CITATION: Casbee Properties Pty Ltd v Patoka Pty Ltd [2003] NSWCA 361 HEARING DATE(S): 24 November 2003 JUDGMENT DATE:
11 December 2003JUDGMENT 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 - OpponentFILE NUMBER(S): CA 40429/03; 40430/03 COUNSEL: G McVay - Claimant
J Gooley - OpponentSOLICITORS: 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 55004/03Thursday, 11 December 2003MASON P
GILES JA
McCOLL JA
CASBEE PROPERTIES PTY LTD v PATOKA PTY LTD
CASBEE PROPERTIES PTY LTD v PATOKA PTY LTD
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…
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- Case
- [2003] NSWCA 361
- Decision Date
CaseChat Overview and Summary
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
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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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