New South Wales Court of Appeal CITATION : ABIGROUP CONTRACTORS PTY. LTD. (ACN 000 201 516) v. SYDNEY CATCHMENT AUTHORITY (No. 2) [2004] NSWCA 459 HEARING DATE(S) : On papers JUDGMENT DATE : 15 December 2004 JUDGMENT OF : Beazley JA; Ipp JA; Tobias JA DECISION : 1. Appeal allowed.; 2. Set aside the orders made by the trial judge on 23 July 2003.; 3. Remit the matter to the Supreme Court for further directions in accordance with the reasons of this Court.; 4. The respondent is to pay the appellant's costs of the appeal; 5. The costs of the hearing before the trial judge are to abide the outcome of the rehearing.; Further order; 6. The appellant is to pay the respondent's costs of the motion. CATCHWORDS : Orders - slip rule PARTIES : Abigroup Contractors Pty. Ltd. (ACN 000 201 516) (Appellant) Sydney Catchment Authority (Respondent FILE NUMBER(S) : CA CA 40784/2003 COUNSEL : D.F. Jackson QC/S.A. Kerr (Appellant) S.R. Donaldson SC/M. Dempsey (Respondent) SOLICITORS : Clayton Utz (Appellant) Phillips Fox (Respondent) LOWER COURT Supreme Court JURISDICTION : LOWER COURT 55045/2001 FILE NUMBER(S) : LOWER COURT Nicholas J JUDICIAL OFFICER : - 4 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40784/03 SC 55045/01 BEAZLEY JA IPP JA TOBIAS JA 15 December 2004 ABIGROUP CONTRACTORS PTY. LIMITED v. SYDNEY CATCHMENT AUTHORITY (NO. 2) Judgment 1 THE COURT: On 23 July 2003 Nicholas J made an order that the report of the Referee, the Hon. Mr. J.M.N. Rolfe QC, dated 7 August 2002 be adopted. The effect of that order was that the appellant's claim for damages and other orders arising out of losses it alleged it sustained in the construction of an auxiliary spillway at Warragamba Dam was dismissed. 2 The appellant appealed to this Court. The issues in this Court were much narrower than those determined by the referee and considered by the trial judge. In particular, of the claims made under the Fair Trading Act and the Trade Practices Act only one was in issue on the appeal. In respect of that claim, the complaint was that the referee had erred in failing to consider the appellant's claim that the respondent had represented that there were no plans of an outlet pipe of a particular embankment when there were such plans (the representation): see appeal judgment at [10] and [43]. The appellant contended that if the plans had been made known to the appellant it would have affected the pricing of the appellant's tender, or, potentially, whether the appellant would have tendered at all. 3 On the appeal the Court held that the trial judge erred in the exercise of his discretion in adopting the report because he misunderstood the representation alleged and had failed to deal with the case advanced by the appellant based on that representation. His Honour's error repeated the error of the referee: see appeal judgment esp. at [61] and [73]. The effect of the Court's finding was not that there had been a misrepresentation but that the referee and the trial judge had not dealt with the case made by the appellant in relation to the representation alleged. 4 At [74], the Court held that the trial judge's error was fundamental and that issue needed to be remitted for redetermination. That finding was made subject to the determination of two other issues raised by the respondent (referred to in the appeal judgment as the "reliance issue" and the "passing on issue"). 5 The Court found against the respondent on both those issues. 6 There were two other issues raised on the appeal relating to estoppel and damages. The parties agreed that as the trial judge had not dealt with the estoppel issue that issue should be remitted for determination. The parties also agreed that as there was a dispute as to the proper approach to the assessment of damages then, if the matter was otherwise to be remitted for redetermination, that issue should also be remitted. 7 In its orders the Court ordered that the report of the referee be rejected. That was an error. The Court's order should have been confined to setting aside the trial judge's orders, including the order adopting the report: see Order 2. Order 4 was only intended to cover those matters that had been raised on the appeal, namely the representation issue, the reliance issue insofar as it related to the representation issue, the passing on issue, the estoppel issue and the damages issue. The appellant, in the Orders Sought on the appeal, correctly anticipated that there would need to be some working out of the orders before the trial judge if the matter was remitted: see Order 2(b) sought in the Notice of Appeal. This is especially so, given the power in the judge dealing with the question of the adoption of the report in Pt.72 r.13. 8 Should there be any doubt about the matter, we make the following observations. First, the draft orders proposed by the solicitors for Abigroup being part of Annexure 'A' to the Affidavit of Michael John White sworn 24 September 2004 do not reflect the Court's findings and should be rejected. Secondly, we consider that the trial judge's order adopting the report should be set aside. Whether the report is rejected in whole or in part at the end of the rehearing on the matters remitted is a matter for the trial judge. Thirdly, whether the trial judge receives further evidence is a matter for the trial judge: see Pt.72 r.13(d). Finally, whether the matter on remittal is heard by Nicholas J or another judge of the Supreme Court is a matter for the Supreme Court. 9 This Court's orders should be amended so as to omit Order 3 and to amend Order 4 under the slip rule to accord with Order 2(b) sought in the Notice of Appeal as follows: Remit the matter to the Supreme Court for further directions in accordance with the reasons of this Court. As Order 3 is to be omitted there will need to be a consequential renumbering of the Orders. 10 The appellant should pay the respondent's costs of this motion. The amended orders proposed by the appellant did not accord with the Court's judgment. In fact they went far beyond anything that a sensible reading of the judgment could possibly have borne. The parties should have been able to agree to the amendments to the Orders, which were not substantial. The need for the motion filed by the appellant or at least its complexity have been in large measure caused by the appellant attempting to obtain orders that were in no way contemplated by the Judgment or in its own Notice of Appeal. 11 Accordingly, the Orders of the Court, as amended under Pt.20 r.10 (slip rule) are: 1. Appeal allowed. 2. Set aside the orders made by the trial judge on 23 July 2003. 3. Remit the matter to the Supreme Court for further directions in accordance with the reasons of this Court. 4. The respondent is to pay the appellant's costs of the appeal 5. The costs of the hearing before the trial judge are to abide the outcome of the rehearing. Further order 6. The appellant is to pay the respondent's costs of the motion. ********** Last Modified: 12/15/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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