Caska v Leigh

Background

1. As already noted, the proceedings were commenced by way of summons by Dr Caska in September 2006. The relief sought in the summons solely related to Dr Caska's application for an account to be taken and an inquiry to be held in relation to the partnership between the parties as to: (a) all of the dealings and transactions of the said partnership during the period 1 July, 1997 to 30 June, 2001; (b) what were the assets and liabilities of the partnership as at 30 June, 2001; and (c) what were the respective interests of the said partners in the assets and undertakings of the partnership as at 30 June, 2001 [see prayer 1 of the summons].
2. The summons sought the appointment pursuant to Pt 72, r 8 of the Supreme Court Rules 1970 (NSW) of a named accountant (not the present referee) as referee to inquire and report in terms of prayer 1 above. It appears that, although the taking of partnership accounts was initially resisted by Mr Leigh, he subsequently consented to orders for the referral of the inquiry to a referee. Nicholas J made orders by consent on 6 February 2009 (following some five days of hearing) including orders that an account be taken and that an inquiry be held in relation to the partnership as to the three matters referred to above; and an order for the appointment of a named referee for that purpose. (The same orders appear to have been entered into the court record system on both 6 February 2009 and 1 April 2009.) His Honour directed that the inquiry commence no later than 28 days after the date of the order. The inquiry by that court-appointed referee did not, however, proceed. A dispute arose after the first directions hearing convened by the referee. Mr Leigh argued (and I in due course accepted) that there was a reasonable apprehension of bias following the disclosure by the referee at that directions hearing that he had previously been approached (in 2005) with a view to being retained in what was then the proposed litigation by Dr Caska.
3. Mr Leigh's notice of motion to discharge the first referee's appointment came before me in the duty list on 3 August 2009. Mr Leigh sought an order that the appointment of that referee be discharged (on the ground of apprehended bias) and that another named accountant be appointed in his place. Work had not yet commenced in relation to the referral at that stage. For reasons that I published on 14 August 2009, I concluded that the appointment of that referee should be discharged and sought submissions from the parties as to whether agreement could be reached on the identity of the new referee to be appointed. It seems that such agreement was ultimately forthcoming because, on 29 October 2009, White J, as his Honour then was, made orders by consent appointing Mr Ivey (then of the accounting firm WHK Ivey) as referee and directing the referee to commence an inquiry no later than 28 days after the date of the order and to file a report no later than 180 days after the date of the order.
4. Mr Ivey's curriculum vitae, a copy of which is annexed to his 12 February 2016 report, states that he is a forensic (and chartered) accountant with expertise in, amongst other things, assessment of primary production systems; and that he has had experience in investigative accountancy and detailed financial analysis including in the "agribusiness" industry or business sector.
5. It is not clear what happened in the period from 2009 (and nothing turns on this other than that it highlights the unsatisfactory delay in the disposition of these proceedings to date) but, on 17 July 2015, Ball J made orders (in terms of short minutes of order prepared by the parties), vacating certain of the orders that had earlier been made by White J (those relating to the timetable for the conduct of the inquiry) and, in lieu thereof, making similar directions in relation to the commencement of the inquiry and the filing of his report with the Court (but with dates of 14 August 2015 and 12 February 2016, respectively). The forensic accountant retained by Dr Caska in relation to this matter appears to have understood - or perhaps to have been instructed - that the court order of 17 July 2015 "re-started the process commenced in 2009" - see Appendix I to Mr Brian Jones' 26 July 2017 report. Whether or not that strictly was the case, the reports in question by Mr Ivey are said to be written "under" the orders entered 17 July 2015.

Mr Ivey's first report (the first Referee Report)

1. Mr Ivey commenced his task by seeking the provision of various documents from the parties' solicitors (see his letter dated 12 August 2015, a copy of which is annexed to the affidavit of Mr Leigh affirmed 10 June 2016) and requesting that each party present him with an affidavit attaching associated supporting documents setting out his position in relation to the three "items" on which the referee was to report to the Court. It appears that a number of affidavits from Mr Leigh and one affidavit from Dr Caska were provided to the referee, as well as a copy of a report dated 13 October 2015 (wrongly referred to by Mr Ivey as being dated 5 October 2015) by a forensic accountant who had been retained by Dr Caska (see Mr Ivey's letter dated 15 December 2015, a copy of which is annexed to Mr Leigh's affidavit). Following a review of the material provided to him, Mr Ivey notified the parties: It is apparent to me that much information which would assist me to accurately determine the financial status of the partnership at relevant times is missing. Further, the availability or otherwise of this information has been the subject of repeated requests and responses and it appears much of it is simply not available. In conducting my investigations and reporting, I therefore intend to rely on the source information I have at hand. Where I consider this information is deficient, I will use my professional experience and judgement to reconstruct what I believe to be the most likely actual financial position. In this manner I will provide my best possible response to the issues which the Court has asked me to address.
2. There was no objection by either of the parties to the statements contained in the last paragraph extracted above. However, Mr Leigh did object to reliance being placed by Mr Ivey on Mr Jones' report, on the basis that it was not prepared for Court proceedings; that Mr Jones had relied only on the documents supplied by Dr Caska and had not verified any source documents; and that the opinions expressed by Mr Jones could not be said to be independent. Nevertheless, in the event that Mr Ivey proposed to consider that report, Mr Leigh's solicitors made various submissions as to the contents of the report (see letter dated 5 February 2016 from Mr Leigh's solicitors to Mr Ivey, a copy of which is annexed to Mr Leigh's affidavit).
3. A further report dated 4 February 2016 which had been prepared by Mr Jones, was then provided to Mr Ivey. Mr Leigh objected to any reliance on that report for the same reasons as given in relation to the first but again, if reliance was to be placed on the report, made various submissions in relation to that report (letter dated 11 February 2016, a copy of which is annexed to Mr Leigh's affidavit).
4. Mr Ivey's first report was made on 12 February 2016. Amongst other things, Mr Ivey reported that the partnership commenced on 1 December 1984; that in all years except 1987/1988 expenses exceeded income by a considerable margin and therefore substantial annual trading losses resulted; and (at [4.7]) that the partnership was insolvent as at 30 June 2001 with net liabilities of $2,333,962.
5. Mr Ivey's report proceeded on various stated assumptions, including that the financial position of the partnership at 30 June 1996, as detailed in the partnership's 1996 income tax return and financial statements, had been correctly stated ([1.3(i)]). Mr Ivey "adopted" an amended livestock trading account for the year ended 30 June 1997. He proceeded on the basis that sales of some partnership sheep (which had been held on agistment on a property in Queensland and were sold directly off that property), which occurred in August and September 1996, were not included in the livestock trading accounts for 1996/1997, the sale proceeds in question not having been paid into the partnership bank account. (Dr Caska accepts that finding of Mr Ivey: see the affidavit affirmed 27 July 2017 of his solicitor Mr Raymond Abrahams at [8.2].) Mr Ivey made (notional) changes to the partnership's financial position as at 30 June 1997 as a result (see [1.3(ii)]). Mr Ivey reported (at [1.3(iii)]) that: All transactions as reported in the draft financial statements prepared by the partnership's accountant for the financial years ended 30 June 1997 to 30 June 2000 are correct except for the transactions relating to livestock trading and wool production. Analysis of all documentation provided to me has not caused me to doubt the accuracy of the information in the draft financial statements and income tax returns, apart from that relating to livestock trading and wool production. The results presented in the draft financial statements are consistent with those for previous years. [emphasis as per original]
6. At [1.8] of the report, Mr Ivey set out the respective positions of the partners as at 30 June 2001, applying standard accounting principles to the partnership balance sheet (in effect apportioning the deficit in the partners' capital account in the ratio 2/3:1/3); and then set out an adjusted share of the partnership's net liability on certain stated assumptions (which increased Dr Caska's capital account deficit by around $700,000 to a deficit of $2,284,297 and reduced Mr Leigh's capital account deficit by that amount to a deficit of $49,665). His conclusion (at [4.8]) was that the partners' adjusted shares of the partnership's net liability as at 30 June 2001 were as had been set out at [1.8].

Events following first Referee Report

1. Following the first Referee Report and prior to the orders made in relation to a supplemental report (to which I refer below), Dr Caska obtained a number of further reports from Mr Jones, whose report notes his "accreditations" including that he is a chartered accountant with a master's degree in business administration and that he has had experience in, amongst other things, audit and investigatory work with a number of large corporations. Those reports include the reports dated 22 March 2016 and 19 September 2016 (reference to which is made at [7] of Mr Abrahams' affidavit).
2. The matter came before Pembroke J on 1 November 2016. Counsel for Dr Caska informed me that on that occasion his Honour heard Dr Caska's application that further issues be considered by the expert (T 3.31). A transcript of his Honour's ex tempore reasons on that occasion is annexed to Mr Abrahams' affidavit. His Honour noted that, at that stage, neither party had moved to adopt the 12 February 2016 report "nor has either party clearly moved to have the report rejected". His Honour considered the real substance of the plaintiff's application at that stage to be one for the referee to provide a supplemental report pursuant to r 20.17(1)(b) of the UCPR. There was before his Honour on that occasion a document headed "Summary Issues arising re: Report of Richard Ivey", prepared by Mr Jones (a copy of which was annexed to his Honour's reasons). His Honour noted that this document summarised eight areas of contention relating to the referee's report, relating to the following topics: 1. The alleged sales of sheep; 2. Shearing and crutching expenses in 1999; 3. Agistment; 4. Sheep numbers; 5. Acceptance of alleged sheep sales; 6. Proportion of sheep owned by Gail Leigh; 7. Nanco bull cattle, which is said to be a separate partnership; and 8. Payment of creditors by Dr Caska.
3. Pembroke J noted that the parties had agreed in principle with his suggestion that interests of justice necessitated that the referee provide a supplemental report but at the cost of Dr Caska. His Honour proceeded to direct, pursuant to r 20.17(1)(b) of the UCPR, that the referee should provide a supplemental report (at the cost of Dr Caska), the object of which was that the referee was to consider the contentions made by Mr Jones in relation to the eight issues of contention by reference to certain specified documents and by reference to such evidence as was submitted during the first inquiry. His Honour made clear that he expected the referee carefully to consider the contentions made by Mr Jones having regard to the evidence available to the referee and "genuinely and carefully" to review his report with a view to considering whether it was appropriate to vary, supplement or alter any of the matters in that report in light of Mr Jones' contentions.
4. The further documents to which the supplemental report was to be confined (in addition to the existing evidence) were identified by his Honour as: Mr Jones' reports of 4 May 2016 (I note that this date may be an error; none of the evidence before me discloses the existence of a report of that date. Mr Ivey may have interpreted it as a reference to the 22 March 2016 report, to which he had regard: see his report dated 5 July 2017 at [2.2]; but nothing turns on this) and 19 September 2016; documents produced by Mr Leigh in answer to a notice to produce filed on 29 June 2016; the general ledger of the partnership between the plaintiff and the defendant; and such documents as might be produced by third parties in answer to subpoenas issued to them by the plaintiff (leave to issue which was in due course granted by his Honour).
5. His Honour made clear in his reasons his view that this was "very old litigation which needs to be brought to a head as soon as reasonably possible" and that it was his intention "that the further inquiry and report by the referee should be as economical and expeditious as possible, that the involvement of lawyers should be excluded or minimised and that the referee should simply consider the contentions made by Mr Jones …".
6. His Honour further made it clear that there was no implication in the orders that he was there making that the referee should reach a contrary conclusion and that the referee should treat the summary of the eight issues by Mr Jones as contentions only, not as statements of fact, and should decide whether those contentions were justified by reference only to the evidence before him (particularly referring in this regard to the narrative part of Mr Jones' reports which his Honour said "contain assertions and contentions which may or may not be supported by the evidence").
7. Pausing here, Counsel for Dr Caska on the present application made clear that it was not contended by Dr Caska that Pembroke J had made any finding that the expert had failed to consider various aspects of the reference (that simply being Dr Caska's contention that had led to the order made by his Honour) - see T 4.46.
8. Following the orders made by Pembroke J, Mr Jones prepared a further report dated 13 February 2017.

Mr Ivey's supplemental report - The Supplemental Referee Report

1. Mr Ivey's supplemental report was made on 5 July 2017. Mr Ivey there stated that none of the issues or supporting documentation referred to by Mr Jones in response to his initial report had caused him to alter his opinions. Mr Ivey stated, in an executive summary to the report, that: Review and analysis of all subsequent documentation delivered to me has not caused me to alter my opinion as to the accuracy of the information provided. I believe I have correctly interpreted the information provided and therefore the amended Livestock Trading Accounts, Profit and Loss statements, Balance Sheet and Proprietorship schedules re-presented as Attachments 7 to 10 to this report, as best as can be determined, reflect the financial position of the partnership over the review period.
2. Mr Ivey re-assessed the partnership's net financial position in the second report at a deficit of $2,270,507 ($63,455 less than had been assessed previously, because it included a debt of the same amount owed to the partnership at termination by Mrs Leigh from shearing expenses and sheep purchases - which amount had previously been applied against the balance of Mr Leigh's capital account). Again, Mr Ivey provided his assessment of the respective positions of the partners as at 30 June 2001 on the basis of standard accounting principles and, making assumptions as to the correctness of certain matters (see [3.9]), on an adjusted basis. Dr Caska's adjusted share of the partnership's net liability was stated to be a capital deficit of $2,280,843.

Dr Caska's criticisms of the respective Referee Reports

1. Following the Supplemental Referee Report, Mr Jones prepared yet another report (dated 26 July 2017) in which he is again critical of the inquiry undertaken by the referee. I will refer in due course to some of the criticisms made by Mr Jones.
2. Dr Caska accepts two aspects of the referee's reports (as to which orders for the partial adoption of the reports are sought): 1. that no consideration was given for alleged sales of sheep to Mrs Leigh in January 1998; and 2. that the livestock sales in Bollon, Queensland in August/September 1996 were made by "de facto" vendors and the head of sheep sold had, consequently, not been taken into account in the livestock trading accounts (5,052 head of sheep).
3. Otherwise, Dr Caska seeks an order that the reports be rejected. He sought to rely in this regard on the further report of Mr Jones to which I have just referred (in which Mr Jones confirms that he has read the Code of Conduct for Expert Witnesses and understands and agrees to be bound by it).
4. Mr Jones' ultimate conclusion in that 26 July 2017 report was that "[n]either Mr Ivey's first report nor his supplementary report adequately takes into account the complaints made by the plaintiff". In particular, Mr Jones asserts that Mr Ivey "has not correctly addressed" items 6, 7 and 8 of the areas of contention identified by Pembroke J and "further, has not addressed other information made available in [Mr Jones' reports]".
5. Dr Caska's fundamental complaint as to the Referee's Reports is that "within the term of the reference there is material that the expert has looked at and come to a conclusion that no reasonable expert could reach" (T 10.5).
6. Pausing here, Mr Leigh objected to the admission into evidence of various of the reports by Mr Jones: the first three on the basis that Mr Jones did not in those reports acknowledge that he had read and agreed to be bound by the Expert Witness Code of Conduct as required by r 31.23(3) of the UCPR; the fifth and sixth on the basis that leave was required under r 20.24(2) of the UCPR. There was no objection to the admission of the fourth report. The reports were tendered not as expert evidence as such but on the basis that they would assist in the assessment of the Referee's Reports (see T 18.37ff). As I understood it, the reports from Mr Jones were relied upon by Dr Caska either as indicating the position that was put to Pembroke J at the time his Honour made the orders referred to above or as a submission by Dr Caska as to where the errors in the Referee's Reports are said to lie (see T 19.41-20.2). I admitted and have read them simply as submissions as to what Dr Caska says are the deficiencies in the reports.
7. The summary of the "cumulative evidence" set out at the conclusion to Mr Jones' report dated 26 July 2017 (at [7.101]ff), to which Dr Caska points as matters which called for the referee to investigate as part of the inquiry or which amounted to suspicious circumstances calling for a more rigorous investigation by the referee, is as follows: 7.101 No evidence of any consideration ever having been given to the Caska and Leigh Partnership for acquisition of sheep by Kathleen Gail Leigh (wife of partner Darryl Wayne Leigh, and, therefore, an associated party). 7.102 Even after several attempts to obtain proof of how Kathleen Gail Leigh repaid the various loans to buy sheep no information has been provided. 7.103 No evidence of the receipt of wool sales proceeds for 1999 by the Caska and Leigh Partnership. [This is subject to the ownership of the sheep at that time]. 7.104 Shearing and crutching expenses charged to the Caska and Leigh Partnership for sheep shorn in early 1999 (but no wool sales included in the financial statements). 7.105 The disappearance of Nancobull Trust cattle to which Dr John Caska was entitled. In 1999/2000 the DW Leigh and KG Leigh Partnership sold 717 head of cattle for $326,498. This was the first year of operation of the new "Leigh and Leigh" partnership - a partnership which commenced well before the dissolution of the Cask [sic] and Leigh partnership. 7.106 The profitability of the new Leigh and Leigh Partnership in the years 2001 - 2005 with considerable sheep stocks, cattle stocks and goat stocks. The secretion of approximately $448,000 of physical assets into the new partnership in 2002, by adjusting the comparative figures for 2001. By 2005 Proprietors' Funds of the new partnership were $766,470. 7.107 The death rates of sheep held by Caska and Leigh Partnership in 1998-1999 versus the death rates of sheep (purportedly) held by Kathleen Gail Leigh in 1998-1999 and when compared to the death rates of the new Leigh and Leigh partnership 2001-2005. 7.108 The inability of the defendant to supply satisfactory answers to a number of questions including (but not limited to) details of wool proceeds receipts in the 1998-1999 financial year, details of cattle acquisitions of the new Leigh and Leigh partnership and details of the acquisition of physical assets by the new Leigh and Leigh partnership'. 7.109 Further, the inability of the defendant to supply some key information (e.g. Sheep Shearing Tally Books) and the inability of the defendant to obtain important information (which she [sic] has indicated that she [sic] has) from his wife, Kathleen Gail Leigh.

