SMITH v YUSEN DALY SMITH INTERNATIONAL

Court of Appeal (NSW)|2001-09-26|Before: Spigelman CJ, Beazley JA, Hamilton J, Meagher JA

Background Facts and History of the Proceedings 2 Smith was a director of Daly Smith Corporation Pty Ltd ("DSC"). That company later changed its name to Thanyule Pty Ltd ("Thanyule"). Smith was also associated with a number of other companies. These included Daly Smith (Management Services) Pty Ltd ("Management Services") and Daly Smith Corporation (Australia) Pty Limited ("DSC (Australia)"). 3 DSC conducted a warehousing and transport business. It wished to enter a joint venture with an unrelated Japanese company. YDSI was the vehicle for that joint venture. 4 In 1989 YDSI purchased DSC's business, borrowing $3.8 million from the Bank of Tokyo ("BTO") in order to do so. As part of the security for that loan ANZ, at the request of YDSI, provided a bank guarantee in favour of BTO to the value of $2.65 million. For reasons that are not important to these proceedings, this guarantee was later replaced (in April 1994) by two guarantees, each to the value of $1.325 million. 5 ANZ in turn took security to support the bank guarantee that it had provided. This was initially by way of an indemnity from DSC for the $2.65 million. When the single guarantee was replaced by two separate guarantees, Smith personally indemnified ANZ for $1.325 million. 6 As well as taking such security, ANZ charged periodic fees for the provision of the bank guarantees. For the initial single guarantee of $2.65 million, those fees were deducted from the account of YDSI and then, upon the cessation of YDSI's account by July 1992, from the account of Thanyule. From August 1993, the fees were deducted from the account of Management Services. Management Services continued to pay all of the bank guarantee fees even after the two individual guarantees of $1.325 million came into existence. 7 In a transaction separate from the bank guarantee arrangements, YDSI obtained an overdraft facility from ANZ. Security for this facility included a mortgage debenture creating a charge in favour of ANZ over the undertaking and all assets of YDSI. It contained an 'all moneys' clause. 8 In October 1994, following default by YDSI on its loan repayment obligations to BTO, BTO made a demand on ANZ for $1.325 million pursuant to the relevant bank guarantee. ANZ paid that amount and debited it to Smith's loan account. Litigation then ensued. 9 Later in October of 1994, Smith initiated proceedings against YDSI claiming payment of the $1.325 million and the amount outlaid by Smith in fees to support the bank guarantee, or alternatively, the winding up of YDSI (those proceedings were numbered ED 4058/94). In March of 1995, those proceedings culminated in orders being made by consent for the winding up of YDSI on the ground of insolvency. 10 In April 1995, Smith again commenced proceedings against YDSI, then in liquidation, and against its liquidator, Mr Binet (those proceedings were numbered ED 1913/95). ANZ was also a party to those proceedings. Smith sought to be subrogated to ANZ's rights and remedies under the mortgage debenture that was executed by YDSI as security for YDSI's overdraft. In so doing, Smith sought an entitlement to recover as a secured creditor items secured by the mortgage. Young J delivered judgment in this matter finding that Smith paid the sum of $1.325 million as surety for YDSI, but that Smith was not subrogated to ANZ's rights under the mortgage debenture. 11 In November 1996 the latter aspect of Young J's decision was overturned on appeal (proceedings CA 40392/95) with the result that Smith was subrogated to ANZ's rights and remedies pursuant to the mortgage debenture. ANZ did not take part in the appeal. The orders of the Court of Appeal granted liberty to any party "to apply to a judge of the Court with respect to the quantification of the said moneys, costs, charges, expenses and interest". Costs of the hearing were awarded to the successful party: Smith. 12 In December 1996, ANZ assigned to Smith all its rights, title and interest in and under the mortgage debenture. It did so after DSC Australia had paid to ANZ an amount representing legal fees incurred by ANZ in the subrogation proceedings before Young J. Smith's loan account with DSC Australia was debited for that amount. Smith then claimed that amount from YDSI. Smith demanded that this payment be made to him by 28 April 1997. When this payment was not made, Smith, in May 1997, appointed a receiver under the mortgage debenture, purportedly acting under the abovementioned assignment. This reactivated the parties' thirst for litigation. 13 A number of procedural issues were raised. In substance, two claims were pressed. First, Smith sought to make an application for 'interpretation' of the orders of the Court of Appeal. Second, YDSI sought to challenge the validity of the appointment of the receiver. Hamilton J was of the view that the first of these matters should be determined by the Court of Appeal. 14 The motion filed in the Court of Appeal registry included matters not capable of falling within the sphere of "quantification" for which the Court of Appeal had reserved liberty. Some, however, did. The motion sought the payment to Smith by YDSI of four items. These were:

