Page 1

Page 2 1 of 9 DOCUMENTS: CaseBase Cases

Scott MacRae Investments Pty Ltd v Baylily Pty Ltd

[2012] NSWSC 823; BC201205381 Court: NSWSC Judges: Hammerschlag J Judgment Date: 16/7/2012

Catchwords & Digest

Succession -- Family provision -- Adequacy of provision -- Adult child Succession -- Administration of estates -- Litigation involving deceased's estate -- Settlement Application for orders. Applicant deceased's son commenced proceedings for family provision. Entered into deed of settlement with respondents executors of deceased's estate. Sought release of applicant's rights to apply for family provision pursuant to (NSW) Succession Act 2006 s 95. Established on evidence terms of settlement fair and reasonable. Established applicant received independent legal advice and had given due consideration to legal advice received. Accordingly, appropriate to make orders pursuant to s 95 because requirements of s 95(4) were met. Application granted. Litigation History Annotations: All Cases Sort by: Judgment Date (Latest First) Annotation Case Name Citations Scott MacRae Investments [2011] NSWCA 82; Related Pty Ltd v Baylily Pty Ltd BC201101954 Scott MacRae Investments [2010] NSWSC 174; Related Pty Ltd v Baylily Pty Ltd BC201001883 Legislation considered by this case Legislation Name & Jurisdiction Succession Act 2006 (NSW)

Court NSWCA NSWSC

Date 8/4/2011 12/3/2010

Signal

Provisions s 95

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Page 4 2 of 9 DOCUMENTS: CaseBase Cases

Brown-Sarre v Waddingham
[2012] VSC 116; BC201201729 Court: VSC Judges: Habersberger J Judgment Date: 30/3/2012

Catchwords & Digest

Practice and procedure -- Settlement -- Approval -- Interests of beneficiaries Mortgages and securities -- Mortgages -- Default -- Settlement Succession -- Administration of estates -- Litigation involving deceased's estate -- Settlement Application for approval to enter into settlement deed. Applicant appointed administrator of deceased's estate following removal of respondent deceased's wife as executor who was also sole beneficiary under will. Deceased entered into credit contract with third party company to borrow $200,000 secured by mortgage over deceased's family home. Third party company commenced proceedings in VCAT following deceased's default on loan. VCAT found credit contract and mortgage unjust and should be set aside subject to deceased's estate paying sum of $46,000 to third party company. Third party company commenced proceedings to stay VCAT's decision. Reached compromise with applicant to settle dispute. Respondent opposed approval of compromise on basis compromise would increase amount of debt owed by deceased's estate. Sought orders allowing respondent and respondent's children to continue living in family home. Established respondent grounds for opposing approval of settlement misconceived. Established applicant exercised judgment in proper manner, considered interests of respondent and exercised discretion in good faith. Appropriate to allow applicant to enter into settlement agreement with third party company. Application granted. Cases referring to this case Annotations: All CasesSort by: Judgment Date (Latest First) Annotation Case Name Citations [2012] VSC 240; Followed Centro Retail Australia Ltd, Re BC201203952 Cases considered by this case Annotations: All Cases Sort by: Judgment Date (Latest First) Annotation Case Name Citations Considered Exxonmobil Superannuation (2010) 29 VR 356;

Court VSC

Date 8/6/201 2

Signal

Court VSC

Date 25/8/2010

Signal

Page 5 Plan Pty Ltd v Esso Australia Pty Ltd Ansett Australia Ground Staff Superannuation Plan Pty Ltd v Ansett Australia Ltd McKinnon v Samuels IOOF Australia Trustees Ltd and The Trustee Act 1936 Green (decd), Re Allen-Meyrick's Will Trusts, Re; Mangnall v AllenMeyrick Gisborne v Gisborne [2010] VSC 357; BC201006075 (2004) 49 ACSR 1; [2004] FCA 130; BC200400494 [2000] VSC 393; BC200005745 (1999) 205 LSJS 98; [1999] SASC 461; BC9907227 [1972] VR 848 [1966] 1 All ER 740; [1966] 1 WLR 499 (1877) 2 App Cas 300; [1874-80] All ER Rep Ext 1698; (1877) 46 LJ Ch 556; (1877) 36 LT 564; (1877) 25 WR 516 (1851) 3 Mac & G 440; (1851) 42 ER 330 (1810) 17 Ves 152

Cited Cited Cited Cited Cited

FCA VSC SASC VSC EWHCC h

24/2/2004 21/9/2000 20/10/1999 15/5/1972 19/11/1965

Cited

UKHL

17/4/1877

Cited Cited

Beloved Wilkes Charity, Re M'Leod v Drummond

28/4/1851

Legislation considered by this case Legislation Name & Jurisdiction Supreme Court (General Civil Procedure) Rules 2005 (Vic)

Provisions r 54.02(2)(c)(i)

Page 6

Page 7 3 of 9 DOCUMENTS: CaseBase Cases

Garrett v Yiasemides
[2004] NSWSC 828; BC200406197 Court: NSWSC Judges: Campbell J Judgment Date: 31/8/2004

Catchwords & Digest

Trusts -- Trustees -- Powers of investment -- Removal of trustees Application to replace trustees and empower new trustees to mortgage particular property. Deceased married twice and appointed two trustees as executors of will. Plaintiff child from second marriage. Father intended plaintiff's interest in estate be used as security for loan in purchase of land and improvements. One trustee bankrupt and other trustee refused to authorise mortgage. Whether trustees should be removed. Whether interests of child served by such investment. Held, allowing the application: (i) The bankrupt trustee was not a proper person to continue as a trustee. (ii) To refuse agreement to the mortgage for over one year amounted to conduct which endangered the trust property and demonstrated a want of proper capacity to exercise trust duties. The relevant trustee should be removed. (iii) It was in the interests of the child to mortgage the relevant land in the proposed way. Practice and procedure -- Costs -- Removal of trustee -- Adversarial litigation Order for costs. Trustee C previously consented to removal and appointment of replacement trustee. Trustee Y not willing to resign. Court ordered removal of both trustees. Whether trustee Y allowed costs paid out of trust estate. Held: Costs ordered. Trustee Y liable for costs and not allowed costs out of trust estate. Litigation for trustee removal was in substance adversarial litigation, as opposed to administration of trust. Cases referring to this case Annotations: All CasesSort by: Judgment Date (Latest First) Annotation Case Name Citations (2009) 105 SASR 95; (2009) 265 LSJS 191; Considered Estate of Graham (decd), Re [2009] SASC 278; BC200908138

Court SASC

Date 4/9/200 9

Signal

Page 8 Journal articles referring to this case Article Name Law of Costs 2ed 2008 (book) Cases considered by this case Annotations: All Cases Sort by: Judgment Date (Latest First) Annotation Case Name Citations [2002] NSWSC 505; Cited Murdocca v Murdocca (No 2) BC200203390 (1983) 20 NTR 13; Cited Roberts, Re (1983) 70 FLR 158 Cited Hunter v Hunter [1938] NZLR 520 (1936) 54 CLR 572; [1936] ALR 301; Cited Miller v Cameron (1936) 10 ALJR 35a; [1936] HCA 13; BC3600025 (1912) 14 CLR 297; (1912) 18 ALR 254; Cited Nissen v Grunden [1912] HCA 35; BC1200054 Cited Swanson v Dungey (1892) 25 SALR 87 Cited Letterstedt v Broers (1884) 9 App Cas 371 (1863) 32 Beav 564; Cited Palairet v Carew (1863) 55 ER 222 (1856) 2 K & J 571; Cited Attorney-General v Murdoch (1856) 69 ER 910 Legislation considered by this case Legislation Name & Jurisdiction Trustee Act 1925 (NSW) Trustee Amendment (Discretionary Investments) Act 1997 (NSW)

Citations ISBN: 9780409325546

Signal

Court NSWSC NTSC NZCA

Date 25/6/2002 12/4/1983 9/7/1938

Signal

HCA

29/4/1936

HCA SASC UKPC -

30/5/1912 29/9/1892 22/3/1884 18/2/1863 7/5/1856

Provisions s 14DA, s 6, s 70, s 81, s 82A -

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Page 10 4 of 9 DOCUMENTS: CaseBase Cases

Wendt v Orr
[2004] WASC 28 (S); BC200402497 Court: WASC Judges: Johnson J Judgment Date: 3/5/2004

