Tryhaz Pty ltd v Fielders Engineers Pty Ltd - [2005] NSWSC 906

CITATION:
Tryhaz v FielderFielder v Tryhaz [2005] NSWSC 906

HEARING DATE(S): 22/08/2005

JUDGMENT DATE :

9 September 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Associate Justice Macready at 1

CATCHWORDS:
Building and Construction. Acceptance of report of a Referee under Part 72 of the Supreme Court Rules. Whether point should have been taken before Referee. Whether any error disclosed. Report adopted.

PARTIES:
Tryhaz Pty Limited v Fielder Engineers Pty Ltd
Fielder Engineers Pty Limited v Tryhaz Pty Limited and anor

FILE NUMBER(S):
SC 55012 of 2003; 55016 of 2003

COUNSEL:
F. Corsaro SC & S.E. Torrington for Fielders
J. Anderson for Tryhaz
R.J.H. Darke SC & G.K.J. Rich for Multiplex

SOLICITORS:
Deacons for Fielders
Gibson Howlin for Tryhaz
Sparke Helmore for Multiplex Limited

LOWER COURT JURISDICTION:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY AND CONSTRUCTION LIST

Associate Justice Macready

Friday 9 September 2005

Robert Steele

JUDGMENT

1 His Honour: This case concerns the adoption of a referee’s report which dealt with a dispute concerning the construction of the wash barrier element of the marine and infrastructure works undertaken as part of the redevelopment of wharves 9 and 10, 7-11 Sussex Street, Sydney (King Street Wharf works). The scope of the marine works undertaken in the development included provision for STA ferry and commercial vessel berths and a boardwalk along the entire wharf face of berths 9 and 10. The wash wall extends some distance from the quay face and was intended to prevent any disturbance of the berths from the wave wash generated by port activities, and in particular by tug vessels.

2 The Referee, Mr P.R. Callaghan SC made his report to the Court on 4 July 2005. The parties are at issue on three matters arising out of his report, namely, interest, the finding that GST was payable on the damages awarded and whether or not the damages should include costs relating to painting rather than costs associated with cathodic protection of the structure.

Background facts and history of the proceedings

3 These are not in issue and I will adopt with some modification the non-contentious matters set out in the helpful submissions of the parties.

4 Multiplex Constructions Pty Ltd (“Multiplex”) was the design and construct contractor engaged for the marine works, including the wash barrier. Multiplex subcontracted the detailed design and construction of the marine section of the King Street Wharf works, which included the wash barrier, to the First Defendant/Cross Claimant, Tryhaz Pty Ltd (“Tryhaz”).

5 The sub-contract included specifications that required the design and construction of the wash barrier to certain performance requirements, including the requirement for the wash wall to withstand an ultimate wash force of 80 tonne wash force, assumed as originating 15 metres from the barrier and dispersing at a 10º angle.

6 Tryhaz engaged the plaintiff, Fielder Engineers Pty Ltd (“Fielder”), to provide engineering and project management services in connection with the marine works, including the wash barrier design. The wash barrier deteriorated…

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.

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Details

Case: [2005] NSWSC 906
Decision Date: 9 September 2005

CaseChat Overview and Summary

The case between Tryhaz Pty Ltd and Fielders Engineers Pty Ltd came before the court regarding a dispute within the building and construction industry. The primary issue revolved around the acceptance of a report from a referee under Part 72 of the Supreme Court Rules. Specifically, the court needed to determine whether any point should have been raised before the referee and whether any error was disclosed in the report. The defendants, Fielders Engineers Pty Ltd, contested the report's acceptance, arguing procedural and substantive errors.

The court examined whether the plaintiffs had failed to raise certain points before the referee as required, and if these points could be raised post-referee report. The defendants argued that procedural errors were evident, suggesting that the plaintiffs had not adhered to the necessary pre-referee processes. The court considered whether these procedural errors were substantial enough to invalidate the referee's report. Additionally, the court assessed whether the substantive content of the report contained any material errors that would affect its adoption.

In its decision, the court found that the plaintiffs had not breached any procedural requirements by failing to raise certain points before the referee. The court held that the points raised post-referee report did not disclose any material errors that would undermine the referee's findings. Consequently, the report was deemed to be accurate and reliable, and the court adopted the referee's report in its entirety. The defendants' challenge to the report's acceptance was dismissed.

The court ordered that the referee's report be adopted, and any costs associated with the proceedings were to be borne by the defendants. The plaintiffs were awarded costs on an indemnity basis, reflecting the unsuccessful nature of the defendants' challenge.

Orders