Morrison v Moss (No. 2)

[2020] NSWDC 29

District Court

New South Wales

Medium Neutral Citation:	Morrison v Moss (No. 2) [2020] NSWDC 29
Hearing dates:	21 February 2020
Date of orders:	21 February 2020
Decision date:	21 February 2020
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraphs 42-46
Catchwords:	PRACTICE AND PROCEDURE – building dispute – finding in reasons for judgment in relation to debt owed to Builders by Home Owner subject to Home Owner’s defence of set-off - Home Owner’s defence of set-off comprises claim for cost of rectification works for defective or incomplete work by the Builders - application by Home Owner to re-open judgment to correct provisional finding on debt owed to Builders – whether discretion to re-open should be exercised – quantum of costs to rectify defective work to be the subject of referral – application to limit information available to referee to evidence served by parties prior to the hearing – appropriate orders to give effect to referral
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Uniform Civil Procedure Rules 2005 (NSW) rr 20.14, 20.20, 36.16 and 36.17
Cases Cited:	Autodesk Inc v Dyason (No.2) (1993) 176 CLR 300 Busways Blacktown Pty Ltd v Westbus Region 1 Pty Ltd (No.2) [2018] NSWSC 1901 Elliott v R (2007) 234 CLR 38 Mann v Paterson Constructions [2019] HCA 32 Morrison v Moss [2019] NSWDC 746 Nominal Defendant v Livaja [2011] NSWCA 121 Power v Deputy Commissioner of Taxation (No.2) [2014] NSWCA 77
Texts Cited:	Ritchie’s Uniform Civil Procedure New South Wales [36.17.5]
Category:	Procedural and other rulings
Parties:	Mr J Morrison (Plaintiff) Mr A Moss (Defendant) Ms E Moss (Defendant)
Representation:	Counsel: Mr T Bland for the Plaintiff No appearance for the Defendants   Solicitors: Osborn Law for the Plaintiff
File Number(s):	2018/121395
Publication restriction:	Nil

Judgment

INTRODUCTION

1. On 12 December 2019, I published my reasons in respect to the primary issues before the Court in this proceeding[1] . By the orders referred to in [464]-[464] of my earlier reasons, I indicated that the proceeding should be referred to a referee on the subject of costs of rectification works, whilst generally according liberty to the parties to apply. The essential findings in my earlier reasons were summarised at [463] of the judgment. This judgment assumes a general familiarity with those reasons.

   1. Morrison v Moss [2019] NSWDC 746 (‘my earlier reasons’).

2. Since publishing my reasons, and before any orders have been made to give effect to them, the plaintiff has raised two issues in correspondence. The first issue amounts to a complaint about the amount that the Builders should receive in respect to their debt claim. The Court had found that the Builders were entitled to receive the sum of $52,470.56 (including GST), with such amount subject to be set-off against the Owner’s claim, which I determined should be quantified by a referee. The second issue arises from a concern about the information which the referee should have regard to once a referral is made to him or her to quantify the Owner’s claim.