Bend-Tech Group (A Firm) v Beek
[2015] WASC 491 (S3)
•21 DECEMBER 2016
BEND-TECH GROUP (A FIRM) -v- BEEK [2015] WASC 491 (S3)
| Pending Appeal |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 491 (S3) | |
| Case No: | CIV:2819/2015 | 21 DECEMBER 2016 | |
| Coram: | PRITCHARD J | 21/12/16 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | BEND-TECH GROUP (A FIRM) ANDREW DAVID BEEK |
Catchwords: | Costs agreement Interpretation Application of principles of contractural construction Relevance of indemnity principles to commercial operation of costs agreement Indemnity principle Where liability for costs dependent on costs order being made Practice and procedure O 66 r 5 Standard of conduct Solicitor's conduct must be serious dereliction of duty to come within rule Error as to construction of costs agreement not sufficient |
Legislation: | Rules of the Supreme Court 1971 (WA), O 66 r 5 |
Case References: | Australian Broadcasting Commission v Australasian Performing Right Association [1973] HCA 36; (1973) 129 CLR 99 Bend-Tech Group (A Firm) v Beek [2015] WASC 491 Bend-Tech Group (A Firm) v Beek [2015] WASC 491 (S) Bend-Tech Group (A Firm) v Beek [2015] WASC 491 (S2) Electricity Generation Corp v Woodside Energy Ltd; Woodside Energy Ltd v Electricity Generation Corp [2014] HCA 7; (2014) 251 CLR 640 King v King [2012] QCA 081 Mainieri v Cirillo [2014] VSCA 227; (2014) 47 VR 127 Marsh v Baxter [No 2] [2016] WASCA 51 Monitronix Ltd v Michael (1992) 7 WAR 195 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 Noye v Robbins [2010] WASCA 83 Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
ANDREW DAVID BEEK
Defendant
Catchwords:
Costs agreement - Interpretation - Application of principles of contractural construction - Relevance of indemnity principles to commercial operation of costs agreement
Indemnity principle - Where liability for costs dependent on costs order being made
Practice and procedure - O 66 r 5 - Standard of conduct - Solicitor's conduct must be serious dereliction of duty to come within rule - Error as to construction of costs agreement not sufficient
Legislation:
Rules of the Supreme Court 1971 (WA), O 66 r 5
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr C P K Russell
Defendant : Mr S M Davies SC
Solicitors:
Plaintiff : Borrello Graham Lawyers
Defendant : MDC Legal
Cases referred to in judgment:
Australian Broadcasting Commission v Australasian Performing Right Association [1973] HCA 36; (1973) 129 CLR 99
Bend-Tech Group (A Firm) v Beek [2015] WASC 491
Bend-Tech Group (A Firm) v Beek [2015] WASC 491 (S)
Bend-Tech Group (A Firm) v Beek [2015] WASC 491 (S2)
Electricity Generation Corp v Woodside Energy Ltd; Woodside Energy Ltd v Electricity Generation Corp [2014] HCA 7; (2014) 251 CLR 640
King v King [2012] QCA 081
Mainieri v Cirillo [2014] VSCA 227; (2014) 47 VR 127
Marsh v Baxter [No 2] [2016] WASCA 51
Monitronix Ltd v Michael (1992) 7 WAR 195
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104
Noye v Robbins [2010] WASCA 83
Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474
- PRITCHARD J:
(This judgment was delivered extemporaneously on 21 December 2016 and has been edited from the transcript.)
1 This is an application brought by Bend-Tech by a chamber summons dated 13 October 2016 (the Application). The background to the Application can be discerned from the reasons for decision I delivered late in 2015 and in early 2016.1 These reasons should be read in conjunction with those earlier reasons.
2 It appears that, as a result of the disclosure of a costs agreement entered into between Mr Beek and his solicitors, MDC Legal (the Costs Agreement), following the last of the reasons for decision I have published in this matter, Bend-Tech's solicitors formed the view that MDC Legal misled the Court in relation to the extent of Mr Beek's liability for costs. Consequently, Bend-Tech seeks an order under O 66 r 5 of the Rules of the Supreme Court 1971 (WA) (RSC) to indemnify Bend-Tech for the costs incurred by Bend-Tech as a result of that conduct.