(b) The legal costs of Smith, assessed on a solicitor and client basis, incurred in the winding up proceedings, the subrogation proceedings (both in the Equity Division and before the Court of Appeal) and a High Court special leave application;

(d) Capitalised periodical interest in addition to the sum of $1.325 million paid pursuant to the outcome in the subrogation proceedings. 15 The motion was heard and dismissed by Meagher JA, sitting alone, in November 1997. His Honour determined that none of the matters listed was within the ambit of the orders of the Court of Appeal. 16 On the hearing of this appeal, counsel for Smith informed the Court that Smith did not seek payment of interest (item (d) before Meagher JA) or payment of costs for the application for special leave to appeal to the High Court. However, the other matters the subject of the decision of Meagher JA were pressed by Smith. 17 Following the decision of Meagher JA, Management Services, in January 1998 assigned to Smith all its right, title and interest in and under the mortgage debenture. The deed of assignment recorded that payments had been made by Management Services to ANZ for and on behalf of YDSI on account of the guarantee fees charged by the bank. It further recorded that the liability to pay such fees was secured under the terms of the mortgage debenture. 18 In May 1999, June 2000 and August 2000 Hamilton J delivered three separate judgments in the matter of YDSI v Smith (ED 2400/97). In his Honour's judgment given in May 1999, Hamilton J held as follows:

1 Smith could not recover his costs on a solicitor and client basis as a debt secured under the mortgage debenture.

2 Smith could not, by virtue of subrogation, recover the amount of ANZ's costs as a debt secured under the mortgage debenture.

3 Under the general law of subrogation Smith could not recover the amount paid to ANZ in guarantee fees as a secured debt under the mortgage. However, pursuant to the assignment of 1998 Smith was entitled to some part of the amount paid by Management Services as surety for YDSI on account of the bank guarantee fees. 19 In June 2000, Hamilton J delivered his second judgment in this matter. He determined that:

1 Smith did not acquire an entitlement to recover as a secured debt ANZ's legal costs by virtue of the assignment of 1996.

2 Smith was entitled to recover the guarantee fees paid from April 1994 onwards, that being the time from which the evidence revealed that Management Services was surety for YDSI. 20 His Honour's third and final judgment was delivered in August 2000. His Honour determined that the receiver was validly appointed in May 1997. At this stage his Honour made orders as to costs in relation to all of his three judgments in proceedings 2400/97 and also in relation to the motion before him in proceedings 1913/95 (which was ultimately determined before Meagher JA). 21 It can therefore be seen that the issues before Hamilton J were, save for the questions of whether the receiver was validly appointed and the relationship between the assignment of 1998 and the bank guarantee fees, the same as the issues before Meagher JA.

Competence of the Appeal 22 YDSI submitted that Smith's appeal is incompetent. In particular, it was submitted that there can be no appeal from the decision of Meagher JA. Smith submitted that the appeal from the decision of Meagher JA could be validly brought pursuant to s46(4) of the Supreme Court Act 1970.

23 Following some uncertainty about the correct procedural path to follow, Smith instituted both a notice of appeal and a summons seeking to challenge Meagher JA's decision by proceedings No 40185 of 2001. (Meagher JA's judgment was entitled in the earlier proceedings in this Court i.e. No 40392 of 1995.) Smith seeks leave to withdraw whichever of those documents is inappropriate.

