FEDERAL COURT OF AUSTRALIA JUDGMENTS AND ORDERS – claims for restitution and damages relating to the same loss – orders made on appeal for restitution to be made by one of the parties - other parties had paid damages pursuant to primary judge's orders which were not stayed pending appeal – claimed that party subject to restitution order should recoup to the parties paying damages the amount by which the payments effectively discharged the obligation to make restitution – repayment of moneys paid pursuant to a judgment which is set aside on appeal PRACTICE AND PROCEDURE – INDEMNITY COSTS – indemnity costs sought on the basis of rejected Calderbank offers – relevance of conditional offer on court's discretion to order indemnity costs – relevance to discretion of alleged lack of merit in unsuccessful appeals Federal Court of Australia Act 1976 (Cth) ss 25 and 28(1) Duralla Pty Ltd v Plant (1984) 54 ALR 29 cited Petreski v Cargill (1987) 18 FCR 68 cited Government Insurance Office of New South Wales v Healy [No 2] (1991) 22 NSWLR 380 cited The Commonwealth of Australia v McCormack (1984) 155 CLR 273 cited Burke v Gillett [1996] 1 VR 196 cited Re Ryan; Ex Parte Ryan v Jupiter's Management Ltd (1992) 38 FCR 127 cited AMADIO PTY LTD AND ANOTHER v RUSSELL FRASER HENDERSON AND OTHERS VG 244, 245, 248, 249, 250 AND 252 OF 1996 JUDGES: NORTHROP, RYAN AND MERKEL JJ DATE: 28 AUGUST 1998 PLACE: MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA [general distribution] VICTORIA DISTRICT REGISTRY VG 244 of 1996 VG 245 of 1996 VG 248 of 1996 VG 249 of 1996 VG 250 of 1996 VG 252 of 1996 ON APPEAL FROM a judge of THE FEDERAL COURT OF AUSTRALIA VG 245 OF 1996 BETWEEN: amadio pty ltd and another aPPELLANTs AND: RUSSELL FRASER henderson and others RESPONDENTS vg 248 of 1996 between: huntley mCardle & glass and another appellants and: russell fraser henderson and others respondents VG 249 OF 1996 BETWEEN: DUNYACK PTY LTD (acn 005 001 632) (foRMERLY RICHARD ELLIS (VICTORIA) PTY LTD) APPELLANT AND: russell fraser HENDERSON AND OTHERS RESPONDENTS VG 250 OF 1996 BETWEEN: NEVETT FORD APPELLANT AND: russell fraser HENDERSON AND OTHERS RESPONDENTS vg 252 of 1996 BETWEEN: gray & winter and another appellants AND: russell fraser henderson and others respondents vg 244 of 1996 BETWEEN: sgio insurance limited AppELLANT AND: BPM pty ltd and OTHERS RespondentS JUDGES: northrop, ryan and merkel jj PLACE: MELBOURNE DATE: 28 AUGUST 1998 THE COURT MAKEs THE FOLLOWING ORDERS IN EACH OF THE APPEALS SET OUT HEREUNDER: No. VG 244 of 1996 1. Subject to the terms of this order the appeal be allowed. 2. Paragraph 23 of the orders appealed from and Schedule P of the said orders be set aside. 3. The cross claim by BPM Pty Ltd and others against SGIO Insurance Limited be dismissed with costs. 4. The cross appeal be dismissed with costs. AND THE COURT FURTHER ORDERS 5. The appeal of SGIO Insurance Limited against Bird Cameron Partners, William Ernest Balcam and Bird Cameron – Geelong (namely, BPM Pty Ltd, Peter Allan Landers and Andrew William Werzbowski) be dismissed. 6. The appeal of SGIO Insurance Limited against Bird Cameron – Ballarat be allowed. 7. Subject to paragraph 5 hereof, the appeal of SGIO Insurance Limited against BPM Pty Ltd be allowed. 8. The following declarations and orders be substituted for those in Schedule P of the order of the Honourable Justice Heerey made 2 April 1996. "A. DECLARE THAT: 1. In relation to the claims of Marican Pty Ltd, Ronald Frederick Trengove and Leonie Trengove ("the Bird Cameron - Geelong Applicants") the amount of the excess under the policy of insurance dated 4 December 1992 is $20,000 "costs inclusive". 2. The maximum sum insured under the policy of insurance is $10 million. B. ORDER THAT: 1. SGIO Insurance Limited (a) (i) indemnify Bird Cameron – Geelong (namely, BPM Pty Ltd, Peter Allan Landers and Andrew William Werzbowski) in respect of any liability, pursuant to any order or judgment made against it, him or them in these proceedings, to the Bird Cameron - Geelong Applicants whether for damages, costs or interest; (ii) pay the amount of any such order or judgment and the interest accrued and accruing thereon to the Bird Cameron Geelong applicants; (b) pay on an indemnity basis, so much of the costs as exceed $20,000 of Bird Cameron – Geelong (namely, BPM Pty Ltd, Peter Allan Landers and Andrew William Werzbowski) incurred in defending the Bird Cameron - Geelong Applicants' claims and any cross-claim (arising out of the claims made by the Bird Cameron – Geelong Applicants) made in this proceeding by or against it, him or them other than the cross-claim against SGIO Insurance Limited; provided that any liability of SGIO Insurance Limited pursuant to this order shall not exceed the sum of $10 million plus costs, charges and expenses as provided for in the policy of insurance. 2. Save for any costs that arise from the claim for indemnity by Bird Cameron Partners and William Ernest Balcam and from the claims for indemnity in respect of the claims of the Bird Cameron - Geelong Applicants, BPM Pty Ltd and Bird Cameron – Ballarat pay to SGIO Insurance Limited the taxed costs of SGIO Insurance Limited incurred in defending the cross-claim brought against them." 9. SGIO Insurance Limited shall indemnify Bird Cameron Partners, William Ernest Balcam and Bird Cameron – Geelong (namely, BPM Pty Ltd, Peter Allan Landers and Andrew William Werzbowski) for any liability any of them may have under any order for costs made in the appeals heard together with this appeal, ie. VG 245, 248, 249, 250, and 252 of 1996. 10. The cross-appeal by BPM Pty Ltd and Bird Cameron – Ballarat be dismissed. 11. BPM Pty Ltd and Bird Cameron – Ballarat pay the taxed costs of SGIO Insurance Limited of the appeal and cross-appeal. AND THE COURT DIRECTS THAT: 12. The claim of the State Government Insurance Office Limited for repayment of moneys paid pursuant to paragraph B 1 (a) (ii) of Schedule P of the trial Judge's order be remitted for hearing before a single judge of the Court. No. VG 245 of 1996 A. "the Trial Orders" mean the Orders of the trial Judge made on 2 April 1996 (as amended in accordance with the Order of the trial Judge made on 22 April 1996). B. "the Investor Respondents" means the Respondents named in Appendix A annexed to these Orders. C. "the Bird Cameron Cross-Appellants" means BPM Pty Ltd, Bird Cameron Partners, Bird Cameron – Ballarat, Bird Cameron – Geelong, John Albert Mayne, Daryl Lynch, Joseph Korczak, Peter Alan Landers, William Ernest Balcam and each of them. 1. The appeal of Amadio Pty Ltd be allowed in part. 2. The Trial Orders be varied in accordance with Appendix B hereto. 3. The Appeal and the Cross Appeal be otherwise dismissed. 4. Each of: (a) the Appellants (Amadio Pty Ltd and Hudson Conway Ltd); (b) the Bird Cameron Cross Appellants; (c) the Appellant in Appeal No. VG 249 of 1996 (Dunyack Pty Ltd, formerly Richard Ellis (Victoria) Pty Ltd); (d) the Appellant in Appeal No. VG 250 of 1996 (Nevett Ford); (e) the Appellants in Appeal No. VG 252 of 1996 (Gray & Winter and James William Gray); pay 80% of the Investor Respondents' taxed costs of Appeals and Cross Appeals in proceedings No. VG 245, 248, 249, 250 and 252 of 1996. 