Gate Gourmet Australia Pty Limited (in liquidation) ACN 089 347 562 v Gate Gourmet Holding AG, Company Number Ch-020.3.003.945-1 & Ors [2005] NSWSC 292

New South Wales Supreme Court

CITATION : Gate Gourmet Australia Pty Limited (in liquidation) ACN 089 347 562 v Gate Gourmet Holding AG, Company Number Ch-020.3.003.945-1 & Ors [2005] NSWSC 292

HEARING DATE(S) : 31 March 2004

JUDGMENT DATE : 31 March 2005

Equity Division JURISDICTION : Commercial List

JUDGMENT OF : Einstein J

DECISION : Part 72 reference to be ordered

CATCHWORDS : Quantification of debts of plaintiff in liquidation and ancillary questions inappropriate for decision by Judge - Part 72 reference

Evidence Act LEGISLATION CITED : Trade Practises Act

Gate Gourmet Australia Pty Limited (in liquidation) ACN 089 347 562 (Plaintiff) Gate Gourmet Holding AG, Company Number CH-020.3.003.945-1 (First Defendant) Gate Gourmet (Holdings) Pty Limited ACN 004 122 872 (Second Defendant) Odd Gunnar Engebretsen (Third Defendant) PARTIES : Lars Fredrik Larsen (Fourth Defendant) Henning Boysen (Fifth Defendant) Lucas Grolimund (Sixth Defendant) Gate Gourmet Switzerland GMBH (Seventh Defendant)

FILE NUMBER(S) : SC 50180/01

Mr B Coles QC, Ms E Collins (Plaintiff) COUNSEL : Mr M Pembroke SC, Mr J Stoljar (Second, Fifth, Sixth and Seventh Defendants)

Clayton Utz (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Second, Fifth, Sixth and Seventh Defendants

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

Einstein J

Thursday 31 March 2005 ex tempore Revised 5 April 2005

50180/01 Gate Gourmet Australia Pty Limited (in liquidation) ACN 089 347 562 v Gate Gourmet Holding AG, Company Number Ch-020.3.003.945-1 & Ors JUDGMENT The notice of motion 1 There is before the Court a notice of motion filed on 18 March 2005 brought by the plaintiff for an order appointing a Part 72 Referee to enquire and to report on the following questions arising in the proceedings: · what are the debts of the plaintiff in the liquidation; · what was the total amounts of those debts; · what payments have been made by the Administrator and the Liquidator in the course of the administration and subsequent liquidation; · what receipts have been received by the Administrator and the Liquidator in the course of the administration and subsequent liquidation. 2 An order was made pursuant to Part 31, rule 2 of the Supreme Court Rules separating out [to be heard after the hearing of all other issues in the proceedings] the quantification of the plaintiff's damages, if any. 3 The first tranche hearing took place in early March 2004 and a judgment was delivered on 31 Mar 2004 [2004] NSWSC 149. 4 There have been extensive disagreements between the parties between the date of delivery of that judgment and the present time concerning the interlocutory processes said to be necessary to ready the proceedings for the second tranche hearing. A short summary taken from the plaintiff's contentions [made in submissions dated 22 March 2005] in this regard is as follows: · the determination of the quantum of damages to be awarded to the plaintiff will involve, for both the contractual and Trade Practises Act measures, a consideration of: