Raventhorpe Pty LTD & Ors V Westpac Banking Corporation - (2017) VSC 362

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Raventhorpe Pty Ltd & Ors v Westpac Banking Corporation - [2017] VSC 362
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IN THE SUPREME COURT OF VICTORIA Not

Restricted
AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST
S CI 2016 03211
BETWEEN:
RAVENTHORPE PTY LTD (ACN 078 287 Plaintiff

500)
WESTPAC BANKING CORPORATION Defendant

(ABN 33 007 457 141)
S CI 2016 03212
AND BETWEEN:
TOMLAK PTY LTD (ACN 091 502 644) First Plaintiff
GREGORY BUTERA Second

Plaintiff
and
WESTPAC BANKING CORPORATION Defendant
(ABN 33 007 457 141)
---
JUDGE: JUDICIAL REGISTRAR MATTHEWS
WHERE HELD: Melbourne
9 June 2017
DATE OF HEARING:
DATE OF JUDGMENT: 23 June 2017
CASE MAY BE CITED AS: Raventhorpe Pty Ltd & Ors v Westpac Banking Corporation
MEDIUM NEUTRAL CITATION: [2017] VSC 362
---
PRACTICE AND PROCEDURE – Security for costs – Where reason to believe that plaintiffs have
insufficient assets – Discretionary considerations –Voluntary assumption of risk – Presence of an
individual as co-plaintiff – Security for costs ordered – Appropriate amount of security to be ordered –
Where payment of security delayed until after mediation – Supreme Court (General Civil Procedure) Rules 2
015 , r 62.02(1) – Corporations Act 2001 (Cth) s 1335(1) .
---
APPEARANCES: Counsel Solicitors
For the Plaintiffs Mr M Clarke Hui Meng Ong

Lawyer
For the Defendant Mr M P Minter Ellison
Costello
JUDICIAL REGISTRAR MATTHEWS:
Introduction
1. The defendant, Westpac Banking Corporation (‘Westpac’), brings two applications for security
for costs by way of summonses dated 13 April 2017, in respect of two related proceedings. The
applications have been referred to me for hearing and determination pursuant to r 84.04 of the Su
preme Court (General Civil Procedure) Rules 2015 (‘the Rules ’). [1]
[1] Orders were made pursuant to r 84.04 on the Court’s own motion on 30 May 2017.
2. Proceeding No. S CI 2017 03211 (‘the First Proceeding’) is brought by Raventhorpe Pty Ltd (‘Raven
thorpe’) against Westpac. Proceeding No. S CI 2017 03212 (‘the Second Proceeding’) is brought by
Tomlak Pty Ltd (‘Tomlak’) and Gregory Butera (‘Mr Butera’) against Westpac. Mr Butera is a
director of Tomlak and is also the sole director of Raventhorpe.
3. Westpac’s applications are for Raventhorpe and Tomlak to each provide security for Westpac’s
costs of defending both proceedings. Westpac also seeks orders that the First Proceeding be
stayed until the security is given, and that Tomlak’s claims in the Second Proceeding be stayed
until it provides security.
4. Westpac relies on two affidavits of Brendon Robert Watkins sworn 13 April 2017. Mr Watkins has
sworn a separate affidavit for each proceeding, however the content is very similar. For
convenience, the references in these reasons are to Mr Watkins’ affidavit in the First Proceeding,
unless otherwise indicated. Mr Watkins is a partner at Minter Ellison, the solicitors retained by
Westpac, and has the care and conduct of both proceedings on behalf of Westpac.
5. Westpac seeks security from Raventhorpe in the amount of $120,941.63 in the First Proceeding,
and security from Tomlak in the amount of $60,470.82 in the Second Proceeding. In both
instances, the security sought is to cover the period from the date of the applications (13 April 2017)
to the commencement of the trial.
6. Raventhorpe and Tomlak oppose the applications. Raventhorpe and Tomlak rely on the affidavit
of Mr Butera sworn 7 June 2017 and the affidavit of Peter Trimbos, a costs lawyer, sworn 2 June
2017. Exhibited to Mr Trimbos’ affidavit is a detailed costs report (‘Trimbos Report’). These
affidavits are relied upon for both proceedings.
7.
7. For the reasons set out below, Raventhorpe will be ordered to give security for Westpac’s costs in
the First Proceeding and Tomlak will be ordered to give security for Westpac’s costs of defending
Tomlak’s claims in the Second Proceeding.
Background
8. Both proceedings were commenced on 12 August 2016 and concern the same subject
matter. Broadly speaking, Raventhorpe and Tomlak were companies in a corporate group
controlled by Mr Butera and his brother Joseph Butera. They were in the business of property
development: Raventhorpe, Tomlak and another entity was used to acquire land and carry out
development steps, and another entity was the builder. From around 2003, they were all
customers of Westpac.
9. The conduct complained of appears to centre on the alleged failure by Westpac to provide
construction funding (or the full extent of construction funding) for one of Tomlak’s
developments at 41 Culcairn Drive, Frankston (‘Culcairn Development’). There are allegations
that Westpac had impliedly represented that an application for construction funding would have
a substantial prospect of success and that it had not informed the plaintiffs that there was little
chance of construction funding being approved. This is said to constitute misleading and
deceptive conduct, and/or unconscionable conduct. It is also alleged that Westpac owed duties to
the plaintiffs which it breached, and that there were breaches of the Code of Banking Practice (‘th
e Banking Code’). As a result of Westpac’s alleged conduct, Raventhorpe is purported to have
increased its liabilities to Westpac so as to provide loans to Tomlak for the Culcairn
Development, Mr Butera is alleged to have had to provide funding to Tomlak, and Tomlak is
alleged to have suffered losses associated with not being able to complete the development. Such
allegations are common to both proceedings. Westpac appointed receivers and managers to the
four companies (including Raventhorpe and Tomlak) and allegations are made against Westpac
in the Second Proceeding of impairment of the land and of breaches of s 420A of the Corporations
Act 2001 (Cth) (‘the Act’) when the land was sold. The proceedings are therefore closely related
and the only significant differences between them relate to causation and the alleged loss and
damage.
10. Westpac denies the plaintiffs’ claims.
Relevant legal principles
11. The principles concerning an application for security for costs are well established and have been
considered in many decisions of this Court, including US Realty Investments LLC No. 1 v Need [2] an
d Colmax Glass Pty Ltd v Polytrade Pty Ltd. [3] For convenience I adopt the summaries set out in US
Realty and Colmax . Rule 62.02 of the Rules and s 1335 of the Act apply.
[2] [2013] VSC 590 (31 October 2013) (‘ US Realty ’) [18]–[38] .

[3] [2013] VSC 311 (14 June 2013) (‘ Colmax ’) [14]–[22] .
12.
12. In summary, the Court first looks to whether the jurisdiction to grant security for costs has been
enlivened. This requires one of the grounds set out in r 62.02 or in s 1335 of the Act to apply. Here,
the relevant ground is said to be that Raventhorpe and Tomlak are corporations and there is
reason to believe that they have insufficient assets in Victoria to pay Westpac’s costs if ordered to
do so.
13. Once the jurisdiction is enlivened, the Court the has discretion as to whether security ought be
awarded. That discretion is unfettered, although it must be exercised judicially.
14. As noted in US Realty , exercising the discretion involves the Court carrying out a balancing
exercise between the injustice to Raventhorpe and Tomlak if the grant of security prevents them
from pursuing proper claims, and the injustice to Westpac if no security is ordered and it is
ultimately successful but unable to recover its costs. [4] Relevant considerations may include the
plaintiffs’ prospect of success, delay, whether the claim would be stultified, whether the plaintiffs’
impecuniosity is caused by or contributed to by the defendant, the voluntary assumption of risk
by the defendant, and (in this case) the presence of Mr Butera as a co-plaintiff in the Second
Proceeding. [5]
[4] US Realty , [22] , citing Tradestock Pty Ltd v TNT (Management) Pty Ltd (1977) 14 ALR 52, 56
.
[5] See Colmax , [20] .
Consideration
Is the jurisdiction enlivened?
15. Westpac bears the onus of establishing that the jurisdiction is enlivened. [6] However, it is
important to analyse what Westpac is required to establish. Referring to the provisions of s 1335(1)
of the Act, there must be ‘credible testimony’ for ‘reason to believe’ that Raventhorpe and Tomlak
will be unable to pay Westpac’s costs if the latter is successful. Under r 62.02(1)(b), the Court may
order security if ‘there is reason to believe that the plaintiff has insufficient assets in Victoria to
pay’ the defendant’s costs. Although these provisions are not identical, the relevant principles
have been developed and applied on the assumption that they apply equally to both. [7]
[6] Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377 (‘ Livingspring ’), 383.
[7] Ibid 380-1 .
16. Raventhorpe and Tomlak concede that, on the materials before me, the Court’s jurisdiction to
award security has been enlivened. In my view, the material deposed to by Mr Watkins in each of
his affidavits passes the relatively low threshold which Westpac must meet in this regard. [8] Mr
Watkins deposes that: Raventhorpe and Tomlak each have a paid up share capital of $2;
Raventhorpe and Tomlak do not own any real property in Victoria; and the receivers and
managers appointed to Raventhorpe and to Tomlak have reported that they have realised all
known real property and assets, that the assets realised were insufficient to discharge the secured
debts, and that upon filing their final accounts with ASIC on 27 May 2015 the total balance of
money held in respect of each of Raventhorpe and Tomlak was $0.[9]
[8] Ibid 382 .

[9] See Affidavit of Mr Brendon Robert Watkins, 13 April 2017, sworn in the First Proceeding
[10]-[15]; Affidavit of Mr Brendon Robert Watkins, 13 April 2017, sworn in the Second
Proceeding [12]–[16].
The jurisdiction having been enlivened, should security be ordered?
Prospects of success
17. Relevant to the exercise of the Court’s discretion is whether the plaintiff’s claim is made bona fide
and has reasonable prospects of success.
18. It is unnecessary for the prospects of success of those parties against whom security is sought to
be considered in any detail. It is sufficient that, as is the case here, the claims of Raventhorpe and
Tomlak are prima facie regular on their face and disclose a cause of action. [10] As such, the Court
will proceed on the basis that the claims made by Raventhorpe and Tomlak are bona fide with
reasonable prospects of success.
[10] KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189, 197 .
Delay
19. Delay in applying for security may be a factor against granting security: it is incumbent on a
defendant who wishes to obtain security once it is (or ought reasonably be) aware that the
plaintiff company would be unable to meet an order for costs to apply promptly for that relief. [11]
The plaintiff company is entitled to know its position in relation to security at the outset, before it
embarks to any real extent on its litigation and before it makes a substantial financial
commitment to litigating its claim. [12] In some cases, rather than telling against an order for
security at all, delay may result in security being ordered only for future costs. [13]
[11] Trility Pty Ltd v Ancon Drilling Pty Ltd [2013] VSC 577 (25 October 2013) [56] (Croft J),
referring to Christou v Stanton Partners Australasia Pty Ltd [2011] WASC 176 (10 August 2011).
[12] See Buckley v Bennell Design & Construction Pty Ltd (1974) 1 ACLR 301, 309 ; Smail v Burton;
Re Insurance Assocs Pty Ltd (in liq) [1975] VR 776.
[13] Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 1 NSWLR 114.
20. Westpac does not seek security for its past costs, that is, those costs incurred from the
commencement of the proceedings until the date of its summonses (13 April 2017). Given the
length of time and the amount of work which both parties have done to that point, Westpac’s
approach to security for its past costs is appropriate.
21. However, that does not dispose of this issue.
22. From Mr Watkins’ affidavit, it appears that Westpac first raised the issue of security for its costs
on 14 September 2016. The plaintiffs’ solicitor responded on 21 September 2016, rejecting Westpac’
s security for costs claims and setting out its arguments in opposition. Westpac did not respond to
this until 3 February 2017, refuting the arguments made by the plaintiffs’ solicitors and reiterating
the request. This was again rejected on 14 February 2017 and subsequent correspondence
between the solicitors on 15 and 21 March 2017 did not advance the issue any further.
23. The plaintiffs have therefore been on notice since 14 September 2016 that Westpac was concerned
about security for costs. However, it is necessary to delve into the detail of some of the
correspondence. In its letters of 14 September 2016, Minter Ellison set out its concerns about the
financial positions of Raventhorpe and Tomlak and sought agreement to security for costs
($75,000 in each proceeding, up to and including mediation) or information which would
demonstrate those companies could meet costs orders against them. Responses were sought by 21
September 2016 and it was stated that if satisfactory responses were not received by then, Westpac
reserved its right to apply for orders for security for costs. The plaintiffs’ solicitors (‘HM Ong’)
responded by that date, in the terms noted above. On the affidavit material, there was nothing
further until Minter Ellison’s letters of 3 February 2017. That gap has not been adequately
explained, although it was submitted that until pleadings had closed it would have been
premature for Westpac to file its applications and, in the meantime, the Christmas/New Year
period intervened. That may well be, however, it does not fully explain or justify the length of the
delay. It was not until the letters of 3 February 2017 that the plaintiffs were on notice that their
responses of 21 September 2016 had not been accepted by Westpac. Westpac could have informed
Raventhorpe and Tomlak earlier that it had rejected the 21 September 2016 response but it did
not. In that period for both proceedings, defences, replies, and further and better particulars of
both the statements of claim and defences had been filed. The parties have since undertaken and
completed discovery and there have been subpoenas issued. The parties have been ordered to
mediate: originally the mediation was to have concluded by 10 March 2017 but that date was
subsequently extended to 13 June 2017. During the course of the hearing, I was informed by
counsel that the mediation had not yet taken place and that a date had yet to be arranged.
24. Raventhorpe and Tomlak complain about the delay and submit, relying on the authorities
referred to in paragraph 19 above, that this means security should not be ordered.
25. Mr Butera deposes that the plaintiffs’ combined legal costs for both proceedings from
commencement to 13 April 2017 are $95,394. However, Mr Butera does not say that the plaintiffs
would not have expended this amount if they had known an application for security for costs was
going to be made. There is no evidence regarding how Westpac’s delay may have prejudiced the
plaintiffs, although it is noted that this is not determinative.
26.
26. Raventhorpe and Tomlak also rely on Obena Falls Pty Ltd v Normans Wines Ltd. [14] Counsel’s
written submissions are that in that case the defendant had waited until the proceeding had
reached the stage of going to mediation before applying for security, and that the delay was
unexplained and to some extent inexcusable. Counsel submits that the situation is the same
here. However, I do not consider it to be on all fours: in Obena Falls , it appears that all
interlocutory steps had been concluded and it was ready for trial. That is not the case in these
proceedings.
[14] [2001] VSC 253 (12 June 2001) (‘ Obena Falls’).
27. On balance, I am not persuaded that the delay in this case has so significant an impact as to
warrant, on its own, there being no security for costs at all. That view is reinforced by the
plaintiffs not having made any submissions or led any evidence about any prejudice by reason of
the delay, and they have also expressly not relied on stultification as a ground for refusing
security. I will return to the issue of stultification. Although not determinative alone, delay is a
factor which I will consider when balancing the discretionary factors and which I would apply
significant weight to when considering the period for which security ought be given, as discussed
later in these reasons.
Plaintiff’s impecuniosity caused by or contributed to by the defendant
28. In Colmax , Derham AsJ conveniently summarised the authorities and the approach to be taken to
the discretionary factor of whether the impecuniosity of Raventhorpe and Tomlak has been
caused by or contributed to by Westpac, and I adopt that approach. Derham AsJ summarised this
as follows:
(a) the plaintiff carries the burden of persuasion on the question whether
the conduct of the defendant was the cause of the plaintiff’s financial
difficulties;
(b) there must be a solid foundation for that conclusion;
(c) the plaintiff carries the onus of satisfying the court on the basis of
admissible evidence. [15]
[15] Colmax , [20(b)] (citations omitted).
29. Westpac’s counsel relied on this passage from Colmax .
30.
30. Counsel for the plaintiffs submitted that stating the test as the plaintiff having to show that the
defendant’s conduct was the cause of the plaintiff’s financial difficulties puts the test too high. He
referred to Sir Lindsay Parkinson & Co Ltd v Triplan Ltd where it was said that the Court ‘would
also consider whether the company’s want of means has been brought about by any conduct by
the defendants’. [16] Counsel also referred to Sydmar Pty Ltd v Statewise Developments Pty Ltd [17] w
here the factor was stated in terms of ‘whether the plaintiff’s lack of funds has been caused or
contributed to by the conduct of the defendant’. With respect to counsel’s submissions, it must be
noted that Associate Justice Derham’s summary as set out above was specifically preceded by a
reference to Sir Lindsay Parkinson and his Honour’s summary included the phrase ‘whether the
plaintiff’s lack of funds has been caused or contributed to by the conduct of the defendant’. It is
clear, therefore, that the plaintiff’s conduct does not have to be ‘the’ cause: it can be ‘a’
cause. Counsel for Westpac agreed with this.
[16] [1973] QB 609 (‘ Sir Lindsay Parkinson ’), 626.

[17] (1987) 73 ALR 289, 300 .
31. Where a plaintiff seeks to resist an order for security on the grounds that its impecuniosity was
caused by or contributed to by the defendant, then it bears the onus of establishing this. [18]
[18] Livingspring , 383–4.
32. Much of Mr Butera’s affidavit appears to be directed to this factor. He deposes at length to
communications with Westpac and to internal Westpac communications which go to various
aspects of the Butera group’s business and its dealings with Westpac, as well as to applications for
construction finance for the Culcairn Development. These communications display some
recognition by Westpac of the need for funding. The primary allegations in these two
proceedings concern Westpac’s conduct in allegedly impliedly representing that an application
for construction funding would have a substantial prospect of success and then refusing to
provide construction funding for the Culcairn Development, which the plaintiffs contend meant
that they could not complete that development. Very shortly after not providing construction
funding, or perhaps contemporaneously with that decision (the material before me is not entirely
clear in that regard), it appears that Westpac demanded repayment in full of all moneys owed and
when that was not paid within the one working day demanded by Westpac, on the next day it
appointed receivers and managers to the four companies, including Raventhorpe and Tomlak.
33. As pleaded, the plaintiffs’ case is not very clear. In relation to the issue of causing impecuniosity,
as best as I can ascertain from the submissions, Westpac is said to have caused or contributed to
the plaintiffs’ financial position by refusing to provide construction funding for the Culcairn
Development in circumstances where it had impliedly represented that such funding would likely
be given. It is also said that Westpac let the plaintiffs believe that they would be granted the
funding, that they knew the plaintiffs’ business was run on the basis of timely development of
land and sale of units constructed, that the businesses were highly geared, and that the plaintiffs
were reliant on construction finance.
34. In addition to the cases referred to above, counsel for the plaintiffs referred me to Imaging
Applications Pty Ltd v Sun Alliance Australia Ltd ,[19] which was an illustration of security not being
ordered where one of the factors was that it was arguable that the plaintiff’s impecuniosity was
attributable to the defendant. Reference was also made to Tenth Anemot Pty Ltd v Colonial Mutual
General Insurance Co Ltd [20] which was another application of this factor, in the context of an
insurer denying indemnity. It is said that the cases before me are analogous to these cases.
[19] [1999] VSC 230 (24 June 1999), [68] .

[20] [1993] 2 VR 48, 55 .
35. Counsel for Westpac submitted that this factor was difficult to apply in anything other than the
clearest of cases, and that the same considerations for the ‘prospects of success’ factor apply
here. It was said that the Court could not be satisfied on the pleadings that Westpac had caused
the plaintiffs’ impecuniosity without deciding the very issues at the heart of the case, and that this
was particularly so where it was argued that the pleadings were unclear and amorphous. Counsel
for Westpac submitted that Mr Butera’s affidavit went primarily to Westpac’s internal
communications when the case against Westpac was about an implied representation alleged to
have been made to Tomlak. Westpac contended that the Court would have to be satisfied that the
representation had been made, that it was wrongful, and that it had caused the plaintiffs’
impecuniosity in order to regard this as a basis not to grant security.
36. In my view, the plaintiffs have not discharged their burden of establishing this factor. Mr Butera’s
affidavit in some respects does not go beyond the content of the pleading and, where it does, it
really only goes to Westpac’s internal communications. More importantly, it is not denied that
Raventhorpe and Tomlak were indebted to Westpac for a considerable sum and there is evidence
(as set out in Mr Butera’s affidavit) that by mid-2013, the companies faced a variety of financial
difficulties including large tax debts.
Voluntary assumption of risk
37. A relevant factor in the exercise of the discretion is described as voluntary assumption of risk:
where the litigation arises out of a contractual relationship entered into voluntarily by the
defendant and it is reasonable to assume that at the time of entering into the contract, the
defendant considered it financially prudent and worthwhile to do business with the plaintiff, that
is a factor weighing against granting security. [21] Counsel for the plaintiff referred me to a
number of cases which stated and applied the relevant principles. It was said that Letore Pty Ltd v
Associated International Finance Pty Ltd [22] was similar to this case in that the defendant there was
a financier. However the situation is not analogous: there, it was a hire purchase contract which
was in issue where the defendant had repossessed the subject property where only three of the
49 instalment payments were outstanding. Counsel relied on Denward Lane Pre Cast Panels Pty Ltd
v Cornerstone Constructions Australia Pty Ltd [23] as a case where the principle had been
followed. There, however, Hansen J concluded that ‘[r]egarding the matter overall, I consider
that this factor is of such limited significance as not to tell against security’. [24]
[21] See Derham AsJ’s summary of this factor in ACN 006 577 162 Pty Ltd (formerly Harrop
Engineering Australia Pty Ltd) v Beauville Pty Ltd [2014] VSC 298 (23 June 2014), [8(a)], [11]-[16] .
[22] (Unreported, Supreme Court of Victoria, McDonald J, 28 May 1993), 15-17.
[23] [2008] VSC 144 (8 May 2008), [26] .
[24] Ibid [29] .
38. Counsel also relied on Mecrus Pty Ltd v Industrial Energy Pty Ltd. [25] In that case, Murphy J noted
that the defendants were substantial companies and the plaintiff was a much smaller company
and the defendants knew the plaintiff’s financial position. Counsel drew on this to contend that
here, Westpac knew of the plaintiffs’ financial position and Raventhorpe and Tomlak were small
companies whereas Westpac was a large bank. However, in Mecrus , Murphy J went on to find
that he did not see assumption of risk as a strong factor but one that did point away from an order
for security for costs. [26] Other factors were more influential in that case in leading his Honour
to refuse security. [27]
[25] (2015) 327 ALR 523 (‘ Mecrus’ ), 538, [72]-[73] .

[26] Ibid [74] .
[27] Ibid [75]-[79] .
39. Counsel for the plaintiffs referred to a number of additional cases. While I have taken all of these
into account, I do not consider it necessary to set them all out here.
40. Westpac contends that the plaintiffs’ submission in this regard is misconceived, as the essence of
the plaintiffs’ case is not contractual, instead, it springs from a deliberate decision by Westpac not
to further contract with Tomlak.
41. Westpac also submitted that the application of this factor assumes that the costs of the litigation
and the allegations as pleaded will bear some relation to the risk or profit assumed in the contract,
and that this is a factor that is relevant where it is a contract which is being sued upon.
42. Undoubtedly Westpac did contract with Raventhorpe and Tomlak, and equally undoubtedly,
when it did so it took security for the monies it had advanced to them. It did so again when the
relevant facilities were extended. Apart from the pleadings in respect of the Banking Code,
Raventhorpe and Tomlak do not characterise their cases as breach of contract cases. The
principal allegations here concern Westpac’s implied representation which, when not made good,
meant that no further contract was entered into. Taking into account all of this, I regard
voluntary assumption of risk as a factor which has little weight to bring to the balancing exercise
involved in determining this application.
Presence of Mr Butera as a co-plaintiff in the Second Proceeding
43. Much emphasis was placed on this factor by the plaintiffs in the Second Proceeding. Westpac
does not seek security from Mr Butera or a stay of his claims in the Second Proceeding if Tomlak
is ordered to give security and it is then not paid. It was therefore common ground that if security
was to be ordered in the Second Proceeding, it was only Tomlak which would be subject to such
an order, that the quantum of the security would reflect only Westpac’s costs of defending
Tomlak’s claim and not Mr Butera’s claim, and that only Tomlak’s claim would be stayed if it did
not give the security as ordered. This factor is not relevant in the First Proceeding.
44. The plaintiffs submitted that where a natural person, such as Mr Butera, who was ordinarily
resident within the jurisdiction was also a plaintiff, then the Court will not ‘as a rule’ require the
plaintiff corporation to give security for the defendant’s costs. This is because the individual
plaintiff will be liable for the defendant’s costs if the proceeding fails, but the defendant would
not have been entitled to security if that plaintiff had sued alone, even if he was insolvent. It was
said that the joinder of an insolvent company as co-plaintiff should not put the defendant in any
better position regarding security than if the individual plaintiff had sued alone. The plaintiffs
relied on Harpur v Ariadne Australia Ltd (No 2) [28] and Interwest Ltd v Tricontinental Corp Ltd [29] in
this regard. I note that this statement is drawn from the summary of the applicable principles by
the authors of Williams, Civil Procedure Victoria (at ¶62.02.95)[30] and as set out by Derham AsJ in O
pes Prime Group Ltd v Niako Investments Pty Ltd. [31] Given the importance placed on this factor, it
is worth setting out the summary in Civil Procedure Victoria in detail. After the above sentence, the
authors go on to state:
However, security may be ordered where there are differences between the claim of
the corporation and that of the individual such that there is a possibility that if both
fail, the court will not order the individual plaintiff to pay all the costs of the
defendant.
The court must consider the degree of the overlap between the claim of the
corporation and that of the individual. If there is very limited overlap, so that
the defendant will incur substantial costs in meeting the corporation’s claim
which it will have no entitlement to recover from the natural person should the
defendant succeed against the individual, then, in the absence of other relevant
considerations, a proper exercise of discretion would generally require security
to be provided by the corporation. Where, however, there is a very substantial
degree of overlap between the two claims, then because the defendant has a
natural person as plaintiff to whom he or she can look for payment of
substantially the whole of the costs he or she is likely to incur if he or she
successfully defends both sets of claims, a proper exercise of the discretion
would generally result in no order for security being made against the
corporation.[32]
[28] (1984) 8 ACLR 835, 840–842 .
[29] (1991) 5 ACSR 621 (‘ Interwest ’), 624.
[30] Lexis Nexis, Civil Procedure Victoria, vol 1 (at Service 301) (‘Civil Procedure Victoria’) ¶62.02.95.
[31] [2014] VSC 414 (3 September 2014) (‘ Opes ’), [33(a)] .
[32] Civil Procedure Victoria, ¶62.02.95.
45. After referring to these passages, Derham AsJ in Opes went on to state relying on Interwest : [33]
Apart from these points, if there is a broad general rule it is simply that the presence
of a natural person as a plaintiff with a corporation or corporations is a factor that
may tend against the ordering of security against a corporate plaintiff. The simplest
example is where an individual plaintiff is a person of substantial means, and that
plaintiff’s claims largely coincide with those of the corporate plaintiff. In this case the
same issues would have to be tried even if the corporate plaintiff’s claims were stayed.
Where there is an absence of evidence as to the individuals’ capacity to pay costs, or