5. The Appellants (Amadio Pty Ltd and Hudson Conway Ltd) pay the taxed costs of Michael Terrey of this Appeal and Cross Appeal. 6. The persons liable for costs pursuant to paragraph 4 hereof may recover contribution from each other in respect of their liability for those costs in the following proportions: (a) Amadio Pty Ltd and Hudson Conway Ltd – 52.3% (b) Dunyack Pty Ltd (formerly Richard Ellis (Victoria) Pty Ltd – 19% (c) Gray & Winter and James William Gray – 9.5% (d) Nevett Ford – 14.4% (e) The Bird Cameron Cross Appellants – 4.8%. 7. Each of: (a) the Appellants (Amadio Pty Ltd and Hudson Conway Ltd); (b) the Bird Cameron Cross Appellants; (c) the Appellant in Appeal No. VG 249 of 1996 (Dunyack Pty Ltd, formerly Richard Ellis (Victoria) Pty Ltd); (d) the Appellant in Appeal No. VG 250 of 1996 (Nevett Ford); (e) the Appellants in Appeal No. VG 252 of 1996 (Gray & Winter and James William Gray); (f) the Appellants in Appeal No. VG 248 of 1996 (Huntley McArdle & Glass Pty Ltd and Robert Hugh Glass) pay the taxed costs of Metzke & Allan of the Appeal and Cross Appeals in proceedings No. VG 245, 248, 249, 250 and 252 of 1996. 8. The persons liable for costs pursuant to paragraph 7 hereof may recover contribution from each other in respect of their liability for those costs in equal proportions. 9. (a) Order that, to the extent necessary, all other parties to the Appeal and Cross Appeals have leave, nunc pro tunc, to proceed against Michael Frederick Winter (a bankrupt). (b) Order that James William Gray be appointed to represent the estate of Garrick Lewis Gray (deceased) for the purpose of this Appeal. (c) Declare that in these Orders, any judgment against Gray & Winter includes judgment against the following persons: (i) James William Gray solely in his capacity as representative of the estate of Garrick Lewis Gray (deceased); (ii) Michael Frederick Winter (a bankrupt) 10. Declare that in these Orders any judgment against Nevett Ford includes judgment against the following persons: (a) Peter Russell Wilson (b) Francis Joseph Vagg (c) Arthur Paul Stephens (d) David Francis Stratton (e) Phillip Harry Brewin (f) Andrew Thomas Lumb (g) Peter Gilcrest Lumb (h) David Keith Llewellyn (i) Gavin Joseph Burns. 11. Declare that in these Orders any judgment against Bird Cameron – Ballarat includes judgment against the following persons: (a) BPM Pty Ltd (b) John Albert Mayne (c) Terrence Robert Rodoni (d) Phillip Brian Auer. 12. Declare that in these orders any judgment against Bird Cameron – Geelong includes judgment against the following persons: (a) BPM Pty Ltd (b) Peter Alan Landers (c) Andrew William Werzbowzki. 13. The application for a stay of the operation of the declaration and orders contained in paragraph 1 of the trial orders be referred to the single judge of this Court who will be hearing matters arising from Appeal VG 244 of 1998. APPENDIX A-INVESTOR RESPONDENTS RUSSELL FRASER HENDERSON First Respondent NOELENE MARIE HENDERSON Second Respondent HENRY ARNOLD GORDON Third Respondent PHYLLIS CAROLINE GORDON Fourth Respondent BACTBUILD PTY LTD (ACN 006 146 247) Fifth Respondent LONIHIRE PTY LTD (ACN 006 152 254) Sixth Respondent HAROLD FRANCES DEAN Seventh Respondent KATHLEEN MARY DEAN Eighth Respondent W S & H F DEAN PTY LTD (ACN 005 263 696) Ninth Respondent WILLIAM STANLEY DEAN Tenth Respondent NANCY JEAN DEAN Eleventh Respondent PERPETUAL TRUSTEES TASMANIA LTD (AS REPRESENTATIVE OF THE ESTATE OF MAX JOSEPH GREEN) Twelfth Respondent ROBIN MONDS GREEN Thirteenth Respondent BRIAN JOSEPH GREEN Fourteenth Respondent GINA KATHLEEN GREEN Fifteenth Respondent BARBARA LEE Sixteenth Respondent ASSKA PTY LTD (ACN 006 375 524) Seventeenth Respondent GARKAT PTY LTD (ACN 006 342 258) Eighteenth Respondent GARY LESLIE TURNER Nineteenth Respondent DARYL WAYNE TURNER Twentieth Respondent TURNBROSS PTY LTD (ACN 005 407 349) Twenty-first Respondent LEO FRANCIS HAARSMA Twenty-second Respondent JANETTE ANNE HAARSMA Twenty-third Respondent MATTHEW PETER HAARSMA Twenty-fourth Respondent DICK JACOBUS SCHOEMAN Twenty-fifth Respondent JUDITH SCHOEMAN Twenty-sixth Respondent JOHN PAUL GERRARD ARTHURSON Twenty seventh Respondent SUZANNE LOVITT ARTHURSON Twenty-eighth Respondent ACKINA PTY LTD (ACN 009 940 007) Twenty-ninth Respondent IVAN DOUGLAS PHELPS Thirtieth Respondent GAVAN PHELPS Thirty-first Respondent CLIFFORD PHELPS Thirty-second Respondent THOMAS TRANTER Thirty-third Respondent PAULINE TRANTER Thirty-fourth Respondent MARICAN PTY LTD (ACN 006 880 244) Thirty-fifth Respondent RONALD FREDERICK TRENGOVE Thirty-sixth Respondent LEONIE TRENGOVE Thirty-seventh Respondent BRETDAR PTY LTD (ACN 006 060 813) Thirty-eighth Respondent FIFTH VARONA PTY LTD (ACN 005 298 537) Thirty-ninth Respondent PHILLIP JOHN WALKER Fortieth Respondent JUDITH ANNE WALKER Forty-first Respondent APPENDIX B Variation of Trial Orders The trial orders be amended as follows: 1. In Schedule B by adding at the end of paragraph 1 the following:- "provided that to the extent that any part of such sum is paid as damages pursuant to paragraph 3 hereof which Bactbuild Pty Ltd is entitled to retain, the amount of the restitution is to be reduced by the amount of the sum paid as damages." 2. In Schedule B by adding at the end of paragraph 2 the following:- "provided that to the extent that any part of such sum is paid as damages pursuant to paragraph 4 hereof which Lonihire Pty Ltd is entitled to retain is to be reduced by the amount of the sum paid as damages." 3. In Schedule B by deleting paragraph 3 (i) thereof and adding after paragraph 3 the following:- "3A. Judgment for Bactbuild Pty Ltd for damages in the amount of $112,562 plus interest in the sum of $36,582 against Amadio Pty Ltd. 4. In Schedule B by adding after paragraph 4 the following:- "4A. Judgment for Lonihire Pty Ltd for damages in the amount of: $112,562 plus interest in the sum of $36,582 against Amadio Pty Ltd". 5. In Schedule B by adding before the words "the debtors" in paragraphs 7 and 8 the words "Amadio Pty Ltd and". 6. In Schedule C by adding at the end of paragraph 1 the following:- "provided that to the extent that any part of such sum is paid as damages pursuant to paragraph 2 hereof which Garkat Pty Ltd is entitled to retain, the amount of the restitution is to be reduced by the amount of the sum paid as damages." 7. In Schedule C by deleting paragraph 2 (i) thereof and adding after paragraph 2 the following: "2A. Judgment for Garkat Pty Ltd for damages in the amount of $61,826 plus interest in the sum of $20,093 against Amadio Pty Ltd" 8. In Schedule C by adding before the words "the debtors" in paragraphs 5 and 6 the words "Amadio Pty Ltd and". 