Euromark Ltd v Smash Enterprises Pty Ltd (in liq) (No 4)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
COMMERCIAL LIST

S ECI 2015 00478

BETWEEN:

EUROMARK LIMITED	Plaintiff
and
SMASH ENTERPRISES PTY LTD (IN LIQ) (ACN 091 134 708) & ORS (according to the attached Schedule)	Defendants

---

JUDGE:	Matthews J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers, written submissions 19 March 2025, 27 March 2025
DATE OF RULING:	30 April 2025
CASE MAY BE CITED AS:	Euromark Ltd v Smash Enterprises Pty Ltd (in liq) (No 4)
MEDIUM NEUTRAL CITATION:	[2025] VSC 221

---

PRACTICE AND PROCEDURE – Costs – Whether leave to proceed against a corporate defendant now in liquidation should be granted so as to pursue making of a costs order – Leave is required – Leave granted, on conditions – Corporations Act 2010 (Cth), s 500(2).

PRACTICE AND PROCEDURE – Costs – Whether leave is required to proceed against a defendant made bankrupt before relevant costs order is made – Leave not required as the costs order is not a provable debt – Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 – Bankruptcy Act 1966 (Cth), ss 58, 60 and 82.

PRACTICE AND PROCEDURE – Costs – Plaintiff seeks order for costs against defendants following Court of Appeal remitting assessment of loss of bargain damages to trial judge, setting aside costs orders previously made by trial judge and reserving the costs of the proceeding to the trial judge – Plaintiff substantially successful following trial, cross-appeal and the outcome of the remitter – No reason to displace ordinary rule that costs follow the event – Costs order made.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr O Bigos KC with Mr M Garrett of counsel	Tisher Liner FC Law
The Second Defendant, in person

HER HONOUR:

Introduction

This ruling concerns a costs application brought by the plaintiff (Euromark Ltd) in respect of a long‑running proceeding. Euromark seeks costs orders against the first, second and fourth defendants: Smash Enterprises Pty Ltd (Smash), William Jason Harbinson (Jason),[1] and David Malone (Malone), respectively (together, the Relevant Defendants).[2]
[1]Intending no disrespect and for the sake of convenience and clarity, I refer to Jason by his first name in these reasons. I note that this is also the name used by the parties in the proceeding.
[2]Orders have already been made in the proceeding that there be no order as to the costs of the third defendant, Joseph Dale Harbinson, known as Dale: Orders of Lyons J in Euromark Limited v Smash Enterprises Pty Ltd (ACN 091 134 708) (Supreme Court of Victoria, S ECI 2015 00478, 30 June 2021) [7]. Those orders were not impugned or overturned in subsequent appeals.
For the reasons given below, I will order that the Relevant Defendants pay Euromark’s costs of the proceeding.

