CIVIL PROCEDURE — referral to referees — adoption of referees’ report — where complex matters of tax accounting practice referred to referees who have produced three reports — whether the third report should be rejected because certain findings were perverse or manifestly unreasonable
Quick Take
1On an application under UCPR 20.24, a referee's preference for actual over notional figures in a technical tax-accounting calculation is a matter of expert judgment. Absent internal inconsistency, error of principle or a conclusion no reasonable tribunal could reach, the court will not second-guess it, particularly where successive reports form a unified whole showing a thorough, analytical approach.
2Referees quantifying damages that include a capital gains tax gross-up do not err by declining to assume that the plaintiff will obtain a costs order or recover any particular amount of costs. Quantification precedes, and informs, the court's discretionary costs determination. Whether final judgment should be deferred to accommodate the effect of any later costs recovery on the gross-up was left open.
3Where the matter referred is 'the amount of damages for each plaintiff', referees act within jurisdiction in taking account of a plaintiff's undisputed carried forward tax losses in calculating any gross-up, even if those losses were not separately identified as an issue for referral. That is especially so where the parties had the opportunity to make submissions on them.
