Morrison v Moss (No. 2) [2020] NSWDC 29

Morrison v Moss (No. 2) [2020] NSWDC 29

The Court refused to re-open or vary the provisional finding on the Builders' debt because the alleged error was not an accidental slip or arithmetical mistake and the Owner's developed argument was a substantive re-agitation of a point not fully advanced at trial. The Court also refused to restrict the information available to the referee because such fetters could create practical disputes, delay the reference, and were unnecessary given the referee's duty to afford procedural fairness and the Court's later oversight on adoption of the report.

Jurisdiction
Australia
Judgment Date
21 February 2020
Procedural Posture
Civil Building Dispute / Application by the Owner to Re Open or Vary a Provisional Finding on the Builders' Debt and to Limit Materials Available to a Referee; Orders for Referral After Reasons for Judgment and Before Entry of Orders
Outcome
The Owner's application was refused; referral orders were made for quantification of rectification costs.
Legal Topics
['re Opening Judgment' 'slip Rule' 'reference to Referee' 'defective or Incomplete Building Works' 'set Off' 'rectification Costs']
['civil Procedure' 'building and Construction'] ['re Opening Judgment' 'slip Rule' 'reference to Referee' 'defective or Incomplete Building Works' 'set Off' 'rectification Costs']

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Procedural Posture

Civil Building Dispute / Application by the Owner to Re Open or Vary a Provisional Finding on the Builders' Debt and to Limit Materials Available to a Referee; Orders for Referral After Reasons for Judgment and Before Entry of Orders

Legal Issues

  1. 1 ['Whether the Court should re-open the earlier reasons or vary the provisional finding that the Builders were entitled to $52,470.56, subject to set-off, by reducing it to $28,770.56.' "Whether the slip rule applied to correct the provisional finding on the Builders' debt." "Whether the referee's materials should be limited to evidence on quantum served by the parties before the hearing." 'What referral orders should be made for quantification of rectification costs.']

Ratio Decidendi

The Court refused to re-open or vary the provisional finding on the Builders' debt because the alleged error was not an accidental slip or arithmetical mistake and the Owner's developed argument was a substantive re-agitation of a point not fully advanced at trial. The Court also refused to restrict the information available to the referee because such fetters could create practical disputes, delay the reference, and were unnecessary given the referee's duty to afford procedural fairness and the Court's later oversight on adoption of the report.

Court Disposition

The Owner's application was refused; referral orders were made for quantification of rectification costs.

Orders

  • ["The Owner's application, contained in his solicitor's letter of 6 February 2020, is refused." 'David Madden of MBMpl Pty Ltd be appointed as referee.' 'Pursuant to rule 20.14 of the Uniform Civil Procedure Rules the quantification of costs of each of the defective works, using the reasonable and necessary scope of...