Procedural history

In 2015, Euromark commenced this proceeding against Smash. Euromark alleged that Smash breached the terms of an exclusive distribution agreement in respect of Smash’s products in the UK by soliciting Euromark’s customers and establishing its own branch in the UK to supply products directly to UK customers, that Smash wrongfully purported to terminate the distribution agreement and that Smash failed to act in good faith towards Euromark.
On 22 October 2018, Euromark commenced a separate proceeding against Smash, Jason, Dale and Malone, with claims including alleged breaches of the Australian Consumer Law (ACL).[3] On 17 May 2019, the two proceedings were consolidated by orders made by Kennedy J (as her Honour then was).
[3]Competition and Consumer Act 2010 (Cth) sch 2; Euromark Limited v Smash Enterprises Pty Ltd (ACN 091 134 708), (Supreme Court of Victoria, S ECI 2018 01872, commenced by writ on 22 October 2018).
The trial of the consolidated proceeding took place in 2020 before Lyons J (as his Honour then was). His Honour published reasons for judgment regarding liability and damages on 9 March 2021.[4] At first instance, Euromark succeeded in its unconscionable conduct claims against Jason and Malone and on an aspect of its contractual claims against Smash, but Lyons J dismissed Euromark’s claim for loss of bargain damages.
[4]Euromark Limited v Smash Enterprises Pty Ltd [2021] VSC 97 (Trial Reasons).
On 30 June 2021, Lyons J delivered a separate judgment on costs and interest,[5] and made orders reflecting both the Trial Reasons and the Costs/Interest Reasons (June 2021 Order).
[5]Euromark Limited v Smash Enterprises Pty Ltd (No 2) [2021] VSC 393 (Costs/Interest Reasons).
The June 2021 Order reflected the fact that (at that stage) Euromark had achieved a mixed result, providing in summary that:
(a)Smash pay damages of $100,923.28 to Euromark;
(b)Jason and Malone pay $1,467,099.07 to Euromark;
(c)Euromark pay 50% of Smash’s costs on a standard basis from the commencement of the proceeding to 17 May 2019;
(d)Smash, Jason and Malone pay 60% of Euromark’s costs of this proceeding on a standard basis from 18 May 2019;
(e)Smash’s entitlement to costs be set off against Euromark’s entitlement to costs;
(f)there be no order as to the costs of the 2018 proceeding pre-consolidation; and
(g)there be no order as to Dale's costs of the proceeding.
The June 2021 Order was subject to an appeal by the defendants to the Court of Appeal. Euromark cross‑appealed in respect of its claim for loss of bargain damages and costs.
On 9 December 2022, the Court of Appeal delivered its reasons for judgment.[6] The defendants were unsuccessful in their appeal and Euromark succeeded on its cross‑appeal.
[6]Smash Enterprises Pty Ltd v Euromark Ltd [2022] VSCA 267 (Niall, Sifris and Macaulay JJA) (Appeal Reasons).
On 9 and 14 December 2022, the Court of Appeal made final orders in the Appeal (Appeal Orders), including that:
(a)leave to appeal on specified grounds be granted and the appeal be dismissed;
(b)the application for leave to cross-appeal be granted and the cross-appeal be allowed;
(c)the assessment of damages for Euromark’s loss of bargain claim, including any interest thereon, be remitted to Lyons J for hearing and determination;
(d)the defendants pay Euromark’s costs of the appeal and of the cross-appeal on the standard basis; and
(e)the costs orders made by Lyons J (except for the order in respect of Dale) in the June 2021 Order be set aside and the issue of the costs of the proceeding be reserved to the trial judge.
In April 2023, Lyons J heard the remitted aspect, being the assessment of damages for Euromark’s loss of bargain claim.
On 27 July 2023, while his Honour’s judgment on the remitter was reserved, Smash went into liquidation.
On 22 August 2023, Lyons J published reasons for judgment in respect of the remitter.[7] Of the approximately £1 million claimed by Euromark as loss of bargain damages, Lyons J awarded it £896,006.
[7]Euromark Limited v Smash Enterprises Pty Ltd (No 3) [2023] VSC 490 (Remitter Reasons).
On 18 October 2023, Lyons J made orders giving effect to the judgment contained in the Remitter Reasons (2023 Order). The 2023 Order provided for:
(a)judgment for Euromark against Smash in the sum of $1,783,096.52, equivalent to £896,006, plus interest of $1,300,585.25; and
(b)the adjournment of the question of the costs of the proceeding to a date to be fixed.
The combined effect of the 2023 Order and the June 2021 Order was that Euromark had been awarded damages and interest against Smash totalling $3,184,605.05, and against Jason and Malone totalling $1,467,099.07.
As at that time, there was no extant order as to the costs of the trial insofar as Euromark, Smash, Jason and Malone were concerned. Fearing that the fresh liability of a new costs order would not be a provable debt in the liquidation of Smash, Euromark approached the Court of Appeal seeking to re-open the proceeding before that Court. In substance, Euromark sought orders to enable it to withdraw its cross‑application and cross-appeal in so far as it sought costs and for the Court of Appeal to set aside its order as to costs (in part), with the effect that the June 2021 Order as to costs would apply.[8] The Court of Appeal rejected Euromark’s application, finding that it did not have power to make the orders that Euromark sought. The Court of Appeal stated that even if it did have such a power, it would have declined to exercise it in favour of Euromark.[9]
[8]The June 2021 Order was made when Euromark had only obtained a ‘mixed’ result, and the 60% percentage reflected that mixed result. Euromark ultimately had greater success in the proceeding post‑appeal and cross‑appeal, however, Euromark sought to restore the costs order in the June 2021 Order to ensure a greater prospect of actual recovery. This was because the June 2021 Order was made prior to Smash entering liquidation, and would therefore have been a provable debt in the liquidation of Smash: Euromark Limited, ‘Plaintiff’s Submissions on Costs (Remitter)’, Submission in Euromark Limited v Smash Enterprises Pty Ltd (in liq) (ACN 091 134 708), No. S ECI 2015 00478, 19 March 2025, 7 nn 30 (Euromark’s Submissions).
[9]Euromark Ltd v Smash Enterprises Pty Ltd (In Liq) [No 2] [2024] VSCA 152, [10]–[11], [18] (Niall and Macaulay JJA).
On 29 January 2024, Jason was made bankrupt.
This proceeding has been allocated to me for case management.
On 25 February 2025 on my instruction, my Associate sent an email to the parties seeking an update as to whether Euromark sought anything further in this proceeding, as the costs question had been dormant for some time. By email dated 3 March 2025, Euromark’s solicitors confirmed that it sought costs orders against Smash, Jason and Malone. This application is the subject of the present ruling.
On 5 March 2025, I made orders that:
(a)Euromark file and serve short written submissions on costs by 20 March 2025, with such submissions to be served on the liquidators of Smash, on Jason and his trustee in bankruptcy, and on Malone;
(b)The Relevant Defendants file and serve any short written submissions on costs by 3 April 2025;
(c)Euromark file and serve any submissions in reply by 10 April 2025; and
(d)subject to further order, the costs question be dealt with on the papers after 10 April 2025.
Pursuant to those orders:
(a)Euromark filed submissions on 19 March 2025; and
(b)Jason filed submissions entitled ‘Defendants’ Submissions on Costs’ on 27 March 2025.[10]
[10]The outline of submissions entitled ‘Defendants’ Submissions on Costs’, which was filed by Jason, is written in the first-person singular. It is not clear whether these submissions are provided on behalf of all defendants, and in the absence of clarity, I consider that they are submissions of Jason only. I note that no other defendant filed submissions in respect of the costs question.
Euromark did not file any reply submissions.

