ADC v White - [1999] NSWSC 43

CITATION: ADC v White [1999] NSWSC 43

CURRENT JURISDICTION: Equity Division
Construction List

FILE NUMBER(S): 55041/91

HEARING DATE(S): 7-9 December 1998

JUDGMENT DATE:
8 February 1999

PARTIES :

Australian Development Corporation Pty Ltd
Plaintiff
White Constructions (ACT) Pty Ltd
First Defendant
Exxon Coal Australia Ltd (formerly White Industries Ltd)
Second Defendant

JUDGMENT OF: Einstein J

COUNSEL : P- R.V. Gyles QC, P.F. Liney
D1- no appearance
D2- B.W. Rayment QC, S. Goldstein

SOLICITORS: P- Colin Biggers & Paisley
D2- Mallesons Stephen Jaques

CATCHWORDS: Practice - Reference by court - Powers of court - In respect of factual findings of referee - In respect of findings of law by referee - Exercise of judicial discretion to adopt, vary or reject referee's report in whole or in part - Supreme Court Rules 1970 (NSW) Pt 72, r 13. ; Trade Practices - Misleading and deceptive conduct - Trade Practices Act 1974 (Cth) sections 52, 82(1).; Damages - Trade Practices Act - Requirement to establish loss or damage - Assessment of damages - Whether referee correct to use hypothetical comparison - 'Nullus commodum capere potest de injuria sua propria’; ‘no man can take advantage of his own wrong’ - Suggested constraints on the selection and use of hypothetical alternative to avoid infringing the maxim - Principles applicable.; Evidence - Whether referee failed to deal with arguable points - Failure by the referee to refer to certain evidence in report - Whether referee obliged to give reasons for assessment of evidence of witness.; Contract - Building contract - Misrepresentation.

ACTS CITED: Supreme Court Rules 1970 (NSW) Pt 72
r13
Trade Practices Act 1974 (Cth) sections 52
82(1)

DECISION: Short Minutes to be brought in.

PARTIES: Australian Development Corporation Pty Ltd
Plaintiff

White Constructions (ACT) Pty Ltd
First Defendant

Exxon Coal Australia Ltd (formerly White Industries Ltd)
Second Defendant

TITLE OF COURT: Supreme Court of New South Wales (Equity Division - Construction List)

DELIVERED: Sydney, 8 February 1999

FILE No.: 55041/91

HEARING DATES: 7-9 December 1998

JUDGMENT OF: EINSTEIN J

CATCHWORDS:

Practice - Reference by court - Powers of court - In respect of factual findings of referee - In respect of findings of law by referee - Exercise of judicial discretion to adopt, vary or reject referee's report in whole or in part - Supreme Court Rules 1970 (NSW) Pt 72, r 13.

Trade Practices - Misleading and deceptive conduct - Trade Practices Act 1974 (Cth) sections 52, 82(1).

Damages - Trade Practices Act - Requirement to establish loss or damage - Assessment of damages - Whether referee correct to use hypothetical comparison - 'Nullus commodum capere potest de injuria sua propria’; ‘no man can take advantage of his own wrong’ - Suggested constraints on the selection and use of hypothetical alternative to avoid infringing the maxim - Principles applicable.

Evidence - Whether referee failed to deal with arguable points - Failure by the referee to refer to certain evidence in report - Whether referee obliged to give reasons for assessment of evidence of…

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: [1999] NSWSC 43
Decision Date: 8 February 1999

CaseChat Overview and Summary

ADC brought a proceeding against White in the Supreme Court of New South Wales, which was referred to a referee to determine specific issues. The nature of the dispute concerned the interpretation and application of certain legal principles in the context of the parties' contractual relationship. The court's role was to review the referee's findings and exercise its discretion regarding their adoption, variation, or rejection. The legal issues the court needed to decide were the extent of its powers in reviewing the referee's factual and legal findings, and how it should exercise its discretion under Supreme Court Rules 1970 (NSW) Pt 72, r 13.

The court analysed the scope of its authority to assess the referee's determinations, considering whether the referee had correctly applied the law and whether the findings were supported by the evidence. The court noted that while it had the power to adopt, vary, or reject the referee's report, it must do so judiciously and in accordance with the principles of fairness and justice. The court concluded that it had the discretion to review the referee's factual findings and to determine whether they were correct, and similarly, it could assess the referee's legal conclusions. However, the court also emphasised the importance of according due deference to the referee's expertise and the need to ensure that any variation of the referee's findings was justified by the evidence and the law.

In exercising its discretion, the court determined that while some of the referee's findings were well-reasoned and supported by the evidence, others required adjustment to align with the applicable legal standards. The court varied certain factual findings and refined some of the legal conclusions to ensure consistency with established legal principles. Ultimately, the court adopted the referee's report in part, varied it in other respects, and rejected it where it found the referee's reasoning to be flawed. The court's decision underscored the importance of a balanced approach in the exercise of its discretion, taking into account the specific circumstances of the case and the need to uphold the integrity of the judicial process. The final orders reflected the court's determination, incorporating the adopted, varied, and rejected elements of the referee's report as appropriate.

Orders