Invacare v Hartog - [2007] NSWSC 1172

CITATION: Invacare v Hartog [2007] NSWSC 1172
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 18/07/2007

JUDGMENT DATE :
23 October 2007

JURISDICTION: Commercial List

JUDGMENT OF: Associate Justice Macready at 1

CATCHWORDS: Procedure. Adoption of Referee's report. Matter referred back to Referee for further report.

PARTIES: Invacare Australia Pty Ltd v Phillip Henry Hartog and Ors

FILE NUMBER(S): SC 50178/2005

COUNSEL: JR Sackar QC & P Kulevski for plaintiff
JC Kelly SC & JAC Potts for defendants

SOLICITORS: Mallesons Stephen Jaques for plaintiff
Clayton Utz for defendants

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

Associate Justice Macready

Tuesday 23 October 2007

50178/05 Invacare Australia Pty Ltd v Phillip Henry Hartog & ors

JUDGMENT

1 His Honour: This is the hearing of two amended notices of motion filed on 22 June 2007. The plaintiff seeks orders for the adoption of the report provided to the court by Mr Gower on 5 April 2007 as amended by the report provided to the court by him on 1 June 2007. The defendants seek an order that certain matters be referred back to the referee for further consideration in respect of the amended report.

2 The parties’ submissions have helpfully set out some of the background in the matter and I and will incorporate them with some amendments.

3 This case concerns a Share Sale and Purchase Agreement dated 29 December 2004 pursuant to which the plaintiff purchased all of the issued share capital of a company known as Australian Healthcare Equipment Pty Ltd from the first and second defendants Mr & Mrs Hartog for a price of $11,455,394.

4 The Agreement included provisions for the retention of $2.4 million in escrow to secure the performance of certain contractual warranties and for a price adjustment that was subject to the preparation of certain Completion Accounts by the plaintiff, as at 30 December 2004.

5 The third defendant, represented by its executive director, the fourth defendant, was the adviser to the first and second defendants during the sale, including a lengthy period of due diligence by the plaintiff.

6 The plaintiff seeks various forms of relief, essentially on the basis of alleged misleading and deceptive conduct by the defendants prior to 29 December 2004 and the breach of various contractual warranties. Mr and Mrs Hartog have cross-claimed seeking repayment of the $2.4 million held in escrow and an adjustment to the purchase price in their favour.

7 By agreement of the parties on 1 September 2006 the Court referred a number of accounting questions that are relevant to the misrepresentation and warranty case, and the cross-claim, to Mr G.C.A. Gower, for inquiry and report, including the accuracy of the Completion Accounts.

8 The referee’s report was delivered on 5 April 2007 (“the First Report”). The plaintiff and the defendants identified a number of errors in the First Report and, by agreement…

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: [2007] NSWSC 1172
Decision Date: 23 October 2007

CaseChat Overview and Summary

The case of Invacare v Hartog involved a dispute between Invacare, the appellant, and Hartog, the respondent, concerning the adoption of a referee's report. The matter was before the Family Court of Australia, which was required to decide whether the court should adopt the referee's report or refer the matter back for further investigation. The Family Court of Australia is responsible for making decisions regarding family law matters, including those involving disputes over the adoption of reports in legal proceedings.

The primary legal issue before the court was whether the referee's report adequately addressed the relevant issues and provided sufficient findings for the court to make a final decision. The court needed to determine if the report was comprehensive and whether any further investigation was required before the matter could be finalised. This decision involved assessing the sufficiency of the referee's findings and recommendations, and whether the report contained all necessary information for the court to make an informed decision.

The court concluded that the referee's report did not fully address the issues raised in the dispute, and further investigation was necessary to provide a complete picture of the facts. Consequently, the court decided to refer the matter back to the referee for further report, allowing for additional evidence and findings to be incorporated. This decision was based on the court's assessment that the current report did not contain all the necessary information and findings required for a final decision to be made. The court's decision ensures that the dispute can be resolved based on a more comprehensive and complete set of findings.

As a result of the court's decision, the matter was referred back to the referee for further investigation and report. This will allow for additional evidence to be presented and considered, ensuring that the final decision is based on a thorough and complete understanding of the facts. The court's decision to refer the matter back for further report aims to provide a fair and just resolution to the dispute between the parties involved.

Orders