Catchwords & Digest

Practice and procedure -- Costs -- Executor's costs -- Indemnity from estate Application by executor for indemnity from estate. Litigation concerning estate commenced by beneficiary. Prior order that first defendant should pay costs of plaintiff and second defendant. Prior decision that should be no indemnity from estate. Distinction between costs of action and other legal costs incurred in management of estate. First defendant executor acted in breach of trust in approach taken to administration of estate. First defendant failed to obtain legal advice or directions from court at early stage. First defendant distributed profits on sale of shares to second defendant. Whether executor should have indemnity from estate for costs. Held: Application dismissed. Executor not entitled to indemnity given breach of trust. Litigation History Annotations: All Cases Sort by: Judgment Date (Latest First) Annotation Case Name Citations [2005] WASCA 199; Related Orr v Wendt BC200508859 Cases considered by this case Annotations: All Cases Sort by: Judgment Date (Latest First) Annotation Case Name Citations Beddoe, In re; Downes v Considered [1893] 1 Ch 547 Cottam Legislation considered by this case Legislation Name & Jurisdiction Trustees Act 1962 (WA)

Court WASCA

Date 21/10/2005

Signal

Court EWCAC iv

Date 2/12/1892

Signal

Provisions s 65(8), s 92, s 94

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Page 12 5 of 9 DOCUMENTS: CaseBase Cases

Murdocca v Murdocca (No 2)

[2002] NSWSC 505; BC200203390 Court: NSWSC Judges: Campbell J Judgment Date: 25/6/2002

Catchwords & Digest

Succession -- Administration of estates -- Litigation -- Costs Proceedings to enforce transfer of specific devise of land. Construction of will needed to decide plaintiff's entitlement to devise. Principles in accord with costs of litigation concerning deceased estates. Present status of approach to costs. Whether costs of proceedings are testamentary expenses. Held: Usual costs orders should follow from adversarial proceedings. Plaintiff ordered to pay one half of costs. Litigation History Annotations: All Cases Sort by: Judgment Date (Latest First) Annotation Case Name Citations [2002] NSWSC 159; Related Murdocca v Murdocca BC200201192

Court NSWSC

Date 27/3/2002

Signal

Cases referring to this case Annotations: All CasesSort by: Judgment Date (Latest First) Annotation Case Name Citations Nu Line Construction Group Pty [2012] NSWSC 587; Considered Ltd v Fowler (aka Grippaudo) BC201203726 Waddell v Waddell as Executor of [2012] NSWSC 287; Cited Estate of Waddell (No 4) BC201203385 [2012] NSWSC 226; Cited Stocker v Starr BC201201257 (2011) 285 ALR 532; (2011) BE Australia WD Pty Ltd (subject 256 FLR 67; (2011) 86 Cited to a Deed of Company ACSR 507; [2011] NSWCA Arrangement) v Sutton 414; BC201110353 NSW Trustee and Guardian v Hull [2011] NSWSC 1361; Cited (No 2) BC201108919 Scaffidi v Montevento Holdings [2011] WASCA 146 (S); Cited Pty Ltd BC201110748 Ireland as Executor of Estate of [2011] NSWSC 1096; Cited Late Gordon v Retallack (No 2) BC201107238

Court NSW SC NSW SC NSW SC NSW CA NSW SC WAS CA NSW SC

Date 31/5/20 12 28/3/20 12 27/2/20 12 20/12/2 011 10/11/2 011 11/10/2 011 19/9/20 11

Signal

Page 13 Cited Considered Cited Considered Considered Considered Cited Cited Considered Cited Cited Cited Cited Considered Cited Cited Cited Ireland as Executor of Estate of the late Gordon v Retallack Lockrey v Ferris Trust Co Ltd v Zdilar Estate of Forbes (decd) v State of New South Wales Pistorino v Connell Lahoud v Lahoud Pacella v Sherborne (No 2) Tasmanian Perpetual Trustees Ltd v Bell Talacko v Talacko Wood v Inglis Thompson (decd), Re; Lundstrom v Attorney-General (Vic) Jay-O-Bees Pty Ltd (in liq), Re; Rosseau Pty Ltd (in liq) v Jay-OBees Pty Ltd (in liq) Garrett v Yiasemides Crawford v McIntosh Gonzales v Claridades Preston v MD Nikolaidis & Co Firth v Centrelink (aka the Dept of Social Security (No 2)) [2011] NSWSC 846; BC201106193 [2011] NSWSC 179; BC201101516 (2011) 4 ASTLR 379; [2011] QSC 005; BC201100225 [2010] NSWSC 1439; BC201009742 [2010] VSC 511; BC201008427 [2010] NSWSC 1297; BC201008439 [2010] WASC 186; BC201005202 [2010] TASSC 1; BC201000234 [2009] VSC 579; BC200911222 [2009] NSWSC 900; BC200908040 [2006] VSC 313; BC200606689 (2004) 50 ACSR 565; [2004] NSWSC 818; BC200406360 [2004] NSWSC 828; BC200406197 [2004] NSWSC 180; BC200401193 (2003) 58 NSWLR 188; [2003] NSWSC 508; BC200302934 [2003] NSWSC 72; BC200300477 (2002) 55 NSWLR 494; [2002] NSWSC 850; BC200205434 NSW SC NSW SC QSC NSW SC VSC NSW SC WAS C TASS C VSC NSW SC VSC NSW SC NSW SC NSW SC NSW SC NSW SC NSW SC 12/8/20 11 18/3/20 11 31/1/20 11 16/12/2 010 12/11/2 010 10/11/2 010 23/7/20 10 3/2/201 0 11/12/2 009 1/9/200 9 30/8/20 06 28/9/20 04 31/8/20 04 16/3/20 04 12/6/20 03 17/2/20 03 11/9/20 02

Journal articles referring to this case Article Name Construction of Wills in Australia 2007 (book) Cases considered by this case Annotations: All Cases Sort by: Judgment Date (Latest First) Annotation Case Name Citations Morgan Equipment Company Considered (1993) 32 NSWLR 467 v Rodgers (No2) Considered Hagan v Waterhouse (1992) 34 NSWLR 308 Considered Hungerfords v Walker (1989) 171 CLR 125; (1989) 84 ALR 119; (1989) 63 ALJR 210;

Citations ISBN: 9780409320954

Signal

Court NSWSC NSWSC HCA

Date 25/3/1993 12/2/1992 9/2/1989

Signal

Page 14 (1989) 20 ATR 36; (1989) Aust Torts Reports 80-230; [1989] HCA 8 [1976] 1 NSWLR 261 [1975] QB 373; [1975] 1 All ER 849; [1975] 2 WLR 389 [1951] Ch 878; [1951] 2 All ER 421 [1947] Ch 469; [1947] 1 All ER 716 (1942) 59 WN (NSW) 100 (1936) 36 SR (NSW) 508; (1936) 53 WN (NSW) 214 [1933] Ch 970 (1931) 48 WN (NSW) 85 (1924) 25 SR (NSW) 56; (1924) 42 WN (NSW) 14 (1924) 35 CLR 60; [1924] HCA 44 (1922) 23 SR (NSW) 11; (1922) 39 WN (NSW) 243; (1922) 6 LGR (NSW) 93 (1921) 22 SR (NSW) 100; (1921) 38 WN (NSW) 254 (1918) 25 CLR 172; (1918) 24 ALR 291; [1918] HCA 46; BC1800024 (1917) 17 SR (NSW) 676; (1917) 34 WN (NSW) 248 [1916] 1 Ch 272 (1914) 15 SR (NSW) 41; (1914) 32 WN (NSW) 1 (1914) 31 WN (NSW) 44 [1912] 1 Ch 435 (1910) 10 SR (NSW) 304; (1910) 27 WN (NSW) 75

Cited Cited Cited Considered Considered Considered Cited Considered Considered Considered Cited

Hermann v Charny Wallersteiner v Moir (No 2); Moir v Wallersteiner (No 2) Preston's Estate, Re; Raby v Port of Hull Society's Sailors' Orphans' Homes Priestley's Contract, Re Perpetual Trustee Co Ltd v Thomas Stone, Re; Read v Dubua Rooke, In re; Jeans v Gatehouse O'Brien v Ritchie Perpetual Trustee Co Ltd v Paling Moran v House Lloyd v Frape

NSWCA EWCAC iv EWHCC h EWHCC h NSWSC NSWSC EWHCC h NSWSC NSWSC HCA NSWSC

27/4/1976 29/1/1975 29/6/1951 1/4/1947 1/6/1942 20/10/1936 26/5/1933 20/4/1931 30/12/1924 6/11/1924 13/10/1922

Considered

Muller v Marriott

NSWSC

18/11/1921

Considered Not Followed Cited Cited Considered Considered Considered

Wyndham v Mackenzie

HCA

23/8/1918

Robertson v Graham Hall-Dare, Re; Le Marchant v Warner Allen v Attorney-General Cunningham, In re; Sproule v Quested Halston, In re; Ewen v Halston White, In re; White v White

NSWSC EWHCC h NSWSC NSWSC EWHCC h NSWSC

13/11/1917 20/1/1916 16/10/1914 26/3/1914 23/1/1912 2/3/1910

Page 15 Considered Considered Considered Cited Considered Cited Considered Considered Considered Cited Buckton, Re Betts; In re Doughty v Walker Metcalfe v O'Kennedy Drax, In re; Savile v Drax Jones, In re; Elgood v Kinderley; Elgood v Jones Groom, In re; Booty v Groom Patching v Barnett Ballard v Shutt Sharp v Lush Higstrim v Ray [1907] 2 Ch 406 [1907] 2 Ch 149 (1904) 4 SR (NSW) 633; (1904) 21 WN (NSW) 240a [1903] 1 Ch 781 [1902] 1 Ch 92 [1897] 2 Ch 407 [1907] 2 Ch 154; (1881) 51 LJ Ch 74 (1880) 15 Ch D 122 (1879) 10 Ch D 468 (1895) 16 LR (NSW) Eq 1 EWHCC h EWHCC h NSWSC EWCAC iv EWHCC h EWHCC h EWCAC iv EWHCC h EWHCC h 10/7/1907 18/4/1907 17/11/1904 19/3/1903 5/11/1901 13/7/1897 28/6/1881 13/7/1880 13/1/1879

Legislation considered by this case Legislation Name & Jurisdiction Equity Act 1901 (NSW) Land Transfer Act 1897 (UK) Supreme Court Act 1970 (NSW) Trustee Act 1925 (NSW) Wills, Probate and Administration Act 1898 (NSW)

Provisions s 11 s 2(3) Pt 49 r 9, Pt 52A r 22, Pt 68 r 2(2), s 76, s 94 s 93(3) s 46C, s 84A

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Page 17 6 of 9 DOCUMENTS: CaseBase Cases

Harris v Bennett (No 2)

[2002] VSC 163; BC200202244 Court: VSC Judges: McDonald J Judgment Date: 9/5/2002

Catchwords & Digest

Practice and procedure -- Costs -- Application for costs -- Infant plaintiff represented by litigation guardian Application for costs on behalf of infant plaintiff. Proceedings formerly dismissed were for provision out of estate of deceased for whom defendants are executors. Large estate. Litigation guardian impecunious. Plaintiff child with special needs. Whether appropriate to reserve costs of actions relating to summary dismissal to trial judge. Whether circumstances warranting departure from normal order as to costs. Whether infant plaintiff entitled to have costs taxed on solicitor and client basis. Held: Defendants to pay infant plaintiff's costs, taxed on party and party basis. Not reasonable to say award of costs at this stage will affect exercise of costs discretion by trial judge. Normal order as to costs appropriate. Proceedings not within any category where solicitor and client basis justified, despite claims of ulterior motives for dismissal application. Litigation History Annotations: All Cases Sort by: Judgment Date (Latest First) Annotation Case Name Citations (2002) 8 VR 411; Related Harris v Bennett (No 1) [2002] VSC 139; BC200202159 Cases referring to this case Annotations: All CasesSort by: Judgment Date (Latest First) Annotation Case Name Citations [2006] VSCA 190; Considered Board of Examiners v XY BC200607419 Cases considered by this case Annotations: All Cases Sort by: Judgment Date (Latest First) Annotation Case Name Citations Cited Parkesinclair Chemicals [2000] VSC 336;

Court VSC

Date 15/4/2002

Signal

Court VSC A

Date 20/9/20 06

Signal

Court VSC

Date 24/8/2000

Signal

Page 18 (Aust) Pty Ltd v Asia Associates Inc Czerwinski v Syrena Royal Pty Ltd Spencer v Dowling & KL Dowling & Co (a firm) Colgate-Palmolive Co v Cussons Pty Ltd Blackall v Trotter (No2) Dehnert v Perpetual Executors & Trustees Association of Australia Ltd BC200005192 [2000] VSC 135; BC200002285 [1997] 2 VR 127; (1996) EOC 92-851; BC9603333 (1993) 46 FCR 225; (1993) 118 ALR 248; (1993) 28 IPR 561; BC9305213 [1969] VR 946 (1954) 91 CLR 177; [1954] ALR 837; (1954) 28 ALJR 355; BC5400490 VSC VSCA 12/4/2000 26/7/1996

