Knights Capital Group Ltd v Bajada and Associates Pty Ltd
[2016] WASC 69 (S)
•29 SEPTEMBER 2016
KNIGHTS CAPITAL GROUP LTD -v- BAJADA AND ASSOCIATES PTY LTD [2016] WASC 69 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 69 (S) | |
| Case No: | CIV:1875/2014 | ON THE PAPERS | |
| Coram: | PRITCHARD J | 29/09/16 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Indemnity costs order made as to costs of hearing on 18 December 2015 Application otherwise dismissed | ||
| B | |||
| PDF Version |
| Parties: | KNIGHTS CAPITAL GROUP LTD BAJADA AND ASSOCIATES PTY LTD SELWYN JOHN BAJADA GRANT BARTLEY HODGETTS MICHAEL JOHN BRITTON GREGORY JAMES PARAMOR GRANT CHARLES PRIEST |
Catchwords: | Practice and procedure Costs Indemnity costs Successful application for summary judgment by defendants to counterclaim Whether counterclaim was hopeless Whether plaintiff by counterclaim's conduct warranted disapprobation of court Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA) |
Case References: | Civil Properties Pty Ltd v Miluc Pty Ltd [2011] WASCA 195 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397 Knights Capital Group Ltd v Bajada and Associates Pty Ltd [2016] WASC 69 Re Malley SM; Ex parte Gardner [2001] WASCA 83 Said v Butt [1920] 3 KB 497 Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129(S) Trafalgar West Investments Pty Ltd (as trustee for The Trafalgar West Investments Trust) v Superior Lawns Australia Pty Ltd [No 5] [2014] WASC 70 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
BAJADA AND ASSOCIATES PTY LTD
First Defendant
SELWYN JOHN BAJADA
Second Defendant
(BY ORIGINAL ACTION)
BAJADA AND ASSOCIATES PTY LTD
Plaintiff
AND
KNIGHTS CAPITAL GROUP LTD
First Defendant
GRANT BARTLEY HODGETTS
Second Defendant
MICHAEL JOHN BRITTON
Third Defendant
GREGORY JAMES PARAMOR
Fourth Defendant
GRANT CHARLES PRIEST
Fifth Defendant
(BY COUNTERCLAIM)
Catchwords:
Practice and procedure - Costs - Indemnity costs - Successful application for summary judgment by defendants to counterclaim - Whether counterclaim was hopeless - Whether plaintiff by counterclaim's conduct warranted disapprobation of court - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Indemnity costs order made as to costs of hearing on 18 December 2015
Application otherwise dismissed
Category: B
Representation:
Original Action
Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Solicitors:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Counterclaim
Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Solicitors:
Plaintiff : HopgoodGanim
First Defendant : No appearance
Second Defendant : Wilson & Atkinson
Third Defendant : Wilson & Atkinson
Fourth Defendant : Wilson & Atkinson
Fifth Defendant : Wilson & Atkinson
Cases referred to in judgment:
Civil Properties Pty Ltd v Miluc Pty Ltd [2011] WASCA 195
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397
Knights Capital Group Ltd v Bajada and Associates Pty Ltd [2016] WASC 69
Re Malley SM; Ex parte Gardner [2001] WASCA 83
Said v Butt [1920] 3 KB 497
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129(S)
Trafalgar West Investments Pty Ltd (as trustee for The Trafalgar West Investments Trust) v Superior Lawns Australia Pty Ltd [No 5] [2014] WASC 70
1 PRITCHARD J: Earlier this year, I delivered reasons for judgment1 in which I concluded that the application by the second to fifth defendants by counterclaim (the Applicants) for summary judgment on the counterclaim pursuant to O 16 r 1 of the Rules of the Supreme Court 1971 (WA) (the Summary Judgment Application) should be granted, on the basis that the Applicants had a good defence on the merits. These reasons should be read in conjunction with those reasons for decision. The same abbreviations have been used.
2 Following the delivery of my reasons for granting the Summary Judgment Application, I ordered that there be judgment for the Applicants on the counterclaim and that BA pay the Applicants' costs of the proceedings. In addition, as the Applicants had foreshadowed their intention to make an application for indemnity or other special costs orders, I made orders by consent that any such application be determined on the papers.