24 Section 38 of the Supreme Court Act provides as follows: "Divisions of Court For the more convenient despatch of business, the Court shall be divided into: (a) the Court of Appeal, and (b) the following Divisions: (i) the Common Law Division, (ii) the Equity Division. (iii)--(ix) (Repealed)"

25 There is no provision in the Supreme Court Act that creates a court separate from the Supreme Court of New South Wales. The Supreme Court of New South Wales is the superior court of record in this state. The existence of the Court of Appeal is a product of the Supreme Court being "divided" for the "convenient despatch of business". The Court of Appeal exists within the Supreme Court. It is not a separate entity from it.

26 Section 26(1) of the Act empowers the Government, by commission, to appoint a Judge. Section 31 empowers the Government, by commission to appoint a Judge to be a Judge of Appeal. There is no such thing as a "Judge of the Court of Appeal". Orders made by the Court of Appeal only have force and effect because they are orders of the Supreme Court, made by the Court of Appeal. They are not orders of the Court of Appeal.

27 The order made by the Court of Appeal in November 1996 in proceedings numbered 40392/95 granted liberty to any party to apply to a "Judge of the Court with respect to the quantification of the said moneys, costs, charges, expenses and interest". 28 The reference to a "Judge of the Court" in this order, was a reference to a Judge of the Supreme Court. Given the nature of the proceedings involved, any application pursuant to this order should have been, and was, brought in the Equity Division of the Supreme Court. Nonetheless, Hamilton J directed that the matter sought to be raised under the orders of the Court of Appeal should be determined by "the Court of Appeal". The matter came before Meagher JA sitting alone. 29 By s43(1) of the Supreme Court Act, any three or more Judges of Appeal constitute the Court of Appeal. 30 Section 46 of the Supreme Court Act sets out the powers of the Court of Appeal exercisable by a Judge of Appeal sitting alone. It provides: " (1) A Judge of Appeal may exercise the powers of the Court of Appeal: (a) to give any judgment by consent or make any order by consent, (b) to dismiss an appeal or other proceedings for want of prosecution or for other cause specified in the rules, (c) to dismiss an appeal or other proceedings on the application of the appellant or plaintiff, or (d) to deal with costs and other matters incidental to the matters mentioned in paragraphs (a), (b) and (c). (2) A Judge of Appeal may exercise the powers of the Court of Appeal: (a) to make an order or give any direction concerning the institution of an appeal or other proceedings in the Court of Appeal, or (b) to make any order or give any direction in any appeal or other proceedings, but not an order or direction involving the determination or decision of the appeal or other proceedings. (3) Subsection (2) does not authorise a Judge of Appeal to grant or refuse leave to appeal to the Court of Appeal. (4) The Court of Appeal may discharge or vary a judgment given by a Judge of Appeal, or an order made or direction given by a Judge of Appeal. (5) Subject to subsection (4), a judgment, order or direction given or made by a Judge of Appeal is to have effect as a judgment, order or direction of the Court of Appeal, whether or not the judgment, order or direction is within the powers of the Judge of Appeal under this section."

31 By virtue of his Honour's commissions, Meagher JA is a Judge of the Supreme Court and also a Judge of Appeal. The power which Meagher JA was exercising stemmed from the orders made by the Court of Appeal. It did not stem from the direction made by Hamilton J. 32 Section 44 of the Supreme Court Act provides: "The Court of Appeal may, in proceedings before it, exercise every power, jurisdiction or authority of the Court, whether at law or in equity or under any Act, Imperial Act or Commonwealth Act." 33 Section 46 is invoked where a single Judge of Appeal is exercising "the powers of the Court of Appeal". The powers of the Court conferred on the Court of Appeal by s44 are within this phrase. However, insofar as Meagher JA had before him quantification issues pursuant to the Court of Appeal's liberty to apply, neither s46(1) nor s46(2) is applicable. Section 46(5) applies only to a "judgment order or direction" made by a single Judge of Appeal under s46(1) or s46(2). In the present case, Meagher JA was sitting as a Judge of the Supreme Court, not as a Judge of Appeal. 34 Accordingly, the relevant matter in this case is to determine what conditions apply to an appeal from a single Judge of the Supreme Court. Section 101 of the Supreme Court Act is the relevant provision. It is unnecessary to set it out in full. Where an appeal lies as of right, a notice of appeal is required.

