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

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

The Court made orders adopting the referee's report and declaring amounts owing under the mortgage and guarantee to the extent the proposed orders reflected the adopted findings. It refused to include limitations or end dates not determined by the referee or argued at the adoption hearing. Legal expenses quantified by the referee could not be finally ordered because costs attributable to the reference had to be excluded and assessment or agreement might be required, so liberty to apply was reserved only for that quantification issue. The costs orders reflected the referee's provisional costs view adopted by the Court and the participation of CCF and ALI in the adoption process.

Jurisdiction
Australia
Judgment Date
23 December 2019
Procedural Posture
Equity Corporations List; Civil Procedure Alternative Dispute Resolution Court Referral to Referee / Consequential Orders to Give Effect to Adoption of Referee's Report
Outcome
Orders made to give effect to referee's report.
Legal Topics
['court Referral to Referee' "adoption of Referee's Report" 'consequential Orders' 'costs of Reference' 'mortgage and Guarantee Amounts']
['civil Procedure' 'corporations'] ['court Referral to Referee' "adoption of Referee's Report" 'consequential Orders' 'costs of Reference' 'mortgage and Guarantee Amounts']

Case Brief

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Procedural Posture

Equity Corporations List; Civil Procedure Alternative Dispute Resolution Court Referral to Referee / Consequential Orders to Give Effect to Adoption of Referee's Report

Legal Issues

  1. 1 ["What orders should be made to give effect to the earlier judgment adopting the referee's report." 'Whether declarations should specify amounts owing under the mortgage and guarantee in the terms proposed by the Plaintiffs or ALI.' 'Whether legal expenses quantified by the referee should be included in the orders notwithstanding costs of the reference and any assessment procedures.' "What costs orders should be made for the reference and for the application for adoption of the referee's report."]

Ratio Decidendi

The Court made orders adopting the referee's report and declaring amounts owing under the mortgage and guarantee to the extent the proposed orders reflected the adopted findings. It refused to include limitations or end dates not determined by the referee or argued at the adoption hearing. Legal expenses quantified by the referee could not be finally ordered because costs attributable to the reference had to be excluded and assessment or agreement might be required, so liberty to apply was reserved only for that quantification issue. The costs orders reflected the referee's provisional costs view adopted by the Court and the participation of CCF and ALI in the adoption process.

Court Disposition

Orders made to give effect to referee's report.

Orders

  • ['Order that the report of the referee, Mr Gregory Burton SC dated 8 July 2019, be adopted.' 'Declare that the amounts owing pursuant to the mortgage and guarantee are, subject to any additional amounts determined pursuant to order 3: principal of $1,618,762.48; $59,464.70 from 19 December 2014; $5,100 per annum...