Trident Austwide Pty Ltd v Bagcorp Pty Ltd as trustee for the Rico Tea Trust (No 2) [2024] NSWSC 587

Supreme Court New South Wales

Medium Neutral Citation: Trident Austwide Pty Ltd v Bagcorp Pty Ltd as trustee for the Rico Tea Trust (No 2) [2024] NSWSC 587 Hearing dates: On the papers (submissions received 14 May 2024) Date of orders: 17 May 2024 Decision date: 17 May 2024 Jurisdiction: Equity Before: Hmelnitsky J Decision: See [8] Catchwords: JUDGMENTS AND ORDERS — Amending, varying and setting aside — where competing proposed orders — no question of principle Cases Cited: Trident Austwide Pty Ltd v Bagcorp Pty Ltd as trustee for the Rico Tea Trust [2024] NSWSC 479 Category: Consequential orders Parties: Trident Austwide Pty Ltd (Plaintiff) Bagcorp Pty Ltd as trustee for The Rico Tea Trust (First Defendant) Headcrest Pty Ltd as trustee for The Davey Family Trust (Second Defendant) Broadbond Pty Ltd (Third Defendant) Representation: Counsel: RD Marshall SC / AD Justice (Plaintiff) N Mirzai (First Defendant) M Cobb-Clark (Second Defendant) N Loemker (as director with leave) (Third Defendant)

Solicitors: CJM Lawyers (Plaintiff) Carter Newell (First Defendant) Bell Legal (Second Defendant) File Number(s): 2022/157310

JUDGMENT 1. I delivered reasons in relation to the principal issues in dispute in these proceedings on 30 April 2024: [2024] NSWSC 479. These reasons should be read in the light of those earlier reasons. 2. The plaintiff and first defendant have now brought in competing short minutes of order to give effect to my conclusions. There is very little difference between the form of orders proposed by the plaintiff, on the one hand, and the first defendant, on the other. I have mostly but not entirely adopted the first defendant's proposed orders. It is unnecessary to comment on the competing proposals, save as to two matters. 3. As noted at [73] of my earlier reasons, Trident's ultimate entitlement will be affected by the amount of costs that the continuing partnership has borne in connection with this dispute, including the amount of Trident's costs which the defendants (being the continuing partners) will be ordered to pay. It was for this reason that I did not make final orders disposing of the proceedings at the time of publishing my earlier reasons. I note that the position I stated at [73], namely that the parties' costs would come out of the partnership, was the agreed position of the parties. 4. The first defendant has suggested that the orders should specifically note that the costs of Ms Conoulty's report should come off the equity value of the partnership. I accept that those costs should be taken into account, but I disagree that it is either necessary or appropriate to make any separate notation or order to that effect. The appropriate course is, in my view, simply to make orders that the plaintiff's and first defendant's costs as agreed or assessed be taken into account in arriving at the plaintiff's entitlement. To the extent the plaintiff and first defendant have incurred costs in connection with Ms Conoulty's report, and to the extent those costs have been agreed or assessed, those costs will be taken into account in the calculation without the need for any separate and potentially confusing order to be made about the costs of the referee's report generally. 5. Secondly, Trident has suggested that it is appropriate for the proceedings to be listed before me in a date around five months hence in order to make final orders once the outcome of the costs assessment process is known. It is to be hoped that there will be no need to make any further orders once the question of costs is resolved, either by agreement or through assessment. The declarations and orders I propose to make now should be sufficient to dispose of the whole of the dispute between the parties. That is because they specify what Trident's entitlement is, albeit an entitlement that must at least in part take account of costs that have not yet been quantified. 6. Nonetheless, against the possibility that the declarations and orders accompanying these supplementary reasons are not sufficient to resolve the whole of the dispute, I will list the matter before me at 9:30AM on 1 October 2024 for the purpose of making final orders. The parties will have liberty to apply on three days' notice if that date needs to be moved, whether forwards or backwards. 7. Finally, the orders I propose to make are somewhat more complicated than is ideal. That is a consequence of the fact that the moneys to be paid to the plaintiff on account of its costs must be accounted for as part of the partnership as at 5 November 2021, but must, as a matter of practical reality, be paid by the defendants (the continuing partners) in the present. As such, I will order that the defendants pay the plaintiff's costs as agreed or assessed, but will make orders that the amount of those costs – as well as the costs of the first defendant – be taken out of the notional equity value of the partnership from which the plaintiff's entitlement on retirement is to be determined. 8. I will make the following declarations and orders: 1. Order pursuant to rule 20.24(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW) that the report of Rebecca Conoulty dated 14 July 2023 be adopted (Referee Report). 2. Order the Defendants to pay the Plaintiff's costs of the Amended Summons and prayers 1 and 2 of the Cross Summons up to the end of the hearing on 14 May 2024 as agreed or assessed. 3. Note that the First Defendant's costs of the Amended Summons and prayers 1 and 2 of the Cross Summons (up to and including 14 May 2024) shall be taken into account in determining the plaintiff's entitlement under order 4, in an amount either agreed or assessed. 4. Declare that the Plaintiff's entitlement upon retirement from the Partnership between the parties known as Madura Tea Estates on 5 November 2021 (Plaintiff's Entitlement) is to be calculated as follows: 1. the midpoint between the high and low Equity Values identified in the Referee Report – being $22,350,000 (Equity Value); 2. less the costs of the Plaintiff and the First Defendant as noted in orders 2 and 3; and 3. divided by 100 and multiplied by 19 to identify the Plaintiff's 19% interest in the partnership. 1. Make no order as to the costs of the Second and Third Defendants with the intention that they are each to bear their owns costs of the proceeding. 2. Order the Defendants to pay the Plaintiff interest on the Plaintiff's Entitlement at 6% per annum from 5 November 2021 pursuant to section 42(1) of the Partnership Act 1892 (NSW). 3. Direct the Plaintiff to file an application for the assessment of its costs with the Manager, Costs Assessment by 4:00pm on 11 June 2024 if those costs are not agreed by that time. 4. Direct the First Defendant to file an application for the assessment of its costs with the Manager, Costs Assessment by 4:00pm on 11 June 2024 if its costs are not agreed by that time. 5. List the proceedings before me for the purpose of making final orders at 9.30am on 1 October 2024. 6. The parties have liberty to apply on three days' notice.