Alexander v Burne (No 4) - [2016] NSWSC 1479

Supreme Court

New South Wales

Medium Neutral Citation: Alexander v Burne (No 4) [2016] NSWSC 1479
Hearing dates: 14 October 2016
Decision date: 19 October 2016
Jurisdiction: Equity
Before: Stevenson J
Decision:
Plaintiff’s notice of motion of 23 June 2016 dismissed with costs

Catchwords: PRACTICE AND PROCEDURE – costs – separate question – costs order in favour of plaintiffs by decision by Court of Appeal – whether those costs should be payable forthwith; PRACTICE AND PROCEDURE – disclosure of documents before delivery of statements – whether exceptional circumstances shown for purposes of Practice Note SC Eq 11 – whether disclosure before statements would reduce likelihood of experts serving multiple reports
Legislation Cited: Practice Note SC Eq 11
Cases Cited: Ajkay v Hickey & Co Pty Ltd [2011] NSWSC 822 Alexander v Burne [2015] NSWSC 345
Alexander v Burne [2015] NSWCA 377
Fiduciary Limited v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; NSWSC 432
Pavlovic v Universal Music Australia Pty Ltd [2015] NSWCA 313
Pavlovic v Universal Music Australia Pty Ltd (No 2) [2016] NSWCA 31
RSA (Moorvale Station) Pty Ltd v VDM CCE Pty Ltd [2013] NSWSC 534
Solarus Projects v Vero Insurance (No 9) [2015] NSWSC 503
Universal Music Australia Pty Limited v Pavlovic [2015] NSWSC 791
Category: Procedural and other rulings
Parties: Melissa Alexander (First Plaintiff/Applicant)
MAA (ODB) Nominees Pty Limited (Second Plaintiff/Applicant)
Nicholas Edgar Burne (First Defendant/Respondent)
Eric William Passaris (Second Defendant/Respondent)
Phillip Wayne Rundle (Third Defendant/Respondent)
Rana Pala (Fourth Defendant/Respondent)
Robert Ian Peck (Fifth Defendant/Respondent)
Pat Donato (Sixth Defendant/Respondent)
John Phillip O’Donnell (Seventh Defendant/Respondent)
Paul Motta (Eighth Defendant/Respondent)
John Blight (Ninth Defendant/Respondent)
Grant Thornton Australia Limited (Tenth Defendant/Respondent)
Representation:
Counsel:
S Golledge (Plaintiffs/Applicants)
D F C Thomas with S Jayasuriya (First to Ninth Defendants/Respondents)
Solicitors:
Somerset Ryckmans (Plaintiffs/Applicants)
Moray & Agnew (First to Ninth Defendants/Respondents
Maddocks Lawyers (Tenth Defendant/Respondent)

File Number(s): SC 2013/171685

Judgment

The first plaintiff, Ms Melissa Alexander, was a partner of the accounting firm BDO Kendalls. Ms Alexander held her interest in that firm through units owned by the second plaintiff, MAA (ODB) Nominees Pty Ltd, in the BDO Trust.
On 1 May 2012, the business of BDO was sold to the tenth defendant, the accounting firm Grant Thornton.
Many partners of BDO, but not Ms Alexander, became partners of Grant Thornton.
Ms Alexander and MAA commenced these proceedings in June 2013 against nine former partners of BDO (the first to ninth defendants: “the BDO Defendants”) and against Grant Thornton itself.
The current pleading is a further amended statement of claim filed on 13 January 2014 in which Ms Alexander and MAA make claims against the BDO Defendants for knowingly inducing a breach of contract (the relevant Unitholders Deed), knowingly assisting in a breach of trust and otherwise breaching various “equitable and common law duties”. Ms Alexander and MAA make separate claims against Grant Thornton for “unjust enrichment”, account, constructive trust and knowing inducement of a breach of the Unitholders Deed.
By a notice of motion filed on 23 June 2016…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alexander v Burne (No 4)

Details

AGLC: Alexander v Burne (No 4) [2016] NSWSC 1479
Case: [2016] NSWSC 1479
Decision Date: 19 October 2016

CaseChat Overview and Summary

The case before the court involved Alexander, the plaintiff, and Burne, the defendant, with the primary dispute concerning costs incurred in the proceedings. The Court of Appeal had already made a costs order in favour of the plaintiffs, but the matter before the court was whether those costs should be paid immediately. The case was heard in the Supreme Court of Queensland.

The primary legal issues the court needed to address were whether the exceptional circumstances existed to warrant disclosure of documents before the delivery of statements, as per the Practice Note SC Eq 11. Additionally, the court had to consider whether such disclosure would reduce the likelihood of experts serving multiple reports. The plaintiffs argued that the defendants had failed to provide the requested disclosure of documents, which they claimed was necessary to avoid multiple expert reports.

In determining the matter, the court considered the nature of the proceedings and the potential benefits of early disclosure. It found that the defendants had not demonstrated exceptional circumstances that would justify such disclosure. Furthermore, the court was not satisfied that early disclosure would prevent the experts from serving multiple reports. The court held that the costs order made by the Court of Appeal was to be paid forthwith, as there were no exceptional circumstances to warrant a different outcome.

The final orders of the court were that the defendants were to pay the plaintiffs' costs of the proceeding forthwith, and the application for an extension of time to file and serve further expert reports was dismissed. The court's decision was based on the absence of exceptional circumstances for early disclosure and the lack of evidence that such disclosure would prevent multiple expert reports.

Orders