Naumburger in his capacity as Executor of the estate of the late Harry Norman Freedman v Berger [2019] NSWSC 1700

Supreme Court New South Wales

Medium Neutral Citation: Naumburger in his capacity as Executor of the estate of the late Harry Norman Freedman v Berger [2019] NSWSC 1700 Hearing dates: 24 July 2019; 5 August 2019 Date of orders: 03 December 2019 Decision date: 03 December 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Order the parties on or before 20 December 2019 to serve on the other party a list of all MBBF and personal matters taken by that party (or in the case of the respondents, by the late Mr Freedman himself or in partnership with Ms Gopalan) after the dissolution of the MBBF partnership on 21 June 2013 and, in respect of each such matter, to provide details of all costs or fees recovered in respect of those files; the costs written off or discounted on those files; the details of creditors paid and the amounts so paid; and the amounts of any moneys collected and not paid to creditors in respect of those files. 2. Dismiss with costs the notice of motion filed by the defendants seeking the appointment of a receiver in respect of the dissolved MBBF partnership. 3. List the matter for further directions at 9am on 11 February 2020 before Ward CJ in Eq. Catchwords: CIVIL PROCEDURE — Interim preservation — Appointment of receiver – in relation to a dissolved law practice – where principal proceedings include a claim against the applicant in relation to misappropriated partnership funds – whether a receiver will be appointed practically as a matter of course – whether would be futile to appoint a receiver – whether it would be ruinous to appoint a receiver – application dismissed with costs – not appropriate for a receiver to be appointed as not a proper use of partnership funds and not in the interests of the partnership's creditors. Legislation Cited: Supreme Court Act 1970 (NSW), s 67 Uniform Civil Procedure Rules 2005 (NSW), r 26.4 Cases Cited: Berger v Council of the Law Society of New South Wales [2019] NSWCA 119 Bernard v Davies (1862) 32 LJ Ch 41 Boehm v Goodall [1911] 1 Ch 155 Bolton v Darling Downs Building Society [1935] St R Qd 237 Byrne v Byrne [2011] NSWSC 1437 Choudhri v Palta [1994] 1 BCLC 184; [1992] BCC 787 Cuming v Hennessy [2005] NSWSC 1219 Daniels v Smith [2006] NSWSC 1424 Davey v Donnelly (Supreme Court (NSW), McLelland J, 16 May 1991, unrep) Duffy v Super Centre Development Corporation Ltd (1967) 1 NSWLR 382 Eady v Eady (1895) 16 LR (NSW) Eq 70 Fitz-Gibbon v Khoury (Supreme Court (NSW), Powell J, 1 March 1985, unrep) Gumbleton v Hewitt [2012] NSWSC 886 Hill v Venning (1979) 4 ACLR 555 In re Hallett's Estate; Knatchbull v Hallett (1880) 13 Ch D 696 Liquor National Wholesale Pty Ltd v The Redrock Co Pty Ltd [2007] NSWSC 392 Morkaya v Parkinson; Parkinson v Morkaya [2008] NSWSC 1050 Price v Price (1904) 29 VLR 719 Rosanove v O'Rourke [1988] 1 Qd R 171 Rowlands v MacDonald [2002] NSWSC 282 Shirlaw v Taylor (1991) 31 FCR 222 Tate v Barry (1928) 28 SR (NSW) 380 Toker v Akgul (Court of Appeal (NSW), 2 November 1995, unrep) Texts Cited: P Radan, Principles of Australian Equity and Trusts (3rd ed, 2016, LexisNexis Butterworths) P W Young, C Croft and M L Smith, On Equity (9th ed, 2009, LawBook Co) R I Banks (ed), Lindley & Banks on Partnership (19th ed, 2017, Sweet & Maxwell) Category: Procedural and other rulings Parties: Rodney Naumburger in his capacity as Executor of the estate of the late Harry Norman Freedman (First Plaintiff) Adrian Rudy Freedman and Ty Matthew Freedman as trustees of the MAHD MBBF Trust (Second and Third Plaintiffs) Victor Berger (First Defendant) Victor Berger as trustee of the Berger MBBF Trust (Second Defendant) Representation: Counsel: CF Stanford (Plaintiffs, Solicitor) First Defendant (in person)