FRANKS and ANOR v BEREM CONSTRUCTIONS PTY LTD [1998] NSWCA 87

FRANKS and ANOR v BEREM CONSTRUCTIONS PTY LTD [1998] NSWCA 87

The trial judge's statement regarding not looking at the transcript or intricacy of the evidence did not amount to an appealable error in context, as her Honour was satisfied with the evidence before the referee and properly stated applicable legal principles; no denial of natural justice or material error was shown.

Parties
Appellant: Franks; Respondent: Berem Constructions Pty Ltd
Jurisdiction
Australia
Judgment Date
02 December 1998
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
appeal dismissed (majority); Fitzgerald AJA would allow appeal (dissent)
Legal Topics
Adoption of Referee's Report, Judicial Review of Factual Findings, Building Defects
Civil Procedure Building and Construction Adoption of Referee's Report Judicial Review of Factual Findings Building Defects

Case Brief

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Parties

Franks

Appellant

Berem Constructions Pty Ltd

Respondent

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the trial judge erred in principle in declining to go to the transcript and intricacy of the evidence before the referee when considering whether to adopt the report
  2. 2 Whether the referee's reasoning was adequate and properly explored material factual issues
  3. 3 Whether denial of natural justice occurred by not considering all defects disputed

Ratio Decidendi

The trial judge's statement regarding not looking at the transcript or intricacy of the evidence did not amount to an appealable error in context, as her Honour was satisfied with the evidence before the referee and properly stated applicable legal principles; no denial of natural justice or material error was shown.

Court Disposition

appeal dismissed (majority); Fitzgerald AJA would allow appeal (dissent)

Orders

  • Appeal dismissed with costs (majority)