Kenoss Contractors Pty Limitd v Allied Constructions Pty Limited (No 3) [2001] NSWIRComm 225

Kenoss Contractors Pty Limitd v Allied Constructions Pty Limited (No 3) [2001] NSWIRComm 225

Assuming jurisdiction to make a Pt 72 reference existed, the respondent did not establish that the liability issues in the s 106 unfair contract proceeding were suitable for reference. Only some issues, principally comparison of construction drawings with design drawings and alleged variations during construction,...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
21 September 2001
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996; Unfair Contract Proceeding / Interlocutory Notice of Motion by the Respondent Seeking Reference to a Referee for Inquiry and Report
Outcome
Respondent's motion dismissed; application for reference refused.
Legal Topics
['unfair Contracts' 'reference to Referee' 'industrial Relations Commission Rules R 89(5)' 'supreme Court Rules (nsw) Pt 72' 'expert Evidence' 'construction Subcontract Disputes']
['industrial Relations' 'practice and Procedure' 'contract Law' 'construction Law'] ['unfair Contracts' 'reference to Referee' 'industrial Relations Commission Rules R 89(5)' 'supreme Court Rules (nsw) Pt 72' 'expert Evidence' 'construction Subcontract Disputes']

Source-derived case record

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996; Unfair Contract Proceeding / Interlocutory Notice of Motion by the Respondent Seeking Reference to a Referee for Inquiry and Report

Legal Issues

  1. 1 ['Whether the Commission should order that the whole proceedings or the liability issues under s 106 of the Industrial Relations Act 1996 be referred to a referee for inquiry and report.' 'Whether Pt 72 of the Supreme Court Rules (NSW) was available through r 89(5) of the Industrial Relations Commission Rules.' 'Whether the issues of liability, unfairness and possible variation of the subcontract were suitable for reference to a referee.' "Whether a reference would save time and costs or risk adding another tier of hearings through challenges to the referee's report."]

Ratio Decidendi

Assuming jurisdiction to make a Pt 72 reference existed, the respondent did not establish that the liability issues in the s 106 unfair contract proceeding were suitable for reference. Only some issues, principally comparison of construction drawings with design drawings and alleged variations during construction, appeared substantially technical. The remaining issues involved factual findings, contractual fairness and possible variation under the specialist s 106 jurisdiction. A reference would not necessarily save cost or time, no referee with both relevant technical expertise and recognised expertise in s 106 was identified, and there was a real risk that challenges to the report would...

Court Disposition

Respondent's motion dismissed; application for reference refused.

Orders

  • ["The respondent's motion that the whole of the question of liability under s 106 of the Act be referred to a referee pursuant to Pt 72 SC Rules is dismissed."]