Morrison v Moss (No. 3) - [2020] NSWDC 136

District Court

New South Wales

Medium Neutral Citation: Morrison v Moss (No. 3) [2020] NSWDC 136
Hearing dates: 23 April 2020
Date of orders: 23 April 2020
Decision date: 23 April 2020
Jurisdiction: Civil
Before: Abadee DCJ
Decision:
See paragraphs 45-48

Catchwords: BUILDING AND CONSTRUCTION – referral of question of rectification costs for defective works to referee – whether referee’s approach should be wholly or partly adopted – whether a conclusion by referee contrary to evidence
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2008] NSWCA 228
BestCare Foods v Origin Energy [2012] NSWSC 574
Chocolate Factory Apartments Pty Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784
Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 310 ALR 113
Morrison v Moss & Anor [2019] NSWDC 746
Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549
Texts Cited: Rawlinsons Australian Construction Handbook, 38th edition (2020)
Category: Principal judgment
Parties: Mr J Morrison (Plaintiff)
Mr A Moss (Defendant)
Ms E Moss (Defendant)
Representation:
Counsel:
Mr T Bland for the Plaintiff
Defendants appeared in person
Solicitors:
Osborn Law for the Plaintiff

File Number(s): 2018/121395
Publication restriction: Nil

Judgment

BACKGROUND

This proceeding concerns construction work at a dwelling at Murrays Beach, near Lake Macquarie. On 12 December 2019, I delivered reasons for judgment[1] . A summary of the findings appeared at [463] of the Earlier Reasons. I do not propose to repeat them here. The gist of the findings was to the effect that the defendants (the ‘Builders’) were entitled to receive payment for the sum of $56,470.56 (incl. GST) plus interest at the contractual rate. This entitlement was, however, subject to the entitlement of the plaintiff (the ‘Owner’) to recover damages for defective works in various respects set out in the Earlier Reasons. Specifically, (at [311]-[408]) I made detailed findings as to each of the contested items and whether they amounted to defects and, if they did, indicated my view as to the appropriate scope of rectification works.
1. Morrison v Moss & Anor [2019] NSWDC 746 (hereafter ‘the Earlier Reasons’).
I directed that the quantum of the rectification costs for the defective works be referred to a referee. On 21 February 2020, I appointed Mr David Madden, of the firm MBMpl Pty Ltd, as that referee. On that occasion, Mr Madden was one of two nominees proposed as referee by the Owner, without objection from the Builders.
The terms of reference for that referral were set out in a Schedule appended to the Earlier Reasons (at [466]) which the referee reproduced at Annexure B of his report.

PROCEDURAL DIRECTIONS

On 27 March 2020, Mr Madden sent to the Court his report (the ‘Madden Report’). Copies of the report were hereafter supplied to the parties’ solicitors on 3 April 2020 by email from my Associate (at about 2:46pm).
On 6 April 2020, in a directions hearing before me (in the ‘Virtual Courtroom’, in respect to which…

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 Morrison v Moss (No. 3)

Details

AGLC: Morrison v Moss (No. 3) [2020] NSWDC 136
Case: [2020] NSWDC 136
Decision Date: 23 April 2020

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Morrison v Moss (No. 3) involved parties who had a dispute relating to rectification costs associated with defective construction works. The plaintiff, Morrison, sought a review of the referee's decision concerning the costs incurred from rectifying issues in the construction of a building, which the defendant, Moss, had been involved in. The central issue before the court was whether the referee's approach to determining these rectification costs should be wholly or partly adopted, and whether the referee's conclusions were consistent with the evidence presented.

The court had to consider the methodology employed by the referee in assessing the rectification costs, particularly whether the referee's approach was consistent with established legal principles and the evidence provided. The court also had to determine if the referee had erred in reaching conclusions that were contrary to the evidence. Given that the referee had made findings that were not supported by the evidence, the court needed to decide the extent to which these findings should influence the final determination of the costs.

After careful consideration, the court found that the referee's approach to the rectification costs needed to be revised. The court held that the referee's conclusions were not supported by the evidence and thus, the referee's findings should not be adopted. The court provided detailed reasoning on how the costs should be assessed, ensuring that the new approach was both legally sound and evidence-based. The final orders, as outlined in paragraphs 45-48, mandated the recalculation of the rectification costs according to the court's guidelines, ensuring a fair and just resolution to the dispute.

Orders

Orders of the court

See paragraphs 45-48

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:	Morrison v Moss (No. 3) [2020] NSWDC 136
Hearing dates:	23 April 2020
Date of orders:	23 April 2020
Decision date:	23 April 2020
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraphs 45-48
Catchwords:	BUILDING AND CONSTRUCTION – referral of question of rectification costs for defective works to referee – whether referee’s approach should be wholly or partly adopted – whether a conclusion by referee contrary to evidence
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2008] NSWCA 228 BestCare Foods v Origin Energy [2012] NSWSC 574 Chocolate Factory Apartments Pty Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784 Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 310 ALR 113 Morrison v Moss & Anor [2019] NSWDC 746 Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549
Texts Cited:	Rawlinsons Australian Construction Handbook, 38th edition (2020)
Category:	Principal judgment
Parties:	Mr J Morrison (Plaintiff) Mr A Moss (Defendant) Ms E Moss (Defendant)
Representation:	Counsel: Mr T Bland for the Plaintiff Defendants appeared in person Solicitors: Osborn Law for the Plaintiff
File Number(s):	2018/121395
Publication restriction:	Nil