9. In Schedule D by adding at the end of paragraph 1 the following:- "provided that to the extent that any part of such sum is paid as damages pursuant to paragraph 2 hereof which Henry Arnold Gordon is entitled to retain, the amount of the restitution is to be reduced by the amount of the sum paid as damages." 10. In Schedule D by deleting paragraph 2(i) thereof and adding after paragraph 2 the following:- "2A. Judgment for Henry Arnold Gordon for damages in the amounts of $30,988 plus interest in the sum of $10,071 against Amadio Pty Ltd." 11. In Schedule D by adding before the words "the debtors" in paragraphs 5 and 6 the words "Amadio Pty Ltd and". 12. In Schedule E by adding at the end of paragraph 1 the following:- "provided that to the extent that any part of such sum is paid as damages pursuant to paragraph 2 hereof which Russell Fraser Henderson is entitled to retain, the amount of the restitution is to be reduced by the amount of the sum paid as damages." 13. In Schedule F by adding at the end of paragraph 1 the following:- "provided that to the extent that any part of such sum is paid as damages pursuant to paragraph 2 hereof which Perpetual Trustees of Tasmania Limited is entitled to retain, the amount of the restitution is to be reduced by the amount of the sum paid as damages." 14. In Schedule G by adding at the end of paragraph 1 the following:- "provided that to the extent that any part of such sum is paid as damages pursuant to paragraph 2 hereof which Barbara Lee is entitled to retain, the amount of the restitution is to be reduced by the amount of the sum paid as damages." 15. In Schedule H by adding at the end of paragraph 1 the following:- "provided that to the extent that any part of such sum is paid as damages pursuant to paragraph 2 hereof which Leo Francis Haarsma is entitled to retain, the amount of the restitution is to be reduced by the amount of the sum paid as damages." 16. In Schedule I by adding at the end of paragraph 1 the following:- "provided that to the extent that any part of such sum is paid as damages pursuant to paragraph 2 hereof which Dick Jacobus Schoeman and Judith Schoeman are entitled to retain, the amount of the restitution is to be reduced by the amount of the sum paid as damages." 17. In Schedule J by adding at the end of paragraph 1 the following:- "provided that to the extent that any part of such sum is paid as damages pursuant to paragraph 2 hereof which John Paul Gerrard Arthurson and Suzanne Lovitt Arthurson are entitled to retain, the amount of the restitution is to be reduced by the amount of the sum paid as damages." 18. In Schedule K by adding at the end of paragraph 1 the following:- "provided that to the extent that any part of such sum is paid as damages pursuant to paragraph 2 hereof which Ackina Pty Ltd is entitled to retain, the amount of the restitution is to be reduced by the amount of the sum paid as damages." 19. In Schedule L by adding at the end of paragraph 1 the following:- "provided that to the extent that any part of such sum is paid as damages pursuant to paragraph 2 hereof which Thomas Tranter and Pauline Tranter are entitled to retain, the amount of the restitution is to be reduced by the amount of the sum paid as damages." 20. In Schedule M by adding at the end of paragraph 1 the following:- "provided that to the extent that any part of such sum is paid as damages pursuant to paragraph 2 hereof which Marican Pty Ltd is entitled to retain, the amount of the restitution is to be reduced by the amount of the sum paid as damages." No. VG 248 of 1996 A. "the Trial Orders" mean the Orders of the trial Judge made on 2 April 1996 (as amended in accordance with the Order of the trial Judge made on 22 April 1996). B. "the Bird Cameron Cross Appellants" means BPM Pty Ltd, Bird Cameron Partners, Bird Cameron – Ballarat, Bird Cameron – Geelong, John Albert Mayne, Daryl Lynch, Joseph Korczak, Peter Alan Landers, William Ernest Balcam and each of them. 1. The appeal of Robert Hugh Glass be allowed in part. 2. The Trial Orders be varied as follows: (a) by inserting the following paragraph: "21A. Judgment for Robert Hugh Glass against Amadio Pty Ltd for restitution in the sum of $45,507 plus interest in the sum of $14,806." (b) in paragraph 22 thereof, by inserting after the words "in paragraph 17", the words "21A". 3. The Appeal be otherwise dismissed. 4. Each of: (a) the Appellants (Huntley McArdle & Glass Pty Ltd and Robert Hugh Glass); (b) the Appellants in Appeal No. VG 245 of 1996 (Amadio Pty Ltd and Hudson Conway Ltd); (c) the Cross Appellants in Appeal No. VG 245 of 1996 (the Bird Cameron Cross Appellants); (d) the Appellant in Appeal No. VG 249 of 1996 (Dunyack Pty Ltd formerly Richard Ellis (Victoria) Pty Ltd); (e) the Appellant in Appeal No. VG 250 of 1996 (Nevett Ford); (f) the Appellants in Appeal No. VG 252 of 1996 (Gray & Winter and James William Gray) pay the taxed costs of Metzke & Allan of the Appeals and Cross Appeals in proceedings No. VG 245, 248, 249, 250 and 252 of 1996. 5. The persons liable for costs pursuant to paragraph 4 hereof may recover contribution from each other in respect of their liability for those costs in equal proportions. 6. (a) Order that, to the extent necessary, all other parties to the Appeal and Cross Appeals have leave, nunc pro tunc, to proceed against Michael Frederick Winter (a bankrupt). (b) Order that James William Gray be appointed to represent the estate of Garrick Lewis Gray (deceased) for the purpose of this Appeal. (c) Declare that in these Orders, any judgment against Gray & Winter includes judgment against the following persons: (i) James William Gray solely in his capacity as representative of the estate of Garrick Lewis Gray (deceased). (ii) Michael Frederick Winter (a bankrupt). 7. Declare that in these Orders any judgment against Nevett Ford includes judgment against the following persons: (a) Peter Russell Wilson (b) Francis Joseph Vagg (c) Arthur Paul Stephens (d) David Francis Stratton (e) Phillip Harry Brewin (f) Andrew Thomas Lumb (g) Peter Gilcrest Lumb (h) David Keith Llewellyn (i) Gavin Joseph Burns. 8. Declare that in these Orders any judgment against Bird Cameron – Ballarat includes judgment against the following persons: (a) BPM Pty Ltd (b) John Albert Mayne (c) Terrence Robert Rodoni (d) Phillip Brian Auer. 9. Declare that in these Orders any judgment against Bird Cameron – Geelong includes judgment against the following persons: (a) BPM Pty Ltd (b) Peter Alan Landers (c) Andrew William Werzbowzki. No. VG 249 of 1996 A. "the Trial Orders" mean the Orders of the trial Judge made on 2 April 1996 (as amended in accordance with the Order of the trial Judge made on 22 April 1996). B. "the Investor Respondents" means the Respondents named in Appendix A annexed to these orders. C. "the Bird Cameron Cross Appellants" means BPM Pty Ltd, Bird Cameron Partners, Bird Cameron – Ballarat, Bird Cameron – Geelong, John Albert Mayne, Daryl Lynch, Joseph Korczak, Peter Alan Landers, William Ernest Balcam and each of them. 1. The Appeal and Cross Appeal be dismissed. 