Submissions

Euromark

Leave to proceed

As a preliminary matter, the Court must determine whether to grant Euromark leave to proceed against Smash, as a company in liquidation.[11] Euromark says that leave would be conditional on the basis that no step will be taken by it in the execution of any costs orders made against Smash, without the leave of the Court on notice to the liquidator.
[11]Leave is required under s 500(2) of the Corporations Act 2001 (Cth) (Corporations Act) before Euromark can take any steps against Smash in the proceeding. The application for costs is a step in the proceeding.
Euromark submits that it is appropriate that leave be granted as:
(a)costs are a matter that can be determined only by the Court, and cannot be determined through the proof of debt process in a liquidation; and
(b)although Smash’s costs liability would not be a provable debt, it might become relevant if the liquidation is terminated or stayed pursuant to s 482(1) of the Corporations Act.[12]
[12]Euromark’s Submissions [4].
Euromark submits that no leave is required to proceed against Jason, despite his bankruptcy.[13] This is because a stay under s 58(3)(b) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) only applies to proceedings in respect of a ‘provable debt’, and an order for costs made against a bankrupt after the commencement of bankruptcy does not give rise to a provable debt,[14] even if (as here) the costs order follows a judgment given before the bankruptcy. If I make a costs order against Jason, Euromark says that the costs liability will be borne by Jason personally notwithstanding his bankruptcy, and could be enforced both during and after the period of Jason’s bankruptcy. Euromark submits that Jason’s bankruptcy is no impediment to the making of a costs order against him.[15]
[13]Euromark’s Submissions [5].
[14]Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52, [65], [67] (Foots).
[15]Foots (2007) 234 CLR 52. Euromark also refers to Panorama Investments Pty Ltd v Summit Tower Pty Ltd [2017] VSC 390, where an order for costs was made against a bankrupt after the commencement of his bankruptcy.

