FALGAT CONSTRUCTIONS PTY LTD v LIGHTNING READY MIXED CONCRETE PTY LTD [1994] NSWCA 94

FALGAT CONSTRUCTIONS PTY LTD v LIGHTNING READY MIXED CONCRETE PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, MEAGHER and SHELLER JJA

28 October 1994, 25 November 1994

[1994] NSWCA 94

ADMINISTRATIVE LAW — procedural fairness; referee's report

The respondent agreed to supply the appellant, a builder, with ready mixed concrete of a specified strength. In proceedings in the Construction List the appellant alleged breach of the contract for supply of the concrete. The concrete as placed was found to be under strength. The Court referred out certain matters to a referee pursuant to Pt72 of the Supreme Court Rules and adopted the referee's report. The appellant appealed from the decision to adopt the report on the grounds that the referee had made a finding that contamination of the concrete was explained by the addition of water to the concrete after delivery by the respondent and at the pump on the site without evidence or in reliance upon his own expertise and without giving the appellant an opportunity to meet the point. The appellant argued that accordingly the Court should not have adopted the referee's report.

Held: That the appeal should be dismissed. The appellant to succeed in its action had to show that the concrete was contaminated when it was delivered by the respondent. The referee was doing no more than saying that the appellant had failed to establish that there was a breach of contract by the respondent in delivering concrete that was not up to specification. His conclusion that the excess water was added at the pump did not undermine the finding which was clearly open to him that when delivered the concrete was not contaminated.

Per Mahoney JA: There was evidence upon which the referee could conclude that the water was added at the pump, and there was not any failure of due process in the referee considering and determining that issue. A tribunal of fact is not bound to accept one or other of the contentions put to it by the parties; provided the matter is appropriately in issue, the tribunal of fact may adopt such conclusion as the evidence allows.