Drinkwater v Caddyrack Pty. Limited - [1999] NSWSC 17

CITATION: Drinkwater v Caddyrack Pty. Limited [1999] NSWSC 17

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 3970/96

HEARING DATE(S): 01/02/99

JUDGMENT DATE:
1 February 1999

PARTIES :

Peter Westgarth Drinkwater
Caddyrack Pty. Limited

JUDGMENT OF: Master McLaughlin

COUNSEL : Mr. G. Grant (D)

SOLICITORS: Hansens Solicitors (P)
Mc Donald Johnson (D)

CATCHWORDS:

DECISION:

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION
MASTER McLAUGHLIN
Monday, 1 February 1999
3970 of 1996 DRINKWATER -v- CADDYRACK PTY LIMITED
1 MASTER: The substantive proceedings were heard before Young J in 1997. His Honour made orders on 23 October 1997. His Honour made subsequent orders to give effect to the essential items of relief on 28 November 1997. Those orders were entered on 12 December 1997. They included orders concerning the value of shares in a company, Caddyrack Pty Ltd, and an order that, in the event that the parties failed to agree as to the value of those shares, a Master hold an enquiry to certify the value of the shares. Also included in the orders made by his Honour on 28 November 1997 was an order in the following terms:
Within 21 days of these orders each party is to serve on the other a detailed proposal of valuation for the shares together with any experts' reports which are said to support such valuation.
2 In due course the matter was listed on call-over before me on 25 November 1998 for the purpose of fixing a hearing date. The plaintiffs had complied with the requirement of preparing a valuation of the shares. The defendants as at the date of the call-over had not complied with that requirement. It would appear from the correspondence that has been placed before the Court, in particular correspondence between the solicitors for the defendants and a firm of solicitors in Newcastle and their Sydney agents, that no application was made on behalf of the defendants for an adjournment in order to enable the defendants to place before the Court evidence of the valuation of the shares. But the defendants appeared upon the call-over and allowed the matter to be fixed for hearing, with the only evidence as to the valuation of the shares being that which had been prepared on behalf of the plaintiffs.
3 The correspondence to which I have referred states that at the call-over the Master directed that the defendants be ready to proceed on the date fixed for the hearing, being 2 February 1999. With considerable urgency the defendants have today, 1 February 1999, made an application that the hearing fixed for tomorrow, 2 February, be adjourned. The essential basis for the application is that the defendants are not ready for the hearing, in that they have not prepared any evidence as to the valuation of the shares.
4 The plaintiffs oppose any adjournment. They point to the fact that they have complied with the orders of the Court concerning the valuation of the shares; They submit that the delay in bringing on for hearing…

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: [1999] NSWSC 17
Decision Date: 1 February 1999

CaseChat Overview and Summary

Drinkwater v Caddyrack Pty. Limited was a case heard in the Equity Division of the Supreme Court of New South Wales. The dispute involved Peter Westgarth Drinkwater and Caddyrack Pty. Limited over the valuation of shares in Caddyrack. The matter was before Master McLaughlin. The primary legal issue was whether the hearing date set for determining the valuation of shares should be vacated due to the defendants' failure to provide the required valuation evidence.

The court examined the defendants' reasons for their unpreparedness. It was noted that the defendants had changed solicitors multiple times and had not communicated effectively with their legal representatives, leading to their inability to provide the required valuation evidence. Despite the plaintiffs' compliance with the court's orders and the significant delay already caused, the court considered it appropriate to vacate the hearing date to allow the defendants to prepare the necessary evidence. The court emphasized the importance of effective communication between the parties and their legal advisers to avoid such situations in future proceedings.

Master McLaughlin decided to vacate the hearing date of 2 February 1999 and set a new date in March 1999. The court also ordered the defendants to serve all relevant affidavits by 22 February 1999 and mandated that the defendants pay the plaintiffs' costs for the application and the costs incurred due to the vacated hearing date. The court reserved the defendants' right to apply for these costs to be borne by their former solicitors or their agents.

Orders