Bitar Pty Ltd v Hebbel Constructions Pty Ltd

Case [2019] NSWCA 39

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Bitar Pty Ltd v Hebbel Constructions Pty Ltd [2019] NSWCA 39
Hearing dates: 20 February 2019
Date of orders: 05 March 2019
Decision date: 05 March 2019
Before: Gleeson JA at [1];
McCallum JA at [44].
Decision:

(1)   Summons seeking leave to appeal dismissed.

 (2)   Applicant pay the respondent’s costs of the summons.
Catchwords:

APPEAL – Leave to appeal from interlocutory decision adopting referee reports – where applicant afforded opportunity to make submissions to referee and had not done so – whether manifest injustice in primary judge not considering afresh questions of fact decided by the referee

  EVIDENCE – Discretions – Exclusion of evidence – Civil proceedings – refusal of admission of late material – where primary judge had regard to unexplained delay and case management principles – restraint in reviewing discretionary decision concerning question of practice and procedure
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59
Supreme Court Act 1970 (NSW), s 101(2)(e)
Uniform Civil Procedure Rules 2005 (NSW), r 20.24
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Chocolate Factory Apartments Pty Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784
Flender (Aust) Pty Ltd v Warman International Ltd (Court of Appeal (NSW), 7 and 18 August 1997, 19 June 1998, unrep)
House v The King (1936) 55 CLR 499; [1936] HCA 40
In the Will of F B Gilbert (1946) 46 SR(NSW) 318
Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633; [2014] NSWCA 184
Nine Network Pty Ltd v Kennedy Miller Television Pty Ltd (Court of Appeal (NSW), 6 May 1994, unrep)
Rich v Westpac Banking Corporation [2014] NSWCA 136
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Westpoint Management Ltd v Chocolate Factory Apartments Ltd [2007] NSWCA 253
Category:Principal judgment
Parties: Bitar Pty Limited (Applicant)
Hebbel Constructions Pty Limited (Respondent)
Representation:

Counsel:
P E King (Applicant)
P Wiggins (Solicitor) (Respondent)

  Solicitors:
Priest Legal (Applicant)
Paramonte Legal (Respondent)
File Number(s): 2018/258068
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Equity Division
Citation:
Hebbel Constructions Pty Limited v Bitar Pty Limited, New South Wales Supreme Court, 26 July 2018 (unreported)
Date of Decision:
26 July 2018
Before:
Rein J
File Number(s):
2014/269117

Judgment

  1. GLEESON JA: The applicant, Bitar Pty Limited (Bitar), seeks leave to appeal against orders of a judge of the Equity Division made on 26 July 2018 adopting two reports by a referee, Mr Matthew Gwynne, on certain questions referred for determination in connection with the winding up of a partnership: Hebbel Constructions Pty Limited v Bitar Pty Limited (Supreme Court (NSW), Rein J, 26 July 2018, unrep). As the orders sought to be challenged involve an interlocutory decision, the…

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AGLC
Bitar Pty Ltd v Hebbel Constructions Pty Ltd [2019] NSWCA 39
Case
[2019] NSWCA 39
Decision Date

CaseChat Overview and Summary

Bitar Pty Ltd (the applicant) sought leave to appeal an interlocutory decision of the primary judge who had adopted reports from a referee. The dispute concerned the adoption of these referee reports, with the applicant arguing that it had not been afforded a proper opportunity to make submissions to the referee and that there was a manifest injustice in the primary judge not considering the factual questions anew. The respondent was Hebbel Constructions Pty Ltd. The appeal was heard by Gleeson and McCallum JJA in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the primary judge erred in adopting the referee's reports without a fresh consideration of the factual findings, and whether the primary judge wrongly exercised their discretion in refusing to admit late material. The applicant contended that the primary judge should have considered the factual questions afresh, notwithstanding the referee's findings, and that the refusal to admit late material was an improper exercise of discretion.

The Court of Appeal held that the applicant had been afforded an opportunity to make submissions to the referee and had not done so. Furthermore, the Court found that the primary judge's decision to refuse the admission of late material was a proper exercise of discretion, having regard to unexplained delay and case management principles. The Court indicated that it would generally exercise restraint in reviewing discretionary decisions concerning questions of practice and procedure.

Consequently, the Court dismissed the summons seeking leave to appeal and ordered the applicant to pay the respondent's costs of the summons.

Orders

Orders of the court

(1) Summons seeking leave to appeal dismissed.

(2) Applicant pay the respondent’s costs of the summons.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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