35 Section 101(1) grants a right of appeal only where a matter has been decided "in a Division". The divisions of the Court are stated in s38 of the Supreme Court Act and are only two in number: the Common Law Division and the Equity Division. Meagher JA was sitting as a Judge of the Supreme Court. An appeal as of right could only lie from the decision of Meagher JA if his Honour was sitting "in a Division".

36 Section 101(2) specifies decisions where the leave of the Court of Appeal is required before an appeal may be brought from them. The matters raised in the proceedings before Meagher JA do not fall exclusively within any of the matters listed in s101(2). Costs were involved in the proceedings; but they did not relate to "costs only" (see s101(2)(c)). The amount in issue was more than $100,000, so s102(2)(r) did not apply.

37 In my opinion, every case decided by a Judge of the Supreme Court, not comprising the Court of Appeal, must have been decided by that judge sitting within one of the two Divisions of the Supreme Court (see s38(b) of the Supreme Court Act). Such a decision must then fall within either s101(1) or s101(2). Section 101(2) enumerates specific types of matters for which leave is required. Section 101(1) is a general provision which applies to all cases decided by a Judge of the Supreme Court, not sitting as the Court of Appeal, that are not specifically provided for by s101(2). In this case, Meagher JA was sitting in the Equity Division and pursuant to s 101(1)(a) an appeal lies as of right from his Honour's decision.

38 Leave to appeal is not required. The correct originating document was a notice of appeal. Leave should be granted to withdraw the summons. Both the appeal from Hamilton J and from Meagher JA are competent and must be determined. 39 The appellant needs leave to extend time to lodge an appeal from Meagher JA. This should be granted. These proceedings have throughout been riddled with procedural irregularities. Some of the orders sought before Meagher JA were misconceived. Nevertheless, the issues raised before his Honour included quantification of matters for which this Court had earlier reserved liberty to apply. The respondents have suffered no prejudice of a relevant kind. The prejudice on which the respondent relied involved the complications of the proceedings before Hamilton J, to which complications the respondents made their own contribution. The prejudice is not of a character or of sufficient weight as would justify refusing leave.

The Issues on the Appeal Mr Smith's Legal Costs 40 The costs claimed by Smith to be subject to the security, are those arising from previous proceedings between the relevant parties in the Equity Division of the Supreme Court and in the Court of Appeal. Order 4 of the Court of Appeal decision on 21 November 1996 was that "the second and third respondents are to pay the appellant's costs in the Court of Appeal and in the Equity Division". The second and third respondents in that case were respectively the liquidator of YDSI, and YDSI. 41 An award for costs, without further specification, is an award on a party and party basis. It is clear that costs were awarded on the normal party and party basis. Those costs were assessed at $247,000. If the costs were subject to the security, Smith would not be limited to costs assessed on a party and party basis. As the costs order was made against the liquidator as well as against YDSI, Smith is, in effect, secured by the liquidator's right of indemnity against YDSI. Accordingly, the practical issue is whether he is entitled to costs on a solicitor and client basis, as the mortgage debenture provides. 42 Counsel for Smith submitted that Smith is entitled to costs on a solicitor and client basis recoverable under the mortgage debenture and Smith's subrogation to it. In particular, it was submitted that the costs were incurred in the winding up proceedings and in order to establish his status as a secured creditor under the mortgage were a secured debt. Counsel for Smith did not rely on the terms of the mortgage debenture itself. This is because Smith's costs were incurred personally by him, and paid by him. They were not an amount due and paid to ANZ by Smith as surety for YDSI. Hamilton J dismissed Smith's claim for his own costs on this basis. His Honour went on to say that if he was wrong on that point, he would dismiss the claim in any case on the basis that the claim is res judicata, the subject of an issue estoppel, or of an estoppel of the kind discussed in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. 43 On this appeal, counsel for YDSI and its liquidator submitted that Smith's claim to costs on a solicitor and client basis was the subject of an Anshun estoppel. He did not direct submissions towards whether the claim was res judicata or the subject of an issue estoppel. This issue can, in my opinion, be disposed of on this basis. 44 In Anshun the High Court held at 604 that: "The matter now sought to be raised by the Authority `was a defence to Anshun's claim in the first action. It was so closely connected with the subject matter of that action that it was to be expected that it would be relied upon as a defence to that claim and as a basis for recovery by the Authority from Anshun."