2. Each of: (a) the Appellant (Dunyack Pty Ltd, formerly Richard Ellis (Victoria) Pty Ltd; (b) the Appellants in Appeal No. VG 245 of 1996 (Amadio Pty Ltd and Hudson Conway Ltd); (c) the Cross Appellants in Appeal No. VG 245 of 1996 (the Bird Cameron Cross Appellants); (d) the Appellant in Appeal No. VG 250 of 1996 (Nevett Ford); (e) the Appellants in Appeal No. VG 252 of 1996 (Gray & Winter and James William Gray) pay 80% of the Investor Respondents' taxed costs of the Appeals and Cross Appeals in proceedings No. VG 245, 248, 249, 250 and 252 of 1996. 3. The persons liable for costs pursuant to paragraph 2 hereof may recover contribution from each other in respect of their liability for those costs in the following proportions: (a) Amadio Pty Ltd and Hudson Conway Ltd – 52.3% (b) Dunyack Pty Ltd (formerly Richard Ellis (Victoria) Pty Ltd) – 19% (c) Gray & Winter and James William Gray – 9.5% (d) Nevett Ford – 14.4% (e) The Bird Cameron Cross Appellants – 4.8% 4. Each of: (a) the Appellant (Dunyack Pty Ltd, formerly Richard Ellis (Victoria) Pty Ltd); (b) the Appellants in appeal No. VG 245 of 1996 (Amadio Pty Ltd and Hudson Conway Ltd); (c) the Cross appellants in Appeal No. VG 245 of 1996 (the Bird Cameron Cross Appellants); (d) the Appellant in Appeal No. VG 250 of 1996 (Nevett Ford); (e) the Appellants in Appeal No. VG 252 of 1996 (Gray & Winter and James William Gray); (f) the Appellants in Appeal No. VG 248 of 1996 (Huntley McArdle & Glass Pty Ltd and Robert Hugh Glass) pay the taxed costs of Metzke & Allan of the Appeals and Cross Appeals in proceedings Nos. VG 245, 248, 249, 250 and 252 of 1996. 5. The persons liable for costs pursuant to paragraph 4 hereof may recover contribution from each other in respect of their liability for those costs in equal proportions. 6. (a) Order that, to the extent necessary, all other parties to the Appeal and Cross Appeals have leave, nunc pro tunc, to proceed against Michael Frederick Winter (a bankrupt). (b) Order that James William Gray be appointed to represent the estate of Garrick Lewis Gray (deceased) for the purpose of this Appeal. (c) Declare that in these Orders, any judgment against Gray & Winter includes judgment against the following persons: (i) James William Gray solely in his capacity as representative of the estate of Garrick Lewis Gray (deceased). (ii) Michael Frederick Winter (a bankrupt). 7. Declare that in these Orders any judgment against Nevett Ford includes judgment against the following persons: (a) Peter Russell Wilson (b) Francis Joseph Vagg (c) Arthur Paul Stephens (d) David Francis Stratton (e) Phillip Harry Brewin (f) Andrew Thomas Lumb (g) Peter Gilcrest Lumb (h) David Keith Llewellyn (i) Gavin Joseph Burns. 8. Declare that in these Orders any judgment against Bird Cameron – Ballarat includes judgment against the following persons: (a) BPM Pty Ltd (b) John Albert Mayne (c) Terrence Robert Rodoni (d) Phillip Brian Auer. 9. Declare that in these Orders any judgment against Bird Cameron – Geelong includes judgment against the following persons: (a) BPM Pty Ltd (b) Peter Alan Landers (c) Andrew William Werzbowzki. No. VG 250 of 1996 A. "the Trial Orders" mean the Orders of the trial Judge made on 2 April 1996 (as amended in accordance with the Order of the trial Judge made on 22 April 1996). B. "the Investor Respondents" means the Respondents named in Appendix A annexed to these Orders. C. "the Bird Cameron Cross Appellants" means BPM Pty Ltd, Bird Cameron Partners, Bird Cameron – Ballarat, Bird Cameron – Geelong, John Albert Mayne, Daryl Lynch, Joseph Korczak, Peter Alan Landers, William Ernest Balcam and each of them. 1. The Appeal and Cross Appeal be dismissed. 2. Each of: (a) the Appellant (Nevett Ford); (b) the Appellants in Appeal No. VG 245 of 1996 (Amadio Pty Ltd and Hudson Conway Ltd); (c) the Cross Appellants in Appeal No. VG 245 of 1996 (the Bird Cameron Cross Appellants); (d) the Appellant in Appeal No. VG 249 of 1996 (Dunyack Pty Ltd (formerly Richard Ellis (Victoria) Pty Ltd); (e) the Appellants in Appeal No. VG 252 of 1996 (Gray & Winter and James William Gray) pay 80% of the Investor Respondents' taxed costs of the Appeals and Cross Appeals in proceedings No. VG 245, 248, 249, 250 and 252 of 1996. 3. The persons liable for costs pursuant to paragraph 2 hereof may recover contribution from each other in respect of their liability for those costs in the following proportions: (a) Amadio Pty Ltd and Hudson Conway Ltd – 52.3% (b) Dunyack Pty Ltd (formerly Richard Ellis (Victoria) Pty Ltd) – 19% (c) Gray & Winter and James William Gray – 9.5% (d) Nevett Ford – 14.4% (e) The Bird Cameron Cross appellants – 4.8% 4. Each of: (a) the Appellant (Nevett Ford); (b) the Appellants in Appeal No. VG 245 of 1996 (Amadio Pty Ltd and Hudson Conway Ltd); (c) the Cross Appellants in Appeal No. VG 245 of 1995 (the Bird Cameron Cross Appellants); (d) the Appellant in Appeal No. VG 249 of 1996 (Dunyack Pty Ltd (formerly Richard Ellis (Victoria) Pty Ltd); (e) the Appellants in Appeal No. VG 252 of 1996 (Gray & Winter and James William Gray); (f) the Appellants in Appeal No. VG 248 of 1996 (Huntley McArdle & Glass Pty Ltd and Robert Hugh Glass) pay the taxed costs of Metzke & Allan of the Appeals and Cross Appeals in proceedings No. VG 245, 248, 249, 250 and 252 of 1996. 5. The persons liable for costs pursuant to paragraph 4 hereof may recover contribution from each other in respect of their liability for those costs in equal proportions. 6. (a) Order that, to the extent necessary, all other parties to the Appeal and Cross Appeals have leave, nunc pro tunc, to proceed against Michael Frederick Winter (a bankrupt). (b) Order that James William Gray be appointed to represent the estate of Garrick Lewis Gray (deceased) for the purpose of this Appeal. (c) Declare that in these Orders, any judgment against Gray & Winter includes judgment against the following persons: (i) James William Gray solely in his capacity as representative of the estate of Garrick Lewis Gray (deceased). (ii) Michael Frederick Winter (a bankrupt). 7. Declare that in these Orders any judgment against Nevett Ford includes judgment against the following persons: (a) Peter Russell Wilson (b) Francis Joseph Vagg (c) Arthur Paul Stephens (d) David Francis Stratton (e) Phillip Harry Brewin (f) Andrew Thomas Lumb (g) Peter Gilcrest Lumb (h) David Keith Llewellyn (i) Gavin Joseph Burns. 8. Declare that in these Orders any judgment against Bird Cameron – Ballarat includes judgment against the following persons: (a) BPM Pty Ltd (b) John Albert Mayne (c) Terrence Robert Rodoni (d) Phillip Brian Auer. 9. Declare that in these Orders any Judgment against Bird Cameron – Geelong includes judgment against the following persons: (a) BPM Pty Ltd (b) Peter Alan Landers (c) Andrew William Werzbowzki. No. VG 252 of 1996 A. "the Trial Orders" mean the Orders of the trial Judge made on 2 April 1996 (as amended in accordance with the Order of the trial Judge made on 22 April 1996). B. "the Investor Respondents" means the Respondents named in Appendix A annexed to these Orders. C. "the Bird Cameron Cross Appellants" means BPM Pty Ltd, Bird Cameron Partners, Bird Cameron – Ballarat, Bird Cameron – Geelong, John Albert Mayne, Daryl Lynch, Joseph Korczak, Peter Alan Landers, William Ernest Balcam and each of them. 1. The Appeal and Cross Appeal be dismissed. 