Gleeson v Boden [2011] NSWDC 214

Gleeson v Boden [2011] NSWDC 214

The referee did not misunderstand his role, reverse the onus of proof, impose arbitrary evidential requirements, make findings unsupported by evidence, or manufacture evidence. Sorby DCJ's remitter expressly required the referee, in the absence of invoices or receipts, to consider whether there was another basis for assessing the Builders' delay costs. The referee considered the parties' submissions, relied on permissible inferences including the supervising architect's knowledge of the site, and produced a thorough and analytical report. There was no error of principle, patent misapprehension of evidence, perversity or unfairness warranting rejection of the report. The report was...

Jurisdiction
Australia
Judgment Date
22 December 2011
Procedural Posture
Civil Contract Proceeding Concerning a Builder's Delay Costs Claim Referred to a Referee Under UCPR Pt 20 R 20.14 / Interlocutory Applications Concerning Adoption or Rejection of the Referee's Report Under UCPR R 20.24
Outcome
Defendants' notice of motion dismissed; referee's report adopted; judgment for the plaintiffs for $48,622.00 with costs.
Legal Topics
["builder's Delay Costs" 'reference to Referee' "adoption or Rejection of Referee's Report" 'procedural Fairness' 'home Building Contract']
['contract' 'building and Construction' 'civil Procedure'] ["builder's Delay Costs" 'reference to Referee' "adoption or Rejection of Referee's Report" 'procedural Fairness' 'home Building Contract']

Case Brief

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Procedural Posture

Civil Contract Proceeding Concerning a Builder's Delay Costs Claim Referred to a Referee Under UCPR Pt 20 R 20.14 / Interlocutory Applications Concerning Adoption or Rejection of the Referee's Report Under UCPR R 20.24

Legal Issues

  1. 1 ['Whether the revised report of Dr Briggs dated 4 October 2011 should be adopted, varied, rejected or remitted under UCPR r 20.24.' 'Whether the referee misunderstood his role in assessing delay costs under the building contract.' "Whether the referee's approach to assessing delay costs without invoices or receipts involved error of principle, reversal of onus, perversity, findings unsupported by evidence or manufactured evidence." "Whether adoption of the referee's report would cause injustice or unfairness to the Home Owners."]

Ratio Decidendi

The referee did not misunderstand his role, reverse the onus of proof, impose arbitrary evidential requirements, make findings unsupported by evidence, or manufacture evidence. Sorby DCJ's remitter expressly required the referee, in the absence of invoices or receipts, to consider whether there was another basis for assessing the Builders' delay costs. The referee considered the parties' submissions, relied on permissible inferences including the supervising architect's knowledge of the site, and produced a thorough and analytical report. There was no error of principle, patent misapprehension of evidence, perversity or unfairness warranting rejection of the report. The report was...

Court Disposition

Defendants' notice of motion dismissed; referee's report adopted; judgment for the plaintiffs for $48,622.00 with costs.

Orders

  • ["Defendants' notice of motion dismissed." 'The report of Dr Briggs, the referee, dated 4 October 2011 is adopted.' 'Judgment for the plaintiffs for $48,622.00.' "Defendants pay plaintiffs' costs." "Liberty to apply on 7 days' notice." 'Exhibits retained for 28 days.' 'A copy of this judgment is to be forwarded to...