Eko Investments Pty Limited v Austruc Constructions Limited & Ors; The Owners Strata Plan No. 64970 v Austruc Constructions Limited & Ors (No. 2) [2009] NSWSC 329

Eko Investments Pty Limited v Austruc Constructions Limited & Ors; The Owners Strata Plan No. 64970 v Austruc Constructions Limited & Ors (No. 2) [2009] NSWSC 329

Because the Referee had made findings of design negligence against CSA but omitted the basis for those findings from the report, and because relevant evidence was before the Referee but not the Court, the prudent course consistent with the overriding purpose of the Rules was to require the Referee to provide a further explanatory report. The contents claim was remitted so CSA could be heard on whether the Corporation could succeed irrespective of claims by individual lot owners, and the Referee was permitted to consider Austruc's fall back submission if appropriate or necessary.

Jurisdiction
Australia
Judgment Date
30 April 2009
Procedural Posture
Applications Under Part 20.24 of the Uniform Civil Procedure Rules 2005 Concerning a Referee's Report / Post Judgment Applications Following Judgment on Adoption of the Referee's Report
Outcome
Orders made requiring a further report from the Referee and remitting matters to the Referee.
Legal Topics
['referees and References' 'remitter to Referee' "explanation of Referee's Report" 'design Negligence' 'statutory Warranties' 'contents Claim' 'duty of Care']
['civil Procedure' 'building and Construction' 'negligence'] ['referees and References' 'remitter to Referee' "explanation of Referee's Report" 'design Negligence' 'statutory Warranties' 'contents Claim' 'duty of Care']

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Procedural Posture

Applications Under Part 20.24 of the Uniform Civil Procedure Rules 2005 Concerning a Referee's Report / Post Judgment Applications Following Judgment on Adoption of the Referee's Report

Legal Issues

  1. 1 ["Whether the Referee should be required to provide a further report explaining the basis for finding that CSA was negligent in designing the façade and responsible for 75% of the Owners Corporation's damages." 'Whether the contents claim should be remitted to the Referee so that CSA could be heard on whether the Corporation could succeed irrespective of claims by individual lot owners.' "Whether the Referee should consider Austruc's fall back submission about CSA's alleged duty of care to Austruc."]

Ratio Decidendi

Because the Referee had made findings of design negligence against CSA but omitted the basis for those findings from the report, and because relevant evidence was before the Referee but not the Court, the prudent course consistent with the overriding purpose of the Rules was to require the Referee to provide a further explanatory report. The contents claim was remitted so CSA could be heard on whether the Corporation could succeed irrespective of claims by individual lot owners, and the Referee was permitted to consider Austruc's fall back submission if appropriate or necessary.

Court Disposition

Orders made requiring a further report from the Referee and remitting matters to the Referee.

Orders

  • ['In light of the Judgment, the Referee is to provide a further Report explaining the basis upon which his conclusion was reached that CSA was negligent in the design of the façade of the Building giving rise to CSA being responsible for 75% of the damages suffered by the Owners Corporation.' 'The matter is remitted...