2. Each of: (a) the Appellants (Gray & Winter and James William Gray); (b) the Appellants in Appeal No. VG 245 of 1996 (Amadio Pty Ltd and Hudson Conway Ltd); (c) the Cross Appellants in Appeal No. VG 245 of 1996 (the Bird Cameron Cross Appellants); (d) the Appellant in Appeal No. VG 249 of 1996 (Dunyack Pty Ltd (formerly Richard Ellis (Victoria) Pty Ltd); (e) the Appellants in Appeal No. VG 250 of 1996 (Nevett Ford) pay 80% of the Investor Respondents' taxed costs of the Appeals and Cross Appeals in proceedings No. VG 245, 248, 249, 250 and 252 of 1996. 3. The persons liable for costs pursuant to paragraph 2 hereof may recover contribution from each other in respect of their liability for those costs in the following proportions: (a) Amadio Pty Ltd and Hudson Conway Ltd – 52.3% (b) Dunyack Pty Ltd (formerly Richard Ellis (Victoria) Pty Ltd) – 19% (c) Gray & Winter and James William Gray – 9.5% (d) Nevett Ford – 14.4% (e) The Bird Cameron Cross Appellants – 4.8% 4. Each of: (a) the Appellant (Gray & Winter and James William Gray); (b) the Appellants in Appeal No. VG 245 of 1996 (Amadio Pty Ltd and Hudson Conway Ltd); (c) the Cross Appellants in Appeal No. VG 245 of 1996 (the Bird Cameron Cross Appellants); (d) the Appellant in Appeal No. VG 249 of 1996 (Dunyack Pty Ltd (formerly Richard Ellis (Victoria) Pty Ltd); (e) the Appellants in Appeal No. VG 250 of 1996 (Nevett Ford); (f) the Appellants in Appeal No. VG 248 of 1996 (Huntley McArdle & Glass Pty Ltd and Robert Hugh Glass) pay the taxed costs of Metzke & Allan of the Appeals and Cross Appeals in proceedings Nos. VG 245, 248, 249, 250 and 252 of 1996. 5. The persons liable for costs pursuant to paragraph 4 hereof may recover contribution from each other in respect of their liability for those costs in equal proportions. 6. (a) Order that, to the extent necessary, all other parties to the Appeal and Cross Appeals have leave, nunc pro tunc, to proceed against Michael Frederick Winter (a bankrupt). (b) Order that James William Gray be appointed to represent the estate of Garrick Lewis Gray (deceased) for the purpose of this Appeal. (c) Declare that in these Orders, any judgment against Gray & Winter includes judgment against the following persons: (i) James William Gray solely in his capacity as representative of the estate of Garrick Lewis Gray (deceased). (ii) Michael Frederick Winter (a bankrupt). 7. Declare that in these Orders any judgment against Nevett Ford includes judgment against the following persons: (a) Peter Russell Wilson (b) Francis Joseph Vagg (c) Arthur Paul Stephens (d) David Francis Stratton (e) Phillip Harry Brewin (f) Andrew Thomas Lumb (g) Peter Gilcrest Lumb (h) David Keith Llewellyn (i) Gavin Joseph Burns. 8. Declare that in these Orders any judgment against Bird Cameron – Ballarat includes judgment against the following persons: (a) BPM Pty Ltd (b) John Albert Mayne (c) Terrence Robert Rodoni (d) Phillip Brian Auer. 9. Declare that in these Orders any judgment against Bird Cameron – Geelong includes judgment against the following persons: (a) BPM Pty Ltd (b) Peter Alan Landers (c) Andrew William Werzbowzki. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 244 of 1996 VG 245 of 1996 VG 248 of 1996 VG 249 of 1996 VG 250 of 1996 VG 252 of 1996 ON APPEAL FROM a judge of the FEDERAL COURT OF AUSTRALIA VG 245 OF 1996 BETWEEN: amadio pty ltd and another aPPELLANTs AND: russell fraser henderson and others RESPONDENTS vg 248 of 1996 between: huntley mCardle & glass and another appellants and: russell fraser henderson and others respondents VG 249 OF 1996 BETWEEN: DUNYACK PTY LTD (acn 005 001 632) (foRMERLY RICHARD ELLIS (VICTORIA) PTY LTD) APPELLANT AND: russell fraser HENDERSON AND OTHERS RESPONDENTS VG 250 OF 1996 BETWEEN: NEVETT FORD APPELLANT AND: russell fraser HENDERSON AND OTHERS RESPONDENTS vg 252 of 1996 BETWEEN: gray & winter and another appellants AND: russell fraser henderson and others respondents vg 244 of 1996 BETWEEN: sgio insurance limited AppELLANT AND: BPM pty ltd and OTHERS RespondentS JUDGES: northrop, ryan and merkel jj PLACE: MELBOURNE DATE: 28 AUGUST 1998 REASONS FOR JUDGMENT The Court Introduction On 14 July 1998 the Full Court handed down its reasons for judgment in these appeals and ordered that: · the parties file and exchange minutes of orders that give effect to the findings of the Full Court; · the parties file and exchange submissions in respect of any matter arising out of the reasons for judgment. In accordance with what we have referred to as the culture that appears to have developed in the present litigation of all points being taken, voluminous submissions have been filed by the various parties. Many of these submissions raise matters that should have been, but were not, addressed at the extensive hearing that has already taken place. To the extent that the parties have co-operated in agreeing upon the orders that give effect to the findings of the Full Court, those orders have been incorporated into the orders handed down today. These further reasons for judgment are confined to the matters of principle sought to be raised by the parties in their further submissions. We have sought to deal with the main submissions of the parties. However, in so far as some submissions are not dealt with expressly we indicate that we have not accepted those submissions as they are inconsistent with our earlier reasons for judgment or are devoid of any merit or principle to support them. In these reasons we use the defined terms employed in the earlier reasons for judgment. Indemnity Costs A number of applications have been made for indemnity costs in relation to the costs of the appeals. The applications broadly fall under two headings. The first relates to conditional Calderbank letters. The second is based on an alleged lack of merit in the appeals which were dismissed. The applicant investors rely upon a letter sent shortly after the filing of notices of appeal, in which their solicitors offered to accept the sum of $2 million plus costs to be taxed in settlement of their monetary claims. It was contended that under the orders of the trial Judge, which were upheld on appeal, an amount in excess of $2 million plus costs to be taxed was payable to the investors. Accordingly, so it is said, the investors are entitled to indemnity costs. In our reasons for judgment (at 154-155) we set out the general principles that govern the Court's discretion to make an order for indemnity costs when the circumstances of the case warrant the Court in departing from the usual course of ordering costs on a party and party basis. Applying those principles, we do not accept the submission made on behalf of the investors. As was apparent from our reasons for judgment the various appeals raised complex and interrelated issues of fact and law. The offer made on behalf of the investors was expressed to be conditional upon "all respondents agreeing to settle all matters in dispute and discontinuing all appeals". We made certain observations in our reasons for judgment (at 155) concerning conditional offers. In particular we observed that: · in some situations "a conditional offer may be less likely to attract the Court's discretion to order indemnity costs than others"; · much will depend on the reasonableness of the conduct of the party in refusing the offer. The investors' offer was not open to be accepted save by all respondent debtors. As far as those debtors were concerned, the interaction of issues was such that it would have been a matter of some difficulty for them to anticipate or determine the likely outcome of the various appeals. In particular, a matter of considerable difficulty throughout the case has been the potential effect on the damages claims of the prescribed interest and restitution claims. In such circumstances, the applicant investors' apparently simple monetary offer tends to conceal the complexity of the issues which required resolution between the respondent debtors before the offer could be accepted. Further, the primary burden of the loss suffered by the investors fell on Amadio as a result of the orders of the trial Judge in respect of the prescribed interest issues. We are of the view that Amadio acted reasonably in pursuing its challenge to the findings of the trial Judge on these issues on appeal. In all the circumstances we are not satisfied that the respondent debtors to whom the conditional offers were made acted unreasonably in not accepting the offers. Further, it is relevant that because many of the issues pursued by the applicant investors in their cross appeals were unmeritorious we concluded that the applicant investors were only entitled to recover 80% of their costs of the appeals and cross-appeals. In all the circumstances of the case we decline to depart from the usual order that costs be taxed on a party and party basis. A number of other parties (including Terrey and Metzke & Allan) sought indemnity costs on the basis of the so called lack of merit in the appeals against orders made in favour of those parties. In our reasons for judgment (at 185-186) we observed that the ingenuity of many points taken on the appeals bore little relationship to their merit. That comment applied to points raised on the appeals and on the cross-appeals of the various parties, and was not confined to any particular party or side. In such circumstances we do not find the case by any of the parties for indemnity costs on ground of lack of merit to be persuasive. In all the circumstances we are not of the view that there are special or unusual features that would warrant the Court departing from the usual order that costs be taxed on a party and party basis in respect of the appeals and the cross appeals. Metzke & Allan's application for indemnity costs was based on a conditional Calderbank offer and alleged lack of merit. The submissions in support of that application do not, in our view, warrant a different approach resulting in an order that Metzke & Allan recover their costs on an indemnity basis. SGIO sought indemnity costs from Amadio and Hudson Conway, which were not parties to SGIO's appeal. We are of the view that SGIO has not put forward any proper basis for the making of such an order. Repayment of Damages (a) Payments by Richard Ellis, Nevett Ford and Hudson Conway/Amadio. The orders made for payment of damages in relation to the claims of the Deans, the Turners and Dr Gordon in Schedules B, C and D of the orders of the trial Judge were not stayed. As a consequence, damages were paid by Richard Ellis, Nevett Ford and Hudson Conway and Amadio. It is claimed that Amadio, which was liable to make restitutionary payments which overlap with the damages paid, should now make those payments to the parties paying the damages to the extent to which the damages effectively discharged Amadio's liability to make the restitutionary payments. No authority was cited which supported the claim. In our reasons for judgment (at 73-75 and 157-165) we discussed the interaction between the orders for restitution and for damages. In summary: · the restitutionary payments were essentially the excess of interest paid under the mortgage over rent received; · the damages exceeded the restitutionary payments as they included the quantum of the restitutionary payments and other outgoings paid by the investors such as commissions, stamp duty etc; · the total amount the investors could recover was limited to the sum of the amount of the damages and interest on those damages; · Amadio was not entitled to contribution from any of the respondent debtors in respect of the restitutionary payments; · the respondent debtors were liable for the amount of damages and interest awarded in each case but with rights of contribution as between those respondents in respect of damages. The outcome of the various appeals may, relevantly, be summarised as follows: · as a matter of principle the restitutionary payments are to be made upon re-transfer of the land and when so made are to be treated in reduction of the damages payable to the investors; · the trial Judge was correct in refusing to require that the damages claimed be paid first or that the quantum of the damages ordered to be paid be reduced by the quantum of the restitutionary payments; · the investors' remedies against the respondent debtors, other than Amadio, were cumulative and not alternative remedies; · the appeals by the various respondent debtors (other than Amadio) against the damages awarded against them were dismissed; · the appeals against his Honour's orders for contribution were also dismissed. The payments of damages made by Richard Ellis, Nevett Ford and Hudson Conway/Amadio were made pursuant to orders of the Court which were upheld on appeal. Thus the present case is not a case where an appellate court has overturned, varied or set aside orders pursuant to which a payment was made. Rather, judgment debtors have paid the judgment debts payable pursuant to orders of the Court which have not been interfered with on appeal. The respondent debtors cite no authority that supports their claim for recoupment of the amounts paid by them in accordance with a valid and binding judgment that was not overturned on appeal. In our view they have no claim for recoupment from the investors of the amounts paid. However, it is argued that the restitutionary payments were required to be made before the damages were recovered with the consequence that in so far as any damages have been paid then they ought to be recouped from the party (not being the party to whom damages were ordered to be paid) that has benefited from the payment, being Amadio. In our view the argument has