Relevant principles

1. The applicable principles in relation to applications for the adoption, variation or rejection of a referee's report were considered by Einstein J in ABB Engineering Construction Pty Ltd v Abigroup Contractors Pty Ltd [2003] NSWSC 665 (at [34]-[35]), including by reference to Super Pty Ltd v SJP Formwork (Australia) Pty Limited (1992) 29 NSWLR 549.
2. They were distilled by McDougall J in Chocolate Factory Apartments Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784 (at [7] - see below), his Honour there dealing with a reference under former Pt 72 r 13 of the Supreme Court Rules. In Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd (2013) 84 NSWLR 410 at [15]; [2013] NSWCA 6, Barrett JA (with whom Meagher JA and I agreed) considered that McDougall J's summation may be accepted as equally applicable to a reference under Div 3 of Pt 20 of the UCPR, noting (at [16]) that it emphasises that a judge when considering whether or not to adopt a referee's report is called upon to exercise a discretion "whether to give the court's imprimatur to a decision made outside the normal curial process by a person charged with the duty of assessing a particular question in the light of the evidence and coming to an informed conclusion, often as to matters lying within a field in which that person has special expertise".
3. The principles summarised by McDougall J (at [7] in the Chocolate Factory case) are well-known, but worth here repeating: (1) An application under Pt 72 r 13 is not an appeal either by way of hearing de novo or by way of rehearing. (2) The discretion to adopt, vary or reject the report is to be exercised in a manner consistent with both the object and purpose of the rules and the wider setting in which they take their place. Subject to this, and to what is said in the next two sub paragraphs, it is undesirable to attempt closely to confine the manner in which the discretion is to be exercised. (3) The purpose of Pt 72 is to provide, where the interests of justice so require, a form of partial resolution of disputes alternative to orthodox litigation, that purpose would be frustrated if the reference were to be treated as some kind of warm up for the real contest. (4) In so far as the subject matter of dissatisfaction with a report is a question of law, or the application of legal standards to established facts, a proper exercise of discretion requires the judge to consider and determine the matter afresh. (5) Where a report shows a thorough, analytical and scientific approach to the assessment of the subject matter of the reference, the Court would have a disposition towards acceptance of the report, for to do otherwise would be to negate both the purpose and the facility of referring complex technical issues to independent experts for enquiry and report. (6) If the referee's report reveals some error of principle, absence or excessive jurisdiction, patent misapprehension of the evidence or perversity or manifest unreasonableness in fact finding, that would ordinarily be a reason for rejection. In this context, patent misapprehension of the evidence refers to a lack of understanding of the evidence as distinct from the according to particular aspects of it different weight; and perversity or manifest unreasonableness mean a conclusion that no reasonable tribunal of fact could have reached. The test denoted by these phrases is more stringent than "unsafe and unsatisfactory". (7) Generally, the referee's findings of fact should not be re-agitated in the Court. The Court will not reconsider disputed questions of fact where there is factual material sufficient to entitle the referee to reach the conclusions he or she did, particularly where the disputed questions are in a technical area in which the referee enjoys an appropriate expertise. Thus, the Court will not ordinarily interfere with findings of fact by a referee where the referee has based his or her findings upon a choice between conflicting evidence. (8) The purpose of Pt 72 would be frustrated if the Court were required to reconsider disputed questions of fact in circumstances where it is conceded that there was material on which the conclusions could be based. (9) The Court is entitled to consider the futility and cost of re-litigating an issue determined by the referee where the parties have had ample opportunity to place before the referee such evidence and submissions as they desire. (10) Even if it were shown that the Court might have reached a different conclusion in some respect from that of the referee, it would not be (in the absence of any of the matters referred to in sub para (6) above) a proper exercise of the discretion conferred by Pt 72 r 13 to allow matters agitated before the referee to be re-explored so as to lead to qualification or rejection of the report. (11) Referees should give reasons for their opinion so as to enable the parties, the Court and the disinterested observer to know that the conclusion is not arbitrary, or influenced by improper considerations; but that it is the result of a process of logic and the application of a considered mind to the factual circumstances proved. The reasoning process must be sufficiently disclosed so that the Court can be satisfied that the conclusions are based upon such an intellectual exercise. (12) The right to be heard does not involve the right to be heard twice. (13) A question as to whether there was evidence on which the referee, without manifest unreasonableness, could have come to the decision to which he or she did come is not raised "by a mere suggestion of factual error such that, if it were made by a trial judge, an appeal judge would correct it". The real question is far more limited: "to the situation where it is seriously and reasonably contended that the referee has reached a decision which no reasonable tribunal of fact could have reached; that is, a decision that any reasonable referee would have known was against the evidence and weight of evidence". (14) Where, although the referee's reasons on their face appear adequate, the party challenging the report contends that they are not adequate because there was very significant evidence against the referee's findings with which the referee did not at all deal, examination of the evidence may be undertaken to show that the reasons were in fact inadequate because they omitted any reference to significant evidence. (15) Where the court decides that the reasons are flawed, either on their face or because they have been shown not to deal with important matters, the court has a choice. It may decline to adopt the report. Or it may itself look at the detail of the evidence to decide whether or not the expense of further proceedings before the referee (which would be the consequence of non adoption) is justified.
4. It is clear that the Court may reject only some of the findings in an expert report (see UCPR 20.24(1)(a); Eko Investments Pty Ltd v Austruc Constructions Ltd [2009] NSWSC 208 at [102] per Bergin CJ in Eq; BestCare Foods v Origin Energy [2012] NSWSC 574 at [103]; [127] per McDougall J).

Dr Caska's submissions

1. As noted in the passage extracted above from McDougall J's judgment in the Chocolate Factory case (at (6)), if the referee's report reveals some "error of principle, absence or excessive jurisdiction, patent misapprehension of the evidence or perversity or manifest unreasonableness in fact finding", that will ordinarily be a reason for rejection.
2. In this case Dr Caska maintains that the impugned reports do involve errors of principle (those being said to be a failure to undertake the correct task and a failure to consider material) and a "patent misapprehension" of evidence. He submits that the reports are "unduly narrow", in that order 2 of the orders made on 29 October 2009 sought an account of the partnership from 1 July 1997 to 30 June 2001, and that the referee "has unduly limited his focus". Complaint is made that the referee had "ignored" two of Mr Jones' reports (of 13 October 2015 and 4 February 2016) that had been given to him before his first report and that the supplemental report did not add "anything of substance" to the initial report.
3. Dr Caska submits that the referee has: asked himself the wrong questions and failed to undertake his task; failed to take into account relevant material; compounded those errors by making them in the face of material that would put any reasonable expert, and should have put him, on notice of the need to approach his task properly; made blatant errors in his reasoning; brought insufficient rigour to this task; and failed to address the eight matters enumerated by Pembroke J.
4. In oral submissions, Counsel for Dr Caska made clear that he does not argue that Mr Ivey failed to consider what Pembroke J had ordered him to consider; rather, the complaint is that in relation to four of the eight issues Mr Ivey said, in effect, that those issues were not relevant to his inquiry (because they related to a Leigh partnership issue and not the Caska/Leigh partnership). It is submitted that Mr Ivey "overly restricted the scope of this enquiry because he disregarded anything to do with the Leigh's partnership as bearing on his determination" (T 10.12-10.14); and that Mr Jones' reports make clear that certain transactions occurred "where cattle and, more relevantly, sheep from the partnership were moved from the partnership to the Leigh's partnership and the diminution in value of the partnership's assets [was] not properly recorded" (T 10.24-10.27).
5. In particular, complaint is made as to the following matters, which I summarise by reference to Dr Caska's written submissions. Where relevant, I will in due course explain the issues with reference to the present areas of contention as I understand them. (Dr Caska's submissions refer extensively to the criticisms made in the reports of Mr Jones, but I omit those references.)