3 For the reasons which follow, the Application should be dismissed.
4 In these reasons, I deal with the following matters:
(1) the factual context for the dispute;
(2) the terms of the Costs Agreement;
(3) the proper construction of the Costs Agreement;
(4) the variation of that Costs Agreement; and
(5) an alternative basis for dismissing the application under O 66 r 5 RSC.
(1) The factual context for the dispute
5 It is necessary to start by briefly outlining the factual context for the Application.
6 The parties relied on a number of affidavits in respect of the Application, namely an affidavit of Colin James Graham sworn 13 October 2016; an affidavit of Vishan Kakara Atchamah affirmed 22 February 2016; a further affidavit of Vishan Kakara Atchamah affirmed 5 April 2016; an affidavit of Andrew David Beek sworn 25 October 2016; an affidavit of Vishan Kakara Atchamah affirmed 13 October 2016; and an affidavit of Nakita Jane Barsby dated 13 October 2016.
7 The general factual background to the action as a whole is set out in my reasons for decision delivered last year.2
8 The position, in short, is that, in about November 2015, Mr Beek was served with a writ in the present action, together with an application for an interlocutory injunction, which was listed for an urgent hearing on 8 December 2015 (injunction application). He approached his solicitors, MDC Legal, in late November. They had a discussion with him on 1 December 2015, and the Costs Agreement was drawn up, dated 1 December 2015, and was signed on that date. The hearing of the injunction application occurred on 8 December 2015. I dismissed that application on 22 December 2015.
9 An application for costs was made by Mr Beek and heard on 5 April 2016. I ordered that Bend-Tech pay the costs of the injunction application and made special costs orders. Before that costs application was heard, Mr Beek and his solicitors agreed to what was described as a variation of the original Costs Agreement (the Variation Agreement). That document appears to have been signed on 25 February 2016. It purported to vary what, for present purposes, were the key provisions of the Costs Agreement.
(2) The terms of the Costs Agreement
10 The Costs Agreement was described as a 'preliminary retainer costs agreement'. Two clauses in the Costs Agreement are at the heart of the present dispute (the costs clauses). They provide:
We will cap our fees at $15 000 to take instructions, consider all relevant materials and documents, prepare your affidavit material and submissions in opposition to the interlocutory injunction application, and prepare for and attend at the hearing for the interim injunction application currently listed for 10:00am on 8 December 2015.
- (I will call this clause the 'capping clause'.)
In the event that we recover costs from Bend-Tech Group, please note that we reserve our right to recover the total amount of our actual legal costs incurred under the terms of this costs agreement from any costs recovered from Bend-Tech Group.
(I will call this clause the 'successful costs clause'.)
11 The relevant terms of the Variation Agreement can also conveniently be set out here. The Variation Agreement referred to the costs clauses in the Costs Agreement and provided:
You agree that those paragraphs will be varied and replaced by the following paragraphs:
In respect of our services in acting for you in Supreme Court Interlocutory injunction proceedings brought against you by Bend-Tech in matter CIV 2819/2015, including to take instructions, consider all relevant materials and documents, prepare your affidavit material and submissions in opposition to the interlocutory injunction application, and prepare for and attend at the hearing of the interim injunction application listed for 10:00am on 8 December 2015 and in relation to seeking costs from the other party:
- a) In the event that you are unsuccessful we will cap our fees at $15 000;
b) In the event that you are successful that you are liable for all our fees reasonably incurred, however, we may exercise a discretion not to enforce your liability for fees over and above what is recoverable from Bend-Tech pursuant to costs orders of the Court.
