Caska v Leigh [2018] NSWSC 466

Supreme Court New South Wales

Medium Neutral Citation: Caska v Leigh [2018] NSWSC 466 Hearing dates: 6 November 2017 Date of orders: 18 April 2018 Decision date: 18 April 2018 Jurisdiction: Equity Before: Ward CJ in Eq Decision: (1) Order pursuant to r 20.24(1) of the Uniform Civil Procedure Rules 2005 (NSW) that the report dated 12 February 2016, as supplemented and amended by the report dated 26 July 2017, of the court-appointed referee (Mr Richard Ivey of Tremain Ivey Advisory) be adopted: (i) without limitation, as to the following findings: (a) that no consideration was given for alleged sales of sheep to Kathleen Gail Leigh in January 1998; and (b) that the livestock sales in Bollon, Queensland in August/September 1996 were made by 'de facto' vendors and the head of sheep sold had, consequently, not been taken into account in the livestock trading accounts (5,052 head of sheep); (ii) otherwise subject to the limitation that the conclusions expressed by the referee as to the adequacy of the accounts that have been prepared from an accounting standpoint and as to the assets and liabilities of the partnership and the interests of the partners as at 30 June 2001 are adopted only if the underlying assumptions (whether stated in the report or not) as to the factual matters recorded in the accounts are either not disputed or, if disputed, proven to be correct. (2) Direct the parties to file any brief written submissions as to costs within 7 days with a view to the issue of costs being dealt with on the papers. (3) Direct any party who contends that it is not now appropriate for the summons otherwise to be dismissed to file brief written submissions within 7 days as to why that is the case. Catchwords: CIVIL PROCEDURE – Referral to referee – Applications for adoption in part or in whole of referee's reports Legislation Cited: Supreme Court Rules 1970 (NSW), Pt 72 rr 8, 13 Uniform Civil Procedure Rules 2005 (NSW), rr 20.17(1)(b), 20.24(1), 20.24(2), 31.23(3) Cases Cited: ABB Engineering Construction Pty Ltd v Abigroup Contractors Pty Ltd [2003] NSWSC 665 BestCare Foods v Origin Energy [2012] NSWSC 574 Chocolate Factory Apartments Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784 Eko Investments Pty Ltd v Austruc Constructions Ltd [2009] NSWSC 208 Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd (2013) 84 NSWLR 410; [2013] NSWCA 6 Super Pty Ltd v SJP Formwork (Australia) Pty Limited (1992) 29 NSWLR 549 Walkabout 11 Pty Ltd v Jabulani Pty Ltd [2015] NSWSC 1569 Texts Cited: Young, Croft and Smith, On Equity (LawBook Co, 2009) Category: Principal judgment Parties: John Pius Caska (Plaintiff) Darryl Wayne Leigh (Defendant) Representation: Counsel: M Bennett (Plaintiff) G Rundle (Defendant)