SOLAH BLUE METAL PTY LTD v TECMA PTY LTD [1995] NSWCA 440

SOLAH BLUE METAL PTY LTD v TECMA PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and COLE JJA 4 April 1995, 19 April 1995

[1995] NSWCA 440

PRACTICE AND PROCEDURE Commercial Division — adoption of referee's report — whether misinterpretation of pleadings and particulars — whether failure to give reasons — held: No failure. Complaint about referee's report without substance and want of reasons immaterial.

PRACTICE AND PROCEDURE — Commercial Division of Supreme Court — reference to referee — definition of matters in dispute — whether referee and Judge of Commercial Division (Rogers CJ Comm D) failed to address the issue presented by party upon pleadings of particulars — whether issue of substance in dispute overlooked or ignored — whether judge failed to give any or adequate reasons for adopting the report of the referee in the circumstances — whether failure of the judge to deal with the issue material in the circumstances — held: (Cole JA; Kirby P and Mahoney JA concurring): (1) The issue contended was not properly before the referee on the pleadings and particulars so that the referee was not obliged to address evidence in relation to allegations not pleaded before him. Xuereb and Anor v Viola and Ors (1988) 18 NSWLR 453 (SC) considered; (2) Although the judge did not address the submissions of the appellant in his reasons, as they were without substance he was not obliged to do so for the purpose of rejecting them; (3) Appeal dismissed with costs.

COURTS AND JUDGES — Commercial Division of Supreme Court — adoption of report of referee — obligation of referee to give reasons — obligation of judge to give reasons — whether default in such obligation requiring intervention of Court of Appeal — held: (1) The referee did not fail to give reasons upon the matters pleaded and particularised before him; (2) Although the judge did not deal with a matter the subject of submissions, as that matter was without substance, no error was shown inviting correction by the Court of Appeal.