where there is evidence suggesting a likelihood that they could not pay, it is
appropriate to take those factors into account in exercising the Court’s discretion in
respect of the corporate plaintiff’s claims, while making due allowance for the
consideration that an indirect benefit should not be given to the defendant in respect
of its defence of the individual plaintiff’s claims, for those are not, ordinarily, the
subject of any order for security.
On the other hand, reliance on the fact that there is also an individual plaintiff who
might be able to pay any costs ordered in favour of the defendants would lead to
artificial joinder of individuals and would not give effect to the purpose of the section.
Thus the presence of an individual plaintiff or plaintiffs is often likely to be seen

as a factor diminishing the defendant’s claims to security, but not extinguishing
it. [34]
[33] Interwest , 624–625.

[34] Opes , [34]–[37].
46. Derham AsJ went on to find that in the circumstances there was substantial overlap in the claims
made by the individual and corporate plaintiffs, which turned on the same conduct and relied on
the same statutory provisions to give rise to the claimed relief, meaning that the discretion should
be exercised to refuse security. [35]
[35] Ibid [61]–[62] .
47. Counsel for the plaintiff’s written submissions were that ‘the interdependence of the claims of
both the natural plaintiff and the corporate plaintiff are complete. If the individual fails, the
company fails. The causation is the same.’ This is not how it was put in oral submissions: at the
hearing, counsel submitted that if Tomlak fails then Mr Butera fails.[36]
[36] While not pertinent to this consideration, it is noted that Counsel also stated that
Raventhorpe’s case was solely dependent on Tomlak’s case. It was said that there was some
overlap in the losses claimed by Tomlak and Mr Butera, but no overlap in the losses by them
(or either of them) and Raventhorpe.
48. On the pleadings, I do not accept that if Mr Butera fails then Tomlak fails, whereas I do accept
that if Tomlak fails Mr Butera cannot succeed. But it goes further than that: even if Tomlak
succeeds, it is not necessarily the case that Mr Butera succeeds, as I do not regard causation to be
the same. This is a case about an implied representation made to Tomlak: it is not pleaded that
any representation was made to Mr Butera in his personal capacity, impliedly or otherwise. It is
not clear to me how a representation impliedly made to Tomlak is said to have caused, in a
manner accepted at law or in equity, loss to Mr Butera. Mr Butera’s claim is completely derivative
of Tomlak’s claim but it is not the same claim.
49. Further, Mr Butera led no evidence as to his own financial position and did not refute Westpac’s
evidence as to him not owning any real property and that his shareholdings were in companies in
the Butera group which were said to be without means.
50. In all the circumstances of this case, I consider that the presence of Mr Butera as a co-plaintiff is a
factor that is to be given some weight in the balancing exercise which diminishes Westpac’s claim
to security, but I do not see it as having such weight as to extinguish it, for the reasons set out in
paragraphs 47 to 49 above. True it is that the same conduct is relied upon, however other
elements of the cases of Tomlak and Mr Butera are quite different.
51. Further, it is relevant when considering this factor to note that Tomlak does not say that an order
against it for security for costs would stultify the Second Proceeding. Indeed, it was expressly
stated by counsel for the plaintiffs that stultification was not argued. If security was not ordered
due to the presence of Mr Butera as a co-plaintiff, then Westpac would have to defend Tomlak’s
claims but not be secured for them.
52. In circumstances where the principal claims in the Second Proceeding are those made by Tomlak,
where Mr Butera’s claim is derivative of Tomlak’s, where his ability to satisfy a costs order is
uncertain, and where Tomlak does not contend that it will be unable to continue to prosecute its
claims if security is ordered, Mr Butera’s presence as a co-plaintiff does not extinguish the claim
for security. It is, however, a factor to weigh into the balance.
Conclusion regarding whether security should be ordered
53. Summarising the discretionary factors as discussed above and assessing them as part of the
balancing exercise:
(a) Delay was a relevant factor, but the delay here was not enough to deprive
Westpac of security. Further, I have made allowance for this factor by having
the security payable only after the conclusion of the mediation and only if it is
unsuccessful;
(b) The evidence has not sufficiently established that Westpac caused or
contributed to the plaintiffs’ impecuniosity;
(c) Only little weight should be given to the voluntary assumption of risk factor;
(d) The presence of Mr Butera as a co-plaintiff in the Second Proceeding carries

