(2) Orders 1, 4 and 5 of the orders of 21 December 2022 made by McWilliam AsJ are set aside.
(3) The matter be remitted to McWilliam J for determination in accordance with the Court’s reasons.
(4) The respondents to pay the appellant’s costs of this appeal.
(5) Costs of this appeal are not to be assessed until the conclusion of the proceedings in the Supreme Court on remitter.
Catchwords:
PRACTICE AND PROCEDURE – APPEAL – Appeal against award of damages by primary judge – whether there was a denial of procedural fairness – damages awarded on a basis other than the basis run at trial – appeal allowed – matter remitted
Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63…
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
AGLC
Ashell Homes Constructions Pty Ltd v Kobus [2024] ACTCA 32
Case
[2024] ACTCA 32
Decision Date
CaseChat Overview and Summary
Ashell Homes Constructions Pty Ltd appealed to the Supreme Court of Victoria, Court of Appeal, against an award of damages made by a primary judge in favour of Kobus. The central dispute concerned whether the primary judge had denied the appellant procedural fairness by awarding damages on a basis that had not been properly run or considered during the trial.
The Court of Appeal was required to determine whether the primary judge’s decision to award damages on a basis different from that presented by the parties at trial constituted a denial of procedural fairness to the appellant. This involved considering whether the appellant had a sufficient opportunity to address the alternative basis for damages and whether the award was within the scope of the case as it had been litigated.
The Court of Appeal found that there had been a denial of procedural fairness. Their Honours reasoned that the primary judge had awarded damages on a basis that was not foreshadowed or argued by the parties, thereby depriving the appellant of the opportunity to present its case or make submissions in relation to that specific basis for the award. Consequently, the appeal was allowed, and the matter was remitted to the primary judge for redetermination. The respondents were ordered to pay the appellant's costs of the appeal.
Orders
Orders of the court
(1) The appeal is allowed.
(2) Orders 1, 4 and 5 of the orders of 21 December 2022 made by McWilliam AsJ are set aside.
(3) The matter be remitted to McWilliam J for determination in accordance with the Court’s reasons.
(4) The respondents to pay the appellant’s costs of this appeal.
(5) Costs of this appeal are not to be assessed until the conclusion of the proceedings in the Supreme Court on remitter.