Re Adaz Nominees Pty Ltd (No 3)

[2017] VSC 717

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL COURT

CORPORATIONS LIST

S ECI 2015 00385

IN THE MATTER of ADAZ NOMINEES PTY LTD

ADAZ NOMINEES PTY LTD (ACN 006 228 119) as trustee for The Rado No 2 Trust	Plaintiff
v
CASTLEWAY PTY LTD (ACN 131 870 481) as trustee for The Castleway Trust	Defendant

---

JUDGE:	Robson J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November 2017
DATE OF JUDGMENT:	24 November 2017
CASE MAY BE CITED AS:	Re Adaz Nominees Pty Ltd (No 3)
MEDIUM NEUTRAL CITATION:	[2017] VSC 717

---

PRACTICE AND PROCEDURE – Whether any issues remain for determination after the substantive hearing – Whether matters should be referred to a special referee.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R M Garratt QC, with Ms F R Cameron	Maddocks
For the Defendant	Mr G H Golvan QC, with Mr B G Mason	Kyriacou Lawyers

HIS HONOUR:

1. On Friday 24 November 2017, I heard directions in this matter and reserved my decision on certain issues.

1. The parties sought directions for the further resolution of the proceeding and for the appointment of a special referee in relation to the resolution.  The parties have agreed on a nominated special referee to hear and resolve certain accounting issues, but are in dispute as to whether the special referee resolve other issues, which are alleged to be outstanding.

1. The parties initially asked me to resolve certain questions mainly relating to the construction of the PDSA.  It was said by both parties that if I did so they were confident that they would be able to resolve the outstanding issues between them.  I handed down my decision on those issues on 5 October 2017.

1. The confidence of the parties was misplaced.  They have not been able to agree on many issues of substance.

1. During the directions hearing before me on Friday 24 November 2017, it was submitted by the defendant that there were some issues that I had resolved, whereas the plaintiff disputed they had been resolved.  On other hand, the plaintiff submitted I had resolved other issues, which was disputed by the defendant. 

1. In those circumstances, I find that the appropriate course is for each party to list, what it submits has still to be resolved in the proceeding, whether by me as the trial judge or by the special referee.  Upon receipt of each party’s list, I will fix the matter for hearing. 

1. Currently I understand that the issues will include:

(a)   whether or not the Court can go behind the service fee that was determined, invoiced and paid, for the financial years 2011, 2012 and 2013;

(b)   whether or not any further decision must be made on the introduced projects including whether or not any further evidence may be led on these issues;

(c)    whether or not interest is payable on the undisputed and unpaid service fees.

1. At the directions hearing, I made directions as to the list of issues that the special referee is to determine, including the preparation of a Scott Schedule and for proposed orders for the procedure of the special referee’s appointment and conduct of engagement. 

1. I will order therefore as follows:

(1)That each party file and serve a list of issues which that party contends are still to be resolved in the proceeding, identifying whether or not in each instance, further evidence is sought to be adduced and if so whether before the special referee or the Court, by 4.00 pm on 7 December 2017.

(2)That the parties file and serve any written submission on whether or not such issues are outstanding.  Such submissions to be filed and served by 4.00 pm on 7 December 2017.

(3)That the parties meet, confer and agree on a list of issues for the special referee to determine, such list to give a separate number to each issue and be prepared in the form of a Scott Schedule prepared by the defendant and approved by the plaintiff, by 4.00 pm on 7 December  2017.

(4)That the proceeding be listed for directions on Friday 8 December 2017 at 10.00 am.

1. Upon receipt of the list of issues and submissions, I will consider whether or not it is appropriate to list the proceeding for further hearing before the Court and make appropriate directions for the conduct of the further hearing.   

1. I will also consider the appointment of the special referee and whether or not the issues that are agreed he should hear and determine, should be so determined by the special referee before any further hearing before the Court.