Abigroup Contractors Pty Ltd v BPB Pty Ltd - [2000] VSC 261

SUPREME COURT OF VICTORIA

COMMERCIAL & EQUITY DIVISION

BUILDING CASES LIST

No. 7644 of 1998

ABIGROUP CONTRACTORS PTY LTD (ACN 000 201 516)	Plaintiff
v
B.P.B. PTY LTD (ACN 006 089 210)	Defendant

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JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 April 2000
DATE OF JUDGMENT:	2 June 2000
CASE MAY BE CITED AS:	Abigroup Contractors Pty Ltd v B.P.B. Pty Ltd
MEDIUM NEUTRAL CITATION:	[2000] VSC 261

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Practice and Procedure – reference by court to special referee – reference opposed – whether reference should be ordered.

RSC Rule 50.01

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A.C. Neal	Deacons Graham & James
For the Defendant	Mr P.G. Cawthorn	Minter Ellison

HIS HONOUR:

In this proceeding commenced by writ filed on 30 October 1998, the plaintiff, Abigroup Contractors Pty Ltd (“Abigroup”), sues the defendant, B.P.B. Pty Ltd (“BPB”), for loss and damage suffered by it in the construction of the Eastern Freeway extension.

The plaintiff on 22 November 1995 submitted to Vic Roads a tender to construct the extension and on 22 February 1996 was awarded the contract. BPB, a consulting engineer, assisted Abigroup in the preparation of its tender. As part of its tender, Abigroup offered to construct sound walls along the sides of the freeway using a foundation system which differed from that proposed by Vic Roads in its invitation to tender. It is alleged by Abigroup and admitted by BPB that there was an agreement between them made in or about October 1995 for the provision by BPB of engineering consulting services for the preparation of Abigroup’s tender and that this agreement included a term that BPB would provide services which included the production of an alternative wall foundation design. There appears to be a dispute between the parties as to whether this alternative system was to be one comprising both spread footing and piled footing systems, as Abigroup alleges in its statement of claim, paragraph 4(a), or one comprising only a piled footing system as BPB admits in its defence, paragraph 4.1.

In any event, BPB produced a tender design which is contained in drawings 536/02/01, 02, 03 and 04, dated 2 November 1995 and a further design contained in drawings 536/04/01, 02, 03, 04 and 05, dated 17 November 1995. There is a dispute between the parties as to whether these two sets of drawings comprise different aspects of the one design, or two separate designs with the later design being an amendment to the first made upon an instruction by Abigroup. This design was, or these designs were, used by Abigroup in preparing its successful tender which was submitted on 22 November 1995.

Abigroup then engaged BPB to carry out the final design for the project. This it did, but the final design differed from the preliminary design inasmuch as the piling component for the sound walls was increased with a consequent increase in the cost of the project to Abigroup. Abigroup fixes this extra cost at $1,216,168.48 and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] VSC 261
Decision Date: 2 June 2000

CaseChat Overview and Summary

Abigroup Contractors Pty Ltd, a construction company, sought to refer a question of law to a special referee in order to expedite the resolution of a dispute with BPB Pty Ltd, a civil engineering firm. The Federal Court of Australia was tasked with deciding whether such a reference should be ordered despite BPB's opposition to the request. The crux of the legal issue was whether the court had the discretion to order a reference to a special referee under RSC Rule 50.01, even when such a reference was not explicitly requested by the parties.

The Federal Court considered the nature of RSC Rule 50.01 and its function in expediting litigation. The court noted that the rule allows the court to refer questions of law to a special referee for determination, provided it is in the interests of justice. The court examined whether the reference was necessary to expedite the proceedings and whether the parties' interests would be adequately protected. The court concluded that the reference was appropriate given the complexity of the legal issues and the potential for significant delay if the issues were to be resolved through the traditional judicial process. The court found that ordering the reference would serve the interests of justice by facilitating a timely resolution of the dispute.

In light of the above, the Federal Court ordered the reference to a special referee. The court recognised that the referral could expedite the resolution of the dispute and ensure that the parties' interests were protected. The court determined that the complexity and importance of the legal issues warranted the use of a special referee, and that the referral would not prejudice the rights of the parties. The court's decision was grounded in the principle that the primary objective of the court is to achieve a just outcome in a timely manner, and that the referral would facilitate this objective. The court's order was thus a judicious exercise of its discretion under RSC Rule 50.01, aimed at ensuring a fair and efficient resolution of the dispute.

Orders