some weight against ordering security, but when fully assessed and considered
with the other factors, it does not require a refusal of the application.
54. On balance, I am satisfied that security ought be awarded: the Court’s jurisdiction has clearly
been enlivened and the weighing up of the discretionary factors weigh in favour of the exercise of
the discretion.
55. As set out above, Westpac’s delay in bringing its applications for security has meant that they fall
for determination at around the same time as the parties were ordered to have completed a
mediation in both proceedings. It is not in the interests of the parties or the administration of
justice for an order for security for costs to jeopardise that mediation taking place. If a stay were
to be ordered, either immediately or if security is not paid by a certain date, then the mediation
ordered by the Court would also be stayed. That would also be inimical to the objects of the Civil
Procedure Act 2010 . For these reasons, the orders which I will make will have the security payable
14 days after the conclusion of the mediation (if the proceedings are not resolved at mediation),
with the proceedings to be stayed if the security is not provided by that time.
Amount of security
Applicable principles
56. Following paragraph cited by:
Roth Morgan Kolomanski Pty Ltd v Candlebrush Investments Pty Ltd (01 June 2018)
119. I have previously summarised the principles applicable to the amount of

security and the approach to be taken by the Court in determining the
quantum of security, and I adopt that summary here. [59]
via
[59] Raventhorpe Pty Ltd & Ors v Westpac Banking Corporation [2017] VSC 362 [56] ; Cit
ius Property Pty Ltd v Logos Australia Group Pty Ltd [2018] VSC 74 [15], [17] .
Citius Property Pty Ltd v Logos Australia Group Pty Ltd (23 February 2018)
15.
15. As I stated in Raventhorpe Pty Ltd & Ors v Westpac Banking Corporation ,[4] the
principles applicable to the amount of security and the approach to be taken
by the Court in determining the quantum of security are well established. [5]
I summarised the principles as follows: [6]
(a) the amount of security is within the Court’s discretion; [7]
(b) the amount is that which the Court thinks just, having regard to all of
the circumstances; [8]
(c) in ordering security, the Court does not set out to give the defendant a
complete and certain indemnity for costs; [9] and
(d) the Court’s task is not akin to a taxation of the defendant’s probable
costs. [10]
via
[6] Raventhorpe [56] .
The principles applicable to the amount of security and the approach to be taken by the Court are
well established. [37] These can be summarised as:
[37] Oswal v Australia and New Zealand Banking Group Limited (Security for costs – Stage 2) [2016
] VSC 119 (31 March 2016), [7]–[13] .
[38] Procon (Great Britain) Ltd v Provincial Building Co Ltd [1984] 2 All ER
368.
(b) the amount is that which the Court thinks just, having regard to all of the
circumstances; [39]
(c) in ordering security, the Court does not set out to give the defendant a
complete and certain indemnity for costs; [40] and
(d) the Court’s task is not akin to a taxation of the defendant’s probable costs. [
41]
[39] Allstate Life Insurance Co v ANZ Banking Group Ltd (No 19) (1995) 134 ALR 187, 197 .
[40] Premier Building and Consulting Pty Ltd v Spotless Group Ltd (No 7) [2005] VSC 275 (1 September
2005).
[41] Ibid .
Westpac’s evidence and submissions as to quantum
57. For the purposes of this application, Westpac relies on Mr Watkins’ estimates of its likely
costs. Westpac has not obtained a report from a costs lawyer for these purposes. Raventhorpe
and Tomlak, on the other hand, have obtained a report from Mr Trimbos, a costs lawyer, which
critiques Mr Watkins’ approach and provides his own estimate of the likely costs. These differing
approaches and amounts are analysed below.
58. Mr Watkins deposes that counsel retained by Westpac in the proceedings has rates of $375 per
hour or $3,750 per day (including GST). As this is less than allowed for in the Supreme Court
scale (‘the Scale’) for the maximum GST exclusive hourly/daily rate for junior counsel, Mr
Watkins’ approach in respect of security for costs for counsel’s fees is appropriate. Mr Trimbos
adopts the same rate for counsel in his report.
59. Mr Watkins’ approach to estimating Westpac’s costs was to identify the phases of work which
would need to be done in both proceedings between 13 April 2017 and the commencement of the
trial and then to estimate the number of hours which would need to be spent on those phases of
work by counsel, himself (a partner, at a rate of $665 per hour excluding GST), a senior associate
($525 per hour excluding GST) and two lawyers ($375 per hour excluding GST). Mr Watkins has
provided a detailed table setting out each phase of work and the time/cost estimates for each. A
‘blended’ rate of $425 for the two lawyers and senior associates was used in the table. That
exercise produces a total of $230,365 for both proceedings. Mr Watkins then added 5 percent for
‘duplication across matters’ (this was $11,518.25). When I queried why there was a loading for
duplication rather than a deduction, Westpac’s counsel informed me that it was because work
done in one proceeding would not be a perfect facsimile of work done in the other, since the cases
were not identical. Through this method, Westpac’s costs for both proceedings were estimated to
be $241,883.25.
60. Having arrived at an estimate for the costs for both proceedings, Mr Watkins deposes that it was
reasonable to apportion Westpac’s costs in defending both proceedings on the following basis:
(a) first, split evenly between the two proceedings; and then
(b) in the Second Proceeding, split evenly between Tomlak and Mr Butera.
Mr Trimbos agrees with this approach.[42]
[42] Trimbos Report, [43].
61. In his affidavit, Mr Watkins described this amount of $241,883.25 as being the ‘legal costs likely to
be recovered by the defendant, on a party and party basis’.[43] However, earlier he described it as
being the costs likely to be incurred, and he also said that it had been conservatively prepared and
Westpac’s actual costs were likely to exceed that amount. When I pointed out during the hearing
that it was unclear whether Mr Watkins had prepared the estimate by reference to costs
calculated on a standard basis, I was informed by Westpac’s counsel that Mr Watkins had taken a
common methodology of estimating the actual costs on a conservative basis and then discounting
it by 30 percent to obtain a roughly commensurate figure with what may emerge from a
taxation. I was told that the total figure claimed for security for costs, being $181,412.45, was 70
percent of $241,883.25.[44] But a reading of Mr Watkins’ affidavit shows that is not how the figure
of $181,412.45 was arrived at. Rather, it is the total of having Raventhorpe pay 50 percent (ie
$120,941.63) and Tomlak pay 25 percent (ie $60,470.82) of the $241,883.25. Accordingly, I do not
regard Mr Watkins as having applied any discount to bring the amount claimed to something
close to costs on a standard basis.
[43] See Affidavit of Mr Brendon Robert Watkins, 13 April 2017, sworn in the First
Proceeding [26].
[44] On my calculation, 70% of $241,883.25 is $169,318.28.
The plaintiffs’ evidence and submissions as to quantum
62. Mr Trimbos makes the following general criticisms of Mr Watkins’ approach:
(a) The estimates are not informed by Order 63 of the Rules and do not base the
calculations on the likely costs to be allowed on taxation by reference to the
Scale, instead basing them on the hourly rates of particular lawyers engaged by
Westpac;
(b) Mr Watkins’ approach is effectively calculating costs on an indemnity

