Ipex ITG Pty Ltd (in liq) v Victoria

[2014] VSCA 315

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Non-party costs orders
4. › Discretionary trust structures
5. › Director and beneficiary of trust controlling corporate plaintiff
6. › Whether non-party had sufficient connection with litigation
7. › Whether non-party must be shown to be 'the real party' or merely 'a real party'
8. › Whether primary judge took too restrictive view of principles
1. Practice and Procedure
2. › Costs
3. › Non-party costs orders
4. › Insolvent or impecunious plaintiff
5. › Whether inference should be drawn that $3 company was 'man of straw'
6. › Adverse inferences from failure to give evidence on matters within non-party's knowledge
1. Appeal
2. › Standard of appellate review
3. › Appeal from discretionary costs order
4. › House v The King principles
5. › Whether discretion miscarried through error of law or manifestly wrong view of facts

Quick Take

A non-party costs order may be made against a director who is also a beneficiary of a discretionary trust controlling the corporate plaintiff, where the company is a man of straw, the director was actively involved in the litigation, and the director would have had access to the fruits of the litigation. It is not necessary to show the non-party was 'the real party' — it suffices to show they were 'a real party' in critical and important respects. There is no onus of proof on the applicant for a non-party costs order, and adverse inferences may be drawn from the non-party's failure to give evidence on matters within their knowledge.