(3) The proper construction of the Costs Agreement
13 The principles in respect of contractual construction are well-established. They were not in dispute. The construction of a written commercial contract involves ascertaining what a reasonable business person would have understood the parties to mean, on the assumption that the parties to the contract intended to produce a commercial result.3 If the language of a commercial agreement is open to two constructions, the preferable construction will be one which avoids consequences which appear to be capricious, unreasonable, inconvenient or unjust.4
14 In order to understand the commercial purpose of a commercial contract, it is necessary to understand the genesis of the transaction, the background, the context and the market in which the parties are operating.5
15 A further principle which is necessary to bear in mind for present purposes is that the words used in the contract must be construed within the context of the contract as a whole. The words of every clause must be construed in a way which permits them to operate harmoniously with one another, so that no part of the contract should be treated as inoperative or otiose.6
16 I turn, then, to the construction of the costs clauses.
17 There is no doubt that these two clauses are infelicitously drafted. In particular, the successful costs clause is quite ambiguous. But in my view, what those two clauses convey (when read together and in the entirety of the contractual context) is that MDC Legal was performing legal work for Mr Beek, the cost of which was to be calculated on the rates set out in the Costs Agreement. Those rates resulted in the 'actual costs incurred' by Mr Beek. In relation to the work done on the injunction application, however, those 'actual costs' would only be recovered from Mr Beek (that is, he would only be liable for those costs) in the event that a costs order was made in his favour against Bend-Tech following his success on the injunction application. Otherwise (that is, in the event that Mr Beek was not successful in defending the injunction application) his costs would be capped at $15,000. I have reached that view as to the construction of the costs clauses having regard to the following matters.
(i) Documentary context
18 First, consistent with the principles to which I have already referred, it is necessary to consider the costs clauses in their documentary context, that is, within the context of the Costs Agreement as a whole. Consideration of that Agreement discloses that the Costs Agreement as a whole set out the rates on which the work to be done by MDC Legal was to be charged.
19 In addition, as I have already noted, the Costs Agreement was described as a 'preliminary retainer'. It was an agreement which, nevertheless, was made in the context of contemplated representation for Mr Beek on the entirety of the action brought by Bend-Tech, and not just in respect of the injunction application. The Costs Agreement clearly and expressly contemplated a further refinement of the Costs Agreement if the action was not finalised at the injunction application stage, at which point a more comprehensive costs agreement for ongoing services would be drafted.
20 Furthermore, in relation to context, the costs clauses appear under a heading 'Estimate for Professional Fees'. That context suggests that the costs clauses constituted an attempt to set out an estimate of Mr Beek's exposure to costs in respect of the injunction application. The inclusion of the costs clauses was clearly an attempt to set out in the most simple terms - for Mr Beek's clearest understanding - what the position would be in respect of his liability for costs, depending on the outcome of the injunction application.
21 Finally, it is apparent that the costs clauses are intended to be read together and cannot be construed in isolation.
(ii) Factual context for the Agreement
22 Secondly, I turn to consider some aspects of the factual context which are also presently relevant. The factual context for the Costs Agreement was that of an urgent arrangement being made by which MDC Legal was to act for Mr Beek in respect of the injunction application, which was listed for hearing about a week after Mr Beek approached MDC Legal to represent him. The injunction application was a very significant one. If granted, it would have precluded Mr Beek from working in the only area in which he had skills and experience.
23 In addition, the affidavit evidence clearly disclosed that Mr Beek was a person of limited means, that his solicitors were well aware of that, and that he was concerned about the costs of the litigation. I accept the submissions made by counsel for the defendant that the costs clauses constituted an attempt to accommodate Mr Beek's financial position.
(iii) The meaning of the words used in the costs clauses
24 Thirdly, with that context in mind, I turn to consider the meaning of the words used in the costs clauses.
The capping clause
25 Insofar as the capping clause is concerned, at least part of the meaning of that clause is clear. The clause caps or limits Mr Beek's liability in respect of the work specified, that is, in respect of the injunction application up to the point of its hearing on 8 December 2015. But, as I have said, that particular clause cannot be considered in isolation. It must be construed in conjunction with the successful costs clause.
The successful costs clause
26 The first point which can be made is that it is apparent that not all of the words used in this clause can mean precisely what their ordinary meaning would suggest. Two examples suffice to illustrate this point. The clause says 'In the event that we recover costs from Bend-Tech Group'. Those words clearly cannot mean that MDC Legal itself would recover costs from Bend-Tech. MDC Legal could not recover any costs from Bend-Tech. In the event that the injunction application was dismissed, Mr Beek might seek a costs order and, if made, he - and not MDC Legal - could recover costs from Bend-Tech. The second example is that the successful costs clause says 'We reserve our right to recover the total amount ... from any costs recovered from Bend-Tech Group'. Again, that cannot mean what, on its ordinary meaning, it seems to say. MDC Legal itself had no right to recover anything from the costs recovered from Bend-Tech. Any costs recovered by Mr Beek from Bend-Tech would not be MDC Legal's funds, they would be Mr Beek's funds.
