WINROBE PTY LTD v SUNDIN'S BUILDING CO PTY LTD [No 2] [1992] NSWCA 278

WINROBE PTY LTD v SUNDIN'S BUILDING CO PTY LTD [No 2] [1992] NSWCA 278

Procedural unfairness occurred because the decision was made on the basis of the notice’s specificity, an issue not contested at trial; if the issue of notice validity had been raised at trial, evidence could have been called that may have affected the outcome; therefore, the orders and judgment must be withdrawn for review on the proper issues.

Parties
Appellant: Winrobe Pty Ltd; Respondent: Sundin's Building Co Pty Ltd
Jurisdiction
Australia
Judgment Date
24 December 1992
Procedural Posture
Appeal / Application for Review of Judgment Before Entry of Orders
Outcome
Judgment and original orders withdrawn pending review; costs reserved; motion for review allowed; judgment in the appeal reserved.
Legal Topics
Review of Judgment Before Entry, Procedural Fairness, Termination of Building Contract, Adequacy of Notice Under Contract
Practice and Procedure Building and Construction Law Review of Judgment Before Entry Procedural Fairness Termination of Building Contract Adequacy of Notice Under Contract

Case Brief

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Parties

Winrobe Pty Ltd

Appellant

Sundin's Building Co Pty Ltd

Respondent

Procedural Posture

Appeal / Application for Review of Judgment Before Entry of Orders

Legal Issues

  1. 1 Whether the Court applied an erroneous legal principle regarding contractual notice requirements
  2. 2 Whether procedural unfairness occurred by determining the appeal on a ground not contested at trial
  3. 3 Whether the capacity of the principal’s notice under CL31 to specify the builder's corrective action was properly in issue

Ratio Decidendi

Procedural unfairness occurred because the decision was made on the basis of the notice’s specificity, an issue not contested at trial; if the issue of notice validity had been raised at trial, evidence could have been called that may have affected the outcome; therefore, the orders and judgment must be withdrawn for review on the proper issues.

Court Disposition

Judgment and original orders withdrawn pending review; costs reserved; motion for review allowed; judgment in the appeal reserved.

Orders

  • Motion for review of reasons for judgment and earlier proposed orders allowed.
  • Reasons for judgment published by the Court on 30 June 1992, and orders proposed therein, withdrawn.