Etlis v New Age Constructions (NSW) Pty Ltd - [2005] NSWCA 165

NEW SOUTH WALES COURT OF APPEAL

CITATION: Etlis & Anor v New Age Constructions (NSW) Pty Ltd & Anor [2005] NSWCA 165

FILE NUMBER(S):
40957/03

HEARING DATE(S): 7 February, 2005

JUDGMENT DATE: 16/05/2005

PARTIES:
Robert Etlis & Lana Etlis (Appellants)
New Age Constructions (NSW) Pty Ltd (First Respondent)
John Carollo (Second Respondent)

JUDGMENT OF: Handley JA Hodgson JA Brownie AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 1981/99

LOWER COURT JUDICIAL OFFICER: Hungerford ADCJ

COUNSEL:
M Christie/D S Weinberger (Appellants)
I H Bailey SC/A Matalani (Respondents)

SOLICITORS:
Hunt & Hunt (Appellants)
Yandell Wright Stell (Respondents)

CATCHWORDS:
APPEAL - decision adopting report of referee - error established - respondent entitled to raise new point of law relevant to exercise of Court's powers
BUILDING & ENGINEERING CONTRACTS - "Plain English Building Agreement" - 11th ed of Housing Industry Association - clause 6 - extensions of time
D

LEGISLATION CITED:
Supreme Court Act 1970
Supreme Court Rules 1970

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40957/03
HANDLEY JA
HODGSON JA
BROWNIE AJA
16 MAY 2005

ROBERT ETLIS & ANOR v NEW AGE CONSTRUCTIONS (NSW) PTY LTD
& ANOR

CATCHWORDS

APPEAL – decision adopting report of referee – error established – respondent entitled to raise new point of law relevant to exercise of Court’s powers

BUILDING & ENGINEERING CONTRACTS – “Plain English Building Agreement” – 11th ed of Housing Industry Association – clause 6 – extensions of time

FACTS

The issues on this appeal concerned the validity of extensions of time allowed by a referee and the Judge, and the allowance for extra costs caused by the delays on a quantum meruit basis. The building contract was in the standard “Plain English Building Agreement” 11th ed issued by the Housing Industry Association. Clause 6 dealing with extensions of time required the builder to notify the owner in writing “within ten (10) days of the event”. The referee and the Judge found that the owners had waived their right to written notification for an extension of time claim based on the presence of a Telstra cable. There was no evidence of a representation or promise by the owner that written notification of that delay causing event need not be given. The builder sought to rely on a contention that written notice had in fact been given. The owner also claimed that the builder’s extension of time claim for a party wall should have been disallowed because written notice of that delay causing event had been given prematurely.

HELD: (1) In an appeal from a judgment adopting the report of a referee an appellant must establish error in the decision of the Judge and cannot simply rely on error in the report of the referee. Accordingly an appellant can only establish appellable error in respect of grounds taken and argued before the Judge: Super Pty Ltd v S J P Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549; Nine Network…

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: [2005] NSWCA 165
Decision Date: 16 May 2005

CaseChat Overview and Summary

The appeal concerned a dispute between Etlis (the appellant) and New Age Constructions (NSW) Pty Ltd (the respondent) regarding a building contract. The primary judge had adopted the report of a referee, and the appellant sought to appeal this decision.

The central legal issues before the Court of Appeal were whether the primary judge erred in adopting the referee's report, and whether the respondent was entitled to raise a new point of law concerning the exercise of the Court's powers, despite not having raised it at the initial hearing. The dispute also involved the interpretation of clause 6 of the "Plain English Building Agreement" (11th ed of Housing Industry Association), which dealt with extensions of time.

The Court of Appeal found no error in the primary judge's adoption of the referee's report. It also held that the respondent was entitled to raise the new point of law, as it was relevant to the Court's powers and the proper exercise of its discretion. The Court reasoned that the appeal was essentially against the primary judge's exercise of discretion, and that the new point of law was a matter that the Court could consider in reviewing that discretion.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed 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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