(i) Complaint as to misapprehension by the referee of his task

1. Dr Caska argues that there are many examples of the referee failing to comprehend, or undertake, his task.
2. First, complaint is made that the referee "took as given" the 1996 financial accounts and transactions in the 1997 draft accounts when the circumstances known to him and the nature of his task should have caused him to confirm their content. Second, it is said that the referee considered any question of sheep owned by Mrs Leigh to be outside his terms of reference, when such a consideration is "critical" to all three of sub-paras (a), (b) and (c) of the reference. Third, complaint is made that the referee did not consider relevant the issue of Dr Caska's 780 cattle "disappearing" whilst under Mr Leigh's control. Fourth, it is asserted that the referee's findings are erroneous (the "correct" findings being said to be those set out in Mr Jones' 22 March 2016 report (at paragraphs [3.1] and [3.2])).

(ii) Failure to take matters into account

1. Complaint is made that the referee failed to take into account critical material: in particular, that he has failed properly to deal with the reports of Mr Jones of 13 October 2015 and 4 February 2016; that he has failed to take into account the further information obtained from compulsory production procedures (the effect of which is said to be as stated in Mr Jones' 19 September 2016 report, at [3] on pages 5-6); that he has failed properly to address the eight areas of contention identified by Pembroke J's orders (including in particular items 1, 4, 6 and 7) (see Mr Jones' 22 March 2016 report at [3.1] and [3.2] on pages 6-8); and that he has failed to consider: the Leighs' financial information from 2001 to 2005 (which it is said bears out that partnership's misappropriation of the Caska and Leigh partnership assets); the complete lack of evidence of Mrs Leigh paying for any livestock from the partnership (reference being made to the hardcopy ledger that, it is said, shows that no consideration was paid for sheep Mrs Leigh took in June 1996); and the cumulative effect of the evidence before him.

(iii) Failure properly to take into account "suspicious circumstances"

1. Dr Caska submits that the above errors are compounded by the non-consideration in the reports of the following circumstances, which it is said are either suspicious or otherwise such as to warrant acknowledgment and consideration in the reports.
2. First, that the partnership accounts were never finalised after the 1997 financial year. Dr Caska says that throughout the relevant term the partnership had no accounts and the bookkeeping (which Mrs Leigh undertook) was "in total disarray". He points out that the referee was aware of errors in the draft accounts (such as the absence of any record of proceeds of alleged sales and the recording of crutching expenses when the partnership owned no sheep) yet relied on them nonetheless.
3. Second, that the Leighs' partnership was operating on the same land as the partnership between Mr Leigh and Dr Caska, yet the latter "had diametrically opposed profitability and livestock acquisitions/losses". It is submitted that the referee did not give sufficient consideration to, or an explanation of, these highly suspicious circumstances.
4. Third, Dr Caska points to the closeness of the relationship of the "purchaser" (using that term only by reference to Mr Leigh's case, and not as an admission that there was in fact a purchase, since Dr Caska maintains that there was not a purchase but a misappropriation), she being Mr Leigh's wife.
5. It is submitted that those matters should have been (and were not) noted by the referee and reflected in his reports.

(iv) "Blatant" errors

1. It is next submitted that the referee made obvious errors in his reports. In this regard, reference is made to the following.
2. First, that the referee considered Westpac's reduction of a $430,310 debt to $200,000 to be a "windfall" for the partnership, without recognising that that liability "remained an improper impost on the Plaintiff when the Partnership was owed, but did not receive, $429,000 from Kathleen Leigh". In oral submissions that point was not pressed (see T 35.1). Second, an error in reconciling the sheep by "failing to notice" that the 30 June 1998 closing stock of 18,515 changed to opening stock on 1 July 1998 of 15,225 (a variance of 3,290). (In fact, the referee did address this issue - see [77] below.)

(v) "Insufficient Rigour"

1. It is submitted for Dr Caska that the referee approached his task in a summary and insufficiently detailed way. In this regard, it is said that the following matters are not addressed.
2. First, Dr Caska refers to the 780 head of cattle that he held "via" the Nancobull Trust. It is said that these cattle were more valuable than the partnership sheep; that they were held on the land controlled by the Leighs; and that they "simply disappeared with no explanation". Dr Caska says (at [28] of his written submissions) that: Miraculously the Leigh and Leigh partnership became a sheep and cattle partnership whose accounts show the acquisition of 781 head of cattle in the 2000 financial year but could produce no evidence of acquisition. This is a significant factor in weighing the other transactions of, assets of and partner interests in Partnership assets because it bears directly on the likelihood that the Leigh and Leigh partnership have misappropriated funds and assets. All this was entirely ignored by the Impugned Expert.
3. Second, Dr Caska notes that the relevant stock agents (Schute Bell Badgery Lumby) had no records ("allegedly through destruction of existing evidence") concerning the "three contentious sheep sales" to Mrs Leigh (the asserted reason for this being said to be computer system damage and hail storm damage).
4. Third, Dr Caska points to Mr Leigh's failure to produce "shearing tally books" (even after ordered by the Court to do so) recording the headcount of the sheep. (In this regard I note that Mr Leigh, in his affidavit affirmed 10 June 2016, has deposed at [9] that he does not have any sheep shearing tally books for the partnership for the period from 1 July 1996 to 30 June 2001 (or for the Leigh and Leigh partnership for the period from 1 July 1997 to 30 June 2005) as had been sought under a notice to produce issued in these proceedings. He has deposed that there is no need to keep sheep shearing tally books after the year in which the sheep are shorn and that they are not usually kept from year to year.)
5. Fourth, that "a significant amount of material you would expect to have seen" was not produced under a notice to produce. (Mr Leigh has deposed in his affidavit at [7] to a storm in about late 2007 in which his garden shed was blown over and many documents stored in boxes in the shed were lost, annexing a document relating to the insurance claim made in December 2007 that he says related to the two sheds on the property.)
6. Finally, in this regard, Dr Caska points to the mistakes in the initial report that the referee accepted in his supplemental report had been made.