27 In my view, the fact that the words used in the successful costs clause cannot be given their ordinary meaning on any rational understanding precludes acceptance of the construction argument advanced by Bend-Tech. Counsel for Bend-Tech submitted that the effect of the costs clauses was to cap Mr Beek's liability for costs at $15,000 regardless of the circumstances, and that the effect of the successful costs clause was that MDC Legal would be entitled to take its costs from any funds that it (that is, MDC Legal) recovered from Bend-Tech.
28 In order, then, to discern the meaning of the words used in the costs clauses, it is necessary to consider what the parties intended those words to mean. What is apparently intended by the successful costs clause is that, in circumstances where a costs order was made in Mr Beek's favour, Mr Beek would be liable for the 'actual legal costs incurred' under the terms of the Costs Agreement. The result would be that if he received costs from Bend-Tech, Mr Beek could expect that the costs actually incurred on his behalf by MDC would ultimately be paid out of those funds. The making of a costs order in Mr Beek's favour was the trigger for that outcome.
29 The conclusion that that was the intended meaning of the successful costs clause is warranted by the need to give a commercially rational operation to the Costs Agreement. It is well-established, as the cases to which I have referred indicate, that commercial contracts should be interpreted to have a sensible commercial operation. In my view, the construction advanced by counsel for Bend-Tech would not give the Costs Agreement a commercial operation. It would make no sense for the parties to this contract to have agreed to cap Mr Beek's costs in circumstances where Mr Beek was successful and where there was a reasonable prospect that his party-party costs would be met by a costs order against Bend-Tech.
30 In contrast, it would be perfectly commercially sensible for the parties to the Costs Agreement to agree to limit Mr Beek's liability for costs in the event that he was unsuccessful, where no relief in relation to his costs would come from Bend-Tech, and in circumstances where both parties had clearly been concerned to limit Mr Beek's exposure to costs, having regard to his modest financial circumstances. That a solicitor and client would, in those circumstances, seek to limit the client's costs in the event that he was not successful is hardly commercially surprising. Moreover, such an approach is commonplace, and it is in the public interest for that approach to be taken to ensure that litigants of modest means have legal representation available to them.
31 Furthermore, whatever the meaning of the words 'In the event that we recover costs from Bend-Tech Group ... we reserve our right to recover the total amount of our actual legal costs incurred under the terms of this costs agreement from any costs recovered from Bend-Tech' (which appear in the successful costs clause), the construction advocated by counsel for Bend-Tech would leave the words 'actual legal costs incurred under the terms of this costs agreement' without any work to do. That is contrary to the proper approach to contractual construction to which I have referred at [15].