3 The Applicants subsequently sought an order for indemnity costs (the Costs Application), in the following terms (the Proposed Costs Orders):
1. The first defendant / plaintiff by counterclaim [BA] pay all of the costs incurred by the Applicants of and incidental to:
1.1 the [Summary Judgment Application] including all reserved costs and the costs of this application;
1.2 the costs thrown away by reason of [BA's] amendment, re-amendment and further re-amendment of its defence and counterclaim,
except insofar as they are of an unreasonable amount or have been unreasonably incurred, so that subject to the above exceptions the [Applicants] are completely indemnified by [BA] for their costs.
5 For the reasons set out below, I am not persuaded that an order for indemnity costs should be made in respect of the Applicants' costs of the Summary Judgment Application as a whole. However, I am satisfied that an order for indemnity costs should be made in respect of the Applicants' costs of the hearing on 18 December 2014.
The agreed factual background
6 There was no dispute in relation to the following background facts which the Applicants submitted were relevant to the Costs Application.2
7 By a writ of summons issued on 24 June 2014, with statement of claim indorsed, KCGL sued BA and Mr Bajada for damages for breach of the Management Agreement, or compensation pursuant to the Corporations Act 2001 (Cth), and seeking to recover monies it alleged were overpaid to BA. By an amendment made on 17 September 2014 the amount of damages claimed was reduced.
8 On 4 August 2014, BA and Mr Bajada filed a defence and BA filed a counterclaim. As against KCGL, the counterclaim was for $1,864,331.61 in damages (which was said to be the amount owing pursuant to the Management Agreement between KCGL and BA) and for special damages in the sum of $6,877,993.92 (in respect of profits allegedly lost as a consequence of KCGL's alleged repudiation of the Management Agreement). The alleged loss of profits was also pleaded as against the Applicants, on the basis that they caused KCGL to repudiate the Management Agreement. At that stage, the defence and counterclaim did not plead any lack of good faith or any exception to the rule in Said v Butt.3
9 By letter dated 29 August 2014 and by means of conferral, the Applicants explained why, in their view, the counterclaim against them did not disclose a cause of action and sought BA's agreement to dismiss that part of the counterclaim. The same deficiencies in the counterclaim were raised by the Applicants in a strategic conference held on 5 September 2014, in the course of which the Applicants indicated their intention to make the Summary Judgment Application. At that point, BA indicated its intention to amend the counterclaim.
10 An amended defence and counterclaim, including amendments to the parts of the counterclaim relating to the Applicants, was filed on 25 September 2014.4
11 On 10 October 2014, the Applicants filed the Summary Judgment Application which included, in the alternative, an application to strike out part of the amended counterclaim. Each of the Applicants swore an affidavit in support of that application.
12 On 22 October 2014, the Applicants filed their defence to the amended counterclaim.
13 On 19 November 2014, Mr Bajada swore an affidavit in opposition to the Summary Judgment Application.
14 On 25 November 2014, BA filed an amended defence and counterclaim which included substantial amendments to the parts of the counterclaim relating to the Applicants.
15 On 27 November 2014, the Applicants filed their submissions in support of the Summary Judgment Application.
16 On 9 December 2014, BA filed its submissions in opposition to the Summary Judgment Application.
17 On 15 December 2014, BA filed a further re-amended defence and counterclaim which included further amendments to the parts of the counterclaim relating to the Applicants.
18 The Summary Judgment Application was heard on 18 December 2014. At the commencement of his submissions, counsel for BA conceded that the pleading of the counterclaim was deficient and sought leave to re-plead the counterclaim. I regarded that concession as properly made and expressed the view that the counterclaim did not adequately plead BA's case and that BA's submissions on the Summary Judgment Application did not clearly identify its case against the Applicants.
19 In view of the concession by counsel for BA, the balance of the hearing on 18 December 2014 focused on whether BA had identified sufficient evidence to demonstrate that a triable issue existed in relation to its case against the Applicants so as to justify the dismissal of the Summary Judgment Application and the grant of leave to re-plead the counterclaim.