(vi) Failure to address Pembroke J's orders

1. It is submitted that the supplemental report fails to complete the task that Pembroke J directed insofar as the referee, though noting the eight issues for consideration, concluded that items 1 (some of the alleged sheep sales), 4 (sheep numbers), 6 (sheep owned by Mrs Leigh), and 7 (Nancobull cattle) were irrelevant to the issues to be determined in the reference. It is submitted that the referee was wrong in that conclusion. (Dr Caska does not, however, say that Mr Ivey failed to comply with what his Honour ordered - rather, it is said that Mr Ivey wrongly concluded that four of the eight items were outside the scope of the reference - see T 23.23-23.25).

Mr Leigh's submissions

1. As already noted, Mr Leigh opposes leave being granted for Dr Caska to rely upon Mr Jones' 26 July 2017 report. He invokes what was said by Lindsay J in Walkabout 11 Pty Ltd v Jabulani Pty Ltd [2015] NSWSC 1569 at [33], namely that: "… the parties can fairly, and should, be held to the dispute resolution procedure for which a reference to referees provides. They should not be permitted, under the guise of debate about the terms upon which a referee's report should be adopted, to reagitate questions in dispute".
2. Mr Leigh points out that Dr Caska relies extensively on Mr Jones' report of 26 July 2017 to make good his challenges to the reports of Mr Ivey. Complaint is made that Mr Jones' various reports state (at [1.4] of each report) that Mr Jones has "relied on financial statements and other information provided to [him] by the solicitor for Dr John Caska" and (see at [1.8]) that Mr Jones has not verified the source of the documents provided to him by Dr Caska's solicitor. Complaint is also made that the report does not identify the documents, financial statements or other information supplied to Mr Jones.
3. Mr Leigh further points out that Mr Jones' reports do not acknowledge the scope of the reference, arguing that Mr Jones seeks to introduce material that does not pertain to the inquiry. (Mr Leigh notes that, through his solicitors, he objected to the referee relying on the material supplied by Mr Jones but that the referee in his supplementary report of 5 July 2017, having noted the objection, said that "in the interests of fully addressing the matters raised by Mr Jones, I have read and taken account of the matters raised by Mr Jones in his reports" (Mr Ivey's 5 July 2017 report, [2.2]).)
4. As adverted to earlier, I have read Mr Jones' reports essentially as submissions and Mr Leigh did not cavil with such a ruling.
5. Mr Leigh submits that the reports of the referee disclose a thorough investigation of the material provided and that Dr Caska has not demonstrated that the reports reveal some error of principle, or any patent misapprehension of the evidence or material. He submits that Dr Caska has had (and has taken advantage of the) ample opportunity to place material before the referee and that it is immaterial that the Court might come to a different conclusion to the referee. He submits that the report (and supplemental report) should be adopted in entirety.

