QBE Insurance (Australia) Ltd v Quasar Constructions (NSW) Pty Ltd [2007] NSWDC 162

New South Wales District Court

CITATION: QBE Insurance (Australia) Ltd v Quasar Constructions (NSW) Pty Ltd [2007] NSWDC 162

HEARING DATE(S): 6 and 7 June 2007

JUDGMENT DATE: 8 June 2007

EX TEMPORE JUDGMENT DATE : 8 June 2007

JURISDICTION: District Court - Civil Jurisdiction

JUDGMENT OF: Johnstone DCJ at 1

DECISION: Plaintiff's motion for rejection of the report of the Referee dismissed; in respect of the defendant's motion, the report was varied as to errors conceded, but otherwise adopted; judgment for the defendant on the cross-claim against the plaintiff for $39,550.10 together with interest; special costs orders to reflect mixed success of defendant on multiple issues

CATCHWORDS: Building and Construction - report of Refereee - errors alleged in report, some conceded, others disputed - disputed findings open to Referee on the evidence - not demonstrated that Referee misapprehended the evidence, or made perverse findings - reasons of Referee adequate - Practice & Procedure - Court appointed Referee - procedure on delivery of report to Court - whether Referee's report should be adopted, rejected or varied

LEGISLATION CITED: UCPR: r 20.14, r 20.23, r 20.24(1)(a)

PARTIES: QBE Insurance (Australia) Ltd (Plaintiff) Quasar Constructions (NSW) Pty Ltd (Defendant)

FILE NUMBER(S): 4001/05

COUNSEL: Mr D Weinberger (Plaintiff) Mr F Hicks (Defendant)

SOLICITORS: Ebsworth & Ebsworth (Plaintiff) Kreisson Legal (Defendant)

JUDGMENT HIS HONOUR: I will give an extempore judgment in these motions.

1. On 14 May 2001 QBE Insurance (Australia) Ltd entered into a construction contract with Quasar Constructions (NSW) Pty Ltd, for the refurbishment of QBE's premises at 82 Pitt Street, Sydney. 2. Disputes arose, particularly in respect of variations, which affected the adjusted contract sum, and QBE claimed that it had overpaid Quasar and alleged that some of the work done was defective. QBE commenced the substantive proceedings. 3. The court appointed a Referee, Mr B O'Mara, and referred the matters in dispute to him for inquiry and report: r 20.14 UCPR. The Referee inquired into the matters in dispute and made a written report dated 18 December 2006 ("the Report") to the court: r 20.23 UCPR. The Referee was of the opinion that QBE owes Quasar $57,844.06. 4. Both parties then filed motions. QBE asks the court to reject the Report. Quasar asks the court to adopt the Report. In effect, however, the parties simply seek variation of certain parts of the Report: r 20.24(1)(a) UCPR. 5. QBE alleged that there were seven substantive errors made by the Referee in his report.