Geneville Constructions Pty Ltd v Leslight

Case [2018] NSWDC 384

District Court


New South Wales

Medium Neutral Citation: Geneville Constructions Pty Ltd v Leslight [2018] NSWDC 384
Hearing dates: 23 November 2018
Date of orders: 10 December 2018
Decision date: 10 December 2018
Jurisdiction:Civil
Before: Dicker SC DCJ
Decision:

(1) The report of Referee Ms Janet Grey dated 4 September 2018 is adopted as a whole pursuant to Part 20.24 of the Uniform Civil Procedure Rules excepting in relation to part of paragraph 219 of the report. The invoices described as the “Platinum invoice” and the “Hansen invoice” in paragraph 219 of the report are treated as assumptions made by the Referee pending the court being satisfied that they are established upon the evidence given by Mr Phillips on behalf of the plaintiff.
(2) The defendant is to pay the costs of the adoption hearing as agreed or assessed.
(3) Liberty to the parties to apply on 14 days’ notice, for a variation of the costs order in (2) above.

Catchwords: Building and construction – whether Referee’s report should be adopted by the court – whether a proper basis for the Referee’s conclusions
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), Part 20.24
Cases Cited: Brighton Australia Pty Ltd v Multiplex Constructions Pty Ltd [2018] VSC 246
Childs v Bassett trading as Bassett Built Constuctions [2016] NSWDC 243
Harris v Morabito Holdings [2018] NSWSC 912
Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267
Wenco Industrial Pty Ltd v WW Industries Pty Ltd (2010) 25 VR 119; [2009] VSCA 191
Category:Procedural and other rulings
Parties: Geneville Constructions Pty Ltd (Plaintiff)
Brett Barry Leslight (Defendant)
Representation:

Counsel:
J Manner (Plaintiff)
J A Darvall (Defendant)

  Solicitors:
Usher Levi (Plaintiff)
Paul Mattick & Associates (Defendant)
File Number(s): 2015/00288845

Judgment

  1. This is an application by the plaintiff for an order pursuant to Part 20.24 of the Uniform Civil Procedure Rules 2005 (NSW) for the adoption of a Referee’s report dated 4 September 2018 in the whole.

  2. Part 20.24 of the Uniform Civil Procedure Rules provides as follows:

“20.24   Proceedings on the report

(cf SCR Part 72, rule 13)

(1)  If a report is made under rule 20.23, the court may on a matter of fact or law, or both, do any of the following:

(a)  it may adopt, vary or reject the report in whole or in part,

(b)  it may require an explanation by way of report from the Referee,

(c)  it may, on any ground, remit for further consideration by the Referee the whole or any part of the matter referred for a further report,

(d)  it may decide any matter on the evidence taken before the Referee, with or without additional evidence,

and must, in any event, give such judgment or make such order as the court thinks fit.

(2)  Evidence additional to the evidence taken before the Referee may not be adduced before the court except by leave of the court.”

Background facts

  1. The background to this application is as follows:

  1. The plaintiff building company…

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AGLC
Geneville Constructions Pty Ltd v Leslight [2018] NSWDC 384
Case
[2018] NSWDC 384
Decision Date

CaseChat Overview and Summary

The case of Geneville Constructions Pty Ltd v Leslight involved a dispute between the plaintiff, a construction company, and the defendant, a property developer, regarding the final payment for construction works. The matter was heard in the New South Wales Civil and Administrative Tribunal, with a Referee appointed to determine the dispute. The plaintiff claimed that the defendant had failed to make final payment for works carried out under a building contract, while the defendant counterclaimed for defects in the works and sought to reduce the payment claimed.

The primary legal issues for the court to decide were whether the Referee's report, which recommended the plaintiff be paid the amount claimed, should be adopted by the court and whether the Referee's conclusions were based on proper evidence. The court needed to determine if the invoices referred to in the report were sufficiently established as part of the contract between the parties.

In its reasoning, the court found that the Referee's report was largely well-reasoned and based on the evidence presented. However, it noted that the Referee had made assumptions about the validity of certain invoices, the "Platinum invoice" and the "Hansen invoice," without sufficient evidence. As a result, the court adopted the Referee's report in full, except for the portion concerning these invoices, which were to be treated as assumptions until the plaintiff could provide the necessary evidence. The court also ordered the defendant to pay the costs of the adoption hearing, with liberty to the parties to apply for a variation of the costs order.

Orders

Orders of the court

(1) The report of Referee Ms Janet Grey dated 4 September 2018 is adopted as a whole pursuant to Part 20.24 of the Uniform Civil Procedure Rules excepting in relation to part of paragraph 219 of the report. The invoices described as the “Platinum invoice” and the “Hansen invoice” in paragraph 219 of the report are treated as assumptions made by the Referee pending the court being satisfied that they are established upon the evidence given by Mr Phillips on behalf of the plaintiff.

(2) The defendant is to pay the costs of the adoption hearing as agreed or assessed.

(3) Liberty to the parties to apply on 14 days’ notice, for a variation of the costs order in (2) above.

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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