no merit. First, we did not conclude that the restitutionary payments were required to be made prior to the payment of damages. Indeed we found that the restitutionary and damages claims were cumulative and not alternative claims. Although the restitutionary payments were to be made upon the re-transfer of the land and, when so made, were to be treated as payments in reduction of the damages payable to the applicants there was no finding that the restitutionary payments were to be made first in point of time. Although the investors were not to recover more than the damages awarded no orders were made as to the order in which moneys were to be recovered from various respondents. A necessary consequence of the payment of damages is that the restitutionary entitlements are reduced accordingly. Of course the corollary is also true namely, that it is a necessary consequence of making the restitutionary payments that damages are reduced accordingly. However, his Honour's orders made no provision for the problem that must arise if damages are recovered before restitution has been effected. Once the investors have received, by way of damages, an amount which has also been ordered to be paid by way of restitution it must follow that they no longer have an equitable entitlement to restitution in respect of those amounts. Accordingly, upon such recovery of damages, Amadio was no longer obliged to restore the investors to the position in which they otherwise would have been as the position has, to the extent of the recovery of damages, already been restored. However, it is appropriate to vary the orders made by the trial Judge as to sums awarded in respect of the restitutionary payments so that they provide that to the extent that such sums are paid as damages which the investors are entitled to retain, the amounts of the restitutionary payments are to be reduced. The variation is appropriate as it provides for a matter that ought to have been provided for in the original orders of the trial Judge. Whilst we find that there is no entitlement to contribution from Amadio in respect of the damages paid, we would add that if, and to the extent that, the Court has any discretion to order the recoupment of the damages paid (whether by way of repayment by the investors or by way of contribution from Amadio) the Court would decline to exercise that discretion in the present case. It is unnecessary to detail the reasons for that view other than to say that the damages awarded result from the respondent debtors having been held liable in respect of their wrongdoing. We see no reason why they should be relieved, directly or indirectly, from that liability which has been upheld on appeal. Put another way, we are not satisfied that it is just for the respondent debtors to recover from the investors or from Amadio any of the damages paid pursuant to the orders of the trial Judge. We do not see any injustice in requiring the respondent debtors to pay the damages payable as a result of their wrongdoing, with a right of contribution from the other respondent debtors including Amadio and Hudson Conway in respect of the amount paid. Accordingly, we refuse the orders sought by the respondent debtors in respect of the amounts ordered by the trial Judge to be paid by them in respect of the claims of the Deans, the Turners and Dr Gordon. (b) Payments for or on behalf of Bird Cameron parties Certain payments were made by SGIO to the applicant investors pursuant to the orders of the primary Judge in discharge of SGIO's obligation to indemnify BPM Pty Ltd, Bird Cameron – Ballarat and Bird Cameron – Geelong in respect of the claims of certain investors and Metzke & Allan. The payments were made in respect of the liability imposed on a Bird Cameron entity to pay damages under para 2 of each of Schedules E, H, I, J, K, L and M. Putting to one side for the moment the rights of SGIO in respect of the payments, it is clear that the Bird Cameron parties stand in the same position as Richard Ellis, Nevett Ford and Hudson Conway/Amadio in respect of the damages paid. That position is that damages have been paid under a valid judgment that has not been set aside or interfered with on appeal. Accordingly, we do not accede to the application by the Bird Cameron entities for orders reducing the damages payable or recoupment of the damages paid. A quite different situation arises in respect of SGIO's claims in respect of the payments but that is dealt with later in these reasons. We add that we have rejected the applications in respect of damages paid on the merits of those applications. Accordingly, it has not been necessary to consider whether the Court has jurisdiction to make orders in the exercise of its appellate powers in relation to payments made since the trial pursuant to orders that have not been varied on appeal: see Duralla Pty Ltd v Plant (1984) 54 ALR 29 and Petreski v Cargill (1987) 18 FCR 68 at 77-78 which consider the limitations on the Court's appellate jurisdiction in respect of matters occurring after judgment. Costs Certain parties asked for specific costs orders that differed from the orders we indicated were appropriate in respect of the appeals. Richard Ellis sought to be excused from paying Metzke & Allan's costs on the ground that their appeal related to only one of the issues raised by the parties. We indicated in our reasons for judgment that the complexity and interaction of the issues of fact and law in the various appeals were such that a broad brush approach to costs was appropriate. In our view, whilst it is true that Richard Ellis did not pursue its appeal against Metzke & Allan on all grounds, it does not follow that its appeal could not benefit from the grounds argued by other parties. In particular, although Richard Ellis's appeal related primarily to costs, the issues raised on the costs appeals were capable of being influenced by the issues argued on liability. In making orders requiring the relevant appellants to contribute in equal shares to the payment of those costs, we have struck an appropriate balance. In all the circumstances we are not prepared to approach Richard Ellis's liability for costs by way of a strict analysis of the issues which that appellant pursued. Terrey contended that he ought to be entitled to recover his costs of the unsuccessful appeal by Hudson Conway and Amadio in respect of the prescribed interest issues on the basis that costs should follow the event. Although Amadio/Hudson Conway succeeded in their argument that Terrey's liability was not restricted to his interest in the land, in the result Terrey succeeded in his defence of the prescribed interest issues and retained the benefit of the judgment of the trial Judge. In these circumstances Terrey is entitled to recover his costs of the Amadio/Hudson Conway appeal on a party and party basis. The Bird Cameron parties seek to be exempted from certain costs orders on the basis that they were not appellants save on the indemnity costs issue. We