Shiels v Helkeast P/L

[2001] NSWSC 1032

CITATION:	SHIELS & ANOR v HELKEAST P/L & ANOR [2001] NSWSC 1032
CURRENT JURISDICTION:	EQUITY
FILE NUMBER(S):	SC 1660/1998
HEARING DATE(S):	02/11/01
JUDGMENT DATE:	16 November 2001
PARTIES :	Roger Kenneth Shiels - First Plaintiff Vickie Shiels - Second Plaintiff Helkeast Pty Ltd - First Defendant Garose Pty Ltd - Second Defendant
JUDGMENT OF:	Bryson J at 1

COUNSEL :	J. Prowse (sol) - Plaintiffs A.M. Gruzman - Defendants
SOLICITORS:	Macedone Christie Willis Solari Partners - Plaintiffs Mark Philip Symonds - Defendants
CATCHWORDS:	PRACTICE and PROCEDURE - reference under SCR Pt72 - application to reject or vary report of referee - numerous complaints of procedural injustice and misapprehension of evidence were examined and rejected.
CASES CITED:	Super Pty Ltd v. SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549
DECISION:	The defendants' Notice of Motion filed on 16 October 2001 is dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J

FRIDAY 16 NOVEMBER 2001

1660/1998 SHIELS & ANOR v. HELKEAST PTY LTD & ANOR

Judgment

1 BRYSON J.: In the defendants’ Notice of Motion filed on 16 October 2001 they seek orders that the Report pursuant to Pt.72 be rejected or varied, with alternative claims that the matter be remitted for further consideration by the referee or decided by the Court upon further evidence.

2 In 1996 the plaintiffs embarked on a project to purchase residential property in Regatta Road, Canada Bay, demolish the buildings and develop a complex of 11 townhouses. They acquired options to purchase properties, they had plans prepared for the development, they obtained development approval from Drummoyne Council and they obtained a quotation from Deltown Constructions Pty Ltd to construct the buildings. They had difficulties in financing the project and, through the intermediation of a finance broker and a firm called Waters Gambles & Associates, they in effect sold the project to the defendants by a Deed of Agreement of 9 August 1996.

3 Clause 2 of that Deed was in the following terms:

2.(i) In consideration thereof the Purchaser will pay to the Vendor an amount determined in accordance with the following scale:-
Profit of $500,000 or less - NIL
Profit of $500,000 to less than $600,000 - $ 50,000.00
Profit of $600,000 to less than $700,000 - $ 75,000.00
Profit of $700,000 to less than $800,000 - $125,000.00
Profit of $800,000 or more - $200,000.00
Plus 25% of any profit above $800,000.00
(ii) In this clause the profit will be the gross profit before taking into account the incidence of income tax of the Project as determined by the accountants employed by the Company for the purposes of the Project, Tony Commisso & Co., of Shop 24B, Homeworld Shopping Centre, Soward Way, Tuggeranong, in the Australian Capital Territory whose certification thereof will be accepted by all the parties as final and conclusive. Such determination will be carried out by the said Accountants in accordance with all normal and proper accountancy procedures.
BUT in determining such amount the total of the loan account of $164,931.45 or any other costs or expenses incurred on the Project on or before 8 August, 1996 (excluding legal fees payable to Macedone Christie Willis Solari Partners by Roger Kenneth Shiels and Vickie Shiels incurred prior to 5th August, 1996) shall not be taken into account.

4 Clause 5 of the Deed was in the following terms:

If the profit of the project as determined in accordance with Clause 2 is more than $500,000 so that the Vendors receive a payment as set out therein then the Vendors will purchase from the Company the last of the eleven town houses comprising the Project to be sold. The purchase price will be $285,000 and the Vendors will apply to such purchase all their right title and interest in any amount to be received by them in accordance with Clause 2 or otherwise under this agreement and the Vendors do hereby authorise the Company and Purchasers to apply all the Vendors’ entitlement under this agreement to such purchase and to retain the same for such purpose until all the said units have been sold and the Project completed.

5 The defendants carried out and completed the project, in a modified form, but did not obtain a determination by their accountants Tony Commisso & Co. or a certification of the amount of profit. The plaintiffs by Summons dated 10 March 1998 claimed orders requiring the defendants to provide financial statements and for specific performance of cl.2, and related relief. An order of the Court made by consent on 7 May 1998 referred questions pursuant to Pt.72 r.2(1) to a quantity surveyor, to be appointed by the President of the Australian Institute of Quality Surveyors (New South Wales Branch). Mr Clifford Paul Ventris was appointed Referee. The matter referred was:

The following questions arising in the proceedings, namely:
1. What are the profits of the project, as defined by Clause 2(ii) of the Deed of Agreement between the parties dated 9 August, 1996;
2. What would the profits have been assuming a contractor at arms length from the proprietor?

6 After very extended proceedings the Referee made a Report dated 24 May 2001, Exhibit 1. The plaintiffs applied by Notice of Motion of 21 September 2001 for orders adopting the Report and giving judgment, and the defendants’ Notice of Motion now under consideration was filed in response.

7 The principles upon which the Court acts when it is asked to adopt, or not to adopt the report of a referee under Pt.72 of the Supreme Court Rules were stated authoritatively in Super Pty Ltd v. SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549 in the judgment of Gleeson CJ with whom Mahoney and Clarke JJA agreed; and Mahoney JA added some important further observations: see 565-568. For reasons stated extensively in the judgment of Gleeson CJ, a party who is dissatisfied with a referee’s report is not entitled as of right to require the Judge acting under Pt.72 r.13 to reconsider and determine afresh all issues which that party decides to contest; see 562F. Gleeson CJ said at 563:

What is involved in an application under Pt 72, r 13 is not an appeal, whether by way of a hearing de novo or a more limited re-hearing. This is consistent with the right of the referee to conduct the reference as the referee thinks fit and unconstrained by the rules of evidence. Rather, the judge, in reviewing, the report and deciding whether to adopt, vary or reject it, has a judicial discretion to exercise in a manner that is consistent both with the object and purpose of the rules and with the wider setting in which they take their place.

8 Gleeson CJ also said, after dealing with dissatisfaction with the referee’s report on a question of law,

Subject to what has just been said, it is undesirable to attempt closely to confine the manner in which the discretion is to be exercised: cf Nicholls v Stamer [1980] VR 479 at 495 per Brooking J. The nature of the complaints made about the report, the type of litigation involved, and the length and complexity of the proceedings before the referee, may all be relevant considerations. The purpose of Pt 72 is to provide, where the interests of justice so dictate, a form of partial resolution of disputes alternative to orthodox litigation, and it would frustrate that purpose to allow the reference to be treated as some kind of warm-up for the real contest. On the other hand, if the referee’s report reveals some error of principle, some absence or excess of jurisdiction, or some patent misapprehension of the evidence, that would ordinarily be a reason for rejecting it: cf Jordan v McKenzie (1987) 26 CPC (2d) 193. So also would perversity or manifest unreasonableness in fact-finding. As to the last-mentioned matters, I refer again to the history of the rules and to Buckley .

9 In the present case it was clear that there was a large body of material in the nature of evidence before the Referee which has not been put in evidence before me. Further the Referee, a quantity surveyor, was entitled and able to bring to bear on his consideration his own expert knowledge and understanding, which a judge would not be entitled to use in the same way and would not be likely to have. The defendants did not in their case bring forward or attempt to bring forward the whole body of material which was under the Referee’s consideration but brought forward their own account of the material, accompanied by a small part of it, supported by reasoning or argumentation which was put forward so as to show that particular findings should be departed from. The defendants did not even bring forward in evidence the terms of the letter from their former accountants, which the report shows that the Referee had and of which the defendants claim that they had not seen the document during the reference. In my opinion I should not act on partial narrations of what took place in the reference extracted by the defendants and brought forward in evidence in this way; I cannot have any confidence that I have a complete understanding of what was before the Referee on any particular subject, nor can I have any of the insight which expertise would make available to a referee.

10 In the circumstances of this case, as appears from the whole of these reasons, I am of the view that it would not be right, as a matter of discretion, for me to embark on reviewing factual matters on which the Referee reached conclusions so as to address whether I would myself have found the facts differently, or whether I would be of the view that the Referee should have found the facts differently. A significant matter is that the proceedings before the Referee were very extensive, taking several years. Material put in evidence by the defendants themselves appears to me to show that the defendants, who dispensed with their professional legal representation for most of the reference, did not conduct their case or deal with the Referee with an appropriate regard to time or efficiency in the conduct of the reference. They dealt with the Referee in ways which were sometimes tardy and at times even to some degree were combative. It has contributed, to some degree, to my conclusion adverse to embarking on review of findings that the quality of the defendants’ participation in the reference was as I have stated.

11 Where the defendants make allegations adverse to the Referee’s conduct, it would be significant to have a whole picture of how the particular part of the proceedings complained of was conducted, and of how easy or difficult it was for the Referee to deal with the defendants, communicate with them and obtain their participation in any particular aspect, and of whether any matter complained of was the subject of any request for the Referee to explain something, make some information available, adopt any particular course or change any course. Where the defendants complain that they did not know of one of the documents referred to in the Schedule to the report, it is a difficulty for seeing what importance that complaint may have, and any underlying facts may have, that the defendants did not treat communication of documents as appropriately important. One of their complaints now is to the effect that the Referee did not have and (as they would put it) declined to receive a body of documents which the defendants had available. The complaint is grossly inept, as the defendants disregarded directions by the Referee to furnish such documents, and to furnish them within stated times.

12 The Referee did not conduct the reference in the form of a hearing modelled, even loosely, on hearings conducted by courts. He obtained the agreement of the parties to provisions which were to regulate the reference, set out in his letter dated 19 August 1998 which dealt with the conduct of the proceedings as follows:

1. PROCEEDINGS
1.1 The conduct of proceedings will generally follow Part 72 Rule 8 of the NSW Supreme Court Procedure.
2. TIME TABLE
2.1 On or before the 14th September 1998, the Plaintiff shall deliver to the Defendant and myself a sworn statement detailing the full nature of the dispute, any agreed statement of facts and a written submission on the dispute in support of the Plaintiff’s contention.
2.2 Thereafter, on or before the 5th October 1998, the Defendant shall deliver to the Plaintiff and myself a sworn written response to the written submission of the Plaintiff.
2.3 If deemed absolutely essential and upon written application by the Plaintiff to myself, I will consider allowing the Plaintiff to submit a sworn written response to the Defendant’s statement within a time to be determined by me. In this event, the Defendant will also receive consideration to a similar request upon written application to myself. Time shall however remain of the essence.
2.4 Having received the aforegoing written statements, I reserve the right if deemed necessary to call for further written submissions or documents from either and/or both parties or to call a conference meeting between the parties.
2.5 Within 21 days of all evidence having been completed, I shall submit my written expert report to the Court in accordance with Part 72 Rule 11.

13 The letter went on to deal with fees and indemnity.

14 The Referee conducted a preliminary conference on 19 November 1998, at which each party was represented by its solicitor. The directions at the preliminary conference were in these terms:

4. Referee stated that he required copies of all contract documents, drawings, specifications, correspondence, quotations, supplier and sub-contractor orders/invoices, variation orders, progress payments, defect lists, completion certificates, auditors books and financial records, all pleadings, previous expert reports (if any), witness statements, etc.

5. The proceedings will continue by documented submissions.

6. Agreed revised timetable:-

6.1 All outstanding documents from Defendant to the Referee by Monday 30 November 1998.
6.2 All financial statements from Plaintiff to the Referee by Thursday 3 December 1998.
6.3 Revised pleadings by Defendant to the Referee by Monday 21 December 1998.
6.4 Next Supreme Court directions set for 22 February 1999.

7. The revised timetable was agreed to by all parties and the Referee highlighted the importance of meeting these dates.

15 It will be seen that it was required of the parties including the defendants that they give the referee copies of all drawings, specifications, correspondence, quotations, supplier and sub-contractor invoices and many other documents, and that they were required to put forward documented submissions, and given times to do these things, up to 3 December 1998.

16 The defendants filed and it appears made available to the Referee a Position Statement dated 10 September 1999, apparently in response to the Referee’s requirement of 19 August 1998 and to the opportunity to make documented submissions provided for at the Preliminary Conference. This document set out a contention that the project incurred a net loss of $31,759.20, accompanied by reasons in which construction costs are gathered into highly generalised heads and not stated in detail. This document refers to affidavits lodged by each side with the Referee including an affidavit of Robert Tokich of 19 January 1999 which is said to set out the defendants’ case in detail. These affidavits have not been put in evidence on the Notice of Motion and I do not know in what detail the defendants put their case on construction costs to the Referee. The Report lists ten affidavits which were made during the Reference and are not on the Court file: these are not in evidence and it is not clear to me which of them were produced by one side or the other.

17 As a natural step in the comprehensible presentation of the defendants’ positions they were called upon, in their own interests, to give to the referee a table of all the costs which they claimed to have incurred on the project, with sufficient particulars to enable each item to be understood, its connection with the project to be seen and verification by reference to supporting documents to take place. There is no reference to any such schedule or table in the Referee’s Report, in the defendants’ evidence in support of its Notice of Motion or anywhere else, and the defendants left it to the Referee to ascertain what the costs were as best he could. Complaints to the effect that the Referee’s proceedings were not fair, or that he misunderstood or misapplied information, have to be approached with an understanding that there were procedural opportunities for the defendants to put forward their case in writing in a clear way, and to bring forward any relevant documents, and that far from declining to consider documents the referee explicitly directed production of relevant documents and, except by limiting times which in the event were greatly exceeded, did nothing to limit the defendants’ opportunity to produce documents.

18 The first group of objections to the Report, which were made in writing in a document which counsel handed to me, were gathered under the heading: “A. Denial of Natural Justice”. The objections are in these terms:

(a) it is contrary to the principles of natural justice;
(b) it is made without permitting the defendant the opportunity of adducing evidence (despite its request) on the issue of quantum.
(c) it is made without permitting the defendant the opportunity of perusing the evidence relied upon by the Referee.
(d) it is made without permitting the defendant the opportunity of hearing the plaintiff’s evidence relied upon by the Referee or responding to such evidence.

19 The complaints that there was a denial of justice in that the Report was made without permitting the defendants the opportunity of adducing evidence despite their request on the issue of quantum are based on evidence of events relating to and following an inspection of the property.

20 In paras 21-23 of Mr Robert Tokich’s affidavit of 15 October 2001 in support of the Notice of Motion Mr Tokich says to the effect that at the inspection on the site on 23 October 2000 he told the Referee “I have brought all this paperwork for you so that it might assist you with respect to your report. Are you interested in looking at any of these documents? Do you want a copy of the plans and specifications and the contract?” He says that the Referee replied: “No, I’ve got everything, All I need is a legible copy of the cashbook.” During the inspection Mr Tokich accompanied the Referee, showed him the works and explained various matters to him. The Referee also spoke with Mr Roger Shiels, one of the plaintiffs. On this day Mr Tokich gave the Referee the original cash book a copy of which he already received. The complaint voiced in para 23 of the affidavit is that the only document the Referee required was the cash book, that he offered him copies of plans and other documents including “all and any working documents in my possession” and that they were rejected. This is the basis of Complaints A(a) and A(b).

21 Not having given all relevant documents to the Referee, although called upon to do so at the outset of the reference, Mr Tokich complains that it is unfair that on the occasion of an inspection more than two years after embarking on the reference the Referee did not accept a generalised proffer of documents. There is no substance in the view that the Referee rejected or refused to consider any documents which the defendants put before him. What appears from the evidence is that when he got nothing in the way of supporting material in compliance with his directions, the Referee on his own initiative sought the cash book and obtained it, and set himself in motion as best he could to ascertain what the costs were. There is no reason to think that the Referee did not do his best, or did not do as well as he could in the face of the difficulty of the defendants’ not having complied with directions, brought their documents forward or identified what they claimed with clarity and detail. Further it appears that when after about two years’ delay Mr Tokich brought up the subject of providing documents while the Referee was conducting an inspection, the Referee got on with the business in hand namely the inspection, with the aid of the cash book which he had already been given. It does not seem to me surprising that a discussion about the prospect of furnishing documents which had not been furnished over the previous two years did not claim a great deal of the Referee’s attention. The event is in no way a demonstration that if Mr Tokich had done what it was obviously in the defendants’ interests to do and furnished the Referee with all relevant supporting material the Referee would not have used it. The way to do it was to send him the documents, not to raise, after a delay of two years, the prospect that that might be done.

22 Complaint A(c) to the effect that the Report was made without permitting the defendants the opportunity of perusing the evidence relied on is based on the inclusion of Document 17 in the list (Annexure E to the Report) of documents provided in evidence. The description of Document 17 is “Letter from Tony Commisso & Co. dated 27th October 1998.” Mr Robert Tokich says in his affidavit to the effect that he has not seen that letter and that he made a request, on a date which he does not state but was apparently after receiving the Referee’s Report, for a copy of the letter and was not provided with it.

23 It will be recalled that Tony Commisso & Co. is the firm of accountants employed by the defendants which according to cl.2 of the Deed of Agreement was to certify the amount of the profit, but did not do so as the defendants did not give them any instructions. The fact that the defendants did not follow the contractual machinery and obtain the certificate from their own accountants, although they were in a position which the plaintiffs could not possibly match to muster information relating to the cost of the job, is an indication in a small way that if certification had been embarked on it probably would have been adverse to the defendants. The contents of the letter have not been shown by evidence in support of the Notice of Motion, and it cannot be seen whether it was or could have had any influence on the Referee’s findings and Report, or whether that influence could have been adverse to the defendants. It was of course open and it was forensically incumbent on the defendants to show what the contents of the letter were when embarking on an attack on the Report based on a complaint that there had been a denial of natural justice, but no endeavour was made to adduce the contents of the letter in evidence. Of course much more could have been done than to make a telephone request of the Referee for production of a copy. Tony Commisso & Co. cannot have told the Referee much about something which they were never instructed to determine.

24 Complaint A(d) is to the effect that the Report was made without permitting the defendant the opportunity of hearing the plaintiffs’ evidence relied upon by the Referee or responding to such evidence. Annexure E to the Report lists the affidavits made in the course of the reference and not put in evidence before me. Mr Robert Tokich’s evidence shows that in the course of the inspection in October 2000 he accompanied the Referee and explained all matters which he wished to explain. He complains that the Referee also spoke to Mr Shiels, but he does not say whether this was in his hearing, and he gives no circumstances which might show whether or not Mr Tokich was in any way excluded from participation, or what was under discussion. The contention that the defendants were, in this respect or any respect, not permitted an opportunity of hearing the plaintiffs’ evidence is lacking in substance.

25 Section B of the Objections to the Report sets out a number of matters as Misapprehension of the Evidence. Complaint B(a) relates to site acquisition costs. It is alleged that the site acquisition costs did not include the deposit, stamp duty and legal fees paid. This is dealt with in the Report paras 13-16. As there appears, the Referee accepted the defendants’ claim as shown in an affidavit by Mr Robert Tokich, notwithstanding the absence of detailed back-up to Mr Robert Tokich’s calculation. The Report shows that the Referee had regard to there being stamp duty and legal costs in addition to the net purchase price to which the plaintiffs’ submissions had referred. It cannot be seen whether the items now complained of were within the defendants’ earlier claim, which did not have detailed back-up, or were outside it. The defendants’ claim was accepted and they now complain of this. This cannot be a subject on which there was any misapprehension. There is no ground for re-opening consideration of the Referee’s findings.

26 Claim B(2) relates to construction costs. It is said “The construction cost did not include the payments to T & T Homes Pty Ltd.” Mr Robert Tokich explains in his affidavit before me that a cheque dated 26 September 1997 for $100,000 referred to in the cash book was paid to T & T Homes Pty Ltd in reimbursements of materials purchased for the project. The Referee addressed the lack of any payment to Joe Tokich who the defendants claimed was the builder in the project; no payment to Joe Tokich appears in the cash payment journal. For this reason the Referee set aside the supposed building contract with him in calculating the actual costs of construction. Important in the context is that Joe Tokich is the father of Mr Robert Tokich who is the principal of the defendants. With respect to T & T Homes Pty Ltd the Referee said in his Report at para.12(c) “Project Management – the only costs claimed under this heading relate to payments made to T & T Homes. The relationship of this company with this project is not known. However these payments do not appear until May 1997 at which time the project has been running for over six months. Further details are required before the costs can be accepted as relating to this project.”

27 The Referee gave what on its face was a well-considered and sound reason for not accepting a payment to T & T Homes as a cost of the project. Any reasonable person addressing the facts would find difficulty in accepting that the payment of $100,000, said to be materials purchased for the project, actually was a cost of the project, without a fuller understanding of what was involved in the payment than the cash book could show. The defendants did not in evidence before me advance, by any credible evidence, any substantial grounds for accepting that the payment of $100,000 was a cost of the project; an overall statement that the payment was “in reimbursement of materials purchased for the project” in Mr Robert Tokich’s affidavit had no real weight to that end. In my view there is no substantial basis for concluding that the Referee misapprehended the evidence, or that the Court should re-open consideration of this payment.

28 Complaint B(c) is “The construction costs did not include the payments made to Burwood Council Tip … [additional cost $118.80].” In the Report the Referee said at para 9 “Examination of the Cash Payment Journal indicates that the costs scheduled include some payments which certainly do not relate to this project (eg payments for Hampton Road, 32 St Georges Crescent and Cheltenham Park Development) and other payments which do not relate to construction costs (eg fines, MBF insurance and examination fees). It was therefore decided to review the construction costs from first principles using the Cash Payment Journal as a basis. It should be noted that allocation of costs could only be based on the descriptions included in the Journal since no invoices or other backups have been provided.” In his affidavit before me Mr Robert Tokich showed that “Cheltenham Road Park Development” is the name used by Burwood Council for a site at Cheltenham Road Croydon at which, in 1997, the Council permitted filling materials to be disposed of. It is fairly clear that the referee misunderstood what the payment of $118.80 which in the cash book was connected with Cheltenham Park Development was for. However the Referee’s observations that the cost schedule included some payments which certainly did not relate to the projects at Regatta Road, Canada Bay, is undoubtedly correct, and is not shown to be incorrect by the explanation relating to Cheltenham Road Development. Nor could the Referee’s conclusions be affected in any material way by a misallocation of $118.80. There is no substance in this complaint.

29 Complaint B(d) is “The quantity survey estimate of Newton Fisher was in the sum of $1,340,000 and not $1,264,000 as referred to in the Report.” It is correct that there was a misstatement of the quantity survey estimate as complained of, but the figure was not integrated into any reasoning of the Referee which produced a conclusion about costs or profits.

30 Complaint B(e) is “The Referee adopts the quote of Deltown in the sum of $1,045,000 ‘as the starting point in calculating a reasonable arm’s length construction cost for the project.” The passage referred to is in para.33 of the Report. Earlier in the Report in answer to Question 1 the Referee had shown reasons for a conclusion to the first question referred to him relating to the profit as defined in cl.2(ii) of the Deed of Agreement. In the course of doing so he referred at paras 5 and 6 to construction costs offered by the plaintiffs, the Deltown quote of $1,045,000, and the construction costs offered by the Defendants, which were based upon the figure $1,375,000 in the construction contract with Joe Tokich; it will be recalled from earlier in these reasons that the referee did not adopt that contract as having been implemented and therefore set it aside in calculating the actual cost of the construction. At a later point the Referee turned to Question 2 relating to the profit assuming a contractor at arm’s-length from the proprietor, and at paras 32 and following reviewed a number of estimated construction costs included in the documents. The Deltown tender dated 6 June 1996 of $1,045,000 was one of these. The Referee stated at para 33 “Since this is the only arms length tender, it has been adopted as the starting point in calculating a reasonable arms length construction cost for the project.”

31 As appears from his later reasoning, the Referee was fully aware that the actual construction did not take place according to the drawings upon which the Deltown tender was based, and he made many adjustments to allow for variations. Given that the nature of the exercise was ascertaining the profit in a hypothetical arm’s-length arrangement between owner and builder, where the work had not in fact been carried out under an arm’s-length arrangement, and given the absence of any alternative material and the Referee’s consciousness of the need to make adjustments and his having made adjustments, I am of the view that his method was not vitiated by adopting the Deltown quote as a starting point. In any event, only the Referee’s consideration of Question 2 relating to profit at arm’s-length could be affected, and it will be seen from the table at p.4 of his Report that profit at arm’s-length does not differ greatly from the profit as determined in answer to the Question 1.

32 Complaints under C relate to its being said that the Report is incomplete. Complaint C(a) is Paragraph 12(c) of the Report relating to the costs of construction “Further details are required before these costs can be accepted as relating to this project.” This passage must be taken in its context in the Report as a whole which was clearly intended to be final. In context this passage should be understood as stating to the effect that the defendants had failed to establish that any further costs should be allowed, and that the conclusion was influenced by the defendants’ not having discharged their forensic burden.

33 Complaint C(b) relates to para.12(g) of the Report, which deals with significant payments on AMEX (American Express Credit Card). It is complained that they were rejected without reasoning or an opportunity to be heard. There is no substance in this complaint. The defendants had as full an opportunity as they wished to take to put forward any justification for any cost in the cash book, and it was altogether inevitable that a cost for which no explanation was available in the cash book, and no explanation was offered except that it was paid on an American Express Card, would not be allowed.

34 It has not been shown to me that the Referee’s consideration was in any relevant way incomplete or inadequate, or that his proceedings were in any way unfair to the defendants.

35 For these reasons I order:

The defendants’ Notice of Motion filed on 16 October 2001 is dismissed with costs.
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Last Modified: 11/27/2001