Applied Considered

Applied Cited Cited

FCA VSC HCA

10/11/1993 8/7/1969 14/9/1954

Legislation considered by this case Legislation Name & Jurisdiction Supreme Court (General Civil Procedure) Rules 1996 (Vic) Supreme Court Act 1986 (Vic)

Provisions r 63.31, r 63.32 s 24(1)

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7 of 9 DOCUMENTS: Australian Current Law Reporter/2004/Issue 10/325 -- PRACTICE AND PROCEDURE/WESTERN AUSTRALIA/[325 WA 97] Wendt v Orr

[325 WA 97] Wendt v Orr -- Supreme Court, WA -- Johnson J -- 3 May 2004 [2004] WASC 28 (S), BC200402497, 13 pages
Costs -- Executor's costs -- Indemnity from estate -- Application by executor for indemnity from estate -- Litigation concerning estate commenced by beneficiary -- Prior order that first defendant should pay costs of plaintiff and second defendant -- Prior decision that there should be no indemnity from estate -- Distinction between costs of action and other legal costs incurred in management of estate -- First defendant executor acted in breach of trust in approach taken to administration of estate -- First defendant failed to obtain legal advice or directions from court at early stage -- First defendant distributed profits on sale of shares to second defendant -- Whether executor should have indemnity from estate for costs -- Executor not entitled to indemnity given breach of trust -Application dismissed (WA) Trustees Act 1962 ss 65(8), 92, 94.

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8 of 9 DOCUMENTS: Australian Current Law Reporter/2002/Issue 8/395 -- SUCCESSION/NEW SOUTH WALES/[395 NSW 44] Murdocca v Murdocca (No 2)

[395 NSW 44] Murdocca v Murdocca (No 2) -- Supreme Court, NSW -- Campbell J -- 25 Jun 2002 [2002] NSWSC 505, BC200203390, 24 pages
Administration of estates -- Litigation -- Costs -- Proceedings to enforce transfer of specific devise of land -- Construction of will needed to decide plaintiff's entitlement to devise -- Principles in accord with costs of litigation concerning deceased estates -- Present status of approach to costs -- Whether costs of proceedings are testamentary expenses -- Usual costs orders should follow from adversarial proceedings -- Plaintiff ordered to pay one half of costs (NSW) Equity Act 1901 s 11.(NSW) Supreme Court Act 1970 ss 76, 94.(NSW) Supreme Court Rules 1970 Pt 49 r 9, Pt 52A r 22, Pt 68 r 2.(NSW) Trustee Act 1925 s 93(3).(NSW) Wills, Probate and Administration Act 1898 ss 46C, 84A.(UK) Land Transfer Act 1897 s 2(3).

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9 of 9 DOCUMENTS: Australian Current Law Reporter/2002/Issue 6/325 -- PRACTICE AND PROCEDURE/VICTORIA/[325 VIC 63] Harris v Bennett (No 2)

[325 VIC 63] Harris v Bennett (No 2) -- Supreme Court, Vic -- McDonald J -- 9 May 2002 [2002] VSC 163, BC200202244, 8 pages
Costs -- Application for costs -- Infant plaintiff represented by litigation guardian -- Proceedings formerly dismissed were for provision out of estate -- Defendants executors -- Large estate -Litigation guardian impecunious -- Plaintiff child with special needs -- Appropriateness of reserving costs of dismissal-related actions to trial judge -- Whether departure from normal costs order warranted -- Whether infant plaintiff entitled to have costs taxed on solicitor and client basis -Defendants to pay infant plaintiff's costs, taxed on party and party basis Czerwinski v Syrena Royal Pty Ltd [2000] VSC 135; BC200002285; [2000] ACL Rep 325 VIC 109; Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; (1993) 118 ALR 248; (1993) 28 IPR 561, applied. (VIC) Supreme Court (General Civil Procedure) Rules 1996 rr 63.31, 63.32.

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