Chocolate Factory Apartments Pty Limited v Westpoint Finance Pty Limited & Ors [2005] NSWSC 441

New South Wales Supreme Court

CITATION : Chocolate Factory Apartments Pty Limited v Westpoint Finance Pty Limited & Ors [2005] NSWSC 441

HEARING DATE(S) : 28/04/05

JUDGMENT DATE : 28 April 2005

Equity Division JURISDICTION : Technology and Construction List

JUDGMENT OF : Einstein J

DECISION : Case management of hearing to adopt/reject Part 72 Referee's Report.

CATCHWORDS : Practice and Procedure - Rigorous approach to submissions to be made on motions to adopt/reject Part 72 Referee's Report - Overriding Purpose Rule

LEGISLATION CITED : Supreme Court Rules (1970) (NSW)

ABB Engineering Construction Pty Limited v Abigroup Contractors Pty Limited [2003] NSWSC 665 CASES CITED : Super Pty Limited v SJP Formwork (Aust) Pty Limited (1992) 29 NSWLR 549

Chocolate Factory Apartments Pty Limited (Plaintiff) Westpoint Finance Pty Limited (First Defendant) PARTIES : Westpoint Constructions Pty Limited (Second Defendant) Westpoint Management Ltd (Third Defendant)

FILE NUMBER(S) : SC 55018/04

Mr F Kalyk (Plaintiff) COUNSEL : Mr D Grieve QC, Mr Hicks (Defendants)

Hicksons Lawyers (Plaintiff) SOLICITORS : Robinson Beale Horton McMinn (Defendants)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION TECHNOLOGY AND CONSTRUCTION LIST

Einstein J

Thursday 28 April 2005 ex tempore Revised 9 May 2005

55018/04 Chocolate Factory Apartments Pty Limited v Westpoint Finance Pty Limited & Ors JUDGMENT 1 These proceedings were the subject of a reference to the Honourable J M N Rolfe QC. The referee's first report, entitled "Interim Report" delivered 6 December 2004 covers 408 pages. The referee's "Further Interim Report" dated April 2005 covers 15 pages. 2 Directions have from time to time been given by the Technology and Construction List Judge with a view to the cross exchange of submissions to be addressed in aid of the respective parties' approaches to the adoption or rejection of all or part of the report. Directions were given on 18 March 2005 requiring Chocolate Factory Apartments Limited, the plaintiff in the proceedings, to serve on or before 30 March 2005 its (a) outline of matters that it proposed to challenge, (b) grounds of challenge, (c) outline submissions. Albeit perhaps not complying to the letter with the date by which those submissions were required to be filed and served, the plaintiff has produced a 460 paragraph, 72 page submission entitled "Statement as to matters of contest, basis of contest and outline of submissions in respect of the report" ["the plaintiff's outline"].