Cardaci v Filippo Primo Cardaci as Executor and Trustee of Marco Antonio Cardaci [No 4] - [2022] WASC 453

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CARDACI -v- FILIPPO PRIMO CARDACI AS EXECUTOR AND TRUSTEE OF MARCO ANTONIO CARDACI [No 4] [2022] WASC 453
CORAM:   LUNDBERG J
HEARD:   21 DECEMBER 2022
DELIVERED          :   21 DECEMBER 2022
PUBLISHED           :   21 DECEMBER 2022
FILE NO/S:   CIV 1750 of 2017
BETWEEN:   MAE CARDACI
Plaintiff
AND
FILIPPO PRIMO CARDACI AS EXECUTOR AND TRUSTEE OF MARCO ANTONIO CARDACI
First Defendant
WASHBURN PTY LTD ATF WASHBURN PTY LTD
Second Defendant
RECTANGULAR PTY LTD ATF MARCO ANTONIO CARDACI TESTAMENTARY TRUST
Third Defendant
ONGOLD CORPORATION PTY LTD
Fourth Defendant

Catchwords:

Taking of account by Registrar – Adoption of Registrar’s report

Legislation:

Rules of the Supreme Court 1971 (WA), O 39

Supreme Court Act 1935 (WA), s 50

Result:

Report adopted

Category: B

Representation:

Counsel:

Plaintiff	:	Mr Cameron O'Neil
First Defendant	:	Mr Dalitso Banda
Second Defendant	:	Mr Dalitso Banda
Third Defendant	:	Mr Dalitso Banda
Fourth Defendant	:	Mr Dalitso Banda

Solicitors:

Plaintiff	:	Herbert Smith Freehills
First Defendant	:	Bennett + Co
Second Defendant	:	Bennett + Co
Third Defendant	:	Bennett + Co
Fourth Defendant	:	Bennett + Co

Case(s) referred to in decision(s):

Able Tours Pty Ltd v Mann [No 2] [2013] WASC 96
Cardaci v Filippo Primo Cardaci as executor and trustee of Marco Antonio Cardaci [No 3] [2022] WASC 412
Cardaci v Filippo Primo Cardaci as executor and trustee of Marco Antonio Cardaci [No 5] [2021] WASC 331 (S)
Chocolate Factory Apartments Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784
Segal v Sharma [2022] NSWSC 496
Wenco Industrial Pty Ltd v WW Industries Pty Ltd [2009] VSCA 191; (2009) 25 VR 119
Wilden Pty Ltd v Green [No 6] [2018] WASCA 198

LUNDBERG J:

It’s the 21^st of December and the plaintiff’s notice of motion dated 14 December 2022 has been brought on for hearing, seeking orders to adopt the report prepared by Registrar Nelson and published on 5 December 2022 (Report).[1] Specifically, the plaintiff sought the following substantive order:
Pursuant to Order 35 Rule 9 of the Rules of the Supreme Court 1971, the Court adopt the report of Registrar Nelson published on 5 December 2022 in Cardaci v Filippo Primo Cardaci as executor and trustee of Marco Antonio Cardaci [No 3] [2022] WASC 412.
[1] The report was published as Cardaci v Filippo Primo Cardaci as executor and trustee of Marco Antonio Cardaci [No 3][2022] WASC 412.
The plaintiff sought a listing of the motion at the Court’s earliest convenience, as a result of which arrangements were made to bring the motion on for hearing on 21 December 2022.
The Report in question was prepared by Registrar Nelson following a referral by Le Miere J for an account to be taken. That referral was made pursuant to s 50(1) of the Supreme Court Act 1935 (WA). Le Miere J published his supplementary reasons on 23 December 2021 and made orders on that date to give effect to those reasons, by which the account was ordered: Cardaci v Filippo Primo Cardaci as executor and trustee of Marco Antonio Cardaci [No 5].[2]
[2] Cardaci v Filippo Primo Cardaci as executor and trustee of Marco Antonio Cardaci[No 5] [2021] WASC 331 (S).
Upon the publication of a report following a referral pursuant to s 50(1) of the Supreme Court Act 1935 (WA), it is open to any party to make application to the Court for that report to be adopted and thereby given effect.
Section 50(2) of the Supreme Court Act 1935 (WA) provides that the report of the:
…master, registrar or referee may be adopted wholly or partially by the Court or a judge, and, if so adopted, may be enforced as a judgment or order to the same effect.
Order 35 Rule 9 of the Rules of the Supreme Court 1971 (WA) provides that:
Where the report of the referee has been made in a cause or matter, the further consideration of which has not been adjourned, any party may, by an 8 days' notice of motion, apply to the Court to adopt and carry into effect the report of the referee, or to vary the report, or to remit the cause or matter or any part thereof for rehearing or further consideration to the same or any other referee.
A judge hearing an application under Order 35 Rule 9 is exercising a judicial discretion as to whether or not they will adopt the report of the referee. In exercising that discretion, there are certain guiding principles which should be borne in mind. The principles were summarised by the Western Australian Court of Appeal in Wilden Pty Ltd v Green [No 6] [2018] WASCA 198 (Wilden) as follows:[3]
The court exercises a judicial discretion as to whether to adopt the Registrar's report. The discretion is to be exercised in the interests of justice consistently with the object and purpose of the rules permitting the court to direct the necessary inquiries or accounts to be taken or made. An application to adopt the report is neither an 'appeal' de novo nor an appeal by way of rehearing. The nature of the complaints made about the report, the type of litigation involved and the length and complexity of the proceedings before the registrar may all be relevant considerations.[4]
If a report reveals an error of principle, an absence or excess of jurisdiction, a patent misapprehension of the evidence or perversity or manifest unreasonableness in fact finding, that would ordinarily be a reason for its rejection. In this context, patent misapprehension of the evidence refers to a lack of understanding of the evidence as distinct from according aspects of the evidence with particular weight. Perversity or manifest unreasonableness means a conclusion that no reasonable tribunal of fact could have reached. Also, the court is entitled to consider the futility and costs of relitigating an issue determined by the registrar where the parties have had ample opportunity to place before the registrar such evidence and submissions as they desire.[5]
[3] Similar principles may be found in Chocolate Factory Apartments Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784 [7] (McDougall J), Able Tours Pty Ltd v Mann [No 2] [2013] WASC 96 [31]-[35] (Simmonds J), and the more recent decision of the NSW Supreme Court in Segal v Sharma[2022] NSWSC 496 [42] (Slattery J).
[4] Wilden [53] (Murphy, Mitchell and Beech JJA).
[5] Wilden [55] (Murphy, Mitchell and Beech JJA).
I should also refer to the decision of the Victorian Court of Appeal in Wenco Industrial Pty Ltd v WW Industries Pty Ltd [2009] VSCA 191; (2009) 25 VR 119 (Wenco), which was cited with approval in Wilden. In Wenco, the Court emphasised that a reference to a registrar is not to treated as ‘some kind of warm-up for the real contest’.[6] The Court in Wenco also endorsed the following related propositions:
Fourthly, where a report shows a thorough, analytical and scientific approach to the assessment of the subject matter of the reference, the Court would have a disposition towards acceptance of the report, for to do otherwise would be to negate both the purpose and the facility of referring complex technical issues to independent experts for enquiry and report.[7]
…
Sixthly, generally, the referee’s findings of fact should not be re-agitated in the Court. The Court will not reconsider disputed questions of fact where there is factual material sufficient to entitle the referee to reach the conclusions he or she did, particularly where the disputed questions are in a technical area in which the referee enjoys an appropriate expertise. Thus, the Court will not ordinarily interfere with findings of fact by a referee where the referee has based his or her findings upon a choice between conflicting evidence.[8]
[6] Wenco [17]-[18] (Redlich and Bongiorno JJA and Beach AJA).
[7] Wenco [17(d)] (Redlich and Bongiorno JJA and Beach AJA).
[8] Wenco [17(f)] (Redlich and Bongiorno JJA and Beach AJA).
Insofar as the referral process to Registrar Nelson and this motion are concerned, the position taken by the parties has been conciliatory, although the last bell is not ringing on the broader dispute between the parties given there are appeal proceedings on foot in the Court of Appeal. Be that as it may, the present conciliatory approach has facilitated the referral process before the Registrar and before me, and I echo the comments of the Registrar concerning the constructive approach which has been adopted.[9] As matters stand, the defendants’ position in relation to the present motion is that they do not oppose the Report being adopted and, apparently as a consequence of that non‑opposition, the plaintiff does not pursue any order as to the costs of the motion.
[9] Cardaci v Filippo Primo Cardaci as executor and trustee of Marco Antonio Cardaci [No 3][2022] WASC 412 [3].
It is nonetheless necessary for me to satisfy myself that I should exercise my discretion to adopt the Report pursuant to Order 35 Rule 9. I am so satisfied. I say this because:
(1)I am satisfied the Report has been prepared in accordance with the orders made by Le Miere J on 23 December 2021. The Report:
(a)delineates the monies paid from the assets of the Washburn Trust and the Marco Cardaci Testamentary Trust for the purpose of meeting all or any of the second, third, and fourth defendants’ (or any defendant’s) costs of the proceeding before Le Miere J;
(b)specifies in respect of each payment the date and amount thereof and to whom it was made; and
(c)specifies the amount of interest on those monies at the rate of 6% p.a. from the date of each payment.[10]
(2)The Registrar provided the parties with an opportunity to be heard on the precise form of his report beyond those matters identified in the orders, and the parties did not seek to be so heard.[11]
(3)Having reviewed the final Report as published, I observe that the plaintiff consents to the adoption of the Report (and indeed moves for orders on the current motion for that adoption). Further, the defendants do not oppose that course of action and do not raise any issues as to the adequacy of the Report or as to why it should not be adopted by this Court.
(4)The Report is a well-reasoned and thorough report which leaves me satisfied that the Registrar has applied his mind to the necessary findings of fact in accordance with legal principle.
[10] Cardaci v Filippo Primo Cardaci as executor and trustee of Marco Antonio Cardaci [No 3] [2022] WASC 412 [10] and Orders of Le Miere J dated 23 December 2021.
[11] Cardaci v Filippo Primo Cardaci as executor and trustee of Marco Antonio Cardaci [No 3] [2022] WASC 412 [39].
Accordingly, I respectfully adopt the Report in whole and have made orders to that effect, in addition to a procedural order to abridge time for the hearing of the notice of the motion from 8 days to 4 days, with no order being made as to the costs of the motion.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SAO
Associate to the Honourable Justice Lundberg
21 DECEMBER 2022