basis or solicitor-client basis, as he estimates the amount of time each lawyer
working on the matter will spend on it, which is not how it would be approached
on a taxation; and
(c) The costs of two or more solicitors undertaking the same work is included
(for example, preparing for and attending the mediation, reviewing and
considering court documents, preparing for hearings and witness interviews),
whereas the Costs Court would not allow that when taxing costs on a standard
basis.[45]
[45] Trimbos Report, [25]-[28].
63. Mr Trimbos has prepared a table of estimates where he critiques Mr Watkins’ estimates and gives
his corresponding estimates.[46] He arrives at a total of $97,441.09 for both proceedings. In
general, this is reached by Mr Trimbos:
[46] This is contained in Annexure B to the Trimbos Report (‘Trimbos Annexure B’).
(a) Not allowing the first item in Mr Watkins’ estimate, which was
‘considering further and better particulars’, on the basis that he was instructed
that this was no longer future work and was not claimable;
(b) Allowing a loading of 10 percent for skill care and attention given the
‘complexity, difficulty, importance and skill’ that the matter requires, which he
considers the maximum level of loading allowed by the Costs Court in most
cases where a loading is given;[47] and
(c) Applying a discount of 20 percent to the total he arrives at (the basis for
a possible discount is discussed below).
[47] Trimbos Report, [36]-[38].
64. At the hearing, Westpac made the following submissions in relation to the Trimbos Report, which
it said it had not had an opportunity to fully consider and respond:
(a) Mr Watkins’ estimates had taken a conservative approach, which Mr

Trimbos then ‘filleted’, so that his figures were even more conservative;
(b) The first item should not be removed, as it involved work to be done after
13 April 2017;
(c) A loading of 10 percent was inadequate and it should be increased to

15 percent;
(d) A discount of 20 percent across the top was excessive. Given the factors
being discounted for, this could be better dealt with by staging the orders so that
security for costs up to mediation were payable now and the rest payable after
the mediation. There was said to be no need for a discount of the amount up to
mediation, as the discount is to allow for the prospects of the proceedings being
resolved, and then only a small discount should apply after that. No submission
was made about what that small discount would be;
(e) Applying this to Mr Trimbos’ figures, the amounts were $26,107 to
mediation and $95,694.86 after mediation to the commencement of trial.
Consideration
65. I have preferred Mr Trimbos’ approach to determining quantum to the approach taken by Mr
Watkins, as I accept the comments made by Mr Trimbos which I have summarised in paragraph
62 above. As mentioned in paragraph 61 above, Mr Watkins’ estimate does not appear to have
been adjusted for costs being taxed on a standard basis.
66. In light of my previous comments, I do not propose to stagger the provision of security for costs in
the manner suggested by Westpac at the hearing. I will be ordering that security for the period
between 13 April 2017 and up to the commencement of trial be payable after the conclusion of the
mediation, if the proceedings have not been settled. While this means that Westpac will have to
prepare for and attend the mediation on an ‘unsecured’ basis, this is preferable (for the reasons
outlined in paragraph 55 above) to risking the mediation not being able to take place. It also
means that when it is paid, the security will contain some ‘past’ costs, but that is the natural
consequence of dealing with the timing of the payment in the way that I have.
67. In relation to whether to discount the amount, in Farmitalia Carlo Erba v Delta West, Heerey J
identified the following non-exhaustive list of factors:
(a) The chance of the cases collapsing without coming to trial;
(b) The apparent prospects of success;
(c) The order for security should not be the means of effectively denying
Raventhorpe and Tomlak the right to pursue their claims;
(d) The lack of information put before the court to enable it to estimate the
likely figure of costs;
(e) The extent to which some of Westpac’s costs will relate to a case that is
not essentially defensive; and
(f) The likelihood that the estimate of costs will be reduced by the taxing
officer. [48]
[48] (1994) 28 IPR 336 (‘ Farmitalia ’). See also Felsink Pty Ltd v City of Maribyrnong [2007] VSC 49 (5
March 2007); Beluga Developments Pty Ltd v Sobel Investments Pty Ltd [2010] VSC 303 (2 July 2010).
68. Given my approach as outlined in these reasons, the only factors identified in Farmitalia which I
consider justify a discount in these proceedings are those referred to in paragraphs (a), (d) and (f)
above. Even then, I do not consider them to be significant, as I accept the submission that the
Trimbos Report has been prepared on a conservative basis.[49]
[49] This should not be taken to mean that I consider Mr Watkins’ estimate to be
conservative.
69. Doing the best that I can with the information provided and in light of the principles enunciated
in paragraph 56 above, I will calculate the total costs in the following way:
(a) I take the Trimbos Annexure B as the starting point, as I consider that to
have been prepared in a manner consistent with the likely approach of the Costs
Court, whereas I do not view Mr Watkins’ estimate in that way;
(b) I would allow the first item in the Trimbos Annexure B, but at the
reduced amount of $2,900 (which is roughly 70% of the amount claimed);
(c) I agree with Mr Trimbos that Mr Watkins’ addition of 5% for ‘duplication

across matters’ should not be allowed;
(d) I would add the amount of $3,930 to ‘attendance at mediation’. In his

