Rosenbaum v Baidarman (No 3) [2022] NSWSC 775

Rosenbaum v Baidarman (No 3) [2022] NSWSC 775

Order 6 made on 28 October 2021 resulted from a misunderstanding that the first referee had found Mr Rosenbaum made the $11,972 contribution. The first referee found only that Ironwell made the payment, and the Court's principal reasons held that Ironwell's funds during the relevant period were partnership funds. The $11,972 therefore should not be treated as a contribution by Mr Rosenbaum, so Scenario 2 was adopted and order 6 was set aside. On costs, the usual partnership costs position was displaced because there were no partnership assets, both partners were equally responsible for the failure to keep proper accounts and records, and the parties had mixed success; however, Mr...

Jurisdiction
Australia
Judgment Date
14 June 2022
Procedural Posture
Costs and Adoption of Referee's Report in Partnership Winding Up Proceedings / On the Papers After Principal Reasons for Judgment
Outcome
Referee's report adopted except for Scenario 1 calculations; order 6 made on 28 October 2021 set aside; judgment entered for the defendant against the first plaintiff; limited costs order in favour of the defendant, otherwise each party to pay its own costs.
Legal Topics
['winding Up of Partnership' "referee's Report" 'taking of Partnership Account' 'slip Rule' 'mixed Outcome of Proceedings' 'costs Where No Partnership Assets']
['equity' 'costs' 'partnership Law' 'civil Procedure'] ['winding Up of Partnership' "referee's Report" 'taking of Partnership Account' 'slip Rule' 'mixed Outcome of Proceedings' 'costs Where No Partnership Assets']

Case Brief

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Procedural Posture

Costs and Adoption of Referee's Report in Partnership Winding Up Proceedings / On the Papers After Principal Reasons for Judgment

Legal Issues

  1. 1 ["Whether Scenario 1 or Scenario 2 in Ms Suelen McCallum's referee's report should be adopted in light of inconsistent orders made on 28 October 2021 concerning item 65." 'Whether order 6 made on 28 October 2021 should be set aside under the slip rule.' 'What costs orders should be made where there were no partnership assets, both partners were responsible for deficient records, and the proceedings had a mixed outcome.' "Whether Mr Baidarman should recover costs of defending Mr Rosenbaum's abandoned claim for $1,428,000."]

Ratio Decidendi

Order 6 made on 28 October 2021 resulted from a misunderstanding that the first referee had found Mr Rosenbaum made the $11,972 contribution. The first referee found only that Ironwell made the payment, and the Court's principal reasons held that Ironwell's funds during the relevant period were partnership funds. The $11,972 therefore should not be treated as a contribution by Mr Rosenbaum, so Scenario 2 was adopted and order 6 was set aside. On costs, the usual partnership costs position was displaced because there were no partnership assets, both partners were equally responsible for the failure to keep proper accounts and records, and the parties had mixed success; however, Mr...

Court Disposition

Referee's report adopted except for Scenario 1 calculations; order 6 made on 28 October 2021 set aside; judgment entered for the defendant against the first plaintiff; limited costs order in favour of the defendant, otherwise each party to pay its own costs.

Orders

  • ['Order pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) that order 6 made on 28 October 2021 be set aside.' 'Order pursuant to r 20.24 of the Uniform Civil Procedure Rules 2005 (NSW) that the report of Ms Suelen McCallum dated 30 April 2022 be adopted, except insofar as calculations set out in...