Cave v Allen Jack and Cottier Pty Ltd [2014] NSWSC 1365

Cave v Allen Jack and Cottier Pty Ltd [2014] NSWSC 1365

The overriding purpose would be better advanced by referring the whole proceedings to a referee because a referee could hear the case more quickly, flexible and relatively informal procedures would better define the issues, and the hearing would likely be materially shorter, saving significant legal costs. An experienced retired judge with construction and technology experience could deal with the legal, factual and technical complexities sooner than a judge of the Division was likely to be able to do.

Jurisdiction
Australia
Judgment Date
29 September 2014
Procedural Posture
Civil Building Dispute Involving Claims for Breach of Contract and Negligence / Interlocutory Application for Referral of the Whole Proceedings to a Referee
Outcome
The Court determined that the whole proceedings should be referred out and directed counsel to bring in short minutes of order.
Legal Topics
['referral to Referee' 'overriding Purpose' 'building Dispute' 'rectification Works' 'costs of Rectification' 'limitation' 'apportionment of Liability']
['civil Procedure' 'building and Construction' 'contract' 'negligence'] ['referral to Referee' 'overriding Purpose' 'building Dispute' 'rectification Works' 'costs of Rectification' 'limitation' 'apportionment of Liability']

Case Brief

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Procedural Posture

Civil Building Dispute Involving Claims for Breach of Contract and Negligence / Interlocutory Application for Referral of the Whole Proceedings to a Referee

Legal Issues

  1. 1 ['Whether the whole of the proceedings should be referred to a referee under r 20.14 of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether referral of the whole proceedings, rather than only questions concerning scope and cost of rectification works, would best achieve the just, quick and cheap resolution of the real issues in the proceedings.' 'Whether a referee could appropriately determine the factual, legal and technical issues in the proceedings.']

Ratio Decidendi

The overriding purpose would be better advanced by referring the whole proceedings to a referee because a referee could hear the case more quickly, flexible and relatively informal procedures would better define the issues, and the hearing would likely be materially shorter, saving significant legal costs. An experienced retired judge with construction and technology experience could deal with the legal, factual and technical complexities sooner than a judge of the Division was likely to be able to do.

Court Disposition

The Court determined that the whole proceedings should be referred out and directed counsel to bring in short minutes of order.

Orders

  • ['I direct counsel to bring in short minutes of order largely conforming with the form of order in annexure 2 to Equity Practice Note 3.' 'If counsel are unable to agree on the identity of the referee, the Court will hear short argument about the competing contentions.']