Gazzana v Santamaria (No 2) [2016] NSWSC 1555

Supreme Court New South Wales

Medium Neutral Citation: Gazzana v Santamaria (No 2) [2016] NSWSC 1555 Hearing dates: On the papers Decision date: 04 November 2016 Before: Ball J Decision: See paragraphs 23 to 26 of this judgment. Catchwords: PARTNERSHIP – dissolution – no issue of principle Cases Cited: Gazzana v Santamaria [2015] NSWSC 916 Category: Principal judgment Parties: Antonio Gazzana (Plaintiff) Antonino Santamaria (First Defendant) Antonio Santamaria Excavation and Demolition Pty Ltd (Second Defendant) Representation: Counsel: C Bolger (Plaintiff)

Solicitors: Chatswood Law (Plaintiff) Russo & Partners (Defendants) File Number(s): 2013/52967 Publication restriction: None

Judgment

Introduction 1. These proceedings concern the winding up of a partnership between the plaintiff and the first defendant, which carried on a business between August 2009 and December 2012 of providing building and construction services, including civil works, demolition and excavation works. 2. The proceedings have had a long history. Originally, they came before the court on 20 February 2013 on an application by the plaintiff for an interlocutory injunction to restrain the first defendant from obtaining possession of certain equipment that had been used in the partnership business. 3. On 16 September 2013, Lindsay J by consent made certain declarations and orders. The declarations included relevantly a declaration that "the plaintiff and first defendant agreed to conduct and operate the business [meaning the partnership business] through the second defendant". To say that the plaintiff and the first defendant agreed to operate the business "through the second defendant" in the context means that the second defendant operated the business as agent for the plaintiff and first defendant. The orders included orders that (a) the partnership be declared to be dissolved as from 14 December 2012, (b) that the partnership be wound-up under the direction of the court and (c) that an inquiry be taken of all the dealings and transactions of the partnership and of the plaintiff and defendants in relation to the partnership and as to what the assets of the partnership were and the parties' respective interests in them. 4. On 17 September 2014, Darke J ordered by consent that a number of questions identified by the parties be determined separately and before any other trial of the proceedings. It was envisaged that following the determination of those separate questions, the matter could be referred to a court appointed accounting expert to enquire and report on the assets and liabilities of the partnership and the income and expenses of the partnership. 5. On 13 July 2015, I delivered judgment in relation to the separate questions: Gazzana v Santamaria [2015] NSWSC 916. Since that time, the parties have engaged in a protracted process to try to agree on a set of accounts to avoid the necessity of referring the matter to an accounting expert. Although lengthier than it should have been, the process has not been without success. Most items have been agreed, with the result that only a limited number of issues remain to be determined. 6. In an endeavour to save costs, the parties agreed that the court should determine the outstanding issues on the papers. On 19 September 2016, I gave directions for the filing of submissions and the identification of evidence to enable that to happen. However, the results of that process have not been altogether satisfactory. The defendants were late in filing submissions. Although those submissions made a number of factual allegations, those allegations were not supported by any evidence; and it is fair to say that the factual material before the court relevant to the determination of the outstanding issues is scant. Despite that, I have concluded that it is preferable to determine the outstanding issues on the available material rather than seek additional information from the parties. As I have said, the process of winding up the partnership has already been protracted. The likelihood is that the costs incurred by the parties are already disproportionate to the sums in dispute. It is apparent that the defendants, in particular, have limited resources. In those circumstances, it seems to me that the court should do the best it can on the available material, rather than put the parties to further expense and delay.