Via Sanantonio Pty Limited v Walker Corporation Pty Limited & Anor [2009] NSWSC 1361

New South Wales Supreme Court

CITATION : Via Sanantonio Pty Limited v Walker Corporation Pty Limited & Anor [2009] NSWSC 1361

HEARING DATE(S) : 30 November 2009

JUDGMENT DATE : 8 December 2009

JUDGMENT OF : Bergin CJ in Eq

DECISION : Report to be adopted

CATCHWORDS : [REFEREES] - Adoption of Report - Whether Referees' applied inappropriate test - Whether Referees' erred in rejecting expert evidence

Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284 CASES CITED : Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300 Via Sanantonio v Walker Corporation [2009] NSWSC 679

PARTIES : Via Sanantanio Pty Limited (Plaintiff) Walker Corporation Pty Limited (First Defendant)

FILE NUMBER(S) : SC 50192 of 2006

COUNSEL : JA Arnott (Plaintiff) JB Simpkins SC/FP Hicks (First Defendant)

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

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

BERGIN CJ in Eq

8 DECEMBER 2009

50192 OF 2006 VIA SANANTONIO PTY LIMITED v WALKER CORPORATION PTY LIMITED & ANOR JUDGMENT 1 By proceedings commenced on 5 December 2006 the plaintiff, Via Sanantonio Pty Limited, claimed an interest in certain option deeds held by the first defendant, Walker Corporation Pty Limited (the defendant). The claims arose out of a proposed development of land at Coonarr Beach, Queensland (the Land). The principal of the first defendant was joined as second defendant but no orders were made against him in the proceedings. The proceedings were settled on 4 February 2008 when orders were made by consent which included a declaration that the defendant held the Land on constructive trust as to one half for the plaintiff. 2 The settlement regime included provision for the plaintiff to pay the defendant 50% of the proper and reasonable costs incurred, or to be incurred, in seeking or obtaining any development approvals and re-zoning with respect to the Land. The settlement regime also included provision that in default of agreement in relation to the amount of the proper and reasonable costs, there would be an inquiry held by an Associate Judge. 3 The parties were not able to reach agreement in respect of those costs and on 5 September 2008 the parties agreed to refer certain issues to two Referees rather than pursue the inquiry before the Associate Judge. The orders made by consent on 5 September 2008 referred the determination of the quantum of "all proper and reasonable costs incurred, or to be incurred, by the first defendant in respect of the said Option Deeds, and seeking or obtaining any development approvals and re-zoning with respect to the lots" to two Referees, Ms S Duggan and Mr C Catt (the Referees). 4 The Referees delivered their report to the Court on 27 April 2009 (the first report). On 19 June 2009 McDougall J heard competing Notices of Motion in which the plaintiff sought the rejection in whole, or in part, of the first report and the defendants sought the adoption of the first report. 5 McDougall J held that the Referees did not deal with the submission that the first development application submitted by the defendant was "doomed to fail". His Honour noted that the plaintiff wished to submit to the Referees that the costs incurred in respect of that first application could not be said to be proper and reasonable costs of seeking or obtaining development approval: Via Sanantonio v Walker Corporation [2009] NSWSC 679 at [4]-[5]. 6 On 19 June 2009 orders were made remitting the matter to the Referees to consider and report further upon the following questions: