CPC Energy Pty Limited v Bellevarde Construction Pty Limited & Ors [2006] NSWSC 1120

CPC Energy Pty Limited v Bellevarde Construction Pty Limited & Ors [2006] NSWSC 1120

A separate question regime involving factual disputes or credit issues would be inappropriate because those issues would overlap with later issues, including issues potentially to be determined by a referee, and could inhibit the later assessment of witness credit. The plaintiff's proposed construction questions may proceed only if the parties agree that no questions of credit and no disputed facts will arise on the hearing of those questions.

Jurisdiction
Australia
Judgment Date
26 October 2006
Procedural Posture
Interlocutory Notice of Motion in Building Contract Proceedings / Defendants' Motion for Separate Determination of Questions and Proposed Reference Out Before Trial
Outcome
Parties to bring in short minutes of order. The plaintiff's separate questions will be allowed only if the parties agree that no questions of credit will arise and that no facts will be in issue at that hearing.
Legal Topics
['separate Questions' 'references Out' 'liquidated Damages' 'building Contract Construction' 'fraud Allegations' 'misleading or Deceptive Conduct' 'unconscionable Conduct']
['civil Procedure' 'construction Law' 'trade Practices'] ['separate Questions' 'references Out' 'liquidated Damages' 'building Contract Construction' 'fraud Allegations' 'misleading or Deceptive Conduct' 'unconscionable Conduct']

Case Brief

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Procedural Posture

Interlocutory Notice of Motion in Building Contract Proceedings / Defendants' Motion for Separate Determination of Questions and Proposed Reference Out Before Trial

Legal Issues

  1. 1 ['Whether questions concerning liquidated damages and construction of the building contract should be determined separately before other questions in the proceedings.' 'Whether factual issues and issues of credit made a separate question regime inappropriate.' 'Whether the remaining issues, including allegations of fraud, should be referred to a referee or determined by the Court.' "Whether the plaintiff's proposed separate questions could proceed if confined to construction of the written contract and involving no disputed facts or credit issues."]

Ratio Decidendi

A separate question regime involving factual disputes or credit issues would be inappropriate because those issues would overlap with later issues, including issues potentially to be determined by a referee, and could inhibit the later assessment of witness credit. The plaintiff's proposed construction questions may proceed only if the parties agree that no questions of credit and no disputed facts will arise on the hearing of those questions.

Court Disposition

Parties to bring in short minutes of order. The plaintiff's separate questions will be allowed only if the parties agree that no questions of credit will arise and that no facts will be in issue at that hearing.

Orders

  • ['The parties are to bring in short minutes of order to give effect to the reasons.' "The plaintiff's separate questions will be allowed if and only if the parties agree that no questions of credit will arise on the hearing of the separate question and that no facts will be in issue at that hearing."]