Determination

1. As adverted to at the outset of these reasons, it is important to bear in mind the scope of the reference is as set out in order 2 of the orders of the Court made (by consent) on 29 October 2009, namely: 2. That an account be taken and an inquiry held in relation to the partnership between the plaintiff on the one part and the defendant on the other part as to: (a) all of the dealings and transactions of the said partnership during the period 1 July, 1997 until 30 June, 2001; (b) what were the assets and liabilities of the partnership at 30 June, 2001; (c) what were the respective interests of the said partners in the assets and undertakings of the partnership as at 30 June, 2001 [I note that the order as entered on JusticeLink says 30 June 2009 but it must have been intended to be 30 June 2001 since that was the date specified in the summons and the partnership had come to an end well before 2009].
2. It is also relevant to note that the reference was sought in the context of an application for the taking of partnership accounts (something to which partners are entitled on the dissolution of a partnership - see Young, Croft and Smith, On Equity (LawBook Co, 2009) at [16.1320] and the cases cited at fn 980). Ordinarily, accounts will be taken on the basis of actual (not notional figures), as opposed to the situation where accounts are ordered on the basis of wilful default (see On Equity at [16.1330]).
3. In the present case, the parties consented to an order for the taking of accounts to be determined by referral out to a court-appointed referee (a forensic accountant with agricultural science qualifications and experience). Mr Ivey's expertise may be expected to have made him an appropriate expert to review the partnership accounts or draft accounts and the primary materials on which the accounts were based or, in the absence of final accounts, could properly be prepared. It cannot be said, however, that he was in a position to determine contested factual disputes of the kind which would arise, for example, on an investigation into allegations of misappropriation.
4. What Dr Caska appears to have understood the ambit of the reference to include (by reference to item (a) above) was some kind of investigative enquiry beyond a determination of the assets and liabilities of the partnership, or the respective interests of the partners, as at a particular date, for example: investigation as to the circumstances in which "assets arose in a new partnership" between Mr Leigh and his wife (see T 5.44); in effect, as an inquiry or investigation into Dr Caska's suspicions (indeed, going further than suspicions, his allegations) of misappropriation by Mr Leigh and his wife of livestock and funds of the partnership between him and Mr Leigh. That seems to me to be well beyond the functions of an expert accountant (however well-qualified in the fields of economics, accounting or business administration and whatever his or her qualifications in agricultural science) and I say this with no disrespect whatsoever to Mr Ivey. This is not, for example, a situation where Mr Ivey would have been in a position to take evidence on oath or affirmation as would be the case if an investigation into past transactions were to come before a judicial officer.
5. Dr Caska accepts that the referee did examine transactions between Mrs Leigh and the partnership (T 8.33) but disputes the correctness of some of the findings in that regard; and says that the referee has not touched on all of the matters that were raised by Mr Jones in relation to those dealings (T 8.39). As to the first, the making of error in some of the findings (some of which the referee acknowledged) is not sufficient to warrant rejection of the report; as to the latter, the difficulty is that Mr Jones' reports engage in a considerable amount of speculation and conjecture based (in a number of respects) on the absence of material - not always on the material actually available to the referee.
6. The issues raised by Dr Caska on the present application make abundantly clear the disconformity between the scope of the reference and the expectations of the process held by Dr Caska (or perhaps Mr Jones).
7. One of the disputed items relates to what are referred to as the "Nancobull cattle". The allegation by Dr Caska is not that those cattle were partnership assets. Quite the contrary. He says that the 780 cattle were his assets that were being kept on the Leighs' property and that they "disappeared" and ended up on the books of the Leighs' partnership.
8. Mr Jones addresses this issue at [5.17] of his final report dated 26 July 2017 (there referring in square brackets to various parts of his earlier reports). He says: A further issue arising, with considerable value, is the loss of Nancobull Trust Cattle. Court Orders of 11 November 2016 referred to the Nancobull Cattle as a "separate partnership". In fact the Nancobull Cattle were held in the Nancobull Trust set up by Mrs Dawn Tasker with Dr John Caska as the sole beneficiary. She passed away leaving the trust. [Forensic Accountants Australia report 4 February 2016]. The restriction of the trust was that Dr Caska could not attain beneficial ownership of the property ("Cairo") for five years. However, Dr Caska was free to dispose of the cattle as he pleased when he had beneficial ownership. These cattle were held on the Caska and Leigh Partnership land and simply disappeared with the Dissolution of the Caska and Leigh Partnership. Unfortunately, if no explanation can be given for the disappearance of the Nancobull Cattle, this appears to be theft. There were approximately 780 head of cattle which had considerable value - a value much greater than all the sheep held by the partnership. The first livestock account of the new "Leigh and Leigh" partnership (DW & KG Leigh) for the financial year 1999-2000, shows sales of cattle of 717 head to $326,498.38. [Forensic Accountants Australia report 13 October 2015 - Appendix XVII]. Although required to address this contentious issue (item 7 of the Court Orders issued on 11 November 2016) in his Supplementary Report Mr Ivey simply stated at 3.7: "Mr Jones is correct in stating the dealings of the Nancobull Trust cattle is regarded totally separate from the partnership. For this reason I did not address this issue, it was not relevant". In which case Mr Ivey does not appear to have complied with the Court Orders in respect of contentious issue 7.
9. The terms of reference did not require the referee to enquire into and investigate Dr Caska's assertions as to any misappropriation of those cattle. And the weight to be placed on the "disappearance" of the cattle as a "suspicious circumstance" is not clear. One might rhetorically ask (although rhetorical questions are always problematic) how a suspicion (or allegation) that particular cattle (which were themselves never said to be part of the partnership assets) might have been misappropriated is to be dealt with in the context of an account being taken of what were the partnership assets and liabilities at a particular time or over a particular period. Even if item (a) of the reference encompasses all dealings and transactions of the partnership of whatever nature over the period specified, irrespective of how that impacts on items (b) and (c) (and it is not clear why that would be so), it does not seem to be suggested that this was a dealing or transaction of the partnership at all - merely that the cattle were on "partnership land". Moreover, it begs the question as to what Mr Ivey could reasonably have been expected to do - notably, whether he was expected to carry out some form of investigation into what Mr Jones suggests is theft. The accusation of theft is a serious one. It cannot possibly be said, in my opinion that the scope of the reference extended to allegations of theft (nor is it apparent that Mr Ivey would have had any proper basis to make a finding of theft or misappropriation, even having regard to the suspicions harboured by Mr Jones and Dr Caska at the sales of cattle by the Leigh partnership at the time in question).
10. Another topic that appears to have caused much concern on the part of Dr Caska is that of the alleged sheep sales to Mrs Leigh in 1996 and 1998. This issue was the subject of discussion in Mr Jones' 22 March 2016 report, particularly at p 11 and following. In a nutshell, Mr Jones says that there is no evidence that sales of sheep to Mrs Leigh occurred in 1996; and that it is possible to establish that the sales in 1998 never occurred (see [3.2.1]; [3.2.4] of that report). In relation to the 1998 alleged sales, Mr Jones queries the genuineness of an agreement to buy and sell sheep through stock agents. Mr Jones then goes on to postulate that Mrs Leigh may have taken the sheep as compensation for repayment by Mrs Leigh of a loan (of $140,000) borrowed by Mrs Leigh (using "Caska and Leigh sheep" as security) and then applied to meet partnership expenses.
11. At [3.2.7], Mr Jones suggests that a "re-working [of] sheep numbers" (to give a lower level of sheep deaths in 1998-1999) "shows that Gail Leigh appears to have taken a further 4,889 head of sheep". As I understand it, this relates to the complaint that there was a disconformity between the closing balance of sheep in the 1998 accounts and the opening balance of sheep in the 1999 accounts. Mr Ivey addresses this issue and points to the difference in the two kinds of accounts. Further, he considers that the adoption of a balancing figure (in the final partnership trading year) for unaccounted for sheep deaths in earlier years would not be uncommon. Whether that explanation be right or wrong, it is clear that Mr Ivey has taken into account Mr Jones' criticisms and (as Pembroke J made clear he was entitled to do) concluded that no amendment to his report was necessary.
12. In other respects, such as in respect of the complaint that the proceeds of sale of cattle in Queensland were not accounted for in the partnership accounts, Mr Ivey made appropriate amendments. His attention was drawn to the discrepancy in the opening and closing stock numbers and he gave an explanation for his reasoning in that regard. The fact that Mr Ivey recognised an error and corrected his report to rectify that is hardly to his discredit and does not warrant the submission made for Dr Caska as to insufficiency of rigour (see (v) above). Similarly, Mr Ivey gave an opinion as to matters such as the decrease in stock numbers. Whether he was qualified to give that opinion, and whether he was right or wrong, seem to me to be immaterial to the inquiry he was required to make.
13. As to the sheep crutching/shearing expenses issue, the argument for Dr Caska seems to be that there should have been a higher level of wool receipts (in the order of some $429,000) by reference to the amount shown for crutching expenses in the relevant year of $59,000 (see T 10.46). In other words it is said that if the sheep had been sold then there would have been no crutching expenses; and if there were crutching expenses then there should have been wool receipts. The significance attached to this issue is that, had the amount of $429,000 (a figure apparently based on an assumed sale price of sheep that Mr Leigh submits was approximately four times the commercially realistic fair market value of the sheep at the time - see T 51-52) been receipted to the partnership accounts for shorn wool, then Dr Caska would not have had to pay the sum of $200,000 which he paid pursuant to the deed entered into on the dissolution of the partnership (that being a deed under which Mr Leigh assumed responsibility for various liabilities of the partnership and Dr Caska assumed the balance of the $430,000 Westpac debt). The write-off of $230,000 (leaving the $200,000 paid by Dr Caska) was treated by Mr Ivey as a windfall to the partnership (about which Mr Jones was critical but which Counsel for Dr Caska ultimately did not seek to press as an error).
14. I am not persuaded that the criticisms of Mr Ivey's reports are well-founded. Mr Jones' reports (often couched in argumentative language) are in substance submissions as to the conclusions to be drawn from what are regarded by him and/or Dr Caska as suspicious circumstances (such as the coincidence in timing of the acquisition of Leigh partnership cattle or the attribution of the disparity in numbers as between the respective partnership holdings to sheep deaths) or perceived disconformity between lack of wool receipts and the incurring of shearing/crutching expenses. There is nothing to suggest that Mr Ivey did not do precisely what Pembroke J contemplated would be done - in an economical way - namely, to review his first report carefully, taking into account the eight areas of contention, and then to determine whether alteration of the report was in his opinion required.
15. Insofar as complaint is presently made as to the first report, I am not persuaded that Dr Caska has established any error of principle or patent misapprehension of facts that would warrant a re-examination by this Court of the accounts of the partnership or the appointment of another referee. I consider that Mr Ivey understood the task that he was to undertake and that he appears to have attended to that task with reasonable diligence. I do not accept that he was required (or would have been able) to carry out a wide ranging enquiry into the allegations of misappropriation and the like made by Dr Caska. Insofar as Mr Ivey proceeded on the basis that he would notionally reconstruct the accounts where there was incomplete information available, Dr Caska's real complaint is not that he did so but that, in doing so, Mr Ivey did not accept Dr Caska's (or Mr Jones') submissions as to the conclusions to be drawn in relation to matters such as the Nancobull Cattle (which I think were outside the terms of reference in any event) or the alleged sheep sales; wool receipts; and the like.
16. My conclusion is that the Referee Reports should be adopted but that (other than in respect of the two issues in relation to which there is no apparent dispute between the parties) it should be clear that they are adopted only insofar as they express conclusions as to the adequacy and reconstruction of the accounts from an accounting standpoint (and the assets and liabilities of the partnership and interests of the partners) on the basis that the underlying assumptions as to factual matters are correct. For the avoidance of doubt, nothing in the adoption of the Referee Reports on that basis would preclude Dr Caska (assuming he has a proper basis for so doing) from arguing that livestock of his own had been misappropriated or from arguing that it is not credible that 100% of partnership stock would be struck down by fruit fly when the Leighs' stock on the same property were unaffected by fruit fly, if those issues are ultimately relevant to a claim he may have (say, a claim for breach of the partnership agreement or of duties owed by his former partner to him during the course of the partnership) against Mr Leigh.
17. All that can usefully be gleaned from the Referee Reports is an indication of what the partnership accounts (adjusted for things such as proceeds of sale that have not been accounted for) would show. In other words, what here was done was a reconstruction of the accounts based on the primary documents and assuming various factual matters. If those factual assumptions (such as the fruit fly infestation) are incorrect then the reconstructed accounts may not be much use but that is a result of the parties' choice to proceed down this path back in February 2009.
18. To the extent that the parties agreed to a process that might be said (on Dr Caska's view of the matter) to go beyond this, then there is some force to the proposition that they should be bound to the course that they adopted. However, my difficulty is that to adopt the report on that basis would be (to adopt the language used by Barrett JA in Illawarra) to give imprimatur to a decision made outside the normal curial process by a person who is not in the position of coming to an informed conclusion as to matters lying within a field in which that person has special expertise. Determining the truth of the allegations of misappropriation is not a matter appropriate for referral to a referee with the qualifications this particular referee has (again with no disrespect to him).
19. Nor is it appropriate in my opinion for there to be a further referral out to another expert to determine those issues. The parties now have a set of partnership accounts (based on primary materials such as they are and the stated factual assumptions). As noted by McDougall J in Chocolate Factory, the Court is entitled to consider the futility and cost of re-litigating an issue determined by the referee where the parties have had ample opportunity to place before the referee such evidence and submissions as they desire. The likely futility of embarking yet again on a referral process in the present circumstances is obvious having regard to the nature of the issues Dr Caska wishes to raise and the manner in which the matter has progressed to date.
20. If Dr Caska wishes to pursue allegations of the kind he has made in his submissions in the present application then those allegations should be properly pleaded and the dispute conducted and determined in accordance with the overriding principles governing litigation in this Court.
21. As it is, the summons seeking that an account be taken in relation to the partnership has been spent and, absent any submission to the contrary, the appropriate course would be to dismiss the summons. The litigation must, to adopt Pembroke J's words, be brought to a head. Any further proceedings (and I am by no means encouraging further costs to be expended on a dispute that seems to have raged for over a decade) would more appropriately in my view be commenced in fresh proceedings commenced by statement of claim.
22. As to costs, I am inclined to think that each party should pay his own costs of the applications before me since neither has had success in obtaining what he was seeking, but there may be aspects of the earlier conduct of the proceedings in relation to which the issue of costs will raise its head. In light of the above, I will make directions for any further brief written submissions on the question of costs and as to whether there is any purpose to be served in the proceedings remaining on foot, with a view to dealing with those submissions on the papers.

