Emag Constructions Pty Limited v Highrise Concrete Contractors (Aust) Pty Limited [2003] NSWSC 988

Emag Constructions Pty Limited v Highrise Concrete Contractors (Aust) Pty Limited [2003] NSWSC 988

No slip occurred. The finding that notice of the adjudication application was received on 12 June 2003 was based on the Court's approach to service and the evidence before it, not on a clerical or accidental error. In any event, the independent finding that the adjudicator's 16 June 2003 communication misled and...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
29 October 2003
Procedural Posture
Notice of Motion Under Part 20 Rule 10 of the Supreme Court Rules 1970 to Amend a Judgment / Post Judgment Motion
Outcome
Notice of motion dismissed with costs; no slip occurred.
Legal Topics
['slip Rule' 'amendment of Judgment' 'service of Adjudication Application' 'adjudication Response Period' 'reopening or Varying Judgment Before Entry' 'costs of Expert Evidence']
['civil Procedure' 'construction Adjudication' 'costs'] ['slip Rule' 'amendment of Judgment' 'service of Adjudication Application' 'adjudication Response Period' 'reopening or Varying Judgment Before Entry' 'costs of Expert Evidence']

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Notice of Motion Under Part 20 Rule 10 of the Supreme Court Rules 1970 to Amend a Judgment / Post Judgment Motion

Legal Issues

  1. 1 ['Whether Part 20 Rule 10 of the Supreme Court Rules 1970 could be invoked to amend dates in paragraph 56 of the earlier judgment and delete bullet points 9 and 10.' 'Whether the Court had misstated or misunderstood the evidence or a concession allegedly made by counsel for the plaintiff about service and dates.' 'Whether the Court should set aside or vary the finding implicit in paragraph 18 and explicit in paragraph 56 of the earlier judgment.' 'What costs orders should be made, including costs relating to the expert evidence of Ajoy Ghosh.']

Ratio Decidendi

No slip occurred. The finding that notice of the adjudication application was received on 12 June 2003 was based on the Court's approach to service and the evidence before it, not on a clerical or accidental error. In any event, the independent finding that the adjudicator's 16 June 2003 communication misled and impeded the plaintiff in exercising its entitlement to provide an adjudication response would still have vitiated the adjudicator's determination. The additional attempt to challenge paragraph 18 was not in the notice of motion and would have been dismissed even if properly brought.

Court Disposition

Notice of motion dismissed with costs; no slip occurred.

Orders

  • ['The notice of motion filed on 17 October 2003 is dismissed.' "The defendant is to pay the plaintiff's costs, save for the costs relating to the expert evidence of Ajoy Ghosh." 'The defendant is entitled to the reasonable costs of and relating to the preparation of the expert evidence of Mr Ghosh.']