20 At the conclusion of the hearing on 18 December 2014, I made orders giving BA the opportunity to provide a written summary of those parts of the evidence it had filed which it contended could support an inference of a lack of good faith by the Applicants, (so as to demonstrate the existence of a triable issue in relation to the existence of an exception to the rule in Said v Butt) and orders permitting the Applicants the opportunity to file a response to that summary. I also made orders vacating a mediation conference which was then listed for a date about two months after the hearing.
21 On 13 January 2015, BA filed its summary of evidence. The Applicants filed their response on 21 January 2015. BA then filed an amendment to its summary of evidence on 23 January 2015.
22 At BA's request, the matter was re-listed before me on 25 February 2015, at which point I made orders for the parties to file further written submissions in respect of the Summary Judgment Application.
23 I subsequently published my reasons for concluding that summary judgment should be granted to the Applicants on the counterclaim in so far as it pertained to them.
Principles in relation to indemnity costs orders
24 The principles in relation to orders for costs on an indemnity basis are well-established. They were set out by the Court of Appeal in Swansdale Pty Ltd v Whitcrest Pty Ltd.5 After pointing out that an order for indemnity costs will only be made in exceptional circumstances,6 the Court summarised the relevant principles as follows (case citations omitted):7
1. [The Court], in its inherent jurisdiction, may make an indemnity costs order.
2. An indemnity costs order departs from the usual costs disposition order, whereby costs are awarded on a party/party basis.
3. The court's discretion as to the making of an indemnity costs order is a discretion that must be exercised judicially. In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd Woodward J said:
Courts in both the United Kingdom and Australia have long accepted that solicitor and client costs can properly be awarded in appropriate cases, where "there is some special or unusual feature in the case to justify the court exercising its discretion in that way". (emphasis added)
4. To obtain an indemnity costs order, it is not the case that the successful party needs to show a collateral purpose, or establish some species of fraud against the unsuccessful party. In J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) French J by reference to the observations of Woodward J in Fountain Selected Meats, said:
It is sufficient, in my opinion, to enliven the discretion to award such costs that, for whatever reason, a party persists in what should on proper consideration be seen to be a hopeless case.
5. Furthermore, in Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd French J observed:
The categories in which the discretion may be exercised are not closed.
6. Competing principles need to be balanced in assessing the making of a potential award of indemnity costs. In Quancorp Pty Ltd v MacDonald, Wheeler J observed:
On the one hand, a party should not be discouraged, by the prospect of an unusual costs order, from persisting in an action where its success is not certain. Uncertainty is inherent in many areas of law, and the law changes with changing circumstances. It is inappropriate that a case be too readily characterised as "hopeless" so as to justify an award of indemnity costs to the successful party. However, where a party has by its conduct unnecessarily increased the cost of litigation, it is appropriate that the party so acting should bear that increased cost. Persisting in a case which can only be characterised as "hopeless" is an example of the type of conduct which may lead the court to a view that the party whose conduct gave rise to the costs should bear them in full.
7. An indemnity costs order may be appropriate in situations which are shown to involve some element of improper, or at least unreasonable, conduct by a party or the party's legal advisers.
8. A properly crafted special costs order may obviate the need for an indemnity costs order, where components of cost scale items are allowed above the applicable scale ceiling.
9. An indemnity costs order may not be appropriate if the claimed costs would be likely to be recovered under the standard order for party and party costs, or under a special order raising or removing a scale ceiling allowance. In Unioil (No 2), Ipp J observed:
However, counsel for the plaintiffs was unable to identify any costs so incurred that would not be covered by an order for party and party costs. An order for indemnity costs on this ground is therefore not warranted.
10. Nonetheless, an indemnity costs order will constitute an appropriate sanction marking the disapproval of improper or unreasonable conduct. In Flotilla, Pullin J said:
A solicitor should not, in my view, resort to an application for an indemnity costs order merely to secure the recovery which could be achieved by a properly formulated special costs order, unless the unsuccessful party's conduct is genuinely to be impugned by the successful party.
26 An order for costs on an indemnity basis may be made on the basis that an action was 'hopeless' in the sense that the action was 'commenced or continued in circumstances where the plaintiff, properly advised, should have known that the action had no prospect of success'.8 An action which appears to have been commenced or continued in circumstances where the applicant, properly advised, should have known that he or she had no chance of success, may be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of known facts or clearly established law.9 In assessing whether a party engaged in improper or unreasonable conduct, attention needs to be focused on what the party knew, or ought reasonably to have known, in the circumstances.10
27 Finally, it must also be borne in mind that simply because a case is weak or marginal, or unlikely to succeed, does not make it a 'hopeless' case which merits the sanction of an indemnity costs order.11
The parties' submissions
The Applicants' submissions
28 The Applicants submitted that the Proposed Costs Orders should be made as a sign of the Court's disapproval of BA's conduct in bringing and maintaining the counterclaim against the Applicants. The Costs Application effectively rested on three planks.
29 First, the Applicants submitted that BA acted unreasonably in prosecuting the counterclaim generally, and that that conduct resulted in a considerable waste of time for the Court and for the Applicants and increased the Applicants' costs.12 This plank of the argument focused on the inadequacy of the way in which the counterclaim was pleaded.
30 The Applicants' submissions attached a copy of a letter written by their solicitors to BA's solicitors, after the defence and counterclaim was filed, in which they explained why, in their view, the counterclaim (as it stood at that point) was deficient and referred to the rule in Said v Buttand other relevant authorities.
31 The Applicants noted that the counterclaim was amended three times: on 25 September 2014, before the Summary Judgment Application was brought, on 25 November 2014, after the Summary Application was filed, and again on 15 December 2014, shortly before the hearing of the Summary Judgment Application and after the Applicants had filed their submissions.
32 The Applicants also relied on the fact that very early in his submissions at the hearing of the Summary Judgment Application, counsel for BA conceded that BA's pleadings were deficient. At the very least, that was because even after three amendments, the counterclaim still did not plead all of the material facts on which BA wished to rely in support of its claim that the Applicants had induced KCGL wrongfully to repudiate the Management Agreement and thereby interfered with KCGL's performance of the Management Agreement, so that they were liable for the torts of procuring a breach of contract or interfering with KCGL's contractual relations. In order to establish that the Applicants were personally liable for those torts, BA had to establish that there was an exception to the rule in Said v Butt13and that the Applicants' conduct fell within that exception. At the hearing on 18 December 2014, it became clear that BA's intended case against the Applicants on the counterclaim was that the Applicants' conduct was not in good faith, or for a proper purpose, or in the best interests of KCGL, and stood outside the scope of their authority as officers of KCGL, so that it could be characterised as conduct in their personal capacity. It also became clear, however, that the facts on which BA wished to rely to establish that case were simply not pleaded in the counterclaim. The hearing of the Summary Judgment Application was thus adjourned to enable BA to put further submissions before the Court which identified the evidence upon which BA wished to rely. In due course it filed a lengthy summary of that evidence.
33 The Applicants submitted that BA nevertheless failed to identify a sufficient factual basis for the exception to the rule in Said v Butt on which it relied and observed that it is unusual for a case to be dismissed summarily by reason of its factual inadequacy. They point to those circumstances as an unusual feature of this case which warrants an order for costs on an indemnity basis.
34 Secondly, the Applicants submitted that BA's case, as pleaded, was never arguable and that, properly advised, BA should have been aware that it had no reasonable chance of success. The Applicants submitted that BA should always have known of the deficiencies in its case, and that the result of the Summary Judgment Application suggests that either those advising BA did not properly analyse the claim or BA proceeded knowing the likely result.
35 Thirdly, the Applicants submitted that because the counterclaim as against the Applicants exposed them to the prospect of personal liability where there was no apparent benefit to BA in taking that step, it was open to the Court to infer, in all the circumstances, that BA's purpose in joining the Applicants was 'to apply pressure to the directors of the plaintiff, in their personal capacity'.14
BA's submissions
36 BA submitted that the Applicants had not established that indemnity costs were warranted in this case. It submitted that the fact that it did not ultimately succeed in the counterclaim was not a basis for the exercise of the discretion to make an indemnity costs order. BA submitted that this case lacked the special or unusual features that would warrant the making of such an order.
37 BA also submitted that it did not prolong the proceedings by making unmeritorious contentions and could not be said to have acted unreasonably in commencing or continuing the counterclaim. In this respect, BA submitted that by the time of the hearing on 18 December 2014, the counterclaim had been amended to allege that the Applicants were not acting in good faith, and that their conduct fell within an exception to the rule in Said v Butt. BA noted that I observed in my reasons for granting the Summary Judgment Application that I would not have granted summary judgment on the basis that it was not open to BA to argue that there was an exception to the rule in Said v Butt, and that I would have left that question to trial.
38 Finally, BA submitted that the Applicants carried a heavy burden of proof in relation to the allegation that BA joined the Applicants to the counterclaim to apply pressure to the directors of KCGL, and that the Applicants had not discharged that burden of proof as there was no evidence to support the allegation.
Why an order for indemnity costs should not be made with respect to the Applicants' costs on the counterclaim generally
39 I am not persuaded that an order for indemnity costs should be made with respect to the Applicants' costs on the counterclaim generally. I have reached that view for three reasons.
40 First, as I explained in my reasons for granting the Summary Judgment Application, I was not persuaded that the claim BA advanced against the Applicants was beyond argument, having regard to the state of the authorities. This was not a case where BA advanced a claim which was manifestly not arguable.
41 Secondly, one of the key bases on which I concluded that summary judgment should be granted was that BA had not discharged its evidentiary onus of demonstrating that a triable issue existed on its case against the Applicants. That was because I concluded that the evidence relied upon by BA could not, if accepted at trial, support an inference that the Applicants were not acting in good faith and in the interests of KCGL when they resolved to issue the Notice of Default to BA, or that they were acting in their own self-interest, rather than in the interests of KCGL, when they resolved to issue the Notice of Default, or that they never intended to be bound by the Management Agreement, and so issued the Notice of Default other than in the best interests of KCGL.
42 This was one of those rare cases where detailed argument demonstrated that summary judgment should be granted.15 But that does not, of itself, constitute a special or unusual feature about the case which is sufficient to warrant the making of an indemnity costs order. The position is quite to the contrary. I concluded that summary judgment should be granted only after careful consideration of the evidence on which BA relied to demonstrate that there existed a triable issue, and with the assistance of detailed submissions by counsel for the parties. That serves to confirm, in my view, that it cannot be said that the case was so obviously hopeless that it should not have been advanced or maintained.
43 The most that can be said is that it should have been obvious to BA that its case against the Applicants was weak, and that its prospects of success were therefore poor, having regard to the state of the law and to the evidence (limited as it was) on which BA relied. But as I have already pointed out, the fact that a case is weak or unlikely to succeed is not enough to merit the sanction of an indemnity costs order. For the same reason, BA's conduct in prosecuting the counterclaim against the Applicants at all cannot be regarded as so unreasonable as to warrant an indemnity costs order being made as a sign of the Court's disapproval of that course.
44 Thirdly, I am unable to accept the Applicants' submission that the Court can infer that BA's purpose in joining the Applicants was to apply pressure to the directors of KCGL. I understand that submission to mean effectively that BA brought the counterclaim against the Applicants with a view to placing pressure on the Applicants, in their capacity as the directors of KCGL, to settle the counterclaim. The Applicants relied on three aspects of the circumstances as the basis for that inference.16 The Applicants contended that there was some evidence before the Court that KCGL had the capacity to pay BA's claim, if BA was wholly successful, so that BA could have recovered its claimed loss and damage as against KCGL, without taking action against the Applicants. Further, they pointed to the fact that the counterclaim as against the Applicants could not succeed unless BA's claim against KCGL (and specifically the allegation that KCGL repudiated the Management Agreement, thereby causing loss and damage to BA) was successful. Finally, they pointed to the fact that the claim against the Applicants involved the proof of further issues beyond those involved in BA's claim against KCGL.
