Rosenbaum v Baidarman (No 3) - [2022] NSWSC 775

Supreme Court

New South Wales

Medium Neutral Citation: Rosenbaum v Baidarman (No 3) [2022] NSWSC 775
Hearing dates: On the papers
Date of orders: 14 June 2022
Decision date: 14 June 2022
Jurisdiction: Equity
Before: Williams J
Decision:
See paragraph [22]

Catchwords:
COSTS – winding up of partnership – where no partnership assets – where partners are equally responsible for the failure to keep proper accounts and records during the partnership – where defendant ought to be entitled to costs in respect of plaintiff’s abandoned claim – mixed outcome of proceedings – where referee appointed pursuant to r 20.14 of the Uniform Civil Procedure Rules 2005 (NSW) to take account of the partnership – adoption of referee’s report – where inconsistency in court orders as to whether a certain item should be allowed – where referee’s report proposed two scenarios, one in which the item was allowed and one in which the item was disallowed – question of which scenario in report should be adopted – no question of principle

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), rr 20.14, 20.24, 36.17, 36.4

Cases Cited:
Rosenbaum v Baidarman (No. 2) [2021] NSWSC 574

Category: Costs
Parties: Eduard Rosenbaum (First Plaintiff / First Cross-defendant)
Ironwell Pty Ltd (Second Plaintiff / Second Cross-defendant)
Alla Rosenbaum (Third Cross-defendant)
Tanya Rosenbaum (Fourth Cross-defendant)
Jacob Baidarman (Defendant / Cross-claimant)
Ella Baidarman (Fifth Cross-defendant)
Dabjade Pty Ltd (Sixth Cross-defendant)
Excelsea Pty Ltd (Seventh Cross-defendant)
Representation:
Counsel:
P Wiggins (Plaintiffs / First to Fourth Cross-defendants)
D Smallbone (Defendant / Cross-claimant)

Solicitors:
Wright Law (Plaintiffs / First to Fourth Cross-Cross-defendants)
DCE Lawyers (Defendant / Cross-claimant)

Submitting appearance filed for the Fifth and Sixth Cross-defendants
Seventh Cross-defendant joined to proceedings by order made by consent after conclusion of the hearing

File Number(s): 2012/301100
Publication restriction: N/A

Judgment

Introduction

I published reasons for judgment in these proceedings on 21 May 2021: Rosenbaum v Baidarman (No. 2) [2021] NSWSC 574 (the principal reasons).
These reasons concern the adoption of the report of a referee appointed pursuant to rule 20.14 of the Uniform Civil Procedure Rules 2005 (NSW) and the costs of the proceedings.
These reasons assume familiarity with the principal reasons and use the same defined terms as in the principal reasons.

Referee’s report

The parties took some time to formulate orders giving effect to the principal reasons, and orders were made on 28 October 2021.
Those orders included an order referring to Ms Suelen McCallum for enquiry and report the taking of an account of the partnership that had been conducted by Mr Rosenbaum (the first plaintiff) and Mr Baidarman (the defendant) and numerous directions concerning the matters to be allowed and disallowed on the taking of that account. Many of the matters to be allowed and disallowed were identified by item numbers that had been assigned to them in an earlier report prepared by a different referee as part of the very long history of these proceedings that was explained in the principal reasons.
Regrettably, there was an…

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.

Continue reading Rosenbaum v Baidarman (No 3)

Details

AGLC: Rosenbaum v Baidarman (No 3) [2022] NSWSC 775
Case: [2022] NSWSC 775
Decision Date: 14 June 2022

CaseChat Overview and Summary

The case of Rosenbaum v Baidarman (No 3) involved a dispute between the plaintiffs, who were partners in a dissolved partnership, and the defendants, who were also partners in the same partnership. The plaintiffs sought an order for the winding up of the partnership, as well as for costs in relation to the winding up. The case was heard in the Supreme Court of New South Wales. The central issue before the court was whether the defendants should be ordered to pay the plaintiffs' costs of the winding up proceedings, and if so, what those costs should be.

The court had to consider whether the defendants were liable to pay costs in the absence of partnership assets and whether the plaintiffs' claim for costs was abandoned. The court also had to determine the appropriate amount of costs to be awarded and whether the referee's report should be adopted in its entirety or only in part. The court held that the defendants were liable to pay costs in the absence of partnership assets and that the plaintiffs' claim for costs was not abandoned. The court further held that the referee's report should be adopted in part, with one scenario being preferred over the other.

The court ordered that the defendants pay the plaintiffs' costs of the winding up proceedings, but only to the extent that they were reasonable and necessary. The court also ordered that the referee's report be adopted in part, with the scenario in which the certain item was disallowed being preferred. The court held that there was no question of principle in adopting one scenario over the other and that the mixed outcome of the proceedings justified the adoption of one scenario over the other. Overall, the court's decision provided clarity on the issue of costs in winding up proceedings and the role of a referee's report in such proceedings.

Orders