Banabelle Electrical v State of New South Wales & Ors [No 4] [2006] NSWSC 861

Banabelle Electrical v State of New South Wales & Ors [No 4] [2006] NSWSC 861

The further remitter was terminated because Banabelle's proposed quantification of damages for breach of GC1.27.1 after 10 January 2000 changed the basis on which that claim had been put before the referee, relied on a global approach that did not disentangle losses caused by breach of GC1.27.1 from losses caused by other matters, and sought to apply the State expert's methodology to a period on which he had not been examined or cross-examined. It would be unjust to the State to allow the further inquiry to proceed on that basis while confined to the evidence taken in the first reference.

Jurisdiction
Australia
Judgment Date
15 August 2006
Procedural Posture
Equity Division Technology & Construction List Proceeding Concerning a Construction Contract Dispute and Referee's Report / Further Judgment on Objections to the Conduct of a Further Remitter to a Referee
Outcome
Further remitter to the referee terminated; parties directed to file and serve draft orders and submissions, with a further hearing fixed.
Legal Topics
['further Remitter to Referee' 'global Claim' 'quantification of Damages' 'breach of Clause Gc1.27.1' 'site Possession and Access' 'procedural Fairness']
['practice and Procedure' 'construction Law' 'contract Law'] ['further Remitter to Referee' 'global Claim' 'quantification of Damages' 'breach of Clause Gc1.27.1' 'site Possession and Access' 'procedural Fairness']

Case Brief

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Procedural Posture

Equity Division Technology & Construction List Proceeding Concerning a Construction Contract Dispute and Referee's Report / Further Judgment on Objections to the Conduct of a Further Remitter to a Referee

Legal Issues

  1. 1 ['Whether the further remitter to the referee should be terminated because Banabelle sought to change its approach to quantification of damages for breach of GC1.27.1 after 10 January 2000.' "Whether Banabelle's proposed approach amounted to a new and impermissible global claim that failed to separate loss caused by breach of GC1.27.1 from loss caused by other matters." "Whether it would be unfair to the State to permit Banabelle to rely on the State's expert's methodology for a later period when that expert had not been examined or cross-examined on that use." "Whether Banabelle's proposed use of site diaries and programme comparisons was outside the scope of the further remitter or introduced new programming evidence."]

Ratio Decidendi

The further remitter was terminated because Banabelle's proposed quantification of damages for breach of GC1.27.1 after 10 January 2000 changed the basis on which that claim had been put before the referee, relied on a global approach that did not disentangle losses caused by breach of GC1.27.1 from losses caused by other matters, and sought to apply the State expert's methodology to a period on which he had not been examined or cross-examined. It would be unjust to the State to allow the further inquiry to proceed on that basis while confined to the evidence taken in the first reference.

Court Disposition

Further remitter to the referee terminated; parties directed to file and serve draft orders and submissions, with a further hearing fixed.

Orders

  • ['The remitter pursuant to the orders of 9 December 2005 as varied on 2 February and 11 May 2006 is terminated.' "Each party is directed to deliver to the judge's associate and serve on the other party by 5 p.m. on Friday 1 September 2006 a draft minute of all orders sought to give effect to the judgments and bring...