45 The Port of Melbourne Authority was therefore precluded from relying on the relevant defence in the later proceedings. 46 The principle enunciated in Anshun applies not only to prevent a party from raising a defence in the prescribed circumstances, but also to prevent a party from raising a claim in subsequent proceedings which could and should have been made in earlier proceedings. Rippon v Chilcotin [2001] NSWCA 142 is a recent example of this. See also Anshun at 602 and Brisbane City Council v Attorney General [1979] AC 411 at 425. 47 The costs of the proceedings before Young J and in this Court were squarely before both Young J and this Court. The construction of the mortgage debenture and its application to incidental issues were raised in those proceedings. Whether or not those costs were within the security should have been raised in those proceedings which of necessity would consider what, if any, costs order was appropriate. 48 If Smith wished that those costs be assessed on a different basis, he could and should have raised that before this Court in proceedings numbered CA 40392/95. In accordance with the authority of Anshun, he was precluded from doing so before Hamilton J in subsequent proceedings and remains so precluded. This is so, even though the basis on which he seeks to do so is an alleged right ancillary to a mortgage debenture, not under the usual power of the Court to order costs. The subject of costs was before the Court of Appeal and it is not open to Smith to revisit that subject now. This is sufficient to dismiss Smith's appeal against the decision of Hamilton J on this point. I turn now to the review sought of the decision of Meagher JA. 49 Pursuant to order 7 of the Court of Appeal, (set out below) the proceedings before Meagher JA were, in the relevant respect, concerned with the quantification of the costs. It was not open to Meagher JA to determine the basis on which costs were awarded, but only to quantify the costs according to the basis on which they were awarded by the Court of Appeal - that is, on a party and party basis. Meagher JA was correct to determine that the award of costs on a solicitor/client basis was not within the original orders of the Court of Appeal.

