the parties submit to Spanish law 'exclusively'.
13. While the draughtsperson could have said the parties 'submit exclusively to Spanish Law', there was no need to do so. Specifying Spanish law carries with it the necessary connotation that, consistent with the heading to cl 15, the governing law, Spanish law, is exclusive. The word 'exclusive' being otiose to make good the proposition that only Spanish law is to be applied, it is unsurprising the word 'exclusive' does not form part of cl 15 so far as submission to the Courts of Dénia is concerned.
14. Borrell correctly identified that cl 15 is a materially different clause to that considered by M Osborne J in Need. In Need, the relevant clause was in the following terms:

This Agreement is governed by the laws of Victoria, Australia and each party hereby submits and consents to the jurisdiction and venue in the proper federal, state or district courts located in Victoria, Australia.

1. As can be seen from the above text, in Need the 'submission' was not a submission concerning both the governing law and jurisdiction. Clause 15 in this contract applies the same language to both the governing law and jurisdiction. That approach reflects the title to cl 15 'Governing Law and jurisdiction'.
2. What the authorities demonstrate is that the question of whether a clause is an exclusive jurisdiction clause is a question of construction in each particular case; there may be cases where a clause utilising the language of submission and absent mandatory language will nonetheless be properly construed as an exclusive jurisdiction clause. This is such a case. The contradiction in the construction that Select advanced cannot be accepted.

E Ground 2: 'having waived their own jurisdiction'

1. Ground 2 of the appeal concerns the concluding words of cl 15: 'having waived their own jurisdiction'.
2. Before the Associate Justice, Select contended that:

[T]he words in Clause 15, 'having waived their own jurisdiction', produces a nonsensical result. On a literal application, it must follow that Borrell has waived its own jurisdiction, being the Courts of Dénia. The logical result is that the clause produces no jurisdiction. The clause is therefore neither clear nor unambiguous. To the extent it is ambiguous, it should be construed contra proferentem against Borrell such that Clause 15 is not an effective exclusive jurisdiction provision.

[I]f both parties have waived their jurisdiction, then jurisdiction may be determined by the place of the tort (lex loci delicti commissi), being Victoria.[41]

1. His Honour's conclusion on this topic was brief:

[108] Further, I do not consider that there is any logical impediment for parties to first waive their native jurisdiction and then to submit to a named jurisdiction, even if that named jurisdiction happens to be one party's native jurisdiction. While perhaps curious drafting, it does not render the clause a nonsense.

1. On appeal, Select argued that his Honour failed to consider its submissions in respect of the asserted mutual waiver. In assessing the language of the clause, his Honour did not consider whether Borrell had waived its entitlement to litigate in that jurisdiction. Had the Associate Justice done so, his Honour ought to have concluded that it was so nonsensical as to render that part of cl 15 inoperative, resulting in the proper forum being that of the place of the tort.
2. Alternatively, having found that the drafting of the waiver part of cl 15 was 'curious' - which Select said was akin to a finding of ambiguity - his Honour should have concluded that the provision was sufficiently ambiguous so as to require the clause to be construed contra proferentem against Borrell.
3. In considering that there was no 'logical impediment for parties to first waive their native jurisdiction and then to submit to a named jurisdiction, even if that named jurisdiction happens to be one party's native jurisdiction', his Honour purported to resolve the obvious ambiguity and nonsensicality of the mutual waiver provision by adopting an interpretation that was both unnecessarily favourable to Borrell and contrary to the clear language of the term. Select submitted the illogicality ought to have been obvious, namely, for the drafter of a clause to submit to a jurisdiction and then waive it in the same sentence.
4. Select submitted that his Honour's interpretation has the logical and practical effect that only Select waived its own jurisdiction. It renders Borrell's waiver of its own jurisdiction nugatory. Select submitted that in endeavouring to dispose of the issue in that manner, his Honour effectively and impermissibly re-drafted the term.

1. In response, Borrell submitted that Ground 2 discloses no error by the Associate Justice. His Honour engaged directly with Select's submissions that 'having waived their own jurisdiction' produced a nonsensical outcome and that, applying the contra proferentem principle, cl 15 should be construed against Borrell as a non-exclusive jurisdiction clause.[42] His Honour also acknowledged Select's alternative argument that if both parties had waived their jurisdiction, then jurisdiction may be determined by the place of the tort.[43] His Honour recognised that, unless a contrary intention appears in the contract, a court is entitled to interpret a contract on the assumption that the parties intended to produce a commercial result and should avoid a construction that yields a commercial nonsense.[44]
2. Borrell said his Honour properly considered the words 'having waived their own jurisdiction' as part of the constructional task, construing those words according to orthodox principles and by reference to their plain and ordinary meaning. The contra proferentem principle had no role to play as a 'point of intractability'[45] in the construction of cl 15 had not been reached.
3. Having engaged with Select's submissions, his Honour ultimately concluded that cl 15 was not a nonsense, observing that there is no 'logical impediment for parties to first waive their native jurisdiction, and then to submit to a named jurisdiction, even if that named jurisdiction happens to be one party's native jurisdiction'. There is no error in that conclusion.

1. The Reasons, read fairly, establish that the Associate Justice did not fail to consider either the submissions or the effect of the submissions advanced by Select concerning the concluding words in cl 15, 'having waived their own jurisdiction'. Paragraphs [91] and [92] of the Reasons set out those submissions, which were in substance repeated during the hearing before me. Although the finding in paragraph [108] of the Reasons in relation to this issue is brief, the finding directly responds to the submission by Select the words in question produce 'a nonsensical result'.
2. I agree with the Associate Justice, but for a different reason, that the words do not result in a 'nonsense'. This is because, as a matter of construction, the waiver only operates in respect of Select.
3. Reading cl 15 as a whole, the opening sentence refers to only one party to the contract, the Buyer, who is taken to accept 'these Terms in each and every clause'. Amongst the terms are accepted by the Buyer, Select, is that pursuant to cl 15, the Buyer has waived their own jurisdiction.
4. Accepting that as a matter of construction, where possible effect should be given to every word in the document and no part should be treated as redundant,[46] to read the waiver as applying only to the Buyer is consistent both with the reference to Buyer in the first sentence of cl 15 and with a construction which produces a commercial result.
5. To construe the waiver as applying to both parties to the contract may lead to a commercial nonsense. However, no such construction is required. The context in which the words in question are found includes the opening sentence which frames the commercially dictated meaning to the concluding words in cl 15. In substance, the waiver referred to is a waiver by the Buyer, Select. It has no application to Borrell.

1. Although I have reached my conclusions by different reasoning processes to those adopted by the Associate Justice, I agree with his Honour in the result both that cl 15 is an exclusive jurisdiction clause and that the concluding words of that clause do not render it a nonsense. Accordingly, neither Ground 1 nor Ground 2 of the appeal are made out.
2. The appeal is dismissed. I order Select pay Borrell's costs of the appeal.

[1] On 22 December 2022 and 1 March 2023, respectively.

[2] [2025] VSC 777 ('Reasons') (Gardiner AsJ).

[3] Oswal v Carson [2013] VSC 355, [11] (Ferguson J).

[8] [2010] NSWCA 196; (2010) 79 ACSR 383 (Spigelman CJ, Giles and Tobias JJA).

[10] Global Partners [2010] NSWCA 196; (2010) 79 ACSR 383, [39]-[92].

[12] [1996] HCA 39; (1996) 188 CLR 418.

[13] Ibid [425], citing Berisford Plc v New Hampshire Insurance [1990] 2 QB 631, [636].

[14] [2023] VSC 184.

[15] [2021] NSWCA 219; (2021) 106 NSWLR 104.

[16] Need [2023] VSC 184, [105].

[20] [2021] NSWCA 219; (2021) 106 NSWLR 104.

[21] Ibid 122, [81] (Bell P, Gleeson JA agreeing, McCallum JA relevantly agreeing).

[22] [2009] NSWSC 724.

[25] [2024] VSCA 199, [54] (Niall, Walker and Kenny JJA).

[28] Need [2023] VSC 184, [105].

[29] Joshan [2021] NSWCA 219; (2021) 106 NSWLR 104, [81].

[30] See Ace Insurance [2009] NSWSC 724, [33].

[31] (1997) 41 NSWLR 117.

[32] Ibid 126, quoted in Ace Insurance [2009] NSWSC 724, [32].

[33] Ace Insurance [2009] NSWSC 724, [33].

[34] Need [2023] VSC 184, [111].

[35] See, eg, Ace Insurance [2009] NSWSC 724.

[36] [2020] NSWCA 82; (2020) 379 ALR 196.

[38] Joshan [2021] NSWCA 219; (2021) 106 NSWLR 104, [81].

[45] Western Australian Bank v Royal Insurance Co [1908] HCA 11; (1908) 5 CLR 533, 559 (Barton J).

[46] See for example XL Insurance Co SE v BNY Trust Co of Australia Ltd [2019] NSWCA 215, [72] (Gleeson JA, Bell P and Emmett AJA agreeing).