SWEENEY and ANOR v KELL AND RIBGY (BUILDERS) PTY LTD [1996] NSWCA 511

SWEENEY v KELL AND RIBGY (BUILDERS) PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE and SHELLER JJA and ABADEE AJA 29 October 1996, 29 October 1996

[1996] NSWCA 511

APPEAL — application to adduce fresh evidence — application not in accordance with Rules — evidence had no weight or relevance to matters the subject of the appeal.

COSTS — application for indemnity costs no warning that appeal would not proceed once initial application was rejected

Clarke JA

An application has been made by the second appellant and although we have not been informed that the application is supported by the first appellant, I will assume that it is. That application is to adduce before this Court evidence going to an issue in the case being evidence of which the appellants had not become aware until after 21 October of this year.

The evidence is contained in correspondence which has been handed up and received by the court for the purpose of ruling upon the application. The first letter in the bundle of correspondence is a letter from the solicitor for the first appellant to the Referee seeking information as to his relationship with the respondent to the appeal and the solicitors for that respondent. The second letter is the Referee's reply which, not surprisingly, seeks information as to the basis for the request made. The third letter is another letter dated 21 October, 1996 from the solicitor for the first appellant addressed to the solicitors for the respondent seeking information as to the instances in which the Referee acted in references upon the nomination either by Colin Biggers and Paisley or Tress Cocks and Maddocks, information as to whether the Referee acted in references in the last five years upon the nomination of the respondent and information as to the association between the Referee, the solicitors for the respondent and the respondent itself.