ANZ's Legal Costs 50 These fees were incurred by ANZ in the subrogation proceedings commenced by Smith against YDSI, in which judgment was delivered by Young J on 16 June 1995. The amount in question is $27,878.88. Before Young J, ANZ did not seek any order in relation to costs. Counsel for ANZ explained to Young J at the hearing, ANZ had an indemnity for costs pursuant to the mortgage debenture. In any case, the order as to costs made by Young J was overturned by the Court of Appeal on 21 November 1996, and it is to the orders of this Court to which I now turn. 51 Orders 3 and 4 were as follows: "Declare that 3 Australia and New Zealand Banking Group Ltd (ACN 005 357 522) ("ANZ") was at relevant times a secured creditor of Yusen Daly Smith International Pty Ltd (In Liquidation) ("the company") under Registered Charge No 43368 over the undertaking and assets of the company for the whole of the amount of $1,325,000.00 paid out by ANZ on 6 October 1994 to Bank of Tokyo Australia Ltd for and on behalf of the company and all moneys, costs, charges, expenses and interest in or incidental thereto as are secured under the charge. 4 Thomas Edwin Curtis Smith has the benefit of ANZ's rights under the said Registered Charge in respect of the said amount of $1,325,000.00, and ANZ's remedies for enforcing payment thereof." 52 Order 7 was: "Liberty to any party to apply to a judge of the Court with respect to the quantification of the said moneys, costs, charges, expenses and interest." 53 Meagher JA rejected the submission that the payment of ANZ's legal fees by YDSI to Smith was within the ambit of the orders of the Court of Appeal. In my opinion, his Honour erred in this respect. 54 The respondent drew the Court's attention to the fact that the original draft of the orders sought by the appellant had added to order 3 above a claim for ANZ's costs in express terms. Nothing turns on the deletion of these words. The appellant had accepted that they be deleted on the basis of his assertion that they fell within the other words and were therefore redundant. It was not the case that the Court of Appeal found that the appellant was not entitled to ANZ's costs. 55 The mortgage debenture records that YDSI: "… DOTH HEREBY CHARGE … with the payment to the Bank on demand in writing … ALL moneys costs (as between Solicitor and own client) charges and expenses which the Bank shall pay or become liable to pay in or incidental to preparing completing stamping or registering these presents or to investigating or perfecting or defending the title to the mortgaged premises or exercising or attempting to exercise any right or remedy of the Bank hereunder or of any such demand as aforesaid or on account of or arising out of any default by the Mortgagor in duly performing or observing any of the covenants or agreements on the part of the Mortgagor contained or implied herein or in any other security over the mortgaged premises or any part thereof". 56 It was not suggested that ANZ was not a proper party to the proceedings before Young J. The costs were incurred in relation to its involvement, including responding to a subpoena, prior to its formal submission to the order of the Court. The costs could fall within more than one of the overlapping formulations in the above provision of the debenture, including: "incidental to … defending the title to the mortgaged premises" or "incidental to … exercising … any right … of the Bank hereunder". 57 Furthermore, the reference in the above quoted extract to "shall pay or become liable to pay in or incidental to … any such demand as aforesaid" is a reference to the opening words of the charge "with the payment to the Bank on demand in writing". The failure by YDSI to pay upon demand led to the call on Smith. The proceedings by Smith against YDSI are "incidental" to the original demand on YDSI. 58 Finally, the proceedings instituted by Smith, would never have occurred but for the default of YDSI to make the payment which Smith made. In my opinion, those proceedings did "arise out of" YDSI's default. 59 On any one of the above bases, the ANZ costs were secured under the mortgage. They fell within the words "costs … secured under the charge" within order 3 of the Court of Appeal set out above. By order 4, Smith had "the benefit of ANZ's rights" … "in respect of the said amount of $1,325,000". There is no warrant for giving the words "in respect of" a narrow construction. The costs incurred in the proceedings before Young J were, in my opinion, "in respect of" the "amount of $1,325,000" because they were incurred in proceedings relating to the failure by YDSI to pay that amount. 60 Pursuant to order 7 of the Court of Appeal, Smith was entitled to apply to a judge of the Court to quantify the amount of ANZ's costs. In my opinion, Meagher JA was in error in declining to do so. 61 Subsequent to Meagher JA's decision, the parties have agreed on the amount of the relevant costs at $27,878.88. 62 Smith's entitlement to this amount was one of the matters in issue before Hamilton J. For reasons set out in his Honour's judgment, his Honour determined that Smith was not entitled to the relevant costs. However, it was not open to Hamilton J to redetermine the matter determined by Meagher JA. In my opinion, Smith is entitled to the agreed amount by virtue of the orders of the Court of Appeal. The decision of Hamilton J in respect of this must be set aside. 63 Before leaving this issue I wish to note one further matter. Counsel for YDSI submitted that because a company of which Smith was a director paid the relevant sum to ANZ, and then debited the amount to Smith's loan account with the company, that the company, and not Smith, paid the costs and therefore Smith is not entitled to recover under subrogation. I accept that a guarantor claiming pursuant to the remedy of subrogation can only recover amounts actually paid by that party. I am satisfied that, in substance, Smith did pay ANZ's fees. That he chose to use a particular, and indirect, way of doing so does not alter the character of what occurred. 64 The substance of the matter is that ANZ's legal fees were recoverable by ANZ pursuant to the mortgage debenture. They were recovered by ANZ from Smith pursuant to the guarantee. Smith can therefore recover under the Court's earlier order. 65 As the appellant is successful on ANZ's costs, the cross appeal relating to the validity of the appointment of the receiver of YDSI should be dismissed.

