E Co v Q (No 3) [2018] NSWSC 646

Supreme Court New South Wales

Medium Neutral Citation: E Co v Q (No 3) [2018] NSWSC 646 Hearing dates: 1 and 7 May 2018 Date of orders: 14 May 2018 Decision date: 14 May 2018 Jurisdiction: Equity Before: Ward CJ in Eq Decision: (1) The hearing be re-opened to permit evidence (including expert evidence) to be adduced, and further submissions to be made, as to the final orders to be made in these proceedings including: as to the rent (market or otherwise) for the first defendant's properties for the period from judgment to the balance of his life expectancy; as to the potential impact of a condition for payment of that rent on the relief proposed to be granted to the third, fourth and fifth plaintiffs by way of the acceleration of their interest or equity in the first defendant's properties; as to the appropriate discount rate to be adopted for the calculation of the net present value of the notional future rent over the balance of the first defendant's life expectancy; and as to the matters otherwise referred to at [64] of these reasons and the "variables" referred to in the first defendant's submissions dated 27 April 2018. (2) List the matter for further hearing as to final relief on 19-21 November 2018. (3) Direct that the first defendant notify the plaintiffs within 28 days of provision by the plaintiffs to the first defendant of the last three years' financial statements of the unlisted companies in which the second plaintiff holds shares as to whether the first defendant requires there to be a valuation of his shares in the first and second plaintiffs or agrees that those shares should be taken to have no or nominal value. (4) In the event that the first defendant requires there to be a valuation of his shares in the first and second plaintiffs, appoint Ms Fiona Bateman of Dolman Bateman pursuant to UCPR 31.46 to be the Court appointed expert in order to determine the value of the first defendant's shares in the first and second plaintiffs in accordance with a letter of instruction in the form proposed by the first defendant but with: amendment to paragraph 7(b) to allow for alternative assumptions as to the rent to be payable for the subject properties in accordance with the expert evidence of the real estate valuers to be appointed by the respective parties in accordance with these orders; amendment to paragraph 7(c) to allow for the alternatives of a calculation by reference to forensic tables, as proposed by the first defendant or a calculation by reference to any expert actuarial evidence relied upon by the plaintiffs; and with the date for submission of the report a date [to be specified] after the timetable for expert evidence has been finalised. (5) Direct the plaintiffs to file and serve any further evidence contemplated by order 1 above, including expert evidence, by [a date to be specified]. (6) Direct the first defendant to file and serve any evidence, including expert evidence, in response to the plaintiffs' further evidence by [a date to be specified]. (7) Where there is expert evidence by more than one valuer on any particular issue, the experts are to meet in conclave by no later than [a dated to be specified] and to prepare a joint report identifying the matters the subject of agreement and disagreement between the experts; such report to be filed and served by [a date to be specified]. (8) The matter be relisted for further directions on [a date to be specified]. (9) Direct the parties through their legal representatives, to confer as to the timetable to be set in accordance with the above orders and to advise my associate by close of business on 18 May 2018 if there is any amendment or variation sought (by agreement or otherwise) in relation to these orders for the purpose of the further hearing of this matter in November this year. (10) Costs in relation to the directions hearings on 1 and 7 May 2018, and the application by the plaintiffs to adduce further evidence and to make further submissions as to the final orders for relief, be reserved. Catchwords: CIVIL PROCEDURE – Whether leave is required to re-open to make further submissions as to relief and/or adduce further evidence after reasons published but before entry of final orders – whether, if leave is required such leave should be granted Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Uniform Civil Procedure Rules 2005 (NSW), rr 31.46, 36.16 Cases Cited: ADM v FDGK [2018] NSWSC 442 Autodesk Inc v Dyason (1992) 173 CLR 330; [1992] HCA 2 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49 Barnes v Addy (1874) LR 9 Ch App 244 Bosevski v Avopiling Pty Ltd (No 2) [2018] NSWSC 205 Citibank Ltd v Papandony [2002] NSWSC 678 Colin R Price & Associates Pty Ltd v Four Oakes Pty Ltd (2017) 251 FCR 404; [2017] FCAFC 75 Compagnie Noga D'Importation et D'Exportation SA v Abacha ([2001] 3 All ER 513 EIliott v R; Blessington v R (2007) 234 CLR 38; [2007] HCA 51 Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 Ian Rodda Pty Ltd v Rodda (No 2) [2015] SASC 128 ICI Chemicals & Polymers Pty Ltd v Lubrizol Corp Inc [1999] FCA 662; 45 IPR 617 Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 New Cap Reinsurance Corporation Ltd v Grant [2009] NSWSC 950 Newmont Yandal Operations Pty Ltd v The J Aron Corporation (2007) 70 NSWLR 411; [2007] NSWCA 195 Papandony v Citibank Ltd (Supreme Court (NSW), Gzell J, 14 May 2002, unrep) Paul's Retail Pty Ltd v Morgan [2009] NSWSC 1343 Permanent Custodians Ltd v Geagea (No 4) [2016] NSWSC 934 Rodda v Ian Rodda Pty Ltd [2015] SASC 95 S & E Promotions Pty Ltd v Tobin Brothers Pty Ltd [1994] FCA 331; 122 ALR 637 Safaro v Bonarrigo [2009] VSC 594 Smits v Buckworth (No 2) (Supreme Court (NSW), Young J, 14 November 1997, unrep) Spencer v The Commonwealth (1907) 5 CLR 418; [1907] HCA 82 State Rail Authority v Codelfa Construction Pty Ltd (1982) 150 CLR 29; [1982] HCA 51 The Silver Fox Company Pty Ltd v Lenard's Pty Ltd (as trustee for the Baker Family Trust) (No 2) [2004] FCA 1310 Todorovic v Waller (1981) 150 CLR 402; [1981] HCA 72 Twenty-First Australia Inc v Shade [1998] NSWSC 325 Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 Wentworth v Rogers [2002] NSWSC 921 Wentworth v Wentworth [1999] NSWSC 638 Texts Cited: Professor McFarlane, The Law of Proprietary Estoppel (Oxford University Press, 2014) Category: Procedural and other rulings Parties: "E Co" (First Plaintiff) "EM Co" (Second Plaintiff) "A" (Third Plaintiff) "B" (Fourth Plaintiff) "C" (Fifth Plaintiff) "First Defendant" (First Defendant) "Second Defendant" (Second Defendant) Representation: Counsel: A McInerney SC with N Kabilafkas (Plaintiffs) J Priestley SC with B Lloyd (Defendants)