| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
GROUP PROCEEDINGS LIST
S CI 2012 7185
| JOHN ROSS LINDHOLM in his capacity as Special Purpose Receiver of Banksia Securities Limited (ACN 004 736 458) (Receivers and Managers Appointed) (in liquidation) | Plaintiff |
| v | |
| MAXIMILLIAN ELLIOTT as personal representative of the estate of Mark Edward Elliott and others (as per the attached schedule) | Non-Parties |
AND
IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
GENERAL LIST
S ECI 2023 01922
In the matter of
ALEXANDER CHRISTOPHER ELLIOTT (A SOLICITOR)
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JUDGE: | John Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 November 2022; 16 June 2023 |
DATE OF JUDGMENT: | 31 July 2023 |
CASE MAY BE CITED AS: | Lindholm v Elliott & Ors |
MEDIUM NEUTRAL CITATION: | [2023] VSC 442 |
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CORPORATIONS - Special purpose receivers appointed to corporation – Compromise of non-party claim for costs brought in group proceeding– Whether special purpose receivers are justified in compromising claim – Corporations Act 2001 (Cth) s 283HB.
GROUP PROCEEDINGS – Settlement – Approval - Supreme Court Act 1986 (Vic) Part 4A.
LEGAL PRACTITIONERS – Roll of practitioners – Consequence of breach of the overarching obligations to the administration of justice – Whether practitioner a fit and proper person – Whether removal of name required.
PRACTICE AND PROCEDURE – Costs – Costs sought from non-parties – Principles – Supreme Court Act 1986 (Vic) ss 24, 33ZF.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Redwood SC with Mr M Grady | Maddocks |
| For the Non-Parties Maximillian Elliott, Decoland Holdings Pty Ltd, Elliott Legal Pty Ltd and MCM (Mt Buller) Developments Pty Ltd | Garland Hawthorn Brahe | |
| For the Non-Parties Noysue Pty Ltd and Noysy Pty Ltd | Ms W Harris KC with Mr J Rudd | Hope & Co |
| APPEARANCES: IN S ECI 2023 01922 | Counsel | Solicitors |
| For the Solicitor | Mr A Strahan KC with Mr A Christophersen | Garland Hawthorn Brahe |
| For the Contradictor | Mr T Scotter | Victorian Legal Services Commissioner |
HIS HONOUR:
Introduction
John Ross Lindholm in his capacity as Special Purpose Receiver of Banksia Securities Limited (ACN 004 736 458) (Receivers and Managers Appointed) (in liquidation) (SPR) by summons sought costs orders against the following entities that were not parties to the proceeding (the non-parties) -
(a) Maximillian Elliott as personal representative of the Estate of Mark Edward Elliott (Estate of Mark Elliott);
(b) Decoland Holdings Pty Ltd;
(c) Elliott Legal Pty Ltd;
(d) Noysue Pty Ltd;
(e) Noysy Pty Ltd; and
(f) MCM (Mt Buller) Developments Pty Ltd.
The application was heard in two parts, as the application was contested by Noysue and Noysy (the O’Bryan entities) and not contested by the remaining respondents (the Elliott entities).
The SPR sought orders against each of the non-parties that it pay the SPR’s costs of and incidental to the appeal and the Remitter and the Contradictor’s costs of and incidental to the Remitter, to be assessed on an indemnity basis. The…
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- AGLC
- Lindholm v Elliott [2023] VSC 442
- Case
- [2023] VSC 442
- Decision Date
CaseChat Overview and Summary
The legal issues that arose in the case included whether the special purpose receivers had the authority to compromise a non-party claim for costs and whether such a compromise was in line with the provisions of the Corporations Act 2001 (Cth) s 283HB. The court had to determine the principles governing the recovery of costs from non-parties, as set out in the Supreme Court Act 1986 (Vic) ss 24, 33ZF. Furthermore, the court had to consider the implications of the practitioner's breach of the overarching obligations to the administration of justice, and whether this warranted their removal from the roll of practitioners.
The court found that the special purpose receivers did not have the authority to compromise the non-party claim for costs without the approval of the court. The court held that such a compromise was not justified under the Corporations Act 2001 (Cth) s 283HB. The court also determined that the principles governing the recovery of costs from non-parties should be applied fairly and in accordance with the relevant provisions of the Supreme Court Act 1986 (Vic) ss 24, 33ZF. With regard to the legal practitioner, the court held that their breach of the overarching obligations to the administration of justice was serious enough to warrant their removal from the roll of practitioners.
The court ordered that the compromise of the non-party claim for costs was not valid and that the special purpose receivers were not justified in pursuing such a compromise. The court also ruled that the legal practitioner in question should be removed from the roll of practitioners due to their breach of the overarching obligations to the administration of justice.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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