Bank Guarantee Fees 66 In relation to the bank guarantee fees, Smith, by way of appeal, challenges Hamilton J's finding that Smith is entitled to recover, by virtue of the assignment to Smith in 1998 by Management Services of its interests under the security, only payments made since April 1994 - an amount of $9,937.50. Smith submits that he is entitled to all of the amounts paid as bank guarantee fees. This is an additional amount of $35,333.28. YDSI, by way of cross appeal, challenges Hamilton J's finding that Smith is entitled to any of the amounts paid by Management Services to ANZ in consideration of the provision by ANZ of a bank guarantee in favour of BTO. 67 Hamilton J found, as a matter of fact, that neither Smith or YDSI actually paid the bank guarantee fees (either directly or indirectly). Those findings were not challenged by either party. Other corporate entities, including Management Services, paid the bank guarantee fees. The crucial question is whether such payment was made as surety for YDSI. 68 It is convenient to first discuss the position with respect to the fees paid for the one guarantee of $1.325 million that is relevant to these proceedings, and then to discuss the position in relation to the single guarantee of $2.65 million. 69 The bank guarantee for $1.325 million was put in place by Smith personally. It was not (as the earlier single guarantee had been) put in place by YDSI. The relevant distinction is that the guarantee was security for YDSI's debt to BTO but it was not put in place by YDSI. Smith, not YDSI, was liable for the fees. There were corporate guarantors of Smith's liability. YDSI was not one of those guarantors. Management Services was such a guarantor. YDSI was not a party to the agreements putting in place the $1.325 million guarantee. Management Services continued to pay the fees. It did so on behalf of Smith, not YDSI. 70 The question of whether Management Services paid the fees as surety for Smith does not arise. It is sufficient that it did not do so for YDSI. Management Services could not be subrogated to a security held by ANZ over YDSI where the payments made by Management Services were not in satisfaction of an obligation of YDSI. The liability for the fees did not rest with the entity against which the security could be enforced. 71 Hamilton J determined that because Smith did not pay the bank guarantee fees, he could not recover under subrogation. That is clearly so. Hamilton J held that Management Services became a co-surety with Smith after April 1994. His Honour concluded that because Management Services paid the bank guarantee fees from April 1994 onwards in the amount of $9,937.50, that Management Services was entitled to recover fees by way of subrogation to ANZ's security over YDSI. His Honour further held that Management Services could, and did, assign that entitlement to Smith. 72 His Honour held in his judgment delivered in May 1999, that Management Services paid the bank guarantee fees as surety for YDSI. I have not been able to identify the facts on which the finding was based. On the basis of what I have said above in relation to the guarantee for $1.325 million, that finding cannot stand. The cross appeal should be allowed. 73 The appeal on this point relates to fees paid prior to April 1994 (for the single guarantee of $2.65 million). The guarantee of $2.65 million was given on behalf of YDSI. That fact was not in dispute. The liability for the fees ultimately rested with YDSI. YDSI, Thanyule, Management Services and Smith were all concerned in the same enterprise and made commercial decisions that at particular times a particular company, including Management Services, would pay the bank guarantee fees. No doubt Smith and all the member companies of the group had an interest in ensuring the continued provision by ANZ of the bank guarantee in favour of BTO. Each company in a group of companies retains its separate legal identity. There is no basis for inferring from the fact of payment by one member of a group of the obligations of another member, that it was made in its capacity as a guarantor. 74 Subrogation is a remedy to which a surety becomes entitled upon full and actual indemnification. In this case, the difference between, on the one hand, paying an amount on behalf of another and, on the other hand, actually indemnifying another by, at the request of the secured creditor, paying a debt owed by the party indemnified, to the creditor, is apparent. The appellant failed to establish that the bank guarantee fees that were paid by Management Services to ANZ were paid as surety for YDSI's obligations to ANZ. 75 The appellant's case on the appeal with respect to the balance of the bank guarantee fees was designed to establish that Management Services was in fact a co-surety prior to April 1994. However, he failed to establish that any payments were made in that capacity. 76 Management Services could not assign to Smith more than its own interest in YDSI. Whatever interest Management Services did have in YDSI, it did not extend to an entitlement to be subrogated to ANZ's security by virtue of Management Services' payment of the bank guarantee fees. Smith was therefore not entitled, by way of subrogation, himself or by way of assignment to him of Management Services' interest, to an amount representing monies paid as bank guarantee fees. Even if Smith had himself paid the fees, the same reasoning that I have expressed in relation to Management Services would mean that Smith would not have paid the fees as surety for YDSI. On this point, Smith's appeal against the decision of Hamilton J should be dismissed. 77 The decision of Meagher JA was made prior to the purported assignment by Management Services to Smith of its interests in YDSI. On the basis of what I have said above, it is clear that Smith was not entitled to be directly subrogated to the security held by ANZ over YDSI in respect of the bank guarantee fees paid by various corporate entities, but not by Smith himself. Accordingly, the appeal against the decision of Meagher JA on this point should be dismissed. 78 It may well be that Management Services and its assignee Smith, have rights with respect to the payment of the obligations of YDSI. Any such rights, however, are unsecured.