Orders

1. For the above reasons I order as follows: 1. Order pursuant to r 20.24(1) of the Uniform Civil Procedure Rules 2005 (NSW) that the report dated 12 February 2016, as supplemented and amended by the report dated 26 July 2017, of the court-appointed referee (Mr Richard Ivey of Tremain Ivey Advisory) be adopted: (i) without limitation, as to the following findings: (a) that no consideration was given for alleged sales of sheep to Kathleen Gail Leigh in January 1998; and (b) that the livestock sales in Bollon, Queensland in August/September 1996 were made by 'de facto' vendors and the head of sheep sold had, consequently, not been taken into account in the livestock trading accounts (5,052 head of sheep); (ii) otherwise subject to the limitation that the conclusions expressed by the referee as to the adequacy of the accounts that have been prepared from an accounting standpoint and as to the assets and liabilities of the partnership and the interests of the partners as at 30 June 2001 are adopted only if the underlying assumptions (whether stated in the report or not) as to the factual matters recorded in the accounts are either not disputed or, if disputed, proven to be correct. 1. Direct the parties to file any brief written submissions as to costs within 7 days with a view to the issue of costs being dealt with on the papers. 2. Direct any party who contends that it is not now appropriate for the summons otherwise to be dismissed to file brief written submissions within 7 days as to why that is the case.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 April 2018