In the matter of Fearndale Holdings Pty Ltd (admin apptd) (recs & mgrs apptd) [2019] NSWSC 1891

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Fearndale Holdings Pty Ltd (admin apptd) (recs & mgrs apptd) [2019] NSWSC 1891 Hearing dates: Written submissions 20 and 23 December 2019; oral submissions 23 December 2019 Decision date: 23 December 2019 Jurisdiction: Equity - Corporations List Before: Black J Decision: Orders made to give effect to referee's report Catchwords: CIVIL PROCEDURE – alternative dispute resolution – court referral to referee – orders made to give effect to referee's report. Category: Consequential orders (other than Costs) Parties: Lawrence Richard Harpley (First Plaintiff) Gary Richard Harpley (Second Plaintiff) Australian Lending Investment Pty Ltd (Respondent in the application) Timothy James Cook (as administrator of Fearndale Holdings Pty Ltd (admin apptd)) and Fearndale Holdings Pty Ltd (admin apptd) (interested parties) Representation: Counsel: G A Rich (Plaintiffs) Ms H Kaur (solicitor) (Respondent in the application) Mr H Somerville (interested parties)

Solicitors: Malcolm McDonald & Co (Plaintiffs) Mistry Fallahi (Respondent in the application) William James Lawyers (interested parties) File Number(s): 2018/91831

Judgment

Background 1. On 16 December 2019, I delivered judgment ([2019] NSWSC 1810) ("earlier judgment") indicating that I would adopt the report of a referee, Mr Gregory Burton SC, in respect of the amount of interest and fees payable in respect of loan arrangements and securities involving Fearndale Holdings Pty Ltd (admin apptd) (recs & mgrs apptd) ("Fearndale") as guarantor and Consolidated Capital and Funding Limited ("CCF") as lender. Another entity, Australian Lending Investment Pty Limited ("ALI"), has since acquired CCF's rights in that regard and had sought to vary the referee's report in the hearing before me. I also observed that the Court would make orders in accordance with the provisional view expressed by the referee as to the costs of the reference. On 20 December 2019, I delivered a further judgment ([2019] NSWSC 1885) ("further judgment") addressing further submissions made by ALI in response to a provisional view that I had expressed in paragraph 49 of the earlier judgment and confirming that I took that view on a final basis. 2. In the earlier judgment, I directed the parties to bring in agreed orders to give effect to that judgment by 4pm pm on 20 December 2019 or, if there was no agreement between them, their respective draft orders and submissions subject to a page limit as to any differences between them. The Plaintiffs, the Messrs Harpley, and ALI submitted orders in radically different terms on 20 December 2019. It is unfortunate that the parties could not further advance a consensus as to the orders between themselves, having regard to the parties' and their legal representatives' obligations under s 56 of the Civil Procedure Act 2005 (NSW), although I make no adverse comment as to any particular legal representative in that respect. The matter was listed before me on 23 December 2019 to address the differences between the proposed orders. It was then relisted for a second time on that date to allow Ms Kaur, who appeared for ALI, to correct a submission she had made at the first hearing. I then permitted Ms Kaur to provide a further revised version of orders proposed by ALI, which she indicated were prompted by an issue as to CCF's claim to legal costs recoverable under the mortgage to which I refer below.