32 The final consideration which supports the conclusion that I have reached about the construction of the costs clauses is that the operation of those clauses has to be considered in the context of the operation of the indemnity principle. The indemnity principle is the principle by which costs are awarded to indemnify a successful party for its liability for costs. The application of the indemnity principle means that a party (the client) who does not have a liability to his or her solicitor for costs cannot recover costs against an unsuccessful party to the litigation.7
33 The indemnity principle is flexible and it is designed to allow for a just and fair result.8 Accordingly, if the client and his or her solicitor reach an agreement that the client will not have to pay the solicitor's costs, the client cannot obtain an award of costs against an unsuccessful party in litigation.9 And, similarly, if the liability of the client to the solicitor is limited, the quantum of costs that can be recovered from the unsuccessful party is also limited to that amount.10
34 Of late, there has been discussion in intermediate courts of appeal in relation to questions of costs liability arising from costs agreements which are conditional on the success of the client in the litigation. It is not necessary to discuss all of those in detail. Reference was made in the course of argument to the decision in Wentworth v Rogers11in the New South Wales Court of Appeal, to King v King12 in the Queensland Court of Appeal and, finally, to Mainieri v Cirillo13 in the Victorian Court of Appeal. The latter is the most recent statement at the intermediate courts of appeal level. In that case, the Victorian Court of Appeal made clear that an obligation to pay costs which is conditional on the actual recovery of costs is not sufficient to warrant an order for costs in accordance with the indemnity principle. However, the same conclusion did not follow in respect of an obligation to pay costs in the event of a costs order being made in favour of the client.14
35 The present relevance of the indemnity principle and its operation in the context of a conditional costs agreement of the kind discussed in Mainieri is that the effect of the construction advanced by counsel for Bend-Tech would mean that the parties to this Costs Agreement went to the trouble of specifying precisely the position which, as a matter of law, would be ineffective to result in an award of costs in Mr Beek's favour. In my view, having regard to the commercial context in which the Costs Agreement operates, that is a further reason for concluding that on a proper construction of the costs clauses, they were intended to mean that in the event that a costs order was made in Mr Beek's favour, he would be liable to pay the 'actual costs incurred', rather than meaning that his liability depended on the actual recovery of costs.
36 To complete the analysis, it is necessary, very briefly, to mention the Variation Agreement, to which reference has already been made.
(4) The Variation Agreement
37 The Variation Agreement was made after the injunction application had been determined, and in the context where a costs hearing was required following the decision I delivered in respect of the injunction application. The Variation Agreement clearly sought to deal with the additional costs which would be incurred on Mr Beek's behalf in relation to that costs hearing and, in my view, clearly sought to bring those additional costs into the scope of the capping clause in the Costs Agreement. It was, no doubt, in the context of considering those further costs of the costs hearing that MDC Legal and Mr Beek identified the less than precise wording of the capping clause and the successful costs clause, and took the view that it would be desirable to remove any doubt about the operation of the costs clauses by restating their intended effect in clearer terms. That that was the parties' intention is supported by the affidavits relied upon by Mr Beek, especially Mr Beek's affidavit and the affidavit of Mr Kakara Atchamah.
38 In my view, in so far as it addressed the circumstances in which the capping clause would apply, the Variation Agreement did not have the effect of altering the meaning of the costs clauses, but rather simply restated that meaning in terms which are entirely consistent with the meaning of the costs clauses as I have construed them.
39 I need only finally observe that in view of the construction that I have reached, it is unnecessary for me to discuss the question of the variation of costs agreements with retrospective effect, particularly variations made after costs orders have been made, which were matters touched on in the course of submissions.
40 The conclusion I have reached in respect of the construction of the Costs Agreement means the Application must fail. However, in view of the argument which took place, it is appropriate to mention a further reason why I would have dismissed the Application in any event.
(5) An alternative basis for dismissing the Application under O 66 r 5 RSC
41 Even if I am wrong in my view in relation to the construction of the Costs Agreement and the Variation Agreement, I am not persuaded that the position taken by MDC Legal (in relation to its discussions with Bend-Tech's solicitors, negotiations in relation to a possible settlement, and in relation to the submissions made to this Court on the hearing of Mr Beek's application for costs) was such as to warrant an order being made pursuant to O 66 r 5 RSC. That rule provides:
(1) Where in any proceedings costs are incurred by a party -
(a) as a result of any improper, unreasonable, or negligent act or omission; or
(b) which, in the light of any such act or omission occurring after they were incurred, the Court considers it is unreasonable to expect that party to pay,
the Court may order any practitioner whom it considers to be responsible (whether personally or through a servant or agent) -
(c) to pay those costs personally or to indemnify any party who has been ordered to pay those costs; or
(d) not to claim any relevant costs or fees; or
(e) to refund any relevant costs or fees which may have been paid already.
(2) No order under this rule shall be made against a practitioner unless he has been given a reasonable opportunity to appear before the Court and show cause why the order should not be made, except where any proceeding in court or in chambers cannot conveniently proceed, and fails or is adjourned without useful progress being made -
(a) because of the failure of the practitioner to attend in person or by a proper representative; or
(b) because of the failure of the practitioner to deliver any document for the use of the Court which ought to have been delivered, or to be prepared with any proper evidence or account, or otherwise to proceed.
(3) The Court may before making an order under this rule refer the matter to the taxing officer for inquiry and report.
(4) The Court may direct that notice of any proceedings or order against a practitioner under this rule shall be given to his client in such manner as may be specified in the direction.
42 The rule is intended to operate in cases that involve a serious dereliction of duty by a solicitor. In this respect, I refer to the observations made by Murray J in Monitronix Ltd v Michael15 as to the circumstances in which O 66 r 5 RSC is to apply. His Honour cited from authorities which were to the effect that an order of the kind contemplated under O 66 r 5 'is not available in cases of mistake, error of judgment or mere negligence. It is only available where the conduct of the solicitor is inexcusable and such as to merit reproof'.16 His Honour concluded that 'it may be seen that the court is looking to see established a serious dereliction of duty'.17
43 In this case, even if my view as to the construction of the costs clauses is not correct, it was clearly open to MDC Legal to have reached the same view, given the ambiguous drafting of the successful costs clause in particular. It was, moreover, always the understanding between MDC Legal and Mr Beek that the costs clauses and the Variation Agreement had the meaning I have ascribed to them. That is apparent from the affidavits relied upon by Mr Beek.
44 If that view as to construction was not correct, I am satisfied that the approach taken by MDC Legal resulted from either a mistake, an error of judgment or negligence in relation to that construction, and not from any inexcusable and serious dereliction of duty. In those circumstances, it could not be said that there would be any proper basis for the making of an order under O 66 r 5 RSC.
Conclusion
45 In all of those circumstances, the Application should be dismissed.
1Bend-Tech Group (A Firm) v Beek [2015] WASC 491; Bend-Tech Group (A Firm) v Beek [2015] WASC 491 (S); and Bend-Tech Group (A Firm) v Beek [2015] WASC 491 (S2).
2Bend-Tech Group (A Firm) v Beek [2015] WASC 491.
3Electricity Generation Corp v Woodside Energy Ltd; Woodside Energy Ltd v Electricity Generation Corp [2014] HCA 7; (2014) 251 CLR 640 [35] (French CJ, Hayne, Crennan & Kiefel JJ).
4Australian Broadcasting Commission v Australasian Performing Right Association [1973] HCA 36; (1973) 129 CLR 99, 109 (Gibbs J).
5Electricity Generation Corp v Woodside Energy Ltd; Woodside Energy Ltd v Electricity Generation Corp [2014] HCA 7; (2014) 251 CLR 640 [35] (French CJ, Hayne, Crennan & Kiefel JJ); Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 [49] (French CJ, Nettle & Gordon JJ).
6Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 [46] - [52] (French CJ, Nettle & Gordon JJ); Australian Broadcasting Commission v Australasian Performing Right Association [1973] HCA 36; (1973) 129 CLR 99, 105 (Barwick J), 109 (Gibbs J).
7Marsh v Baxter [No 2] [2016] WASCA 51 [31] (the Court); Noye v Robbins [2010] WASCA 83 [296] (Owen JA, Pullin & Buss JJA agreeing).
8Noye v Robbins [2010] WASCA 83 [332] (Owen JA, Pullin & Buss JJA agreeing); Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474 [45], [50], [54] (Santow JA).
9Noye v Robbins [2010] WASCA 83 [297] (Owen JA, Pullin & Buss JJA agreeing).
10Marsh v Baxter [No 2] [2016] WASCA 51 [31] (the Court); Noye v Robbins [2010] WASCA 83 [296] - [297] (Owen JA, Pullin & Buss JJA agreeing).
11Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474.
12King v King [2012] QCA 081.
13Mainieri v Cirillo [2014] VSCA 227; (2014) 47 VR 127.
14Mainieri v Cirillo [2014] VSCA 227; (2014) 47 VR 127 [52] (the Court).
15Monitronix Ltd v Michael (1992) 7 WAR 195 [200] (Murray J).
16Monitronix Ltd v Michael (1992) 7 WAR 195 [200] (Murray J).
17Monitronix Ltd v Michael (1992) 7 WAR 195 [200] (Murray J).
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