Marriner v Australian Super Developments Pty Ltd

[2016] VSCA 141

Victorian Court of Appeal

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Interrogate

Catchwords

1. Trusts
2. › Breach of trust
3. › Breach by solicitors transferring client's funds at direction of third party
4. › Whether third party knowingly induced or immediately procured breach
5. › Eaves v Hickson principle
6. › Circumstantial evidence of knowledge
1. Appeal
2. › Standard of appellate review
3. › Remitter trial on same evidence as original trial
4. › Whether remitter judge bound by original trial judge's findings
5. › Weight to be given to findings of judge who saw and heard witnesses
6. › Warren v Coombes considered
7. › Fox v Percy considered
1. Practice and Procedure
2. › Informal communications with court
3. › Email sent to original trial judge recording parties' agreed position
4. › Issues remitted to different judge following appeal
5. › Email not tendered at remitter trial
6. › Whether leave to reopen required to rely on email
7. › Dangers of informal communications with court
1. Costs
2. › Costs follow the event
3. › Whether issues-based costs order appropriate where successful party recovered small proportion of damages claimed
4. › Overlap between successful and unsuccessful claims

Quick Take

The Court held that that agreements reached informally with the court are properly incorporated into the formal record, particularly where there is a risk of remitter to a different judge; and should note that the overarching obligations under the Civil Procedure Act 2010 (Vic) may inform the assessment of whether rejection of a Calderbank offer was unreasonable.