PAN ASIA INTERNATIONAL GROUP PTY LTD v KEZARNE PTY LTD [1998] NSWCA 168

PAN ASIA INTERNATIONAL GROUP PTY LTD v KEZARNE PTY LTD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

BEAZLEY JA 15 September 1998

[1998] NSWCA 168

Beazley JA. The claimant applies for a stay of two judgments of Bainton J dated 13 and 27 August 1998 upon undertakings being given to the Court that the appeal will be prosecuted with reasonable diligence and that security will be maintained of $900,000, lodged with the Court on 1 September 1998 in respect of the judgment for $604,739 and interest entered in favour of the first opponent and the order for costs made in favour of the first opponent. The second opponent is the principal of the first opponent. He appeared in person in this Court.

The proceedings before Bainton J were Pt 72 r 13(1) proceedings for the rejection of portions of two reports to the court below by a referee under Pt 72 r 11. The reference to the referee was of proceedings brought by the opponent in respect of a building contract.

The referee apparently prepared a number of reports, two of which were reports to the court under Pt 72 r 11. The first report, dated 28 April 1998, was subject to objections by the claimant under r 13, and Rolfe J referred six matters back to the referee for further consideration and report. The referee reported again on 8 July 1998. The claimant sought to have certain paragraphs of both the first and the second reports rejected. Bainton J rejected the application and ordered that the two reports be adopted (noting that the second report varied certain parts of the first report).

The claimant has appealed from his Honour's judgment. Two principal issues are raised on the appeal. They are:

1. that Bainton J failed to consider certain of the claimant's submissions and thereby denied it natural justice; and

2. that his Honour erred in law in adopting the reports because there were errors on the face of the record in respect of certain calculations and in respect of the first opponent's entitlements to damages.