BROADHURST v WILLIAMS SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL 5 KIRBY P, SAMUELS and PRIESTLEY JJA 9 March 1989 [1989] NSWCA 26 Kirby P. A dispute has arisen between the appellant Hugh Broadhurst, builder, and John Williams, proprietor; that dispute came before Acting Judge Craigie in the District Court on 10 June 1988. His Honour's reasons for judgment are available but it seems that the transcript of the proceedings are not available and it may be that that fact explains some of the confusion which has followed. A notice of appeal was originally filed in this Court which raised only two grounds: (1) that the decision was against the weight of the evidence and that his Honour allowed figures in the Scott Schedule which relates to a concept other than the concept, the subject of the contract, and (2) the decision was against the weight of the evidence in that his Honour applied figures assessed by the builder unrelated to the contract rather than those of an expert witness relating to the contract. This notice of appeal was objected to by the present claimants and it led to filing an amended notice of appeal which isappropriate to set out in full for only then can the errors in it be appreciated. Grounds: (1) Despite his Honour finding that rectification work should involve underpinning and demolition of the wall, the subject of the action and thereafter reconstruction and such finding having been based upon an expert opinion of Mr Watt, his Honour erred in accepting that the cost of doing that work was the cost set out in the Scott Schedule when in fact the cost set out in the Scott Schedule relating to the doing of work which his Honour found was unnecessary. (2) His Honour found that certain works were to be performed under the contract. 35 His Honour rejected that the work quoted by the builder was in accordance with the certain works to be performed under the contract. In assessing damages for the failure to perform those certain works, his Honour erred in that he used the figures given by the builder to perform the works that the builder quoted rather than the figures of the experts in relation to the performance of the certain works. 40 Orders Sought: That a judgment in a different sum be awarded. Such figure to be computed in accordance with the evidence when the transcript is available. The rules of this Court provide for the manner in which notices of appeal are to be drawn and the relevant rule is Pt 51 r 8. That rule provides: (1) A notice of appeal shall state — (a) Whether the appeal is from the whole or part only, and what part, of the decision in the court below; (b) Briefly, but specifically, the grounds relied upon in support of the 50 appeal; (c) What judgment, order, verdict or determination the appellant seeks in place of the decision in the court below. 2 UNREPORTED JUDGMENTS The comparison of the rule and the amended notice of appeal reveals at least three defects. Firstly, it is apparent from the grounds set out in the notice of appeal that part only of the judgment of Acting Judge Craigie is challenged and yet the notice of appeal does not make that plain as (a) of Pt 51 r 8 requires. Secondly, the grounds of appeal lack specificity, are confusing and in the case of the second ground in particular seemingly unclear. These are defects which might have been cured by redrawing of the gounds or particulars and redrafting will be required. Thirdly, the orders sought do not specify with that particularity, which the Rule requires, the judgment which is claimed by the appellant. Had attention been made to that matter, it would have made clear the fact that the appeal is against part only of Acting Judge Craigie's judgment. I should observe that no stay has been granted either by the court below or by this court yet the claimant has not taken any steps to execute upon the judgment. The proper course to be taken in the face of the defects is not to remove the notices of appeal entirely. The opponent is entitled to challenge in this court erroneous decisions of fact, the pre-emptory which is sought by the claimant is available only in the clearest case. Appearing from the amended notice of appeal as if 'through a glass darkly' is an obscure hint of the dispute which ultimately comes to this court but that dispute should be put in proper form. I propose (1) that the proponent have 14 days from this date within which to file amended grounds of appeal in terms of the notice of appeal. (2) liberty to apply on two days notice to the other party. (3) costs of the motion including the costs earlier in the week to be costs in the appeal. Samuels JA. I agree this notice of appeal is truly a horrible document which has caused lucidity and high obscurity as the President has indicated but, with him, I consider that it does not constitute an abuse of process. In ordinary cases, if the motion failed, I would have been inclined to give the opponent his costs but it would be against my conscience to allow anyone connected with the or authorship of the document to take the costs of the motion directly. I agree with the orders proposed. Priestley JA. On the fact of the case I also agree with the orders as proposed provided. Kirby P. The orders of the court are accordingly as I provided. Orders accordingly.