45 I accept the submission by counsel for BA that the Applicants bear a heavy burden of proof in making a submission of this kind. I am not persuaded that the Applicants have established an adequate evidentiary basis to draw such a serious inference. There is no reason why a litigant may not proceed against more than one party to recover for the same loss and damage simply because one of those parties may have the capacity to pay the entirety of an award of damages in respect of the loss and damage.
46 There is one further matter which should be mentioned. In so far as the Costs Application sought indemnity costs in respect of the Applicants' costs thrown away by reason of the fact that the counterclaim was amended three times prior to the hearing of the Summary Judgment Application, that part of the application held some initial attraction. However, in the end I have concluded that such an order is not warranted. It is far from apparent that the Applicants actually incurred any costs which were thrown away by the amendments. That is because the amendments to the counterclaim on each occasion sought to develop the same claim as against the Applicants and the Applicants' response to the counterclaim appears to have been the same throughout (having regard to the submissions it filed in respect of the Summary Judgment Application). The costs orders I have already made should permit the Applicants to recover their costs, at the scale rate, of preparing their defence to counterclaim and their costs of preparing for the Summary Judgment Application, in which they advanced the same fundamental point (namely that the rule in Said v Butt applied and there was no exception to the rule).
47 However, in so far as the Applicants incurred costs at the hearing of the Summary Judgment Application on 18 December 2014, I am persuaded that they should be wholly indemnified in respect of those costs. That is because it was apparent (as I observed at the time) that the amended counterclaim, as it then stood, was manifestly inadequate to plead the case that BA advanced, which rendered the hearing, in large part (although perhaps not entirely), a waste of the Court's time and of the Applicants' time and money. In my view, counsel for BA should have had formed the view prior to the hearing, having reflected on the Applicants' submissions and on the state of its pleading, that the amended counterclaim was still deficient and required further amendment (at least to plead the material facts upon which BA sought to rely). That being so, the appropriate course was to confer with the Applicants' solicitors and to seek an adjournment of the hearing to permit that amendment to be made. That would have ensured that the hearing of the Summary Judgment Application could, in due course, have proceeded on the basis of a pleading which represented the case which BA actually advanced. In my view, it was unreasonable for BA not to have taken that course and it is appropriate to make an order for indemnity costs in respect of the hearing on 18 December 2014 to signal the Court's disapproval of that conduct.
Conclusion
48 The order which should be made is that:
1. The first defendant / plaintiff by counterclaim pay all of the costs incurred by the second to fifth defendants to counterclaim of and incidental to the hearing on 18 December 2014, except insofar as they are of an unreasonable amount or have been unreasonably incurred, so that subject to the above exceptions the second to fifth defendants to counterclaim are completely indemnified by the plaintiff by counterclaim for their costs in respect of that hearing.
1Knights Capital Group Ltd v Bajada and Associates Pty Ltd[2016] WASC 69.
2 Applicants' submissions [2] - [29]; BA's submissions [2].
3Said v Butt [1920] 3 KB 497.
4 The amended pleading was uplifted and refiled on 2 October 2014 to remedy deficiencies in the marking up of the amendments.
5Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S).
6Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [7] referring to Re Malley SM; Ex parte Gardner [2001] WASCA 83.
7Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10] (citations omitted).
8Civil Properties Pty Ltd v Miluc Pty Ltd [2011] WASCA 195 [84] (Newnes JA, Murphy JA & Hall J agreeing).
9Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397, 401.
10Trafalgar West Investments Pty Ltd (as trustee for The Trafalgar West Investments Trust) v Superior Lawns Australia Pty Ltd [No 5] [2014] WASC 70 [12] (K Martin J).
11Civil Properties Pty Ltd v Miluc Pty Ltd [2011] WASCA 195 [86] (Newnes JA, Murphy JA & Hall J agreeing).
12 Applicants' submissions [37], [38].
13Said v Butt[1920] 3 KB 497, 504 - 506 (McCardie J).
14 Applicants' submissions [40].
15 Cf General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125, 130 (Barwick CJ).
16 Applicants' submissions [40].
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