JARVAN PTY LTD (in liquidation) formerly John R CARR AND ASSOCIATES PTY LTD v SEERY and ORS [1998] NSWCA 117

JARVAN PTY LTD (in liquidation) formerly John R CARR & ASSOCIATES PTY LTD v SEERY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COMMON LAW DIVISION

MEAGHER, SHELLER and STEIN JJA 29 October 1998, 1 December 1998 [1998] NSWCA 117

DISCRETION — reference by court to referee — adoption of report — powers of court in respect of factual findings — whether exercise of discretion to adopt report miscarried — no miscarriage in absence of perversity or manifestly unreasonable fact-finding — Supreme Court Rules 1970, Pt72 r13

The first respondents brought an action for damages against the builder, architect (appellant) and consulting engineer of their new residence in relation to extensive cracks that developed in the building soon after construction was completed. At the hearing, the court referred certain questions to a referee. The report of the Referee, a highly experienced consulting engineer, was adopted by the court and judgment given against the appellant and engineer. The damages totalled $1,059,428 (plus interest) together with $50,000 for vexation. The appellant was ordered to pay 15% of the damages and to pay the costs of the owners, which included the costs of the builder which the owners had been ordered to pay.

The appellant submits that the trial judge erred in adopting the Referee's Report which included a finding that the architect's contract with the owners embraced responsibility for the professional services of the engineer. He also challenges the proportion of responsibility found between himself and the engineer.

Held:

1. The findings of fact and the conclusions of the Referee were open on the evidence, as were the findings of the trial judge. There is no basis on which to conclude that the trial judge's exercise of discretion to adopt the report of the Referee miscarried.