KATION PTY LTD v LAMRU PTY LTD; LEWIS v NORTEX PTY LTD (In liq) (NO 2) [2009] NSWCA 428

New South Wales Court of Appeal

CITATION: KATION PTY LTD v LAMRU PTY LTD; LEWIS v NORTEX PTY LTD (In liq) (NO 2) [2009] NSWCA 428

HEARING DATE(S): On the papers

JUDGMENT DATE: 21 December 2009

JUDGMENT OF: Allsop P at 1; Hodgson JA at 2; Basten JA at 3

(1) Vary the amounts specified in the declaration, being order (7) made by the trial judge, as to the balances of the loan accounts, to the following amounts: Lamru - $1,197,673 Kation - $631,651. (2) Vary new order (14) (being order (7) made by this Court on 12 June 2009) to add "legal" before "costs". DECISION: (3) Grant leave to all parties to file and serve: (a) within 28 days of this judgment submissions with respect to the variation of orders (6) and (11) made on 12 June 2009 as to the costs of the trial and in this Court, and (b) submissions in reply within a further period of 14 days. (4) Direct that the orders made on 12 June 2009, other than orders (6) and (11), as varied by these orders be entered forthwith. (5) Otherwise dismiss the motions filed by each party after 12 June 2009, with no order as to the costs thereof.

CATCHWORDS: COSTS – scope of indemnification for costs – liquidator's costs indemnified by unsuccessful party – whether indemnity included both legal costs and general expenses and remuneration – point at which indemnity to take effect – certain assumptions underlying indemnification – whether appropriate to make further clarificatory orders - EQUITY – trusts and trustees – liability for breach of trust – accessorial liability – conduct of director of trustee – failure to apply accounting conventions in calculation of trust's profits – reduction of trustee's accounts for unauthorised legal expenses –whether inferences of dishonesty and fraud available - PROCEDURE – judgments and orders – amending, varying and setting aside – primary judgment delivered – order directing parties to apply for Court to address further issues – submissions re-agitating issue settled at trial and on appeal – whether terms and purpose of order complied with - PROCEDURE – judgments and orders – formulation of final orders – order directing parties to file submissions on proposed resolution of issue – parties each holding loan accounts with trustee – declaration of balance of loan accounts – proceedings on foot for over ten years – further outstanding proceedings – whether public interest justifies final declaration of balances