Boz One Pty Ltd v McLellan

[2015] VSCA 145

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0082

BOZ ONE PTY LTD and WALLABAH PTY LTD	First Appellant Second Appellant
v
ANDREW JAMES MCLELLAN, CRAIG DAVID CROSBIE, INVESTEC BANK (AUSTRALIA) LIMITED and GADENS LAWYERS	First Respondent Second Respondent Third Respondent Fourth Respondent

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JUDGES:	WHELAN, SANTAMARIA and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Written submissions
DATE OF JUDGMENT:	12 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 145
JUDGMENT APPEALED FROM:	Boz One Pty Ltd v McLellan [2014] VSC 208 (Digby J)

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COSTS – Appeal dismissed – Contingent appeal and contingent cross-appeal not determined as they were contingent on the appeal succeeding – Fourth respondent added to appeal upon application of first and second respondents – First and second respondents ordered to pay fourth respondent’s costs of appeal – Appellants ordered to pay first and second respondent’s costs and to indemnify them for their costs liability to the fourth respondent – Third respondent ordered to pay first and second respondents’ costs of third respondent’s contingent appeal – Appellants ordered to pay third respondent’s costs of its contingent appeal and to indemnify it for its costs liability to the first and second respondents.

SECURITY FOR COSTS – Release of funds held as security for costs prior to taxation of costs based on evidence that the amount of the taxed costs is likely to exceed the amount of the security.

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APPEARANCES:

No appearances.  The Court considered the written submissions filed by the parties.

WHELAN JA
SANTAMARIA JA

KYROU JA:

Introduction and summary

1. On 23 April 2015, we published our reasons for our decision that the appeal should be dismissed and that it was not necessary for us to consider the contingent appeal or the contingent cross-appeal.[1]  We did not pronounce any order on that day.  Rather, we directed the parties to file submissions on the appropriate form of the order to be made to give effect to our reasons and on any outstanding issues such as costs and the release of funds held as security for costs.  We informed the parties that, upon receipt of their submissions, we would make an order on the papers and publish separate reasons for that order. 

   [1]Boz One Pty Ltd v McLellan [2015] VSCA 68 (‘Principal Judgment’).

1. Having had the benefit of detailed submissions from the parties — including submissions in reply from some of them — we propose to make the following order (‘proposed order’):

1.        The appeal is dismissed.

2.The first and second respondents pay the fourth respondent’s costs of the appeal, including any reserved costs.

3.The third respondent pay the first and second respondents' costs of the third respondent's contingent appeal, including any reserved costs.

4.The appellants pay:

(a)to the first and second respondents their costs of the appeal, including any reserved costs;

(b)to the first and second respondents all costs payable by them pursuant to paragraph 2 of this order;

(c) to the third respondent its costs of its contingent appeal, including the third respondent’s…