Amorosi v Robinson (No 2)

In the matter of Amorosi v Robinson, the dispute arose from the management and administration of a trust, with the primary issue being the trustee's right of indemnity from trust property. The case was heard in the Supreme Court of Victoria. The central legal issue before the court was whether the trustee, Robinson, had lost the right to be indemnified from the trust property due to a failure to execute the trust with reasonable diligence and care, leading to the improper incurring of expenses.

The court examined the applicable legal principles, including the case of Di Benedetto v Kilton Grange Pty Ltd, which outlines the circumstances under which a trustee may lose their right to indemnity. Additionally, the court referenced Hopkins v Edwards, which provides further guidance on the circumstances where a trustee's conduct justifies a loss of the right to indemnity. The court also considered the principle that costs should follow the event, as established in Chell Engineering Ltd v Unit Tool and Engineering Co Ltd, and the application of special costs orders in circumstances where a party achieves a more favourable outcome, as noted in Yunghanns v Colquhoun-Denvers.

In its reasoning, the court found that the trustee, Robinson, had indeed failed to execute the trust with the necessary level of care and diligence, resulting in improperly incurred expenses. Consequently, the court ruled that Robinson had lost the right to be indemnified from the trust property. The court also determined that since the plaintiff was successful in their claim and the defendant was successful in their counterclaim, costs should follow the events, and no special costs order should be made. The court further concluded that the plaintiff's indemnity costs were not properly awarded as the Calderbank offers were not unreasonably refused, and the terms were uncertain and unclear. Thus, costs were awarded on the standard basis, in line with the precedents set in Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd, M T Associates Pty Ltd v Aqua-Max Pty Ltd & Anor, Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority, and United Petroleum Australia Pty Ltd v Herbert Smith Freehills.