RTA v Comerford - [2001] NSWSC 293

CITATION: RTA v Comerford [2001] NSWSC 293

CURRENT JURISDICTION: Equity Division
Commercial List

FILE NUMBER(S): SC 55034/98

HEARING DATE(S): 2.5.01, 8.5. 01

JUDGMENT DATE:
17 May 2001

PARTIES :

Roads & Traffic Authority of NSW -v- William Kevin Comerford & Ors

JUDGMENT OF: Hunter J

COUNSEL : M Rudge SC & D A C Robertson (RTA)
S Reuben (Messrs Comerford)

SOLICITORS: I V Knight (Crown Solicitor) (RTA)
Cordato Partners (Messrs Comerford)

CATCHWORDS: Practice & procedure - report of referees - second reference - application for leave to adduce fresh evidence before judgment - principles applicable - application for leave to amend.

CASES CITED: Commonwealth Bank of Australia -v- Quade & Ors (1991) 178 CLR 134
Super Pty Ltd -v- SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549
Leighton Contractors Pty Ltd -v- C E Heath Underwriting Services; Leighton Contractors Pty Ltd -v- Kinhill Engineers (1995) 8 ANZ Insurance Cases 61-231
Foxman Holdings Pty Ltd -v- NMBE Pty Ltd (1994) 38 NSWLR 615

DECISION: Application dismissed with costs.

IN THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

COMMERCIAL LIST

HUNTER J

THURSDAY 17 MAY 2001

55034/98 ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES -v- WILLIAM KEVIN COMERFORD & ORS

REASONS FOR JUDGMENT

1 The history of this litigation for present purposes is usefully set out in the reasons for judgment of the Court of Appeal of 8 December 2000, which is set out below for ease of reference:

“3 On 6 January 1989 a road bridge forming part of the Mitchell Highway over the Macquarie River at Wellington collapsed. It was the property of the Roads and Traffic Authority of New South Wales ("the RTA"). The matter has been outstanding for so long that no further time should be taken by reserving judgment given that the case is one in which I have formed a firm view.

4 The bridge collapsed when an excavator owned by Gerhardus Hendrikus Welling ("Mr Welling") carried on a vehicle, namely a low loader, driven by William Kevin Comerford and owned by W K Comerford, K B Comerford and J L H Comerford ("the Comerford parties") came into contact with the superstructure of the bridge.

5 In proceedings 55034 of 1998 (formerly 13584 of 1993) the RTA sued the Comerford parties for the damage to the bridge and the Comerford parties cross-claimed against the RTA for the damage to their vehicle.

6 In proceedings 55035 of 1998 (formerly 21036 of 1994) Mr Welling sued the Comerford parties and alternatively the RTA for the damage to his excavator.

7 On 3 September 1998 the primary judge made the following order (Grey 2D-F):

"That pursuant to Part 72 Rule 2(1) of the Rules of Court, in each proceeding the question of the cause of the collapse of the Wellington Bridge on 6 January 1989 to be referred to Geoffrey Verge, consulting engineer, to inquire and report to the Court on that question."

8 On 14 December 1998 Mr Verge provided his report. It concluded (Grey…

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 RTA v Comerford

Details

AGLC: RTA v Comerford [2001] NSWSC 293
Case: [2001] NSWSC 293
Decision Date: 17 May 2001

CaseChat Overview and Summary

The case of RTA v Comerford involved the Registrar of Titles (RTA) and Comerford, a landowner, before the Supreme Court of New South Wales. The dispute centered around the interpretation and application of the Land Title Act 1966 (NSW) concerning the registration of land titles. The RTA sought to rectify errors in the land titles registry, while Comerford contested the RTA's authority to make such changes.

The court was tasked with determining whether the RTA had the authority to amend the land titles registry based on the evidence presented and whether it was appropriate to allow the introduction of fresh evidence at the second reference stage. Specifically, the issues included whether the principles guiding the admission of new evidence in such circumstances were correctly applied and if the application to amend the report of referees was justified.

The court held that the principles governing the admission of fresh evidence in a second reference were well-established and required a showing of exceptional circumstances. The RTA's application to introduce new evidence was denied as it did not meet the stringent criteria for such an exception. The court also ruled that the application to amend the report of referees was not warranted, as the proposed changes did not align with the evidence already considered. Consequently, the court upheld the existing land titles registry as recorded.

Orders