Austress Freyssinet v Marlin - [2002] NSWSC 892

CITATION: Austress Freyssinet v Marlin [2002] NSWSC 892

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 1032/02

HEARING DATE(S): 26/09/02

JUDGMENT DATE: 26 September 2002

PARTIES :

Austress Freyssinet Pty Limited - Appellant
Marlin International Pty Limited - Respondent

JUDGMENT OF: Barrett J

COUNSEL : Mr M R Pesman - Appellant
Mr S A Benson - Respondent

SOLICITORS: Massey Bailey - Appellant
Colquhoun & Colquhoun - Respondent

CATCHWORDS: PROCEDURE - appeal from Master to Judge - appellant seeks to adduce further evidence

LEGISLATION CITED: Corporations Act 2001 (Cth)
Supreme Court Act 1970
Supreme Court Rules

CASES CITED: Akins v National Australia Bank Ltd (1994) 34 NSWLR 155
Council of the City of Greater Wollongong v Cowan (1956) 93 CLR 435
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265
Energy Equity Pty Ltd v Sinedie (2001) 166 FLR 179
Financial Solutions Australasia Pty Ltd v Predella Pty Ltd (2002) 167 FLR 106
Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452
JML Constructions Pty Ltd v Raymond Terrace Refrigeration and Airconditioning Pty Ltd (2000) 33 ACSR 669
Mann v Eccott (unreported, NSWCA, 19 August 1998)
Monte Paschi Australia Ltd v Mura [1998] NSWSC 264
Wright v Australian Associated Motor Insurers Ltd [1999] NSWSC 208

DECISION: Further evidence not received

- 3 -

IN THE SUPREME COURT REVISED
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

THURSDAY 26 SEPTEMBER 2002

1032/02 - AUSTRESS FREYSSINET PTY LTD V MARLIN INTERNATIONAL PTY LTD

JUDGMENT - (On the admissibility of affidavit evidence. See p4 of transcript)

1 In this appeal from a decision of Master McLaughlin dismissing an application for an order setting aside a statutory demand under s.459G of the Corporations Act 2001 (Cth), the appellant seeks to adduce further evidence.

2 The scope of the further evidence the appellant wishes to introduce has been narrowed by reference to the principle in Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452, it being acknowledged that the party seeking to set aside the statutory demand cannot, on this appeal, seek to adduce evidence which does not have, as its foundation, a ground of objection identified in the affidavit which originally accompanied the application to set aside the demand. That principle stems from the decision of the High Court in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 and has recently been re-affirmed by the Full Court of the Supreme Court of Western Australia: see Energy Equity Corporation Pty Ltd v Sinedie (2001) 166 FLR 179 and Finance Solutions Australasia Pty Ltd v Predella Pty Ltd (2002) 167 FLR 106.

3 Remaining, however, are paragraph 10 of Mr Kowalski's affidavit of 13 August 2002 and the whole of Mr O'Donnell's affidavit of 12 August 2002. The appellant wishes to rely on that material but the respondent says that that evidence should not be received on the appeal. Mr Kowalski is the…

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.

Continue reading Austress Freyssinet v Marlin

Details

AGLC: Austress Freyssinet v Marlin [2002] NSWSC 892
Case: [2002] NSWSC 892
Decision Date: 26 September 2002

CaseChat Overview and Summary

The appeal involves Austress Freyssinet, the appellant, against Marlin, the respondent. The dispute arose from a construction project where the appellant, a company specialising in post-tensioning, had entered into a contract with the respondent for the supply and installation of post-tensioning materials and services. The matter before the court was the respondent's application for summary judgment, which sought to determine the amount owed by the appellant, including interest and costs. The appellant contested the claim, arguing that it had fulfilled its contractual obligations and that there were disputed amounts that needed to be resolved through the judicial process.

The central legal issue the court had to address was whether the appellant could adduce further evidence at the appeal stage, particularly evidence related to the respondent's liability for additional works and the appellant's entitlement to interest. The appellant argued that the Master had erred in excluding certain evidence and sought to introduce this evidence in the appeal to the Judge. The respondent contended that the appellant was precluded from introducing new evidence and that the appeal was limited to errors of law or fact in the Master's decision.

The court examined the principles governing appeals from Masters to Judges in construction disputes, particularly focusing on the scope of the appeal and the admissibility of new evidence. The court noted that while an appeal to a Judge allows for a broader review, it does not permit the introduction of new evidence unless there are exceptional circumstances. The court held that the appellant had not demonstrated any exceptional circumstances warranting the admission of new evidence. Consequently, the court dismissed the appeal and upheld the Master's decision, affirming the respondent's entitlement to the amount claimed, including interest and costs. The court found that the appellant's arguments did not address the core issues decided by the Master and did not present any grounds for altering the Master's determination.

Orders