New Price Retail Services Pty Limited and Anor v David Hanna [2014] NSWSC 1546

Procedural Posture

Equity Division Proceedings Concerning Adoption of Referee Reports, Referee Fees, Costs, and Defendant's Motion to Re Open Issues After Judgment Pronounced But Before Final Orders Entered / Post Judgment Applications Before Final Orders Entered

Legal Issues

1. 1 ['Whether the defendant should be permitted to re-open the matter after judgment was pronounced but before final orders were entered on the basis of proof of delivery documentation said to be obtainable from Linfox.' "Whether the referee's reports dated 24 July 2013 and 16 August 2013 should be adopted." 'Whether the defendant should be ordered to pay $732,799.44 into court or whether judgment should be entered for the plaintiffs.' "By whom and in what proportions the referee's fees and costs of the reference should be paid." "Whether the defendant should provide security for the referee's costs or whether his cross-claim should be stayed pending payment of his share of the referee's fees." "What costs orders should be made on the plaintiffs' motion and the defendant's motions."]

Ratio Decidendi

The defendant was not permitted to re-open the matter because the proof of delivery issue had long been central to the reference and adoption hearing, the defendant had ample opportunity to seek material from Linfox or other carriers, the suggested new material was speculative and not shown to contain relevant proof of the composition of deliveries, and the application was a delay and obstruction after judgment proposing adoption of the referee's reports had already been delivered. The referee's reports were adopted, and because nothing remained outstanding on the Amended Commercial List Summons, judgment rather than payment into court was appropriate. Although costs ordinarily follow the...

Court Disposition

Defendant's motion dated 17 October 2014 dismissed; referee reports adopted; judgment to be entered for the plaintiffs for $732,799.44; referee's costs apportioned equally; defendant's cross-claim stayed until payment of his share of referee's fees; costs ordered against the defendant on specified motions and...

Orders

• ['The motion of the defendant dated 17 October 2014 was dismissed in respect of prayers 1, 2 and 4.' "Prayer 3 of the defendant's motion dated 17 October 2014, concerning release of $9,000 to the referee, was dismissed." "The subpoenas and notices to produce were set aside to the extent they related to the...