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] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SHELLER and CRIPPS JJA 20 August 1992, 24 December 1992 [1992] NSWCA 278

PRACTICE and PROCEDURE — review of judgment before orders entered — orders previously announced allegedly affected by procedural unfairness — claim between proprietor and builder concerning erection of building partly on land of third party — proprietor gives builder notice under contract — notice alleges failure to proceed with project in a competent manner — particulars annexed to notice set out alleged encroachment — notice fails to specify with particularity the action required of builder — Court in earlier reasons dismisses proprietor's claim upon the basis of inadequacy of the notice in specifying what builder must do to put matter right — whether Court proceeded upon the basis of an erroneous legal principle or a factual issue not in dispute at the trial — held: (Sheller JA; Kirby P and Cripps JA concurring): (1) The legal principle stated by the Court was correct and the judgment would not be reviewed upon that ground. Pauling vy The Mayor, Aldermen and Burgesses of the Borough of Dover (1855) 10 Ex 753; 156 ER 644 followed. The notice required specification of the action required by it; (2) However, it was now clear that the validity and specificity of the notice was not in issue at the trial; (3) Had such validity and specificity been in issue, evidence might have been called to help resolve the suggested ambiguities of the notice. Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 applied; (4) Accordingly, the claim having been dismissed upon the basis of the notice's lack of specificity, a procedural unfairness to the appellant had occurred which required review of the earlier judgment upon the footing that the validity and specificity of the notice was not in issue. Coulton and Ors v Holcombe and Ors (1986) 162 CLR 1 applied; (4) Original judgments and proposed orders withdrawn for the purpose of such review. Smith v New South Wales Bar Association [No 2] (1992) 66 ALJR 605 (HC); Wentworth v Rogers and Ors [No 9] (1987) 8 NSWLR 388 (CA) applied.