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Segal v Sharma

Segal v Sharma

Case [2022] NSWSC 496 27 April 2022

Discovery & Disclosure

Referee

Partnership Dissolution

Final Accounting

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Segal v Sharma & Anor [2022] NSWSC 496
Hearing dates: 16 – 17 December 2021
Date of orders: 27 April 2022
Decision date: 27 April 2022
Jurisdiction: Equity
Before: Slattery J
Decision:
Report of referee adopted in the manner identified in the Court’s orders. Directions made to resolve remaining questions of costs and residual issues.

Catchwords:
CIVIL PROCEDURE – reference out to a referee – Uniform Civil Procedure Rules 2005 r 20.24 – dissolution of a partnership between doctors – complex structure of partnership entities – reference to referee to undertake final accounting between the partnership entities – referee reports – parties dispute whether the whole of the referee’s report should be adopted – whether the referee’s report should be adopted or varied in part and if so in which respects.

Legislation Cited:
Civil Procedure Act2005, s 21
Corporations Act2001
Trustee Act1925, s9(5)
Conveyancing Act1919, s 12
Uniform Civil Procedure Rules2005

Cases Cited:
ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia (2014) 89 NSWLR 209
Anglican Development Fund Diocese of Bathurst [2015] NSWSC 440
Bermria Pty Ltd v Homebush Abattoir Corporation (1991) 22 NSWLR 600
Carter Holt Harvey Wood Products Australia Pty Ltd v The Commonwealth [2019] HCA 20
Cherry v Boultbee (1839) 4 My & Cr 442
Chocolate Factory Apartments Pty Ltd v Westpoint
Finance Pty Ltd & Ors [2005] NSWSC 784
Franks v Berem Constructions Pty Ltd [1998] NSWCA 87
Council of the City of Sydney v Baboon Pty Ltd [2020] NSWSC 1480
Gray v Gray (2004) 12 BPR 22,755
Thompson v Golden Destiny Investments Pty Ltd [2015] NSWSC 1929
Harvey v Harvey (1970) 120 CLR 529
Illawarra Hotel Company Pty Ltd v Walton Constructions Pty Ltd (2013) 84 NSWLR 410
Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549
Tryhaz Pty Ltd v Fielders Engineers Pty Ltd [2005] NSWSC 906

Texts Cited:
JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed, 2015, LexisNexis Butterworths)

Category: Procedural rulings
Parties: Plaintiff: Phillip Segal
First defendant: Praneal Dutt Sharma
Second defendant: Gregory Chen
Third defendant: Adam Preiner in his capacity as receiver and manager of the property, assets and undertaking of the SWR Holding Unit Trust
Fourth defendant: SWR Pty Ltd as trustee of the SWR Unit Trust
Fifth defendant: Park Central Radiology Pty Ltd
Representation:
Counsel:
Plaintiff: S. Keizer
First defendant: E. Finnane
Second Defendant: H. Kiely
Third defendant: T. Bagley
Solicitors:
Plaintiff: M. J. Rozdal, Key Point Law
First defendant: M.S. Robert, Uther Webster & Evans
Third defendant: A. Kozary, Piper Alderman

File Number(s): 2018/190679
Publication restriction: No

Judgment

Dr Phillip Segal, the plaintiff, Dr Praneal Sharma, the first defendant, and Dr Gregory Chen, the second defendant, are specialist radiologists. Dr Segal and Dr Sharma practised in partnership together in south-western Sydney between 2010 and 2013. In 2013 they formed a new three-way…

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 Segal v Sharma

Details

AGLC: Segal v Sharma [2022] NSWSC 496
Case: [2022] NSWSC 496
Decision Date: 27 April 2022

CaseChat Overview and Summary

Segal and Sharma were in a partnership together, which dissolved. Segal sought an accounting from the referee under the Uniform Civil Procedure Rules 2005. The partnership involved a complex structure of entities, which made the accounting complicated. The referee provided a report, but Segal and Sharma disagreed about which parts of the report to adopt. Segal wanted to adopt the whole report, while Sharma disagreed with some of the referee’s findings.

The court had to determine whether the entire referee's report should be adopted, or if it should be varied in part. The court considered the principles of final accounting in partnership dissolutions, and the extent to which the referee’s role involved making factual findings or legal determinations. The court noted the importance of ensuring fairness and accuracy in the final accounting, and weighed the parties' arguments on the referee's report.

The court concluded that while the referee's report was generally thorough, some parts required variation to correct errors or account for new evidence. The court varied the report in specific respects, providing detailed reasons for each variation. The court's decision ensured a fair and accurate final accounting between the partnership entities, balancing the need for finality with the necessity to correct errors.

The final orders of the court directed that certain parts of the referee's report be adopted as is, while other parts be varied in the manner specified in the judgment. The court's decision provided clarity on the appropriate use of referee reports in complex partnership dissolutions, and ensured that the final accounting accurately reflected the financial position of the partnership.

Orders