Whether to order costs

Euromark submits that it is appropriate that costs orders now be made reflecting its ultimate success in the proceeding of its claims against Smash, Jason and Malone. Euromark seeks costs against Smash, Jason and Malone on the standard basis.[16]
[16]Euromark’s Submissions [3].
Euromark submits that it ultimately succeeded in all of its claims against Smash and therefore it should be entitled to costs of the proceeding as against Smash. Specifically, Euromark says:[17]
…It was held that Smash had contacted Tesco in February 2012 and discussed the possibility of supplying Tesco directly (the allegation referred to in 9(a) herein); and that while Smash had not engaged in the Planning Conduct (9(b)), Smash had committed the remaining repudiatory breaches alleged at 9(c) to 9(f) herein.
While at first instance it was held that Euromark was not ready, willing and able to perform its obligations as at that date, and so was not entitled to [loss of bargain damages], that finding was overturned on appeal, and Euromark was then awarded damages and interest on the [loss of bargain damages] claim totalling $3,083,681.77. Euromark also succeeded on the Tesco and Wilkinsons claims, and was awarded damages and interest in respect of those claims totalling $100,923.28, and during the trial Smash had paid Euromark the full amount of the WH Smith claim.
[17]Euromark’s Submissions [20]–[21] (citations omitted).
As against Jason and Malone, Euromark’s position is that they ought to pay Euromark’s costs of this proceeding from 18 May 2019 and of the 2018 proceeding.[18] This is because Euromark succeeded in claiming damages for contravention of the ACL in respect of the conduct of Jason and Malone. Euromark was awarded substantial damages in respect of its unconscionable conduct claim. Jason was held to have engaged in that conduct personally, and/or to have been involved in that conduct; and Malone was found to have been involved in that conduct.
[18]Euromark’s Submissions [24].
Euromark says that it is inconsequential that it did not succeed in its claims regarding alleged misleading or deceptive conduct. This was because the damages which it had claimed for the misleading or deceptive conduct and unconscionable conduct contraventions were the same, the claims were derived from the same factual basis, and there was significant overlap of the factual issues in respect of both of those claims and the contract claims alleged against Smash.[19]
[19]Euromark’s Submissions [23].

Relevant Defendants

Smash and Malone did not file any submissions regarding costs. Jason was the only defendant to do so.
The gravamen of Jason’s submissions was difficult to determine with precision. As best as I can ascertain, his outline appears to suggest that no leave should be granted as against Euromark, and no costs orders should be made at all. It is suggested that to do so would be futile in circumstances where there is little chance of recovery.
Jason’s submissions emphasise the existing damages liability of the defendants and costs order regarding the appeal. He says that ‘[t]here is no argument from any party that the appeal costs order against me is not a provable debt, and forms part of my bankruptcy.’[20] He says that it follows that any costs order stemming from the Trial Reasons or subsequently from the Appeal Orders should also form part of the bankruptcy as the decisions had already been established before he became bankrupt.[21] While not entirely clear, I take Jason’s inclusion of the Appeal Orders in this way to mean that costs orders arising from the reservation of costs to the trial judge, as contained in the Appeal Orders, also arose prior to his bankruptcy and so would be a provable debt.
[20]Jason Harbinson, ‘Defendants’ Submission on Costs’, Submission in Euromark Limited vs Smash Enterprises Pty Ltd (in liq) (ACN 091 134 708), No. S ECI 2015 00478, 27 March 2025, [3] (Jason’s Submissions).
[21]Jason’s Submissions [3]–[4].
Jason notes that Euromark is asking the Court to grant leave to proceed with a cost order against a company in liquidation, in circumstances where Euromark has little to no chance of receiving that debt unless the liquidation is terminated. He asserts in his submissions that none of the reports issued during the liquidation of Smash have indicated that there is any just cause to terminate the liquidation.
Jason’s position is that costs orders made against him would be a provable debt in his bankruptcy and thus a stay would ensue. He says that this is the case because his liability for costs arises out of the result of the original trial before Lyons J and stem from the June 2021 Order. He says that this liability was established before his bankruptcy. Referring to Foots, he noted in that case that the court awarded costs after the party had been declared bankrupt.
As for the order for costs sought against Malone, Jason states that he is aware of a settlement agreement entered into by Malone and Euromark in February 2024 which would ‘negate the Plaintiffs’ submission on costs being applied to Malone.’[22]
[22]Jason’s Submissions [7].
Jason’s submissions end with the following:[23]
I have only addressed the ‘Submission of Costs’ as the Plaintiff hasn’t outlined how the Court should apply the Cost Order if successful.
[23]Jason’s Submissions [9].

Consideration

There are three issues for me to determine:
(a)Whether to grant Euromark leave to proceed against Smash, given that the latter is now in liquidation.
(b)Whether Euromark requires leave to proceed against Jason.
(c)Whether orders for the costs of the proceeding in favour of Euromark should be made against one or more of Smash, Jason or Malone.

Whether to grant Euromark leave to proceed against Smash

Smash’s liquidator had the opportunity to make submissions in respect of the leave and costs questions, but did not.
Section 500(2) of the Corporations Act provides that no civil proceeding against a company in liquidation can be proceeded with or commenced except by leave of the court.[24] The requirement for leave is not linked to whether or not that civil proceeding is in respect of a provable debt. Leave is required regardless of whether it is a provable debt.
[24]Corporations Act s 500(2).
Accordingly, Euromark’s application for costs against Smash is a step in this civil proceeding against a company in liquidation. As a precursor to making any costs order against Smash, I would need to be satisfied that leave to proceed should be granted.

I agree with Euromark’s submission that any costs order which I may make against Smash as a consequence of this application would not be a provable debt.
This is due to the definition of provable debt in the Corporations Act. Section 553(1) of the Corporations Act provides that:[25]
… in every winding up, all debts payable by, and all claims against, the company (present or future, certain or contingent, ascertained or sounding only in damages), being debts or claims the circumstances giving rise to which occurred before the relevant date, are admissible to proof against the company.
[25]Corporations Act s 553(1).
Until an order for costs is made by the Court, Smash has no liability to pay Euromark’s costs of the proceeding.[26] It is well-established that if a court makes a costs order against a company and the company goes into liquidation after that order is made but before the costs are quantified or taxed, that is a provable debt as the circumstances giving rise to it (i.e. the making of a costs order) arose prior to the liquidation. In that instance, the party with the benefit of the costs order is a contingent creditor.[27] However, where a court has not made a costs order before the company goes into liquidation, that debt is not provable as the circumstances giving rise to it occurred after the date of liquidation.
[26]Summer Breeze Pty Ltd v Rohrt (in his capacity as liquidator of Buildark Constructions Pty Ltd (in liq)) [2022] VSC 653.
[27]National Australia Bank Ltd v Market Holdings Pty Ltd (in liq) (2001) 37 ACSR 629, [135].
In this case, the June 2021 Order contained an order for costs against Smash, but this costs order was set aside by the Appeal Orders. Thus, there was no order in respect of the costs of the proceeding that had been made and this subsisted when Smash went into liquidation. Unless and until a costs order is made against Smash in respect of the proceeding, then Smash has no liability for costs – contingent or otherwise. This is not the case in respect of the costs of the appeal: those costs are the subject of the Appeal Orders, and are a provable debt as they were ordered prior to Smash going into liquidation.
I am satisfied that leave should be granted to Euromark to pursue its application for costs against Smash on the condition that no step will be taken by it in the execution of any costs order made against Smash without the leave of the Court on notice to the liquidator. Euromark has proposed that condition, and I consider it is one that should be imposed. My reasons for granting leave are as follows:
(a)the liquidator has not opposed the grant of leave;
(b)the costs order would not be a provable debt, so would be unable to be adjudicated in the ordinary course by the liquidator;
(c)even though Smash is in liquidation, there is some (albeit small) utility in pursuing a costs order against Smash. While the possibility of recovering costs against Smash may be low, as that would only arise if the liquidation is terminated or stayed, that possibility does exist. I note for completeness that I have not taken into account Jason’s submission on this point (see paragraph 33 above), as he has no standing to make submissions in respect of costs orders against Smash. Even if he did, I do not consider that such a submission tells against granting leave; and
(d)importantly, the condition adequately protects the liquidation process, including the assets available for distribution to creditors of Smash. The condition limits the actions that Euromark can take so as not to divert the attention of the liquidator from their principal function or require the liquidator to incur costs.

Whether Euromark requires leave to proceed against Jason

Euromark’s submission that it does not need leave to proceed against Jason in order to pursue the making of a costs order against him is correct. Jason’s submissions on this issue are misconceived.
The relevant provisions of the Bankruptcy Act are as follows, and these make plain that leave is not required:
(a)Section 58(3) of the Act provides (emphasis added):[28]
Except as provided by this Act, after a debtor has become a bankrupt, it is not competent for a creditor:
(a)to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt; or
(b)except with the leave of the Court and on such terms as the Court thinks fit, to commence any legal proceeding in respect of a provable debt or take any fresh step in such a proceeding.
(b)Section 82(1) provides the meaning of ‘provable debt’ (emphasis added):[29]
… all debts and liabilities, present or future, certain or contingent, to which a bankrupt was subject at the date of bankruptcy, or to which he or she may become subject before his or her discharge by reason of an obligation incurred before the date of the bankruptcy, are provable in his or her bankruptcy.
[28]Bankruptcy Act s 58(3).
[29]Bankruptcy Act s 82(1).
It is worth setting out aspects of the majority’s reasoning in Foots.
(a)The majority in Foots reasoned that:[30]
[30]Foots [36] (citations omitted).
The most that can be said, as Mummery LJ observed in Glenister, is that “[o]nce legal proceedings have been commenced there is always a possibility or a risk that an order for costs may be made against a party”. But that risk is not a contingent liability within the sense of s 82(1). The order for costs itself is the source of the legal liability and there is no certainty that the court in question will decide to made an order.
(b)The majority continued:[31]
First, the order made falls outside s 82(1) because it was made after bankruptcy, and was thus not a liability “to which a bankrupt was subject at the date of the bankruptcy, or to which he or she may become subject before his or her discharge by reason of an obligation incurred before the date of the bankruptcy” (emphasis added). Secondly ... Mr Foots was under no antecedent obligation to pay costs until the order was made against him. Thirdly, there is no scope in the text or structure of the Act for the notion of an obligation or liability “incidental” to a provable debt.
(c)The majority concluded:[32]
Had the costs order ... been made and taxed before the appellant's bankruptcy ensued, it would have been a provable debt. Even if the order had not been taxed before bankruptcy, it would nonetheless have been provable as a debt incurred “by reason of an obligation incurred before the date of the bankruptcy”; namely the antecedent making of the costs order. However, the order was made only after bankruptcy had already intervened, and the appellant's liability to meet that order did not arise from an obligation incurred before bankruptcy. Thus, it was not a provable debt and the stay contained in s 58(3) of the Act was not engaged.
[31]Foots [65].
[32]Foots [67].
Thus, it is readily apparent that any costs order which I make following on from Euromark’s application for costs after the conclusion of the remitter and in fulfilment of the Appeal Orders is not a debt which is provable in Jason’s bankruptcy. The circumstances giving rise to Jason having a contingent liability for Euromark’s costs do not arise until the costs order is made, and so therefore the costs order does not arise from an obligation incurred before bankruptcy.
Accordingly, Euromark does not require leave in order to pursue an order for costs against Jason. Further, Jason’s bankruptcy does not prevent a costs order being made. The plaintiff is entitled to seek such an order and the Court is empowered to make it.

