HOWELL v FINE REAL ESTATE NETWORK PTY LTD [1998] NSWCA 109

HOWELL v FINE REAL ESTATE NETWORK PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, SHELLER JA and FITZGERALD AJA 2 December 1998, 16 December 1998

[1998] NSWCA 109

PARTNERSHIP dispute — no grounds for interference with trial judge's acceptance of findings of referee despite disparity between schedule of reference and referee's report — grounds for interference in relation to trial judge's characterisation of interest on a non-partnership loan as a "partnership expense" — as insufficiently supported by the evidence — consequent adjustment of the amount for which appellant/cross-respondent liable.

Mason P I agree with Fitzgerald AJA. Sheller JA I agree with Fitzgerald AJA.

Fitzgerald AJA This proceeding involves an appeal and cross-appeal from orders made in the Equity Division on Friday 30 August 1996 in a proceeding in which the first respondent/cross-appellant is the plaintiff and a cross-defendant, the appellant is the defendant/cross-claimant, and the other two respondents are also cross-defendants. Those orders were as follows:

"1. The Court adopts the report of the referee dated 6 March 1996 subject to the variations referred to in the reasons for judgment delivered on 19 August 1996 and 30 August 1996.

2. The Court orders the [appellant] to the pay to the [the first respondent/cross-appellant] the sum (including interest to date) of $445,395.

3. The Court orders that the cross-claim be dismissed.

4. The Court orders that the [appellant] pay the [the first respondent/cross-appellant] and the [second and third respondents] their costs of the proceedings (including the costs of the reference)."

In this Court, the appellant seeks orders that the judgment of 30 August 1996 and the consequential orders for costs be set aside, that there be a verdict in his favour "... in a sum to be ascertained by a fresh accounting", and that the respondents be ordered to pay his costs, including his costs of the appeal. The first respondent/cross-appellant also requests that the judgment of 30 August 1996 be set aside, but in lieu it seeks an order that the appellant pay it the sum of $560,138 together with "... interest at the Supreme Court rate on the sum of $560,138 from 24 November 1994 to 30 August 1996", with further orders that he pay its costs "before the learned Referee and the Court on an indemnity basis", and its costs of the appeal.