believe an apportionment based on time spent in the hearing of the appeals (4.8%) is a fair and just outcome. They also contended that notwithstanding their support for submissions made against Metzke & Allan they should not be liable for the costs of the appeal. We do not regard it as appropriate to reduce their liability for Metzke & Allan's costs. Certain of the Bird Cameron parties also sought an apportionment of costs as between themselves in respect of the SGIO proceeding and appeal. We consider that any apportionment is a matter for the Bird Cameron parties rather than the Court. They had common representation throughout and relied upon the same evidence and submissions. In these circumstances we do not consider an apportionment to be appropriate. SGIO Appeals The trial judge ordered that: · SGIO indemnify the Bird Cameron parties in respect of any liability pursuant to a judgment or order in the proceedings against those parties in favour of certain of the applicant investors ("the Bird Cameron applicants"), the Walkers and Metzke & Allan. · SGIO pay the amount of any such order or judgment and interest accruing to the Bird Cameron applicants, the Walkers and Metzke & Allan as the case may be. No stay was granted in respect of the orders and, as a consequence, SGIO paid $1,796,851.81 in discharge of its liability under those orders to the Bird Cameron applicants, the Walkers and Metzke & Allan. In its appeal SGIO has succeeded in setting aside certain of the orders of the trial Judge (other than in relation to Bird Cameron – Geelong) which required payments to be made as set out above and now seeks restitution by way of repayment to it of the amounts paid pursuant to those orders. There is a substantial body of authority that supports its claim for repayment: see Government Insurance Office of New South Wales v Healy [No 2] (1991) 22 NSWLR 380; The Commonwealth of Australia v McCormack (1984) 155 CLR 273; Burke v Gillett [1996] 1 VR 196 and Re Ryan; Ex Parte Ryan v Jupiter's Management Ltd (1992) 38 FCR 127. However, the orders for repayment were opposed. The grounds relied upon in opposing the orders included the following: · the payments were made for and on behalf of the Bird Cameron parties in discharge of the obligation to pay damages under Court orders which were not the subject of appeal; · the recipients of the payments were not parties to SGIO's proceeding or appeal; · the first occasion on which SGIO raised the issue of repayment was after the Full Court's decision; · if SGIO has an entitlement to repayment of the moneys paid it is an entitlement against the Bird Cameron parties and not the Bird Cameron applicants, the Walkers or Metzke & Allan; · in all the circumstances there has been no unjust enrichment and it is not just or equitable that SGIO claim and receive repayment of the moneys paid by it. Although the Court has ample power to order repayment of moneys paid pursuant to a judgment which is set aside on appeal it seems to us that the present case differs in an important respect from the cases relied upon by SGIO. In those cases the entitlement to restitution arose in respect of a payment by a judgment debtor to a judgment creditor made under a judgment which has later, on appeal, been set aside or determined to be in excess of the amount to which the judgment debtor was entitled. In the present case the judgment which has been set aside was obtained by the Bird Cameron parties against SGIO who respectively occupied positions analogous to those of judgment creditor and judgment debtor. The persons or entities to whom the payments were made, being the Bird Cameron applicants, the Walkers and Metzke & Allan, were not parties to SGIO's proceeding or appeal. As the grounds relied upon by the parties opposing restitution are arguable and will involve the adducing of evidence the summary procedure for judgment sought by SGIO is inappropriate and inconvenient. By virtue of s 25(1) of the Federal Court of Australia Act 1976 (Cth), the appellate jurisdiction of the Court is, subject to the other provisions of s 25, exercisable by a Full Court. The powers of the Full Court in the exercise of that jurisdiction are conferred by s 28(1) of the same Act and include a power to: "(a) affirm, reverse or vary the judgment appealed from; (b) give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order; (c) set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit; … (f) grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial;" In our view, it is open to this Court in the disposition of the appeal to make an order providing for remittal of SGIO's claims, which arise from the setting aside of the trial Judge's orders, for hearing before a single judge of the Court. The issue arising is whether SGIO is entitled to recover moneys paid under the orders of the trial Judge which we have set aside and, if so, from what persons, and in what amounts, such moneys should be recovered. Issues relating to interest are also likely to arise. In these circumstances, we consider that a remittal of the kind indicated is an appropriate exercise of the powers of this Full Court. Itwill enable the Court, constituted by the Judge conducting the hearing, completely and finally to determine a matter in controversy arising out of the original proceedings and to avoid a multiplicity of proceedings as contemplated by s 22 of the Federal Court of Australia Act 1976(Cth). Accordingly, we propose to direct that SGIO's claims for repayment of the moneys paid by it under the orders of the trial Judge be remitted for hearing before a single judge. The determination of those claims will affect the quantum of the restitutionary paymentswhich, by reason of the varied orders, are to be reduced if damages paid to the relevant investors are ordered to be repaid. Stay of Orders A stay has been sought by Amadio in respect of the restitution orders made by the trial Judge. The stay is sought pending an application to the High Court for special leave to appeal against the decision of the Full Court. This stay is not opposed by the applicant investors. A stay was granted by the trial Judge but that stay has resulted in certain difficulties arising from the interaction between the orders for restitution and damages. We are hesitant to grant a stay in respect of the restitution orders without the parties whose interests might be affected by the stay having an opportunity to consider their position. In the circumstances it seems inappropriate for the Full Court to grant a stay but it is appropriate that the application be made to a single judge of the Court. Conclusion The final orders that have been made by the Court today give effect to: · our earlier, and to these, reasons for judgment; and · the agreement between the parties as to the form of many of the orders that were appropriate to give effect to our earlier reasons for judgment. I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Northrop, Ryan and Merkel JJ Associate: Dated: