JARDINE UNDERWRITING AGENCY PTY LTD v HILITE AGENCIES (NSW) PTY LTD and ORS [1998] NSWCA 116

JARDINE UNDERWRITING AGENCY PTY LTD v HILITE AGENCIES (NSW) PTY LTD and ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and STEIN JJA 25 September 1998

[1998] NSWCA 116

Stein JA This is an appeal from a decision of Hunter J. The notice of appeal filed in July 1997 raised three grounds, two in paral and a separate ground in para2.

The written submissions of counsel for the appellant abandoned ground 1(b) and ground 2 in the notice of appeal leaving reliance upon ground I(a) only. Ground 1(a) maintains that his Honour erred in adopting a referee's report in circumstances where the referee had wrongly rejected the whole of the appellant's expert report on the basis that the report did not, in express terms, make reference to the scope of works.

When the hearing of the appeal commenced counsel for the appellant sought leave to file in Court an amended notice of appeal. It was said to reflect part of the argument in his written submissions. The document handed up included two grounds, ground 1(a) being in the same terms as ground 1 (a) in the original notice of appeal. Ground 1(b) added this:

That his Honour erred in adopting the referee's report where the referee had unfairly informed himself by conferring privately with a respondent and other persons and unfairly failed to convey the contents of the information received to the appellants.

I should interpolate that that new ground was opposed by counsel for the respondent.

After hearing appellant's counsel argue why the Court should permit the amended notice of appeal to be relied on, the Court rejected the application. Mr Taylor, on behalf of the appellant, sought to be heard further in an attempt to convince the Court that the amendment ought to be permitted on the basis that he had not, he believed, put all that he could in relation to the matter. Mr Taylor then further addressed us and handed up additional written submissions which succinctly outlined his argument, not only for the amendment, but in relation to the substantive matter of the appeal itself. I will return to this document in a moment.