Casbee Properties Pty Ltd v Patoka Pty Ltd - [2003] NSWCA 361

CITATION: Casbee Properties Pty Ltd v Patoka Pty Ltd [2003] NSWCA 361

HEARING DATE(S): 24 November 2003

JUDGMENT DATE:
11 December 2003

JUDGMENT OF: Mason P at 1; Giles JA at 2; McColl JA at 63

DECISION: In both applications leave to appeal refused with costs.

CATCHWORDS: Contract for road construction - concurernt arbitration and reference - issue of time of practical completion - obscure contract - whether manifest error of law in arbitrator's construction of contract - no manifest error of law - no leave to appeal - whether leave to appeal on same issue in reference - on discretionary grounds, no leave to appeal - issue of reasonableness for proprietor to have non-conforming works rectified - whether referee applied correct test of reasonableness - no error in judge holding that he did - in any event on discretionary grounds no leave to appeal.

CASES CITED: Bellgrove v Eldridge (1954) 90 CLR 613;
Huxley Electronics and Construction Ltd v Forsyth (1999) All ER 268;
Natoli v Walker (CA, 26 May 1994, unreported);
New South Wales v Coya (Constructions) Pty Ltd (CA, 4 August 1995, unreported);
Promenade Investments Pty Ltd v State of New South Wales (1992) NSWLR 203;
Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549.

PARTIES :
Casbee Properties Pty Ltd - Claimant
Patoka Pty Ltd - Opponent

FILE NUMBER(S): CA 40429/03; 40430/03

COUNSEL: G McVay - Claimant
J Gooley - Opponent

SOLICITORS: Spencer Whitby & Co, East Sydney - Claimant
Peter Evans & Associates, Newcastle - Opponent

LOWER COURTJURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): ED 55003/03; 55004/03

LOWER COURT
JUDICIAL OFFICER : Nicholas J

CA 40429/03
CA 40430/03
ED 55003/03
ED 55004/03

MASON P
GILES JA
McCOLL JA
Thursday, 11 December 2003

CASBEE PROPERTIES PTY LTD v PATOKA PTY LTD

Judgment

1 MASON P: I agree with Giles JA.

2 GILES JA: Casbee Properties Pty Ltd (“the Principal”) applied for leave to appeal from decisions of Nicholas J in proceedings brought against Patoka Pty Ltd (“the Contractor”) in the Technology and Construction List. In one proceedings his Honour refused leave to appeal from the award in an arbitration. In the other proceedings his Honour adopted the report of a referee. The applications were for leave to appeal from parts only of those decisions. They were heard on full submissions so that, if leave to appeal were granted, the appeal could be decided without a further hearing.

Background

3 The Principal owned land at Middle Road, Paxton, near Cessnock. It obtained the approval of Cessnock City Council (“the Council”) to the sub-division of the land into twenty-one residential blocks. Sub-division in accordance with the approved plans required the construction of a bitumen sealed kerbed road running off Middle Road and ending in a cul-de-sac and, at three places off the road, bitumen sealed driveways providing access to battle-axe blocks.

4 By a written contract executed by the Contractor on…

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: [2003] NSWCA 361
Decision Date: 11 December 2003

CaseChat Overview and Summary

Casbee Properties Pty Ltd (the applicant) sought leave to appeal from decisions of a referee and an arbitrator concerning a contract for road construction with Patoka Pty Ltd (the respondent). The dispute centred on the issue of practical completion and the reasonableness of the proprietor requiring non-conforming works to be rectified. The applications for leave to appeal were heard by the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether there was a manifest error of law in the arbitrator's construction of the contract regarding the time of practical completion, and whether the referee erred in their assessment of the reasonableness of the proprietor requiring rectification of non-conforming works. The court was also required to consider whether to grant leave to appeal on discretionary grounds in relation to both the arbitration and reference decisions.

The Court of Appeal found no manifest error of law in the arbitrator's construction of the contract. Similarly, the court held that the referee had applied the correct test of reasonableness in relation to the rectification of non-conforming works, and therefore no error was demonstrated. In relation to both applications, the court exercised its discretion to refuse leave to appeal.

Consequently, leave to appeal was refused in both applications, and the applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

In both applications leave to appeal refused with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Casbee Properties Pty Ltd v Patoka Pty Ltd [2003] NSWCA 361
HEARING DATE(S):	24 November 2003
JUDGMENT DATE:	11 December 2003
JUDGMENT OF:	Mason P at 1; Giles JA at 2; McColl JA at 63
DECISION:	In both applications leave to appeal refused with costs.
CATCHWORDS:	Contract for road construction - concurernt arbitration and reference - issue of time of practical completion - obscure contract - whether manifest error of law in arbitrator's construction of contract - no manifest error of law - no leave to appeal - whether leave to appeal on same issue in reference - on discretionary grounds, no leave to appeal - issue of reasonableness for proprietor to have non-conforming works rectified - whether referee applied correct test of reasonableness - no error in judge holding that he did - in any event on discretionary grounds no leave to appeal.
CASES CITED:	Bellgrove v Eldridge (1954) 90 CLR 613; Huxley Electronics and Construction Ltd v Forsyth (1999) All ER 268; Natoli v Walker (CA, 26 May 1994, unreported); New South Wales v Coya (Constructions) Pty Ltd (CA, 4 August 1995, unreported); Promenade Investments Pty Ltd v State of New South Wales (1992) NSWLR 203; Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549.
PARTIES :	Casbee Properties Pty Ltd - Claimant Patoka Pty Ltd - Opponent
FILE NUMBER(S):	CA 40429/03; 40430/03
COUNSEL:	G McVay - Claimant J Gooley - Opponent
SOLICITORS:	Spencer Whitby & Co, East Sydney - Claimant Peter Evans & Associates, Newcastle - Opponent

LOWER COURTJURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	ED 55003/03; 55004/03
LOWER COURT JUDICIAL OFFICER :	Nicholas J