Woolf v 52 Birriga Road Pty Ltd [2012] NSWSC 921

Woolf v 52 Birriga Road Pty Ltd [2012] NSWSC 921

The report was adopted except to the extent that it purported to determine entitlement to default interest and legal costs because the referee's relevant findings on quantum were based on contemporaneous documentary records, no undisclosed oral information from the Plaintiffs was shown to have played a role in those findings, the Defendant had a proper opportunity to respond to the short 30 April 2012 letter, and the referee was not obliged to disclose his evaluative reasoning about documentary proof before issuing the report. The remaining defences and questions of entitlement were not determined by the reference and were preserved.

Jurisdiction
Australia
Judgment Date
09 August 2012
Procedural Posture
Interlocutory Applications / Plaintiffs' Notice of Motion Filed 11 May 2012 Seeking Adoption of Referee's Report; Defendant's Notice of Motion Filed 18 June 2012 Seeking Remittal to the Referee for Further Enquiry and Report
Outcome
The referee's report was adopted in part; both notices of motion were otherwise dismissed; the Defendant was ordered to pay the Plaintiffs' costs of both notices of motion; the Plaintiffs' costs of the reference were ordered to be the Plaintiffs' costs in the cause; proceedings were stood over for directions.
Legal Topics
['reference' "adoption of Referee's Report" 'procedural Fairness' 'natural Justice' 'default Interest' 'costs in the Cause']
['civil Procedure' 'mortgage Litigation' 'evidence' 'costs'] ['reference' "adoption of Referee's Report" 'procedural Fairness' 'natural Justice' 'default Interest' 'costs in the Cause']

Case Brief

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Procedural Posture

Interlocutory Applications / Plaintiffs' Notice of Motion Filed 11 May 2012 Seeking Adoption of Referee's Report; Defendant's Notice of Motion Filed 18 June 2012 Seeking Remittal to the Referee for Further Enquiry and Report

Legal Issues

  1. 1 ['Whether the report of Mr R. Smith dated 1 May 2012 should be adopted in whole or in part under UCPR r 20.24.' 'Whether alleged breaches of procedural fairness by the referee warranted rejection of the report or remittal for further enquiry and report.' 'Whether adoption of the report should affect unresolved issues about entitlement to default interest, legal costs, enforceability of the mortgage, limitation, transfer of the mortgage and unconscionability.' 'What costs orders should be made on the notices of motion and the reference.']

Ratio Decidendi

The report was adopted except to the extent that it purported to determine entitlement to default interest and legal costs because the referee's relevant findings on quantum were based on contemporaneous documentary records, no undisclosed oral information from the Plaintiffs was shown to have played a role in those findings, the Defendant had a proper opportunity to respond to the short 30 April 2012 letter, and the referee was not obliged to disclose his evaluative reasoning about documentary proof before issuing the report. The remaining defences and questions of entitlement were not determined by the reference and were preserved.

Court Disposition

The referee's report was adopted in part; both notices of motion were otherwise dismissed; the Defendant was ordered to pay the Plaintiffs' costs of both notices of motion; the Plaintiffs' costs of the reference were ordered to be the Plaintiffs' costs in the cause; proceedings were stood over for directions.

Orders

  • ['That the report of Mr R. Smith dated 1 May 2012 be adopted save for so much of that report that purports to determine the entitlement of the Plaintiffs to recover default interest and legal costs as opposed to the quantum of those costs.' "The Plaintiffs' notice of motion filed 11 May 2012 be otherwise dismissed."...