Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd

The parties to this matter were Illawarra Hotel Company Pty Ltd (appellant) and Walton Construction Pty Ltd (respondent). The dispute concerned extensions of time under a contract, with technical questions referred to a referee whose report was substantially adopted by a first trial judge. Subsequent legal questions were determined by a second trial judge. The appeal concerned a notice of motion to dismiss the appeal as incompetent.

The primary legal issue before the court was whether the decision of the first trial judge was a final or interlocutory decision. A secondary issue was whether the appellant was estopped from appealing based on its prior conduct.

The court held that the test for determining whether a judgment is final or interlocutory is whether it finally determines the rights of the parties. Applying this test, the court found that the first trial judge's decision did not finally determine the rights of the parties, and therefore it was an interlocutory decision. The court also found that the appellant's conduct did not mislead the respondent or the second trial judge into believing there would be no appeal, and thus there was no estoppel.

The notice of motion seeking to dismiss the appeal as incompetent was dismissed with costs. A second, defensive notice of motion was also dismissed as otiose, with its costs to be considered as part of the costs of the first motion.