Bitar Pty Ltd v Hebbel Constructions Pty Ltd [2019] NSWCA 39

Bitar Pty Ltd v Hebbel Constructions Pty Ltd [2019] NSWCA 39

Leave to appeal was refused because Bitar did not show an issue of principle, public importance, sufficient doubt, or manifest injustice. The primary judge was entitled to refuse Bitar's late evidence having regard to unexplained delay, prejudice, the need for an adjournment, and case management principles. Bitar had opportunities to make submissions to the referee and to raise the asserted omissions earlier, but did not do so. No House v The King error or appealable error was identified in the adoption of the referee reports or in the refusal to reconsider factual findings made by the referee.

Jurisdiction
Australia
Judgment Date
05 March 2019
Procedural Posture
Application for Leave to Appeal From Interlocutory Decision Adopting Referee Reports / Court of Appeal Summons Seeking Leave to Appeal
Outcome
Summons seeking leave to appeal dismissed.
Legal Topics
['leave to Appeal' 'interlocutory Decision' 'adoption of Referee Reports' 'exclusion of Late Evidence' 'case Management Principles' 'partnership Winding Up']
['civil Procedure' 'appeals' 'evidence'] ['leave to Appeal' 'interlocutory Decision' 'adoption of Referee Reports' 'exclusion of Late Evidence' 'case Management Principles' 'partnership Winding Up']

Case Brief

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Procedural Posture

Application for Leave to Appeal From Interlocutory Decision Adopting Referee Reports / Court of Appeal Summons Seeking Leave to Appeal

Legal Issues

  1. 1 ['Whether leave should be granted to appeal from interlocutory orders adopting the second and third referee reports.' 'Whether the primary judge erred in refusing Bitar leave to rely on late material comprising the Katter affidavit and two Culhane affidavits.' 'Whether the primary judge should have considered afresh factual issues decided by the referee concerning rental income, Gavel & Page trust account payments, deposits, and loan account adjustments.' 'Whether any manifest injustice resulted from adoption of the referee reports without the adjustments sought by Bitar.']

Ratio Decidendi

Leave to appeal was refused because Bitar did not show an issue of principle, public importance, sufficient doubt, or manifest injustice. The primary judge was entitled to refuse Bitar's late evidence having regard to unexplained delay, prejudice, the need for an adjournment, and case management principles. Bitar had opportunities to make submissions to the referee and to raise the asserted omissions earlier, but did not do so. No House v The King error or appealable error was identified in the adoption of the referee reports or in the refusal to reconsider factual findings made by the referee.

Court Disposition

Summons seeking leave to appeal dismissed.

Orders

  • ['Summons seeking leave to appeal dismissed.' "Applicant pay the respondent's costs of the summons."]