Gleeson v Boden - [2011] NSWDC 214

District Court

New South Wales

Medium Neutral Citation: Gleeson v Boden [2011] NSWDC 214
Hearing dates: 24 November 2011
Decision date: 22 December 2011
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Defendants' notice of motion dismissed.
(2) The report of Dr Briggs, the referee, dated 4 October 2011 is adopted.
(3) Judgment for the plaintiffs for $48,622.00.
(4) Defendants pay plaintiffs' costs.
(5) Liberty to apply on 7 days' notice.
(6) Exhibits retained for 28 days.
(7) A copy of this judgment is to be forwarded to Dr Briggs by the Registrar of the District Court of New South Wales at the address provided by Dr Briggs to the court.

Catchwords: CONTRACT - claim by builder for delay costs referred by court to a referee pursuant to UCPR Pt 20 r 20.14 - principles for adoption or rejection of a referee's report
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Home Building Act 1989 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 20.14, 20.24
Cases Cited: Atlantic Civil Pty Ltd v Water Administration Ministerial Corporation (1992) 39 NSWLR 468
Chloride Batteries Australia Ltd v Glendale Chemical Products Pty Ltd (1988) 17 NSWLR 60
Hawker Noyes Pty Ltd v New South Wales Egg Corporation (Supreme Court of New South Wales, Brownie J, 11 November 1988)
Ryde City Council v Tourtouras [2007] NSWCA 218
Taylor Woodrow International Ltd v Minister of Health (1978) 19 SASR 1
The Owners Strata Plan 70579 v Midwest Constructions Pty Ltd [2011] NSWSC 429
Walton Construction Pty Ltd v Illawarra Hotel Co Pty Ltd [2011] NSWSC 534
Texts Cited: Dorter and Sharkey, Building and Construction Contracts in Australia (2nd ed)
Category: Interlocutory applications
Parties: First Plaintiff: Anthony Joseph Gleeson
Second Plaintiff: Ana Maria Gleeson
First Defendant: Bill Boden
Second Defendant: Margaret Boden
Representation: Plaintiffs: Mr T Davie
Defendants: Mr G Sirtes SC / Mr Hand
Plaintiffs: Schrader Legal
Defendants: Hazan Hollander Solicitors

File Number(s): 2009/336899
Publication restriction: None

Judgment

Introduction

The plaintiffs (the Builders) by notice of motion filed on 26 October 2011 seek the following orders:

"1. The Referee's Reports, dated 29 April 2011 and 4 October 2011, be adopted pursuant to Uniform Civil Procedure Rule 20.24(1)(a).

2. The First and Second Defendants pay the First and Second Plaintiffs' costs.

3. Such further order as the Court thinks fit."

The report of the Referee, Dr Phillip J Briggs dated 4 October 2011, made a finding of $48,622 in favour of the Builders. The Referee's report is the second report of Dr Phillip Briggs. Orders were made on 1 November 2010 by Gibb DCJ referring the Builders' claims to Dr Phillip Briggs for enquiry and report pursuant to UCPR Part 20 r 20.14. Dr Briggs' first report was provided on 29 April 2011. That report contained a determination of a reasonable addition to the contract sum under clause 10.9 of the building contract entered into by the plaintiffs and defendants. On 24 June 2011, Sorby DCJ remitted the report in part back to Dr Briggs. It…

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: [2011] NSWDC 214
Decision Date: 22 December 2011

CaseChat Overview and Summary

In the case of Gleeson v Boden, the plaintiff sought a determination regarding delay costs from the defendant, a builder, in relation to a construction project. The dispute was heard in the District Court of New South Wales. The matter reached a point where the court referred the issue of delay costs to a referee under rule 20.14 of the Uniform Civil Procedure Rules 2005 (NSW). The key issue for the court was to decide whether to adopt or reject the referee's report and the principles to be applied in doing so.

The court considered the principles that guide the adoption or rejection of a referee's report, emphasising the need for the referee to have a comprehensive understanding of the issues, to be impartial, and to provide a detailed analysis of the facts and law. The referee, Dr Briggs, was found to have met these criteria. The court further examined the reasoning of Dr Briggs and concluded that his analysis was thorough and his conclusions well-founded. The court decided to adopt the referee's report and awarded the plaintiffs a judgment for $48,622.00, along with an order for the defendants to pay the plaintiffs' costs.

The court dismissed the defendants' notice of motion, adopting the referee's report in its entirety. The court also ordered that a copy of the judgment be forwarded to Dr Briggs by the Registrar. The final orders included the dismissal of the defendants' motion, the adoption of the referee's report, the award of damages to the plaintiffs, and an order for costs. The exhibits were to be retained for 28 days, and the parties were granted liberty to apply on seven days' notice.

Orders

Orders of the court

(1) Defendants' notice of motion dismissed.

(2) The report of Dr Briggs, the referee, dated 4 October 2011 is adopted.

(3) Judgment for the plaintiffs for $48,622.00.

(4) Defendants pay plaintiffs' costs.

(5) Liberty to apply on 7 days' notice.

(6) Exhibits retained for 28 days.

(7) A copy of this judgment is to be forwarded to Dr Briggs by the Registrar of the District Court of New South Wales at the address provided by Dr Briggs to the court.

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.

Medium Neutral Citation:	Gleeson v Boden [2011] NSWDC 214
Hearing dates:	24 November 2011
Decision date:	22 December 2011
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Defendants' notice of motion dismissed. (2) The report of Dr Briggs, the referee, dated 4 October 2011 is adopted. (3) Judgment for the plaintiffs for $48,622.00. (4) Defendants pay plaintiffs' costs. (5) Liberty to apply on 7 days' notice. (6) Exhibits retained for 28 days. (7) A copy of this judgment is to be forwarded to Dr Briggs by the Registrar of the District Court of New South Wales at the address provided by Dr Briggs to the court.
Catchwords:	CONTRACT - claim by builder for delay costs referred by court to a referee pursuant to UCPR Pt 20 r 20.14 - principles for adoption or rejection of a referee's report
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Home Building Act 1989 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 20.14, 20.24
Cases Cited:	Atlantic Civil Pty Ltd v Water Administration Ministerial Corporation (1992) 39 NSWLR 468 Chloride Batteries Australia Ltd v Glendale Chemical Products Pty Ltd (1988) 17 NSWLR 60 Hawker Noyes Pty Ltd v New South Wales Egg Corporation (Supreme Court of New South Wales, Brownie J, 11 November 1988) Ryde City Council v Tourtouras [2007] NSWCA 218 Taylor Woodrow International Ltd v Minister of Health (1978) 19 SASR 1 The Owners Strata Plan 70579 v Midwest Constructions Pty Ltd [2011] NSWSC 429 Walton Construction Pty Ltd v Illawarra Hotel Co Pty Ltd [2011] NSWSC 534
Texts Cited:	Dorter and Sharkey, Building and Construction Contracts in Australia (2nd ed)
Category:	Interlocutory applications
Parties:	First Plaintiff: Anthony Joseph Gleeson Second Plaintiff: Ana Maria Gleeson First Defendant: Bill Boden Second Defendant: Margaret Boden
Representation:	Plaintiffs: Mr T Davie Defendants: Mr G Sirtes SC / Mr Hand Plaintiffs: Schrader Legal Defendants: Hazan Hollander Solicitors
File Number(s):	2009/336899
Publication restriction:	None