Australia, June 2 -- New South Wales Land and Environment Court issued text of the following judgement on May 2:

1. I delivered judgment and made substantive orders in these proceedings on 3 December 2024: Macaulay v Macaulay [2024] NSWSC 1547 (my earlier reasons). At the time of making those orders, I reserved the question of costs. The parties have filed and served submissions on that issue. They have also identified some matters that require amendment in the substantive orders. Additionally, the second and third defendants have raised an issue that, although not argued at trial, is one they say is appropriate for me to deal with at this stage.

2. These are my reasons for making orders as to all of these matters. I will use the same definitions and naming conventions as in my earlier reasons.

Taking of partnership accounts

3. At paragraphs [491] and [492] of my earlier reasons, I found that it was appropriate for accounts to be taken of the Partnership. However, I overlooked making an order to that effect. I will therefore make an order under r 46.3 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for accounts to be taken on the basis indicated in my earlier reasons.

4. The parties have assumed that such an order would require an associate justice of the Court to take the accounts. The Court's usual practice in relation to the taking of accounts was described by Brereton J in Torlonia v Wright (No 2) [2017] NSWSC 951. His Honour said at [4]-[5]:

"[4] Traditionally, where a judge decreed the taking of accounts, they would be taken before a master, or as that office later became in this State, an associate judge. This was described by Young CJ in Eq in Cavasinni v Cavasinni:

'As a result of the Chancery Commission of 1850, equity procedure was reformed and the tasks performed by the Masters in Chancery were transferred to Clerks within the Judges' chambers. Accordingly, what happened after a decree in a partnership suit was that the Clerks would enquire sitting in the Judges' chambers, hearing evidence if need be, but because they were acting completely as the Judges' delegates, they were bound by what the Judge found. They did not make a decision, but presented a report to the Judge. The Judge could either adopt that report or send the matter back for further enquiry.

In due course the Clerks were renamed Masters.

The same procedure applied in New South Wales so that it was not possible for the Master on an enquiry to make any different determination on the facts than that made by the Judge.'

[5] With the demise of the office of Associate Judge, it has become necessary to engage alternative machinery for the taking of accounts. Sometimes, it is referred out to a referee; but in my view parties who seek public justice in the courts should not ordinarily be visited with the additional cost of private justice before a referee. Alternatively, the taking of accounts can now be referred to a registrar, as formerly they were referred to an associate judge; the delegation under (NSW) Civil Procedure Act 2005, s 13, dated 26 November 2012, confers on a registrar all the powers of the Court under UCPR Part 46 (Accounts and Inquiries), with an irrelevant exception. However, particularly where evidence relevant on the account has already been taken before the judge, it is often convenient and efficient for the account to be taken by the judge who heard the substantive proceeding, and that is the procedure that was adopted here." (footnotes omitted)

5. The evidence does not allow me to reach a view as to how complex the process of the taking of accounts will be in this case. It may yet be appropriate for the task to be undertaken by a referee. I also note that the parties do not intend to progress this aspect of the dispute until such time as any appeal from the principal judgment has been determined.

6. In the circumstances, I propose to make orders for the taking of accounts before me. At such time as the parties propose to proceed with the taking of accounts following the outcome of any appeal, I will make further orders and directions as may be necessary.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1968dfdfc671efba5708d7c2)

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