Dimitrov v Bendigo and Adelaide Bank Ltd [No 2]
[2019] VSCA 51
•13 March 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0107
| PETER MICHAEL DIMITROV & ORS (according to the Schedule) | Applicants |
| v | |
| BENDIGO & ADELAIDE BANK LTD (ACN 068 049 178) & ORS (according to the Schedule) | Respondents |
---
| JUDGES: | WHELAN AP, HARGRAVE AND EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| HOW OBTAINED: | On the papers |
| DATE OF JUDGMENT: | 13 March 2019 |
| CASE MAY BE CITED AS: | Dimitrov & Ors v Bendigo and Adelaide Bank Ltd & Ors [No 2] |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 51 |
| JUDGMENT APPEALED FROM: | [2014] VSC 516 (Croft J) |
---
COSTS – Application for extension of time for leave to appeal – application dismissed – ordinary costs consequences of unsuccessful application – applicants pay costs of eleventh to thirteenth respondents.
---
WHELAN AP
HARGRAVE JA
EMERTON JA:
On 6 March 2019 we delivered judgment on an application by the applicants for an extension of time in which to seek leave to appeal from orders approving a settlement of group proceedings.[1] The application for an extension of time for leave to appeal was dismissed. The first to fourth respondents sought to have their costs reserved, foreshadowing an application for indemnity costs once certain related proceedings were determined. The eleventh to thirteenth respondents (‘the directors’) sought costs on the standard basis. Counsel for the applicants sought an opportunity to read the Reasons and, if so advised, file and serve a brief written submission. Directions were made for the filing and service of a submission by the applicants on the application for costs by the directors and for a written submission in response.
[1][2019] VSCA 41 (‘the Reasons’). These reasons assume knowledge of the contents of the Reasons.
The applicants filed a written submission resisting the costs order sought on behalf of the directors. They resisted the order on the following basis:
(1)The applicants had only ever sought orders affecting their own particular situation in relation to the first respondent, Bendigo and Adelaide Bank Limited (‘BABL’). The applicants had never sought orders that would ‘change the rights of the directors’. They were only concerned to preserve their ability to pursue defences and cross-claims against BABL. In the circumstances, the directors had been acting much like an ‘intervener’ and the principles which apply to interveners should be applied to them. The directors had no interest which was not in common with BABL.
(2)The application made was a ‘test case’ which was focused on significant legal issues and was of likely benefit to a considerable number of people otherwise left in doubt as to their legal position. In such test cases the general approach to costs is not, and should not, be followed.
In the alternative, the applicants sought an order staying any order as to costs until certain related matters concerning two of the applicants (Cairncross and Laszczuk) were determined.
In response, the directors submitted:
(1)The directors were not ‘interveners’. They were joined as respondents by the applicants. The relief sought by the applicants included an order vacating the orders approving a deed of settlement to which the directors were parties. Whilst the order the applicants sought in substitution for the order vacated was purportedly confined to their own position, it would have affected the rights of others by overturning a commercial arrangement to which the directors were parties, and on the basis of which many commercial decisions had been made, as the Court had recognised in the Reasons.
(2)The directors had participated in the hearing and advanced submissions which were not identical to those of the other respondents, as the Court had recognised in the Reasons.
(3)The application for an extension of time was not a test case. It was not established that the application was likely to benefit a considerable number of others.
The directors sought an order that costs be paid in accordance with the ordinary rule that costs should follow the event, and that there should be no stay.
Analysis
In our opinion the submissions of the directors should be accepted.
The directors are not to be treated as ‘interveners’. They were joined as respondents by the applicants. They had a real interest in the outcome of the application as parties to the deed of settlement. The submissions they made did not simply replicate those of other respondents.
The application for extension of time was not a test case, nor was it sufficiently analogous to a test case to warrant the application of the principles which are applicable to such cases. Whilst legal issues of significance were raised, the factors which were determinative of the application, being delay and prejudice, did not concern those issues.
This is a matter where the ordinary cost consequences of an unsuccessful application should follow.
Further, we consider that there is no ground for a stay. The directors are not parties to the related applications, and the outcome on those applications cannot affect the assessment of the directors’ position in relation to the application for an extension of time.
Conclusion
There will be an order that the applicants pay the costs of the eleventh to thirteenth respondents of the application for extension of time.
---
SCHEDULE OF PARTIES
| PETER MICHAEL DIMITROV | First Applicant |
| MARK SIMON LASZCZUK | Second Applicant |
| TIFFANY MICHELLE CAIRNCROSS | Third Applicant |
| BENDIGO AND ADELAIDE BANK LIMITED (ACN 068 049 178) | First Respondent |
| ABL CUSTODIAN SERVICES PTY LTD IN ITS CAPACITY AS TRUSTEE OF THE ABL PORTFOLIO FUNDING TRUST 2007-1 (ACN 097 889 720) | Second Respondent |
| ABL NOMINEES PTY LTD (ACN 106 756 521) IN ITS CAPACITY AS TRUSTEE OF THE LIGHTHOUSE TRUST NO 12 | Third Respondent |
| PIRIE STREET HOLDINGS LIMITED (ACN 061 461 550) (FORMERLY ADELAIDE BANK LIMITED) | Fourth Respondent |
| PETER CLARKE AS TRUSTEE OF THE CLARKE FAMILY TRUST | Fifth Respondent |
| SAMANTHA BARBARA MURRAY | Sixth Respondent |
| RAYMOND CARL DRUMMOND | Seventh Respondent |
| GREAT SOUTHERN FINANCE PTY LTD (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 009 235 143) | Eighth Respondent |
| GREAT SOUTHERN MANAGERS AUSTRALIA LIMITED (RECEIVERS & MANAGERS APPOINTED) (IN LIQUIDATION) (ACN 083 825 405) | Ninth Respondent |
| JAVELIN ASSET MANAGEMENT PTY LTD (ACN 136 367 194) | Tenth Respondent |
| JOHN CARLTON YOUNG | Eleventh Respondent |
| CAMERON ARTHUR RHODES | Twelfth Respondent |
| PHILLIP CHARLES BUTLIN | Thirteenth Respondent |
| JEFFREY ARTHUR SYDNEY MEWS | Fourteenth Respondent |
| PETER JOHN PATRIKEOS | Fifteenth Respondent |
| LAURENCE HOGAN | Sixteenth Respondent |
| JACLYNE FISHER | Seventeenth Respondent |
1
0