White Constructions Pty Ltd v PBS Holdings Pty Ltd - [2020] NSWCA 277

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277
Hearing dates: 9-10 June 2020
Date of orders: 04 November 2020
Decision date: 04 November 2020
Before: Bell P at [1]; Leeming JA at [136]; White JA at [154]
Decision:
Appeal dismissed with costs.

Catchwords:
APPEAL – whether or not decision of primary judge based in part on demeanour findings – significance for standard of appellate review and intervention – where primary judge’s decision was supported by contemporaneous documents – no basis for appellate interference with primary judge’s findings of fact.
CONTRACT – contractual interpretation – whether warranties in a multi-party deed were made in favour of all parties to the deed or only one party.

Legislation Cited:
State Owned Corporations Act 1989 (NSW)
Supreme Court Act 1970 (NSW) s 75A
Sydney Water Act 1994 (NSW) ss 4, 12, 70, 73, 74, Div 9
Uniform Civil Procedure Rules 2005 (NSW) r 31.54

Cases Cited:
Boensch v Pascoe (2019) 94 ALJR 112; [2019] HCA 49
Fabre v Arenales (1992) 27 NSWLR 437
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Masterton Homes Pty Ltd v Palm Assets Pty Ltd (2009) 261 ALR 382; [2009] NSWCA 234
Olsen v Olsen (2019) 101 NSWLR 225; [2019] NSWCA 278
Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; [2016] HCA 22
Wollongong Coal Ltd v Gujarat NRE India Pty Ltd (2019) 100 NSWLR 432; [2019] NSWCA 135

Texts Cited:
H Bennett and Professor G Broe, “The civil standard of proof and the ‘test’ in Briginshaw: Is there a neurobiological basis to being ‘comfortably satisfied’?” (2012) 86 ALJ 258

Category: Principal judgment
Parties: White Constructions Pty Ltd (Appellant)
PBS Holdings Pty Ltd (First Respondent)
Illawarra Water & Sewer Design Pty Ltd (Second Respondent)
Representation:
Counsel:

M Dempsey SC, M Sheldon (Appellant)
G A Sirtes SC, C L W Street (Respondents)

Solicitors:
Jones Day (Appellant)
Colin Biggers & Paisley Lawyers (First Respondent)
Indemnity Legal Pty Ltd (Second Respondent)

File Number(s): 2019/308044
Publication restriction: N/A
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity – Technology and Construction List

Citation:

[2019] NSWSC 1166

Date of Decision:

6 September 2019

Before:

Hammerschlag J

File Number(s):

2017/285371

HEADNOTE

[This headnote is not to be read as part of the judgment]

This appeal related to a claim for damages allegedly suffered by the appellant, White Constructions Pty Ltd (White), in connection with the sewerage design for a development of a multi-lot subdivision in Kiama, NSW (the Development). One precondition for the registration of the subdivision by the Land Titles Office was the issue by Sydney Water Corporation (Sydney Water) of a s 73 certificate under the Sydney Water Act 1994

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: [2020] NSWCA 277
Decision Date: 04 November 2020

CaseChat Overview and Summary

White Constructions Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning a dispute with PBS Holdings Pty Ltd. The core of the dispute involved the interpretation of certain warranties contained within a multi-party deed.

The Court of Appeal was required to determine two primary legal issues. Firstly, it had to consider the significance of the primary judge's findings regarding the demeanour of witnesses for the standard of appellate review and the circumstances in which an appellate court might intervene. Secondly, the Court had to determine whether the warranties within the multi-party deed were intended to benefit all parties to the deed or only a single party.

In its reasoning, the Court of Appeal held that the primary judge's decision was well-supported by contemporaneous documents, which provided a strong evidentiary basis for the findings of fact. Consequently, the Court found no grounds for appellate interference with those findings, even if demeanour played a part in the primary judge's assessment. Regarding the contractual interpretation, the Court applied established principles of contractual construction to ascertain the intention of the parties as expressed in the deed.

The appeal was dismissed, and White Constructions Pty Ltd was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

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:	White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277
Hearing dates:	9-10 June 2020
Date of orders:	04 November 2020
Decision date:	04 November 2020
Before:	Bell P at [1]; Leeming JA at [136]; White JA at [154]
Decision:	Appeal dismissed with costs.
Catchwords:	APPEAL – whether or not decision of primary judge based in part on demeanour findings – significance for standard of appellate review and intervention – where primary judge’s decision was supported by contemporaneous documents – no basis for appellate interference with primary judge’s findings of fact. CONTRACT – contractual interpretation – whether warranties in a multi-party deed were made in favour of all parties to the deed or only one party.
Legislation Cited:	State Owned Corporations Act 1989 (NSW) Supreme Court Act 1970 (NSW) s 75A Sydney Water Act 1994 (NSW) ss 4, 12, 70, 73, 74, Div 9 Uniform Civil Procedure Rules 2005 (NSW) r 31.54
Cases Cited:	Boensch v Pascoe (2019) 94 ALJR 112; [2019] HCA 49 Fabre v Arenales (1992) 27 NSWLR 437 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Masterton Homes Pty Ltd v Palm Assets Pty Ltd (2009) 261 ALR 382; [2009] NSWCA 234 Olsen v Olsen (2019) 101 NSWLR 225; [2019] NSWCA 278 Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; [2016] HCA 22 Wollongong Coal Ltd v Gujarat NRE India Pty Ltd (2019) 100 NSWLR 432; [2019] NSWCA 135
Texts Cited:	H Bennett and Professor G Broe, “The civil standard of proof and the ‘test’ in Briginshaw: Is there a neurobiological basis to being ‘comfortably satisfied’?” (2012) 86 ALJ 258
Category:	Principal judgment
Parties:	White Constructions Pty Ltd (Appellant) PBS Holdings Pty Ltd (First Respondent) Illawarra Water & Sewer Design Pty Ltd (Second Respondent)
Representation:	Counsel: M Dempsey SC, M Sheldon (Appellant) G A Sirtes SC, C L W Street (Respondents) Solicitors: Jones Day (Appellant) Colin Biggers & Paisley Lawyers (First Respondent) Indemnity Legal Pty Ltd (Second Respondent)
File Number(s):	2019/308044
Publication restriction:	N/A
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity – Technology and Construction List Citation: [2019] NSWSC 1166 Date of Decision: 6 September 2019 Before: Hammerschlag J File Number(s): 2017/285371