Drinkwater v Caddyrack Pty. Limited

[1999] NSWSC 218

CITATION:	Drinkwater v Caddyrack Pty. Limited [1999] NSWSC 218 revised - 31/08/99
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	3970/96
HEARING DATE(S):	23 March 1999
JUDGMENT DATE:	23 March 1999
PARTIES :	Peter Westgarth Drinkwater and John Francis Drinkwater (P1) Lustray Pty Limited (P2) Caddyrank Inc (P3) Caddyrack Pty Limited (P4) Caddyrack Pty Limited (D1) Terrance Kyrwood (D2) Geoffery Kyrwood (D3) Caddyrack International Pty Limited (D4) Gedrot Pty Limited (D5) Gavros Pty Limited (D6)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	Mr. M. Ashurst (P) Mr. A. McInerney (D)
SOLICITORS:	Hansens Solicitors (P) Mc Donald Johnson (D)
CATCHWORDS:
DECISION:

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 23 March 1999

3970/96 PETER WESTGARTH DRINKWATER -v- CADDYRACK PTY LIMITED

JUDGMENT

1    MASTER: There is presently before me an application made by the fifth and six defendants, Gedrot Pty Ltd and Gavros Pty Ltd, by which they seek leave to reopen their case in respect to the enquiry as to the valuation of shares the hearing of which took place last Thursday, 18 March 1999 before me and in respect of which the parties are to serve written submissions. 2    In order to understand the nature of the present application it is necessary that I should rehearse, at least in summary, the procedural history of this matter. The substantive hearing took place before Mr Justice Young in September 1997. Subsequently, on 28 November 1997 his Honour made certain orders, one of which was to require the purchase by the fifth and sixth defendants of certain shares in the first defendant by the first and second plaintiffS. His Honour directed an enquiry as to the valuation of those shares at a specific date and ordered that the fifth and sixth defendant pay for the purchase of those shares the valuation found upon such enquiry as at that date. 3    Subsequently the matter was listed on callover on 25 November 1998 and was specially fixed to be heard by me on Tuesday 1 February 1999, the estimated length of hearing being one day. 4    On callover on 25 November 1998 the parties involved in the enquiry either expressly or at least by implication assured the Court that the matter was in a state of total readiness for hearing. However on 1 February 1999 an application was made by the relevant defendants for a vacation of the hearing date (which had in the interim been altered to 2 February 1999). That application to vacate the hearing date was opposed by the plaintiffs. Nevertheless I acceded to the application to vacate the hearing date, and made certain orders and directions of a procedural nature to ensure that when the matter came on for hearing there would be no ground for any further adjournment and that the parties would be without doubt in a state of complete readiness for that hearing. 5    The orders which I made on 1 February contemplated that the matter would be heard by me in February on a date to be fixed by arrangement with my Associate. Ultimately that date was fixed for last Thursday, 18 March 1999. I also ordered that the defendants on or before 22 February 1999 serve upon the plaintiffs all affidavits of valuation of the shares referred to in the order made on 28 November 1997. 6    I made certain costs orders in favour of the plaintiffs and against the defendants and granted leave to the plaintiffs to proceed forthwith to assessment of those costs. 7    The matter came on for hearing before me on Thursday, 18 March 1999. The hearing occupied from 10.35am until 4.05pm. The oral evidence had concluded by that time, but Counsel for the respective parties had not embarked upon their submissions. Accordingly I made the following orders:

(1) I direct the plaintiff to serve written submissions on or before 25 March 1999 and the defendants to serve written submissions in reply on or before 1 April 1999.

(2) I adjourn the hearing, part-heard, to Monday 12 April 1999.

8    Within a day of the hearing on 18 March the legal representatives of the fifth and sixth defendants sought to have the matter listed before me for the purpose of making an application for leave to be given to re-open their case upon the enquiry. The matter has been listed this day, 23 March 1999, for that purpose. 9    The application that the fifth and sixth defendants have leave to reopen their case upon the enquiry is opposed by the first and second plaintiffs. The ground upon which the application is made appears to be that certain material upon which Mr Stefan Shane Pritchard, an accountant, relied, was not apparently annexed to his affidavit. There is no suggestion that the material was not available to Mr Pritchard at the time of the hearing or that he was unaware of that material. 10    The suggestion seems to be made by the defendants that the plaintiffs might have been confused or misled by the absence of that material. That is a matter for the plaintiffs, and if they do not wish to avail themselves of what, in those terms, appears to be a benevolent offer by the defendants, then I do not see why they should be forced to do so. I am not persuaded that anything in the various affidavits which have been relied upon in support of the application to re-open the evidence for the defendants justifies such a re-opening. 11    The Court is required to do justice between both parties. What the defendants now seek to do would, in effect, require a further hearing of the matter. It would require this additional material to be placed before the plaintiffs' experts. It would require further cross-examination of Mr Pritchard on behalf of the plaintiffs. It might require additional evidence by the plaintiffs' experts, Mr Griffiths and Mr Hewitt. It would certainly require considerable additional hearing time to be allocated to the matter. It is unlikely that the date of 12 April which has been reserved for the further hearing could be appropriately retained. There has already been one vacated hearing of this matter, vacated at the instance of the defendants, who are making the present application. 12    There was an express order made on 1 February 1999 that the defendants on or before 22 February 1999 serve upon the plaintiffs all affidavits of valuation of the shares referred to in the order of Mr Justice Young of 28 November 1997. What those defendants are attempting now to do is to have yet a further opportunity of placing additional material before the Court, material which should have been filed and served in its entirety before the callover on 25 November 1998, which at the latest should have been available immediately before the hearing fixed for 2 February 1999, and which (by a concession of the Court, opposed by the plaintiffs) was allowed to be provided up to 22 February 1999. More than a month after that date and after the hearing of oral evidence has been completed, the time for the providing of such further material is now further extended. I refuse the application of the fifth and sixth defendants to re-open their case. I make the following orders:

1. I refuse the application of the fifth and sixth defendants that they have leave to re-open their case in the enquiry before me.
2. I order that the fifth and sixth defendants pay the costs of the first and second plaintiffs of the aforesaid application.
3. I grant leave to the first and second plaintiffs to proceed forthwith to assessment of the foregoing costs.

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Last Modified: 09/13/2000