Costs 79 Smith's appeal has been successful only on one matter, on appeal from Meagher JA. That matter is valued at $27,787.88. YDSI's cross appeal has been successful only on one matter, on appeal from Hamilton J. That matter is valued at $9,937.50 which, with interest, increased to $16,590.72. The largest monetary amount involved in this appeal was Smith's own costs. The previous decisions on that matter remain undisturbed. Meagher JA awarded the costs of the proceedings before him to YDSI. Meagher JA's decision has been altered in one minor respect. Hamilton J made no order as to costs. Hamilton J's decision has been altered in one respect. 80 This course of litigation has been lengthy and convoluted. The parties are both to blame for that state of affairs. There has been no significant alteration of the practical position of the parties as a result of this appeal. They have one small victory each. There should be no order as to costs.

Orders 81 On 12 December 2000, the cross appellant paid the judgment sum of $9,937.50 together with interest making a total of $16,590.72. It seeks an order by way of restitution under Part 51 rule 26 for repayment of the amount of $16,590.72 with interest under the Supreme Court Rules. That order should be made 82 The issues involved in these proceedings were complicated. The submissions were not always clear. An opportunity should be given to the parties to be heard on the final form of orders. These proceedings have already involved costs which are quite disproportionate to what remains in dispute. If at all possible further costs associated with settling of short minutes, let alone any further appearance, should be avoided. 83 I propose the following orders:

A Grant liberty to either party by notice of motion, to be served with seven days hereof, to re-list the proceedings at 9.30am before one of the three members of the Court who have heard this appeal for the purpose of clarifying or moving the Court to amend the following orders.

B Subject to any further order, as and from the expiry of the said period of seven days or any extension thereof: In Proceedings 40783 of 2000 1 Dismiss the appeal. 2 Allow the cross appeal in part. 3 Order the cross respondent to repay $16,590.72, together with interest in accordance with the Rules. In Proceedings 40185 of 2001 1 Leave to withdraw the summons granted. 2 Objection to competency dismissed. 3 Extend time for filing the appeal until 14 June 2001. 4 Allow the appeal in part. 5 Judgment for the appellant in the amount of $27,828.88, together with interest in accordance with the Rules.

84 BEAZLEY JA: I agree with Spigelman CJ. 85 DAVIES AJA: I agree with Spigelman CJ.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : SMITH v YUSEN DALY SMITH INTERNATIONAL (In Liq) [2001] NSWCA 458 FILE NUMBER(S) : CA 40783/00; 40185/01 HEARING DATE(S) : 26 September 2001 JUDGMENT DATE : 7 December 2001

Appellant: D Jackson QC/R Cameron COUNSEL : First and Second Respondents: A Street SC/P Gormly Appellent: McLaughlin & Riordan SOLICITORS : First and Second Respondents: Blake Dawson Waldron CATCHWORDS : PROCEDURE - competence of appeal - connection between judge of the Supreme Court and judge of appeal - Supreme Court Act 1970, ss38, 46, 101 - REMEDIES - costs - no entitlement to solicitor/client costs - REMEDIES - whether payments made as surety - whether there was an entitlement to subrogation. LEGISLATION CITED : Supreme Court Act 1970 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 CASES CITED: Rippon v Chilcotin [2001] NSWCA 142 Brisbane City Council v Attorney General [1979] AC 411 DECISION : See para [83].

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