Morrison v Moss (No. 3) [2020] NSWDC 136

Morrison v Moss (No. 3) [2020] NSWDC 136

The Madden Report was adopted because, apart from a limited unsupported reference in item 7.4.1 to meetings with residents, the body corporate and consultants, it addressed technical questions of rectification cost by a thorough and analytical methodology within the referee's expertise, with no demonstrated error of principle, patent misapprehension of evidence, perversity or arbitrary reasoning. The limited error did not justify rejecting the overall allowance for contractor's preliminaries, and the challenge to architect and engineer fees sought to re-agitate a factual and technical matter properly within the referee's assessment.

Jurisdiction
Australia
Judgment Date
23 April 2020
Procedural Posture
Civil Building and Construction Proceeding Concerning Rectification Costs for Defective Works / Notice of Motion for Adoption of Referee's Report Pursuant to R 20.24 of the Uniform Civil Procedure Rules 2005 (nsw)
Outcome
The referee's report was adopted subject to rejection of the part contained in the second bullet point in item 7.4.1; the plaintiff was directed to bring short minutes of order to dispose of the proceeding.
Legal Topics
['referral to Referee' "adoption of Referee's Report" 'rectification Costs for Defective Works' "contractor's Preliminaries" 'professional Fees']
['building and Construction' 'civil Procedure'] ['referral to Referee' "adoption of Referee's Report" 'rectification Costs for Defective Works' "contractor's Preliminaries" 'professional Fees']

Case Brief

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Procedural Posture

Civil Building and Construction Proceeding Concerning Rectification Costs for Defective Works / Notice of Motion for Adoption of Referee's Report Pursuant to R 20.24 of the Uniform Civil Procedure Rules 2005 (nsw)

Legal Issues

  1. 1 ['Whether the report of David Madden dated 27 March 2020 should be adopted under r 20.24 of the Uniform Civil Procedure Rules 2005 (NSW).' "Whether the referee's allowance for contractor's preliminaries should be rejected because it referred to meetings with residents, the body corporate and consultants for a standalone house." "Whether the referee's allowance for architect and engineer professional fees should be rejected because engineering plans already existed."]

Ratio Decidendi

The Madden Report was adopted because, apart from a limited unsupported reference in item 7.4.1 to meetings with residents, the body corporate and consultants, it addressed technical questions of rectification cost by a thorough and analytical methodology within the referee's expertise, with no demonstrated error of principle, patent misapprehension of evidence, perversity or arbitrary reasoning. The limited error did not justify rejecting the overall allowance for contractor's preliminaries, and the challenge to architect and engineer fees sought to re-agitate a factual and technical matter properly within the referee's assessment.

Court Disposition

The referee's report was adopted subject to rejection of the part contained in the second bullet point in item 7.4.1; the plaintiff was directed to bring short minutes of order to dispose of the proceeding.

Orders

  • ['Pursuant to r 20.24 of the UCPR and subject to a qualification, the report of David Madden dated 27 March 2020 is adopted.' 'The qualification is that the part of the report contained in the second bullet point in item 7.4.1 of that report is rejected.' 'The plaintiff is directed to bring short minutes of order to...