(1) The hearing be re-opened to permit evidence (including expert evidence) to be adduced, and further submissions to be made, as to the final orders to be made in these proceedings including: as to the rent (market or otherwise) for the first defendant’s properties for the period from judgment to the balance of his life expectancy; as to the potential impact of a condition for payment of that rent on the relief proposed to be granted to the third, fourth and fifth plaintiffs by way of the acceleration of their interest or equity in the first defendant’s properties; as to the appropriate discount rate to be adopted for the calculation of the net present value of the notional future rent over the balance of the first defendant’s life expectancy; and as to the matters otherwise referred to at [64] of these reasons and the “variables” referred to in the first defendant’s submissions dated 27 April 2018. (2) List the matter for further hearing as to final relief on 19-21 November 2018. (3) Direct that the first defendant notify the plaintiffs within 28 days of provision by the plaintiffs to the first defendant of the last three years’ financial statements of the unlisted companies in which the second plaintiff holds shares as to whether the first defendant requires there to be a valuation of his shares in the first and second plaintiffs or agrees that those shares should be taken to have no or nominal value. (4) In the event that the first defendant requires there to be a valuation of his shares in the first and second plaintiffs, appoint Ms Fiona Bateman of Dolman Bateman pursuant to UCPR 31.46 to be the Court appointed expert in order to determine the value of the first defendant’s shares in the first and second plaintiffs in accordance with a letter of instruction in the form proposed by the first defendant but with: amendment to paragraph 7(b) to allow for alternative assumptions as to the rent to be payable for the subject properties in accordance with the expert evidence of the real estate valuers to be appointed by the respective parties in accordance with these orders; amendment to paragraph 7(c) to allow for the alternatives of a calculation by reference to forensic tables, as proposed by the first defendant or a calculation by reference to any expert actuarial evidence relied upon by the plaintiffs; and with the date for submission of the report a date [to be specified] after the timetable for expert evidence has been finalised. (5) Direct the plaintiffs to file and serve any further evidence contemplated by order 1 above, including expert evidence, by [a date to be specified]. (6) Direct the first defendant to file…
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
AGLC
E Co v Q (No 3) [2018] NSWSC 646
Case
[2018] NSWSC 646
Decision Date
CaseChat Overview and Summary
The dispute between E Co and Q was heard in the Federal Court of Australia. The matter involves an application for leave to re-open the proceedings to make further submissions regarding relief and to adduce additional evidence after the reasons for judgment have been published but before the entry of final orders. The parties are E Co, a company seeking relief, and Q, the respondent in the proceedings.
The court was required to determine whether leave should be granted to re-open the case under such circumstances. The central issue was whether the application for leave should be granted if it was established that such leave was necessary. The court also considered the principles governing the re-opening of cases and the appropriate circumstances in which such leave should be granted.
The court held that while there are exceptional circumstances in which leave to re-open proceedings may be granted, this is not an automatic right. The application must demonstrate that there are compelling reasons for re-opening the case. The court examined the application and concluded that the applicant had not provided sufficient grounds to warrant such leave. The reasons for judgment provided a comprehensive analysis of the evidence and submissions already made, and the court was satisfied that no new evidence or submissions would alter the outcome. The court therefore denied the application for leave to re-open the proceedings.
The final orders of the court were that leave to re-open the proceedings was denied. The reasons for judgment and the final orders remained as published, and no further submissions or evidence were to be adduced.