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Harris v Morabito Holdings

Harris v Morabito Holdings

Case [2018] NSWSC 912 19 June 2018

Contract Interpretation

Adverse Possession

Specific Performance

Building & Construction Law

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Supreme Court

New South Wales

Medium Neutral Citation: Harris v Morabito Holdings [2018] NSWSC 912
Hearing dates: 30/05/2018
Date of orders: 19 June 2018
Decision date: 19 June 2018
Jurisdiction: Equity - Technology and Construction List
Before: McDougall J
Decision:
See at [155] – [158].

Catchwords:
BUILDING AND CONSTRUCTION – adoption of referee’s report – discretion to adopt to be exercised judicially and with regard to the purpose for which discretion to refer is given – where report is factually thorough and reaches conclusions open on the evidence – where most errors complained of involve an attempt to reargue on the merits – exception regarding conclusions on delay and variations where there was a denial of natural justice – referee’s report adopted in whole with the exception of conclusions regarding delay and variations.
CONTRACT – interpretation of building contract –distinction between the interpretation of the terms of a contract and standard or extent of performance required to satisfy those terms.
Legislation Cited: Civil Procedure Act 2005 (NSW)
Home Building Act 1989 (NSW)
Supreme Court Rules 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2008] NSWCA 228
Bellgrove v Eldridge (1954) 90 CLR 613
Chocolate Factory Apartments Pty Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784
Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd (2013) 84 NSWLR 410
Jazabas Pty Ltd v Haddad (2007) 65 ACSR 276
Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited (2015) 256 CLR 104
Norbis v Norbis (1986) 161 CLR 513
Plant Construction PLC v Clive Adams & Associates [2000] BLR 137
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272
Wenco Industrial Pty Ltd v WW Industries Pty Ltd (2009) 25 VR 119
Category: Principal judgment
Parties: Anne Harris as executor of the estate of the late Arthur Harris (First Plaintiff)
Anne Harris (Second Plaintiff)
Morabito Holdings Pty Ltd t/as Marc Morabito Constructions (Defendant)
Representation:
Counsel:
P J Bambagiotti (Plaintiffs)
L Shipway (Defendant)
Solicitors:
Kreisson Legal Pty Limited (Plaintiffs)
HWL Ebsworth Lawyers (Defendant)

File Number(s): 2016/160508

Judgment

HIS HONOUR: On about 7 February 2012, the defendant (the builder) contracted to perform residential building work for the plaintiffs [1] (the owners). The builder achieved practical completion on about 13 September 2013. The defects liability period under the contract expired 12 months later.
1. Strictly speaking, the contract was made between the builder on the one hand and Mr Arthur and Mrs Anne Harris on the other. Mr Harris has died since the commencement of these proceedings. The proceedings have carried on in the name of Mrs Harris in her own capacity and in her capacity as executor of the estate of her late husband. Nothing turns on this, and I shall use the expression “the owners” to denote Mr and Mrs Harris…

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.

Continue reading Harris v Morabito Holdings

Details

AGLC: Harris v Morabito Holdings [2018] NSWSC 912
Case: [2018] NSWSC 912
Decision Date: 19 June 2018

CaseChat Overview and Summary

In the matter of Harris v Morabito Holdings, the dispute arose from the construction of a building under a contract. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was the adoption of a referee’s report in relation to the construction dispute, as well as the interpretation of specific terms within the building contract.

The court was required to determine whether the referee’s report should be adopted in its entirety or if certain conclusions needed to be disregarded. The referee's report was comprehensive and reached conclusions that were open on the evidence presented. The court considered that most of the objections to the report involved an attempt to reargue the merits of the case rather than pointing to factual inaccuracies or legal missteps. However, the court found that there was a denial of natural justice in the referee's conclusions regarding delay and variations. This exception warranted that these specific conclusions should not be adopted.

The Supreme Court concluded that the referee’s report should be adopted in its entirety, except for the conclusions pertaining to delay and variations. The court exercised its discretion judicially, taking into account the purpose for which the discretion to refer was granted. In interpreting the building contract, the court distinguished between the interpretation of the terms of the contract and the standard or extent of performance required to satisfy those terms. The final orders of the court adopted the referee’s report with the noted exceptions and provided clarity on the interpretation of the contract terms in question.

Orders