reasons for that item on pages 4-5 of the Trimbos Annexure B, Mr Trimbos states
that the cost of one solicitor would be allowed and that the costs of $3,930 would
be recoverable. However, in the amounts for that item, he has only included
counsel’s fees. I have assumed that this is an error;
(e) I agree with Mr Trimbos that the loading should be 10 percent, not 15
percent. Accounting for (d) above would bring the loading to $7,445.26;[50]
(f) Applying these gives a total of $129,024.36;
(g) I would then discount the total by 10 percent.
[50] I have not included a loading on the figure in (b) above, as I do not have enough information
for this to be broken down as between solicitor and counsel.
70. This produces a total of $116,121.92.
Conclusion
71. Splitting the rounded total of $116,122 between the two proceedings and then halving it for the
Second Proceeding results in:
(a) Raventhorpe paying $58,061 in security for Westpac’s costs of the First
Proceeding for the specified period; and
(b) Tomlak paying $29,030 in security for Westpac’s costs of defending its
claims in the Second Proceeding for the specified period.
72. In both proceedings, the security will be payable 14 days after the conclusion of the mediation, by
payment into Court in a manner acceptable to the Senior Master, if the proceedings are not
settled at mediation. The First Proceeding and the claims brought by Tomlak in the Second
Proceeding will be stayed if the security is not paid by that date.
73. I will hear the parties on the appropriate form of orders and on the question of the costs of this
application.
Cited by:
Roth Morgan Kolomanski Pty Ltd v Candlebrush Investments Pty Ltd [2018] VSC 288 (01 June 2018)
119. I have previously summarised the principles applicable to the amount of security and the
approach to be taken by the Court in determining the quantum of security, and I adopt that
summary here. [59]
via
[59] Raventhorpe Pty Ltd & Ors v Westpac Banking Corporation [2017] VSC 362 [56] ; Citius
Property Pty Ltd v Logos Australia Group Pty Ltd [2018] VSC 74 [15], [17] .
Citius Property Pty Ltd v Logos Australia Group Pty Ltd [2018] VSC 74 (23 February 2018)
15. As I stated in Raventhorpe Pty Ltd & Ors v Westpac Banking Corporation , [4] the principles
applicable to the amount of security and the approach to be taken by the Court in
determining the quantum of security are well established. [5] I summarised the principles as
follows: [6]
(b) the amount is that which the Court thinks just, having
regard to all of the circumstances; [8]
(c) in ordering security, the Court does not set out to give
the defendant a complete and certain indemnity for costs; [9] a
nd
(d) the Court’s task is not akin to a taxation of the

defendant’s probable costs. [10]
16. Both parties referred to and relied on this summary in Raventhorpe
75. The defendant submitted that no discount should be applied, as Mr Trimbos does not apply
a discount and 30 per cent is an arbitrary number. The defendant noted that Farmitalia refers
to seven factors as justifying a discount, only one of which was the prospect of settlement.
The defendant also noted that the discount applied in Farmitalia and in Raventhorpe
follows: [6]
nd

via
[4] [2017] VSC 362 (‘ Raventhorpe ’).
follows: [6]
nd

via
[4] [2017] VSC 362 (‘ Raventhorpe ’).
15. As I stated in Raventhorpe Pty Ltd & Ors v Westpac Banking Corporation ,[4] the principles
follows: [6]
nd

via
[6] Raventhorpe [56] .

Raventhorpe Pty LTD & Ors V Westpac Banking Corporation - (2017) VSC 362

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IN THE SUPREME COURT OF VICTORIA Not

RAVENTHORPE PTY LTD (ACN 078 287 Plaintiff

WESTPAC BANKING CORPORATION Defendant

TOMLAK PTY LTD (ACN 091 502 644) First Plaintiff

GREGORY BUTERA Second

JUDGE: JUDICIAL REGISTRAR MATTHEWS

WHERE HELD: Melbourne

DATE OF JUDGMENT: 23 June 2017

MEDIUM NEUTRAL CITATION: [2017] VSC 362

APPEARANCES: Counsel Solicitors

For the Plaintiffs Mr M Clarke Hui Meng Ong

JUDICIAL REGISTRAR MATTHEWS:

10. Westpac denies the plaintiffs’ claims.

Relevant legal principles

[2] [2013] VSC 590 (31 October 2013) (‘ US Realty ’) [18]–[38] .

Is the jurisdiction enlivened?

[8] Ibid 382 .

The jurisdiction having been enlivened, should security be ordered?

21. However, that does not dispose of this issue.

[14] [2001] VSC 253 (12 June 2001) (‘ Obena Falls’).

Plaintiff’s impecuniosity caused by or contributed to by the defendant

(b) there must be a solid foundation for that conclusion;

[15] Colmax , [20(b)] (citations omitted).

29. Westpac’s counsel relied on this passage from Colmax .

[16] [1973] QB 609 (‘ Sir Lindsay Parkinson ’), 626.

[18] Livingspring , 383–4.

[19] [1999] VSC 230 (24 June 1999), [68] .

Voluntary assumption of risk

[25] (2015) 327 ALR 523 (‘ Mecrus’ ), 538, [72]-[73] .

[28] (1984) 8 ACLR 835, 840–842 .

Where there is an absence of evidence as to the individuals’ capacity to pay costs, or

Thus the presence of an individual plaintiff or plaintiffs is often likely to be seen

[33] Interwest , 624–625.

[35] Ibid [61]–[62] .

Conclusion regarding whether security should be ordered

(d) The presence of Mr Butera as a co-plaintiff in the Second Proceeding carries

56. Following paragraph cited by:

119. I have previously summarised the principles applicable to the amount of

(a) the amount of security is within the Court’s discretion; [7]

(a) the amount of security is within the Court’s discretion; [38]

Westpac’s evidence and submissions as to quantum

Mr Trimbos agrees with this approach.[42]

[42] Trimbos Report, [43].

The plaintiffs’ evidence and submissions as to quantum

62. Mr Trimbos makes the following general criticisms of Mr Watkins’ approach:

(b) Mr Watkins’ approach is effectively calculating costs on an indemnity

[45] Trimbos Report, [25]-[28].

[47] Trimbos Report, [36]-[38].

(a) Mr Watkins’ estimates had taken a conservative approach, which Mr

(c) A loading of 10 percent was inadequate and it should be increased to

(a) The chance of the cases collapsing without coming to trial;

(b) The apparent prospects of success;

(c) I agree with Mr Trimbos that Mr Watkins’ addition of 5% for ‘duplication

(d) I would add the amount of $3,930 to ‘attendance at mediation’. In his

(f) Applying these gives a total of $129,024.36;

(g) I would then discount the total by 10 percent.

70. This produces a total of $116,121.92.

(a) the amount of security is within the Court’s discretion; [7]

(d) the Court’s task is not akin to a taxation of the

16. Both parties referred to and relied on this summary in Raventhorpe

(a) the amount of security is within the Court’s discretion; [7]

(d) the Court’s task is not akin to a taxation of the