Whether orders in favour of Euromark for the costs of the proceeding should be made against Smash, Jason and/or Malone

Under s 24(1) of the Supreme Court Act 1986 (Vic), the Court has full power to determine by whom and to what extent costs are to be paid. Costs is in the discretion of the Court, and that discretion is absolute and unfettered, albeit one that has to be exercised judicially and upon facts connected with or leading to the litigation and not by reference to irrelevant or extraneous considerations.[33] Nonetheless, the starting point and usual approach regarding costs following a trial is that costs follow the event.
[33]Latoudis v Casey (1990) 170 CLR 534, 557.
The combined effect of the Trial Reasons, the June 2021 Order, the Remitter Reasons and the 2023 Order is that Euromark was successful in its claims against Smash. Absent any countervailing factors, Euromark ought to be granted its costs. None of the submissions made by Jason as to whether an order should be made against Smash, even if he had standing to make those submissions, tell against granting a costs order against Smash. The reasons expressed above when granting leave to proceed against Smash also support the making of the costs order.
It is apparent from the Trial Reasons and the June 2021 Order that Euromark achieved substantial success in its claims against Jason and Malone. In this instance, it is not to the point that Euromark failed against Jason and Malone on one of its causes of action; that being, the misleading and deceptive conduct claim. There is no reason that Euromark’s costs should be discounted or that there should be an apportionment as a consequence of that cause of action failing. In particular, there is no evidence before me to suggest anything to contradict Euromark’s submission as to the same factual basis applying to that claim as the unconscionable conduct claim (on which it succeeded), that there was significant overlap between the two claims, and the same damages were claimed for both claims.
Again, nothing in Jason’s submissions is apt to convince me that the usual rule as to costs should be displaced insofar as he and Malone are concerned. Here, Euromark ultimately succeeded on almost all of the issues in this proceeding and I consider that it is entitled to its costs from them. In this regard:
(a)Jason’s submissions as to the utility of making a costs order are, as set out above, misconceived due to his mistaken belief that the costs order would be a provable debt.
(b)Even if Jason had standing to make submissions about Malone, those submissions do not persuade me not to make a costs order against Malone. As I understand it, through previous involvement with an application in this proceeding up to around 19 February 2024, some form of settlement as between Euromark and Malone was reached around that time. This is recorded in the ‘other matters’ section of the orders I made on 19 February 2024. I do not know and have no evidence as to the content of that settlement and so therefore do not know whether it deals with the costs question. It is no impediment to me making a costs order against Malone.
The recoverability of costs by Euromark is a different question, but one with which I am not concerned for the purposes of this ruling. Therefore, Jason’s submissions in that regard, if that indeed is what is meant by the final part of his submission as set out at paragraph 36 above, is unintelligible and irrelevant, and consequently unpersuasive. If that is not what is meant, then I do not know what point Jason was trying to make by it, and I therefore give it no weight.

Conclusion

For these reasons, simultaneously with the publication of these reasons, I will make orders, substantially in the form sought by Euromark, as follows:
(a)Euromark have leave pursuant to s 500(2) of the Corporations Act to proceed against Smash in respect of costs, on the condition that no step be taken in the execution of the costs order without leave of the Court on notice to Smash’s liquidator;
(b)Smash pay Euromark’s costs of this proceeding on the standard basis, including reserved costs, to be taxed in default of agreement; and
(c)Jason and Malone pay:
(i)Euromark’s costs of this proceeding on the standard basis, from 18 May 2019; and
(ii)Euromark’s costs of proceeding number S ECI 201 01872
to be taxed in default of agreement.

---

SCHEDULE OF PARTIES

S ECI 2015 00478
BETWEEN:
EUROMARK LIMITED	Plaintiff
and
SMASH ENTERPRISES PTY LTD (IN LIQ) (A.C.N 091 134 708)	First Defendant
WILLIAM JASON HARBINSON AKA JASON HARBINSON	Second Defendant
JOSEPH DALE HARBINSON AKA DALE HARBINSON	Third Defendant
DAVID MALONE	Fourth Defendant

[2025] VSC 221

30 April 2025