McMahon v Livingstone and Ors (Sheahan - cross-claimant); Sheahan v Scott & Ophix Pty Ltd [2003] NSWSC 1082

New South Wales Supreme Court

CITATION : McMahon v Livingstone and Ors (Sheahan - cross-claimant); Sheahan v Scott & Ophix Pty Ltd [2003] NSWSC 1082 HEARING DATE(S) : 29 and 30 September and 1 and 2 October 2003 JUDGMENT DATE : 25 November 2003 JURISDICTION: Equity Division JUDGMENT OF : Windeyer J at 1 DECISION : Accounts decided

In 2000 of 1998 Brian McMahon (Plaintiff/Third Cross-Defendant) Kenneth Livingstone (First Defendant/Fourth Cross-Defendant) John Joseph Scott (Second Defendant/First Cross-Defendant) PARTIES : Ophix Finance Corporation Pty Limited (Third Defendant/Second Cross-Defendant) John Sheehan (as trustee for Kenneth Livingstone) (Fourth Defendant/Cross-Claimant) In 5577 of 2002 John Sheahan (Plaintiff) John Joseph Scott (Defendant) FILE NUMBER(S) : SC 2000 of 1998; 5577 of 2002 COUNSEL : Mr J E Marshall SC with him Ms J Thornton (Fourth Defendant/Cross-Claimant in 2000 of 1998; and Plaintiff in 5577 of 2002) Mr P B Walsh (Second and Third Defendants/First and Second Cross-Defendants in 2000 of 1998 and Defendant in 5577 of 2002) Deacons (Fourth Defendant/Cross-Claimant in 2000 of 1998; and Plaintiff in 5577 of 2002) SOLICITORS : Church and Grace (Second and Third Defendants/First and Second Cross-Defendants in 2000 of 1998; and Defendant in 5577 of 2002)

- 4 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

TUESDAY 25 NOVEMBER 2003

2000/98 MCMAHON V LIVINGSTONE & ORS, JOHN SHEAHAN (Cross Claimant) 5577/02 SHEAHAN V SCOTT & OPHIX PTY LTD JUDGMENT (on accounts) Procedural Outline 1 This judgment concerns accounts ordered to be taken between the cross-claimant Mr Sheahan ("Sheahan"), and the first and second cross-defendants Mr Scott ("Scott") and Ophix Finance Corporation Pty Limited ("Ophix") as a result of a judgment in the proceedings of 16 February 2001 and a supplementary judgment of 13 December 2001. 2 These reasons must be read with those earlier judgments. By orders made pursuant to those judgments on 21 March 2001 and 15 July 2002, the accounts were to be taken by a Master. However, agreement was reached on many items, at least to amount, if not liability and as the liability questions were the most significant, both parties to the account asked that I determine those issues and then all issues on the accounts. I agreed to do so under orders made by me on 23 May 2003. 3 These reasons will determine the objections still maintained as to the entitlement of Scott and Ophix to charge certain payments against the fund of which the cross-claimant is now trustee, and in a few instances will determine whether the amounts claimed are correct. When this is done the cross-claimant will be able to bring in a draft certificate and the parties will be able to make the necessary interest calculations to enable the amount of the final certificate to be ascertained and judgment entered for that final amount. 4 Proceedings No 5577 of 2002 between Sheahan as plaintiff and Scott as defendant, relate to some of the items on the account which can be referred to as "Bagshaw payments". Those proceedings were heard in part with the proceedings on the account and it will be possible to make orders in those proceedings when the accounts are determined. To that extent this judgment is in both actions. Quantum objections 5 These are limited to: