Tranquility Pools & Spas Pty Ltd v Huntsman Chemical Company Australia Pty Ltd [2008] NSWSC 58

Tranquility Pools & Spas Pty Ltd v Huntsman Chemical Company Australia Pty Ltd [2008] NSWSC 58

The Report was adopted because none of the defendant's objections justified rejection. The Referee had answered the referred questions on the balance of probabilities, had sufficiently considered the mechanism and causation material available to him, had not been required to decide ultimate legal issues such as merchantable quality or fitness for purpose, and the process afforded adequate opportunity to put and test material. The contention based on absence of complaints from other manufacturers did not justify rejection because the defendant had not provided the information needed to investigate the circumstances of those manufacturers' use of Hetron 922. The Report had sufficient...

Jurisdiction
Australia
Judgment Date
20 February 2008
Procedural Posture
Equity Division Commercial List Proceedings; Practice and Procedure Reference and Report / Interlocutory Motions Concerning Adoption of a Referee's Report Under UCPR 20 Div. 3
Outcome
The plaintiffs' motion to adopt the Report in whole was granted; the defendant's Notice of Motion was dismissed.
Legal Topics
['reference and Report' "adoption of Referee's Report" 'ucpr 20 Div. 3' 'causation of Pool Failures' 'merchantable Quality' 'fitness for Purpose' 's.52 of the Trade Practices Act']
['civil Procedure' 'equity' 'commercial Law' 'trade Practices' 'product Liability'] ['reference and Report' "adoption of Referee's Report" 'ucpr 20 Div. 3' 'causation of Pool Failures' 'merchantable Quality' 'fitness for Purpose' 's.52 of the Trade Practices Act']

Case Brief

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Procedural Posture

Equity Division Commercial List Proceedings; Practice and Procedure Reference and Report / Interlocutory Motions Concerning Adoption of a Referee's Report Under UCPR 20 Div. 3

Legal Issues

  1. 1 ['Whether the Report of Professor Robert Burford dated 20 September 2007 should be adopted in whole under UCPR 20.24.' 'Whether the Referee in substance answered the questions referred about the cause of the Pool Failures and the role of Hetron 922.' 'Whether the Referee provided adequate reasons and a sufficiently analytical approach for attributing the Pool Failures to Hetron 922 containing hydrophilic thixotrope.' 'Whether the Reference process was unfair or denied natural justice, including in relation to evidence about other manufacturers who received Hetron 922 and made no substantial complaints.' 'Whether the Report had sufficient utility despite not determining ultimate issues such as merchantable quality or fitness for purpose.']

Ratio Decidendi

The Report was adopted because none of the defendant's objections justified rejection. The Referee had answered the referred questions on the balance of probabilities, had sufficiently considered the mechanism and causation material available to him, had not been required to decide ultimate legal issues such as merchantable quality or fitness for purpose, and the process afforded adequate opportunity to put and test material. The contention based on absence of complaints from other manufacturers did not justify rejection because the defendant had not provided the information needed to investigate the circumstances of those manufacturers' use of Hetron 922. The Report had sufficient...

Court Disposition

The plaintiffs' motion to adopt the Report in whole was granted; the defendant's Notice of Motion was dismissed.

Orders

  • ["Upon the plaintiffs' Notice of Motion of 27 September 2007 claim 1, order pursuant to UCPR 20.24 that the Report of Professor Robert Burford of 20 September 2007 be adopted in whole." 'Direct that the plaintiffs approach the Registrar in Equity for an appointment for hearing the remaining claims in the Notice of...