The Owners Strata Plan No. 64622 v Australand Constructions Pty Limited [2009] NSWSC 1083

The Owners Strata Plan No. 64622 v Australand Constructions Pty Limited [2009] NSWSC 1083

The plaintiff was not entitled to a further opportunity to prove quantum for the remaining defects because it had ample opportunity and multiple indulgences to present its quantum evidence, deliberately chose to rely on the Palmer Report, failed to cure its deficiencies, accepted that the evidence did not permit a rational assessment of damages, and a further hearing would cause delay and prejudice to the defendants contrary to the overriding purpose of the Civil Procedure Act 2005 (NSW). The referee was not required to assess damages without evidence, and his refusal of the sine die adjournment was justified; accordingly the referee's reports were adopted and judgment entered for the...

Jurisdiction
Australia
Judgment Date
09 October 2009
Procedural Posture
Claim for Damages by Owners' Corporation Against Builders for Defective Construction / Principal Judgment on Motions to Adopt or Reject Referee's Reports on Liability and Quantum
Outcome
Referee's reports adopted; judgment for the plaintiff for $819,113; plaintiff's motion dated 21 August 2009 otherwise dismissed.
Legal Topics
['reference to Referee' "adoption of Referee's Report" 'expert Evidence on Quantum' 'assessment of Damages' 'defective Construction' 'adjournment to Adduce Further Evidence' 'overriding Purpose']
['practice and Procedure' 'building and Construction' 'civil Procedure'] ['reference to Referee' "adoption of Referee's Report" 'expert Evidence on Quantum' 'assessment of Damages' 'defective Construction' 'adjournment to Adduce Further Evidence' 'overriding Purpose']

Case Brief

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Procedural Posture

Claim for Damages by Owners' Corporation Against Builders for Defective Construction / Principal Judgment on Motions to Adopt or Reject Referee's Reports on Liability and Quantum

Legal Issues

  1. 1 ["Whether the referee's reports dated 12 November 2007, 17 December 2007, 5 April 2008 and 3 August 2009 should be adopted." 'Whether the plaintiff should be permitted a further opportunity to adduce quantum evidence for the remaining defects after rejection of the Palmer Report.' 'Whether the referee was required to assess quantum without admissible evidence from the plaintiff.' "Whether refusal of the plaintiff's sine die adjournment application was justified."]

Ratio Decidendi

The plaintiff was not entitled to a further opportunity to prove quantum for the remaining defects because it had ample opportunity and multiple indulgences to present its quantum evidence, deliberately chose to rely on the Palmer Report, failed to cure its deficiencies, accepted that the evidence did not permit a rational assessment of damages, and a further hearing would cause delay and prejudice to the defendants contrary to the overriding purpose of the Civil Procedure Act 2005 (NSW). The referee was not required to assess damages without evidence, and his refusal of the sine die adjournment was justified; accordingly the referee's reports were adopted and judgment entered for the...

Court Disposition

Referee's reports adopted; judgment for the plaintiff for $819,113; plaintiff's motion dated 21 August 2009 otherwise dismissed.

Orders

  • ['Pursuant to UCPR r 20.24 the reports of Mr Barry Tozer dated 12 November 2007, 17 December 2007 (with the exception of paragraphs 80 to 83), 5 April 2008 and 3 August 2009 are adopted.' 'Judgment for the plaintiff for $819,113.' "The plaintiff's motion dated 21 August 2009 is otherwise dismissed." 'The Court will...