JENNINGS CONSTRUCTIONS LTD v QH AND M BIRT LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, KIRBY P and PRIESTLEY JA 31 January 1989 [1989] NSWCA 111 Gleeson CJ In this matter there are two applications for leave to appeal from decisions respectively of Mr Justice Cole and Mr Justice Brownie of the Commercial Division of the Court. Mr Staff, senior counsel for the claimant in both cases, accepts that the fate of the second application depends upon that of the first application in the sense that if the first application is refused the second application be also. By majority the Court is of the view that the applications should be refused. The majority view is as follows. In the first place, there is no error of principle in the reasoning of Mr Justice Cole at first instance. In particular, the correctness of his Honour's reasoning on the issue of repudiation has not been shown to be sufficiently in doubt to warrant the granting of leave to appeal. In relation to the second of the two questions identified and considered by Mr Justice Cole in his reasons for judgment, Mr Staff sought in His Court not so much to challenge his Honour's reasoning as to raise, as a bare point of law, a new point. It appears from the material before us that this point is new not only in the sense that it was not raised before the arbitrator, but also in the sense that it was not raised before Mr Justice Cole. The material to which I refer includes the written submissions made at first instance. The point, stated as a bare proposition of law is it must be acknowledged, one of interest and importance. It is as follows: that a claim based upon quantum meruit to a reasonable sum for work carried out by a contractor under a contract which is repudiated by the other party to it and where that repudiation is accepted, is not all available remedy at law. Mr Staff accepts that the current state of authority is against the point but he seeks to have the authorities reviewed. However, this case seems to me to be an inappropriate vehicle for consideration of the point. In particular it is very difficult to see how the point could properly be argued in isolation from the facts of the particular case which would not be fully before the Court on appeal, or in isolation from a consideration of the matter which was adverted to by Mr Justice Cole at some length in his reasons for judgment, that is to say, the question of how one goes about computing a quantum meruit where one is available. Neither that point, nor the point of law advanced by Mr Staff before us, was raised before the arbitrator even though the points and in particular the point upon which Mr Staff seeks to rely, were available to counsel who represented the claimant before the arbitrator, and it may well be the case that if the points had been taken, additional evidence could have been made, including findings as to alternative means of computing the claim. The arbitration proceeded for more than sixty hearing days, and attempts to raise at this stage points which were not taken before the arbitrator are not to be encouraged. 2 UNREPORTED JUDGMENTS It may be mentioned that although the amount of the award in the present case was several million dollars, it by no means follows that this is the amount in dispute in relation to Mr Staff's new point of law. The evidence before us does not permit us to quantify that, but of course, it would be the difference between the amount that was awarded and the amount that Mr Staff contends should have been awarded if the proper approach to calculation of damages had been adopted. There is no evidence as to what this is. For those reasons I am of the opinion that both applications should be dismissed with costs. Kirby P In my opinion leave should be granted in both matters. The principal issue raised by the claimant is what has been described as its second point is, as Gleeson CJ has rightly said, one of great interest and importance. In particular, it is one of general importance for the law of contract, for appeals from arbitrators' awards and for the general administration of the building list in the Supreme Court where the question is likely frequently to arise. It is posed clearly by the facts of this case. The issue involved is one of pure law. If successful, the point argued by the claimant would be fatal to the award under appeal The quantification of the amount of a claim in quantum meruit is legally irrelevant if an entitlement to a reasonable sum, on the basis of quantum meruit is not, in law, available. New light has been thrown upon the law in this regard by the decision of the High Court of Australia in Pavey and Matthews Proprietary Ltd v Paul (1986) 162 CLR 221. That alone makes this case, brought by a party with the assets and interest to litigate it upon proper terms, one which the Court should accept. No sufficient disadvantage has been shown to prevent the matter being brought up here for review at this time. On the contrary, I see considerable advantage in the Court's doing so. The Court could adequately protect the position of the opponent by orders as to expedition in the hearing the appeals and, possibly, by special orders as to costs. These views have been expressed by me without having heard the opponent's argument to completion. The majority of the Court has formed a clear view that the matter is not one for leave. Accordingly, with my concurrence, argument has been stopped, having already taken some time. To that extent the view which I had reached represents my opinion at this stage. But it is a firm one. I would have granted leave at the stage that argument closed. I should only add that, although I adhere to the opinion which I expressed in Warley v Adco Constructions Pty Ltd, unreported CA, 30 November 1988; (1988) NSWJB 212, I would not have given leave to reargue that very important question in this Court because the holding challenged, as expressed in that decision, is so recent. Review of that decision, of general importance for this Court in appeals limited to questions of law, must await either a greater lapse of time in this Court or the grant of special leave to appeal by the High Court of Australia. Priestley JA When the Court's reasons were given for dismissing the applications, immediately upon the conclusion of the argument, I simply said that for the reasons given by the Chief Justice the case did not seem to me to be an appropriate one for the granting of leave. However, as the reasons of the Court in their final form have turned out to be more extensive than those delivered ex tempore, I will mention one matter in my mind at the time which particularly weighed with me in concluding that the applications should be refused. This was that the point which was said to be the URJ JENNINGS CONSTRUCTIONS LTD v QH AND M BIRT LTD (Priestley JA) 3 leave point was only raised for the first time on the second day of the argument in this Court. Not only was the point one which could have been raised by the claimant in the arbitration, which we were told was still on foot when the High Court delivered its judgment in Pavey and Mathews Pty Ltd v Paul, but also if the claimant were eventually to succeed on the point, further proceedings in the arbitration would be necessary. The claimant having been able to raise the point at trial and not having done so, it seemed to me that the considerations mentioned by the High Court in Water Board v Moustakas (1988) 62 ALJR 209 applied to the present case with as much force as they did in that case. The rule in Moustakas is one in which both fairness between parties and the public interest in bringing litigation to an end play a part. To ask for leave in the present case simply because the point so belatedly raised was said to be of considerable general interest, struck me as asking the Court, in the circumstances I have touched on, to sacrifice both the public interest and the idea of fairness between parties to what on the facts of this case was not shown to be more than an academic interest in a point, which if it is truly of general importance will no doubt be decided in due course, in a case where it has been properly raised and litigated. GLEESON CJ: The order of the Court by majority is that the applications are dismissed with costs.