Via Sanantonio v Walker Corporation [2009] NSWSC 679

New South Wales Supreme Court

CITATION : Via Sanantonio v Walker Corporation [2009] NSWSC 679

HEARING DATE(S) : 19 June 2009 JURISDICTION : Equity Division Commercial List

JUDGMENT OF : McDougall J at 1

EX TEMPORE JUDGMENT DATE : 19 June 2009

DECISION : See paragraph [34] of the judgment.

CATCHWORDS : PRACTICE - challenge to referees' report - no question of principle. - COSTS - meaning of 'proper and reasonable costs' - whether costs incurred were 'proper and reasonable'.

LEGISLATION CITED : Uniform Civil Procedure Rules

CATEGORY : Procedural and other rulings

Chocolate Factory Apartments Pty Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784 CASES CITED : Seven Sydney Pty Ltd v Fuji Xerox Australia Pty Ltd [2004] NSWSC 902 Thiess Watkins White Construction Limited v Commonwealth of Australia (1998) 14 BCLR 61

Via Sanantonio Pty Limited (Plaintiff) PARTIES : Walker Corporation Pty Limited (First Defendant) Langley Alexander Walker (Second Defendant)

FILE NUMBER(S) : SC 50192/06

COUNSEL : J A Arnott (Plaintiff) J M Ireland QC / F P Hicks

SOLICITORS : Morgan Lewis Attorneys (Plaintiff) Colin Biggers & Paisley (Defendant)

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

McDOUGALL J

19 June 2009 (ex tempore – revised 6 July 2009)

50192/06 VIA SANANTONIO PTY LIMITED v WALKER CORPORATION PTY LIMITED & ANOR JUDGMENT 1 HIS HONOUR: There are before the Court competing notices of motion relating to a report provided to the Court by two referees on 27 April 2009. Pursuant to UCPR rule 20.24, the defendant seeks adoption of the report and judgment and consequential orders following from adoption. The plaintiff seeks the rejection in whole, alternative in part of the report; that the matter be sent back to the referees for certain purposes; and consequential relief. 2 The necessity for the report arose out of the compromise of these proceedings (at the level of principle) effected pursuant to short minutes of order dated 4 February 2008. By clause 4 of those short minutes of order, the plaintiff agreed to pay 50 per cent of certain costs incurred or to be incurred by the defendant in the manner set out in paragraph 4. By paragraph 5, if the parties could not agree as to the amount payable, an inquiry was to be held before an Associate Judge. By paragraph 6, the plaintiff was to pay the amount found due pursuant to that inquiry. The mechanism of reference out was substituted for inquiry. I set out paragraphs 4, 5, and 6 of the short minutes of order: