Rialto Sports Pty Limited v Cancer Care Associates Pty Limited; CCA Estates Pty Limited; Davjul Holdings Pty Limited; Armmam Pty Limited [2022] NSWCA 146

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Rialto Sports Pty Limited v Cancer Care Associates Pty Limited; CCA Estates Pty Limited; Davjul Holdings Pty Limited; Armmam Pty Limited [2022] NSWCA 146 Hearing dates: 1 June 2022 Date of orders: 10 August 2022 Decision date: 10 August 2022 Before: Bell CJ at [1] Macfarlan JA at [3] Gleeson JA at [4] Decision: CA2022/3420, 3426, 3432, 3439 (1) Appeal allowed in part. (2) Set aside orders 1 and 2 made by Curtis ADCJ on 9 December 2021 in each proceeding in the District Court: 2018/114952, 2018/115009, 2018/115043, 2019/91017. (3) In lieu, pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 20.14, refer to a referee as agreed by the parties within 21 days or, failing agreement, to a referee as determined by the Court for enquiry and report the matter in the Schedule below. (4) Direct that (without affecting the powers of the Court as to costs) the parties be jointly liable to the referee for the fees payable to him/her in the first instance. (5) Direct that the parties deliver to the referee forthwith a copy of this order together with a copy of Division 3 of Part 20 of the UCPR. (6) Direct that: (a) subject to subpars (b) and (c) below, the provisions of Pt 20, r 20 shall apply to the conduct of proceedings under the reference; (b) the reference will commence on 1 September 2022 unless otherwise ordered by the referee; (c) the referee consider and implement such manner of conducting proceedings under the reference as will, without undue formality or delay, enable a just determination to be made including, if the referee thinks fit: (i) the making of inquiries by telephone; (ii) site inspection; (iii) inspection of plant and equipment; and (iv) communication with experts retained on behalf of the party; (d) the evidence before the referee is to be the evidence received by the District Court, and the parties are bound by the rulings made at trial by Curtis DCJ and by any ruling made by the Court of Appeal concerning the admissibility of Mr Madden's evidence on quantum; (e) for the avoidance of doubt, there is to be no cross-examination of any expert, irrespective of whether the expert was cross-examined at the trial before Curtis DCJ; (f) the referee submit the report to the Court in accordance with Pt 20 r 23 addressed to the Court of Appeal Registrar on or before 20 October 2022. (7) Amendments to the Schedule, whether by agreement or on a contested basis, are to be the subject of an order made by the Court. (8) If for any reason the referee is unable to comply with the Order for delivery of the report to the Court by the date in this Usual Order for Reference, the referee is to provide to the Court of Appeal Registrar an Interim Report setting out the reasons for such inability and an application to extend the time within which to deliver the report to the Court to a date when the referee will be able to provide the report. (9) Grant liberty to the referee or any party to seek directions with respect to any matter arising in proceedings under the reference upon application made on 24 hours' notice or such less notice ordered by the Court. (10) Reserve costs of the proceedings in this Court and the District Court for further consideration. (11) Stand the proceedings over before the Registrar for further directions on 31 October 2022. Catchwords: CONTRACTS – construction – whether vendor's covenant to construct building in a proper and workmanlike manner was only a "best endeavours" obligation – whether vendor is liable under covenant for incomplete or defective work by builder – where covenant did not merely require compliance with physical description of the building according to approved plans CONTRACTS – construction – whether good workmanship covenant merged on completion – absence of express statement that the covenant survived completion – primary obligation to convey title merged upon completion – nature of subject matter of secondary obligation as to good workmanship – where performance of covenant could not be investigated prior to completion – where occupation certificate is not determinative of performance CONTRACTS – damages – whether lot owners can claim damages in respect of proportionate share of cost to rectify common property – where damage to common property is infringement of lot owner's proprietary interest in common property as equitable tenant in common – whether lot owners can recover costs of rectification where works have not been undertaken CONTRACTS – assignment – whether assignment of chose in action was effective – whether assignee had genuine, substantial pre-existing commercial interest in the suit – whether claim is time barred where plaintiff substituted – where effect of substitution order under UCPR, r 6.32 placed substituted plaintiff in same position as party replaced APPEAL – orders on appeal – building case – whether appropriate relief is remitter for retrial or reference out to referee – where reference out is the most efficient and timely option Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), s 109C Strata Schemes (Freehold Development) Act 1973 (NSW) Strata Schemes Management Act 1996 (NSW) Strata Schemes Development Act 2015 (NSW), s 28 Strata Schemes Management Act 2015 (NSW), ss 20, 74, 106 Rules of the Supreme Court 1971 (WA), rr 6, 7 Uniform Civil Procedure Rules 2005 (NSW), rr 6.20, 6.24, 6.28, 6.30, 6.32, 20.14 Cases Cited: APT Finance Pty Limited v Bajada [2008] WASCA 73 Australian Conference Association v Carter [1988] ANZ ConvR 516; (1988) NSW ConvR 55-435; BC8700959 Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36 Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 36 Carre v Owners' Corporation Strata Plan 53020 (2003) 58 NSWLR 302; [2003] NSWSC 397 Cavanagh v Manning Valley Race Club Ltd [2022] NSWCA 36 Central Coast Council v Norcross Pictorial Calendars Pty Ltd (2021) 391 ALR 157; [2021] NSWCA 75 Chorlton v Dickie (1879) 13 Ch D 160 Churnin v Pilot Developments Pty Ltd [2003] NSWCA 391; (2003) 11 BPR 21,603 Dean v Gibson [1958] VR 563 Eastmark Holdings Pty Ltd v Kabraji [2013] NSWSC 1763; (2013) 97 ACSR 161 Ellis v Torrington [1920] 1 KB 399 Equuscorp Pty Limited v Haxton (2012) 246 CLR 498; [2012] HCA 7 Foss v Harbottle (1843) 2 Hare 461, 67 ER 189 Fu v Bucasia [2014] NSWSC 325; (2014) 17 BPR 32,885 Hadley v Baxendale (1854) 9 ExCh 341 Hazard Systems Pty Limited v Car-Tech Services Pty Limited (in liq) [2013] NSWCA 314 Houghton v Immer (No 55) Pty Ltd (1997) 44 NSWLR 46 Lawrence v Cassel [1930] 2 KB 83 National Mutual Property Services (Australia) Pty Limited v Citibank Savings Limited (1995) 132 ALR 514 Marex Financial Ltd v Savilleja [2021] AC 39 Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 Prudential Assurance Co Ltd v Newman Industries (No 2) [1982] Ch 204 Rickard Constructions Pty Limited v Rickard Hails Moretti Pty Limited (2004) 188 FLR 278; [2004] NSWSC 1041 Simply Irresistible Pty Ltd v Samuel B Couper [2010] VSC 601 Soulenazis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Svanosio v McNamara (1956) 96 CLR 186; [1956] HCA 55 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8 Trendtex Trading Corporation v Credit Suisse [1982] AC 679 Trentelman v The Owners – Strata Plan No 76700 (2021) 106 NSWLR 227; [2021] NSWCA 242 Woodings v Stevenson [2001] WASC 174 Woolcock Street Investments v CDG Pty Limited (2004) 216 CLR 515; [2004] HCA 16 Zaccardi v Caunt [2008] NSWCA 202; (2008) 15 BPR 28,403 Texts Cited: Prof Peter Butt, The Standard Contract for Sale of Land in New South Wales (2nd ed, 1998, LBC Information Services) Category: Principal judgment Parties: 2022/3420 Rialto Sports Pty Limited (Appellant) Cancer Care Associates Pty Limited (Respondent)