Elks v Melgear Pty Ltd (No 2)

In Elks v Melgear Pty Ltd (No 2), the parties were involved in a dispute over the priority of debts and the distribution of funds from a security trust. The case was heard by the court, which was required to determine several legal issues. The court needed to decide whether specific directions should be given regarding the timeframes for receivers to take certain steps, the manner in which a sum was to be distributed, the steps to be taken to cause the trust to vest upon distribution of the fund, and whether the receivers should be allowed to apply for further directions and judicial advice. Additionally, the court had to resolve questions regarding the costs associated with the proceedings, including whether the first and second respondents' costs should be paid on an indemnity basis out of the fund and whether the applicant should pay the third respondent's costs on the standard basis.

The court reasoned that there was no basis to depart from the usual rule that costs should follow the event. Given that Mr Elks was unsuccessful in his application, he was ordered to pay Mr Feitelson's costs on the standard basis. The court provided detailed directions for the second respondents to determine the entitlements of all claimants to the fund, to notify relevant parties of these determinations, and to distribute the fund within specified timeframes. The court also granted the second respondents the liberty to apply for further directions or judicial advice, subject to certain notice requirements. Regarding costs, the court ruled that the first and second respondents' costs should be paid on an indemnity basis out of the fund, with priority given to the share of the fund to which the applicant was entitled. The applicant was to pay the third respondent's costs on the standard basis.

These orders were designed to ensure clarity and fairness in the distribution of the fund and the allocation of costs, reflecting the court's consideration of the legal principles and the specific circumstances of the case.