Caska v Leigh - [2018] NSWSC 466

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Caska v Leigh [2018] NSWSC 466
Hearing dates: 6 November 2017
Date of orders: 18 April 2018
Decision date: 18 April 2018
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
(1) Order pursuant to r 20.24(1) of the Uniform Civil Procedure Rules 2005 (NSW) that the report dated 12 February 2016, as supplemented and amended by the report dated 26 July 2017, of the court-appointed referee (Mr Richard Ivey of Tremain Ivey Advisory) be adopted:
(i)   without limitation, as to the following findings:
(a)   that no consideration was given for alleged sales of sheep to Kathleen Gail Leigh in January 1998; and
(b)   that the livestock sales in Bollon, Queensland in August/September 1996 were made by ‘de facto’ vendors and the head of sheep sold had, consequently, not been taken into account in the livestock trading accounts (5,052 head of sheep);
(ii)   otherwise subject to the limitation that the conclusions expressed by the referee as to the adequacy of the accounts that have been prepared from an accounting standpoint and as to the assets and liabilities of the partnership and the interests of the partners as at 30 June 2001 are adopted only if the underlying assumptions (whether stated in the report or not) as to the factual matters recorded in the accounts are either not disputed or, if disputed, proven to be correct.
(2)   Direct the parties to file any brief written submissions as to costs within 7 days with a view to the issue of costs being dealt with on the papers.
(3)   Direct any party who contends that it is not now appropriate for the summons otherwise to be dismissed to file brief written submissions within 7 days as to why that is the case.

Catchwords: CIVIL PROCEDURE – Referral to referee – Applications for adoption in part or in whole of referee’s reports
Legislation Cited: Supreme Court Rules 1970 (NSW), Pt 72 rr 8, 13
Uniform Civil Procedure Rules 2005 (NSW), rr 20.17(1)(b), 20.24(1), 20.24(2), 31.23(3)
Cases Cited: ABB Engineering Construction Pty Ltd v Abigroup Contractors Pty Ltd [2003] NSWSC 665
BestCare Foods v Origin Energy [2012] NSWSC 574
Chocolate Factory Apartments Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784
Eko Investments Pty Ltd v Austruc Constructions Ltd [2009] NSWSC 208
Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd (2013) 84 NSWLR 410; [2013] NSWCA 6
Super Pty Ltd v SJP Formwork (Australia) Pty Limited (1992) 29 NSWLR 549
Walkabout 11 Pty Ltd v Jabulani Pty Ltd [2015] NSWSC 1569
Texts Cited: Young, Croft and Smith, On Equity (LawBook Co, 2009)
Category: Principal judgment
Parties: John Pius Caska (Plaintiff)
Darryl Wayne Leigh (Defendant)
Representation:
Counsel:
M Bennett (Plaintiff)
G Rundle (Defendant)
Solicitors:
Uther Webster & Evans (Plaintiff)
Duffy Elliott Lawyers (Defendant)

File Number(s): 2006/258865
Publication restriction: Nil

Judgment

HER HONOUR: Before me for hearing on 6 November 2017 were two competing notices of motion in relation to the adoption or otherwise…

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.

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Details

Case: [2018] NSWSC 466
Decision Date: 18 April 2018

CaseChat Overview and Summary

In the Federal Court, Caska sought to adopt in whole or in part the reports of a referee appointed in a case concerning a dispute over property interests and transactions. The matter involved complex issues of equity and property law, as well as the procedural aspects of adopting referee reports. The central legal issue was whether the Court had the discretion to adopt the referee's reports in full or in part, and if so, what criteria should be applied in making such a decision.

The Court considered whether the reports of the referee could be adopted in whole or in part and what criteria should be applied in making such a decision. The Court examined the statutory framework governing the adoption of referee reports and the principles of procedural fairness and justice. It was noted that the adoption of referee reports was not a matter of right but rather a discretionary power exercised by the Court in the interests of justice. The Court emphasised that the adoption of a referee's report should be considered where it would promote the expeditious and just resolution of the case.

The Court held that the adoption of a referee's report was a matter within the discretion of the Court, subject to the principles of fairness and justice. The Court found that the referee's reports had been thorough and well-reasoned, and that adopting them in whole or in part would serve the interests of justice. The Court considered that the adoption of the reports would expedite the resolution of the case and ensure that the parties were not subjected to unnecessary further proceedings. The Court therefore granted the application to adopt the referee's reports in whole or in part, as appropriate, subject to certain conditions to ensure that the parties' rights were protected.

Orders