Tryhaz v FielderFielder v Tryhaz [2005] NSWSC 906

Tryhaz v FielderFielder v Tryhaz [2005] NSWSC 906

The referee's report should be adopted in respect of damages (including GST) and quantum, as the relevant legal and factual issues were properly addressed before the referee and no patent error or manifest unreasonableness is disclosed. Points not raised before the referee (such as the GST issue) should not be entertained unless exceptional circumstances justify it; here, they do not. The costings adopted by the referee, including painting, were open on the evidence and should not be disturbed.

Parties
Plaintiff/cross Claimant: Tryhaz Pty Limited; Defendant/cross Claimant: Fielder Engineers Pty Ltd; Cross Claimant: Multiplex Constructions Pty Ltd; Defendant: Mark Robert Steele
Jurisdiction
Australia
Judgment Date
09 September 2005
Procedural Posture
Equity Technology and Construction (report Adoption Proceedings) / Hearing to Adopt Referee's Report Under Part 72 Supreme Court Rules
Outcome
Referee's report adopted (except as to pre-judgment interest); damages, including GST, and painting costs allowed.
Legal Topics
Referee's Report Adoption, Damages Assessment, GST in Construction Damages, Apportionment of Liability
Building and Construction Law Civil Procedure Referee's Report Adoption Damages Assessment GST in Construction Damages Apportionment of Liability

Case Brief

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 3 Authorities cited 15 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Tryhaz Pty Limited

Plaintiff/cross Claimant

Fielder Engineers Pty Ltd

Defendant/cross Claimant

Multiplex Constructions Pty Ltd

Cross Claimant

Mark Robert Steele

Defendant

Procedural Posture

Equity Technology and Construction (report Adoption Proceedings) / Hearing to Adopt Referee's Report Under Part 72 Supreme Court Rules

Legal Issues

  1. 1 Whether the referee's report should be adopted regarding damages, GST, and quantum (painting vs. cathodic protection)
  2. 2 Whether points not taken before the referee (GST) can be raised on adoption
  3. 3 How damages should be calculated when rectification has not yet occurred

Ratio Decidendi

The referee's report should be adopted in respect of damages (including GST) and quantum, as the relevant legal and factual issues were properly addressed before the referee and no patent error or manifest unreasonableness is disclosed. Points not raised before the referee (such as the GST issue) should not be entertained unless exceptional circumstances justify it; here, they do not. The costings adopted by the referee, including painting, were open on the evidence and should not be disturbed.

Court Disposition

Referee's report adopted (except as to pre-judgment interest); damages, including GST, and painting costs allowed.

Orders

  • Referee's report adopted as to principal damages and GST; no reduction for painting; report not adopted as to pre-judgment interest.
  • Parties directed to bring in short minutes and, if necessary, argue costs.